PLS_440_Session _10 by Wittgenstein


									PLS 440 Session 10                                      10/6/2010 11:00:00 AM

 Marbury v. Madison read for next time

 The Supreme court
       Seriatim Opinions
           o Each Justice writing a separate opinion
                  England does this
           o Early court: justices would stand and read their opinions
           o John Marshall stopped this: now there is one justice who
              writes for the Court’s majority

 The Constitution and Social Learning (cultural confusion)
       Basic Premise
            o There was no such thing as a “constitutional system” until the
                framers invented it
            o We must remember that the invention was largely an accident
                    Interesting question: did they know that they invented
                     it, as such?
            o The culture is going to be somewhat confused about the
               system at first
                   *see illustration
                   get rid of the king and confusion on what to do about
                   Parliamentary system
                        Legislature – everything was subject to it
                   Constitutional system
                        Legislature is part of it,
                        Judiciary is keeping track of the law of the law
                           that both the legislature and President have to
                         Basic question: how is this going to work
         Examples of the Confusion
            o Separation of Powers
                  Washington’s views about separation of powers:
                         Adam’s sits in Senate
              Washington thought couldn’t talk to Adam’s b/c of
               separation of powers
                   *see illustration
                   Conceptualizing Separation of powers
                        o You do your job and I do mind
                        o Keep your nose out of my business
                        o Don’t worry about me and I won’t
                           worry about you
                   Separation of powers is put together
                   Not separate
                       o Ex: passing laws  approve laws
                       o Assembly-line logic
                       o Ex: Start conventional war  start
                         Defensive hostilities
                       o I’ll take the back side of an activity
                         and you take the front side
o Executive power
     Steering legislation? (president)
           Washington = stay out of their business
              Jefferson = be actively involved in steering
        Veto power
             Confusion about when presidents are supposed to
               use the veto power
                   Early on, the idea is thought to be
                      extremely limited. Only in an egregious
                          o Cf: to what a ruling of
                        unconstitutional is today?
          Andrew Jackson will be much more aggressive
            with this. He begins the practice of vetoing “at
o Who should lead?
     Madisionians – James Madison
          Author of the Virginia plan
          Parliamentarian in philosophy
                        Thought, in practice, the congress would manage
                        the executive branch
                 Hamiltonians –Alexander Hamilton
                       Liked the oligarchic institutions mixed in with the
                        democratic ones
                       Were no less important
                       President would be equal with the congress in
                       The courts must be obeyed
            o Washington involved in making an Indian treaty and has to
                get congress advice and consent
                     Listens to all of them and decides to use his cabinet and
                       just tells them to sign it
Cultural-Political Orientations about the New creature
       Constitutional-system logic
            o Pro-courts
            o Pro-executives
            o Pro-senates
            o Like oligarchic elitist
             o Pro-federal government
                   People called Federalist
                         John marshal is a federalist
         Parliamentary Logic
             o Anti-federalist
             o Anti-constitution
             o More democratic
             o Confederacy logic
             o Ant-federalist/Republicans
            o These guys lost in history
            o Pro-state rights

Chisholm v. Georgia
      Facts:
           o What are the facts of the Case?
                  1791
                  President: George Washington
               What kind of Case is it?
                   Contract dispute
                         Georgia purchased supplies during the
                         Apparently Never paid them
                         Chisholm sued for debt of nearly $70,000
                         He was the executer of state who refused
                   Jurisdictional issue
                         Who has jurisdiction
                              o Supreme court
                              o Original jurisdiction
   Issue who want to state the case for Chisholm?
       o Contract gave supplies to Georgia in return for money
       o Right to property –inalienable right
   Who will represent Georgia?
       o Georgia is a sovereign state
       o If doesn’t consent doesn’t have to comply
       o English Common law
   Issue
      o Georgia argued that the federal court could not tell them to
        pay the debt
      o Only the courts of Georgia could do that
      o Argument: Georgia is a sovereign state
      o Confederacy logic
      o Who is sovereign in American government?
            Riddle
            Everyone has their hand in the cookie jar
            Judiciary, president, legislature, people
              No one is sovereign 100% of the time
   Supremacy Clause
      o Represent what constitutional system is all about
      o Legalistic Decision
   Decision
      o The court basically holds:
              Basic idea: “for the purposes of the lawsuit, Georgia
               was not sovereign:
   All hell breaks loose
        o Constitution is amend – 11th amendment
                See quote
                State legislature ask congress to overturn the decision
                     Ratified amendment in 1798
                Court was shaken avoided any other controversial
                 decisions for the next 10 years
        o 11 amendment
                stupid amendment
                politics of law
                today it is gone around
10/6/2010 11:00:00 AM
10/6/2010 11:00:00 AM

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