Lecture #1--Law & Social Policy 1-9-12: Power, People & Money

1-9-12
Lecture # 1:Law & Social Policy: The Power of People, Money and Property

WHAT WOULD TOCQUEVILLE THINK?

When gold speaks all tongues are silent!
Money doesn’t stink, it deodorizes.
Pecunia obediunt omnia.
He carries an ox on his tongue!

1. Introduction
2. Logistics
3. Lecture: The Law of Laws. DV
4. Class Assignment

Part 1 (of 4): Introduction

In less than two weeks, citizen protesters will try to occupy courts across the country. Their protest is aimed at the United States Supreme Court decision in Citizens United v. Federal Election Commission, a 2010 decision recognizing the first amendment right of a corporation to attempt to influence elections.

MOLLY reads the following:

ABA Journal Law News Now
Group Opposing Citizens United Pushes ‘Occupy the Courts’ Protest

FIRST AMENDMENT
Group Opposing Citizens United Pushes ‘Occupy the Courts’ Protest
Posted Jan 5, 2012 7:08AM CST By Debra Cassens Weiss

A group called Move to Amend is calling for a one-day "Occupy the Courts" demonstration to protest the U.S. Supreme Court’s decision finding that corporations have a First Amendment right to support political candidates.

The group dispatched a press release calling for protests at federal courthouses on Jan. 20 to mark the second anniversary of the Supreme Court’s decision in Citizens United v. Federal Election Commission. The Recorder’s Legal Pad blog and the New Y ork Observer have stories.
The group’s website has permit applications for would-be protesters, handbills and posters to promote the events, and instructions on how to make a “corporate personhood costume” (PDF). There is also a “corporate personhood song” (PDF) to be sung to the tune of “This Land Is Y our Land.” The song asserts that corporations “rape and plunder the world’s resources” and “dump big money into elections.” First Amendment rights have been stolen by corporations, the song asserts. “Those rights belong to you and me.”
Legal Pad has doubts about the federal courts’ reception to such protests. “Now, anyone who’s been through a security screening at a federal building recently knows they aren’t exactly warm and welcoming places for ‘occupations,’ ” the blog says. “No word on how courthouse security folks are handling those protest plans.”
MOLLY reading complete
DV Resumes

* * * * *
Other protest techniques are planned for other venues as well. One proposes to occupy corporations’ headquarters and carry out citizen arrests or ‘apprehensions’ as one group calls them. Here’s a notice from the organization known as PUBLICCITIZEN:

MOLLY reads the following:

http://www.citizen.org/occupy-the-corporations
PUBLICCITIZEN: Celebrating 40 Years of Progress
Occupy the Corporations: Stop the Impostors!
On January 21, 2012 as a part of our Nationwide Day of Action to overturn Citizens United v. FEC and end corporate rule, Public Citizen is working with local activists to ‘apprehend’ corporate impostors posing as ‘people’ with the same constitutional rights as the rest of us.
We'll be exposing these impostors to the light of day in cities and towns throughout the nation, and together with local activists we'll be calling on their elected officials to support a constitutional amendment that would overturn Citizens United and end corporate domination of our democracy. Your action can be as simple as holding signs (we've got samples below!) and gathering petitions in front of a corporate target, or you can use one of the ideas we describe below.

MOLLY pauses: DV asks class from some recommended ideas for action, after which
Molly resumes reading with pause for class comments after each action:

