Re: Hornbooks
I'd be interested in Professor Rosenberg's reasons for using a hornbook as a primary teaching tool. In my experience teaching conlaw, I've found that many of my students have difficulty with the style of writing in the older cases. Has anyone ever tried using only cases from the modern era (say, 1950-2003) using supplementary materials to fill in the blanks. I've been considering adopting this approach, and would welcome comments. Bobby LipkinWidener University School of LawDelaware
Madison's Proposal for Vetoing State Laws
What was the scope of Madison's proposed veto of state laws? Did it apply only to federal constitutional issues, that is, state lawsthat allegedly violated the U.S. Constitution? Or did the veto include state laws that raised no explicit federal constitutional issues but had an undesirable impact on other states (similar to the constitutional problems now raised by Art. IV's Privileges and Immunities Clause and the Dormant Comment Clause--if it is possible to distinguish this class of negative quasi-constitutional effects from straightforward constitutional issues)? Or was the veto even more intrusive permitting the federal government to veto state laws that raised no federal constitutional issues, no quasi-constitutional issues, but were undesirable--at least from the federal government's perspective--on policy grounds? Bobby LipkinWidener University School of LawDelaware
Re: Why Wasn't Lochner (Formally) Overruled?
Not to quibble. (Well yes maybe to quibble a little.) The question, as I understood it, was never whether caselaw exists which overulled Lochner. Clearly there is. Nor was the question whether there were cases containing language which stood for the overruling of Lochner.(However, if the sole reference in Darby is more than under the Fourteenth Amendment, this preserves, for me, a thin ray of light against the conclusion that this language clearly overrules Lochner, though I won't argue this now.) Nor am I insisting that overruling a case requires using its name, though that surely helps. As I understand the question, when a case, such as Lochner, represents a particular era of Suprme Court jurisprudence, why wouldn't its repudiation be discssed in greater detail than the language Jack cites in his post? I'm certainly not suggesting that a discussion of this sort is a requirment of overruling a case. Rather,I can think of some possibilities why the Court might intentionally shy away from naming Lochner in its repudiation of the principldss for which the case stood. But it is inconceivable, to me, that the language Jack cites was thought sufficient to overrule Lochner, and that no other explanation was operative. Unless, of course, Darby's language is not itself the overruling of Lochner but rather the recognition of the fait accompli of Lochner's earlier repudiation. (I stress to me because I'm perfectly willing to accept that others might think no other explanation is needed.) For those who share my bewilderment, what additional factors might explain the Court's lack of fanfare in overruling Lochner? Bobby Lipkin Widener Univesity School of Law Delaware
Council of Revision
Is there any significant literature describing the historical reasons for the failure of theCouncil of Revision considered for inclusion in the Constitution during the Founding generation? Additionally, was the Council conceived of as a constitutional court or rather as an institution for striking down legislation for whatever reasons the Council thought compelling? Finally, what were the arguments for and against including it in the Constitution? Bobby LipkinWidener University School of LawDelaware
Scalia, Textualism, and Printz
Why would a self-described textualist, like Scalia, examine the constitutionality of a law while admitting that no text is involved authorizing or prohibiting the law (Printz)?Is it because if a textualist insists that that when the Constitution is silent, Congress may act, one is then turning the federal government into a government with unenumerated and perhaps unlimited powers? Bobby Lipkin Widener University School of Law Delaware
Birds of a Feather?: Two Branches of Marshallian Interprtation
Chris Eisgruber writes: And Marshall's claim that the framers "must be understood to have employed words in their natural sense, and to have intended what they have said" is very close (if not identical) to some of Dworkin's key claims in '"Freedom's Law." Yet Marshall's claim (referred to above) is close to what Scalia says in A Matter of Interpetation. My reply to Chris Eisgruber's interesting and plausible post would take more time than I presently have. The short version is that both Marshall and Scalia reject the term "strict construction" if that is interpreted crudely to say that the meaning of the text lies in the text, the text, and nothing but the text. Scalia, if I recall correctly, ultimately uses the term "reasonable" to qualify interpretation not "strict," and then, again if I recall correctly, interprets "reasonable" in the way Chris suggests. My point is not that Marshall and Scalia's methodologies are one and the same. Rather, the point is that Marshall's "Founding paradigm" includes both Dworkin's and Scalia's. This Founding Paradigm of American constitutional interpretation rejects any vulgar textualism in favor of an appeal to the natural meaning of the words and the purposes "in connexion with the purposes for which they were conferred." This Founding paradigm has two branches--and this is where all the methodological controversy lies--between a broad interpretation of the Constitution and a narrow one, though neither Marshall, Scalia, nor Dworkin would put it in these terms. The reason none of these writers would put it in these terms is that all agree that both "broad" and "narrow" interpretations must be rejected. Each would insist that his position is neither broad nor narrow, but just right. The broad branch of the Founding paradigm is found in