Write a 600-word (2 page, double-spaced) summary of each day’s material, including: (a) a brief summary and analysis of the day’s reading; (b) any questions or concerns you have about the day’s materi

Democracy 3. The Nightmare and the Noble Dream 4. Judicial Review in the Constitution? 5. Marbury v. Madison (1803) 6. The Impact of a Ruling 1. Basic Definition • Judicial Review: “the power of courts to reach independent judgments about the meaning of the Constitution, and thus to set aside laws, regulations, and policies that conflict with the judicial construction of the Constitution” (Constitutional Law , p. 12). 2. Philosophical Background: Rights vs. Democracy • Rights: entitlements held by individuals. – Negative Rights: “interference shields” (Ronald Dworkin) – Positive Rights: claims for provision • Democracy: rule by “the people.” – People should have a say in laws that affect them. – Because laws affect multiple people, no one has a final say. “Tyranny of the Majority” • John Stuart Mill (1806 -1873): – There is no a priori guarantee that a democratic majority — even an extreme majority — is going to be right in every case, especially where vulnerable minorities are concerned. – So we must protect ourselves from democracy. – This works via the protection of rights, regardless of what democratic institutions decide. Constitutional Protections of Rights • The Constitution provides two sorts of protections of rights:

1. Structural Constraints: structuring the Federal Government such that domination and the violation of rights is less likely 2. Substantive Constraints: rules about the sorts of rules the Government can create and enforce The Supreme Court’s (Ideal) Role • The Supreme Court can help in two ways:

1. Make sure that the system functions as intended, to preserve the Constitutions structural protection of rights and against tyranny. 2. Directly protect rights by reviewing and potentially reversing policy. But why courts? • Plato, in The Republic (380 BC): – “Philosopher Kings” should have ultimate authority over the laws. – But how do we determine who gets to be a king?

And how do we determine if they’re being king correctly? • Is our method of selecting Supreme Court Justices sufficient ? 3. HLA Hart’s “Nightmare and the Noble Dream” • The court’s role as protector of non -democratic liberties gives it extraordinary power.

– :LA :art: “[=]n exercising these wide powers to monitor not only the form and formalities of legislation but also its content, the courts [do] something very different from what conventional legal thought in all countries conceives as the standard judicial function: the impartial application of determinate existing rules of law in the settlement of disputes.” The Nightmare • We expect courts to be impartial arbiters of the law, but the power of judicial review turns them into super -legislatures, by design accountable to no one.

– Indeed, the Supreme Court super legislature is more powerful than the traditional, Constitutional legislatures, as it can, at a single stroke, undo a congressional act, but overdoing a Supreme Court decision requires Constitutional amendment. From Personal to Legal Judgments • Oliver Wendell Holmes:

– The historical development of judicial precedent is not an unfolding of logic inherent in the law itself. – Rather, it is an expression of judges’ “instinctive preferences and inarticulate convictions.” The Noble Dream • Courts in general, and the Supreme Court in particular, seek to find the law’s meaning. – American law is a system , consisting of Constitutional rules and principals (secondary rules), as well as a complicated web of substantive laws (primary rules) – The Court’s role is to make sense of particular cases in light of this overarching system. – When it overturns a specific law, it is because that law is superseded by a more important element in the system. Nightmare vs. Noble Dream • Whereas the Nightmare view sees legal judgments as deriving from judges’ personal opinions, the Noble Dream sees them as deriving from the legal system as a whole. • Legal Holism : the belief that every application of the law is an application of the law as an interconnected whole. 4. Judicial Review in the Constitution?

• Alexander Hamilton (Federalist 78) suggests that courts should be ultimate judges:

– “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” But is the Constitution as clear? Article 3: • Sect 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish…” • Sect 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; -- to all Cases affecting Ambassadors, other public Ministers and Consuls; -- to all Cases of admiralty and maritime Jurisdiction; -- to Controversies to which the United States shall be a Party; -- to Controversies between two or more States; -- between a State and Citizens of another State; -- between Citizens of different States; -- between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” 5. Marbury v. Madison (1803) Statutory Background • The Judiciary Act of 1789 — an act of the first congress establishing the Federal judiciary (as prescribed in Art. 3 Sect. 1) — also enlarged the Supreme Court’s “original jurisdiction.” • Section 13 of the Act: “The Supreme Court… shall have the power to issue… writs of mandamus .” – In English: the power to compel officials to take particular courses of action. Historical Background • After Jefferson defeated John Adams in the 1800 presidential election, Adams and Congress passed the Judiciary Act of 1801, creating new courts, and appointed a large number of new judges to those courts. • Because of the rush, many judicial appointments were approved by the Senate (as required by Art. 2 Sect 2 of the Constitution), but were not delivered by the Secretary of State. • Marbury, one such judge, brought a case before the Supreme Court, attempting to compel the new Secretary of State (James Madison) to deliver his commission. Questions in the Case 1. Do Marbury and others like him have a right to receive their commissions? 2. Can Marbury sue for his commission in The Supreme Court? 3. Does the Supreme Court have the authority to order Madison to deliver the commissions? The Court’s Ruling, 1:

The Main Questions 1. Marbury and others like him are entitled to their commissions — in not delivering them, Madison is breaking the law. 2. However, the Supreme Court does not have jurisdiction in the case, because Section 13 of the Judiciary Act of 1789 improperly attempted to extend the Court’s Constitutional authority beyond that laid out in Art. 3 of the Constitution. 3. Because it does not have Constitutional authority, the court cannot compel Madison to deliver the commissions. The Court’s Ruling, 2: Judicial Review • Ironically, by declaring Sect. 13 of The Judiciary Act of 1789 unconstitutional, the court both:

– Denied itself a specific area of jurisdiction (writs of mandamus ); while – Giving itself broad authority to declare acts of government unconstitutional — that is, creating the power of judicial review . In Defense of Judicial Review • Chief Justice Marshall: “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” • The Constitution needs a protector. Is Marshall Correct? • HLA Hart’s Example:

– Imagine a group of friends meeting weekly to play basketball. – No need for a referee: they all know the rules , and can call each other on any infractions. – If there is ambiguity, they can call on a book of rules. – As the game is visible to all, the possibility of cheating is no greater than with a referee present. • Are there any cases where a referee would be necessary? Two Uses for Referees (or Supreme Courts) 1. Authoritatively settling ambiguities.

– The rules of sports (and laws) are neither self - applying nor self -interpreting. – Because there is room for reasonable disagreement, even well -intentioned competitors (or politicians) may fail to come to agreement without an outside authority. 2. Preventing self -interested judgments. – Players and politicians can both be jerks. What Referees and Courts Can’t Do • Imagine an un -refereed game, wherein both teams start calling things in their favor, regardless of readily observable facts.

– Very quickly, they wouldn’t be playing basketball anymore. The rules wouldn’t matter. • Once teams have decided to stop playing the game, the presence of a referee wouldn’t help anything. Teams could just ignore them.

– Similarly: if political actors disregard the Constitution, they can also disregard the Court’s Constitutional authority. Marbury Revisited • If political actors choose to pass Constitutional limits to which they should be subject, a Supreme Court may just be another limit they choose to pass.

– Andrew Jackson, after Worcester v. Georgia (1832): “[T]he decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.” – Apocryphally: “Hohn Marshall has made his decision; now let him enforce it!” 6. The Impact of a Ruling • Marbury gives the court the power to rule an act of Congress or an action of the Executive unconstitutional. But what are the real consequences of such a ruling? • What does and doesn’t happen:

– The Supreme Court cannot erase a law from the books. – Rulings only directly apply to specific cases. – But, through precedent, the court in effect promises to rule similarly in the future. – Political actors typically act accordingly. When Things Go Wrong:

Segregation After Brown • Brown v. Board of Education of Topeka (1954) : – Overturns Plessy v. Ferguson (1896), which held that segregation is constitutional under the 14 th Amendments Equal Protection Clause provided that things are “separate but equal.” – Brown: separate is inherently unequal when it comes to race. • Brown v. Board of Education of Topeka II (1955) : provides practical guidance for desegregation. • “ Brown III”: in 1993 (!), Supreme Court affirmed (by denying a hearing) a lower court’s ruling that Topeka still hadn’t done enough to overcome segregation.