Other Recommendations for Actions
Citizens Posse: In 2010, a Citizens Posse was organized to effect a “citizens’ arrest” of greedy insurance companies that stood in the way of health care reform. They, and other short-sighted big corporations, are only empowered to effectively buy more influence by Citizens United!
Occupy the Kochs: Koch Industries (and the billionaire brothers behind it) are THE pre-eminent funders of faux-grassroots campaigns to gut vital environmental, consumer and worker protections, and the as politicians who support those efforts. Activists in the past have Quarantined the Kochs and held Guerrilla Drive-Ins outside their events and offices.
Corporate Crime Scene: Check out a recent action by Greenpeace in front of the US Chamber of Commerce. “Crime Scene: False Impersonation of a Human Being” has a nice ring to it, and regardless could make a nice sign for your event…
Musical Actions and Flash Mobs: Target got a lot of negative attention when it gave $150,000 to an extreme anti-worker, anti-gay candidate in Minnesota. Citizen activists responded with a spirited performance, Target Ain’t People.” The message applies to many other corporations, obviously.
Banner Hangs: Always an excellent way to get visibility. “ExxonMobil=Person?” for instance. Here’s a great example from the Rainforest Action Network.
Occupy Corporate Offices: For the more daring among you, recent anti-foreclosure actions against Bank of America by New Bottom Line might be worth checking out.
Human Banner examples: Endangered Freedoms; Tax the 1%; and Step It Up.

MOLLY reading complete
DV resumes

Actions in reaction to Citizens United v Federal Election Commission are not limited to ‘colorful’ and original and marginal protests by marginal political activists. Some are quite the essence of establishment practice. Consider the following article from last week’s Huffington Post:

MOLLY reads

'Citizens United' Backlash: Montana Supreme Court Upholds State's Corporate Campaign Spending Ban
First Posted: 01/ 4/12 11:24 AM ET Updated: 01/ 4/12 11:27 AM ET
WASHINGTON -- The Montana Supreme Court has put itself on a collision course with the U.S. Supreme Court by upholding a century-old state law that bans corporate spending in state and local political campaigns.
The law, which was passed by Montana voters in 1912 to combat Gilded Age corporate control over much of Montana's government, states that a "corporation may not make ... an expenditure in connection with a candidate or a political party that supports or opposes a candidate or a political party." In 2010, the U.S. Supreme Court, in its landmark Citizens United v. Federal Election Commission decision, struck down a similar federal statute, holding that independent electoral spending by corporations "do not give rise to corruption or the appearance of corruption" that such laws were enacted to combat.
That reasoning -- described by the Citizens United dissenters as a "crabbed view of corruption" -- compelled 23 of the 24 states with independent spending bans to stop enforcing their restrictions, according to Edwin Bender, executive director of the Helena, Mont.-based National Institute on Money in State Politics. Montana, however, stood by its 1912 law, which led several corporations to challenge it as unconstitutional.
By a 5-2 vote this past Friday, the Montana Supreme Court declined to recognize the common understanding that Citizens United bars all laws limiting independent electoral spending. Instead, Chief Justice Mike McGrath, writing on behalf of the majority, called on the history surrounding the state law to show that corporate money, even if not directly contributed to a campaign, can give rise to corruption.

MOLLY reading complete
DV resumes
** ***

So, what IS Citizens United v. Federal Election Commission? And why has it generated so much attention?

MOLLY reads first three paragraphs of NYT article

Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), 558 U.S. ––––, 130 S.Ct. 876 (January 21, 2010), was a landmark decision by the United States Supreme Court holding that the First Amendment prohibits government from placing limits on independent spending for political purposes by corporations and unions. Wikipedia.

Here is a comprehensive report from the New York Times.