Marshall's opinion in Gibbons also. Chris is on the money that Dworkin can be seen as grabbing hold of this branch of the Founding paradigm. However, since both Marshall and Scalia reject the idea that interpretation should be narrow. Scalia can be seen as grabbing hold of this other branch of the paradigm. However, narrowly (some of us may think) Scalia interprets the idea of reasonable interpretation, he seems to deliberately reject the idea of strict construction. Indeed, there's language in A Matter of Interpretation strickingly similar to Marshall's language in Gibbons. (One could, of course, argue that "narrow" and "broad" are simply taboo terms that no self-respecting jurist or theorist can afford to use in characterizing his or her own methodology, and while we might say that their views are narrow or broad, they cannot.) If this is right, and if Chris is right (and I think he is), there exists both a Dworkinian branch of the Founding paradigm and a Scalian branch also. Much more needs to be said to accommodate the idea that there's both a Dworkinian branch and a Scalian branch of the Marshallian paradigm, but I think it can be established, though not in this venue. Incidentally, if the article Chris refers to in his post is the one he kindly shared with me, those interested in these theoretical or jurisprudential issues should be sure to read it. Bobby Lipkin Widener University School of Law Delaware
(no subject)
One of my conlaw students asks "Can you recommend an 'easy' book that reviews the history of the Framers and their party's goals, etc.?" By "their party's goals," I suspect the student means the Federalist party. Also, I imagine the student wants a contemporary or near contemporary primer on the Framers, not a sophisticated, scholarly examination of their ideas and ideology. Any suggestions? Off-List replies are fine. Thanks very much. Bobby Lipkin Widener University School of Law Delaware
En Banc Review
What are the requirements (or what triggers) en banc review in the Ninth Circuit? Are these requirements uniform across the circuits? As a former federal appellate clerk I should know the answer to this question. However, with some embarrassment, I confess that I do not and would welcome help from the List. Thanks. Bobby Lipkin Widener University School of Law Delaware
Re: Ninth circuit and the recall
In a message dated 9/15/2003 10:32:31 PM Eastern Standard Time, [EMAIL PROTECTED] writes: When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." Is John suggesting that a principled distinction exists between (1) a court ordering a statewide remedy for some defect in an election and (2) the ordinary, statutory system of voting in a state? I'm not sure I see the distinction and would welcome edification. Bobby Lipkin Widener University School of Law Delaware
Is there a Constitutional unchecked checker?
Are there any historical, philosophical, or political, theoretic articles that attempt serious analysis of the familiar idea of "checks and balances" as one defining principle in American constitutionalism. Regarding "checks," I have something in mind along these lines. Popular political culture cherishes the intra-governmental checks on political power. However, popular culture doesn't seem to recognize that everytime a governmental institution or actor serves as a final check on some political process, that institution or actor is an "unchecked" checker. Thus, one important theme in American democracy/republicanism is which institution best serves the interests and aspirations of self-rule (call it "liberty" if you wish) as the final checker of the processes of constitutional government. Among other items, I'm especially interested in when the term "checks and balances" came into prominence, and what did it mean at that time, and how has its meaning changed in contemporary politics. Thanks. Bobby Lipkin Widener University School of Law Delaware
Did the U.S. Lose the War of 1812?
I read recently that the U.S. lost the War of 1812 despite France's efforts to assist us in resisting England's belligerence. Are these contentions true? (They do not conform to my recollection of Junior High School history.) Since these questions are not entirely germane to the purposes of this List and since the answers may be known to everyone but me, I'd gladly receive replies off-list. Thanks. Bobby Lipkin Widener University School of Law Delaware
Re: Non-Governmental Emancipation of Slaves Say what?
Can one justifiably infer from this discussion that the distinction between governmental and non-governmental emancipation of slaves is not a distinction between the government passing laws (or proposing amendments) abolishing slavery as opposed to non-governmental suasion toward the same end? Rather, it is a distinction between the government deporting slaves, on the one hand, and private parties doing so on the other. Is this correct? Bobby Lipkin Widener University School of Law Delaware
Re: Non-Governmental Emancipation of Slaves Say what?
I find Paul's explanation, as well as Keith's (and I'm sure I'm leaving out others--for which I'm sorry) to be very helpful. However, one problem (for me) lingers. If John Marshall believed slavery should be abolished but not by governmental action, what did he mean by this and how did he think it would operate? Paul's four repossess to slavery all seem to require government action of one kind or another. Abolition, outright or gradual, allowing private manumission, or prohibiting all in-state manumissions, all require law. If so, Marshall could not, if he was committed to non-governmental emancipation, embrace any of these. Moreover, what non-governmental emancipation is even conceivable? More importantly, at least for my present purposes, did Marshall (or others) advocate some intelligible form of non-governmental action for freeing slaves, other than the good will of slave owners? Bobby Lipkin Widener University School of Law Delaware
Congressman Marshall Prevented Civil War?
