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1. Check Mike Check Sound Circulate Attendance Time

2. Today’s Lecture: • The Court Confronts the Politics of the New Republic • Confusion With New Institutions • Chisholm • Hunter’s Lessee • McCullough v. Maryland

3. Lecture Organization: • Class Announcements • Cultural Confusion Surrounding the Accident of American Constitutionalism • Chisholm v. Georgia (1798) • Martin v. Hunter’s Lessee (1819) • McCullough v. Maryland (1819) Time • Judicial Power, Wisdom, Tyranny & Politics

4. Class Announcements Quiz -- Extremely large -- 55 questions, 95 minutes -- Most are your own (check freebies) -- shorter next time (explain why) Next Class -- If we get to McCullough today, there will be no class on Thursday (let’s wait and see

5. Class Announcements Exam -- Exam is on the 26th -- Covers up through today (and Thursday if not cancelled) Next Cases -- Gibbons v. Ogden -- Cooley v. Bd. Of Wardens -- I’ll accept 2 briefs for that day

6. Time Class Announcements Quality Points -- won’t have individual totals until after spring break (explain) Questions?

7. Cultural Confusion Surrounding the Accident of American Constitutionalism introduction • -- Last class, we looked at Marbury and the arguments for/against judicial review • -- Today, we are going to add to that discussion by looking at some other cases Basic premise • -- One of the points I want to make today is very simple: • -- Today, we are going to add to that discussion by looking at some other cases

8. Cultural Confusion Surrounding the Accident of American Constitutionalism introduction Basic premise • -- One of the points I want to make today is very simple: • -- There was no such thing as a “constitutional system” until the framers invented it. • -- We must remember that the invention was largely an accident (the product of political compromise). • -- One of the things that inevitably results from this is that the culture is going to be somewhat confused about the new institutions and how they work.

9. We talked about this before Parliamentary System Center of all legitimacy Legislature PRESIDENT JUDICIARY Cabinet Bureaus (C) Copyright Sean Wilson. 2007.

10. Two Basic Sentiments in 1787 American Culture Constitutional- system logic Parliamentary Logic More Oligarchic More Democratic Federalist Confederacy Logic Anti-federalist/ Republicans

11. Cultural Confusion Surrounding the Accident of American Constitutionalism Examples of the Confusion • Washington’s views about separation of powers (Adams can’t be involved in cabinet meetings) • Madison versus Hamilton: what role does the executive play in legislative affairs? • (Washington = stay out of their business) • (Jefferson = be actively involved in steering legislation) • Madison and others: some thought the Congress would co-manage the executive • confusion about when presidents are supposed to use the veto power (Andrew Jackson will be much more aggressive)

12. Cultural Confusion Surrounding the Accident of American Constitutionalism Eakin v. Raub Gibson’s Dissent -- Not a full case, only a dissent by Judge Gibson -- Gibson served on the PA supreme court 37 years Question: What does judge Gibson’s dissenting opinion argue?

13. Cultural Confusion Surrounding the Accident of American Constitutionalism Eakin v. Raub Parliamentary Logic Gibson’s Dissent -- If a statute passes the procedural requirements of the Constitution (elections, terms, etc.), that anything the Congress does should be considered “constitutional” -- legislature is the “master of its domain,” which is legislating (even cites Blackstone, an English theorist, for the proposition that legislative power and sovereignty are one)

14. Cultural Confusion Surrounding the Accident of American Constitutionalism Eakin v. Raub Parliamentary Logic Gibson’s Dissent -- If a statute passes the procedural requirements of the Constitution (elections, terms, etc.), that anything the Congress does should be considered “constitutional” -- legislature is the “master of its domain,” which is legislating (even cites Blackstone, an English theorist, for the proposition that legislative power and sovereignty are one) • Two replies: • Constitution did not create a parliamentary system. • Gordon Wood • (the English had equated sovereignty with the statutory power; America’s distinct contribution was to make sovereignty and legislation no longer synonymous)

15. Time Cultural Confusion Surrounding the Accident of American Constitutionalism Eakin v. Raub Gibson’s Dissent -- Judge Gibson himself would later abandon this position

16. Chisholm v. Georgia (1798) Facts: Contract Dispute • -- Georgia purchased supplies during the revolution • -- Apparently Never paid for them • -- Chisholm sued for a debt of nearly $70,000 • -- he was the executor of the estate that was owed the money

17. Chisholm v. Georgia (1798) Facts: Jurisdictional Issue • -- The State is a party to the action • -- “Chisholm v. Georgia” Question: Who has jurisdiction over this, and what kind of jurisdiction is it?

