Orlando Patterson, Slavery and Social Death: A Comparative Study

1. Orlando Patterson, Slavery and Social Death: A Comparative Study • Slavery a substitute for death: war or capital offense • Not a pardon: conditional commutation (death could still occur) • “Socially dead person”: “Alienated from all ‘rights’ or claims of birth, he ceased to belong in his own right to any legitimate social order.…secular excommunication...natal alienation.”

2. Role of the Judiciary

3. Independence • Federalist 81 [AH]: “From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges.” •  necessary check on Congress (+ later States)

4. Court Stripping • Remember from October? (abortion, guns, Gitmo appeals, telecom immunity) • Exceptions clause: Art 3.2-- "In all 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." • Ex parte McCardle (1868) • Constitutional context: Congress can bar particular paths, not whole classes of cases • But the Court can: Roberts court + “standing”

5. Yes US Britain: House of Lords Supreme Court (2005 Constitutional Reform Act opens 2009) EU: Court of Justice Mexico: 1994 reforms (Ernesto Zedillo): ironically PRI “insurance policy” against loss of power (feared politically-motivated retribution through courts) electoral demise; but: corruption (drugs) No China: 1949 to 1956: Organic Law of the People's Courts of the People's Republic of China (Party control); 1956 to 1966: “Rectification Movement”; 1966 to 1976: Cultural Revolution; 1999: 5-year reform plan limited independence (Party power, lack judges/training, corruption); increasing law suits (4.4 million civil cases in 2004), free speech, accountability of Party Russia: corruption, Putin’s nominating power Iran: independent of gov’t, controlled by mullahs Nigeria: corruption, poor training, diff. laws + courts (Shari’a) Independent?

6. Activism / “Legislating from the bench” • Federalist 81: “The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. …’”

7. Fed 81: “It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.”

8. Fed 78 [AH]: “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.” • Jackson + Indians, Lincoln + habeas, Orval Faubus + Brown

9. Q: What was the intent of the Bill of Rights? That is, does the Bill of Rights grant any rights?

10. 14th Amendment and Incorporation • The States have a history of violating minority rights, so we can’t let the States be in charge of the people’s rights, but the Supreme Court also has a history of violating minority rights [Scott v. Sandford, Plessy v. Ferguson, Korematsu, New London v. Kelo (2005, eminent domain)] so we can’t let them be in charge, and don’t get me started on Congress and the President. • Incorporation destroys federalism: Bill of Rights intended to limit intrusion of Federal Gov’t into powers of States; now Feds dominant w/S.C. all-powerful • Selective (not automatic) vs. Total (all amendments/clauses + Federal laws)

11. Printz v. US (1997) • Question • Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs [chief law enforcement officers] to regulate handgun purchases by performing those duties called for by the Brady Bill's handgun applicant background-checks [temporarily until a Federal database was constructed]? • Conclusion • No. The Court constructed its opinion on the old principle that state legislatures are not subject to federal direction. The Court explained that while Congress may require the federal government to regulate commerce directly, in this case by performing background-checks on applicants for handgun ownership, the Necessary and Proper Clause does not empower it to compel state CLEOs to fulfill its federal tasks for it - even temporarily. The Court added that the Brady Bill could not require CLEOs to perform the related tasks of disposing of handgun-application forms or notifying certain applicants of the reasons for their refusal in writing, since the Brady Bill reserved such duties only for those CLEO's who voluntarily accepted them.

12. Commandeering • Printz protected conservative States (although most willingly complied) under liberal gov’t; could now protect liberal States from conservative gov’t • Gonzales v. Oregon (2006; assisted suicide) • But… • Gonzales v. Raich (2005; medical marijuana + Commerce Clause; vs. Schechter v. US (1935); liberal (+Scalia) justices voted in favor, conservatives against)