PLS_440_session_9 by Wittgenstein


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									PLS 440: Session 9                                            9/29/2010 8:28:00 PM

        reading the case
 Tips for
        Consult commercial or online summaries, first
        Go into the case and read it for yourself
        the case
 Tips for
        Get organized
        Send e-mail
       want to strategically plan
       absences will not allow to get away with point reduction
 Theory of the Judiciary
           Judicial branch
               o Interesting creature
               o De Tocqueville
                       French writer
                       Comes to America around the 1830s
                       Makes an interesting observation:
                             The judiciary has the last say over legality
                             Therefore, every social or political question will
                              degenerate into a legal question
                              Court will end up determining everything
                                  Oligarchy
               o Alan Keyes
                     Jurocracy – courts will dictate what we can do
                           Courts are taking over
               o Hamilton
                     Federalist #78, writing 40 yrs earlier:
                           Don’t fear
                           Political power
                                  Lacks power of the purse and the sword
                                  Tax and spend – congress
                                  Military and police state – president
                                  Lacks key political powers
                        Conceptualizing Hamilton
                            See illustration
                                  Courts don’t have political power
                                  Rely their decisions to be enforced by others
                               Courts are not going to send society back
                               Courts work within constrained environment
                    Judging is special
                         Judges don’t declare policies like other organs of
                         Judges are bound by a legal orthodoxy
                         “reach decisions neither by will or force, but by
                         *see Hamilton quote
                               judge’s chambers are not smoke-filled,
                                  cigar-chewing rooms
                                 judging is special
                                 law is separate from politics
                                 law is a professional craft

The Constitution as Higher Legality
      Theory of law
           o Always been people thinking that their should be more than a
               person saying that they are the law
                  Gods’ will?
                  Reason/Nature?
                  Logic?
        American tries to legalize higher law
           o No longer vague notion
           o Given to judges for people to ask for it
           o Write the fundamentals in the constitution
           o Its own sanctification process
                  Not that when America passes its Constitution, it will
                     demand that the constitution-writing process be
                     different than its legislative writing process:
                          Assembly meets in secret (jury)
                          The public passes judgment on the creation,
                            sending delegates to a ratifying convention
                          The people who draft the constitution is not the
                            same as people drafting statues
                                See illustration
                                     o Law written down like statue and
                                       people make election for delegates to
                                       view the constitution
                                     o Separate democratic institution
                                     o Makes the law of the law
                                     o Constitution is the law of the law
The Supreme Court
      Number of Justices
          o Constitution doesn’t tell us
          o Congress determines how many
        Qualifications of Justices
            o Constitutions doesn’t tell us
        Home of the supreme court
            o Currently as the “marble palace” on Capitol hill
            o First home: Royal Exchange Building in New York city
            o 1790 the court moved in Philadelphia
            o 1801 justices moved into Washington D.C.
        skipping terms
            o early on, the court even skipped a couple of its terms b/c of
               lack of cases, and b/c of political reasons
            o first day of business
                   see quote
        Riding Circuit
            o The nation was divided into 3 judicial circuits
            o Justices initially had to ride into each circuit and be the trial
               judge for that area
            o Made the appointment unpleasant. People turned it down
            o *see appointments
                     they don’t know what the judges are supposed to do
                     half the time they were diplomats
9/29/2010 8:28:00 PM
9/29/2010 8:28:00 PM

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