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I.

Philosophers conception of the State and its functions of Society


A. What is writers conception of law? Ideal, imperative, combination?
B. What is writers conception of justice?
C. What basic assumptions about human nature does writer make?
D. What basic metaphysical / ethical assumptions does writer make?
E. What basic political / governmental doctrines does writer adopt?
F. What means does writer purport to support his basic principles and conclusions?
1.

how does he say we know / can know these things?

G. What ideas did writer derive from previous writers and what ideas were original?
1.

Alfred Northwhiteheadhistory of western philosophy is Plato in footnotes.

H. What circumstances in life of writer help explain some aspects of their philosophy? (Hobbes)
I.

What circumstances in writers contemporary social setting serve to explain his ideas?

II. Concepts from branches of philosophy:


III. Study of ethics; to what extent does law reflect societys morals?
A. Ethics v. Morals:
1.

Ethics is more universal and eternal system that exists of its own accord.

2.

Morals depends on Time and Place.

3.

ex. lady walks around topless violates public decency law that reflect communities morals; but hasnt violated an ethical
norm (do unto others as you would have em do unto you)

4.

ex. spring break orgy could violate ethical norm but not moral norm.

B. 2 Systems of Ethics:
1.

Virtue ethics: Aristotle. Human virtues (pursuit of justice); Character & nature of humans is separate from animals.

2.

Intention ethics: deontologicalbased on concept of duty;


a) Intent of the act fixes the ethical boundaries of what he does. Must act so rule applies universally.
b) Focus on individual will / liberty; individualistic, less communitarian
c)

Ex. criminal proceedings. Criminal made ethical boundaries (do unto others) and ct. proves it by executing.

C. Result / effect/ harm ethics: utilitarian; pleasure /pain; ethics precedes the human conduct that its measured against.
1.

Measure goodness of an act by pleasure/pain it effects/produces (if it feels good, do it); so ethics has to precede human
conduct; Ethics of an act is measured by what is produced since ethical system has to precede it.

2.

Knipprath is unpersuaded by this cuz ethical system has to precede the human conduct thats measured against the
ethical standard. Have to be careful it doesnt slide into ethical relativism cuz then not theory of ethics anymore

IV. MetaphysicsGreek meaning After Nature; Aristotles work the metaphysics; after book physics;
A. Theory of Being; what is existence, life, etc.; most philosophical;
B. Contrast 2 diff. schools:
1.

Nominalismhaving a reflection of reality in symbols but all they are is symbols that we make to stand for things.
a) Ex. The symbol rose describes a reality that we see; form of human convention/artifice. Word Rose is something
we make up to describe certain flower; the Language is not the issue, only convenient way to describe the symbol;
b) Doesnt describe a separate reality itself or why there is a Rose.

2.

Realismopposite of nominalism; essence of classical metaphysics; Innate existence.

a) Ex. Rose reflects an actual existence out there, not just a symbol; call it anythingIt still reflects essence of the
rose.
b) Platosense that there was actually sumpin out there that was the perfect rose.
c)

Aristotlenot as strong as plato, but believe sumpin out there too.

C. Its either a human construct or essence of sumpin.


V. Epistomologytheory of knowledge. What & How can we know anything? How know if there are essences?
A. Basis for knowledge:
1.

Experientiallythru sensory perceptions; sight, smell, etc. but senses can be misleading (ex. witness testimony)

2.

Reasonusing logic; aristotlego thru process of logical reasoning


a) inductivebased on observations OR deductivebased on agreed upon rules that must be

3.

Revelationproblem: who is your revealed source? If its just another human authority, how know hes right? If its
god, how know?

4.

Aestheticsif looks beautiful; greeks.

VI. Conflicts / Tensions:


A. Change v. constancy
B. Becoming v. Being
C. Artifice (artificial/artist/created) v. Nature (essence)
D. Opinion v. Truth
E. Positivism v. Higher law (theory of Natural law)
1.

ex. is constitution positivism or higher law?

F. Individuality (liberty) v. Commonality (equality)


1.

what makes us unique v. what makes us alike.

VII.HISTORY:
A. Storytellers tred to explain existence and being by supernatural.
1.

ex. Iliad: Gods in control and they were spoiled brats.

B. Philosophers overthrew storytellers in explaining being and existence.


1.

Pre-Socratics: from cities/ Athens. Constant change.


a) Dismiss storytelling and Gods cuz what they do concerns them and not us.
b) Explain being & existence thru observation & human reason.
c)

Beginning of Western humanism.

d) Materialistic in the sense of reducing everything down to certain material things


e)
2.

Rules of form is a world of true being, instead of movement to a final goal, some end.

Sophists: have a bad rap cuz what we know of them is from Plato who was a vigorous opponent.
a) Teachers of rhetoric, from non-Greek areas. Came to Athens and started tearing them down saying their laws are not
justice but mere tools/ opinions of their rulers; that its a place of positivism w/no essences.
b) Everything is a struggle of all against all. Everyone has to rely on own capabilities. Were gonna teach your sons
how to compete in this environment and how to succeed by fooling ppl into going along with what you want to do.
c)

Response to sophists. Coincided with horrendous defeat of large & wealthy Athenian navy by Spartan army.
Socrates reaction to this decline of moral values in Athens is

I.

Socrates: left no writings, so what we know of him comes from students, Plato. Ugly & large; made a nuisance of himself by
asking questions surrounded by I dont really know, but what do you think when it was obvious he did know or had strong
opinions on it. Ironic cuz his philosophy was against corruption of Athens, and he was convicted for corruption of Athens.
Socrates was given opportunity to leave but he lived under those laws all his life so stayed.
A. Socratic method: know nothing and ask questions. Made opponents look like fools.
B. Pythagorus: Philosopher King. Overthrown. Theory of music & mathAll reality/being is explained by numbers. Can
define anything in physical reality by numbers 1234 & related to harmonies. Set of laws (numbers) controlled all reality.
Numbers had an existence.
C. Platofather of metaphysics. Socrates Student; Pessimist about human nature.
D. 427-347 b.c. (80yrs); tall, broad shoulders (nickname reference), handsome. From well connected family to oligarchic and
democratic factions. After Socrates died, left to Egypt. Tried to make Egypt a philosopher king, failed, came back to Athens
and made Academy in 386 b.c. Earned living as stone mason, but staged life as philosopher.
1.

Doesnt rely on Gods, but on power of human investigation. To what extent do you rely on human observation or
reason? Wrote on lot of topics: Symposium (homo-erotic), friendship, science, individual, psychology, politics, human
existence and being. Socratic Dialogues: The Republic. Way of thinking of Being, knowledge, ethics, truth

2.

Republic is his major work. Exposition of the best or ideal govt. Greek superlative for word good/best is asbestos.
Pure aristocracygovt of the best.
a) Plato and Aristotle
i)

tried to reconcile tensions (change v. constancy, becoming v. being, etc.)can only have one or the other.

ii) Becoming (telos): greek view; things move towards an end. Central to Plato and artistotle thought.
b) Being v. becoming: immaterial reality.
i)

Defined physical world of becoming (senses and physical matter);


(1) Counter is being (non-physical and knowable by human reason).

ii) There was a Beingactual ideal thing (rose). On earth, we have an imperfect rose.
(1) Chair could be used for firewood (physical use could end) but form of the chair doesnt change its
existence. Being is in the minds eye, not just sensory. Existence is permanent. Material v. essence.
(2) Applied to Human activitiesImmortality of the soul...doesnt end with death.
c)

Political and legal obligation and authority. What is difference between irs and highway man, murderer and govt
/police killing.

VIII.

Theories of Power v. Law

IX. Theories of Will v. Reason


I.

Platos Republic: dialogues; very conversational. Later book becomes more like monologue so ppl think it could be more of
Plato talking rather than actual conversations with Socrates. Ideas of Justice:
A. Glaucon (Platos older brother)justice arises from desire of weaker to protect em from stronger
B. Polymarcusretributive justice; to give each man his due; could include hurting some1
C. Rescimicus (bad guy; leading sophist)justice is whatever the stronger party says it is in his own interest;
1.

mocking pretentions of Athenians idea of justice.

D. Socrates rejects all of these theories. To sometimes hurt someone is not justice (polymarcus).
1.

Justice is achieved by educating ppl so they have knowledge to live according to reason, and not to be fooled by mere
physical appearances; reason allows us to see the truth and not live just according to opinion.

2.

Physical appearances are fallible.

E. Plato uses 4 devices to make the point of conducting yourself according to reason and not mere opinion which is distorting/
fallible physical appearances.
1.

allegory of the cave: imagine you being chained in a cave w/ everyone. Cave represents visible material world. Behind
you theres fire burning and light causes shadows to appear on wall of cave. This is all that you know so you believe the
shadows are reality cuz thats all you see. Human fallibility of sensesmistake what you see for reality. Imagine if
you are unchained and go outside cave. Light is blinding at first, but eventually adjust and what you see in the light of
day is the intelligible world. Imagine looking at suncant cuz too powerful, but eventually take a glimpse. This is the
highest form of allthe Supreme Good/God which you can only contemplate it in glimpses cuz too overpowering unless
educated. Now that youve seen the light, dont wanna go back into cave cuz theyll think youre mad but you have a
duty to go back and rule the republic. Idea of the Philosopher King: Once you gained the knowledge and seen the
light, you understand justice & virtue, you must rule.
a) when you die, your soul is released from the material prison; eternal existence of soul; to philosophize is to prepare
you for death and the release of soul

2.

analogy between ruler and physician: each must have true knowledge/science for his position.

3.

parable of the ship of state: ships Master is the mass of peoplephysically imposing but ignorant and short-sighted.
Crew is the collection of corrupt politicians that inevitably arise in democracythey flatter, cajole, etc. to manipulate
master to do crews bidding. Navigator is the philosopheronly one with knowledge of sailing ship properly,
applies reason and science to that task; ignored by crew w/ terrible results.

4.

analogy of soul: soul has 3 parts:


a) rationalchariot tier; trying to control two horses (obedient one, and unruly one)
b) spiritedobedeint horse; reacts well under direction; prospers as human being
c)

passionunruly horse; reptilian part of human brain

d) Guardian Class (rulers) Men of Gold


e)

Auxiliary Clsss (soldiers) Men of Silver Horses

f)

The Many (Hoi Palloi) Men of Bronze Oxen Hoplites

g) Majoirity of ppl will always succumb to passions. What feels good, must be good; confuses product of passion w/
what should be product of reason. They indulged in poetry and fiction, listening to wrong kind of music, which
causes you to be ruled by passion rather than reason. Instead, you need early education in gymnastics, martial arts,
math, etc. that will train you properly and incline the soul to virtue. Then you need long years of education, then
apprenticeship in ruling until age 50 (not fit to rule till age 50). To run things well, have to be a professional
politician. Training only works for those with the proper raw materials, and for that you need breeding by
successful. If children dont breed true, expose them to die. Education can only go so farneed raw materials.
Different folks have different raw materials (genetics). Its not all nature or nurture. Intelligence is 85%
hereditary. Must have basic raw material, then add training to that.
h) Criticized Athenian system: Lot of idiots ruling v. one idiot doesnt make a better govt. Aristotle said lot of idiots
cancel ea. other out. Majorities doesnt establish truth. Realistthere is a reality out therenot just by people.
F. Platos republic Requires:
1.

Qualified women must be allowed to hold political power cuz there are so few ppl that will have raw materials +
education, we have to expand the pool and include women.

2.

Abolition of the nuclear family & private property among the guardian class: to avoid temptations from passions that
would lead to nepotism, accumulation of wealth. Eliminate obligations to family and distractions from wealth to
keep focus on reason. Also eliminates intra-class competition that would undermine stability of govt. Guardians are
like musiciansdont want em to compete but play as a whole.

3.

Aristocracy has to wield absolute power; no division of power.


a) republic cuz aristocracy is not inheritedit is a meritocracyprivilege of birth doesnt give you right to rule.
b) True knowledge will rule; no use for law, rather based on exercise of power by this aristocracy. Law is personal
embodiment of reason so guardians are like the law.
c)

Virtue of individual & state connected (pursued justice, recognized true state of things cuz ruled by guardians)

G. Written at time when Spartans (country bumpkins) overthrew Athens (civilized democracy).
1.

Plato say Sparta is a corrupt form of govt but stable. 2 kings in Sparta who didnt have absolute power.

H. Book 9: ideal states might become corrupt and unstable. If become unstable, no longer achieving basic goal of all govts to
provide stability by ruling justly (not just with power).
I.

4 types of corrupt govt:


1.

Timarchyruled by military; like Spartan govt; degenerates into oligarchy cuz military training stresses self-denial
and restraint, and used to taking orders. This makes them easily let and manipulated by offering luxuries.

2.

Oligarchylove of $$$, interest of gaining wealth so dont have proper training; too few and cant defend city; lots of
intra-class rivalries cuz competition for wealth and leads to instability; the wealthy are truly unhappy individuals,
leading the worst of lives cuz attempt to protect their wealth; degree of unhappiness = injustice.

3.

Democracylives for pleasure of moment; doing what he wants at that time; may appear to be happiness, but isnt cuz
happiness is not just sensual of senses, but long term living by virtue. Instable govt cuz increasing role of demagogic
politicians and this is okay with the people long as can steal from the rich. But when rich is gone, there is deficit
spending (take less, pay tax) so demagogs become tyrants and rule with brute force.

4.

TyrannyTyrant eventually driven by passion in deep recesses of desirestops at nothing! Craves murder, bestiality,
etc. Tyrant becomes slave to this passion. Dissent of state follows dissent of its ruler.

J.

I.

Spartans oligarchy survived longer than Athenian democracy but Athens still lasted quite long.

Aristotle: one of Platos students. Optimist of human nature; Went to platos academy as a teenager; one of worlds premiere
philosophers and used as a counterpoint to plato. Took on many same assumptions as plato. Less known for law...more for
philosophy and politics; Father of natural law but not really productive in natural law; more theory of natural justice.
A. Background: Born in 384 b.c.; Father was court physician of king of his town. Started Platos academy at 17 and left after
platos death. Then studied marine biology. Married 1st wife, a masedonean. Tutor of king philips young son Alexander.
Went back to Athens in 336 and now a foreigner so couldnt own property even though masedoneans beat Sparta and ruled.
Started school Lasaum. Wrote Politics. Able to receive artifacts and stuff from other parts of the world thru friends of king
so continued scientific inquiry. In 323, Alexanders death led to unsuccessful revolts. Aristotle, sensing political heat, retired
to city of baboa and died next year. 1st time he left, was cuz death of Socrates.
B. Theories of natural justice. Quite the renaissance manwrote on biology, nature, physics & astronomy, metaphysics,
politics, logic (influential in western history);
C. Interested in nature of change. Attributed change to motion (ex. acorn growing into an oak); Motion is anything that
produces change, it is inward directed/produced and that causes things to change.
Becoming and Being explanation4 causes of anything (causations): (to explain Change & Motion)
1.

material cause (what): ex. material cause of podium is wood. The Plastic of a Pen.

2.

efficient cause (who/what): the one who made the podium; who caused it to be a being. Pen manufacturer.

3.

formal cause (how): what makes it a podium in the sense of the structure. What we have in our mind as a podium. Idea
of the craftsman of a pen. A standard in our mind.

4.

final cause (why): purpose / essence behind the thing. Cause that exists to begin with/ ultimate cause. Why does
podium exist? Main causefunction/purpose of pen. Or chair.
a)

Today, in science, we dont ask the last final cause Q; Area of science that asks the last q is in life sciences (biology).

b) Our view of causation is not as complete. We dont usually ask why, but rather who, when, how (ex. car accident)
but may ask why when it comes to punitive damages and motive.
D. How can things be diff. & same? Trying to reconcile change and how things stay same (similarities). That which makes us
alike & that which makes us different. Equality (similarities) v. liberty/individuality (differences).
E. No difference between natural and artificial; could apply explanation to both natural & artificial sphere (acorn &
podium);
F.

How does it apply to natural things? tries to reconcile becoming with being by change / essence. Acorns dont grow into
humans, dogs, sunflowersthey grow into oaks. Acorn has potentiality of becoming an oak at all times so has oak in its
nature/essence. Purpose of acorn is to become an oak. The thing has the essence w/in it all the time. River has its
essence. How explain change & continuity? Acorn is diff. from oak, and dont grow into dogs. Why? Efficient cause of
acorn is the previous oak, final cause of oak is to be an oak, formal cause is in the acorn itself & its always therelong
as its in the right environmental conditions, itll grow into an oak, not a dog. There must be something there from the
beginning that directs that growth (its form, nature).
1.

PLATO says theres a real form, another world that we must look up to and everything material that is here is conformed
to that higher form and is imperfect.

2.

Arist. looks at nature, observations of here and now, uses reason to induce certain principles you can discover to have
meaning. Everything has within it, its final cause which is going to be consistent with its formal cause (essence of
the thing). Formal causethat which ultimately causes us to be human; final causewhat makes us human (why).

G. How determine essence of things? the purpose? (last q). it is the essence that unites all things that are similar.
Universality and equality among all acorns of having the essence of becoming an oak. Humans all have that essence that
makes us human, making us different from all other thingsour essence is diff. from others, and alike to unite us.
Describes humans as a political animal to distinguish from bees. Bees are social animalsthats what it means to be a bee
(final cause) but different from us cuz we are more than just social, we are political. Distinguished from brute beasts by our
ability to express ourselves beyond animals with: (we have an ability to engage in abstraction that animals simply cant)
1.

language & reason

2.

This allows us to think about things like right & wrong. It is an imposed obligation and natural to move towards the
ultimate end to be all that we can be as humans. Inward nature moves us in that direction final cause. Type of virtue
ethics; requires us, and we are inclined by nature, to achieve what is virtue/right for humans. But circumstances
must be right to achieve this. So education and training important. Achieve this by:
a)

familyit is a necessity; natural institution; need it to achieve the ultimate humanity; to fulfill potentiality.
i)

In family, no law. Decisions are made by father or head of family. Some predictability, but no formal
procedures like law. Rules are made up as the occasion requires. Royal Rulefather/husband has power to
decide by virtue of natural position in the family (not negative sense of royal); it is within womens nature to
be ruledthat is their essence. Diff. between nature of things v. the right thing. Discover truth by observation.
Husbands role is Royal, not tyrannical (shouldnt go around acting like an ass). Looks out for best for the
family. Beyond the family, intermarriage, etc. = Clan. Governed by a King / Chief cuz supported by blood
relations. Not like law as we know it.

b) Policean animal that thrives in a police (politics, religious). State of nature outside the police is not a good thing
man thrives in a police. Police is much more enveloping than merely a political organization (performing a
function). Policecommunity, way it envelopes you. Human development is best achieved in the police.

i)

Law only exists in Policeonly time there is a need for it. Law is an artificial human construct. Natural justice
theorist: Law is ultimately connected to natural justice.

H. There is an end for everything, even if its artificial (there is a final cause for a chairto do what its supposed to)
I.

Virtue Ethics: virtues are courage, temperance, practical prudence, justice. Most important is justice. Believed everything
in moderation (Advocate of all things in moderation), nothing extremeexcept when it comes to justice.
1.

couragemean between cowardice & foolhardiness. Being able to judge when its okay to put life on the line. Saving a
pet from fire would be stupid.

2.

temperanceeverything in moderation; something in between. Mean between enjoying bodily


pleasures/urges/drunkenness & tea totaling.

3.

practical prudencedont be greedy, but dont get taken advantage of eitherstand up 4 yourself.

4.

justicegiving person what hes due; theory of reciprocity: each person should get the same as the other; when dealing
w/ state, where u expect sumpin from community, it is a legal justice (connected to natural justice). What state expects
from you is different, not equalmay ask rich to give more and that also meant power. Identify individual in a case and
giving the person their due, giving fairness is naturally just. There is no extreme here so no mean. Justice just is.

J.

All the above 4 go to virtue of treating ppl justly. Socrates says become virtuous thru knowledge.

K. Knowledge is not enuf. Virtuososomeone who is good at somethingroman means mangreek means arite (same as
aristocracy). Achieved through doing it, practicing till become good at it and thats what makes us work so well together and
be best we can be. Practice temperance; work at it. We are naturally inclined to move in that direction and be virtuous so
practice by habituation. Practice being courageous, and just. Doesnt come automatically so practice. Justice is highest form
of all the virtues and ultimately helps us get along with other humans. Law helps us live w/ each other in the policeits
necessary for us to achieve our essential humanity. This is all related to concept of natural justice. Ultimate end is to achieve
our highest potential of fulfillmenthappiness.
L. Problem: how do u know what is the nature of things? epistomoligical approach: by observation, use senses and engage in
reason to reflect upon what appears to be the nature of things and draw rules from those then move on to whats right and
wrong. We can figure out what is human essence/nature and from that, decide what is good. To achieve the reality from our
potentiality. Observation & Reason reflecting on nature.
1.