In his John Marshall and the Constitution, Edward Corwin makes the astonishing (to me) remark: "He [Marshall] foiled a scheme which his party associates had devised, in view of the approaching presidential election, to transfer to a congressional committee the final authority in canvassing the electoral vote--a plan all too likely to precipitate civil war." (Emphasis added) I think I understood why such a plan would be controversial, and I have a decent grasp of the political culture during this period that resulted in the "revolution of 1800." But what were the particular historical circumstances that would render a House vote a trigger of a civil war? If the answer to this question is obvious, I'd be happy to be instructed off-list. Thanks. Bobby Lipkin Widener University School of Law Delaware
Re: Marshall Upholding Federal Statutes
Perhaps I misread Bill's original post. I thought the issue was whether the same court (in my example, this would be the Supreme Court only) could, in any given case, make two different constitutional decisions: (1) nullify the law or (2) refuse to give the law effect. My interest in this issue centers on the Supreme Court's power of judicial review/supremacy only. I was not addressing other important issues regarding the interrelationships between lower courts--state and federal--state decisis, and so forth. For me the test case is the Supreme Court, and more specifically, Marbury. In holding the relevant provision of the Judiciary Act of 1789 to be unconstitutional, was Marshall nullifying the provision or was he merely refusing to give it effect? My interest is conceptual and epistemic: (a) Conceptually, what does it mean to say that he did one rather than the other? and (b) Epistemically, how do we know when the Court does one rather than the other? In my post last evening I posed the question this way: If you believe that Chief Justice Marshall did not nullify the provision, but only failed to give it effect, what advice would you have given him if his intention had been to nullify? (And how much does this issue depend upon how Marshall would describe his own decision?) Was it possible for him to nullify the law had he chosen to do so? Or is nullification a very strict term of art that can only occur when the legal system has these and those features? If so, what features do you have in mind? In order for the distinction to be significant when pertaining to the Supreme Court's declaration that a particular law is unconstitutional, we must explain just what counts as nullification. We must also explain what the Court must do simply to refuse to give the law effect but not nullify. And what is the difference between these two kinds of judicial actions? Bobby Lipkin Widener University School of Law Delaware
Apologies
My apologies for sending a request intended for Mark Graber to the List. Sorry. Bobby Lipkin Widener University School of Law Delaware
Re: Scalia's Originalism
As a non-historian and a non-political scientist, let me asks the following questions: (1) Does originalism presuppose the Framers held one determinate view regarding constitutional meaning? Does it permit the Framers' holding several different views? (2) How does one establish such either view? (3) How do historians (and political scientists) deal with the problem of ascertaining "collective intent," a problem that Dworkin and more recently George Fletcher, as well as many others have emphasized? (2) Do those supporting original intent or original understanding appreciate the enormous commitments to differing philosophies of mind involved in either theory? (4) How do we ascertain the intent---subjective or objective---of a particular Framer? (5) How do we ascertain the public meaning of a critical political or legal term even in contemporary society let alone in the past? and (6) To what are we referring when we make claims that the original intent or understanding of a constitutional provision is X? (7) What evidentiary techniques are required to substantiate such claims? Apologies if some of these questions overlap. Bobby Lipkin Widener University School of Law Delaware
Re: Inquiry
Dear Bob: My choice would be this: A proposed amendment to the Constitution is ratified after a majority of the electorate in two consecutive presidential elections vote for it. Best, Bobby Bobby Lipkin Widener University School of Law Delaware
Re: CDemocracy and Republicanism Historically and Normatively
Thanks to the members of the list who have generously responded to my requests. As you will see, I am genuinely confused about the historical and normative analysis of 'democracy' and 'republicanism.' One problem I'm facing in trying to understand the Founding generation's conception of democracy is this. Today, it seems that democracy covers a wide spectrum of related ideas from virtually unconstrained majoritarianism to more complex conceptions invoking such political and moral concepts as equality, self-determination, deliberation, representation, and so forth, And these additional features of democracy provide an explanation of 'democracy' and accordingly can be redescribed as canonical elements in the conception of 'democracy' itself. If today no one would embrace the Founding conception of 'democracy' because it is an impoverished conception of self-rule, then it isn't terribly interesting if the Founding generation rejected that conception of democracy. If our present conception of 'democracy' is richer and more complex than the Founders,' the historical question seem to be whether the Founders would have rejected our conception of 'democracy.' If not, why should we care about an impoverished sense of democracy that the Founders rejected? I suppose the link between democracy and republicanism is self-rule, and the spectrum of conceptions of self-rule begins with direct (virtually) unconstrained majoritarianism and leads to a conception of (republican) self-rule containing several important constraints on majoritarianism. But then the contrast between republicanism and democracy is stark only when democracy is interpreted as direct, unconstrained majoritarianism. If few theorists today embrace this sense of democracy, the contrast between democracy and republicanism ceases to be very interesting. Both democracy and republicanism may include such constraints or filters as representationalism, deliberation, a concern about the common good, and so forth. Given the elasticity in the term 'democracy,' it is absolutely necessary as both a historical matter and a normative matter to define the term as precisely as possible when answering whether the Framers conceptually rejected the concept of 'democracy' as well as whether democracy is superior to 'republicanism.' Bobby Lipkin Widener University School of Law Delaware
