The Judiciary branch

11/21/2013

Federalists vs. Anti federalist

Anti federalist and federalist wrote about the supreme court
federalists thought it was the least power of branch, the less dangerous
o Because it only has the power of judgment.
o It has neither force (energy)- the power to do anything quickly and
effectively
o Nor does it represent any segment of society- removed from people and
interests of society (has no will- not representing will of any group)
o No one believes their interests are presented by the court- has no
popularity.
Antifederalist were worried about:
o Elitism
o Too powerful
o Worried about jury trials because they see a federal judiciary
undemocratic- worried the decision will be made by high elitists than
people from the jury that is like you or me.
Worried that there is a democratic deficit- too much power and too
little democracy. Or, too much coercive capacity and not enough
legitimacy.
o Fears that it provides to much power to government institutions- too
powerful national government.
o They are unelected, independent and unchecked- they are the court of
final decision, there is no one above them
This is dangerous
Federalists
o Say judiciary is not going to have that much power
o That judges and courts are passive institutions- they do not have a lot fo
energy.
o What keeps a court from being energetic?

Court is there to interpret

Have to wait for actual changes and controversy to come to them.
They are reactive institutions
General rules of structure of court to hear cases or not
Standing (the right to sue- generally determined whether you
have individually been harmed and how much)
court will not hear deminimis claims- harmful things that
have happened but they are insignificant.
mootness (it is no longer an issues- has already resolved
itself- court wont hear it)
court determines if it will hear the case or not.
Does this to lessen their work load as well
Lack in their ability to provide remedies
Lack fo scope of what they can do
Can only provide relief for actual litigants.
It has to rely on the other branches for the efficacy of its
judgements- need executive branch to enforce its claims.
Some complain that it is an imperial judiciary (how did we get here?)
o In 1803 with Marbury vs. madison- supreme court decides for itself the
power of judicial review
Basically gives itself a veto power
An absolute veto- if it vetos a congregational act or policy and
deems it unconstitutional, they have to go back and rewrite it.
o Court becomes more energetic- more policy making
o Established agenda control- supreme court could say that it was not going
to take a case
Makes t less of a reactive constitution
Makes the court seems initiative

o Courts developed enhanced enforcement powers

Through receivership
o Congress started allowing court to hear class action law suits
To provide relief to broad classes of people, not just one litigant
o Court becoming much more of an efficient political institutions.
o Court has become much more of a potent institution than framers had in
mind.
o Court is designed to protect from hyper democracy- the minority can win.
See this with racial minorities
Double security (to the rights of the people) this is coined my madison
to show how our freedom is protected (provided by separation of powers and
federalism)
o If congress tries to do something to harm my rights, where can I appeal?
President or courts
On fo the powers of dviding power, one of these institution serves
as an appeal to the others.
o If the national govt seems to harm me, the state govt will protect me,
and vice versa
Baron vs. Baltimore 1833- Maryland taking land away from a man
o This case shows how there is no double security like madison proclaimed.
o Rules against dual citizenship
o Govt cannot protect you from the state
Dual citizenship- every citizen is a citizen fo the nation govt and the state in
which they reside
o Constitution protects you form national govt, not the state.
This changes during the civil war
o 14th Amendment that says there is dual citizenship, but national govt is
not going to let states harm their citizens

this goes against brown vs. Baltimore

Cases came to supreme court known as slaughterhouse caseso Established that govt will still follow dual citizenship than double security.
o Slaughterhouse cases- Louisiana legislature tried to confer a monopoly on
one slaughterhouse which would deprive other slaughterhouses
o Supreme court sides with state
o This goes against 14th amendment in which national govt should protect
states
Nationalization of the bill of rights- taking all the right and apply them nationally
so that all states need to comply. (putting it into the 14th amendment)
o National govt needs ot step up and protect citizens from state
o Happens slowly over time with certain cases
o Selective incorporation- case by case, court determines which rights in bill
of rights are going to be handled by the courts and which ones are not.
Rights that get incorporated into 14th amendment and protected by
the courts are du to selection of the court.
So national government begins to take on a bigger role in protection for rights
Chicago, Burlington and Quincy Railroad vs. Chicago
o Government cannot take your property without just compensation
o Goes against slaughterhouses
Griswold Vs. conneticut
o Right to privacy
Jim crowe car act
o Law that plessy violates
o Plessy vs. Ferguson- segregation is fine; it is separate but equal and is
okay with the 14th amendment as long as the facilities are equal.
Nothing in the 14th amendment that says you need integration, you
just need equal treatment.