Institution of Slavery. All cities are slaveholders. Observation and reason says slavery is natural but that dont make
sense cuz when youre a slave, youre not free to develop virtues and move toward being ultimate human. Inconsistent
with his theory so cuts baby in half and says some are slaves by nature and others arent. There are external factors that
wont allow slave to reach their potential (defective gene or sumpin) so theyre better off as slaves cuz wouldnt be able
to succeed otherwise and wouldnt enjoy it anyway. Still contradicts idea of the humans essence though cuz what about
slaves that were taken captive? How are they slaves by nature?

M. essence, policenatural institution requires for our fulfillment, law, justice,


N. Justice and Equity. Role of Judge. Law is made by legislature. Written generally cuz there are things they didnt think about
when writing it. Then things arise that make the application of law difficult or unjust. Judge must apply the law in way
legislature wouldve written it as if addressing this issue. Judge must perform equity: law v. equity: trying to do the right
thing, achieve a balance between two parties, an equal exchange, to do justice in the particular situation/case where law itself
would result in unjust situation. Judge is inferior to legislature. Has to do the right thing so it doesnt violate justice.
O. Politics book: not that influential in antiquity, esp. compared to Platos work; lot of this work was lost in the west. In the
east, translations were made and studied in universities till found its way to Spain. And finally latin translations made from
Arabic translations.

1.

diff. from his other works and the republic; has tone of an unedited work but very readable; (topics are begun,
stopped, started again later from diff. perspective/terminology); couldve been a collection of students notes of
artistotles lectures;

2.

Addresses what is the best state? What is ideally the best state/ practically achievable as the best state? Inconsistent.
Uses the usual greek forms of good & corrupt govt (monarchy corrupt to tyrannynot oppressive but having gained a
power contrasting constitution) (good form: aristocracy into oligarchy) (republicgood degenerates into democracy
corrupt) politeaconstitutionally mixed govt; mixture of oligarchy and democracy; pure form of govt; practically
best form of govt is this mix; democracy is a lawless tyranny; cant distriinguish between assembly of ppl v. single
tyrantboth rest on power. Mixed form of govt could exist in practice and could be good thing; could provide stability

3.

arist. Doesnt advocate mixed system of monarchy, aristocracy, democracy. This mix was present in Spartan constitution
he was aware of it and disapproved of it. Such a govt is attributable to (greek roman) polibeus (100yrs after
Aristotle).

4.

arist. Didnt advocate anything like our sep. of powers based on functions. Functional sep. or powers. This is not what
constitutions about. Not to proscribe balance of power.

5.

about his political policy

II. Athenian politea: arist had students compile 150 political systems/ constitutions; comparative approach; what system of govt
will provide most stabilitybiggest concern cuz thats what will present constitution to ultimately achieve happiness (fulfillment
not material). Cant get fulfillment in tyrannical govt. Only Athenian politea has survived out of these 150 constitutions.
READ about Athenian constitution. 1st written by Draco in late 17th century b.c. (draconian laws)severe rules that were written.
Laws of 620 established ariopagustype of noble assembly, large landowners authorized to bear arms; those who could be
trusted to govern must be those trusted to bear arms and vice versa; expected to provide arms themselves so wealthier levels of
society more able to do this. Reforms of Solemsn 594 b.c. Provided foundation 4 athenian const.-- Bondage eliminated so cant
hold other Athenians in slavery (stripped areopagus which was noble assembly of its central governing role to include the lowest
classes; juries of members including all the classes; legislature and judicial is combined); 500 b.c. general clistenus, ruler, all
citizens entitled to attend assembly, even discounting for slaves and females and minors it is still lotta ppl! about 150,000 (even
discounting, still lots of ppl). if everyone showed up, not enuf room to accommodate this many ppl and lots in surrounding cities
couldnt travel there. Even if few thousand showed, hard to get em all to participate to get anything done. So streamline the
procedure but makes govt more indirect. Administrative Solution: Council 500: divided Athens into 10 tribes (geographical
areas) and 50 from each making up 500. Arconsthe wealthy who controlled power of Athenian polity and also the nobility of
Athens. All these reforms were done thru vote of assemblysupreme law making body that would make up the ocnstituion.
Diff. between classic English and American const.how can change be made? By majority vote.
A. Periclus 443-429b.c.; leader, reformist; until Philip of masadon conquered in 338bc? So governed by this consti. In over 50
years. So worked for long time and stable. Represented a democratic constitution but arguable if it really was cuz arist. Saw
it as a politea (mixed). Result of this form was that oligarchy was for wealthy.
B. Assembly met 36 times/yr., paid a half days wage to attend, anyone could speak but only on the items on the agenda, but few
actually spoke (meetings were usally over by noon) and speakers ended up being limited to wealthy and few ppl who were
viewed as the ppls leaders (demos gogos) who had organized supporters (like political parties/ democratic factions where if
leader disappeared, faction gone too). Ordinary citizens only participated by voting (show of hands, not private). Also,
Several hundred chosen for each assembly meeting where a change would occure were picked from lot of eligible jurors that
would approve any const. changes cuz const. change is more controversial and want to justify change with more than one
group and diffuse the power so they check each other. Council 500 is chosen by drawing by lot and not elected cuz that
would be an oligarchy tool that can be controlled by those in power whereas drawing by lot is democratic tool. No one could
be on council more than twice in lifetimedont want that kind on concentration of power. Council arganized assembly,

financial control, etc. but large so real work done by standing committee and one from each tribe ran it once each month so
trying to involve as many people as possible in running the city. Democracy.
C. Courts: Deciijustice courts/ civil suits, contracts, including crimes etc. Graphiicharges against state officials (by any
Athenian) so like check on abusive power cuz would be actionable in court. Athenians were very litigious even if no lawyers
but word of mouth tells whos good. Jury didnt have assistance of judge and no appeal. Evidence presented and lasted 1 day.
Any one over 30 could apply and given stipend. Greater the charge, larger jury; size of jury was 500, 6000.
D. Civil and military beaurocrats. Selected for one year by lot (no appt). military officials were elected and could be re-elected.
So subject to various controls. Enunciationwhere citizen could place b4 council of 500 the enunciation by the assembly as
a bodytype of impeachment, reserved for serious offenses that are given death penalty; not that uncommoneven pericleas
was subject to denunciation. There was investigation of every official by uthanai for financial irregularities. For every civil
or military official done by those picked by lot. If they dont pass, could be brought to court and if not cleared by ct., could
be required to leave city and not return or sell property. Ostracism took vote of assemblyto ostracize, bring motions,
determine who to ostracize and when, then vote on who to ostracize. Minimum vote is 6000 and if passed, official voted to be
ostracized has to leave city for ten years and dont have to sell property. Only 1 ostracism allowed per year. Person chosen
to ostracize is one with most votes. No appeal and quite infrequent. Threat of use was enough. Fell into disuse after
ostracism in 416 of demagogue hypercilus.
E. natural development of checks and balancesnot formal.
F.

Plato: very few ppl fit to rule. there is a natural

G. All human nature is to some extent the same & with proper development, slavery is difficult to justify.
H. What about Mentally deficient or physically disabled ppl? its your essence and potential that matters & makes you human.
III. Spartan Constitution
K. Sparta had kings, Athens didnt. But differences in constitution not that great. Sparta system was established b4 Solons
reforms. Had 2 kings chosen 4 life, drawn from 2 wealthiest families. Council exercised powereurontis (elders)
aristocratic. Appellaassembly of those able to bear arms. Some view Sparta as classic mixed govt. candidacy for
magistrates open to any Spartan citizen. Characterized as totalitarian govt based on degree of control govt exercised.
Legalistic societystrong sense of the rule of law which is sign of oppression (ex. CA passing lots of laws). There wasnt
sufficient diffusion of power.
X. Roman republic 1000yrs +1000yrs
A. Controlled by truskens (monoarchy) and overthrown end of 6th century bc. Then became roman republic. Romans conquest
over rest of Italy. One of the policies was that the outer areas were not accorded equal rights with roman citizens. Right of
roman citizenship were extended later to latin ppls of s. italy. Octavian (ceasar augustus). Had rise and decline of power.
B. Roman govt institutional structure: constitution changed over 5 centuries republic was in existence. Political institutions
were stratified. 2 broad groups that were politically against each other: pableans (everyone else) & patritions (nobility).
There was an oligarchy element through partitions and democratic element through pableans. Dominated by land of
aristocracy and wealthy families (republic but had oligarchy leanings). Senatorial class of partitions. Pure aristocracy but
later rules were loosened and membership of partitions class was given to land ownership (not just hereditary). Only a few
hundred at a time were senators. Highest class was equitus (knights) but were still not partitionsthey were wealthy enuf to
provide horses and weapons for cavalry. More expensive to be member of cavalry. Knights became dominant economic
commercial class and often govt contractors. 2000 were in the classjust cuz you can afford didnt mean you were part of
equitus. Rest of roman society divided into 6 classes depending on ownership with landless poor being at very bottom. Not
locked into the class cuz fortunes rose and fell so status was reviewed every year by 2 sensors who conducted a census
count population and review your status.

C. Several institutions that developed:


1.

Assembly (many of them). Centurion assembly was well known and oldest. Composed of plabiens so not like Athenian
or Spartan assembly that was open to all adult males. There was a distinction between aristocracy by birth v. commoners
whereas it didnt matter in Athens or Sparta. In rome, clear aristocracy and significant tool to divide you from the rest.
Assembly was a plablien body/institution. Dominated by top plabiens (knights) and next class down. Assembly was
organized by class vote. Everyone eligible to vote, but depended centuries of class. Landless poor was largest class and
were given 5 centuries out of 100. you voted within your class. So whatever century youre assigned to, it only counted
as that many votes (5). Ex. if in century 1, and majority voted in favor of proposal, that century will be voted as for the
proposal. In century 2, the people in that century voted against proposal, that century would voted against it. Didnt
matter how many people voted for one side or another. Equitus and next class down have an effective majority over
number of centuries but also voted 1st. then next class of landowners. so didnt have to go far down the list of classes to
see the result. Assembly didnt draft the laws. Power to draft the laws was done by tribunes or other magistrates & the
law was discussed in a preliminary meeting called and chaired by a tribune. Everyone (foreignersnon Roman citizens,
women, slaves, etc.) could attend. But only those selected by tribune could speak (senators and other roman officials) so
not open forum. But useful tool for oratical persuasion about why the law is good or bad, and get sense of audience
reactions. Plabien assembly members could discuss amongst themselves and if passed law, became law w/o ratification
by senate. Democratic elementassembly voted on laws and became law. Also voted on candidacy for elected
magistrates or tribunes. Also had power to declare war.
a) Problem: lack of participation. All voting done in Rome so difficult for those who moved to outskirts and farther to
participate. If in lower classes, not called to vote cuz what your century did didnt matter. If everyone did come to
participate (400,000 free adult males), there was no venue large enuf.

2.

Roman Senate. No formal constitutional role except to act as advisory. Like elders in Sparta--to council Spartan kings.
Customarythis is how its always been done. So thats what gave senate powertype of unwritten constitution. Most
of roman constitution exists in unwritten form. Membership of senate limited to artistocracy (partition class) but
expanded later to invite wealthy ppl but many refused cuz to be in senate prohibited you to do commercial activity /
business. Better to be part of another class than the senate. Not only wealthy, but have to be invited in. Senate able to
dominate public policy cuz had permanent membership, small institution so closer, better communication, devoted lot of
time to this practice (organizational advantage). Certain senior magistrates deemed to be members of senate; Plabiens.
Diff. between being senators for life v. birthright. Plabien senior magistrates tended to identify with their views. Not
only was senate the true controlling in Rome, the senate was controlled by 20 ppl.
a) Magistrates: to hold office have to go up ladder of honor. Questars was lowest level and have to be 30 and several
years of military service. Voted in by assembly. Elected into 1 yr terms. Questars went from 2 to 20. dealt with
financial administration and crime investigations. Next level was Praetarasst. councils, then independent
constitutional officers, elected by assembly, went from 1 to 6, unsalaried position, 1 year term, had to leave at end of
termno reelection but could stand for election to Council or could be given military command in one of provinces
(propatar). Praetors performed judicial functions, and praetor urbanos (roman) could assume powers of council if
council was outside city of Rome--#3 man (ex. in CA if governor out of state, lieutenant governor takes over). Top
exec. Official was the councilship. 2 councils elected by assembly at same time so they could keep an eye on each
other; to prevent too much power to one person. Function of council was usually military. One or both were usually
absent from city dealing with military stuff. There has to be 10 years between next council election. Exception: if
they like em a lot, hold a military command. Harmed republic cuz allowed councils to gain extended terms of office
& loyalty of military troops. Office became open to non patritions and all had senatorial rank. Campaigning and
service was expensive and unsalaried job so only knights. Office of military & prestige (not political power). Any

political decisions were subject to veto by the other council or any of the 10 tribunes. Council couldnt easily
override actions of these other officials. So not much const. clout other than in military arena & prestige so tribunes
not likely to override councils decisions.
b) Tribune: Formerly established in 449bc. 10 tribunes elected by assembly for 1 yr terms. Initially allowed veto if
tribune believed citizen was treated unjustly. Recognized there had to be some way to deal with miscarriages of
justice and a separate body to check that. Original function of plabiel tribuneto make sure partition didnt treat
citizens unjustly. Power of tribune expanded to include ability to veto any act contrary to interest of plabiens.
Became custom, then defacto right to participate in senate proceeding and then to convene senate meetings. Tribune
had no power to make actual policy with few exceptions. Cant select policies senate is going to pursue. Tribunes
are from partition class or highest plabien classequitus/knights. Weakness: when trying to make state policy, it
could be overridden by any of the 9 tribunes. So Senate only had to control one of the tribunes. Served important
function of trying to place check on excesses of legislative bodies (assembly&senate) and judicial/administrative by
giving tribune power to veto legislation and deem cases unjust.
c)

Office of dictator. Formal office but not constitutional. Arose in practice on occasion. During crisis senate could
appoint dictator up to 6 months. This happened on more than 40 occassions in 4thcentury b.c. but never again after
202bc (maybe cuz territory near Rome was brought under their control didnt really need it).

d) Around for 500 years. Worked well. Adaptation of roman const. by customary practice.
D. Problems: Rome was constitutionally set up like greek city states. But as it became more like an empire, const. came under
stress and one major fault was direct participation prevented development of principle of representation. Had to Roman to
vote and could only vote in Rome. Greek city states const. disappeared with Macedonian army. Athenian system was
homogenous culture, not as dispersed. Rome grew too big. Lose concept of police when get up to 50,000 peopletoo many
people. Rome was approaching 1mil. ppl at end of republic. Rome had slavery. Greek system of slavery was under control
cuz way it was legally structured (decendants werent necessarily slaves)athens saw danger with too many slaves. Romans
never thought that and slave population continued to grow. Rome relied on slave labor.
E. After 2nd punic war, 218-201, rome continued to act as a little city-state when it was functioning as an empiregood thing.
Roman control over immediate surrounding areas (latin & Italian communities) was tempered by local affairs. Cuz close
cultural, linguistic, political association with Rome, they were left to themselvesexcept for military/foreign matters. Way
for rome to act as city-state in its own domain and still protects its interests. Began to fall apart. Provinces subject to land
confiscation, taxation, etc. to support roman empire. Relied on local auxiliaries. Dealing with conquered territory
colonizing and integrating it. Romans didnt have formal system to deal with itdealt with it as provincesno need to
integrate. Acted as city-state. Distance from Rome gave military commanders freedom while saying their representing
Romes interests. But there was more loyalty to commanders than to Rome. Draft army is less likely to be a danger than
volunteer army drawn from lower classes. Need military but how keep it from becoming a danger. Athens did it but had
navy who are less of threat. Athens also had denunciations, ostracisms, inquiries, to keep em in check. Romanslike
Athens, military commanders were elected. Loyalty to commander and not the city cuz they oversee the army, remained
commander for long time. Unable to control mil. Generals so there were repeated invasions=social & political unrest,
exposed weakness of constitution, etc. Julius ceasars coo.
F. Lucius Cornelius suaused force. Undermined stability of republic
G. Gracii: habelus and ? tribunes that took their jobs seriously, partitions, interests aligned with lower plabien class.
Redistributed land and reform const. to increase power of plabiens but partitions didnt let it happen w/o opposition. They
were killed in the violence their reforms precipitated. Once their powers broken, aristocracy exercised their power more
assiduously and vigorously. Grandsons of roman general who defeated halibut. Also married into wealthiest partitions
families in rome.

H. Slaves created huge underclass. Decendants of slaves. Used free labor so created unemployed free men too. Middle class
plebians were becoming more impoverished. Increase in taxation required satisfied the poor. Large underclass, diminishing
middle class, taxation. For govt to be stable and not degenerate to tyranny, cant have too much wealth disparity or this huge
underclass thats a tool for others.
I.

Largest defect from Athens was inability to control military commanders. Timarchymilitary govt.

J.

Pulibeuspolitical theorist, greek captive, taken to rome as a hostage, fell into higher circles, became very enamorative of
roman system, and wrote about it. 203-120 bc. When roman republic was at it finest. Described it as exemplifying mixed
govt: monarchy (councils), aristocracy (senate), democracy (assembly) where each had powers and able to check each other.
More like oligarchy cuz senate had so much control.

K. Spqr. Romans always had standard and sign spqr (senate and people of rome). Everything done for that purpose. Octavian
always called himself prince. Govt degenerated into tyranny.
L. Scicero. Born in 106bc in archenemen, 75mi. south of rome. Family was member of Knights. Lawyer also trained in
philosophy. At 30, elected equistorsenator for life. Then held other offices in ladder of honor and at 43 became council.
Active in politics all his life. During civil wars made powerful enemies and killed by roman soldiers by order of marcus
anthonius. Indicted by roman conspirator cateline. Insisted on death penalty for conspirator which came back to haunt him.
Wrote lotta speeches, letters. The Republic and The Laws. Admired Plato. Practical guy. Republic was lost till 1820
when fragments discovered in Vatican libraryabout 1/3rd of it.
1.

Republic. Like platos, idealistic, reflecting on roman institutions at their best (between punic wars and raqi tribunite).
Ideal system was roman republic at its best. Said people of society as source of all authority in general way, govt
always rests on consent of public and whatever done by govt must rest on public will (res publica). Optimatistthe
best aristocracy. Run by best, but rest on the interest of people. Explained need 4 govt by best. Greatest number shall
not have greatest power. Studies pulibeus but emphasized oligarchy elements of senate instead of democratic of
assembly.

2.

Laws. Description of Rome during his timemid 1st century BC. Corruption & deterioration. How original republic
might be restored and improved.