Re: democracy defined
I don't think anything I said or implied suggests separating democracy from majority rule. My point was that there are simple and complex conceptions of 'democracy.' While both include majority rule, only the latter appeals to moral and political concepts--equality, self-determination, deliberation -- which explain the desirability of majority rule. These underlying explanatory conditions of majority rule then in turn place constraints on the precise kind of majority rule the polity might seek. With regard to "self-rule," for me it connects both individual freedom and collective freedom. When I decide freely I am engaging in self-rule and when the people decide freely, we are engaging in self-rule. The notion of "self-rule" functions as a general or foundational term for referring to a subject, whether an individual person or a collectivity of people, engaged in governing itself. From my perspective, the fact that self-rule links the individual and the many in this manner renders it an attractive term which contributes to systematizing different, but interrelated, aspects of freedom. Bobby Lipkin Widener University School of Law Delaware
Re: self-rule
To say that "self-rule" potentially serves as a concept unifying individual self-rule and collective self-rule does not in any way imply that there are no differences in how these concepts work. As a unifying concept "self-rule" suggests important similarities not identities. Different linguistic intuitions are surely at work here. "[T]he absence of internal domination" tells me very little. While not pellucid to be sure, "self-rule" indicates a subject (an individual person or group of people) who decide things for themselves. I agree that far from ending the investigation about democracy or republicanism, the use of self-rule only begins it. But it begins it, I submit, by using a paradigm of individual self-rule which is relatively clear and then proceeds to develop a similar conception of collective self-rule. This is a rather straightforward method of theory construction. That problems arise in developing this second related concept should be welcomed. Attempting to answer these problems elucidates the paradigm even further. I'm afraid I would not welcome the task of unpacking "the absence of internal domination." This locution raises a host of questions that are probably more usefully addressed later in the development of a political philosophy. But, as I said, linguistic intuitions differ. Bobby Lipkin Widener University School of Law Delaware
Re: self-rule
The question of explaining "the sense in which overridden minorities still enjoy" freedom is endemic to any theory of democracy/republicanism/liberty or even the "absence of internal domination." Whenever less than a unanimous vote is concerned, how can the losers be described as engaging in self-rule, as being free, or as living in the absence of internal domination? And, of course, consent theory generally addresses this question. John Locke raised this issue without ever mentioning "self-rule," I think. The problem of explaining the role of political minorities in either democracies or republics is fundamental, but it is hardly a problem only for those of us who embrace self-rule as the concept underlying democracy and republicanism. Incidentally, Habermas, Michelman, and Tushnet (Tushnet most recently in a symposium on democracy and judicial review in Law and Philosophy) among others have raised the question of minority status in democracies. Tim is right in emphasizing its critical importance to any theory of self-rule (whoops, there I go again). Bobby Lipkin Widener University School of Law Delaware
One further query
With the List's permission, let me add one additional, though minor, question: Does anyone know the reasons for referring to Jefferson's wing as the "democrat-republicans"? If the founding generation so disfavored democracy, why did the Jeffersonian wing use the term as a partial description of its political philosophy? (Or perhaps the term was used disparagingly by Jefferson's enemies?) Thanks. Bobby Lipkin Widener University School of Law Delaware
Re: Agenda and persecution of Mormons
The recent thread concerning the change in the LDS Church regarding polygamy--and let's be precise, it was polygamy not merely plural marriages-raises critically important questions about constitutional, moral, political, social, and personal change. (For example, change is central to the identity of traditions upon which constitutional law, in some sense, rests.) One might describe these questions more generally as questions about theoretical and practical change--changes in judgments (beliefs, convictions, positions, and so forth) as well as changes in conduct (action, intention, decision, and so forth). Some of the important questions in this domain are: (1) What counts as a change? (a) Must the change be self-conscious? (b) Must it be permanent or at least intended to be permanent? (c) If permanence, or the intent to be permanent, is required, how do we know when such a change is permanent? If so, how do we acquire this knowledge? (2) In institutional contexts, who speaks for the institution? Its leaders? The members? (a) What happens if leaders and members disagree? (b) Must there be a process which serves as both a necessary and sufficient condition for institutional change? (c) Is so, shouldn't we conclude that non-canonical changes suggest a change in the institution, not just its judgments or conduct? I do not think the above exhausts all possibilities; indeed, I'm pretty certain additional questions will easily come to mind. One final point about the LDS Church and polygamy: Many different conceptions of change are possible, but I would suggest that restrictive conceptions of change--for example conceptions requiring that the change (or the intent to change) be permanent --unduly distort the critically important phenomenon of change, and therefore, hamper our understanding how people and institutions operate. Bobby Lipkin Widener University School of Law Delaware
Re: Agenda and persecution of Mormons
