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
With regard to my last post in response to Jack, let me add:
When the issue to be decided by a US court involves international law, as in
the maritime case from which Jack quotes, then decisions of foreign nations'
courts may be analogous to decisions of sister circuits. The foreign courts
are
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
Ilya writes:
At 01:58 PM 8/8/2003, you wrote:
Well, as I tell my Con Law I students on the first day of class, the only
possible conclusion is that [1] the Constitution is illegal, [2] the
Articles of
Confederation are still in force, and [3] I don't really need to teach the
rest of the course:).
Not Marshall (or Joseph Story, for that matter), but Wilson. And the
difference is significant. Marshall would view the new regime as ONLY a
national government. Wilson recognized, rightly, in my view, that the
people acted in different capacities, as a national people for some
purposes, and as
My views on this important question and other related questions can be
found on my blog entry for July 7th. What Mark seems to overlook is the
all important distinction between controlling authority (like the rulings
of a higher court) and merely persuasive authority (like a law review
article,
I don't dispute #1 or #2 on Earl's list, but I do take issue with #3.
The ratification conventions were expressly NOT held under the authority
of the state governments, but by separate ratifying conventions unknown
to any of the existing state governmental structures. The reason for
this was
Michael Froomkin wries:
When I taught con law I, I always started with the Articles. Being a new
teacher, I had some trouble persuading the students in the first days of
their second semester of first year that this was a valuable use of their
time, even though it seems evident to me that many
Well, as I tell my Con Law I students on the first day of class, the only
possible conclusion is that the Constitution is illegal, the Articles of
Confederation are still in force, and I don't really need to teach the
rest of the course:).
Ilya Somin
On Fri, 8 Aug 2003, Sanford Levinson wrote:
Prof. Eastman wrote:
As per my earlier reference to James Wilson's speeches on the subject,
the difference between the source of authority for the Articles, and the
source of authority for the Constitution of 1787, is profound. The
Articles were adopted by the legislatures of the states,
If a ratchet principle applies, so that we only pay serious attention to
foreign law that is better than ours, then why do we need to look at foreign
law at all? If there is some way of seeing that another approach is better
than the existing approach, and if courts have the authority and duty to
Mark asks: ...I wonder whether Jack thinks US courts should rethink their
abortion jurisprudence in light of the substantially more restrictive
approaches taken in most other countries.
I feel like jumping in, for me. Jack, I think, can take care of himself.
I don't think we're talking about
Prof. Levinson writes;
Re the point about perpetual union: Where were North Carolina and Rhode
Island on April 30, 1789, the day that George Washington took the oath of
office. Were they (involuntary) members of the United States of America,
whose constitution they had not ratified? Or
Randy Barnett wrote:
I have an article now pending at law reviews called,
The Original Meaning of the Judicial Power, in which I respond to Leonard
Levy and others who claim that judicial nullification of unconstitutional
laws was not established
While not addressing the Articles of Confederation, the Kmiec, Presser
(2d edition to be Kmiec, Presser, Eastman, for a little SSP) The
American Constitutional Order begins with Chapter 1 devoted to natural
law historical foundations of the Constitutiona and with Chapter 2
specifically addressing
My apologies for troubling all of you about this, but I'm looking
for examples of an argument that runs more or less like this:
Even speech that advocates crime can serve the search for truth /
marketplace of ideas / democratic self-government. Such speech often
carries with it
Prof. Balkin writes:
Like law review articles, the decisions of foreign courts
are merely persuasive authorities, not controlling authorities, and people
can and do use them to persuade or give heft to their arguments. Whether
they actually do persuade or give heft is another matter.
Just a couple of points:
1. I'm in the process (again) of trying to figure out how to pack a decent smattering
of the basics into a Con Law I course. Perhaps the key to our difference is simply
that I think there are so many other more fundamental things to try to cover in an
introductory
People with an interest in this area might want to take a look at my
article
Why Constitutional Lawyers and Historians Should Take a Fresh Look at the
Emergence of the Constitution from the Confederation Period: The Case of the
Drafting of the Articles of Confederation, 60 Tenn. L.R. 783
There are probably lots of possibilities. However, I would argue that they
were members of the union, but not subject to the Constitution (yet).
Ilya Somin
On Fri, 8 Aug 2003, Sanford Levinson wrote:
Re the point about perpetual union: Where were North Carolina and Rhode
Island on April
Let me suggest John
Phillip Reid's 4 volume Constitutional History of the American
Revolution. I haven't read very much of it (yet), but interestingly it
portrays the colonies as being in an intractable dispute more with the British
parliament than with the king. Gross oversimplification:
It seems to me that the issue is not whether one can cite international
sources, but rather what weight those sources should be given. Presumably,
those who argue that the courts should consult international sources
believe that they should be given considerable weight. I have some
problems with
Prof. Levinson wrote:
I begin with a discussion of the propriety of the Framers' blithe
willingness to ignore Article XIII of the Articles and its requirement of
unanimous consent for amendment (the Rhode Island veto). What do we/they
think of this demonstrated infidelity to constitutional
I just want to underscore the importance of the distinction Bill makes here, and add
that it is precisely this distinction that (a) helps reconcile judicial review with
separation of powers, in the sense that it (b) makes it clear that judicial review is
anchored in the performance of the
I have an article now pending at law reviews called, The
Original Meaning of the Judicial Power, in which I respond to Leonard Levy
and others who claim that judicial nullification of unconstitutional laws was
not established at the time of the founding. The evidence from the
As Louise Weinberg points out, respect but not
authority makes all the difference. I would only add
this: Jack Balkin's playful quotation from Chief Justice John Marshall's
opinion in Thirty Hogsheads of Sugar v. Boyle, 9 Cranch 191
(1815), at 198, is neatly lifted and severed from its context.