M. Stoics. Adops more Platonistic views. Many stoic philosophers. Influenced 4 milleniium? Many diff. schools. Zeno in
322bc (year of or after arist. Death). Called stoics cuz zeno gathered people from Athens area called stoa collinade and built
on aristotilianism and emergence of Alexandrian empire. Stressed philosophy as ethical inquiry. Principal. Natural universe
and morals are governed by immutable unchangeable principals. The principal that operates is Law. Nomological principal.
Human affairs must respond to . There is a constant predictability (kids grow to adult, sun always rises, pen always falls,
etc.) so has to be the operation of immutable, permanent laws. Eternal and ordered universe. Since human affairs operate in
universe, subject to ordering principles of law. There must be something that creates the laws. Moved from nature to law
controlling. w/in universe, theres governance of creative fire, breath/numa, --something able to relate/ act with universe.
How does immaterial act with material. Materialanything that has effect on anything else. So justice is material cuz
causing you to move/do sumthin. Customs, ethics, etc. law and justice are material. Justice, law, ethics, etc. are objective.
Not customary. Built on Socrates, artistotle, plato. Law, or any ordering force is Rationalnot arbitrary/conventional. Has
to be predictive. Expression of law is linguistic. Theres only one creature thats rational and linguistic so only one suitable
for ethical lawhumans are only ones who can participate in political bodies. Therefore, only humans, by virtue, are
endowed with natural rights. Natural moral law. Were not just part of nature. Uniqueness of humans is emphasized.
Unique cuz susceptible to movement by natural law so we have certain rights and cant be treated like ordinary animal. We
are Rights bearing entity that doesnt otherwise exist. We are beyond whim/discretion of political entity to curtail those rights.
Cuz of this special status as rights bearing entity, were cosmologically unique and human can demand b4 the govt does
anything to him, an explanation given 4 what is done. Way to humanize / provide philosophy to require more respect for

humans. Govt must justify its action. Moral and cosmic order. How does law operate on us/ how does govt occur? Logos
the word the principal the point/purposewhat directs the law. Humans can understand purpose / words behind
things. Stoicismidea that you approach everything dispassionately; dont get overly excited, analyze, reason. There are
some things you just cant control. Not to be oblivious, but to reflect. Epicurianismdont worry be happy approach.
Stocism not like thatdont worry, deal with it. Not a religion. Stoic God that is a permanent inexhaustible rational force
continually involved and interacted with universe thru law. Platos god was handyman. Stocis saw god as involved and
maybe even law maker, natural law. Epitedusbrotherhood of man connected to each other by God. Son of zeus, Hercules,
spread justice and virtueex. of involvement of god. How know God existed? Look around you. Orderlieness is a rational
plan & cant just be coincidence. Know it internally/ intuition. Hybrid of arist. And platos view of knowledge. How can
there be any meaning to good & evil, ethics, etc. w/o this principal? Thru law giver. Law provided harmonius relationship,
the structure for order and harmony so when violated, threatened the entire harmonius nature of universe. So a crime was an
offense against he universe. It brought things out of kilter, messing up the harmony. It is unnatural so challenges natural
order itself. Must restore that harmony. How Prevent disharmony? Disharmony usually created by runaway passionyou
dont think (ex. saying you gonna show up on date but dontshouldve said not to begin with). So have reason always
controlling. Dont feel emotional about anything. Control desire, dont let desire control you. Dont take pleasure. Always
practice apathea (apathy)control of passion thru reason. Cynicaformer slave who became tutor to Nero. When he grew
to rule, Nero told cynica to kill himself. Cynica said ask yourself what evil have you overcome today? What vice have you
resisted? How are you better today than you were yesterday?
1.

stoics view of natural law is driving force that organized everything. Material list on existence of things.

2.

they identified the idea of natl law with some lawmaker & posed ability of humans to participate and understand was
due to rational nature of human beings.

3.

Zenofounder of stoic school. Called governing force ___; aristoltlenatural justice, not organized in a legal sense.

4.

great stoic philosopherold emperor at beginning is marcus ariliusone of the last stoic philosophersin movie
Gladiator.

5.

stoic view of absolute necessity of maintaining harmony in universe and in political entity can be used

6.

stoicism was tailor made for roman republic. Thought it was good to be involved in civic affairs; civic
involvement/virtue/republicanism which suited Romans. Arist & Plato & sceptic ideas so very eclectic approach.
Romans were not philosophers, more practical minded. Romans copied greeks in matters of culturelanguage was
greek, taught in greek, etc. but more practicalgreat administrators, lawyers, etc. (greeks were not). Stoicisms
emphasis on a legal order of everything served roman theory of state just fine. Stocism became philosophy of upper
echelon of roman society. Sto & rom republicanism suited ea. Other well

N. Cicero: ciceros Republictheres a true law, universal, unchanging, everlasting. Internal moral law; there are duties
(duty of justice, respect lives & prop of others, duty to participate in community affairs & contribute to society in positive
way); is any kind of war permitted or are there just and unjust wars; difficult to determine specific components of this
natural law. We have these general duties which arise from the natural lawit imposes these duties on us. Shift to natural
rights is only recent. Duties and rights are mutual (ex. in contracts one has duty to paint house and right to receive $ for it).
We cant act contrary to our naturethat would be unnatural.
1.

Stoics recognized that cuz our uniqueness, we alone are rights bearing creatures so we have certain protections against
arbitrary govtal action (taking life/property)there must be a reasonable explanation for itthis is the essence of due
process. Idea of natural law governing all, unchanging is essence of due processdiff. from romans.

2.

concept traceable to stoic ideas is ius-gentium (law of peoples; system of right) (romans used term lex).
Carthogineons /phinecians v. Rome cuz commercial issues. Romans learned from carthingineans and other cultures.
Ius-cibile (law particular to a culture/city). Identified ius-gent with ius-notarale as identicalbut actually unclear. Gent

is more practical (like intl business/commercial law) & dont have moral basis to itmore like evidence of existence of
a moral universal law.
O. Last great stoic philosopher marcus died and ended great influence of stoicism.
XI. Lot of philosophical and religious ferment after stoics. Mid 2nd century bc, interaction between greek phil ideals and religions
(Judaism). . Came under roman control. Filolifetime overlapped Jesuswitnessed rise of numerous sectssuch as
Chrisitianity; reflecting stoic principlesactively involved lawgiver. Jews and chrisitans gave reason why (stoics didnt give
reason). Christians say they have God actively involved cuz interested in man he created in his image..in an imperfect way, so
able to understand things and participate in Gods plan. Attraction of Christianity was insistence on univerasal equality/ ability to
participate in nature & moral order thru use of ones reasonlike greek phil and artistotilinism. Developed in an anti-intellectttual
string: ex. revivalism. Problem for any religion to survive with this type of blind faith so tried to develop phil. Basis/structure
appealing to all.
A. St. paul & Augustine---ended up being bishop; Platonistlike most religions; not obtimistic bout human condition.
Introduced universal morality. Connected w/ God and divine law. Evertanl law
B. Direct connection between divine law and natural law. Problem for higher lawwhere does this exist? Virtue based on
ethics. But theres a conflict/who controls who.
C. 2 major developments: 1. organization of specific roman empiremost was judge law.
D. Quote of gistiniun becomes.
E. After fall of western roman empire, number of Germanic kingdoms established (sharlaman). Sharlaman wanted to develop
schools and standardized law to maintain control. Empire didnt dissolve soon after his dead Iea of universal learning and
law. Tried to Christianize those in his territory. Problem with church: was center of everything. Lot of independent ad hoc
decisions. But on appeal, go back to problems. Need to set up Canon law w/ philosophic basis. What do w/ local laws
conflicintg canon law. Gratian identifies natural law and divine law as same. Canon law is expression of natural/divine law
that is eternal & if thres conflict bee. Higher law must control lower law cuz reflects higher, eternal principal. Judges and
canon. To 11th, 12th century a.d. solidifies control of Christianity as religion.
F. Midievil empire: not like modern state at all; before year 1000, there were # of very small kingdoms governed like german
tribal modelelected King w/ lots of powers, advised by council, nobles, etc. Noble; during war King took secondary role.
Not same type of criminal law as today. If disputelike system of tort law where King determined who to resolve. ADR
alternative dispute resolution/ mediation.
1.

ex. England

2.

ex. Holy Roman Empire

3.

William the conquerer; leader of Viking group who had invaded parts of France. Became beaurocrats in just few years.
And tried to bring geman into England and developed Common Lawthe law administered by Kings judges; when
conflicted w/ local law, common-law prevailed. What about universal moral natural law? Diff. between c-l and local
law is that theyre secular based. Main interest of crowd was land cuz concerned about revolt. Land was the only real
property cuz basis of wealth and entire social structure of the futile. Any trespass to land would be of concern. Assault
also became common-law. Structure based on land ownership. 1st thing they did was list the lands and owners cuz taxes,
soldiers, and members. King elected by nobles so reward them by assigning them land. Top: Lord in Chief, grant some
parts of kingdom to Dukes, Duke rewards his lieutenants, then to knights, etc. and at bottom of futile pyramid were serfs
(who were not free-holdersnot slaves, just no land and not free but could become free if runaway to city and stay for a
year).

EVERYONE OWED EACH OTHER A DUTY. DUTIES IMPOSED ON EACH. KING HAD DUTIES AND EVERYONE UNDER

HIM HAD DUTIES. KING TAXED A LOTDUTY TO PAY TAXES, PROVIDE FOOD, ETC. FREEHOLD ESTATES WERE LIFE
ESTATES. EX. KING HAD DUTY TO GRANT LIFE ESTATE TO DUKE. LIFE ESTATESCANT BE INHERITED. BIG CONFLICT
BTWN KING AND NOBILITIES CUZ DUKE WOULD WANT TO PASS IT ON TO HIS SON AND COULDNT. SO BECAME

INHERITABLECAN BE PASSED DOWN. STILL NOT DEVISABLE (GIVE TO ANYONE YOU WANT). PYRAMID VERY
ORGANIZED, SYSTEMATIC, DIVISION OF AUTHORITY. OPERATED LIKE A SYSTEMIZED LEGAL STRUCTURE. FORM OF GOVT
W/ DIFF. CENTERS OF POWER. CIVIL WARS GRADUALLY PUT POWER IN KING (V. NOBLES). DIFF. LEVELS OF GOVT HAD
RIGHTS AND OBLIGATIONS TOWARD EACH OTHER AND THEY CHECKED EACH OTHERS POWERS.

a) CHURCH WAS ANOTHER FORCE.

HOLY ROMAN EMPIRE. CLOSE TO POPE SO MEDDLING BY POPE WAS MORE TEMPTING.

SYSTEM OF FUTILISM DIDNT WORK EXACTLY LIKE IN ENGLAND BUT SIMILAR. NO CONQUERING CUZ THERE WERE
DUKES ALREADY THERE SO NOT GETTING IT FROM KING/EMPEROR. HOLY ROMAN EMPEROR, SELECTION BY POPE
COLLAPSED AND WAS LATER CHOSEN BY PRINCESELECTED. THE GROUP VOTED AS COLLEGE OF ELECTORS

(ELECTORAL COLLEGE)PRINCES THAT SELECTED HOLY ROMAN EMPEROR.

THEY WANTED THEIR OFFSPRING TO BE

THE NEXT EMPEROR SO BIG TUSSLE. EMPEROR COULDNT DO WHATEVER HE WANTED CUZ IN CERTAIN AREAS, DUKE
WAS IN CONTROL OF THAT AREA. SO TYPE OF FEDERAL SYSTEM WITH DIVIDED POWERS. INFLUENCE OF ROMAN
CATHOLIC CHURCHTHERE WAS TUSSLE AND CONTEST BTWN CIVIL AUTHORITIES AND CHURCH. CONFLICT WAS
WHO CONTROLS WHAT? CONSTANT POLITICAL STRUGGLE. NOBLES COULD PICK WHOEVER THEY WANTED AT ANY
TIME. DIVISION OF POWERS IS MAIN POINTBIG ASPECT OF MIDI EVIL DOCTRINE. POPE AND EMPEROR BOTH
THOUGHT THEY WERE SUPREME. IN ENGLAND, CHURCH HAD OWN SYSTEM OF COURTS

4 INHERITANCE OF THINGS

OTHER THAN LAND, FAMILY LAW, MEMBERS OF CLERY CRIMESEXEMPT FROM STATE COURTS CUZ SEPARATION OF
CHURCH AND STATE (IMPERIUM IN IMPERIOTHE DIVISION OF SOVERIEGNTY). ENGLAND CHURCHS DIFF.
PROCEDURES (NO JURY TRIALS, EQUITY/JUSTICE COURT-NO FILING OF COMPLAINTS BUT FILE A PETITION)NOT LIKE
COMMON LAW. SIMILARLY TODAY, FAMILY LAWS DONT HAVE JURY TRIALS. CHURCH WAS WHOLE OTHER SYSTEM/
SOVERIEGNTY W/ OWN LAW REFLECTING CONSTITUTIOANL DIVISION OF POWER OF SOME SORTS. DESIGNED TO
PREVENT AGGREGATION OF POWER FROM SECULAR AUTHORITY. IN CHURCH THERE WAS TIME

(12-14 TH CENTURY) W/

TENSION BTWEN THOSE WHO WANTED LOTS OF CONTROL V. THOSE WHO WANTED POWER TO GO DOWN THE PYRAMID

(CONCILIOR MOVEMENT)ATTEMPT TO PROVIDE MORE DIVIDED AND BALANCED FORM OF GOVT (HAVE POPE ACT
LIKE EMPOEROR).

4.

2 Principles:
a) Absolutist Theory: What pleases the prince is law. Prince is absolute law. v.
i)

1st two are unchecked govt. not to allow authority to be uncheckedstill limitations on what govt he could
exercise.

b) Secular Govt: What touches all must be approved by all. Debated. Constitutional power between institutions and
within institutions.
i)

2nd is that govt needs consent. Opponents argued that it meant notion of consent was conceded to prince; a
useful device to produce a political obligationconstitutional fiction. In England, it meant the nobility and
maybe some of the free mentrial by ones peers (nobleman).

5.

Beginning of sturims and modern notions of due process in a more formal constitutional setting and not just theory like
with Stoics

XII.St. Thoman Aquinus (13th century)


A. Identified natural law with divine command; God commanded things and its natural law cuz reflects gods view of human
nature; natural law strongly tied to God. In west, there was increasing contact with near East thru crusades, commercial
exchanges; noblemen, priest, etc (crusaders) coming in contact with culture/civilization that took interest in classical Greek
works, medicine, etc. so came back with goods and novel ideas. England universities (oxford) were strongly connected to
churchhighest degree was doctorate of divinity. Aristotelean thoughtextracting nature of things thru observation and
Christian thinking which was neo-platonic (nature was suspect; authority to be trusted was scripturedGod; look to scripture
for moral law; reason was fallible for discovering anythingonly way to discover right way was thru Gods grace).

Aristotilean invasion challenges these coresyou can discover nature of things and induce general and moral laws. Student
and faculty picked up on these new artists. Ideas and began to teach them. This produced reaction from other churchmen cuz
threatened some of church doctrine & popes authority.
B. Thomas attempted a synthesis of arist. And church doctrine to make it work and have arist. Support church authority. Had to
draw fine line not to go one way or another. Born in s. italy, attended Univ. of Paris & colone, taught by Albert the Great,
taught at Univ. of Naples & Paris, and great work was Sumalatobeathe grand theory that was gonna explain everything.
C. Sumalatobea: someone ask a question and theres a position, counter position, then someone comes in and explains it all. Just
a few of these dealt with law. Aquinas refers to Arist. As the philosopher, the apostlePaul, and the jurist. Main
structure of thomistist legal const. mid-evil, natural law theory. 4 types of law:
1.

Eternal lawthat which God has put out there to govern the universe and you know it exists simply by looking out there
at the orderly universe we have. Way God governs the world. Co-existent with god and him omnipotence. Did god
create this or is he controlled by eternal law? is he the law giver or is it a manifestation of some force that controls god.
Our facility of reason. Is god in control or does his reason control him? Cant answer but leans more towards that he is
lawgiver who chooses to act in accordance. It is a Universal law and adheres to idea of orderly universe. All things by
nature, participate in eternal law to fulfill their potential.

2.

divine lawrevealed in bible/ scriptures. Part of eternal law cuz created by god.

3.

natural lawconnection between divine and natural, and strong connection with eternal law. Like laws of physics,
planetary motion, gravity, etc. our reason gives us ability to uncover natl law and allows us glimpses. Thomass view is
that the fall did not condemn us, didnt make us bad, it just made our nature more susceptible to weakness, and not able
to see with as much claritypositive view of human natureits a good thing, especially cuz God gave it 2 us.
Speculative reasonex. Astronomy. But trickier when talking bout law thats physical. Most law writers didnt get
involved with physical. Moral laws more difficult to uncover. Cant derive whats right or wrong simply by spec.
reasonhave to rely on Practical reason (but its more fallible when trying to determine moral reason). So have to train
and educate.
a) interaction btwn natl and divine law. divine law carries with it some commands like thous shalt not cill there is
unity betwwe the tur. We have postentialto. not part of moral natl law.
b) one of the problems when looking. Polygamy; Certain Immutability fundamental principles:
i)

do good, avoid evilhappiness is achievd by doing. What is good attracts us, what is evil repels us. This
reflects our human nature. Prob. With natl law, how apply it in? can deduce and induce it (by looking around
you). Ex. adultery is bad . marriage is a natural institution cuz needed for raising of children as is. Incest
interferes with family unit so unnatural. Private property is inference. Idea of private property is natural.
Farther down you go, more cultural influences and more you have to account for. Slavery is always against
natural laweveryone has fundamental equality. Or could be said that it wasnt against natl law but became
against it thru changes. Thomas says something cant be a natl law then not be.

ii)
4.

Private property, then theft, then embezzlement (down the chain) goes against natl law.

Human Lawsimilar to Cicero; ordinance of reason promulgated by him who has care of the community; for human
law to be valid, has to be promulgated (known) and for general welfare (not for ruler); has to be publicized, published,
you have to be put on notice (due process); must be an ordinance of reasonto connect human law with natl law;
reason is tool allowing you to discover natl law; no perfect overlap btwn human law and natl law---not all human laws
would reflect command of natl law; theres not natl moral law that says you have to drive on right side of road, that red
means stop, green means go; but theres a moral law that says you have to have some rule to avoid death and injuries (do
good, avoid evil); there are natl laws out there not reflected in human law; to lie is against natl law cuz its an affront
to truth, & to God; fraud, perjury are lies that are punished but limited to circumstances; is it ever okay to lie? (cute

baby example); not gonna made every natl law into human law; human law works best when dealing with an abhorrent
behavior; laws, those that we believe most ppl wouldnt engage in such activities (murder, robbery, theft) work best;
questionable when it comes to stuff like petty larceny (using employers phone) and speed limits work cuz chance of
getting pulled over is slim long as within 5-10mi. of speed limit; part of natl moral law that you have gratitude towards
those that benefit you but how make that into law? it comes from inside so making law wouldnt serve any purpose;
human law must conform to natl lawhigher law theory; what if theres conflict between human and natl law? ex. if
human law is in conflict with a negative divine law (thou shalt not kill) you must disobey the human law; what if its
conflict with natl moral law? can obey the human law but not in consciouscuz state is created by god to further our
happiness so anything that threatens that ultimate happiness (anarchy), it has to be judged very carefully, scrutinized
closely so have to obey it to avoid greater evil of anarchy. Go to ruler and tell em its bad law and ruler may change law.
If he doesnt, just hope ruler will be enlightened by God and see. If doesnt, ruler will be removed by God (pray long
enuf and hell die); if ambiguous law telling you to do sumpin and human law is silent, not telling you to do anything,
go with human law. if conflict, how know what natl law is? Thru reason, but reason is imperfect and you could be
wrong. If no one else is bothered by it, reason could be wrong. Natl law has to come from somethingeither Gods
command, or reflection of human nature (arist.)
D. Interaction btwn custom and law; custom, ordinary human practice, cant go against the perfect reason of god; but human
can be changed over time and explained by societys customdoesnt have universality like divine/natural law and neither
does custom (time and place). Custom can help us understand. Can find out lot bout societys customs and what they
thought was important by perusing their legal code. Custom also reflects human reason as it changes. Ask if law will be
effective depending on custom in that society. Jury nullificationcheck on govtif communities customs changed and
conflicts with law. if try to pass law not reflecting custom will be unenforceablesociety will not tolerate itlaw must
reflect custom of that society unless there is no such custom to begin with. Custom reflects movement of human reason when
it changes and can change human law. Judge makes law consistent with legisl. Intent. Legisl is in charge of making law.
dont need as many legisl. As judges cuz how many ppl wise enuf to make laws?
E. Importance: classic scholastic theoryblends ancient greek and Christian ideas, is based on concept of duty. Duty exists
and right may arise from that duty. Basis of a true futile society: duty to obey human law, duty between land owners, even
ruler not free to do what he wantshas duty to do what God wantsduty to God; relationship based on duty. This duty
switches in our modern approach to rights. Yet still have fiduciary duty owed to someone else based on status (employee
owes duty to employer).
XIII.

Const. system diff. from western central European system (futile societies where wealth and status based on property

ownership): Republic of Venice.


XIV.