In a message dated 7/16/2003 11:56:45 AM Eastern Daylight Time, [EMAIL PROTECTED] writes: The LDS Church might believe in both 1] polygamy and 2] subordination to legitimate civil authority as religious requirements. Then if these came into conflict, some resolution would have to be reached, and it might give precedence to subordination If Tom's characterization is correct, the distinction between retaining religious beliefs and accommodating American law vanishes as a contrast between religion and secularity. Instead, this conflict is a religious conflict which must be settled internally to the religion. If the LDS Church changes from (1) to (2), its view remains the same only in the sense that either view (in conjunction with the canonical method for ranking them) is religiously sanctioned. There is nonetheless a change in the prohibitions members of the Church are obligated to follow. Bobby Lipkin Widener University School of Law Delaware
Re: Justice Kennedy's Libertarian Revolution
The processual dimension of the due process clause permits the prohibition of these rights (just not without the appropriate process) as much as their permission. I would think that a "libertarian revolution" would not be satisfied with a conception of liberty that can be easily denied merely by the appropriate process. Thus, due process clause drastically reduces the freestanding dimension of whatever substantive rights it includes. Further, a processual clause that distorts its own content by including a strong substantive component arguably doesn't serve well either citizens or persons. My vote would be to move substantive rights to the privileges or immunities clause. I would leave the scope of the clause's application--citizens or persons, or of course both--to future judicial interpretation or if that fails to constitutional amendment. Bobby Lipkin Widener University School of Law Delaware
Re: Agenda and persecution of Mormons
In a message dated 7/14/2003 1:33:40 AM Eastern Daylight Time, [EMAIL PROTECTED] writes: This strand has been particularly strained in my view, because there are, of course, a significant number of fundamentalist Mormons today who are polygamous in Utah, Arizona, and Nevada. This is, of course, correct. However, does anyone know whether the LDS Church recognizes these people as members? Or, instead, is one excommunicated for entering plural marriages? It is my understanding that "fundamentalist Mormons" are not considered members of the Church. Moreover, although I'm pretty sure the people Marci refers to consider themselves to be members of the "true church," do they consider themselves members of the official (recognized, how does one say this?) Church of Jesus Christ of Latter-Day Saints? How would one identify the relevant groups for constitutional purposes? Bobby Lipkin Widener University School of Law Delaware
Re: Agenda and persecution of Mormons
Dear Rod, In your view is Marci right about the existence of the Fundamentalist Mormon Church? Is that a name of an actual church? Thanks, Dean Smith. Love, Bobby
Re: Agenda and persecution of Mormons
In a message dated 7/13/2003 11:40:47 AM Eastern Daylight Time, [EMAIL PROTECTED] writes: Nothing that I see in these documents precludes the possibility that the practice of plural marriages might be revived if those temporal laws are someday changed. But what evidence could the documents contain that would preclude the possibility of reviving the practice of plural marriages should temporal laws change? Such a possibility always exists. If so, the supposition that the LDS Church's official change in position "might be revised" in the future doesn't seem to have much content. Bobby Lipkin Widener University School of Law Delaware
Re: Justice Kennedy's Libertarian Revolution
In a message dated 7/12/2003 11:12:39 AM Eastern Daylight Time, [EMAIL PROTECTED] writes: No doubt I'm missing something, but doesn't the PI argument still suffer from being limited to "citizens"? I'm not sure how this is relevant to the point I hoped to make about resurrecting the privileges or immunities clause. I wasn't addressing the scope of the clause--to whom it applies, citizens or persons--but rather whether a "libertarian revolution" would better be conceptualized in terms of the privileges or immunities clause which I understand to include substantive rather than procedural rights. In my view, it is necessary to jump through the hoops to explain how the due process clause can house substantive components, and even if it does, how does one know which substantive components are housed there. With the privileges or immunities clause, at least as I understand it, whatever rights it houses (and of course the problem of determining which rights are there remains a problem) are substantive. Even if one understand the clause to apply to citizens only, substantive liberty seems more closely associated with privileges or immunities than with due process. I hope I've understood your comment correctly, and that this reply is responsive to you post. Bobby Lipkin Widener University School of Law Delaware
Re: Justice Kennedy's Libertarian Revolution
If I understand the idea of "a libertarian revolution" correctly--I have not yet read Randy's article--it applies to emphasizing the liberty associated with the due process clause. Right? What about grounding the revolution in the privileges or immunities? Resurrecting the privileges or immunities--which might be desirable in itself--might have (though not necessarily) the added advantage of precluding Lochnerized objections to liberty /due process analysis. I recall Michael Perry and David Richards urging such a resurrection, and, of course, Justice Thomas has indicated his approval of this move, but perhaps for different reasons. Of course, one would need to argue this in greater detail, but the privileges or immunities clause also seems a hospitable (normative) home for both positive and negative rights, though there would certainly be historical arguments against this. Bobby Lipkin Widener University School of Law Delaware
Re: The Initiation of Judicial Review
I had originally asked the question about Whigs several months (maybe even a year) ago. At that time, some members of the List--I've sadly forgotten which ones--contacted me off-list asking me to share the results of my query with them. Keith Whittington's recent post is the most substantial response (I hope this doesn't slight anyone else; if so, my apologies) I've received. I want to thank Keith on my own behalf as well as those other list members seeking similar illumination. Thanks Keith. Bobby Lipkin Widener University School of Law Delaware
Re: Hamilton and Monarchy
