Check Mike Check Sound Circulate Attendance

1. Check Mike Check Sound Circulate Attendance Time

2. Today’s Lecture: Constitutionalism & Jurisprudence 1. American Constitutionalism 2. Jurisprudence & Cognition

3. Lecture Organization: • Class Announcements • Review • American Constitutionalism • Introduction to Philosophical Concepts • Introduction to Philosophy of Law and Cognition Time

4. Class Announcements Online Lectures -- are up and ready to be viewed -- not many people viewed them (strange?) Course Alerts • -- make sure you are subscribed • (click “utilities”) Surveys, judging exercises -- we will be doing this stuff soon -- probably going to work them in to quality points

5. Class Announcements Multiple-Choice-Questions Policy Change • -- 1 point for true/false • -- 2 points for multiple choice • -- +1 for reading • (2 for true/false; 3 for multiple choice) • -- double points if selected for the quiz/exam • -- two questions per lecture (from lecture or reading) • (No “bunching”)

6. Class Announcements Quality Points – performance level -- By next Monday (maybe sooner), I’ll have a fix on what point value should be an A for quality points First Quiz -- Posted tonight. 7th day = next Tuesday --- tip: printing out slides First Response Paper -- Topic will be announced this week

7. Class Announcements Briefs next time -- Read John Marshall, Marbury v. Madison -- Focus on part III of the opinion Please keep up with me -- The pace is slow, but this material should build upon itself -- I am presenting a story here -- a story of philosophy of law

8. Class Announcements Questioning Policy • -- Word of advise about asking questions during a lecture • -- There is a difference between questions and commentary • -- If you have commentary, hold them off until the topic finishes • (when a new head drops … “boom”) • While we are in the middle of something, don’t derail it (have the patience to wait). Questions? Time

9. Review Bonham’s case • Right reason and the common law could trump a statute Basis of legality • -- discussed the various things that people have said could trump a statute throughout history

10. God? The Statute

11. Church (Pope)? God? The Statute

12. Church (Pope)? God? Congregation? The Statute

13. Sacred Tradition? The Statute

14. Correct Reasoning? The Statute

15. Science? The Statute

16. The People? The Statute

17. Dollars? Utility Personal Satisfaction The Statute

18. The Social Contract? The Statute

19. Review Some terminology Positivism -- only the formally enacted rules. (including court precedents) -- only what the legal text says. -- e.g., your syllabus

20. Review Some terminology “Natural Law” -- “extra-textual authority” -- something that justifies BEYOND or OUTSIDE of the formally articulated rules -- e.g., your syllabus

21. American Constitutionalism -- American constitutionalism has an interesting answer to the riddle or search for the basis of legality -- Let’s examine some of the basic ideas: Separation of Church and State -- Get God out of the lawmaking business -- No more claims for religion being legally above the state -- No more natural law based upon theology

22. American Constitutionalism The Rationalization of Statutory Power Popular Sovereignty -- Tie the statutory power to a ritual involving popular sovereignty -- If leaders survive the democratic ritual, they can command the statutory power (Note the improvement upon prior rationalizations for the statutory power – might makes right & divine right)

23. American Constitutionalism The Rationalization of Statutory Power Separation of Powers/Checks and Balances -- Make it harder for the powerful to govern -- Make them compete with each other -- If done properly, this was thought to ensure government for the common good Examples: -- What the British thought was “constitutional” -- Why Madison thought a Bill of Rights was unnecessary

24. Historical Rationalizations For Statutory Power Epoch-3 Epoch-1 Epoch-2 Might Makes Right Divine Right Machine Makes Right Superstition Fear Engineering

25. American Constitutionalism Codify Fundamental Law -- Write down all those fundamental things that are the highest form of law -- Write down the sacred traditions. Write down the principles of “right reason.” Write down the natural truths. -- Write down the mechanical processes –- the recurring elections, checks and balances, etc -- Send the written instrument into a democratic ritual, and if it passes, THAT becomes the social contract.

26. American Constitutionalism Codify Fundamental Law • -- Note 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 directly passes judgment on the creation, not sending delegates to make judgments for them • the people who do the drafting are not in the same assembly as the people who draft statutes

27. American Constitutionalism Codify Fundamental Law • -- Note several things about this: • Social contract isn’t a theory, a public understanding or something kept by Parliament – it is a legal, objectified thing. Compare: England England doesn’t have a written constitution It’s “constitution” is merely its most important statutes Analogy to America: The Civil Rights Act might be considered a constitutional provision

28. American Constitutionalism Codify Fundamental Law • -- Note several things about this: • Social contract isn’t a theory, a public understanding or something kept by Parliament – it is a legal, objectified thing. • Positivism is stealing natural law’s thunder Taking certain previous examples of “natural law” and promoting them into a positivistic universe. The sacred fundamentals are now RULES that have the same appearance as the other ones. • The American Constitution is sort of a “Super Statute”

29. American Constitutionalism Notice What this does to Bonham’s Case -- If there are no fundamentals beyond what is formally articulated, then …. • American Legal Hierarchy – • Constitutional rules • Statutory rules • (Administrative regulations)* • Common Law common law is no longer “special” • Remember this? • Crimes • Procedure • Divorce • Torts (injuries) • Property • Contracts The Political Assembly can overturn it -- In the American system, Congress is allowed to overturn common law decisions -- Bonham could only argue that the law is unconstitutional. -- the common law is the lowest form of law in the system (legislatures overturn common law rules all of the time)