January 21, 2010
The New York Times
Justices, 5-4, Reject Corporate Spending Limit
By ADAM LIPTAK
WASHINGTON — Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.
The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy.
The ruling represented a sharp doctrinal shift, and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted. Though the decision does not directly address them, its logic also applies to the labor unions that are often at political odds with big business.
**** (Material omitted)
The justices in the majority brushed aside warnings about what might follow from their ruling in favor of a formal but fervent embrace of a broad interpretation of free speech rights.
“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of the court’s conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
The ruling, Citizens United v. Federal Election Commission, No. 08-205, overruled two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.
The 2002 law, usually called McCain-Feingold, banned the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections.
The law, as narrowed by a 2007 Supreme Court decision, applied to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
The five opinions in Thursday’s decision ran to more than 180 pages, with Justice John Paul Stevens contributing a passionate 90-page dissent. In sometimes halting fashion, he summarized it for some 20 minutes from the bench on Thursday morning.
Joined by the other three members of the court’s liberal wing, Justice Stevens said the majority had committed a grave error in treating corporate speech the same as that of human beings. (Emphasis added).
*** (Material omitted)
The majority opinion did not disturb bans on direct contributions to candidates, but the two sides disagreed about whether independent expenditures came close to amounting to the same thing.
“The difference between selling a vote and selling access is a matter of degree, not kind,” Justice Stevens wrote. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.”
Justice Kennedy responded that “by definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”
The case had unlikely origins. It involved a documentary called “Hillary: The Movie,” a 90-minute stew of caustic political commentary and advocacy journalism. It was produced by Citizens United, a conservative nonprofit corporation, and was released during the Democratic presidential primaries in 2008.
Citizens United lost a suit that year against the Federal Election Commission, and scuttled plans to show the film on a cable video-on-demand service and to broadcast television advertisements for it. But the film was shown in theaters in six cities, and it remains available on DVD and the Internet.
The majority cited a score of decisions recognizing the First Amendment rights of corporations, and Justice Stevens acknowledged that “we have long since held that corporations are covered by the First Amendment.”
But Justice Stevens defended the restrictions struck down on Thursday as modest and sensible. Even before the decision, he said, corporations could act through their political action committees or outside the specified time windows.
*** (Material omitted).

MOLLY reading complete.
DV Begins Lecture

Part 2 (of 4): Lecture


The Power of the People: the Law of Laws

The people reign in the American political world like God over the universe. --Tocqueville 71

For most of the history of the Republic, corporations were forbidden to attempt to influence the outcome of elections. Corporate political activity was criminal political activity in every political subdivision. Kentucky’s prohibition on corporate electioneering is actually ensconced in its constitution.

In 2010, the United States Supreme Court swept side the restrictions on corporate support for candidates in elections finding that as ‘persons’ and ‘citizens’ corporations enjoyed federal constitutional rights to influence elections as an exercise of free speech.

If law were physics, how would the scientist explain this discovery? The written text of the law had not changed; the people had not spoken or voted; no law had been amended. So what process is at work?

In an effort to explain the process, a legal scientist might analogize the law to a prism; it has no source of light itself but reflects and redirects light from other sources.

The course you are about to embark upon will examine instances where law functions as a prism, reflecting and redirecting social policy conditions and changes.

Eight discreet areas will command our attention: 1) corporate political activity; 2) school segregation based on race; 3) capital punishment; 4) libel; 5) war powers; 6) enhanced interrogation techniques (aka, torture); 7) sex and marriage; and 8) government’s right to take property from its citizens for public purposes.

In each of the eight areas, we shall see at work the same dynamics at work in the Citizens United decision of the Supreme Court; i.e., after many years of settled and accepted practice and no change in the written laws, a major legal shift occurs.

What change produced the change?

In this course we will look at the role social policy plays in the transformation. The 19th century political philosopher and social critic Alexis de Tocqueville posits that social condition is the fundamental source of most laws: the law of laws.

NICOLE reads
The condition of society is normally the result of circumstances, sometimes of laws, more often than not a combination of these two causes; but, once it is established, we can consider it as the fundamental source of most of the laws, customs and ideas which regulate the conduct of nations: whatever it does not produce, it modifies. In order to become acquainted with the legislation and the manners of a nation we must, therefore, start by studying the social condition. –Tocqueville 58.
NICOLE reading complete

Part 3 (of 4): Logistics

The Book (s)

And that is exactly how this course will begin: by studying the social condition of the United States as reported and described by Tocqueville himself in his masterwork “Democracy in America.” (1835, 1840). Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335].

Democracy in American is a classic, a two book masterpiece written by French aristocrat, political scientist and one of the founders of social science: Alexis de Tocqueville. His work is a tour de force in politics, economics and economic sociology.