Republic of Venice

A. Not democratic like we are.


B. Constitutional republic cuz had system of checks and balances, and avoided rule by individual/elite, tolerant of civil and
religious liberties.
C. Seafaring republic/society like Athens and Roman republic were initially. If u wanna see what kinda govt society is gonna
have look if its sea faring or land society. Wealthy commercial and trading society like Athens and Rome. Colonies at time
of const. were comparatively wealthy with strong commercial and trading element. Venice had strongest navy, so wealthy
could raise more tax revenue than France even though tiny population. Relied on hired mercenaries which reflected threat of
army. Need military to protect stable society and liberty of its citizens..how handle military? End of Venice 1508 by
Cambrae (france, spain, hungary, etc.).
D. Colony of Venice formed during roman times but not till fall of western empire, rule of zantiem, gained power. Capitalist
society. Futilism did not take hold in Veniceit was a city-state like Athens and rome. Capitalismnot free market type,

supported by city-govt by protection and furthering of commerce and intl trade (ex. city build ships from taxes, sold to
private and sailed with navy escort). Governed by aristocracy. Initially, Aristocracy of merchantsjoined by amassing
wealth so could fall out and rise into aristocracy, based on wealth not just hereditaryso expansion in # of ppl as part of
artistocracy as wealth increased.
E. Major const. change in 1297: made aristocracy Hereditary by closing the ranks; no longer based on wealth. This increased
# of families recognized as noble5% of populationwhich is a lot. Basic const. structure that evolved from these changes
lasted 500 yrs till Napoleon took it over in 1797. % of noble families stayed constant and some even became poor compared
to merchant families that gained wealth. Better than roman senates openness of aristocracy cuz Venice had no prohibition on
commerce, not as class-based.
1.

Venice was aristocratic but formerly based on wealth. Here the number of aristocracy closed as to the families included.
Why republic an not oligarchy then? 21 and 32 for senate

F. Adult males of noble families eligible to serve on great council (main legislative body) and could vote there. Most didnt go
to every meeting. Typical attendance: 1000 out of 2500 eligible. They passed legislation, debated policy, & const. role is
electing other officials. Soverignty.
G. Venetian govt had sizable beaurocracy. 800 beuarocratic offices with short tenures, gave them substantial power to fill those
offices (or not to fill em)way of exercising control. Platointra class rivalries and frictions, oligarchiescreates
instability. Concern of Venetian was threat to their stability by factions by nobility cuz look at Florence, rome, and other
cities with their factional conflicts creating instability. Dealt with it by bizintine selection process where officials selected by
secret ballot and formal prohibition of campaigning (this one didnt workppl campaigned anyway). Ex. in book: voting
for Doshe: council draws 30 by lot, then 9 from that, 40 elected, 12 lot, 25 elected, 9 lot, 45 elected, 11 lot, 41 elected, who
select Doshe. Provided for broad popular support for the doshe among the aristocracy, actually participating in Doshes
selection. No rigging cuz done by lot. Some control thru some elections but selecting by lot prevents rigging of election and
diminish control of any factions out there.
H. Duke. Limited formal governing power after const. same as in Rome but didnt stop him from exercising power. Doges
power came from longevity (life term) and participation in all organizations of state (knowledge)information is power.
Kept on short leash: anytime had visitors, 2 members of duke of council had to be present (6 ppl with 8 terms) so witnesses
to what he said. Council is there to assist doshe but also to control. Doshe was member of senoria (group of 10, including 6
councils and 3 senior judges who presided over meetings of Duke and senate). His oath required swearing in detail the limits
of his office (not just powers) and reread to him every 2 months in case he forgot. After Doshe died, new election. Checked
his performance for irregularities and take it out on family. Great council had great influence on beuarocracy, selecting
executive branch, and lawmaking power.
I.

But policy making was in hands of senate. To be in senate have to be nobility & 36 years old, 60 senators. Elected for
overlapping terms. Addl 60 selected by lot/drawing for 1 yr terms for nominees for outgoing members. 230/300 able to
vote. Committee of 26 w/in senate was executive committee, collegio (signoria and 16 wise men (savii)elected for 6
months, they prepared agenda for the senate, called the meetings; ran the senate.

J.

Captain general was special naval official given extraordinary powers during crises. But couldnt exercise those powers in
Venice propertyonly outside the lagoon. (Like Roman army)

K. Shadowy state agency dieci (1310) security agency to counter subversiongiven special powers w/o formal restraints
normally imposed on other bodies. Not always subversion but they controlled counterfeiting, blasphemy, sodomymaking
em subversion. Selected for 1 yr terms by great council, nobles, chosen by lot for 1-month termsmost high council of 10.
Attended by duke and duke of council. So it was actually council of 10 up to 37.
1.

Checks on dieci:
a) One of the senates attorneys could appeal a case from dieci ct. to great council.

b) Community council could challenge actions of any council; incl. dieci if he thought it violated fundamental Venetian
law.
2.

interestingly, Dieci never tried to seize control of Venetian govt.

3.

Formal Const. structure only open to nobility but informally, some democratic elements. No direct participation by non
nobles but the beaurocracies were powerful force in an organized city-state like Venice, recruited from wealthiest of non
nobility (cittadini), had no term limits like noble heads of bureaucracy, and hereditary? Equaled nobles in numbers (like
knights in rome) & lots of power. Top beaurocrat of all was grand chancellor elected by great council was non noble.
Strong interrelationships betwn govt & guilds (private and powerful institutions), service clubs (important civic
institutions). These non govt organizations acted as a check on govt. city was geographically small so nobles and
nons were close, attending same churches, etclot of interaction btwn governers and governed, could tell em what you
thought, etc. likely to be exposed to popular sentiment on daily basis.

L. Reb. Of Venice: Formal structure was aristocratic in naturehereditary among nobles/ born into land-owners. Democratic
element was nonexistent in formal structure. Middle class commercial society, ppl lived in close proximity, small size so ppl
in govt run into ppl theyre governing. Arist. In natureProvided stable govt. But by 18th century, became frayed around
edges, decaying. Yet could say the same bout Athens and othersthat theyve seen better days. But still had significant
changes over 500 yrs. Ended cuz couldnt compete militarily anymore with empire of napoleon I.
M. Machiavelli the discourses bookmore idealistic, Cicero republican view. Venetian arist. Not superior human beings,
not greater virtue. Purpose was to check diff. factions of govt and you dont need that in a platonic govt (central govt rules
the right way).
1.

30L>9L>40E>12L>25E>9L>45E>11L>41E>Doge

2.

Federalist Papers are harsh on the Venetian Republic,

XV. Dutch republic. Aspects of modern state as well as midevil and arist. Bridge between ancient city-state models of
govt/constitution and modern state.
A. Towns (each town has one vote in provincial legislature)
1.

Limit on the abilities of the regent class was the formation of the milita (civic guards), made up of all adult males but
you had to provide your own arms so it wasnt really everyone. Milita were also social clubs. Regent clas appointd senior
officers. Militia didnt always obey. Another limitation was, as is Venice, the close proximity of how people lived with
another, no gated communities or zoning laws. Also, a period or rising properity in the 17th and 18th centuries, so one is
willing to put up with a certain amount of self-interest by the wealthier as long as all ships are rising.

B. Provincial States (7)


1.

Larger towns have more influence even though votes are equal. Each town sent delegates, who were also
representatives and could negotiate independently instead of going back and getting direct approval of the towns.
Jurisdiction of the provincial states was militarial. Most important officials appointed were the treasurers, and the
stockholder.

C. States General
1.

Central governmental agency


a) Started to direct military efforts against Spain, but kept on going afterwards. United Province was started as a
temporary service that might act under unusual times.
b) Restriction on revenue, states general had no ability to tax provinces, but could against the colonies
c)

Could issue bonds with the consent of the provinces

d) Limited by each provinces 1 vote and proposals required unanimous consent, occasionally disregarded
D. Stock Holder
1.

Originally the King of Spains representative

2.

Limits on stockholder
a)

E. Thomas: reworked, modified aristo. 13th century Europe. New movement at universities and churches. Was all the rage so
became cool to challenge it. 14th century, resurgence of Nominalism/Voluntarism (concept of the will). Arist. And Thomas,
more so, viewed law as a part of some order. Human law is part of the eternal law: made by humans to further natural/divine
law. Discover that order thru use of reason but our reason only discovers what is already out there (nature) by observing.
Question: Is the reason in control of God? Some say: He chooses to be controlled by reason. Could God act contrary to
reason? If answer is yes, then idea that something is good isnt based on nature, but product of Gods will. Is law good cuz
God says so? This is the problem. Thomas tapped around this saying god is powerful and would only do the good thing.
But for him to do anything but good is contrary to his nature.
F. William of ockham: English monk. Said only reason god is all powerful and we must obey is cuz god tells us its good and
thats why its good. Nominalist. Its what you call it, for convenience is what matters.
G. Realist, Tomistic view is that what we call it dont matter: rose has certain characteristics of its essence, theres an essential
nature out there and you cant call a rose a key. Arist. View is that its in the form itselfmore down to earth realism. There
must be essence to everything.
H. Conflict between nominalism and realism. Is there order already out there, governed by law already out there. Is what god
does product of divine reason? Or is it product of divine willthat its what God says so we have to obey it. This doctrine of
divine will. Human will v. human reason.
I.

16th 17th century philosopher: Francisco Suarez: tried to reconcile voluntarist and arist. Strains. More on ockhams side.
Evidence of gradual decline of arist. Scholatisic influence. Theory of constitutions relied heavily on notion of personal
freedom, resulting in consent of the governed. This is a choice. Voluntary choice. Moving away from arist. Notion that you
form a govt. arist. Said by nature humans are political animals and reach full potential in a police. Suarez: matter of
personal choice. Uscanteum: common principles common to all legal systems; moral basis for the law; part of natural law
for any legal system to have; reflect natural law order. Suarez distances himself from Cicero, arist, tomistic views and
reduced uscenteum to a more contract or choice based system/collection that it is no more than legal principles that we agree
on, reflects nothing more than that a culture agrees on whats advantageous; agreements between cultures (intl law); we
look at intl law as not reflecting a moral essence/order but what we agree on by treaty (mutually advantageous). Nothing
more than choices among contracting parties. Does not reflect some higher natl order.

J.

Ockham, suarez, Thomas are all catholics. Protestant reformation, luther had serious problems with catholic doctrine reliance
on deeds, that they became too human, based on down here and not enuf on up there. Protestants found that its not enuf to
rely on scripture...too many questions and ambiguities so felt they had to explain, give a more philosophical basis. Groteus
did this.

K. Hugo groteus: Bridges midevil reborn aristotelianism and modern. 1583-1645. Dutch protestant. Providing expalantion and
foundsation for intl legal system. Included both natural law and human positive law. unlike thomas use of natl law
(grounded in divine law). used natl law for purely secular purpose, not for foundation of natl/divine law. pushed that point
by saying would there still be a natl law even if there were no god Yes there would still be a natl law. accepts that god is
source of natl law but explains how there would still be natl law w/o god. Natl law theory that doesnt rely on some divine
connection. Argues that we can come up w/ certain basic postulates and deduce bunch of other principles from that. There is
basic natl right to preserve your life, then out of that arises basic right of self-defense, then doctrine of just war. Arist. Says
thru observation, inductive type of thinking. This is more rationalist approach. Problem if we dont agree with these
principles. How deal w/ problem of slavery? Defended slavery. If you surrender yourself to someone superior in exchange
for your life and agree to be slave, slavery is justified. If losing a just war and your taken as a slave, its fine. Like suarez, but
influence of the time, groteus agrees with suarez. Not that usgenteum reflects some cosmic order. Focus on human freedom

and choice as source of law. natl law exists w/o god or divine law. uncoupling btwn god and nature. Becomes more
passivist approach. Useful writer for developing intl lawcommercial relations betwn countries trading, and intl public
laws (law of seas). View depends on timing and locale. Became important commericla and military power.
L. Dutch Republic. Height of military power in 17th century but remained strong thru 18th century. Like Switzerland, const.
based on fed. Principles, const. alternative to monarchic absolutism in surrounding countries. Had stronger central govt.
federalism: separation of powers in Dutch republic; characterized by division of central auth. And local regional govts.
clear govts in Netherlands btwen lower govt and central. No between king and queen . sovereign entities. Netherlands
urbanized society. Like Venice and Athens and England, London was sea-faring with powerful navy. Powerful merchant
class, 1st burgeous republic. Netherlands able to achieve the results of comm.. and milit. Power even though const. structure
designed to thwart govt power. Dutch escaped most rigid applications of futulism. Land not for social status. Property Not
hereditary. 200 families, so political power didnt match power of merchants. One reason why dutch nobility never gained
power is cuz lower countries were ruled by foreign powers. Including Spain. Long and bloody revolution in late 16the
century, when grotey was going on.. wealth concentrated in towns. Spanish had hell of a time trying to deal with revolt.
Cuz control one city, next one revolts, then control that one and the other goes on revolt again. Tried to break this but
problem cuz decentralized system. w/in merchant class which dominated dutch politics, most power exercised at local level
by subclass Regents. Families continued commercial activities but also became civil servants. And they could pass it down
to their heirs. Republic resembled oligarchy in that sense more than democracy cuz certain falimilies rose to preeminence.
1.

const. Structure: 3 tiered federal system of 65 govtal entities. At top, was States General (natl legistl). 7 provincial
states below that, w/in the 7 was 57 town govts where locus of sovereignty rested.

2.

Town govts: we see it as munipal. Theres process to become city and its governed by state law. element of popular
soveriengty. City govt can exercise local rule only to extent state allows it. Not uncommon in other midevil qualities.
Paris, London, etc. didnt have independence from king. Here they retained essential sovereignty. 1579 independence
attained. Towns fiscal authorities. Maintained judicial system, public order, welfare laws, fiscal authority, criminal law.
only thing not in charge of was military. If province passed a law (states; provincial legislature), still administered by
local officials. Small group of families, regent in each town. Town councils20-40 members dominated by regents.
TC met in secret, decisions announced as unanimous to present a united front (oligarchic) so minimize likelihood of
popular dissent. Makes decision appear weak. Attempt to paper over oligarchic type factions. Council served for life,
replacements elected by council from members of regent families. TC elected chief magistrates who exercised legisl.
and judicial functions of town. Practical limits to keep TC in check. Republic cuz power not exercised by monarch or
hereditary noble so has democratic element but not democratic cuz merchant class had upper bourgeoisie of the regent
(dominated by families). Holland provinces.
a) Check on TC was the militia, the civic guards. If disturbance arose, militia had choice of showing up or not and
happened quite frequently. only those who could pay were in militia. Heavily armed and well trained. Militia was
like social organizations (golf club)stronger identity, sense of civic duty. Middle classes and wealthier dominated
militia. Supposed to listen by Regent class but didnt. militia threatened power of oligarchy so good to make them
tryneed good publicist. Never developed a clear institutional mean to allow lower classes to express their views.
Another check is that the regents lived in close proximity. But problem with security of person. Stability: Rising
tide of economicsbenefits all, makes rule by families more tolerable.

3.

provincial states. Each town/urban center had 1 vote so not based on population but on geographic/sovereignty based
representation. Called states. Represenatation based on class too. Could select more than one representative but theyre
not the one votingtown is. Delegates of the town, members of TC, operated under explicit instructions under town
govt.representing interests of TC & nothing more so they are truly delegates yet deliberated and negotiated
independently; acting as a stand in for the town, at those provincial meetings. Principla policy purpose of provincial

states were military matters. Towns dealt with the normal law enforcement of fiscal matters, judicial administration but
provincial assemblies dealth w/ the military. Most important prov. Officials appointed by assembly. Stodholder was
Principal executive official..
4.

States general: central govt entity/ assembly. Military, foreign affairs/trade, colonial, internal commercial affairs etc.
provide for potential of strong central govt but never happened. States general had no power of taxing but assessments
(temporary tax) made on the provinces. Articles of confederation, united nations of 13 states that were assessed & got
together during war but no central govt like here so A/C gave it more power, power to tax. Taxes could be assessed on
colonies but they were too poor. Could also borrow but didnt work cuz provinces put limitation on ability of central
govt to issue bonds by subjecting them to consent by provinces.
a) Required unanimous consent when voting. How achieve unanimity? Work hard thru committees to affect
compromise so reps had power to act independentl of provinces but still needed consent of provinces. Central govt
defined limited areas, relied on provinces for tax money, need consent to borrow, rep to states general needed
consent to vote? Provincial structure: lay in the towns. Provinces relied on towns. Where was locus of
sovereignty? Who called the shots? Town Councils.

5.

stud holder of the 7 provinces. Operated at level of provinces. Holder of the city/state. Represented king of Spain.
1589+, all 7 provinces appointed members of house of orange nassau to be stud holder, not same in all 7 provinces till
1747. became Monarchy, hereditary. Stod holder of 7 provinces, Holland being largest provinces, wealthies, most
powerful so Stadholder of Holland was Stadholder of all Provinces. stodholder of Holland (William of orange) was also
stud holder of united provinces. Pres. Of highest provincial ct. so no separation of powers between executive and
judicial branchit was the one & the same. Power to pardon criminals and select town judges from list by town.
Dominant political figure. Usually ambitious and capable so strong rulers who used power to stretch const. towards
monarchy. Like power of our President. During military conflicts of Spain france England. Wartime tend to put power
in executive branch, person in charge of military. Dutch stodholder in no way rivaled/equaled monarchs French kings,
stuar kings, lord kromwell. Political limits: rivalry btwn stodholder of Holland & UN with merchant class. Limit size
of army. 17 & 18th century, refused to appoint stodholder w/o an heir. Office Vacant for 7 years. William III liked
London better so lost interest in stodholdership and left it vacant for 14 yrs. Amsterdams politicl and economic clout
allowed it to influence natl policylimited other towns cuz largest, wealthiest province. Smaller provinces could only
veto. Preserve and protect political minoritiespower not all in wealthy. Commercial focus of upper and middle
classes undercut formation/smooth edges of oligarchy.

6.

Const. limitations: institutions remained even after not needed anymore (ex. stodholder). 2 nd half of 18th century, and
now, dutch republic described as incapable? Not effective policy making. Yet fought spain and france, invaded England.
Remained united despite const. emphasis on political control, etc. 1814, Netherlands became const. monarchy and
republic was officially over. Centralized and uncontrolled systems can workmonarchy.

7.

Social limits: religion is politics. Religion could be devicive/uniting force. During this time of reformation, lots of
religious conflict. Civil war of religion. Between protestant and catholic. Holland had general toleration on religious
dissentpilgrims fed England to Holland to us. Holland had official state church but only a plurality of believersnot a
single one that was dominant. There were catholics, jewish, protestant, Baptist, lutheran etc. tolerance was tool of
pragmatism, just a good idea. Non conformists were excluded from govt. and have to be careful of openly practicing
religion. Athiest were not tolerated. Religious diversity30. showed that established church and tolerating religious
dissent is possible. Toleration prepares for political toleration. If religious dissent is tolerated, climate for poltitcal
dissent is created. Factor that influenced revolution is education. Same as Athens and roman republic. Need large
middle class (rome had huge low class). Comparatively high education/literacy is needed. Holland was highly literate,
lots of schools and town run universities. Press was high institution but still censored. 17 th century Dutch bourgeusie

sobriety, pragmatism, agreed. Vice was being cheap, greedy. Opponents vice was envy. Vandderbell search for
beesfable was denounced. Republic lasted 200 yrs. Form of govt couldnt last against centralized states. Athens,
seafaring city state, commercial oriented. Roman republic, same, large middle class, commercial oriented. Venice, citystate. All about 150,000 populationmoderately sized, same as Dutch town. Athens was slave holding, same as rome.
Venice was not slave holding society and neither were dutch but dutch has lot of can we learn anything from them or
are they not relevant to centralized govt like we have. No slaveholding, but commercially oriented. Will our const. last
500 yrs? Or are were gonna degeneration.
XVI.

England James the 1st

XVII.

