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PSC 314Political Theory & Constitutional Law

Lecture & Discussion Outlines

by Dr. Jeremy Lewis, Revised 10 Feb. 2011. (This is only a partial set of the lectures and discussions.)

Introductory lecture on Courts
Simplified Briefing of a Case:
  • Facts and circumstances of the case -- keep these to the relevant facts, usually a paragraph or two.
  • Usually found in the Court opinion's "syllabus" or header.
  • Constitutional principles or legal issues before the court -- in law school (though not before a court) may be very detailed.
  • Is the case about certain Amendments, or constitutional powers of the president, regulating commerce, or something else?
  • Holding of the court -- a one sentence summary of the outcome
  • Legal analysis -- in law school this may be a multipage argument on the constitutional principles, legal issues, statutes and precedents involved.
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    On McCloskey 1, On the Genesis and Nature of Judicial Power
    [DIscussion notes, a generational difference:
  • first pre-Law students in course noticed,
  • McCloskey is more serious about the early years of the court than is O'Brien
  • jurisdiction of Court is little discussed
  • McCloskey's thesis seems to be judicial review results from faulty logic but it fits with American culture]
  • Two sources of sovereignty, in tension:
  • Popular sovereignty, will of the people, expressed through representatives
  • Fundamental law, the constitution, interpreted through federal judges and specifically the supreme court
  • Dualism in American mind, beliefs in both law and popular will, often in tension in short term
  • Is a court opinion actually law?  Conflictual, because Court wanted it so, but Constitution does not say
    Judiciary Act 1789 essential, Congress lays down number of judges and structure of courts
    Judicial Review? McCloskey argues:
  • Court is flexible over time, to fit with culture
  • Court is both a policymaking and a political body
  • limited by case method and by precedent
  • Court must provide legislative work with judicial tools
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    On McCloskey 2: Establishment of the Right to Decide

    Early Supreme Court had three "role problems" to resolve:

        * the establishment of judicial independence,
        * the establishment of the power of judicial review, and
        * the establishment of judicial sovereignty.

  • 1789-1801 most cases had separate decisions by judges
  • Federalists: Chisholm v. Georgia a challenge to state sovereignty.
  • Reaction: Amendment XI, a set back for judicial nationalism.
  • Federalists: Alien and Sedition Acts, 1790s
  • Jeffersonian Democrat-Republicans reaction: Judiciary Act (1801)
  • 1800 election
  • Marbury v. Madison (1803)
  • Section 13 of the Judiciary Act of 1789 was invalid
  • Fletcher v. Peck (1810)
  • state is bound by its contracts
  • implied Supreme Court can hold state laws unconstitutional
  • By 1810, established judicial independence and review, and building judicial sovereignty.



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    McCloskey: 3: The Marshall Court and The Shaping of The Nation: 1810-1835

    # Marbury v. Madison (1803)

      # Section 13 of the Judiciary Act of 1789 was invalid

    # Fletcher v. Peck (1810)

      # state is bound by its contracts
      # implied Supreme Court can hold state laws unconstitutional

    # Chisholm v. Georgia a challenge to state sovereignty.

      # Reaction: Amendment XI, a set back for judicial nationalism.

    Martin v. Hunter's Lessee

    – the Court made first ruling concerning Section 25.
    Cohens v. Virginia
    – Marshall gave the decision that individuals may appeal to the Supreme Court even if the state is the other party in the litigation.
    McCulloch v. Maryland (1819)
    The Constitution emanates from the hand of the sovereign people (not the states) and speaks in broad language so that it can “be adapted to the various crises of human affairs.” ; The people made the government supreme over all rivals within the sphere of its powers.
    Gibbons v. Ogden –
    First time the Court was forced to interpret the Interstate Commerce Clause, over two states.
    Fletcher v. Peck –
    First Contract Clause decision, but ruled on other grounds.
    Dartmouth College v. Woodward
    Upheld contract clause even for non-profit corporation over the state

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    On The Taney Court, 1836-64

    Roger B. Taney of MD, 5th Chief Justice, Jacksonian politician

    Commerce Clause cases -- would Taney uphold Marshall's Federalist design?
  • Slavery cases
  • Prigg v. Pennsylvania(1842) regarding slavery, slaves, slave owners, and States' Rights.
  • Taney's aftermath
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    On The Fourteenth Amendment

    Adopted on July 9, 1868 as one of the Reconstruction Amendments.

    Citizenship Clause provides a broad definition of citizenship that overruled the decision in Dred Scott v. Sandford (1857), which held that blacks could not be citizens of the United States.

    "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ..."

    Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without due process of law.

    "... nor shall any State deprive any person of life, liberty, or property, without due process of law; ..."