The first book was completed in 1835 and the second in 1840 after Tocqueville toured the country on an official visit to study the penal system. He interviewed citizenry, observed how institutions and processes worked, listened to what people said, learned what they thought and watched what they did.

The chief aim of the book was to study American laws. To do so, Tocqueville looked at the soil from which laws sprung, the climate in which they were nurtured and withered—literally and figuratively.

Unlike other political texts that begin with theory, Tocqueville begins with looking at institutions as they functioned in reality. His approach was scientific and is regarded as a forerunner in the social science genre.

The text is dived between discussion of institutions and processes (Book 1)(1835) and economic and social characteristics. (Book 2) (1840).

Volume 1 established Tocqueville as one of the Europe’s great political thinkers.

Tocqueville was right about many things and wrong about many things. We study him not so much as to endorse his views but to study his theses and the processes he discerns. How are laws made?

What is the law of laws?

The Course Plan

What is the objective of the course? This course is designed to introduce the student to the interplay between law and social policy—the civic intersection where culture, social conditions, customs, economics, morals, politics, prejudice and self-interest meet on the way toward formulation of a governing policy that prudently dispenses public and political justice.

Law and social policy encompasses the relationship between customs and statutes, the letter and spirit of the law, the will of the majority and the rights of the minority. It is both current and enduring---the past and present working together.

What is the course about? It is about the sources of law—the confluence of political power, the exigency and temper of the times as well as the more enduring influences of culture, customs, manners and values and priorities of the people. If zeitgeist is the temper of the times law is the temper of the people. The concept of the ‘people’ transcends the numerical majority of the moment.

The Law of Laws

The course is about the essence of law. Where does it come from, why and how does it change? In this course, we will focus on a particular type of change: a change in the application, administration or interpretation of law WITHOUT a corresponding change in the letter of the law.

The ‘gap’ between the letter of the law and the administration of the law is at least as old as Shakespeare’s Measure for Measure where the Duke stopped enforcing the laws that mandated the death penalty for fornication.

Tocqueville tells us that the Puritans that founded the civil society on North American shores in the 17th century reflexively adopted the criminal codes of their country of origin then routinely ignored them—and the criminal laws they did enforce they enforced---are you ready for this—with KINDNESS!!!

Law and social policy are engaged in a perpetual a pas de deux—sometimes one leads and at other times follows. While their separate form is distinct, their function is unified. They dance and function as one even though they are clearly two.
The course follows the path mapped by Tocqueville. In order to become acquainted with the law we will study social conditions and manners.

Ultimate Questions Posed by the Course
Every lecture, every class, every case and text considered in the course raises the question (s): What is the relationship between law and social policy? Does law lead or follow? Is law master or servant, shadow or corpus? Is social policy determined by the people or by the judiciary or by the legislature or by the executive branch, the bureaucracy or by the constitution? Might social policy come from experts, customs, culture, social conditions, world opinion or informed elite?
Class plan: There will be fourteen classes beginning January 9 and ending April 9. Twelve class plans have been prepared (unplanned time allows for productivity through flexibility and the opportunity to review, summarize and talk about the final exam):
The first four classes are introductory and historical and treat the course resources, the three departments of government and twenty-one law and social policy questions considered by Tocqueville in his masterwork Democracy In America (1835, 1840). The ensuing eight classes will cover (in the sequence in which they will be considered): Capital Punishment, Segregation, Libel, Corporate Political Activity, War Powers, Torture and Terrorism, Family and Governmental Takings.
The first four substantive lectures are animated with a focus on judicial power and social policy, the next two on executive branch power and social policy and the final two on legislative power and social policy. Four broad types of law and policy shape the course: ECONOMIC (Takings and Corporate Political Activity) LIBERTY (Libel and Family), THE STATE (War Powers and Enhanced Interrogation) and SOCIETY (Capital