Significant Political theory: Theory of Sovereignty: idea of going back to roman law. princes law and prince is not

controlled by law. some const. didnt like idea of unilateral warranty/ obligated. Like monarchy. The nobility is the sovereign.
Whatever soverign/king says is law. human law must consent with general. Not law if not toward natl justice (arist.). law is
whatever the one in charge says it is. Positivist viewlaw is what sovereign says it is cuz he has means to enforce it. Dont
judge the law to some other extrernal standard. Exercise of Gods will. Law is not product of reason reflecting on nature, but of
will. Totalitarian/authoritarian and libertarian side to it.
A. John beaudam: Doctrine of uniform sovereignty. Early modern state. Involved centralized. $ in merchant call and wanted
more political power. Merchant class could lend $. Centralizing political power in hadn of kind at expense of nobility.
Modern state diff. from midevil realm whre power divided btwen king and noblies/ secular authorities. Classic defense of
emerging const. oder was by john bodh? Ruled by One bodyking. Tried to get universal definition of sovereignty.
Where is sover. In Athens, rome, Venice? Venicegreat council, doshe, senate, all? Sover. Is one person with ultimate say.
Mixed govt so no state. Corrupt form of state is separation of power. Whoever makes the law is the sover. Governing
instiution in the state. Monarch is lawmaker/legisl. And executive. Lacks security. Sover. Given to prince subject to
obligation and conditions is not sover. Insisted monarch obligated to natl law is invalid. Like rationalization of 2 nd
principleprince is not subject to human magistrate. Law is not bound by anything other than will of legislatureit is law.
Postitivist: law based on will, not reason.
B. Thomas Hobbes: prematurely born when his mom saw the Spanish armada sail by in 1588 and was so frightened at invasion
of England. Born in fright and entire philosophy is of fright. Son of Anglican minister. Thought of becoming minister.
Religion questionable but Not atheist. Wrote Laviathan, political work that stole Unitarian sover. And unilateratl state?
Greater influence in England than bodan. 1561 published. After execution of Charles 1st, and during protection of Kromwell,
and his exile in france. Tutor to Charles 3rd? made few concessions: used to legitimate, at least equally authoritarian,
Kromwells. Natl law has no moral content. Seek peace, avoid war (like do good, avoid evil)but more limited and diff.
conception of human nature. Human nature, state of nature was war of all against all. Everyone for themselves. Starts w/
basic equality we all havewere all equal in some fundamental way. But not equal in rights or optimistic sense, but
equality that is a bad thing. Trying to escape that state of nature, not to realize our potential, but form a state by individual
will/choice so state has legitimacy by Really authoritarian. Kernel of individual rights/freedom. About indiv. Consent.

XVIII. Hobbswell fed;


A. Wrote Leviathan; fled France; math tutor to future King Charles of England; preferred monarchy but edited Lev. to make it
less monarchical and left room for Kromwell types to accept notion of all powerful state. Presents a break from doctrines in
const., legal, political, moral areas. All humans live in a state of nature. State of Nature took central role. Antithesis to
Garden of Eden. In state of nature, theres no right and wrong, justice / injusticethese terms have no meaning. Theres only
1 law of nature, being Survival. Only 1 natural rightto do anything you deem necessary for your survival (take anothers
property, rape, kill, etc.); psychology of self-interestyou evaluate actions you engage in not on basis of aristotelean

Virtues (no sense of having your conscious be your guide) but rather pure survival. View of human psyc. Is not based on
reason like all the others but what motivates you are your Passions and Drives; reason is not entirely absent, but its not what
motivates you to actit allows you to choose best path to accomplishing the desires you seek to fulfill (#1 being preserving
your life) so reason becomes cunning. In this existence of nature, you are totally free (total freedom). All people are
essentially equal not metaphysically (all from God, all share an essence/ability to reason) but cuz none of us are sufficiently
stronger/smarter to escape consequences of war of all against all in state of nature. Argument of pathetic equalityno one is
that intelligent or strong to survive by him or herself. Radical individuated state of nature. Permanent state of war (of all
against all). Lev: not necessarily that ppl run around hitting each other all the time but its the Fear that creates the problem.
Psychological war. One yearns constantly for peaceful existence, and not have to worry or fear for your existence. How?
By giving in to the sovereign and in return sovereign will provide that peace; you have to give up rights into sovereigns
control if they deem necessary to providing security/peace except for right of nature (inalienable right to life). Like blueprint
for totalitarian regimes of most intrusive and controlling sortwhatever is necessary. No conception of justice or law. law
can only come about thru action of a soverign who can enforce the command that is law. in state of nature, cant be done cuz
no1 strong enuf to do it. Law is a purely human construct, not part of nature like arist., but part of arthuman creationits
artificial. Since law only exists in society, right and wrong (morality) cant exist outside of society cuz morality is that which
I find convenient to further my desire for peace so that I may consider it the right thing to do (to obey laws) only cuz to fail to
obey would bring sovereign down on me. Morality is that which provides the greatest peace / pleasure to me which creates
the least intrigue to me. You are moved by that which helps youselfish. Jurisprudence of egotismeverythings done out
of self-interest, for your own benefit. Right and wrong come from the law, what soverign says. Free to break contract if it
serves your interestit take sovereign to enforce it. Positivist view of Lawthat which soverign says it is, created by
humans. You have no natural rights, except to life, only civil rights when part of society (soverign). Sovereign must preserve
peace of commonwealth, and if youre threat to that, sovereign has power and duty to execute you. Yet indiv. has natural
right of life. Its understood that you will try to kill everyone to protect your life from us trying to kill you and if you can,
sovereign failed. Showing how the state works as a machine, via scientific inquiry.
B. Hobbs says:
1.

There is such a thing, as a natural right, the govt cant take away from youright of life.

2.

Looked at emphasis on individual freedom in state of nature, and from that freedom, govt created by human consent
voluntary, artificial (product of human choice directed by human will). Focus on human action, not Gods action/law.

C. Problem/criticism is where did the sovereign come? Says sover. Can be selected, created by choice OR by conquest.
Kromwell wasnt chosen by popular vote. If sov. A is taken over by sov. B, sov. A must not have done a good job of
providing peace. so sov. By conquest is possible. Utilitarian approach. Law is artifical construct created by humans. What
do you do if youre a soldier in a defeated army?you surrender or go home if looks hopeless cuz your sov. has failed to
protect you.
D. Scientist of state craft. Absolutist. Utilizing tools/means on how to best survive.
E. Defender of royal absolutismRobert filmer, England, wrote a couple decades after hobbes. Kings ruling by divine right:
equated King, head of family, to Adam, that God gave Adam dominion over the world. God imposed order v. Hobbs (secular
and humanistic).
F. Hobbs was so shocking that there was lot of reactions. German philosopher, samual pufendorf and John Locke. Pufendorf:
theres dignity to humans and human nature. Sometimes weak, and intellectual capacity gives capacity to do evil. There has
to be more than might makes right. Everything must serve a purpose. Old argument is why do we have appendix, mosquitos
whats their purpose. If god gives man soul and intellect, there must be reason for that. God created
physically/emotionally weak creature so man would be more social and interact w/other men. Part of mans nature / natural
law is that man has social inclination and natl law helps man realize the social inclination. Closest thing to hobbs state of

nature is civil war or intl relationsrest of it is ridiculous. Best way to survive may be to be nice. Based theory on groteus.
Rejected groteuss epistemological view: empirical theory of natl law where you look around and see whats consistent
across cultures and thats how you discern what natl law is. Pufendorf says problem of a lude and wicked custom that
confuses the familiar with the right. Ex. slavery. Just cuz you do it doesnt make it right. Practice dont make it right. Is law
obeyed cuz of force (imprudent) or cuz it reflects what is right (and youd obey it even if it wasnt there and no punishment
for disobeying it).
XIX.

Locke

A. Major critic of Hobbs. Wrote about it a generation after Hobbs. 2nd treatise on civil govt seen as philosophic, political
justification of const. after 16__, abducation of __ and of orange. Published in 1691, 2nd treatise attacked hobbs. Scientist,
and big inquiry was essay of human understanding, idea that were born with blank slate, and any knowledge is thru
associations over time, we train children, so behaviorist approach to human learning. Plutonic view is that what you know is
recovery of what you already know, not born w/ blank slate, but knowledge is regained after shock of birthlike when you
say oh, I got it! and light goes onknowledge of intuition. Locke was very modern for his time, strong on idea of human
action and growth, not on idea of inherent human nature. Radically diff. from Hobbs. Connects existence of natural law to
God. But natl law can be known thru reason. Natl law would exist w/o god. Has to be natl law (like pufend. And arist),
theres purpose to human natureto know God. Natl law helps us participate thru reason, in divine order. Prove existence
of natl law thru conscious. Why would we have conscious if there wasnt a moral order out there already. There has to be
natl law cuz no restraint on sov. whatsoever and they can do whatever they wantbe as brutal as he wants so if no natl law,
human law of sov. wouldnt be worthy and obeyed only cuz fear of force and not from any sense that law has moral basis.
Theres moral basis for law or not worthy of political obligation from state. Govt is deserving of political obligation cuz
theres a moral / ethical basis for them. This is the prob. In hobbs theory. Merely obeying law cuz fear is not legitimate.
B. Theres state of nature, but not war of all against all, rather a pastoral scene. Ppl get along well. Not garden of eden, but more
so than hobbs. You can form interpersonal relationships, associations, man is not a radical individualist like Hobbs says.
Allow for building of human associations (economic, religious, social, family). There are diff. stages in human development
similar to arist. (family, village, police). There is a social aspect to humans that we realize and achieve. Political association
is later development based on choice. Humans are naturally social and will form social associations (family, guilds,
partnerships, religious organizations, etc.). but political organizations are diff. from religious or social org. cuz its a
conscious choice formed later. Arist. Was more communitarian where police was more than just a polit. Org, it was cultural,
religious, part of community life. Locke makes distinction betwn pre-political and political society (state). It is choice of
human being (like hobbs, but both got from Richard hooker and Socrates). Everyone must consentpurely voluntary so
could choose to stay outside social contract. (with Hobbs, you cant be outside). You are totally sov., exercise pure freedom,
so could be outside since were naturally social. More uplifting view of human nature than hobbsppl get along.
C. What moves you? Convenience.
D. More Individualistic approach than arist. (communitarian): human endeavors predate the political state. U dont need govt
thats been used by anarchists and communists. Hobbs (animalistic indiv. living in perfect freedom). Locke has stronger
social element than hobbsfrom pufendorff. Premium notion of Property: property has no rightsthere are human rights
that you have in property, which are natural rights. This notion of property is from sovereignty that you have in your person,
we are all sovereign individuals, perfect sover. Of the indiv, in himself, in state of nature. And everything we do is purely
voluntary association, based on indiv. choicereligious & social groups; cant force you or force yourself upon others. No1
can step on sover. of someone else. You have property in your person; you own yourself (self-owenership); you have
complete control of yourself and no1 else (sovereignty). Against Slavery, but okay if based on conquest cuz inconsistent to
agree on it. Mixing labor with property/land. Agrarian societywork the land. So now its become a part of you by mixing
yourself in w/it. The only limitation on your acquisition of prop. Is spoilageif u produce a bunch of grain and let it sit there

and rot wont be your prop. But thats been alleviated by $$ so no worries bout spoilage. Ex. English water lawu could use
whatever reasonable amount of water, but cant waste it. Mix it with your labor and it becomes your prop. So y leave state
of nature? Matter of convenience. Theres always gonna be some bad ppl who disrespect your sover./ prop. and take it, or by
mistakediff. in opinion, confrontation as to boundaries of prop. lines. How resolve? Arbitrator to arbitrate disputes.
Natural right to own prop. but nothing natural bout one of the disputing parties to decide so need judicative body to resolve
disputes. Thats why we leave state of nature cuz unnatural to judge our own disputes. Its matter of convenience to leave
state of nature, to resolve our disputes by creating political society. Freedom is fact. Hobbs says freedom is a right. We
agree w/ ea. Other to form a political commonwealth and well place govt in hands of someone else. Indiv. choice based on
due reflection, (both with Hobbs, based on self-interest, but Hobbs has sense of urgency, life & death whereas Locke is a
choicenot a need, a wish). Nature of governing entity & constitution will be diff. from Hobbs. Hobbsturn it over to a
leviathan, a strong man, like a powerful monarch in neighboring country where you agree with ea. Other and surrender to
him. Locke, you agree but no surrenderits a trust given to govt, trusteeship (Separation of legal control/ ownership from
equitable rights of enforcement and benefitsex. giving trustee duty to hold rights for your kids and does it for money or
family obligations, trustee has duties, kids have rights. Knipprath: Family has natural inclination to help ea. Other, less
among strangers and much less from govt. Locke: put trust in hands of those selected to govern. Conveys that this is a
govt of limited powers. A trustee is given limited powersrestrictions on their power. Limited by very reason of existence
of the trust. Govt power is limited by social contract and inherent nature of why govt was created in 1st place (to make prop.
interest more secure). Govt established for making your prop. interest more secure, conveniently maintained. Do so by
judgment of cause, select legislature (monarch or multiple) that make rules for society so acts like a trustee and must always
remember objective to protect your prop. and not for your salvation or to be all you can be (this is done thru nongovernmental institutions like b4 political society was formed). Dont need govt for education. Govt needs to be watched
as you seek to maintain your rights in life, liberty (general freedom) and prop. Legislature, law-maker, is bound by terms of
social K. limited form of govt, cant exceed trust agreed upon by the ppl in selecting legisl. Published in 1691. basis of our
consti. writing when English colonies are starting to grow so if you dont like what govt is doin, u can just move 10 mi.
west and be by yourself, in a new state of nature. When we form polit. Society, if you didnt agree, you didnt have to join;
remain in state of nature and not be part of polit. State. Polit. State is separate from social aspects of human interactioncan
attend our schools but not join. Weve seen nature in diff. ways throughout our history: Indian as noble savage unpolluted by
politics, and Indian as savage. If social K broken, breached by you by not obeying rules, violating rules of society, others in
this K with you must do sumpin bout itpunishment. Youve agreed to it cuz part of social K. what if govt breaches by not
restraining those, goes beyond limitations and what is necessary. Right of revolution: once let out of bottle, gotta figure out
way to restraint/control/channel it. So what can u do if think govt violated social K? move. But if cant remove self, ask is
there reason y no1 else if bothered by this, am I wrong? Right of the people, but how much of the pplmajority? Theres
Ppls right of revolution but never resolves this. Human law contrary to social K, laws of natural choice. Social K exists to
protect natural rights (life, liberty, property), but is voluntary.
E. If social K formed, powers placed in hands of trustee govt, time passes, kids born. Kids didnt sign K so are they bound to
K? u bind yourself and successors, heirs in the language. But takes away from indiv. choice cuz your heirs are bound by
something youve done. Or: when youre minor, dont have competency to decide until adult. Once adult, can choose to
remove yourself or accept benefits of political organization by using the course (kings highways, govt fire dept.), then you
have tacidly/passively consented to the rules imposed on you. Choice depends on 2 equal alternative (state of nature and
system of govt). how can you choose here? Problem of free rider when talking bout common defense. Where can you go if
you dont want part of it? No prop. rights cuz have to pay taxes. How can u get away from state? Choice/consent dont
make sense. Social K is a construct, not reality, that helps create political obligation and legal obligation to obey laws. Once

defined as construct undercut its legitimacy. Says indiv. choice was something that once existed. But then question if human
nature even exists.
F. Natural order v. Human will, choice, action. Secularized by hobbs, then others. Hobbs, groteus, locke were protestants.
Ockam and acquinias were catholic. Protestant accused catholic that their faith became too detached from scripture and more
on human choice. Protest. Emphasized human understanding of scripture, faith, indiv. choice and action. When becomes
secularized 2 strains emerge: locke and hobbs (totalitarian). Neither works well w/ catholics (not individualistic, order of
things tends to ameliorate any tendency towards totalitarianisamhuman choice/will decideing leads to locke version or
positivism (Hobbsno right wrong, morals for convenience)). Pre-existing order v. individual choice, prot. V. catholic.
G. John Austin-analytical framework, unlike hobbs, but both positivist. Like utilitarianism. 19 th century English jurisprudent.
Lawyer. Not successful at being professor. Well acquainted w/ Jeremy bentham, james millleading utilitarians of the day.
Ethical component to his positivism, its util component. Analytical framework of posit. Rationalist approach, based purely
on reason & speculation. Definition of Law: its a command from a political soverign to a political subordinate where the
sanction is enforced by the state. If law doesnt command you to do anything, its not a law (ex. law that repeals antoher law).
gotta be from a sovergn to a subordinate (gotta locate a locus of sovergntyproblem in u.s. govts divided sov. but found it
in England). What is Locus of sov. in u.s? groteus has system of intl law. Austin says there is no intl alw cuz no sov. so
when u have treaty, u have sov. talking to sov., not subordinate. Could be a custom, or morality. Has to be enforced by state.
(divine law enforced by god, natural law is not law, constitution is contradiction in termsoxymoron cuz no way for state to
enforce it and its not law but like a positive morality thats not enforceable, no intl law). command doesnt have to sound
like command but it is (ex. I think it would be a good idea if you cleaned up your roomsounds like suggestion/request,
but its command; or like a choice its up to you to have an affair); command can take many formsimperitive school of
law, but its positivism.
XX. English constitutional system: 17th century was a major period of change in eng. Const. (emerged at close of 17th century) was
diff. from that at beg. Of 17th. Unlike dutch republic and colonies (u.s.), england had no diffusion London was urban center of
commerce w/ pop. Of lil over million. Much Larger by a factor of many than any town in u.s. at time of revolution. Virginia
had million. Until civil war, cavaliers v. cromheads, England had no standing argument. King had palace guard and some
soldiers. When he had to fight parliament, fled London cuz no troops. After restoration, had sizable army. During 16 th, England
had govt w/ concentration of most political power in Europe, with France behind. Ex. Henry 8th. No division of power betwn
church and state. King established himself and head of church in England. Parliament was not a truly legislative body. Powers
concentrated in king until after the tudor dynasty gave way to stuards (James 1st of England, 3rd of Scotland). Powerful monarchy
had all characteristics, then changed to republican characteristics. One change that influenced this was official Anglican church
(light Catholicism). Other prot. Sects who believed to be the only Christian groups, except quakers. Religious toleration became
best policy. Change in 16th and 17th century. religious toleration took root, so pressure for tolerant political views. Leads to
greater personal freedom. They all go hand in hand. Institutions appear and flourish that exercise limitation on power of state.
Not parts of govt, but informal systems of order outside formal const. structure, compete for allegiance of ppl. every totalitarian
govt will try to destroy all those competing institutions, such as Church, social clubs, labor unions, busin.org., family. France
was catho. w/ temporary tolerance & inst. Competing that softened royal.
A. Magna-cartas 1229, parlament emerged as an advisory council to king, not legislative, but gradually gained power to veto
royal taxesdeveloped as const. custom over 3 centuries. Legisl. Was by crown and common law cts. Parl. Composed
entirely of prop. holders. Security of prop. depended on ability to control kings power to tax. King always wanted $ by
taxing so created insecurity of prop. parlament had to give consent to taxes. So couldnt be taxed on their prop. w/o owners
consent. If house of commons agreed to tax, they consented to it and was like a gift to the kingsounds voluntary. But not
everyone who paid taxes was in house of commons so how can they say it was gift from them? But youre represented in

house of commons, they represent the class that is the commons & youre represented there by virtue of being part of that
class (virtual representation); your interest is represented there even if u didnt vote for em. Commons is property class.
Lower class is part of commons cuz not king or nobility. Commons have to give consent cuz no taxation w/o representation,
& youre not represented if They werent legisl. So king didnt always have to call em and when they did, king would try
to control by limiting their use for a specific purpose/reason, then when parliament got feistier and thought that now theyre
finally called to meet so try to get more power, so king wouldnt call em anymore.

Parl. Had Right to act as a ct./judicial

mangna coreahigh/great ct. Diff. from any other royal/common law ct. cuz authority over charges of crown and its
ministers1649, house of commons of King Charles 1stsaid cant have jurisd. Over king so didnt make defense. Kings
never recognized this autho. Over king. Practice of petitions presented by subjects of king to reps in house of commons that
claimed grievance from royal official, king didnt protect em from this royal official, so went to parl. These
grievances/petitions to commons were fake. Made up, when a member of house wanted to make a point. Made for good
political theatre and points for political control. Parl. Tried to make granting of petitions a condition for their assent to kings
taxesso established pattern that eventually they granted petitions themselves and acted like ct. during reign of charles 1 st,
parl began attempts to impeach royal officials and eventually he refused to call parl. To session for like 11 years even when
taxes desperately needed. Then they said king cant stop em from speeches and meetings. Tussle started over taxes and parl.
Trying to find new way to find power, resulted in trial and execution of charles. After restoration, not much different. Parl.
More like legisl. Bodycould meet regularly. under charles 2nd, monarchy v. parl. James 2nd, after charles 2nd died, saw
return to monarchy but wasnt gonna happen w/ how far parl. Had come so lotta friction and eventually overthrow of james.
Then parl. Offered William of orange the crown. 1689, more power in crown and commons than today. Now power is in
house of commons. William didnt really buy into that power of commons but after him, it was constantly told to later
monarchs so more sense of parl. As legisl. Body. Separate executive auth. Crown was no longer law making auth. Judges
still under control of crown, but moved toward control of parl. Royal ct.s were just part of administration. So republic
emerging. Growth of power of parl, the elected bodyrepublican element. Division of power, class-based system (not like
u.s.). plubeus would see it as mixed govt: monarchy-king, house of lords, democracy-parl. By end of 18th century, clear that
sov. was house of commons. In 17th , division of crown, lords, commons was not based on function (exec. Legisl. Judic), but
on class. By 18th, notion of parl. As self-consciously legisl. Body was clear. And more like functions w/ crown as exec. But
no judiciary.
B. Granted by the king, who can also ungrant it at any time. Rights arent inherent; they are just given by the king. If congress
grants you rights then congress can take them away.
C. What is the ethical justification for the state? Intellectual level, the change in English political theory from the beginning to
the end of the 17th century. Bookended by Hobbes and Locke

XXI.