In a message dated 7/1/2003 12:11:32 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: I do believe, though, that he [Hamilton] favored very long terms for presidents, which certainly approaches the monarchical principle. Was there much discussion--in or out of the Constitutional Convention--about the number of years of a President's term? Is there any literature examining this question and revealing why the Founders chose a term of four years? Was there any discussion about limiting the number of terms a President could serve? Bobby Lipkin Widener University School of Law Delaware
Teaching Contemporary Cases Before Marbury
I very much want to pursue the thread on assigning Grutter (and/or Gratz and Lawrence) for the first class session. Mindful of Sandy's admonition against doing so, I would welcome any thoughts on this scenario. I teach two-hour class sessions, and this Fall I will be teaching evening division students who are generally thoughtful and highly motivated. Here's my strategy: Because almost everyone has a strong opinion on affirmative action (Equality) and Gay and Lesbian rights (Freedom), I will begin with Grutter and Lawrence. (I use my own materials, so I will include a sparsely edited version of these cases, which I will follow up later in the term with a more comprehensive edited version.) I will introduce the cases by examining their equality and freedom aspects just as I would discuss freedom and equality when I taught an undergraduate course in Social Philosophy at Northwestern University. I will then discuss the distinction between law and politics. Next, I will introduce such issues as federalism, standards of review, fundamental rights, suspect classes, and so forth. I will end this session with an introductory discussion of whose role it is to make such fundamental decisions in a democracy (republic). One goal will be to emphasize the role of judicial review/supremacy in contemporary American democracy. The issues raised in this discussion will be brief and tentative. For the next class I will begin by indicating that we will now identify the case that virtually initiated judicial review, namely, Marbury v. Madison. Does this approach seem promising or will I be making a big mistake in beginning my course in this manner? I have tried different approaches before and have often been disappointed. If you think I'm asking for trouble, please try to save me from myself. Thanks. Bobby Lipkin Widener University School of Law Delaware
The Initiation of Judicial Review
Sandy's post suggests a host of interesting issues that, I suggest, if the members agree, should be examined under a different thread--called "The Initiation of Judicial Review." First, for the sake of precision and I hope not be persnickety, my original post said "virtually initiated" acknowledging that judicial review was used before Marbury. Second, although historical accuracy is valuable in itself, what is taken to be the (virtual) initiation of a social practice certainly plays a conspicuously important role in that practice, even if its purported role (or place) in the practice is inaccurate. This is especially true when the practice is two hundred years old and has critical significance in contemporary society. Second, if I understand Sandy and Jack's footnote correctly, it seems to contain (or at least imply) two sources of the practice of judicial review. The first is the Judiciary Act of 1789 and the second is the original understanding of Act III (that is, the federal judicial power as stated in the Constitution.) Yet, I find these two elements to be in possible conflict. If the original understanding of Art. III included the power of judicial review, why was is it necessary to explicitly include judicial review in the Judiciary Act of 1789? Of course, there might have been perfectly good historical reasons for explicitly articulating what was already implicit in Art. III. But if so, what were they? Also, if the Judicial Act of 1789 was necessary to establish judicial review because the original understanding of Art. III did not include it, or because there existed a controversy over whether judicial review was included in Art. III, did anyone object to the Judiciary Act of 1789 on the ground that it unconstitutionally gave the Court a power not authorized by the Constitution? Without some conception of the original meaning of the judicial power, the Judicial Act of 1789 was arguably unconstitutional. My own view is that, in this case as in others, historical evidence is typically inconclusive. But even if that is wrong, I'd be surprised if anyone in the generation ratifying the Constitution could have anticipated Marshall's revolutionary use of judicial review/supremacy throughout his tenure as Chief Justice. If that is right, then Marshall's use of judicial review initiated a revolutionary process of constitutional lawmaking. Bobby Lipkin Widener University School of Law Delaware
Re: The Initiation of Judicial Review
In a message dated 6/30/2003 12:12:33 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: But, of course, Marbury contains nary a word about judicial supremacy. The language Sandy quotes says "judicial review/supremacy" to acknowledge that there might be a dispute about just what Marbury establishes. The conventional view, as well as Sandy's, is that Marbury establishes (at best) judicial review, but not judicial supremacy. I disagree with the conventional view. I do not think very much evidence exists of the "departmental" view, at least not from the case itself. More importantly, Marshall was too sharp a theorist, in my view, and too wily a politician not to realize two fundamental points. (1) Interpretive equality between and among the federal branches of government would quickly lead to the inability of the federal government to act at least concerning constitutional issues, or put in other terms, without explicit guidance interpretive equality between and among the branches is conceptually incoherent and practicably unworkable, and (2) Coming right out and flatly stating that the Court has the final authority--over Congress and the Presidency--in interpreting the Constitution may prove to be a politically foolish proclamation. Thus, in my view, the passage in M'Culloch to which Sandy refers is no surprise. But it is surely a non squitur to infer from Jackson and Lincoln's rejection of judicial supremacy that Marshall was not committed to it in Marbury, though I concede that the term "establishing" might be too strong. Bobby Lipkin Widener University School of Law Delaware
Re: Puzzles re: Grutter and Korematsu - is deference compatible with strict s...