Part 4 (of 4): Class Assignment

Lecture #1: INTRODUCTION: The Power of the People
[January 9, 2012]
The people reign in the American political world like God over the universe. --Tocqueville 71

Is Tocqueville right? Do the people reign like God over the universe? Are some expressions of the popular will more enduring than others? In 1954, what would the people say about integrating schools? Hadn’t the people already spoken to the subject through their laws requiring racial segregation? More recently, California people exercised their collective voice to utter a resounding ‘no’ to same sex marriage. Can that action stand? For over 100 years the people of Kentucky have been on the official record in their constitution prohibiting corporations from using money to influence an election. Now, the United States Supreme Court says that what the people of Kentucky thought was a vice is really a federal constitutional virtue---a First Amendment exercise of free speech. Never mind Kentucky’s Constitution that adopted the worn out, out-dated wisdom set forth in the Italian proverb: when gold speaks every tongue is silent.

______________________________________________
Assignments for Class #1: Introduction: The Power of the People, Money and Property
1. Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335]. The discussion of Tocqueville will extend over the first four classes. Read Section III of the Introduction by Kramnick in its entirety, pages xxiv through xxxvii and pages xliii through xlvii, the concluding part of Section IV. Also read the author’s Introduction (an excellent historical description of the interplay between law and social policy) pp. 11-16: A new political science is needed for a totally new world. [16].
2. Tocqueville Chapter 2 pp. 36-58 (always read the introductory head notes at the beginning of each chapter). This chapter is an overview of the social, cultural, religious mix that the United States is. It sets the course for the course. Many of its specific topics will be treated in more detail over the next three classes: the national character, common language, equality, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition or support?) the relationship between law and social conditions.
3. Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64].
4. Tocqueville Chapter 4 pp. 68-71 “The Sovereignty of the People”: The people reign in the American political world like God over the universe. [71].The collective will of the nation, two impediments to progress before independence, its role in all things.
5. Chemerinsky Chapter 1, Section 1.4 “How Should the Constitution Be Interpreted?” pp.15-26. END

The National Character of the American Union (Chapter 2)

As Tocqueville toured America, nothing stuck his attention more forcibly than the equality of social conditions. He was amazed at the extraordinary influence this fundamental condition exerted upon the progress of society. Social conditions in America gave direction to public attitudes, provided a ‘certain style to the laws, fresh guidelines to governing authorities, and individual habits to those governed.” (Tocqueville, Introduction).

Soon Tocqueville realized that social conditions influenced not only laws and political customs but civil society itself: “It forms opinions, creates feelings, proposes ways of acting, and transforms anything it does not directly instigate itself.” (T. Introduction).

Tocqueville masterwork, Democracy in America, begins with an attempt to describe the contours of an emerging national character of a totally new world; a world built on equality of conditions and populated by ordinary people with no common past, no shared roots, no common ideas and no collective national character.
The key to his entire work is laid out in Chapter Two where Tocqueville described the emerging, collective national character of the people who had settled the American Union. This chapter is an overview of the social, cultural, religious mix that the United States was in the 19th century. Chapter Two sets the course for the course. Many of its specific topics will be treated in more detail over the next three classes: the national character, the importance of a common language, equality in all of its iterations, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition to or in support of one another?) the relationship between law and social conditions.
Language, government by common consent, sovereignty of an austere and argumentative people who were preoccupied with religion, equality, land and liberty are the broad features of the American family. The family had two branches: the gold seekers who settled the south and the more austere, inventive and enterprising people of New England who brought with them highly developed principles of order and morality.
It was in New England, in the north, that the social theory of the United States was brought together. The pillars of American social theory were: freedom, equality, liberty, justice, religion and duty, including a collective duty of society to its members (for example, in public education). In fact the early laws regarding education reveal the original character of American civilization in its clearest and most flattering light. Schools were established in every township and the citizens were obligated to support them under or face steep fines.