    This clause has made most of the Bill of Rights applicable to the states, and supports substantive and procedural rights.

    Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction.
    "... nor deny to any person within its jurisdiction the equal protection of the laws."

    This clause later became the basis for Brown v. Board of Education (1954), which (in principle) invalidated racial segregation in public accommodations across the United States.

    The amendment also includes archaic clauses dealing with the officials of the Confederacy.

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    O'Brien, Ch. 3 - Life in the Marble Temple
  • Beginnings:
  • least organized and powerful branch
  • 17 week sessions until 1917
  • riding circuit without chambers, llittle collegiality
  • Marshall brought harmony to bench
  • Reconstruction era
  • brought development of Court and of Washington DC
  • worked independently until Taft's "marble temple" appropriation 1925
  • From 1946 justices worked in Temple instead of at home
  • invalidation of New Deal watershed: co-equal branch
  • secrecy until 1970s,
  • but now tapes and clerks talk to reporters
  • Project Hermes: eOpinions published
  • Nine Little law firms, each with several clerks for one year terms [Ryan Shores '99]
  • Clerks research & draft opinions [esp. O'Connor]
  • 1970s: Legal Office created with Staff Counsel
  • Legal assistant, intern
  • special motions, advice, memoranda
  • Administrative staff:
  • Clerk (fees, records, circulates papers)
  • Reporter of Decisions (headnotes /syllabi, editorial, publications)
  • Marshall (builkdings & security, payroll)
  • LIbrarian
  • Admin Asst. to Chief Justice (daily admin and relations with outside via Public Info Officer)
  • Managing Caseload:
  • Early C20th growth of docket via interest groups
  • 1925 Judiciary Act: extended Court's discretion
  • removed most mandatory reviews
  • retains Reaportionment, antitrust, CRA & FECA.
  • more staff
  • more appellate courts reduce the SC's load
  • procedures streamlined to screen cases
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    Introductory Lecture on Political Theory

  • Western political thought as tradition from Plato to present
  • Polis or polity as territory and people governed by some form of institutions
  • various types of polis have been described and prescribed
  • Justice as goal of the state, since Plato's Republic
  • various forms of Justice have been seen as universal and prescribed, some being contradictory
  • Justice may or may not be a universal concept
  • justice allows man to aspire to virtue (but virtue varies)
  • Logical structure of western political theory is to describe:
  • usually in a state of nature without government
  • a clear character of the nature of mankind
  • from this character, logically to derive the nature of society
  • from this society, logically to explain the type of need for government
  • from society to government, a mechanism to construct a government
  • with the type of governnment created, the means of maintaining power
  • consideration of a right of revolution
  • We tend to evaluate political theories by tight logical design, not just by agreement with their depiction of the nature of mankind.
  • Each type of theory comes in varied flavors
  • Libertarian theories tend to assume a nature of man that causes little need for government, and argue "that government is best which governs least"
  • they tend to argue for the free market in economics as well as personal behavior
  • man will be free to use his faculties of acquiring property
  • some argue man's political freedom rather than freedom to become rich is the primary goal
  • social darwinists (a subset) believe it is good that the poor and infirm die off and thereby improve the breeding stock.  Welfare (or even, charity) would encourage the survival of the unfit.  (Darwin himself did not agree with applying his theory of nature to humans.)
  • Socialist theories tend to assume a nature of mankind that argues for justice via equality and collective work -- but they come in a broad variety of flavors.
  • idealistic socialism, dating from the early nineteenth century, tends to emphasize communal living and working
  • Marxist socialism calls for an inevitable revolution and the power of the working class to ensure equality via the power of the state.  But afterwards, all will work for each other and the state will wither away.
  • Marxist-Leninism calls for a revolutionary communist party, actively to destroy the state produced by capitalism -- and to contruct a doctatorship fo the working class.
  • once commonly implemented across eastern Europe via the Soviet empire, with a variant, Maoism across China
  • now limited to North Korea, Cuba and to some extent the People's Republic of China
  • Parliamentary social democracy, believes in working class virtue, equality of man, control of strategic industries to secure public benefit from profits, control of financial and property speculation -- and the development of the welfare safety net
  • commonly found in west European trade unions -- and in labour, social democratic or socialist parties.
  • Communitarian theories argue for both order based on collective values such as security and decency -- and equality developed via the welfare state.
  • there is a growing communitarian movement in the developed world, particularly among intellectuals
  • Liberal Democratic theories usually argue that justice is found in a process of open competition in politics, and via just procedures.
  • the Contractarian Perspective argues for a social contract or compact by which free men agree to form a government for specified purposes
  • common in the C18th and revived somewhat by John Rawls.
  • the Utilitarian Perspective seeks justice through the greatest good of the greatest number of people.
  • common in the C19th and absorbed into all of modern benefit-cost analysis
  • the Discourse Ethics Perspective argues for justice being served by the method of discourse
  • rules of debate, rules of voting; these are more important than the outcome
  • Feminism finds justice in overturning the grip of men on power in society.
  • Relations among men and women always involve power relations.
  • Women's nature is different from that of men, and women's virtue is equal or superior to men's virtue.
  • Postmodernism calls for reassessing western theory, as telling a meta-narrative about society rather than actually developing a logical scheme of government.
  • there is no universal standard of justice, but multi-culturalism
  • Aristocratic conservatism, left out by Sterba, but included by Curtis, argues that justice requires the better sort of people to govern, generally meaning the upper classes with traditional institutions such as the family and formal churches.
  • declining in western Europe, but still found in Latin America and many traditional societies
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    The Utilitarian Perspective: discussion notes