Dear Friends,
I am not sure whether I am misinterpreting the previous post, but I
thought it was unintentionally profound. The real point that the
invocation of Star Trek, etc., made to me was that those materials ARE
eligible for citation according to the approaches of some list members,
Prof. Scarberry writes:
When the issue to be decided by a US court involves international law, as
in
the maritime case from which Jack quotes, then decisions of foreign
nations'
courts may be analogous to decisions of sister circuits. The foreign
courts
are interpreting and attempting to
Prof. Maule asks:
A treaty between the United States and England? France? each of the
German principalities? Or a treaty among the states that became signatories
to it?
ANSWER: The Constitution is a treaty between the states (of the U.S.).
Prof Maule continues:
What treaty exists that binds
My apologies for sending a request intended for Mark Graber to the List. Sorry.
Bobby Lipkin
Widener University School of Law
Delaware
Could you resend me a copy of your posting (which I inadvertently deleted)
in which you said that the question of secession was settled by Grant v.
Lee. I want to use it in my remarks at the Michelman symposium, where
I'll be discussing the decidability of the constitutionality of secession.
At 12:16 PM 8/8/2003, you wrote:
There are probably lots of possibilities. However, I would argue that they
were members of the union, but not subject to the Constitution (yet).
Ilya Somin
What if Rhode Island and North Carolina had never ratified? Would they
still be members of the union, but
Prof. Franck writes: "As Louise Weinberg points out, "respect" but not "authority" makes all the difference. I would only add this: Jack Balkin's playful quotation from Chief Justice John Marshall's opinion in Thirty Hogsheads of Sugar v. Boyle, 9 Cranch 191 (1815), at 198, is neatly lifted and
Could you give us a few cites from the writings of the Founders recognizing judicial nullification of unconstitutional federal laws?
Francisco Forrest Martin
- Original Message -
From: Randy Barnett
To: [EMAIL PROTECTED]
Sent: 8/14/2003 12:44:54 PM
Subject: Re: Marshall
I will need to read your article, but given that positive approaches to
International Law have prevailed over the past 150 years, with customary
international law only having force because the Executive has at least
implicitly consented to the application of a particular customary
international
2 points:
1. The Articles of Confederation expressly state that they form a
perpetual union and that each of the the 13 states retains its
sovereignty, freedom, and independence, and every power, jurisdiction, and
right, which is not by this Confederation expressly delegated to the
United States,
Dear Jack,
The point,
of course, is that if learned counsel offer these materials they will be
received with respect in our courts ~ but not as authority.
Considered, but not necessarily followed. Discretion,
not obligation. This discussion has not mentioned a third path
sometimes taken by
Robert Justin Lipkin wrote:
[a lot about the following: In a message
dated 8/14/2003 2:44:15 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
whether courts can "nullify" unconstitutional laws,
or whether courts will simply not give effect to unconstitutional laws in
cases pending
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
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 LipkinWidener University School of
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 LipkinWidener University School of
LawDelaware
Re the point about perpetual union: Where were North Carolina and Rhode
Island on April 30, 1789, the day that George Washington took the oath of
office. Were they (involuntary) members of the United States of America,
whose constitution they had not ratified? Or were they independent
nations?
Prof. Young writes: The argument for customary international law as it is
most often made is that it has the same status as federal common law, and
it is similar in form as well as it comes from the courts rather than the
legislature. All of the general separation of powers, federalism, and
This is the part that gets me, as I've seen it repeated without any cite to
real authority:
I recognize that the view that the Constitution is a federal treaty may be
provocative -- perhaps shockingly outrageous -- to some members of this
listserv. [TRUE] However, the view that the Constitution
I would focus on other differences between customary international law and
federal common law that I think make it unnecessary for students to draw
connections between them. -- There may be pedagogical value in drawing the
connection, but it is not misleading not to draw them.
1) The President
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
At 01:38 PM 8/8/2003 -0700, you wrote:
I don't dispute #1 or #2 on Earl's list, but I do take issue with #3.
The ratification conventions were expressly NOT held under the authority
of the state governments, but by separate ratifying conventions unknown
to any of the existing state governmental
Prof. Maltz:
As an originalist, the answer to your question about what weight should be
given to international law should be obvious. The Founding Fathers
recognized the Constitution as a treaty, and as a treaty, the Constitution
must be construed in conformity with the U.S.' customary
Dear Francesco,
There are
instances in the Virginia and Pennsylvania ratification debates, in the
Constitutional Convention, and in the Federalist Papers. I reviewed
these materials in another connection for a forthcoming article on
Marbury. I can send you the draft of that section off list if
Dear Bill,
You are
right about this point. In modern terms, Marbury holds that if you read
the statute the way Marbury was suggesting (as a jurisdictional grant) it
would be constitutional. We might say the law was declared
unconstitutional as applied. ~ As applied to Marbury's case,
in its
Professor Schlanger:
I discussed the conservative and liberal courts issue, with
citations to additional scholarship and a defense of the method, in an
American Political Science Review article a few years back.
The citation to the article is: Scott D. Gerber and Keeok Park, The
Quixotic Search
Dear Stephen,
Your list
is excellent. On the doubtful case rule, of course there has been a
good deal of writing. But it seems odd to expend so much energy on
the doubtful case rule. Early courts were very hesitant about
striking down legislation, but if they were, it was not because a case
was
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