In a message dated 6/27/2003 2:05:33 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: Here, no such evidence of bad Michigan motivation to distrust their judgment here. The problem, of course, is that deference generally precludes engaging in just the kind of scrutiny that will uncover bad motivations at the heart of a process that on the surface doesn't appear to include any. What Justice O'Connor fails to engage in is the sort of skeptical examination--which she insists upon in Adarand--of the Law School's use of race which is most likely to reveal these bad motivations. Instead, she writes an advocate's brief in favor of the Law School's plan. [Of course, Justice O'Connor is not the first Justice to write an opinion that sounds more like advocacy than a searching examination of both the pros and the cons of public policy, nor is Grutter the first case in which a Justice does this. But this is a supreme failure when purportedly applying strict scrutiny.] At critical times--regarding the compelling interest portion of the test as well as the narrowly tailored part, she defers. Moreover, her deferential assertions are far from pellucid. Consider: "We find that the Law School's admissions program bears the hallmarks of a narrowly tailored plan." Now what does "bears the hallmarks of a narrowly tailored plan" mean? In section II B--beginning with "We have held . . " and ending with "suspect tool", Justice O'Connor states the strict scrutiny test, but, in my mind, fails to apply it. My real beef with this opinion, as I stated in an earlier post, is that it doesn't embrace the need for explicit race-consciousness to incrementally begin an intentional program to remedy our shameful racial history. Instead, it permits diversity to be the key to affirmative action plans apparently only because such plans also benefit whites. Please understand, I'm not opposed to multiple beneficiaries of affirmative action plans, just so long as the primary justification is that we, as a community, have brutalized African-Americans, and we now recognize--and seek to remedy if possible--our community's racial brutality. The failure of individuals--who admittedly were in no way themselves responsible for racism--to assume responsibility for the unjust acts of their transtemporal political community, in my book, reveals a fundamental flaw in the American national character, to use a term toward which Wittgenstein, for good or bad reasons, would of course recoil. Of course, one can object that my argument is not really designed to reject diversity or deference, but in reality what I want is for Justice O'Connor to have written a different opinion validating affirmative action. My response is that this objection is absolutely correct. Bobby Lipkin Widener University School of Law Delaware
Re: STARTING CLASS WITH THE U-MICH AND LAWRENCE CASES
In responding to Sandy, I'm reminded of the old E. F. Hutton commercial ("When E. F. Hutton talks, people listen.") When Sandy Levinson talks against beginning Conlaw with a contemporary case--or about anything else for that matter--Conlaw teachers (should) listen. However, with all the notoriety surrounding the most recent cases Grutter/Gratz and Lawrence together with the opportunity of introducing students to both rights and structural issues, beginning with these cases might be a good idea. For one thing the students are more likely to respond to the contemporary language of the Court better than Marbury's language. Whenever I begin with Marbury I have the distinct impression that the students believe I'm speaking a foreign language. Further, one would have to concede that affirmative action and the freedom of intimate association are just slightly more interesting than whether a disappointed appointee for a judicial position can vindicate his rights in court. But Sandy is right about the contemporary cases being "relentlessly doctrinal." How about this compromise? Edit the recent cases, if possible, to their sexiest parts and inform the students that you will revisit these cases in greater depth later in the course. Stress how important judicial review/supremacy is in the contemporary world with the aim of then examining how this peculiar practice was (virtually) initiated in Marbury. I am intrigued by the possibility of asking students whether they believe courts should trump majorities in the way that the recent cases do. If they agree, then they might be interested in seeing how it all began in American constitutional law (Of course, Marbury wasn't actually the beginning, but never mind). If they think judicial review/supremacy isn't a good thing, then Marbury can then be seen as the culprit. This sounds like an interesting way to get students revved up for what most students consider to be a difficult course.
Bobby Lipkin
Widener University School of Law
Delaware
Madison on Marbury
Did Madison ever publicly express his views specifically on the (il)legitimacy of Marbury or Marshallian judicial review? If so, are his views recorded? If yes, where? Thank you. Bobby Lipkin Widener University School of Law Delaware
Re: Puzzles re: Grutter and Korematsu - is deference compatiblewith strict s...
In a message dated 6/27/2003 9:39:48 AM Eastern Daylight Time, [EMAIL PROTECTED] writes: All laws burden some persons more than other. So, if we are going to talk about disfavored classes (and this does seem to make sense to me) we need to talk either about the general pattern of law, the general pattern of political power, or the general pattern of advantage in a society. I agree. The Plessy example must include the relevance of race in picking out the disfavored class. Further, my appeal to Plessy was not intended to make a general point about racial classifications or disfavored classes, except to say that if Justice O'Connor's use of strict scrutiny in Grutter was used in Plessy the Court might have deferred to the state's judgment of law that segregation is a compelling interest if it first deferred to the state's factual judgment that segregation was essential to safe transportation. But perhaps I've misunderstood Mark's point here. Bobby Lipkin Widener University School of Law Delaware
The Canadian Constitution and Affirmative Action
Is it true that the Canadian Constitution has a provision stating that affirmative action need not violate equal protection? I'd be happy to receive replies off-list. Bobby Lipkin Widener University School of Law Delaware
Re: Thomas in Lawrence v. Thomas during Confirmation
In a message dated 6/26/2003 4:07:13 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: It is fine for a nominee to have a constitutional vision that includes the view that there is no general constitutional protection for personal privacy interests, but it is then up to Senators to decide whether that is a constitutional vision that they want to empower. (boldface added) This statement aptly suggests the folly of our present system of empowering Supreme Court Justices for life. Is there anyone willing to empower (virtually without accountability) decision-makers with the prerogative to make fundamental decisions affecting essential features of institutional, professional, or personal practices for twenty to forty years without some adequate way to influence or constrain their choices? Bobby Lipkin Widener University School of Law Delaware
Re: Puzzles re: Grutter and Korematsu - is deference compatible with strict s...