This becomes the interpretation of what the 14th amendment means

Often used the decision of plessy vs. ferguson to get better faciliites
for African americans

Liberties vs. Rights

Liberty- is a freedom from government action
o Virtues from birth
Right- claims on government protection
o Citizens can claim government protection
14th amendment
o you are citizens of the U.S. and state where you reside (dual citizenship).
This concept provided by the supreme court in Barron vs. Baltimore
1833
o No state shall
National government is saying you have a right to our protection
Remember that antifederalist were the framers of the bill of rights and the
framers were the opponents
We have double security provided by separation of powers and federalism that
protects us when government itself becomes a threat.
o Can appeal to one facet of the govt (one branch) to help protect you from
the other.

What does the African American civil rights movement say about America?
There is not rank and privilege in America (there is no caste)

all deliberate speed

deliberation requires reason and thought and then reflection
the promise of the schools to do it was okay, we promise but we will get to it later.
In America we are good at promising and putting it off
Two legal strategies used in the civi rights decision
Plessy v.s ferguson 1896- separate but equal is okay
A loss for the civil rights movements
They thought it failed to live up to Americas promise
That separate could nto be equal
The need to separate implied that the truth was no self evident
Once they lossed, they adopted a strategy
Equalization- African Americans working to make their facilities equal.
Okay, we do not like your promise of separate but equal, but we are going to
make you live up to it
With each suit, they provoked the schools, railroad ect. to improve the African
American version
Direct Attack
To differentiate between black and white in America is not equality.
Even though it might be equal, there was still a feeling of inferiority.
Government was either overtly assigning status itself, by passing jim crowe act,
or it was looking the other what while white citizens were making their status
This is government conferring status superiority on one side
This is counter to the idea of the 14th amendment- which is equal protection of
the laws

Direct attack strategy says something bad is being done to people

NAACP focuses on social science evidence- The doll study
o You are not treating the blacks the same and it is doing damage to them
o Used this socially to say something si being done that has a negative
effect on the children

The opinion fo the court in brown vs ed with warren

Pg. 172
schools involved have been equalized, or are being equalized, with respect to
buildings..- saying we are getting to it
o this is the American promise but the low moving of actually doing it
pg. 174 separate education facilities are inherently unequal
because everyone know who passed the law and why
who was being differentiated from who and for what purpose
many people saw this as communist propagandathe promise of getting there is sometimes used as an excuse for not getting there
it was not until civil rights act and voting rights act that discrimination starts to end
and desegregation increases.
Nevertheless, there was a direct impact (Brown mattered)
Minorities tend to loose elections- we not have had a lot fo sway in legislature
Judicial is more of a branch where minorities can win

Because it is a non elected branch of government

The least democratic branch- especially so according to anti-federalist
I am a minority and I loose as at a small level, so we are going to expand the
sphere
o Majorities are dangerous and more likely to exist in small groups.
o Madisons theory of extended republic
o Including more factions
o We are the minority but we are more likely to win because we are not
brought down by a racial discriminatory majority.

Freedom riders- blacks and whites who got on buses and road around the country
Extending the republic
King citing jefferson
People using double security
- both the positive and negative side of the struggle are fundamentally American
this is my stuff and im a private business and I can make blacks sit where I want
in my establishment
everyone is equal and deserves to be protected
note: in brown vs ed is the segregation of schools and subsequent cases arise apply this
to other things (other facilities)
they happen years later
in 1964 congress passes the civil rights act and creates this principle that the
government is not only going to desegregate you, but step in and make sure no one else
is going to either
with private institutions or businesses ect.
This is important because it is important that any individual gets equal protection
from their government
It becomes a right revolution for America in which different groups get inspired by
and learn the lessons of African Americans and use the patters of politics to expand their
own rights revolution.
Ex: the womans rights revolution becomes inspired in 60s and 70s (in
employment law, pay and housing) by the civil rights movement.
They seek to use the 14th amendment for their own purposes.
Americans with disabilities act gets passed in the 90s
This is our pattern of progress, big promise and a lot of hard fought steps to make
the promise real
This si the American dram- we still call it a dream because it never became reality