“I have expressed enough to characterize Anglo-American civilization in its true colors. This civilization is the result (and this is something we must always bear in mind) of two quite distinct ingredients which anywhere else have often ended in war but which Americans have succeeded somehow to meld together in wondrous harmony; namely, the spirit of religion and the spirit of liberty.’ (p.55)….. ”far from harming each other, these two inclinations, despite their apparent opposition, seem to walk in mutual agreement and support.” p 56.


Social Condition Produces Laws: (Chapter 3)
The condition of society is normally the result of circumstances, sometimes of laws, more often than not a combination of these two causes; but, once it is established, we can consider it as the fundamental source of most of the laws, customs and ideas which regulate the conduct of nations: whatever it does not produce, it modifies. In order to become acquainted with the legislation and the manners of a nation we must, therefore, start by studying the social condition. –Tocqueville 58.
Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64].

In the American Union, the basic social condition is democratic equality. There were never any seeds of aristocracy planted in New England. The intellect was the source of influence among men in New England. Those who acquired power over others and had reputations for virtue and wisdom would have been aristocrats if their status had been permanently transferable from father to son.

Aristocracy

Things were different south of the Hudson River where great landed aristocrats founded estates, brought with them to America the English laws of succession and aristocratic principles. But they lacked patronage and were therefore, not aristocrats but they gave the American revolution its greatest leaders.

Laws of Inheritance & Money

Tocqueville registers astonishment that commentators have not written more about the great impact the laws of inheritance have on social progress. (See page 60). It was the laws of inheritance that were the last step on the way to equality. By abolishing primogeniture and allowing ALL children to share equally there are two effects: 1) fragmentation of land into smaller, decreasing parcels and 2) the minds and emotions of the owners are freed and severed from the land. “The law of inheritance has reduced all men to one level.” P 64. Let Tocqueville describe it in his own words in describing the vast estates founded in New York:

“The first generation having passed away, estates began to be parceled out; and the change became more and more rapid with the progress of time. And now, after a lapse of a little more than sixty years, the aspect of society is totally altered; the families of the great landed proprietors are almost all commingled with the general mass. In the state of New York, which formerly contained many of these, there are but two who still keep their heads above the stream; and they must shortly disappear. The sons of these opulent citizens have become merchants, lawyers, or physicians. Most of them have lapsed into obscurity. The last trace of hereditary ranks and distinctions is destroyed; the law of partition has reduced all to one level.” Tocqueville.

Love of Money

“I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions.” (64). This is a unique aspect of the national character. (64).

Education

Tocqueville: “The Americans can devote to general education only the early years of life. At fifteen they enter upon their calling, and thus their education generally ends at the age when ours begins. If it is continued beyond that point, it aims only towards a particular specialized and profitable purpose; one studies science as one takes up a business; and one takes up only those applications whose immediate practicality is recognized. “[Education must be useful].
Education is a means to getting a job. Education is useful.

Intellectuals

“There is no class, then, in America which passes to its descendants the love of intellectual pleasures along with its wealth or which holds the labors of the intellect in high-esteem.’ (65).

Freedom and Equality: Equality is Their Idol

BUT a warning---EQUALITY and FREEDOM are not good travelling companions and are in ultimate opposition to each other.


Tocqueville observed there are only two methods of establishing equality: bring everybody up or take everybody down].
Tocqueville: “There is, in fact, a manly and lawful passion for equality that incites men to wish all to be powerful and honored. This passion tends to elevate the humble to the rank of the great; but there exists also in the human heart a depraved taste for equality, which impels the weak to attempt to lower the powerful to their own level and reduces men to prefer equality in slavery to inequality with freedom. Not that those nations whose social condition is democratic naturally despise liberty; on the contrary, they have an instinctive love of it. But liberty is not the chief and constant object of their desires; equality is their idol: they make rapid and sudden efforts to obtain liberty and, if they miss their aim, resign themselves to their disappointment; but nothing can satisfy them without equality, and they would rather perish than lose it.”
But Americans have some important saving graces that have allowed them to balance the two and maintain the sovereignty of the people. (Might the constitution be one?)