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    Franz Kafka, The Trial, publ. 1925, written 1914-15
    The Definitive Edition, with Introduction by George Steiner, Trans. Willa and Edwin Muir, Revised Trans. E.M. Butler, Drawings by Franz Kafka. (NY: Schocken Books, 1992. Orig. 1937.)
  • George Steiner, Introduction.
  • Chap 1: The Arrest, Conversation with Frau Grubach; Then Fraulein Burstner.
  • Under arrest by two corrupt, coarse and ignorant warders, later by Inspector in Burstner's room, but none of them knows for what. Three subordinates from bank escort him to work -- so not confined to boarding house.
  • Frau Grubach the fat landlady seems to have learned more from his warders, but not much.
  • K confides in Fraulein Burstner the typist lodging next door. She thinks if a Court of Inquiry is on him its serious but if he is still free he must be innocent. But K rejects her idea that he must be innocent -- he could be just less guilty. He laps and kisses her throat, then breaks away to sleep.
  • Chap 2: First Interrogation.
  • Called at work to interrogation at a subsurban house on Sunday -- time not mentioned.
  • Arrived to find it a poor, crowded tenement block -- at top floor, told to go in to crowded gallery without any sign or introduction. Magistrate declares him late. Left half of crowd silent at each answer, while right half bursts into laughter.
  • K gave dominant speech denouncing the whole process and aware of the Magistrate's secret signals to crowd responses. He exposes Magistrates note book as a sham.
  • Interrupted by man shrieking after embracing woman in corner.
  • Crowd he notices have official badges on like Magistrates and same on both sides of gallery. K strides for door and Magistrate tells him he has flung away all the advantages to the accused of an interrogation.
  • Chap 3: In the Empty Courtroom; The Student; The Offices.
  • Lacking a summons, K returns to court next Sunday lest he be tried in his absence. Receptionist is the Embraced woman he meets again. She is married and the man had been pestering her; her husband tolerates it because aggressor is a [law] student and will be powerful. She lets him see the books.
  • Her home is the anteroom; the Magistrate fancies her & gave stockings; usher is her husband. Husband tells K she really throws herself at the Student. Most cases are foregone conclusions.
  • Clerk of Inquiries (pp.69-70) is well informed and well dressed to make a good impression with clients -- rest are shabbily dressed and live entirely in the courtroom.
  • Chap 4: Fraulein Burstner's Friend.
  • Fraulein Montag moves in with Fraulein Burstner whom he has been unable to see for a few days. Captain (nephew of landlady) talks with Montag and ignores K.
  • Chap 5: The Whipper.
  • K at Bank lumber-room finds former Warders being whipped because he complained of their stealing his clothes, and being corrupt. K tries to bribe the Whipper not to do it -- his complaint is with higher auth, not lowly warders, system is wrong.
  • Much later he opened the door to find everything as before, unmoved, including the Whipper and Warders still with clothes on.
  • Chap 6: K's Uncle; Leni.



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    Film, The Trial, by Orson Welles,
    with Anthony Perkins, Romy Schneider, Jeanne Moreau, 1963
  • Differences in film?
  • long monologue may be translated into dialogue or action
  • scenes may shift order -- but no problem, book is modular
  • scenes are visualized in stark black and white, Hitchcockian lighting, lonely modernist buildings and plazas.
  • is the changed ending, with a different form of death, a waste?  Is it out of character with the book?
  • does the slow pace of the film lose the tension?
  • Is it too slow for modern audiences?
  • how racy was the acting and dialogue for the censors and audiences of 1963?
  • does the film play up the female characters compared to the book?

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    What does Kafkaesque mean?
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    Aristotelian Justice
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