Subject: CONLAWPROF Digest - 12 Aug
2003 to 13 Aug 2003 (#2003-200)
Date: Thu, 14 Aug 2003 00:00:17 -0700
From: Automatic digest processor <[EMAIL PROTECTED]>
Reply-To: Discussion list for con law professors <[EMAIL PROTECTED]>
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There are 9 messages totalling 744 lines in this issue.
Topics of the day:
1. Marshall & Upholding Federal Stutes (7)
2. "Con-Law list lurker"
3. Apologies
Subject: Marshall & Upholding Federal Stutes
Date: Wed, 13 Aug 2003 06:51:27 EDT
From: Robert Justin Lipkin <[EMAIL PROTECTED]>
Two virtually independent issues: (1) There is a familiar line designed,
I think, to minimize (perhaps that's too strong) Marbury's importance
which states that the Supreme Court did not strike down another federal
law for over fifty years. I assume this also is designed to show (suggest)
that judicial review/supremacy during those years was not a terribly significant
power, especially compared with judicial review/supremcy's role in the
20th century. Is there any literature addressing this particular issue:
Despite the lapse in the use of judicial review to strike down federal
statutes, the history of the Marshall Court demonstrates the tremendous
(additional?) power Marshall grabbed for the Court in upholding federal
statutes in such cases as McCulloch, Gibbons, and others?
Thus, the lapse in striking down federal statutes is not even remotely
dispositive in the debate over the power (legitimate or stolen) Marshall
garnered for the Court during his tenure as Chief Justice because in upholding
federal statutes Marshall nevertheless arguably transformed American constitutionalism
and government. If so, upholding federal laws as much as striking
them down should be considered in evaluating the power the Court acquired
during this period.
(2) Is there an obvious answer (which I'm unfortunately overlooking) why
didn't Marshall address Art. I, Section 9, cl. 6:
"No Preference
shall be given by any Regulation of Commerce or Revenue to the Ports of
one State over those of another: nor shall Vessels bound to, or from, one
State, be obliged to enter, clear, or pay Duties in another." in Gibbons?
Thanks.
Bobby
Lipkin
Widener
University School of Law
Delaware
Subject: Re: Marshall & Upholding Federal Stutes
Date: Wed, 13 Aug 2003 08:41:24 -0400
From: Mark Graber <[EMAIL PROTECTED]>By "conincidence"
I happen to know of two articles addressing the "failure" of the court
to declare laws unconstitutional between Marbury and Dred Scott.
The first, Mark A. Graber, "Naked Land Transfers and American Constitutional
Development," 53 Vanderbilt 73 (2000) provides what my grandmothers belies
to be "a definitive demonstration that the Taney Court did indeed declare
laws unconstitutional (in very obscure cases) between 1803 and 1857.
The second, Mark A. Graber, "The Jacksonian Origins of Chase Court Activism,"
25 Journal of Supreme Court History 17 (2000) asserts that a reason why
the Taney Court did not declare major federal laws unconstitutional was
that in Jacksonian America the vast majority of constitutionally controversial
proposals either failed to pass Congress or were vetoed by the president
(think of the national bank and lots of internal improvement bills)--there
is even a long footnote in another piece demonstrating the probable 6-3
majority on the court that would have overruled McCulloch had Tyler signed
the bank bill in 1841 or 1842. These pieces, acclaimed from coast
to coast (my aunt lives in LA and my mom in LI), are available on request. Mark
A. Graber (who is in a really weird mood this morning)[EMAIL PROTECTED]
>>> [EMAIL PROTECTED] 08/13/03 06:51AM >>>
Two virtually independent issues: (1) There is a familiar line designed,
I think, to minimize (perhaps that's too strong) Marbury's importance
which states that the Supreme Court did not strike down another federal
law for over fifty years. I assume this also is designed to show (suggest)
that judicial review/supremacy during those years was not a terribly significant
power, especially compared with judicial review/supremcy's role in the
20th century. Is there any literature addressing this particular issue:
Despite the lapse in the use of judicial review to strike down federal
statutes, the history of the Marshall Court demonstrates the tremendous
(additional?) power Marshall grabbed for the Court in upholding federal
statutes in such cases as
McCulloch, Gibbons, and others?
Thus, the lapse in striking down federal statutes is not even remotely
dispositive in the debate over the power (legitimate or stolen) Marshall
garnered for the Court during his tenure as Chief Justice because in upholding
federal statutes Marshall nevertheless arguably transformed American constitutionalism
and government. If so, upholding federal laws as much as striking
them down should be considered in evaluating the power the Court acquired
during this period.