Declaration of Independence of U.S.: embodiment of grievances against perceived abuses by ministers of george 3 rd. it was

long process over many years. Began as soon as French military was kicked out of north America so no longer a threat. Britishs
clumsiness & colonial hyper-sensitivities. Colonials wanted stuff but didnt wanna pay for it thru taxesthey were the least
taxed everywhere (only 2% of total wealth). So increasing friction betwn colonials and british. There were shootings of patriots
(terroristsfreedom fighters), engagements between british forces and patriotic militia (bunch of right-wingers)state of

simmering hostility. War was goin on before July 4, 1776. British felt colonists interests were represented by house of commons
virtual, class based representation. Same as us voting for a rep. and hes not elected so how is the opposite person representing
my interest? Same as virtual rep. except its geographical and not class based. But he represents those who think like you. Was
the british system that unfair? Its like ours. Decl/ind. Is a legal brief; a bill of particulars of how british govt has done us wrong;
not a governing document; its a manifesto. This list of grievances accused king of goin beyond law (law is nature, nature is
God). Disconnect betwn nature and God. Jefferson describes as being diesttheres a force out there, passive God. Some of the
grievances in d/I: accuses crown of having violated ancient rights of Englishmenreason why amer. Revltn called conservative
revolu. Cuz said colonists were rep. ancient const. rights of Englishmenso trying to say they violated social K and trying to
overthrow em and re-establish social K as it was (locke).
A. We hold these truths to be self evident that all men are created equal, endowed by creator, life liberty happiness: how do we
know we are endowed by these rights? They are self-evident truths. Not all equal cuz share common essence (nature), or cuz
all Gods children. How could this be true when there are slaves? Jeffersons previous draft condemned slaves but took it out
cuz others found it controversial. Take in a metaphysical sense that theres a potential in all of us. Not that everyone is
equally talented or equal positions in life. Metaphysical, like arist.
B. Endowed by creator of certain inalienable rights: indiv. rights we have cuz u are u. u have right as indiv. creature.
C. Created by god
D. among these are life, liberty, & pursuit of happiness. Locke said property. Dunno y jeff. Put happiness. Happiness
seeking fulfillment, being all u can be, personal fulfillmentin aristotelean sense. Locke too: we are rights bearing
creatures cuz created by God.
1.

Have govt to secure these rights. And thats what govt is there for: to create conditions to more effectively proceed
along road of life, lib, happ.

E. ..Derive just power from consent of governed: govt not product of nature.
F. Whenever any form of govtthese endsright of ppl to: Lockes theory of revolution.
G. Prudence will dictatecausesmankind moreaccustomed: ppl put up w/ a lot of stuff from govt and wont easily resort
to changing govt. gotta be really ticked off to change/ overthrow. Ppl usually dont like existing govt but wont change it
cuz could be worse and look at opposition and looks better. Ppl dont look 4 excuse 4 revolution.
H. Social Klocke, dominant intell. Basis 4 legal obligation in 18th; grievance list:
1.

king george failed colonists by preventing immigration.

2.

interference w/ our trade keeps us out of certain jobs and trade routes. Sets up economic protectionism. We want free
trade. We can out compete the british so they set up these laws.

3.

didnt secure the frontiers. Had merciless savages, Indian tribes. British govt failed to protect em and even stirred em
up against usinconsistent w/ purpose of social K.

I.

lockian influence. To what extent is d/I law? its not part of const. law, but to extent that it reflects natural rights
principles/law, could be used to interepret clauses of consti. like due process. Revolutionary documentto justify revol. But
for any govt to govern, must have const. any organization has a const.: business, unions, associations etc. Even if not
formal written const., itll be by practicemust decide whos in charge: all or one., and hows governing power gonna be
carried out: majority vote, etc. for pres., etc. so we have Const. of U.S.

J.

Locke priniciples (social K) in D/Icrown breached its obligations under social K, violated const. & colonists are simply
setting themselves right (breached so released from K obligations).

K. Writer of D/I saw themselves as the agreed party setting it right; as protectors of the ancient const. order. So backward
looking theory under D/I (not forward lookingcreating new order).

L. Strong manifesto for revolution. Tension between revolutionary and const. govt. Also, Tension btwn war and constitution
is there such thing as const. govt during wartime. States were in a revolutionary state in 1775-on. They tried to create a
legitimacy thru adoption of constitutions at state and natl level. These const. took on form of written constitutions.
1.

y written? When English const. is unwritten. Less of diff. in practice than in theory. Engl. Const. may be unwritten, but
there are documents that support it, just not in organized coherent doc. Called const.ex. magna carta was written,
statutes/acts (act of supremacyroyal control over church of England). Amer. Const. is unwritten in that there are
developments reflecting customs outside of written doc. Itselfsuch as ct. opinions interpreting const. is custom and
they dont have to be written; common law of const. that develops; customary evolution that may change original
understanding of const.; unwritten aspects of amer. Const. thats significant in understanding it. Model of engl. Const.,
being unwritten & customary, dealt w/ political organisms, v. amer. Const. written so seen as form of law. Why written?
Instant Legitimacy. British had gradual evolutionary process and things were slower. States didnt have that time and
needed legitimacy quickly; creates clarity to order, establishes political obligation to say y are british any better & y r we
obligated to obey you rather than forced to obey you? Colonial history of written const.to further things along quickly.

2.

Several types of colonies, other than crown colonies:


a) represented by Virginia Company; ex. Pocahontas Disney moviecolonization of tide water area by Virginia
companybut John Smith was mercenary, not sensitive guy, hired by virg. Co. as chief enforcer, short and stalky,
not blond, not clean-shaven. V.co. operated under joint stock companylike corp. w/o protection of limited liability
(corp. were few in those days and crown monopolies, modern corp. didnt develop till mid 18th and 19th centuries so
it was unheard of). Bunch of investors who buy stock in co. as investment and funds used to lease ship, hire captain,
sailors, to take food across, equipment, defenses (military), and entice ppl to come across ocean to the new world by
saying look for gold, and turn over percentage of their find to v.co. John Smith enforced that theyll look for gold.
To protect rights of investors, duties, those who go over to settle colony, how colonies gonna be administered
whos in charge, how powers gonna be carried out. This is a constitution. Didnt work. Not best place to find
gold and if you did, y pay v.co? just moved. No gold, but found golden leaftobacco. Then tried to denounce it in
1609 that it was bad for health, lungs. So knew for long time but juries were smokers too. Tobacco saved Virginia
colony. Collapsed by 1620 and crown had to take it over.
b) Proprietary colony: king owes favor, or get rid of someone whos pain in ass or combine into William Kent. Give
charter. Colony became proprietors property. In charter, it was specified what king and proprietors rights were,
taxation, etc. settlers called on king to protect em from proprietors sometimes. Separation of powers at diff. levels
of govt: proprietor and king. Charters operated as constitution. Who is governing power, how carried out,
limitations on power.
c)

Pilgrim fathers (PF), religious cult. Unlike presbytarians, & more than puritans, they were religious separatists. PF
said these ppl r so polluted that theyre gonna create own life; puritans too. PF were intolerant. Not to create
pluralist society but to create city of God on earthaerithocracy. Had permission to go to new world so set sail on
mayflower. Had permission to settle on virg. Land but missed it so settled in Mass. Men of colony entered into
agreement saying why they were there and created governing orderthis K was signed on Mayflower and known as
mayflower Compact. Type of covenant since they were religious. Theocracy so in relig. Language, served as const.
Mass Bay-puritan colony, RI, CT, were all covenant colonies. Ks like a social K. agreed to form society by all
participants volunatarily joining & how gonna be governed.

d) V.Co. was joint stock co. but needed kings permission to operate. Proprietory was grant from king. Covenant was
agreement by governedno permission from kingindependence from crown that other colonies didnt have.
Mass was a pain in kings but cuz they always thought they were independent of crown cuz covenant and treated
king as foreign country. Long struggle in 17th between puritan oligarchy and crownking won so all these colonies

became crown coloniestheoretically personal prop. of king and administered by kings agents. NY was crown
colony, directly under control of king, more so than Mass so not as many prob. As Mass.
3.

History of diff. const. forms. Every society has const. to establish y should we listen to anything u have to say? Most
intolerant colonies (quakers didnt settle in Mass. Bay, but in Pennsylvania cuz intolerance) had most significant idea of
consent of governed. Close relationship betwn political religious organization. Voluntary joining/consent of governed.

4.

These werent formal constitutions. Better model of const. was in CT 1639. Ct river valley towns decided to form a
single colony. Fundamental orders were bridge betwn engl. And amer. Models of const. like amer cuz written, like engl
cuz fundamental orders could be changed by vote of general court that exercised legislative power and other powers (cuz
no separation of pwrs). Familiarity of written const. carried over to time of independence so comfortable w/ written
const. and instant legitimacy.
a) Not a clear separation of powers
b) Approximated parliament and by necessity so it cant be so involved
c)

Clearly religious connection between the bidy polotic and its purposes

d) Short terms: 1 year


i)
e)

Taxes
i)

f)

Rotation in office
Equal representation

Rhode Island (Proprietary Colony) Penn NJ Maryland Carolinas Georgia etc


i)

Grants to and individual by the crown directly, not stock colonies

ii)
5.

const. has permanent framework for legal political order telling you who governs, how carried out, and explains
objectives of y its adopted, and limitations on govt. at core of states const. was theory of republicanism. Not monarchy,
or aristocracy so republican. Varied from state to state and diff. from today. None wanted mixed govt (locke, palibeus).
Not like const. of 1787 w/ separation of functions. In 1770s, const. was roman republicanismactive, civic
republicanism, duty to get involved in affairs of commonwealth (race publica), rep. principle best embodied in
legislature. Historical distrust of any polit. Body other than legisl. Or lower house of legisl. Cuz evolution during 18 th of
colonies that were not crowned of taking over so governers appointed by crown (could be locals). Ex. family feud: ben
franklin was penn. Patriot and son was royal of NJ. Lower houses of legisl, assemblies were chosen by voters so could
be trusted best. Voters were at least middle class, female slave minor and many couldnt vote. Amer. Notion of direct
representatioin developed. Governing councel (prominent & wealthy locals) selected by governor. Judges in lower ct.s
were local, but appellate and supreme ct. judges were run by governor. Judges were tools of crown. Only trust
assemblys so given tremendous power. Upper chambers sometimes eliminated/reconfigured to make more republican.
Governors kept on short leash: selected by legisl, short terms, term limits imposedif longer term can only serve 1
term, impeachment and removal. Cts also could be impeached, legisl. Or governor w/ legisl. Appointed appellate
judges. So concentration of power in the branch seen as reflecting rep. principles. Very few restrictions on legisl. War
w/ England winds down, over in 1781. things returned to normaldont have to worry bout british coming back and
invading. Everyone unites when invader and when gone, dysfunctional again. So now go back to making $ and fighting
amongst ea. Other. Civic involvement idea can only last so long. Legisl. Was interfereing w/ rights of liberty, property,
establishing state churches. So 2nd wave of state const. in 1770s, 1780s. states w/o legisl. Adopted bicameral legisl.
(dual legisl, 2nd chamber of legisl) to keep lower house from goin nuts. Rebellions, riots, political pressures created these
const. changes. Governor given more independenceveto over legisl. When violates fundamental const.. Cts also
given more indep. Impeachment changed from not being polit. Tool, like engl. View of impeachment where u cant

remove ppl just cuz you dont like their opinions. Longer terms, but still enforced. Const. produced bills of rights
more conscous of this than old one.
6.

Natl level of const. primary emphasis in const. and polit. Organization was in states. Ppl identified with states. But
there was still u.s.a., there was flag, made treaty, there was u.s. navy, etcaspects of a natl govt. Articles of
Confederation was like const. of republic of u.s. A/C drafted by 2nd continental congress and sent to states in 1777.
unanimous consent by states, took till 1781 for it to be adopted by all the states. 4 year hiatus where confederacy fought
and won war of independence. Revolutionary govt, but was it const. govt? they were recognized by states, but what
were they operating under. Operated under ungratified A/C, acting as if they were ratified. Evolving const. custom.

A MORE perfect union. Constitution was a continuation of the articles of confederation


XXII.

Writers of Const.: Republicanismtheory of political obligation created thru consent of the governed, which derives from

sov. of the people. Theoretical aspect of sovits in the people. Practical aspect? Difficult to define what is meant by sov. , so
what is republicanism? The Collective v. Individual (rep. v. monarchy). Carolinas asked locke to draft const. & it was
aristotelean notion of politeamixed govtrepublicanism. Aristocracyland ownership based, narrow. He rode in on White
horse & big mistake cuz its symbol of monarch. Roman virtue of civic involvement. Suffrage/ voting rights based on property.
Representation focused on property and population. Property based notion of political participation. Those who own prop.
considered to have more stake in society cuz prop.owners and tax payers have to pay for these things. republ. Priniciple in
concept of constituent assemblyidea that, @ end of 18th, amercian approach to const. making. Such that it was amendable by
majority vote of legislature. No clear distinction btwn const. and legislation. This notion still in british house of commons where
sov. practically liescan make const. changes by maj. Vote of house of commonscould abolish monarchy if wanted to. Cosnt.
Grows out of republicanism. B4, it was social K, popular sov. was individualist. Republ is consent of governed. Choice of ppl,
not legisl. Legisl. Is agent of the ppl. Laws are the declarations/actions of legisl., pursuant to const.legisl cant make const.
theyre created thru it. Constituent assembly is outgrowth of practical aspect, ppl dont vote on const., but there are const.
conventions to draft const., they were larger than legisl so represent diverse interests, not a general legisl. Body cuz all they did
was work on const. now, this is pushed on countries coming out of dictatorship, republics followed this approach of constituent
assembly. Change betwn positive repub. (civic involvemnte) and neg. republicanism.
A. Focus on notion of stoic civic virtue of involvement, epicurium, drawing from public life & govt does lil as possible and u
mind your own business. Lockian theory of limited govt, political life is one small aspect of total life and rest of life doesnt
depend on pol. Life.
B. Neg. republ. Is not saying be hermit, nothing wrong w/ community but mocking govt run community?
C. Change we could see from earlier const. @ state level and that of mixed govt is that mixed govt notion of dominant legisl.
Representing some group & quasi-aristocracy from prop. owners, its still there in earlier const. but by 2 nd wave of state const,
moved to system of separation of powers based on functions of govt bodies. Ex. Mass const. of 1780exec., judic, and
legisl were separated. Move from mixed govt (English theory) to clearly different, American theory where check govt.
XXIII. Articles of confederationthe 1st const. Is it a const. at all? If const. identifies some group, whos in charge, and how
exercise the power. Was there intent ot create unitary political community where members agree whos in charge and how
exercise governing authority so rulings were owed political obligation so institution could make human law & were obligated to
follow it. It was definitely a plan of govt, not for profit, or religious. More like treaty/ allegiance among separate states. Talked
bout each state being free and independent, but also u.s. has powers independent of the states. Dutch republic sounds like this
Locus of sov. in the towns, powers the towns could confer to provinces. Here, locus of sov. at the state level instead of towns.
Deals with colonial, military, foreign policy, and had a flag. Article 2 can be read either way. Article 3: single nationone flag;
foreign affairs, treaty w/ paris that ended revolutionary war was signed by u.s., not a state; continental army, continental currency
this isnt worth a continentalnothing, continental navy; so had defense, foreign policy, the flag. Colonial policycontrol
over territories; all the lands to the Mississippi; conflicting state territories cuz expand & it overlaps; if u.s. takes over, favored

open immigration so put ppl in the unsettled land so need colonial policy to colonialize the area of indigenous population (not
putting land to great use).
A. NW ordinance of 1787blueprint for colonization & de-colonizaiton (turning it into state); statute of const. significance cuz
important to organization of govt, statutes filling in the gaps of const.; judiciary act of 1789statute of const. dimension
cuz created fed. Cts & assigned their jurisdiction. Ordinance of 1787describes how the territories were to be set up
become states, concerned governing of large part of nation; important cuz: showed potenetial for cohesive natl policy;
supports idea that A/C is a const.; example of sectional compromise with problem of expansion & slaveryserved as model
for at least couple of generations, and created blueprint for other territory laws until const. was adoptedconst. basis for
manifest destinycreated pattern for future bill of rights.; originated from proposal from southern states; Article 1
protection fro religious liberty (worship, conscious), 2included parts of b/r (repuired proportionment in legisl.) 3
importance of setting aside land for schools & to further education (but talked by importance of religion, morality &
education. 5procedures fro admission to statehood. 6prohibited slavery in NW (13th amendment) & permitted recapture
of fugitive slaves is he was in original state. Evidence that A/C are a form of const. most treat A/C as a cosnt.
1) Charge from Virginia legislature is to make amendments what is an amendment?
2) Could rules for adopting amendments change or are they stagnant?
a.

Can a constitution be made that is unamendable?

XXIV. Adoption of Const. 1787: weak executive, no independent federal judiciary, had congress that could propose laws, but had to
be maj. Vote of 9/10. But controlled by stateslike dutch republic. To amend, need unanimous consent of states, sent to all state
legisl. And they approve it. Problems: ppl goin back to their own interests. Protection of business against foreigh competition.
Competition of scarce resources. Inability of congress to respond to tax rebellion (Shays tax rebellion). Virginia & Maryland
found solve problem by having conference and working out a treaty. Issued report drafted by alex. Hamilton. Convention so all
states delegates could attend. Reponse of confederation congress was nothing. But hamilton proposal woulda been revolutionary.
Existing const. order was King George III & revol. War fought against him. How deal w/ existing const. systems. Hamilton
already proposed this in 1780. still no unanimous consent. RI was const. bad boy so very frustration. By 1780, Hamilton had
nothing, told em to scrap articles, unanim. Consent to A/C. revolutionary cuz A/C provided (art. 5) how they were to be amended
(required congress make proposal, which is forwarded to several states, legisl. Of the states vote on it & if they all agree,
amendment is affected. Eventually congress called for conventionwhere they wanted proposals presented for revising the
article. Every state agreed and sent delegates to convention of 1787, except RI. The plan that evolved provided for stronger
central govt independent of state control (Federalism), strong & independent Courts (sep. of powers based on function) and direct
checks on govt at natl & state level. Major points were: Virginia plan (Randolph/ large states plan)focused on natl
supremacy & strong nationalization, bicameral government. People as population elect House and senate is elected by the house
according to population. National executive and legislature, council of revision of legislation, Central power over the state when
incompetent, goals of confederations are valid within themselves, mere amendments. Gouvenor Morris proposed resolution was
rejected. To act whenever states were incompetent to act (Madison). Gave power to coerce states by armed force if failed to act
w/inbased on population. NJ Plan (small states plan, Patterson plan)competing version4 state sov. & central govt
(Supremacy Clause)states as own entities and upper house selected by states, lower house selected by ? Smaller states were
not gonna adopt large state plan cuz fear of being swallowed up & enough numbers that they didnt have to so small states plan
adopted. NJ Plan was adopted by large states. Southern states favored large states plan, whereas Northern states favored small
states planStrangebut North feared that w/ immigration it would be left behind cuz S. had better growing period for crops so
immigration would be attracted to S. (better land) and grow in population, & also thought Southerners were more fertile & gonna
reproduce more. Only 39/55 delegates signed const. Opponents of const. were important officials & never bothered to attend the
conventioneven Ben Franklin was considered opponent. Article 7: saying they made new const. and sending it not to state

legisl, but to the ppl and it would go into effect if 9 states & other states would have to voluntarily joinignored existing const.
1787 Const., Article 5 on how const. is amended
A. Once const. submitted to congress, forward to state legisl. To have conventions selected to vote on const. (so more of a
chance to get positive vote since not asking the politicians to vote on their power being limited)states did this, except for
RI. Most of convention delegates were initially against const.like 5 in favor, 7 against. There werent 9 states in favor as
far as delegates. Voters were more against than delegates. Federalists better organizedfocused on states where they were
most likely to win so able to get quick adoption of const. in those states so looked like bandwagon. Appearance of
inevitability. Press was in favor of const. Virginia & NY were still out, even after 9 states adopted it. 2 out of 12/13 largest
states were out, so union wouldnt work. Like taking the 8 most wealthiest & populace states out today. So lot of pressure to
get V & NY into union. Proposals made to add B/Rcondition subsequentstates would get out if they didnt meet B/R,
but were told couldnt make a conditional approvaleither adopt const. then ask to add B/R or dont vote for it till its added.
Mass approved const. but said theyd put pressure to add B/R. V said wont vote for it till B/R approved 1 st so thats what
they did. Opponents cuz felt const. gave too much power to central govt, executive too independent, no B/R. RI refused to
call a convention but other states finally had enough and said theyd invade if they didnt so finally, in 1790, called
convention and approved const. 44-32minimum necessary to approve it.
XXV.