The Sovereignty of the People (Chapter 4): The Law of Laws

“The people reign in the American political world like God over the universe. It is the cause and aim of all things, everything comes from them and everything is absorbed in them.”

Two impediments checked the progress of the power of the people before independence: 1) the laws of inheritance 2) the influence of the mother country (so it was only apparent in local laws).

The Law of Laws

An aristocracy of sorts in the form of influence existed in New England based upon education and intellect and in the south based on wealth and land ownership. But a rapid disintegration began as soon as the revolution began. The change in the laws of inheritance was the final step needed to make the sovereignty of the people the law of laws.

The power of the people leads to some problems we will consider in the next lecture but in this lecture we may pause to ask:

What would Tocqueville think of Citizens United? What would Tocqueville think about the wisdom of allowing corporations to influence the outcome of elections? Is money speech?


How Shall the Constitution Be Interpreted? Is Judicial Review Consistent with Majority Rule?

So let return to where we began: with the Supreme Court setting aside the laws prohibiting corporations from influencing the outcome of elections. How was this done? By reading the constitution in a new way.

The Need for Interpretation

Two Theories of Interpretation: Originalism and NonOriginalism.

Originalists demand clearly expressed or implied in the text or the original intent. Nonoriginalists approve of protection of rights not clearly stated or even intended (for example, elimination of racial segregation). They believe the constitution can be changed by either amendment or interpretation. The two schools of thought also disagree on HOW the court should decide meaning. Our textbook gives an example involving Justice Thomas’s consideration of the ‘knock and announce rule’ under the 4th Amendment.

Now, as those of you know who have completed con-law, there is no such right expressly set forth in the 4th amendment. But by resorting to history and especially the state of the law in 1791, Justice Thomas ruled the procedure is implied. For a non originalist the historical approach is interesting and convenient but entirely unnecessary as such a right is clearly essential to the 4th amendment regardless what the framers intended. Non originalists might call the constitution a ‘living constitution’.

There are gradations of the two positions, each of which has enjoyed support by the court at various times

The arguments pro and con.
Originalists: the very nature of interpretation requires meaning to be based on text or intent. Everything else is a gloss and leads to the second argument: it constrains the power of unelected judges in a democratic society.
This latter argument is based on the premise that a democratic society is based on majority rule. But is it? And is the constitution really intended to be a pro-majority document? This is at the core of every debate on constitutional interpretation. Should unelected judges (or judges elected by a small segment of the population) overturn the decisions of popularly elected officials and even the decision of the people themselves (for example, in adopting constitutional amendments.

Non Originalists: there are three arguments used to support the non-originalist position: 1) it is more desirable to allow the constitution to evolve by interpretation than by amendment; for example, the framers of the 14th amendment on equal protection clearly did NOT intend for it to protect women from discrimination; but judicial decisions have ruled that it does; 2) it is impossible to discover original intent; intent can be deduced at various levels of abstraction. At the highest level of abstraction, the drafters intended liberty and equality and almost anything could be justified by invoking these two overarching values. 3) The flexible approach was actually intended by the framers.
It is one of the blessings and benefits of our course that we do not have to join or resolve the debate on any of these important issues now. We can

simply and thoughtfully note the pros and cons and save our opinions for another day or time.
DV: January 9, 2012

---Class Lecture Ends---


Bovem habet in lingua. He has an ox on his tongue. (Although this saying makes sense if you think of an actual ox which would weigh down your tongue, in its ancient usage the "ox" referred to coins that were stamped with the image of an ox. In other words, someone has been bribed to stay silent. Compare this variant phrase: Bovem in lingua fert, "He's carrying an ox on his tongue.")

Money doesn’t stink.

Money deodorizes.

When gold speaks all tongues are silent.

Money answereth all things.