(2) Is there an obvious answer (which I'm unfortunately overlooking) why
didn't Marshall address Art. I, Section 9, cl. 6:
"No Preference
shall be given by any Regulation of Commerce or Revenue to the Ports of
one State over those of another: nor shall Vessels bound to, or from, one
State, be obliged to enter, clear, or pay Duties in another." in Gibbons?
Thanks.
Bobby
Lipkin
Widener
University School of Law
Delaware
Subject: Re: Marshall & Upholding Federal Stutes
Date: Wed, 13 Aug 2003 10:20:40 -0400
From: "Matthew J. Franck" <[EMAIL PROTECTED]>
I don't think that (in your words, Bobby) "the history
of the Marshall Court demonstrates the tremendous (additional?) power Marshall
grabbed for the Court in upholding federal statutes in such cases
as McCulloch, Gibbons, and others." It does not follow
from Marshall's defense of the constitutionality of these federal statutes
that he thought it was any business of the judiciary to be the final arbiters
of their validity. I argue this in a chapter on Marshall recently
published in History of American Political Thought, ed. Frost and Sikkenga
(Lexington, 2003).
As for your second question, I think there's a simple
reason why Art. I, sec. 9, cl. 6 did not come up in Gibbons: that
clause is (like all others in sec. 9) a limitation on the federal government's
power, not the power of the states. The only federal law at stake
in Gibbons
was the one under which Gibbons acquired his "coasting
license," and that law gave no "preference" that could be implicated by
the clause in question.
Matt
***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail [EMAIL PROTECTED]
***************************
At 06:51 AM 8/13/2003 -0400, you wrote:
Two virtually independent issues: (1) There is a familiar line designed,
I think, to minimize (perhaps that's too strong) Marbury's importance
which states that the Supreme Court did not strike down another federal
law for over fifty years. I assume this also is designed to show (suggest)
that judicial review/supremacy during those years was not a terribly significant
power, especially compared with judicial review/supremcy's role in the
20th century. Is there any literature addressing this particular issue:
Despite the lapse in the use of judicial review to strike down federal
statutes, the history of the Marshall Court demonstrates the tremendous
(additional?) power Marshall grabbed for the Court in upholding federal
statutes in such cases as McCulloch, Gibbons, and others?
Thus, the lapse in striking down federal statutes is not even remotely
dispositive in the debate over the power (legitimate or stolen) Marshall
garnered for the Court during his tenure as Chief Justice because in upholding
federal statutes Marshall nevertheless arguably transformed American constitutionalism
and government. If so, upholding federal laws as much as striking
them down should be considered in evaluating the power the Court acquired
during this period.
(2) Is there an obvious
answer (which I'm unfortunately overlooking) why didn't Marshall address
Art. I, Section 9, cl. 6: "No Preference shall be given by any Regulation
of Commerce or Revenue to the Ports of one State over those of another:
nor shall Vessels bound to, or from, one State, be obliged to enter, clear,
or pay Duties in another." in Gibbons? Thanks.
Bobby Lipkin
Widener University School of Law
Delaware
Subject: "Con-Law list lurker"
Date: Wed, 13 Aug 2003 08:24:58 -0700
From: Mark Oglesby <[EMAIL PROTECTED]>
Hello,
As one of the "con law list lurkers" (fairly new to
the list as well), I appreciate the dialogue on
constitutional issues that I have been able to read.
I am a high school government teacher that teaches a
good portion of constitutional law/issues to my senior
government students. I would appreciate any suggested
texts or issues that you feel would be important and
usefule for students and myself.
Thank you
Mark Oglesby
Howell High School
Howell, Michigan
--- Myron Moskovitz <[EMAIL PROTECTED]> wrote:
> Colleagues:
>
> This message is intended primarily (though not
> exclusively) for con law list
> lurkers - those of you who are not eager to mix it
> up with the heavyweight
> scholars who customarily dominate this list.
>
> In my humble opinion, almost all con law casebooks
> currently on the market
> are quite useful for budding con law scholars, but
> less useful for budding
> lawyers. A different option might appeal to many
> professors who prefer to
> teach con law in a more practical way.
>
> I�ve written several �Problem Method� casebooks in
> criminal procedure and
> criminal law. Each chapter begins with a rather
> complex Problem I�ve
> invented, followed by several major cases, with
> directions for students to
> apply the cases to the Problem. To analyze the
> Problem, the student must try
> to understand the issues discussed in the cases, see
> how those issues arise
> in the Problem, and organize those issues into a
> coherent outline. This, of
> course, is what lawyers do in practice (and students
> do on exams), and this
> is why most students enjoy working on the Problems.
> (I discussed the
> Problem Method in more depth at Moskovitz, Beyond
> The Case Method: It's Time
> To Teach With Problems, 42 Journal of Legal
> Education 241 (1992); copy
> attached.) My teacher�s manuals contain my outlines
> of the issues in the
> Problems, to give profs a leg up.