FEDERALIST PAPERS

A. Word Federal comes from confederation. But more nationalist. Yet clings to sov. so it is federal in that sense. But choosing
this word helped (Federalist) cuz call other side Anti-federalist. Anything going against is looked at as bad. Federalist Papers
were propaganda in favor of const. cant read em for facts necessarilythey were opinions of the writers. They were keenly
read in NY & Virginia conventions so helps explain what framers of const. meant. Also, Hamilton & Madison had strong
connections to Philadelphia convention. Trying to show how the const. is better than A/C. Hamilton (NY), Madison (V), Jay
(NY) wrote under pen name Publius (man of the ppl) cuz it was a necessity at one point & became fashionable (like wearing
a tie probably had reason b4)law of sedition17th-18th, when printing critical statement of King, protect yourself from
execution/prison by using fake name.
1.

Locke: there is no natural ruler, applies to opposition of slavery. Everyone is born with the same knowledge and that
blacks are predisposed to slavery

B. 4: Jay, problem that disunity will result in foreign countries trying to split up the states. Is that vitiated by a national govt?
6: Hamilton: Dangers from dissensions betwn the states: Independent, unconnected sovereignties cannot live in harmony.
Reasons for hostility among nations range from personal to commercial. Simply cuz it is a republic does not mean it
commerce w/ soften the manners of men thru mutual interest. History shows us that republics, Sparta-Athens-RomeCarthage, with Athens & Carthage being commercial Republics, war was commonplace. Republics & Monarchies, the people
urge wars even when its against policy / Royals. Both are administered by men & the assembly in a republic are run by the
few in charge. It is human nature to go to war and it cannot be avoided when neighboring nations are alienated from each
other. They are natural enemies unless their common weakness forces them to leage in a confederate republic, & their
constitution prevents the differences that occur betwn neighbors.
1.

examples of dangers & weaknesses of divided states. Republics, commercial republics (Venice, Holland, England) could
be war-like. Idea that wars happen cuz kings, but not so. Look at WWIevery nation involved had strong republican
features (except Russia). Const. monarchies w/ strong representative assemblies (republic). Dangers that divided states
can create weaknesses & dangers from war. Let experience, the less fallible guide sounds aristoteleanobservation
tells us;

2.

10, 51, 78most important ones.

C. 10: Madison: Union safeguards against domestic factions: Republican v. Democratic. Factions are citizens joined by an
interest/passion that is adverse to the rights of other citizens. There are only 2 ways to be rid of factions: remove the cause
or control the effects. The causes can be removed by destroying the liberty (which is wrong) or giving every citizen the same
interests (which is not possible for everyone has diff. opinions). Only way is to control effects. If faction is less than a
majority, it cannot prevail. With danger of a majority faction, must secure the public good, private rights. In a pure
democracy, no cure for factions cuz the small # of citizens being the govt, a common interest will be the majority & no way
of protecting rights & property of others (personal security)thats why theyve always been short lived and violent in their
deaths (were they really that short?). Republic runs by a small number of citizens elected by the rest so better representatives
(Rome). But must not be so large as to render it difficult to express interests of their citizens, nor be so small that they can
corrupt. Federal Constitution finds a happy medium: Republic better than Democracy cuz large over small, is same as Union
of States over the States themselves being large over small. Faction leaders may control their State, but in a Union, there will
be checks and they will not be able to oppress others. Therefore, this is a Republican remedy to disease incident to
Republican govt.
1.

factionslong term political alliances that tend to control a polit. Body/assembly; long enduring interest group;
problems, causes, effects of factions; factions arise out of inherent liberty & nature of man, religious/political
differences, or loyalty to political leaders. Ppl support/loyal from desires for tangible goods promised. Or from
differences in looks. Good govt cant come from inherent goodness in man. Unequal distr. Of prop is worst faction
but comes from natural inequality of men. Diversity of men=unequal dist. Of properties= mischief of factions.
democracy definedlike Athens (small city-state where ppl know each other, easy communication); results in factions
difficult to break, oppress minorities against public good, nothing to check it, against personal security Deal w/
problem of faction: causes cant be removedcant do nuthin bout human nature; so control effectsmajority can outvote minority (oligarchic) faction but when majority (democratic) faction, use size of union & separation of powers.
Natl govt is less of a threat than state govt. Refers to Union as body, & faction as a disease. Larger the republic, less
likely for one locale to take over. De-centralized system. Too much centralization, all u need to do is attack that one
center. Extended territory & diff. interest counter acting ea. Other will prevent majority faction.

D. 18-20: historical analysis of weaknesses. Criticize this.


E. 24: issue of standing army; do we have const. limitation on size of army? Stable repub. Needs military. So what do you do
bout military?
F. 39: Madison: natl & federal characteristics of const. oppositition says u trying to create natl govt and remove confederacy
of states. Madison says const. is actually both. How govt acts, how its founded (not an election but based on federal act cuz
ppl in the states must act, every state has to agree, u have to voluntarily join permanently), sources of power. Raise army, but
funds come from states. Govt could tax ppl directly (w/o intermediate of state govt bodies), ability to regulate state
commerce (acting directly on individuals)natl govt cuz act directly on individuals.
G. 40: opponents say they broke rules by creating new const. 40 says we should focus on practical resultdo ends justify
means? Reject it just cuz it was done illegally? Just look at whether advice is good, not where it comes from
H. 42: congress powers. Commerce power. Revulsion against slave traffic.
I.

44: restrictions on state authority: necessary & proper clause: govt can also exercise powers that are indispensably nec. &
proper, not just express.

J.

47: separation of powers: to avoid tyranny, essential to liberty; to create core independence of each branch to check each
other & protect liberty of indiv. Importance of limits & influence one dept. will have over other when making policy.
House/Rep & senate make laws, Pres could veto. Blend & overlap functions where influence workings of other so none can
go off & do sumpin by themselves. De-centralizing power. Road block to arbitrary govt action.

K. 49: popular sovereignty, need for way to amend const. Formal amendment; used in extraordinary occasions. Passions
ought to be controlled by govt. means for amending. Passion v. reason (reason control govt) & passion controlled by govt.
L. 51: defense for sep. of powers between federal govt & states; to deal w/ problem of too much concentration of power &
ambition. Proposes to deal w/ it thru sep. of powers; ambition counteract ambition. Cant get virtuous to governplato is
wrong. Consider human naturebest way is to harness human nature. Bernard demandevillework for yourself &
unknowingly benefit society. Dont have to worry bout structure of govt. enable govt to control governed and able it to
control itself. Principle reliance is on the ppl, but structure needed to prevent tryranny. Human nature viewnot optimistic.
Like Necessary Evil.
M. 68: electoral college: House/rep & electoral college selecting pres. Combines demo. & arist. Elements. Like in Venice.
Want wise indiv. to select another wise person. But dunno who is gonna be doin the selecting, & if wise goin in, will he be
wise coming out? Election is oligarchic, selection by law is democratic.
N. 78: judicial branch Hamilton
O. 84: classic argument against b/r. look at our syllabus & says whats gonna be on exam is discussion of st. Thomas acquinas
so only study that & nothing else. But if says that its not gonna be on the test, everything else is on the test. Govt is of
delegated powers (art 1, sec 8) so everything else is denied. By telling what it cant do, implication that it can do everything
else. If can only do what the powers are given, everything else is denied. So much less powerful & intrusive govt than
saying you cant do some things & all else is permitted. Response to argument against b/r is the 9 th amendment. 9th & 10th is
restatement of the obvious.

XXVI. Electoral College & presidential powers: 2 areas where framers had no plan/idea of what would develop. 1. change in
warfarethey did not foresee 19th-21st century warfare which was diff. from 18th. 2. development of modern political parties
talked lot about factions (allegiance w/ loyalty to a charismatic leader or class identity & if leader dies, faction dissolves) but in
political party (private association where some1 is selected to supervise a program; coalition of faction; factional disputes w/in
the party; if disputes cant be resolved around that leader, leader can leave & make own party; broadly represents some
ideas/principals ex. demo for equality, rep for liberty; permanency that factions lacked; candidates come up thru party structure)
but party structure could change w/ internet & maybe return to factions? dunno, well see. Federalist party was a faction run by
alex. Hamilton. Faction run by leaders (ex. Jeffersonian faction was demo-rep, but called jeffersonians). 4 Every system to
operate sanely, needs operating & elective function. Ex. CA recallif no nominating & electing function, w/o screening device,
get a zoo w/ all kinds of candidates. Ex. pres wins electoral vote, but not majority vote. Need nominating function (screening)
performed by parties & then u get candidates from those parties running in the election. Electing function. If no natl parties,
how perform Nominating fnctninitially by electoral college, & electing fnctn by house/rep. electoral college couldnt pick one
person, leaving house/rep to do the electing. Elect. Coll. Supposed to be the wise, state legisl. decides who selects the electors.
State Legisl. normally selected them, & in election of 1828first election where ppl vote for empopular vote. Electors in the
state meet & select 2 ppl (1 from another state) & usually someone w/ prominence in their state. Have to pick someone else so
usually you know someone prominent in neighboring state & became regional candidacy (southern, ne, northern, etc.) but no1
would get majority of electoral vote cuz too many so house/rep would choose the pres. Const. basis for election of pres.
A. In English system, house of commons chooses prime minister. Same here except the American State Based federalism /
const. organizationmajority of state delegations had to vote for the candidate so each states vote counted the same in the
electing function, not electoral college. But this system didnt work, only for 2 elections. Fell apart in 1800 cuz Jefferson &
john adams, aaron burr & George Clinton but electors voted for only 2 ppl in their states & not for v.p.s. no1 got a majority
electoral vote so moved to house/rep and there was deadlock. Jefferson was to win & said theyd force it so some of
congress abstained from vote, giving him majority. Changed rule to vote for a pres & a v.p. Era of good feelingno

factions, 1 party. By 1824, fell apart agina cuz factions developed, 4 candidates that ran for pres, received votes in electoral
coll. & no majority. Andrew Jackson received majority of popular vote, but not electoral vote, so in house/rep & John
Quincy Adams selected over Jackson. Electoral is nominating process and house is electing processthey are separate &
different. Cant have only popular vote cuz then gonna have a pres. w/ plurality vote only, not majority & too many voting
irregularities (miss counts, missing votes). We are a fed-rep, not a democracy. Are the electors pledged to vote for the
winning candidate? No. they dont have to vote for the winning candidate in their state / their nominee. No penalty for not
voting for your nominee (for electors making independent judgment).
XXVII. Article 5: formal amendments of const. informal wayby custom, s.ct. decisions. Same process as pres. Elections:
nominating & electing function. Nominatinghow something gets proposed. Electinghow proposal gets elected.
A. Proposing function2/3 vote of each house of congress approves a proposed amendment & its sent to states 4 their approval,
or from states for congress to approve (more democ.). If proposal emerges, sent for approval to states & approve by 2/3 vote
of state legisl. or 2/3 vote of state conventions (more democ.; only used w/ repeal of prohibition). Whoever proposing body
is determines who approves it (congress). Old amendment of balancing budget from 17?? got 2/3 of states vote in 1990. But
could argue not to adopt it cuz needs to be w/in certain amount of time.
B. Instead of just adopting an amendment, write a whole new const. & submit to congress. Is this allowed? Does it have to be
sent to states 4 approval? Now you have a vote to adopt it and it works. Is it valid? Article 5 defines how ppl could exercise
their right to adopt const. const. supposed to reflect wishes of ppl, so can const. ever restrict wishes of the ppl? art. 5 says
cant restrict ppls right to make a const. Const. is diff. from legislature. Legisl is creature of const., which is from our
natural god given rights.
C. Adoption of alien & sedition act 1798. several states debated resolutions challenging ability of fed. Govt to pass unconst.
laws & ability of states to nullify such unconst. laws in their jurisdiction. Virginia & Kentucky resolutionsby Madison &
Jefferson: allowed 1. Nullification of unconst. fed. Laws w/in boundaries of state, 2. interposition, & 3. secession of state by
state. Congress & states adopted 11th amendemnet but Georgia & ? didnt. resolutions based on notion of Dual sovereignty
(union & states) where ultimate sov. lies in states. Federalists said there was dual sov. but anti-fed said u cant have dual, has
to be only one sov. states being able to interpose themselves. States rights theory of 19 th century: locus of sov. in the states.
Secession: proposed as a practical solution in NE states (not south), opposition to war of 1812 cuz resulted in shut down of
NE commerce. 5 NE states met in 1814 in CTHartford conventionsecession of NE states from Union was proposed but
lost.
D. Civil warmajor const. crisis after war of 1812. civil war took years to develop. Result of flaws of const. of 1787, notion of
sov. & states rights, slavery. Difficulties when try to push const. to its limits. Roots of civil war was in 1787const.
compromise. Important for evolution of const cuz:
1.

settled const. issue of whether it was an alliance/compact of states, or charter independent of states & of united states.
Us citizenship independent of state citizenship. Dred scot case.

2.

whether it is federal or unitary state. For practical, not theoretical purposes. 14th amendment, sec. 5. selected by ppl of
states. Federal v. state budgets: massive centralization over last 80 years.

3.

growth of executive power. Lincoln regime was 1st modern emperial presidencyunchecked power the consuls have
outside city of Rome. Implied executive powers, war of const., congress powersincome tax during war,
conscription, draft law, printing paper $ (framers didnt like this).

4.

Is it confederation of states, is there irrevocable consent to emerge into union? Unresolved in const. South saw war as
between the states2nd amer. Revolution, war for indep. Just as colonists saw it as war 4 indep., south says they want
const. same as in 1787 & that North violated ittaking same position as north did against King George.

E. Time 1812 to civil warclash between doctrines (union v. states sover.); around issue of slavery & spread into territories.
Ex. Missouri compromise of 1820. but issue was not only slavery. Where is locus of sov?can u have dual sov? S. Carol.

Replaced RI & ? as the const. bad boys. After war of 1812, country focused on developments (bank of u.s.). spokesman for
S & W, was senator S. Carol., 2 term v.p., John C. Callhounadvocate of strong central govt.
F. Callhoun was living symbol of dangers of office of v.p.; Far too qualified to occupy it. Great politician & intellectual
creates trouble. Directed const. efforts of S. Carol. From D.C. distrust btwen him & pres. Jackson grew. May, 1828, govt
adopted Tariff (protectionist lawsto protect domestic industry fr. Foreign competition cuz we need to keep our jobs & dont
wanna undercut it w/ foreign materials; but paying higher prices for inferior goods; arg. That theyre there simply to raise
taxesusually funded through customs duties b4 fed. Income tax; justification for tariff is to protect nason industries (british
were further along in production curve regarding industrial revolution so more efficient so could produce more cheaply; so
tariffs to protect nason industries from brit. Competition & build up till strong enuf to compete on their own & take tariffs
away; but counter that they never disappear even when supposed to); 1828 tariff laws looked diff to N & S. N=nason
industries. S looked at it as tariff of abominations. S & W were colonial, relying on agriculture & mineral production,
shipped to N & England for refining manufacture. Raised cost of imported finished goods so raised S. costs cuz decreased
price of S & W raw materials for export. S was dependent on free trade. Brit. Would get its materials elsewhere is S. raised
its costs. 40-bail theory. For every 100 bails of cotton produced, 40% cut for tariffs.
1.

Nullification Theory by callhoun: sover. is indivisible; federalists were wrong; locust of sov. is in people acting thru the
states. Fed. 39, Madison. States inherited sov. & formed new govt, so delegate of the states. Nullification had const.
framework. Callhoun was intellectual force behind concept of cessession, but saw this theory as a political tool & not
const. reality. Proposed nullification, by State Convention cuz focus on popular sover., w/ single const. objective; not
like state legisl. SC would vote on Fed Law as null & void, & direct state author. w/in their state only. Next step, if Fed.
Law was unconst. & null & void, go to Federal Convention. Only if of states agreed law was unconst. would it be.
same as for amend. In article 5. difficult. If didnt agree, nullification didnt happen & law was not adopted. Call.
Sees that there is ultimate sov. of ppl thru states. Revolutionary constitutionalism.
a) Arguments against this:
i)

Dissatisfaction of framers w/ notion of pure compact theory. That thats what distinguishes it w/
a/confederation. Different, newer federalism in const.

ii) Powers granted central govt were worded as irrevocable. Not dependent on states consent, etc.
iii) Fed. Govt acted directly on the ppl in the area of sov., not thru states. (diff. from a/c). grants congress power to
tax. 2 big symbols of govt is tax collector & police officer. Right to tax by congress & separate right by states.
Thats why were taxed by both.
b) Irreconcilable views: sov. in the central govt by the ppl of the states, or in the states. Const. supports both views.
Fed. 39.
2.

Big 3 Nullification, Interposition & Cessession.

3.

1830 S. Carol, power of nullification, written by callhoun as v.p. 1832, s.carol. called a state convention, took nullifying
steps of tariffs 1832, imposed state authorities against enforcement of tariffs w/in state & to take oath to support their
position, allowed suits against fed. Customs officials for twice the value of the goods (double dmages, to deter fed.
Officials of enforcing tariff laws), called on governor to use militia to defend state from invasion, raised possibility of
cessession. Pres. Jackson asked congress to enforce the Force actblank check use of military & to give authority to
close ports of the state (could be seen as act of war against a sov. nation cuz blocking your own ports of neutrals is de
facto declaration of war) & allowing issuance of habeus corpus in cts against state officers & that tariff be lowered. S.
Carol., responding to lowering of tariffs, Rescinded nullification of tariff laws & wanted to nullify Force Act. Clear
const. basis to cecede by callhoun. Jackson tried to re-invigorate theories of dual federalism. Jackson v. Callhoun.

G. Revolutionary constitutionalism. Based on whose popular sov. (states or central govt?) RI, 1841, was governed under terms
of royal revised charter granted by crown in 1689 making them a crown colony cuz concerned bout invasion from Mass. Bay.

democratic charter, providing for greater voting rights thru no religious or property requirements. This was State const. of
RI, but by 1840, it was incorrect. In 1820-1840, there was expansion of right to voteage of Jackson cuz symbol of
democratization. Most states abandoned property/tax qualifications. Came close to adult, free, white male sufferage.
Generation later, voting extended to blacks, then next generation, to women. By 1840s politically incorrect cuz prop.
qualifications. Also assigned representation to certain towns, how many legisl. of certain towns they would elect but
outdated cuz population shifts where there are large & small towns so representing a tiny town? So movement to revise the
charter/ create a new const. for RI. Citizens committees gathered under Thomas Dorr, like a const. convention, proposed a
const. & submitted to ppl of RI to vote. Majority approved it & Dorrists claimed it in force & held elections fro state legistl,
governor. Dorr was elected Governor. Old charter govt said joke was over & was closing whole thing down by calling on
state militia. Dorr fled the state while being pressured & Dorrists asked Pres. Tyler for help. Tyler said he would support the
govt in power (charter)so basically staying out of it. Charter govt militia under command of Luther Borden seized leader
of Dorrist Martin Luther at his house. Martin sued Borden claiming battery, false imprisonment, false arrest, trespass to land
under common law writ of trespass. Matter went ot S.Ct. whether Borden had lawful authority. Borden said he was under
lawful authority by RI state, but Martin said not under new const., Borden said we were proper govt. Huge case. S.Ct. said
they couldnt decide. No judicial determination on whether ppl can set aside their const. system or only const. auth. Can
change it. Charter of RI didnt specify how it could be amended. Who retains ultimate power to change const. & can that
power be limited? Question whether S.Ct. itself can bind ppl cuz only agent of const. all unanswered.
1.

Dorr War.

