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Lecture 6

Complete Lecture 6 Notes

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Boston College
Political Science
POLI 2327

9/19/13 Lecture 6 • Constitution isn’t just being interpreted by judges, but also being interpreted by president, congress, legislatures, average people o Disagreement on what it means • Judicial review = when a court assesses the validity of a statute either passed by congress or state legislature and whether it upholds constitution or if it’s void o State statute = Vertical review o From congress/branch of government = horizontal review • Chase and Iredell over reasoning of court’s decision o Chase = is it reasonable, fair and just? Appeals to higher law o Iredell = court isn’t in position to base things on higher law…can only base on positive law (law made and set out by men)  Doesn’t say he doesn’t believe in higher law…just making a statement on a judge’s job, which is to enforce the positive law…anything else is outside of his range/expertise o Debate will not be resolved and never really goes away • South comes to have a positive law argument about constitution as a whole o Constitution envisages and protects slavery (3/5 and fugitive slave law)  You could say whatever you wanted about natural law, but they made a bargain that they could keep slavery if they signed the ratification….it was a positive law o Radical abolitionists (William Lloyd Garrison) said that positive law of Constitution DID protect slavery…which is why we’re all going to Hell, and he sees the Constitution as invalid because of that o Frederick Douglas said that the only way we could read the Constitution on the fundamental goal of the Declaration  Founded the country to protect freedoms • Constitution protects higher law and doesn’t make sense outside of it’s realm o Lincoln takes both rights…said that positive law only protected slavery in where it ALREADY existed….not when moving forward with the country  Will stick to the bargain, not trying to remove slavery • South saw that we were moving west, were losing power, and law would be breached • Constant sense of moralism, expressed in fundamental rights o Anything that violated these rights couldn’t be included with the constitution • If you just believe in positive law, you look like a Nazi…just following orders whether they are right or not o If you have a higher law regime, you have a bunch of people with morals/moralizing and are imposing their laws on you antidemocratically • Will see this argument again in Fletcher v. Peck o First case of judicial review where supreme court invalidates a state law  Law involves a land grant in Georgia o Georgia used to own Alabama but their legislature was bribed to sell land to developing company  When people found out, legislature was totally voted out of office • Innocent buyers of this property, so when state of Georgia took the land back, they sued o Article 1, Section 10: No state Shall…  Impair the obligation of contracts • Georgia’s decisions to take back the property violated the clause o Marshall voided the law and contradicted contract clause  Fundamentally unjust to violate a contract • Thomas Jefferson was NOT an anti-federalist • Anti-federalist believed in state rights and were suspicious in federal government/president o Accept the constitution but the Jeffersonians adopt a lot of the same views as the anti-federalist, but it’s about what the constitution MEANS now…they don’t oppose adoption of the constitution • In issues of design, there are issues of interpretation o Same issues start to split the Washington administration • When country first started, didn’t believe in political parties o Care about public things and don’t do things for their own selfish interests • When George Washington becomes president, makes Jefferson and Hamilton part of his cabinet o Fought like cats and dogs….complete opposites  Both are smart and aggressive • Fight a lot on what the Constitution means o Jefferson resigns, recruits James Madison and forms the Democratic – Republican party  End up with Jeffersonian and Hamiltonian views of how to interpret the Constitution • Jefferson is… o An aristocratic intellectual o Believed in farmers and rural life  Believed in the common person o Hated commerce and cities  Didn’t like business much o Was a slave holder  Uneasy about slavery o Strong defender of the Bill of Rights o Strict Construction of the Constitutions  Interpret it very jealous against government power • State’s rights • Suspicious of courts/judges • Hamilton is… o Immigrant who is born poor  People didn’t really know where he came from o Deeply suspicious of popular government  If you put the people in charge, you’ll get a lot of dumb stuff because they are full of passions • Need a government who can rationalize o Loved banks, cities, law firms, property rights, commerce, and capitalism  Real financier o Founder of American anti-slavery society o Pro national power and judiciary o Take it or leave it fan of Bill of Rights • Hamilton starts winning and federalists gain control of the government o Chief Justice Marshall was in tune with Hamilton  Copied arguments Hamilton fought while upholding his view of Constitution • Federalist vision that emphasized commerce, banking, promotion of industry o Gets sanction of supreme court opinions  Really a
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