>
> I am thinking of writing the same type of book for
> constitutional law. It�s
> a lot of work, so I don�t want to do it if no one
> would consider using such
> a book.
>
> Could you please send me any thoughts, comments, or
> suggestions � on or
> off-list ([EMAIL PROTECTED]), as you prefer? Even
> a brief note (�Do it.�
> �Dumb idea,� etc.) would help. Thanks.
>
>
> Myron Moskovitz
__________________________________
Do you Yahoo!?
Yahoo! SiteBuilder - Free, easy-to-use web site design software
http://sitebuilder.yahoo.com
Subject: Re: Marshall & Upholding Federal Stutes
Date: Wed, 13 Aug 2003 11:25:45 -0500
From: Louise Weinberg <[EMAIL PROTECTED]>
August 3, 2003
Dear Bobby,
[Self promotion warning.] There is a 160-page
magnum opus of mine on Marbury (forthcoming Virginia Law Review, Oct. 2003).
The article pretty much demolishes (she said modestly) the conventional
technical critique of Marshall's statutory "construction" and the conventional
technical critique of Marshall's constitutional "interpretation."
It also knocks holes in the conventional historical narrative within which
we teach the case. (This is not entirely self-promoting; I really
don't know any other source for much of the argumentation in this article.)
The article doesn't deal with judicial review as such, but does mention
McCulloch as the significant example of the point you make below.
Best,
Louise
At 05:51 AM 8/13/03, you wrote:
Two virtually independent issues: (1) There is a familiar line designed,
I think, to minimize (perhaps that's too strong) Marbury's importance
which states that the Supreme Court did not strike down another federal
law for over fifty years. I assume this also is designed to show (suggest)
that judicial review/supremacy during those years was not a terribly significant
power, especially compared with judicial review/supremcy's role in the
20th century. Is there any literature addressing this particular issue:
Despite the lapse in the use of judicial review to strike down federal
statutes, the history of the Marshall Court demonstrates the tremendous
(additional?) power Marshall grabbed for the Court in upholding federal
statutes in such cases as McCulloch, Gibbons, and others?
Thus, the lapse in striking down federal statutes is not even remotely
dispositive in the debate over the power (legitimate or stolen) Marshall
garnered for the Court during his tenure as Chief Justice because in upholding
federal statutes Marshall nevertheless arguably transformed American constitutionalism
and government. If so, upholding federal laws as much as striking
them down should be considered in evaluating the power the Court acquired
during this period.
(2) Is there an obvious
answer (which I'm unfortunately overlooking) why didn't Marshall address
Art. I, Section 9, cl. 6:
"No Preference shall be
given by any Regulation of Commerce or Revenue to the Ports of one State
over those of another: nor shall Vessels bound to, or from, one State,
be obliged to enter, clear, or pay Duties in another." in
Gibbons?
Thanks.
Bobby Lipkin
Widener University School of Law
Delaware
Subject: Re: Marshall & Upholding Federal Stutes
Date: Wed, 13 Aug 2003 15:36:33 EDT
From: Robert Justin Lipkin <[EMAIL PROTECTED]>
Mark, I'd welcome receiving
copies. Thanks, Bobby.
Bobby Lipkin
Widener University School
of Law
Delaware
Subject: Re: Marshall & Upholding Federal Stutes
Date: Wed, 13 Aug 2003 15:39:58 -0400
From: Mark Graber <[EMAIL PROTECTED]>will
do. Can you send me an address. MAG
>>> [EMAIL PROTECTED] 08/13/03 03:36PM >>>
Mark, I'd welcome receiving
copies. Thanks, Bobby.
Bobby Lipkin
Widener University School
of Law
Delaware
Subject: Re: Marshall & Upholding Federal Stutes
Date: Wed, 13 Aug 2003 15:43:20 -0400
From: Mark Graber <[EMAIL PROTECTED]>Sorry
about that. I have a very slow learning curve with respect to email. MAG
>>> [EMAIL PROTECTED] 08/13/03 03:39PM >>>will
do. Can you send me an address. MAG
>>> [EMAIL PROTECTED] 08/13/03 03:36PM
>>>
Mark, I'd welcome receiving
copies. Thanks, Bobby.
Bobby Lipkin
Widener University School
of Law
Delaware
Subject: Apologies
Date: Wed, 13 Aug 2003 15:49:09 EDT
From: Robert Justin Lipkin <[EMAIL PROTECTED]>
My apologies for sending
a request intended for Mark Graber to the List. Sorry.
Bobby Lipkin
Widener University School
of Law
Delaware