18. The Constitution -- “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” “The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make” The Constitution -- “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. …” “The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. ...” “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make”

19. Chisholm v. Georgia (1798) Issue • -- Georgia argued that the federal court could not tell them to pay the debt • -- Only the courts of Georgia could do that • -- Argument: Georgia is a sovereign state Confederacy Logic

20. Chisholm v. Georgia (1798) decision • -- The Court basically holds: • read the stupid document. Of course we can hear the case and of course what we say counts. • basic idea: “for purposes of the lawsuit, Georgia was not sovereign” • -- one justice dissented

21. Chisholm v. Georgia (1798) All hell breaks loose • -- The Constitution is amended (11th Amendment)

22. Time Chisholm v. Georgia (1798) All hell breaks loose The Court is Dunked -- The political ramifications of the decision were amazing: state legislatures besieged Congress with requests to overturn the decision. The Georgia House of Representatives considered a law which said that any federal official who attempted to enforce the decision would be guilty of a felony, punishable by death by hanging. The bill did not pass. In response to this intense pressure, congress passed the 11th amendment, which was ratified in 1798. This amendment was the first to overturn a sup ct decision. It provides that the judicial power of the united states shall not extend to citizens of one state against another state of the union. The Court was shaken by this and avoided any other controversial decisions for the next 10 years • -- The Constitution is amended (11th Amendment)

23. Martin v. Hunter’s Lessee (1816) Facts: The parties … • -- Lord Fairfax owned 300,000 acres; dies • -- His heir: Denny Martin Fairfax (British citizen) • -- He dies; next heir is Philip Martin. Question: What are the facts of this case? Denny Fairfax Phillip Martin

24. Martin v. Hunter’s Lessee (1816) Facts: The statute … • -- Virginia prohibits inheritance by an enemy alien • -- This purports to make Denny’s inheritance illegal, and thus Phillip’s claim, too Denny Fairfax Phillip Martin

25. Martin v. Hunter’s Lessee (1816) Facts: The Hunters • -- Virginia sells a portion of the land to David Hunter • -- Hunter rents to a tenant • -- Phillip Martin sues Hunter’s tenant Hunter Lessee Phillip Martin

26. Martin v. Hunter’s Lessee (1816) issue Jay’s Treaty … • -- Jay’s Treaty protected the land claims of loyalists (specifically negotiated) • -- Under the constitution a properly ratified treaty is considered “federal law,” and is therefore the supreme law of the land Question: What is the legal issue in the case?

27. The Constitution -- “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Constitution -- “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

28. Martin v. Hunter’s Lessee (1816) issue Virginia’s first position … • -- We interpret Jay’s Treaty differently. It doesn’t protect loyalist lands (untrue) • -- The Supreme Court says “yes it does,” and remands the case back to Virginia, directing it to comply with the Treaty

29. Martin v. Hunter’s Lessee (1816) issue Virginia’s second position … • -- Virginia decides that section 25 of the Judiciary act of 1789 is unconstitutional • -- It is claiming that the U.S. Supreme Court has no right to review a case that originates in state courts

30. Martin v. Hunter’s Lessee (1816) The decision • -- The Court rules that it does, in fact, have authority to interpret questions of federal law that arise in the state court system • -- The Court has the final say over what federal law means. A state’s conclusion in this regard cannot be above the Court’s conclusion • Note: Justice Story wrote the opinion (Marshall recused himself because he had entered into a contract to buy a portion of the lands from Phillip Martin) Question: Was the decision correct? Question: Was it a product of justice’s ideology? Question: How does the Court decide the case?

31. Time The Constitution -- “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. …” “The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. ...” “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make” The Constitution -- “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” “The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make”

32. McCullough v. Maryland (1819) Facts: The National Bank … • -- Remember the Hamilton Financial Plan? • Government running a private bank • Bank of New York • Financing it with $10 million in taxpayer revenues • Tax increases to pay the war debt above par • -- sin taxes (rum) • -- tariffs Question: What are the facts of this case?

33. McCullough v. Maryland (1819) Facts: The Politics of this … • -- Subjugation of land as a system of power to finance as a system of power (explain why). • -- banking subjugated farming and threatened planter hegemony • -- the bank is a political symbol. It has a long history of political disagreement (mention Jackson).

34. McCullough v. Maryland (1819) Legal issue: Enumerated Powers • -- Federal government can only do what is specifically enumerated in the Constitution; the States have whatever is left over Question: What is the legal problem with the federal government chartering a bank

35. Question: What enumerated power is the government trying to use here? Answer: Several “The Laundry List” • Punish Securities fraud/forged currency • • Regulate commerce with nations & among states** • • Suppress insurrection w/federal forces • • Exclusive governance of the capital and forts** • • Can’t prohibit the slave trade until 1808. • • Can’t suspend habeas corpus unless insurrection • • No bill of attainder/ex post facto laws • • Enforce the 14th A. (Due Process, Equal Protection) • • Enforce the 13th A. (No slavery) • Punish Securities fraud/forged currency • • Regulate commerce with nations & among states** • • Suppress insurrection w/federal forces • • Exclusive governance of the capital and forts** • • Can’t prohibit the slave trade until 1808. • • Can’t suspend habeas corpus unless insurrection • • No bill of attainder/ex post facto laws • • Enforce the 14th A. (Due Process, Equal Protection) • • Enforce the 13th A. (No slavery) • • Tax & Spend for the general welfare. • • Borrow Money (deficits) • • Bankruptcy and Immigration • • Coin Money • • Weights and Measures • • Post Offices and Roads • • Patents • • Inferior courts • • Punish certain crimes** • • Declare War • • Raise & regulate the military • the proper way to tax • • No titles of nobility • • Tax & Spend for the general welfare. • • Borrow Money (deficits) • • Bankruptcy and Immigration • • Coin Money • • Weights and Measures • • Post Offices and Roads • • Patents • • Inferior courts • • Punish certain crimes** • • Declare War • • Raise & regulate the military • the proper way to tax • • No titles of nobility Question: So what’s the problem, then – why can’t the government charter a bank?

