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Martin Luther King- Letter from a Birmingham Jail (1963)
Importance of Natural Law
Calder v. Bull (1798)
Chase writes in favor of Natural Law and Iridell is opposed
Bentham- \\\"Anarchical Fallacies\\\" (1816)\\\"
Calls Natural Law \\\"nonsense on stilts\\\"
Holmes- \\\"Natural Law\\\" (1918)
\\\"Certitude is not the test of certainty.\\\"\\\"Can\\\'t helps. Contra formalism.
Holmes- \\\"The Path of the Law\\\" (1897)
Law is just a prediction of what the courts will do. \\\"\\\"Bad Man\\\"\\\" theory. Contra formalism.
Austin- \\\"The Province of Jurisprudence Determined\\\" (1859)
\\\"Law is the enforceable command of the supreme political authority.\\\" Expounder of positivism
Chafee- \\\"Do Judges Make or Discover Law?\\\" (1947)
Formalists see law as an unexplored continent; positivists as a skyscraper.
United States v. Butler (1936)
Justice Roberts says to compare the statute to the relevant passage of the constitution
In re Winship (1970)
Noted for Black\\\'s dissent: \\\"Beyond a Reasonable Doubt\\\" is not in the Bill of Rights
Zander- \\\"The Law-Making Process\\\"(1980)
How should judges divine statutory law? Golden Rule- Literal Rule or Mischief Rule?
Literal Rule (Zander)
Courts should take the statute literally- even it it is absurd
Golden Rule (Zander)
Courts should follow the literal path *unless* it results in absurdity. But what is an absurdity?
Mischief Rule (Zander)
Courts should ascertain what mischief the statute was designed to end. INTENT!
Scalia- \\\"Originalism- The Lesser Evil\\\" (1989)
Trying to divine legislative intent is a bad idea� we should look to the constitution
Breyer- \\\"On the Uses of Legislative History\\\" (1992)
Judges should use legislative intent
Scalia- \\\"A Matter of Interpretation\\\" (1997)
Judges should NOT use legislative intent (hilarious Dole excerpt)
Holmes- \\\"The Common Law\\\" (1881)
Law is just a prediction of what the courts will do. \\\"Bad Man\\\" theory. Contra formalism.
Levi- \\\"An Introduction to Legal Reasoning\\\" (1949)
Stare decisis is efficient- fair- and stable. BUT each case is unique! So- judging is choosing.
California v. Carney (1985)
Can the police search a mobile home? Is it a car or a home? Proves Levi\\\'s point.
Kennedy Interview (2005)
Kennedy admits that he makes a judgment first and then looks to the Constitution to back it.
Two Types of Judicial Review
(1) A state law is ruled unconstitutional- (2) A federal law is struck down. But is (2) legit?
Dr. Bonham\\\'s Case (1610)
Only act of judicial review in British history. Judge Coke. Appreciated by revolutionary Americans.
The Council of Revision
Would have made the Court a proactive body. Shot down at the Convention.
Federalist 78 (1787)
Hamilton argues that the Court is \\\"the least dangerous branch.\\\" Assumes judicial review.
John Marshall
law is just a prediction of what the courts will do. \\\"Bad Man\\\" theory. Contra formalism.
Marbury v. Madison (1803)
Is this a Constitution? Then it must be different and more powerful than law.
Charles Beard- \\\"Usurper or Grantee\\\" (1912)
Attacks both the Court and Judicial Review
Eakin v. Raub (1825)
Judge Gibson\\\'s attack on judicial review
Thayer- \\\"The Origin and Scope of the American Doctrine of Constitutional Law\\\" (1901)
Judicial Restraint expounded. A law should only be struck down if it is \\\"a clear mistake.\\\"
Learned Hand- \\\"The Contribution of an Independent Judiciary to Civilization.\\\" (1944)
Ultimately- the Court cannot save society from itself.
Monaghan- \\\"Our Perfect Constitution\\\" (1981)
defense of Judicial Review. Majorities can act in undemocratic ways- e.g. White Primaries
Posner- \\\"What Am I- a Potted Plant?\\\" (1987)
Pragmatic. Not deciding is also a decision. Judges can and should look at consequences!
Rostow- \\\"The Democratic Character of Judicial Review\\\" (1952)
Defense of Judicial Review. Majorities can act in undemocratic ways- e.g. White Primaries
Grodzins- \\\"The Federal System\\\" (1957)
Marble cake federalism and layer cake federalism. Marble cake ain\\\'t FDR\\\'s fault!
Jefferson & Hamilton on the Bank (1792)
Classic debate of strict vs. loose construction of the Constitution
Federalist 44 (1787)
Madison defends a strong central government and the Necessary and Proper Clause
McCulloch v. Maryland (1819)
1) Creates implied powers- 2) Reaffirms national supremacy- 3) The SC umpires fed. disputes
Marshall- \\\"The Constitution: A Living Document\\\" (1987)
Since the original constitution contained slavery- it had better evolve
Rehnquist- \\\"The Notion of a Living Constitution\\\" (1976)
It is not for the Court to protect the dispossessed--this is antidemocratic
Pennsylvania v. Nelson (1956)
Preemption: The Smith Act voids PA Law. 1. Dominant- 2. Pervasive- 3. Conflict
Federalist 51 (1787)
Madison writes that \\\"ambition must counteract ambition.\\\" Need for three separate branches
Diamond- \\\"The Founding of the Democratic Republic\\\" (1979)
The founders made the executive as strong as they could
Dahl- \\\"Decision-Making in a Democracy\\\" (1958)
The courts are a constitutional rubber stamp for the prevailing political consensus of which they are a part.
Casper- \\\"The Supreme Court and National Policy Making\\\" (1976)
Dahl is leaving out intepretation of state law and interpretation of statute. And the Warren Court
Ex Parte McCardle (1869)
Court stripping okayed by the Court
Senate Debate of Helms Amendment (1981)
Proposed to strip the courts of the authority to hear cases about religion
INS v. Chadha (1983)
Kills legislative veto. White makes a functionlist case for keeping it. Practical jurisprudence.
Federalist 70 (1787)
Hamilton argues for an \\\"energetic executive\\\"
Cronin- \\\"The State of the Presidency\\\" (1977)
We want the president to be all things to all people. It\\\'s impossible.
Lincoln\\\'s Letter to Hodges (1864)
Presidents might have to sacrifice part of the Constitution to save the whole Constitution
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