In a message dated 6/26/2003 7:48:06 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: Plessy really doesn't work as the comparison case here, since that was a case of the majority (caucasians) using the political process to advantage themselves and (more importantly) to disadvantage a political minority ... a political minority that was virtually powerless politically. I don't think one can escape from Plessy this easily. In both cases, laws burden members of a disfavored class (disfavored at least with respect to a certain benefit or entitlement). In Plessy, as we all of course know, the disfavored class was a demographic minority, namely, blacks. In Grutter, the class is those non-black-latino-native-americans who compete with the favored class. The fact that the drafters of the Law School plan were mostly white (I suppose) may be relevant to the overall evaluating of affirmative action, it does not entail, in my view, rejecting Plessy as a good analogy regarding the issue of deference (and I would add, in my view, only regarding deference). Regarding the issue of deference in Grutter, I do not think the existence of additional social and political benefits of diversity is sufficient to separate Justice O'Connor's deference regarding the question of law--diversity as a compelling interest--and the question of fact--diversity is essential to the Law School's mission. While the social, military, economic, and so forth effects of diversity would be sufficient generally to permit a Justice to regard diversity as a compelling interest, in this case, the judgment that diversity is a compelling interest derives, I would think, from diversity in education which represents the most obvious route to diversity in these other areas. Bobby Lipkin Widener University School of Law Delaware
Re: Puzzles re: Grutter and Korematsu
Sorry, my last post was unclear. I meant to indicate three points operating (at the time of my original post) in this thread: (1) Is there a general account (or for that matter any account at all) of when (how?) deference is permissible when strictly scrutinizing government action; or, for short, how is deference compatible with strict scrutiny? (2) Is there a uniform standard of strict scrutiny? And (3) Should we trust the courts to protect us from tyrannical majorities? My original post centered only on (1). Others brought into the thread (2) and (3) and I picked them up. Many of the posts in this thread suggest that using deference in applying 'strict scrutiny' simply means that one is not really applying strict scrutiny. I suppose that's correct. But if it is correct then deference cannot be the distinguishing feature between strict scrutiny and rational basis scrutiny. If this is right how does one explain Justice O'Connor rejecting the idea that her application of strict scrutiny is not less strict because it is deferential. Is she just trying to hoodwink us? Is she just wrong, confused, etc., or is there some other possible explanation? In my own view, I agree with Sandy that questions (2) and (3) are mostly empirical questions. Yet, there remains a conceptual feature in answering these (and any other) empirical questions. In the case of (3), the argument is clearly in part conceptual because we should examine different political theories of government and social organization to determine whether in theory they imply that courts should defend citizens against tyrannical majorities. Some political theories in there own (conceptual) terms might be better candidates for protecting minorities than others. But Sandy is right that the bottom line concerning whether we can trust courts in the American context is empirical. Bobby Lipkin Widener University School of Law Delaware
Puzzles re: Grutter and Korematsu
I have a minor (I hope) question about strict scrutiny and Grutter. Justice O'Connor maintains that the Court should defer to the University regarding whether diversity is essential to the University's educational mission. She then denies that this implies that the court's scrutiny is any less strict as a result. I seem to recall similar deference in Korematsu. My understanding of strict scrutiny is that when the test is applied deference is inappropriate. My question then is this: Is there a general account (or for that matter any account at all) of when (how?) deference is permissible when strictly scrutinizing government action. One quick additional question. Is there literature specifically examining the justification of judge-made tests such as "strict scrutiny." And, as a reporter asked yesterday, how do we know what the definition of "compelling purpose" or "narrow tailoring" is? Thanks. Bobby Lipkin Widener University School of Law Delaware
Senate's Advice and Consent of John Marshall Company
Are there any records of the Senate's confirmation of John Marshall? What process was involved in the confirmation process of Supreme Court appointments in the early Republic? Is there a general history of this process from the early Republic to today? On- or off-list replies are fine. Thanks. Bobby Lipkin Widener University School of Law Delaware
Re: This was sent off list! Lincoln's Conception of Federalism
I must also apologize for replying to the List, not to Louise alone. I will be more careful in the future. Bobby Lipkin Widener University School of Law Delaware
Lincoln's Conception of Federalism
Once again I turn to the List for assistance in two matters. (1) Since (but not including) the Founding, which great (famous) American statesmen (politicians) have contributed to our understanding of federalism. (2) In particular, do any of Lincoln's writings contain his conception of federalism? If so, which one(s)? Off-list replies are fine. Thanks very much. Bobby Lipkin Widener University School of Law Delaware
Re: Family and Medical Leave Act upheld
I've been having trouble locating the Hibbs case. Will anyone help? Bobby Lipkin Widener University School of Law Delaware