36. McCullough v. Maryland (1819) Legal issue Necessary & Proper Clause • -- Just because you want to do something that supports or carries forth an enumerated power, doesn’t mean that you can do it • -- The thing you want to do has to be “necessary & proper” for carrying forth the enumerated power in question • -- Basic idea: SOME things which carry forth an enumerated power simply cannot be done if they are not “necessary and proper.”

37. McCullough v. Maryland (1819) Legal issue Necessary & Proper Clause • regulate commerce? • regulate the value of money? • to borrow money, pay debts, & spend tax money? • to fund an Army? Do it without a bank! Do it without a bank! Do it without a bank! Do it without a bank!

38. McCullough v. Maryland (1819) The Actual Opinion: • -- try to use a kind of logic to establish his point • .. Let’s take a look Question: How is it that Marshall actually approaches the problem? How does he find his answer?

39. Hercules and the Syllogism 1. The Argument from Constitution A constitution is not a code [very specific in every detail]; it only has the broad outline of powers

40. Hercules and the Syllogism 1. The Argument from Constitution 2. The Implied Powers Argument Articles of Confederation had a clause excluding “incidental or implied” powers; this constitution doesn’t have that “contextual omission”

41. Hercules and the Syllogism 1. The Argument from Constitution 2. The Implied Powers Argument 3. Words are not a picture “Such is the character of human language that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense.”

42. Hercules and the Syllogism 1. The Argument from Constitution 2. The Implied Powers Argument 3. Words are not a picture • 4. Adopts a Rule of Reading! • -- “excessives” should be marginalized “It is essential to just construction that many words which import something excessive, should be understood in a more mitigated sense – in that sense which common usage justifies. The word “necessary” is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary.”

43. Hercules and the Syllogism 1. The Argument from Constitution 2. The Implied Powers Argument 3. Words are not a picture • 4. Adopts a Rule of Reading! • -- “excessives” should be marginalized • -- evidence supporting the rule 1st Article, 10th section: “… imposts, or duties on imports, except what may be absolutely necessary for executing its inspection laws.”

44. Hercules and the Syllogism 1. The Argument from Constitution 2. The Implied Powers Argument 3. Words are not a picture • 4. Adopts a Rule of Reading! • -- “excessives” should be marginalized • -- evidence supporting the rule • -- Why add the word proper if this wasn’t so? -- The Opposite construction doesn’t make sense (e.g., Post Office)

45. Hercules and the Syllogism 5. Then he finds the killer evidence -- look where they put it! -- It is in a power-conferring section of the document, not a power limiting section! Question: For Gryffindore points (and for someone who is not in my supreme court class), someone tell me what the killer evidence is?

46. Article II – Powers of Congress Section 8 • power to Regulate Commerce • power to Spend for General Welfare • power to Punish Piracy on the High Seas • power to Regulate the Armed Forces • Coin and Borrow Money • Etc., etc, • Etc., etc, • Necessary and Proper Clause

47. Article II – Powers of Congress Section 9 • Suspend Habeas Corpus • Taxes must be Apportioned Lists things Congress cannot do: • No Titles of Nobility • Etc., etc, • Etc., etc, Argument from Compositional Structure (The organization has a clear purpose) (C) Copyright Sean Wilson. 2007.

48. McCullough v. Maryland (1819) The Rule of Law Expanding Federal Power REASONABLE J.M. To make all Laws which shall be necessary and proper for carrying into Execution the forgoing Powers, and all other Powers vested by this Constitution … “Necessary & Proper” is a term of art; it is a colloquialism; it is “legalese” Question: For Gryffindore points (and again for someone who is not in my supreme court class), What is the Rule of Law announced in the case?

49. McCullough v. Maryland (1819) Was The Opinion Correct? Question: If the decision is legally correct, does it even matter that it also supports a world view? Question: Can the decision be correct and be produced by ideology? Question: Was the decision produced by “politics?” Did Marshall vote his “ideology?”? Question: Was Marshall’s opinion correct. If not, what premise is incorrect?

50. Time McCullough v. Maryland (1819) Was The Opinion Correct? Politics? Justification? Justification? Politics? High Justification High Politics