30. American Constitutionalism Loophole! -- Notice that there is a major loophole in American constitutionalism -- Although judges can only declare statutes void if they are against the constitution, the constitution, itself, says: • The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.. • -- 9th Amendment -- If only a “super statute” can strike down a statute, but the super statute says that what is “super” might be unstated, there is an interesting riddle here. Positivism franchising its competitor? Mention also how positivism is still “king” Mention Judicial restraint

31. American Constitutionalism Judging is Special? -- The question arises: what is judging in American constitutionalism? -- Consider this: Judges have their own branch of government . -- We know what the other branches “do.” Legislators legislate. Executives administer. But what do judges do (what is judging?) -- Is it materially different from legislating? The answer of the framers is “yes.” Hamilton #78 The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

32. American Constitutionalism Judging is Special? • 1. Hamilton Federalist #78: Don’t fear them: • (1) They possess neither the purse nor sword; • (2) They reach their decisions neither by force nor will, but by judgment.

33. Hamilton #78 Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. American Constitutionalism Judging is Special? • 1. Hamilton Federalist #78: Don’t fear them: • (1) They possess neither the purse nor sword; • (2) They reach their decisions neither by force nor will, but by judgment.

34. American Constitutionalism Judging is Special? • 2. Federalist # 47: Madison (quoting Montesquieu) • “were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.” • (other passages in the Federalist Papers I assigned on ANGEL)

35. American Constitutionalism Are judges above “politics?” -- American experiment contributes something rather interesting to the idea that legal decisions should be considered differently from ordinary politics -- examine …

36. Remember This? Politics “Law” The statutory power The justificatory power Recurring Elections Lobbying Structured Conflict Epistemology? A calculus of some sort? Constitution Common Law War Taxes Police State Order

37. SOCIAL CONTRACT King’s Old Power Political Marketplace Popular sovereignty Elder’s Old Power? Epistemology? Technical craft? Fundamentals Codified in the Contract; Preserved by the elders? Time

38. Introduction to Philosophical Concepts 1. Philosophy’s Mission 2. Epistemology and Jurisprudence 3. Justification 4. Paradigm 5. A priori (a) foundational (starting point) (b) certainty (something undisputable) 6. Founding Fathers: Socratic epistemology (a) Truth is external to the believer (go find it) (b) Greeks Time

39. Introduction to Philosophy of Law & Cognition -- consider all of the things that people might say are the “grounds” of legality (proper legality) …

40. 1. Personified Sovereign (boss, personality) 2. group of powerful clan(s) 3. The church 4. The congregation 5. Nature, 6. Reason, 7. Sacred custom, tradition 8. Social contract 9. The people 10. utility 11. morality

41. 1. Personified Sovereign (boss, personality) 2. group of powerful clan(s) 3. The church 4. The congregation 5. Nature, 6. Reason, 7. Sacred custom, tradition 8. Social contract 9. The people 10. utility 11. morality Power (fear) … command

42. 1. Personified Sovereign (boss, personality) 2. group of powerful clan(s) 3. The church 4. The congregation 5. Nature, 6. Reason, 7. Sacred custom, tradition 8. Social contract 9. The people 10. utility 11. morality God Religious a priori

43. 1. Personified Sovereign (boss, personality) 2. group of powerful clan(s) 3. The church 4. The congregation 5. Nature, 6. Reason, 7. Sacred custom, tradition 8. Social contract 9. The people 10. utility 11. morality “Classical” a priori Professional Orthodoxy

44. 1. Personified Sovereign (boss, personality) 2. group of powerful clan(s) 3. The church 4. The congregation 5. Nature, 6. Reason, 7. Sacred custom, tradition 8. Social contract 9. The people 10. utility 11. morality … silent birth of positivism.

45. 1. Personified Sovereign (boss, personality) 2. group of powerful clan(s) 3. The church 4. The congregation 5. Nature, 6. Reason, 7. Sacred custom, tradition 8. Social contract 9. The people 10. utility 11. morality Populism

46. 1. Personified Sovereign (boss, personality) 2. group of powerful clan(s) 3. The church 4. The congregation 5. Nature, 6. Reason, 7. Sacred custom, tradition 8. Social contract 9. The people 10. utility 11. morality Calculating social welfare? Law as efficient happiness? Judging = Alan Greenspan?

47. 1. Personified Sovereign (boss, personality) 2. group of powerful clan(s) 3. The church 4. The congregation 5. Nature, 6. Reason, 7. Sacred custom, tradition 8. Social contract 9. The people 10. utility 11. morality Does this approach cheat? Common sense? Unarticulated a priori?

48. 1. Personified Sovereign (boss, personality) 2. group of powerful clan(s) 3. The church 4. The congregation 5. Nature, 6. Reason, 7. Sacred custom, tradition 8. Social contract 9. The people 10. utility 11. morality Science? “Logic,” Contemplation Anthropology Policy Engineering

49. 1. Personified Sovereign (boss, personality) 2. group of powerful clan(s) 3. The church 4. The congregation 5. Nature, 6. Reason, 7. Sacred custom, tradition 8. Social contract 9. The people 10. utility 11. morality Science? Use your head! Problem Solving Cognition Thinking Inference Conclusions “Logic,” Contemplation Anthropology Policy Engineering

50. 1. Personified Sovereign (boss, personality) 2. group of powerful clan(s) 3. The church 4. The congregation 5. Nature, 6. Reason, 7. Sacred custom, tradition 8. Social contract 9. The people 10. utility 11. morality No thinking? No “judging?” No choice? Deferring? Serving? Doing someone else’s will?