XXVIII.Separation of powers in const. of 1787. Three branches:


A. congress(legislative function)speech & debate clause, control over membership clause;
B. President (executive function)serves for term, not removal unless impeached; cant be removed cuz political
disagreements; salary cant be changed;
C. Ct. (judicial function)life tenure unless impeached; also cant be removed cuz political disagreements; salary cant be
changed/diminished;
D. Gives each a core independence to protect each from undue influence from other branches; not pure separation of powers;
its a system where there is Blending & Overlapping of Powers & Functions. Not to preserve each branch individually, but
point of it is to create system of Checks & Balances. Where power of branches are balanced & they can check ea. Other so as
to discourage arbitrary laws that depart from existing const. norms. Want govt to govern but not to become tyranny.
Checking them thru this structure allows for govt to operate & prevent minority faction to develop. To make adoption of
laws more difficult. Small fraction of bills proposed ever make it into law. not perfect & foolproof. Independence of each &
overlapping of them. Its a Means to an end (prevent arbitrary laws). Dont want any of the branches to become too strong.
1.

Ex. Doctrine of Judicial review: Marbury v. Madison; allows cts some influence over actions of congress & executive.
Not binding, but Influence.

2.

Congress has to consider Pres. Veto power when adopting legislation. 96% veto upheld.

3.

Congress influence on Ct. Power over Jurisdiction of the Ct.s.

4.

Pres. Influence of Cts by Appointment power.

E. Doctrine of federalism is like sep. of powers at state level. Argument that state may become too strong.
F. 2 interpretations of sep/powers: literalist/textualist approach (look at its text) v. functional approach (look at it in whole
context of structure of sep/powers).
G. Most disputes arise between Pres & Congress.

H. Speech & debate Clause: Congress; Article 1 dealing w/ congress is longest articlecould mean framers felt congress was
1st among equals, or that they were potentially the most threatening to liberties of ppl & independence of states. Const. puts
certain protections for members of house: sec. 6privilege for any speech or debate in either house shall not be questioned
in any other place; designed to protect members from being challenged by executive (criminally prosecuting) or 3 rd party
suing them civilly for anything they said. Back in the day, Members were arrested for treasonous speeches. Are the
members assistants protected? Yes: U.S. v. Gravel (Alaskan senator, extended clause to assistants). when clause was
written, congress were part time, but now assts draft legislation so they function as surrogates so same protections. Is there
geographic aspect to this clause? Regarding speeches made on the floor, in the house are definitely included. But what about
outside like committee meetings? Yes, still protected. But what if outside city? R there limitations on type of speech? Yes
has to be connected to legislative activity, cant be merely political speech. Concerning defamatory remarks: If made b4
the senate, protected. If made in a committee meeting in offices, protected. Once beyond those geographic safe zones, if
remark made in communication to constituent or on a fact finding mission to Tahiti, depends if its regarding legislative
activity. If running 4 office, its political so not protected. But line btwn political & legislative is not bright. Pass or get info
bout legislation. Part of congress legisl. function could be on how funds are spentbut this is political. No clear line.
I.

Doctrines of const. prerequisites: have to meet these prerequisites b4 argument (such as mootness)
1.

nonjurisdictional political question (NJPQ)needs textual commitment; ex. genuine case of controversy where govt
has done sumpin & indiv. is harmed. Not moot cuz hasnt been resolved yet. Properly b4 fed. Court. But could be
NJPQ. Borden caseused guarantee clause art4sec4 & said they couldnt decide it, its for congress to decide so NJPQ.
Marbury caseNJPQdiscretionary duties by pres. Couldnt be reviewed by cts. Baker v. Karr (1962)
nonjusticiablenot suitable for judicial determinationconst. has committed certain issues in its text to other branches
so not up to cts to decide those issuesart3sec2 defines maximum extent of fed. Ct. jurisdictionstextual approach
but doesnt mean when const. gives power to a co-branch, ct. dont have power over it. Art1, sec3senate shall have
sole power to try all impeachmentstextual grant of power to a co-equal branchtype of judicial exerciseNJ issue
cuz give senate judicial power to try. U.S. v. Nixonjudge Donald Nixonconst. problems w/ impeachment trialct.
held it was NJPQ, not 4 ct. to decide. Only where resolution of problem is textually committed to a co-branch falls
under NJPQ.
a) Textual considerations fall under NJPQ. There are 5 others but they are opaque. Doctrines of law v. doctrines of
necessityrelated to survival. Const. is equivalent of doctrine of necessity: doctrine of reason of stateidea that
govt may do whatever it takes to preserve the society; creates friction w/ our normal const. order; in our const.
system, expressed through NJPQ cuz issue comes up but not 4 us to decide. Ex. pres fires attorney general & ag
says shouldnt have fired me. This is intra branch dispute & ct. to get involved would be utter disrespect to cobranch cuz telling that branch how to internally organize. Ex. intra branch dispute btwn exec & legisl. branchu.s.
v. u.s. house of repct. says not involved. Ex. matter of foreign relations, pres decides, not ct. ex. war & peace
ct. will not decide const. of a war. Military matters are NJPQ; enforceability of any decision is questionable
anyway. Ex. natl security & defense issues are usually NJPQ. NJPQ results are unpredictable. Prudential NJPQ
likely to occur w/ intra or interdepartmental affairs.

J.

Article 1, sec. 5: to give institution of house/senate ability to control its membership; each house shall be the judgeof its
own members; when controversy arises over selection, house/rep will make that decision, be the judge. NJPQ. Right of
congress to judge qualifications of its members.
1.

Powell v. McCormick: McCormick was minister who liked life. House voted to remove Powell from his seat. Powell
sued, including mccormick. Powell was re-elected. M argues mootness cuz gotta be re-elected. Powell says not moot
cuz seniority. Speech & Debate Clause cuz challenging a vote & cant do that. Cts agreed & dismissed it as to the
members of congress but left suit standing as to sergeant at arms, cop/enforcer who delivers paychecks. Ravelsaid

assistants are protected, decided after Powell. Ct. looked as who decides this issue of whether Powell can be kept out of
the house. Art. 1, Sec. 5each judge will decide. NJPQ. Textual. Ct. then decides that they decide what the
qualification the house can decide are. Art. 1, sec.2 state the qualifications:
K. Article 1, sec. 2: sets up age, residency & citizenship requirement. Powell met those 3 and still excluded him so cant do
that. Ct. is ultimate expositor of what const. means. Marbury v. Madison never says ultimate or final or exclusive or only.
So ct. took liberty of what marbury actually decided. But at end, Ct. said they hoped house would agree w/ the decision.
Naming of some implies exclusion of others, so saying age, residency & citizenship are only qualifications? Could be that
theyre the minimum qualifications & that more could be added. Some Ex. of cases where against exclusionary theory:
exclusion of a rep cuz polygamy, & exclusion of rep cuz connections w/ organized crime. If follow cts exclusion theory,
cant exclude felon from being a rep. or living in a different district.
L. Prudential argument: interference in internal organization of congress; dont make decisions disrespecting co-branch;
judicial writ impossible to enforce? Only person Powell could go after was Sargeant at arms.
M. Term Limits v. Thorton Case: ct. relies on same arguments as Powell case but there was powerful dissent by Thomas.
Powell only raised issue of whther congress could add qualifications, here its whether states can add qualifications. Term
limits passed by voters of Arkansas on federal officials. Ct. said not gonna decide the issue on state limits under 1 st
amendment cuz state sover. but State is not their federal representatives. Nature of State powers v. Central govt powers.
What is nature of union/ sovereignty in this country? That Q is at core of argument. Started w/ McCulloh v. Maryland.
States never had control over federal reps cuz there werent any. This is not a power they gave to central govt or that central
delegated to states. These reps are not state reps, theyre selected by ppl & become rep of ppl of U.S. even if selected by ppl
of the states. This govt is even less representative then cuz your not voting for your rep, but for a rep for the ppl of the
whole u.s. then its a system of virtual representation that colonists rebelled againstthat even if I didnt vote for them, they
still represented me. Thomas says states have all powers of sov., even if no const, there was art/conf. so have some
experience, and states approved the const. so reserved powers are all those not expressly given or implied in the power
delegated to states. It doesnt say in const. that they cant add qualific. So states retain power to add qualific. Congress cant
hurt the states by adding qualific. But if states do it, theyre only hurting themselves by limiting the pool of candidates.
Decision to join union was made by states. Where does sov. liein central or states. Everything is organized by state.
N. Executiveconst. powers to protect pres. Fr. Attempts by congress to encroach on exec. Branches independence. More
important for strong legisl. body than exec. A/C, pres was more like ceremonial chief of state. Frictions like Dutch, betwn
states general & prince of house of orange, between provincial states & provincial stodholder. But this was new type of
Federalismthe const., idea of independent exec w/ meaningful powers needed to be examined. Const.: indep. Exec.
Established by direct authorization under const. (not delegated by congress) to wage war, foreign affairs, veto power
Art.1Sec7(most state const. prohibited veto by governors cuz looked at as part of legisl.). sep. of powers at natl level is
blending & overlapping (pres. Involved in law making process by veto power). Pres. Wears many hats: chief administrator
(congress grants to pres. & admin. Powers & functions by statute so acting as chief admin.), chief executive (power to
execute laws & violations of itgiven by const., not delegated by congress), chief of state (most const. systems separate
function of chief of state from chief of government (executive/administrator)ex. queen is ch/st, and someone else is ch/?
in u.s., pres. Is ch/state, who has personification of the nation/society & someone w/ strong moral character & beyond normal
political attack (any attack on him would be seen as attack on nation itself) but here pres is also ch/ex & admin. Proposing
policies like chief politician so conflicts w/ role of ch/st. pay attn to flow of pres. Powerswhich is he more like? Ch/ex,
admin, or state?
1.

Is pres. Above the law? Jeffersonian view (b4 he was pres) is that pres. Is limited to exercising specific powers
enumerated in art. 2, and granted by congress thru law. Opposing view is by Alex. Hamilton, 1793 article writing under
pacificus, there was war btwn French republic and united kingdom which led to major political issues so Washington

issued neutrality proclamation which was more like a plea cuz u.s. was in position to stand up to either French or
England. Jeffersonians, members of congress, challenged np, saying congress has power to declare war so decision to go
to war or remain neutral is congressional power. Hamilton said pres. Has all powers expressly given to him under const.
plus all those powers not specifically denied to pres or granted to another branch & congress has power to declare war
but pres. Is not doing thathe is declaring Peace & nothing in const. says any branch can/cannot declare Peace. by
looking @ intro. Clauses: art.1sec1 says all legisl powers here shall be given to congress, Art3sec1 says THE judicial
power of u.s. shall be in 1 s.ct. meaning to try cases to resolve conflict. Art3sec2 says the jud. Power extends tothe
kinds of cases fed. Cts can decide. Art2sec1 says exec power shall be vested in u.s.doesnt say to who or how it
extends. With congress its limited to those granted herein & rest resides in the states. For judicial, it tell that it only
goes to certain cases so limited jurisdictiongeneral juris. except for those that are specifically removed. But art2 gives
no limitation to pres.given executive power which is a concept of power to do things beyond those specifically
enumerated in art2. It carries unenumerated, unexpressed, implied powersto do things, take actions. Doctrine of
Implied Executive Powers Art 2, sec 1. Art 2, sec 2. commander in chief power. Art 2 Sec 3take care clause.
Presidents Oath Art 2 sec 1is at core of implied powers. These are evidence of implied powers for Pres.
2.

Jeffersons view (stelseigers case) has generally but not entirely prevailed re. pres. Domestic powersduring times of
normalcy. Hamiltonian view prevailed regarding foreign relations & certain domestic affairswhen things get tough.

3.

Executive privileges & immunities.


a) Privilege against self-incirmination (5th)not right to remain silent, just privilege. State can force u to talkdo
away w/ the privilege. No 1 can override a Right but it can be waived. If u have what govt wants to seek from you
in a trial or whatever, u can assert right to remain silent on 5th at any time, at anyone elses trial.
i)

4 pres: Deals w/ whether pres. Can refuse to turn over info. & doesnt have to be involved in it.

ii) Asserted const. power of pres. Not to turn over info. demanded by a co-equal branch. Part of core
independence. Protects him from improper interference from other branches. Almost every pres. Has asserted
this privilege since GWashington, Nixon, Clinton. GW, regarding jay treaty saying it was none of h/reps
business re. treaty cuz pres. Makes treaty, approved by senate, then ratified by pres. But treaty obligated u.s. to
stand good for any debts to british b4 revolutionary war, since states cancelled many of these debts & british reoccupied these areas so conflict of war. So u.s. to pay them if states didnt. So congress did have role. Ex.
Sinclair expedition where Americans pushed into northwest, local Indians were removed from homes so
resisted, govt sent in army to effect the eviction, 2000 troops under commander Sinclair including armed forces
soldiers, Indians were waiting & annihilated them. Congress demanded sec. of war & treasury & Sinclair
represent themselves for questioning, Washington refused to order them but urge Sinclair to testify, and not all
the documents were turned over for investigation. 1807, treason trial of aaron burr, Jefferson hated burr so
personally supervised his prosecution by attorney general, Marshall insisted on def. of treason, art3,sec3,
regarding King, limited offense specifically defined in const. & only way to get convicted is confession or 2
witnesses. Usually conspiracies so unless confess, its he said/she said situation so requires 2 witnesses. Need
x-ex cuz no other evidence, not even 2 witnesses so had to x-ex the complainer. But it is changed now.
Marshall took def. seriously so stood up against exec. Branch pressure 4 conviction & showed independence of
branch, but also wanted addl info. from Jefferson & he refused.
iii) 1833 Wig controlled senate, demanded Jackson deliver a memo bout pres. Power to remove cabinet officers,
sec/state who he fired. Jackson refused and said hed ask the ppl whos position theyd prefer in next election,
congress declined.
iv) U.S. v. Nixon: ct. dealt w/ this case quickly. Burglary of demo. Party headquarters @ Watergate hotel in 1972
by ppl associated w/ committee to reelect pres. (CREEP). Dunno if Nixon knew about it but likely that those

close to him (ch/staff, etc.) knew bout it. Nixon tried to cover up, prevent prosecution of the individuals. 3 rd
rate burglary so didnt know why ppl wanted to impeach him but it was the lying, obstruction, cover up.
Archibald cox, special prosecutor in justice dept. was appointedcustomary, someone from opposing party
democ. In 1920s re. scandals of harding administration. Cox was fired by Nixon thru attor. General and his
ppl. so political pressure and appointed new special prosecutor but refused to take position unless could only be
fired at limited cost. There was a system of taping Nixon installed around white house cuz he was obsessed
bout his place in history/legacy. Nixon said hed turn over relevant transcripts but they wanted the tapes. There
was a large gap in one of the tapes & sec. said she mustve accidentally recorded over it. Issue was about
getting the tapes. Pres. Councel, said pres has not decided whether hed turn over order of the ct. to turn in
tapes but eventually did cuz woulda been impeached anyway. But would the ct. ordered him if he had support
of congress?
(1) Argument about exec. Power is that otherwise, u wont get candid views so its privileged. Freedom to
express themselves candidly & not be afraid of getting sued. Based on const. Sep. of Powers. Exec.
Power, take care clause. How enforce laws if dont have candid/accurate information? General need for
confidentiality. To protect independence of exec. Branch from prying & probing by other branches so free
to operate. But congress has investigative power. When these powers conflict, can it be resolved by cts?
ct. says there is const. basis for exec. Privilege & looks at it as a general undifferentiated need 4
confidentiality & natl security. Judgment of pres. Is absolute cuz not natl security. Natl security wasnt
necessary for this case so could be dicta. When dealing w/ natl security, decision of pres. To disclose info.
or not is absolute cuz hes commander in chief, so when not natl security, have to show: Relevance of
info. sought & that info. is necessary from this sourcethat nothing else will docant get it anywhere
else (relevance & Necessity). Judge then reviews the info. in chambers & strike balance & decide which of
the info. will be turned over. In practice, Ct. would likely disclose the info. if showed relev. & necessity
cuz why wouldnt they. If exec. Privilege is const. based & necessary, how can a ct. ever override that?
Limited exec. Privilege. Is fed. Judge capable of deciding if info. is natl security matter or not? Pres. is in
the loop of current natl sec. info. Judge is not in the loop so cant evaluate that. So cts tend to stay out of
natl security matters and so pres.s decision on such is absolute. But pres. could lie & say its always natl
security & no check on him, but there is lots of political pressure that checks him.
1.

What if its info. sought by congress & Nixon refused under general confidentiality. Crime would be
contempt of congress. U.s. attorney for d.c. prosecutes contempt citation but he wont against pres.
Suit arises but NONJUSTICIABLE matter. So congress can complain, but indirectly cut funding for
white house. So this issue wouldnt come up & if it did, not as urgent.

2.

What if civil case & they want pres. to turn over info, using Nixon. Ct. emphasizes its an issue in a
Criminal case.

3.

can an underling assert exec. Privilege? What if former pres? what if situation was not for info, but
for pres. to produce himself (Burr case)? Why is this so rarely an issue?

b) Immunity is saying I cant be prosecuted/sued This refers to YOU.


i)

4 pres: Has nothing to do w/ not turning over info., but has to do w/ pres being served w/ process or sued.

XXIX. Executive powers in const.


A. Doctrine of exec. Privilege & immunity.
B. Washington & Jefferson examples of privilege
C. Nixon case: 2 types of exec. Priv. claims:
1.

based on specific claim on natl securityabsolute priv. cuz not informed up to date, ct. wont challenge

2.

based on general need for confidentialitymore limited protection, not absolute, done case by case
a) there are rules governing thislook at case 4 balancing test.

3.

const. dont say nothing bout priv. but ct. says there is a basis of priv. in const. under sep/powers, and thru history.
Implied protection for pres. to protect confidential communications.

4.

what if its v.p., cabinet officer, someone below cabinet, civil suit, request by congress for info?
a) nonjusticiable or absolutely protected?
b) If underling: claim of exec priv. must be asserted by pres., by underling would be same thinglong as it came
directly from Pres.
i)

This idea of allowing underlings to assert priv. was challenged when asserted by v.p. so anyone under him
would definitely be a problem. Ct. did not come to decision on this but bar may be lowered. General rule is
that no1 other than incumbent can make a claim.

c)

Former pres assert exec. Priv? doesnt have to be a party, just ordering info. in relation to crime.
i)

Can use general claim of confidentiality for priv. but cant use natl sec. claim cuz how would they know
current natl sec. issues? Out of office pres would not know info. that threatens natl sec. whereas incumbent
pres. would know current & past info. crucial to natl sec. If former knows sumpin, Pres could intervene if
shows interest is affected & make motions of priv. No pres. out of office can make claim of priv. based on natl
sec. General consensus if that only current pres. can make this claim.

d) If other that requests for info; subpoena for u to appear; problemsenforcability, time pres. has to devote to appear
in ct., sep/power issue of forcing pres. to appear. Personal appearance takes up more time than just requesting docs.
i)

Ex. Pres. Ford had claims against him from women. One demanded that he appear & testify, & compromised as
to a video taped statements answering Qs given him.

ii) Ex. Jefferson said yeah right in Burr case when asked to appear.
iii) Ex. Clinton case: no attempt made to force him to appear
iv) Arrangements to accommodate usually made. Never came to point where had to decide if subpoena / writ was
good against pres.
e)

What if Nixon said no to Ct. order to turn over the info? what is ct. gonna do? Cant put him in jail. Mississippi v.
Johnson (1887) said how could ct. ever enforce it? Nixon case avoided this issue.

f)

What about criminal indictment of sitting pres? in Nixon, prosecutor had Nixon named as unindicted coconspirator. Kenneth Star also didnt believe a sitting pres. could be indicted cuz intereference w/ office, & what
happens if convicted?
i)

But if cant be indicted, doesnt it put pres. above the law?

ii) Not above the law cuz can always be removed by impeachment & can then be indicted, subject to political
retaliation, under public scrutiny, concern about historical legacy
iii) Not clear if sitting pres. could be indicted. General consensus is that he cannot & it doesnt put him above the
law cuz above reasons limited/constrain press behavior.
D. Exec. Immunityimmune from law suit. Diff. from priv.
1.

Speech & debate clause is legisl. immunity: cant be sued.

2.

Nixon v. Fitzgerald: absolute immunity from civil damages for his official act; cant sue pres. fro $ damages cuz u dont
like sumpin he did or that he violated some law.

3.

y immune? Cuz alternative remedies that dont put him above the law.
a) easily identifiable target for suits for civil damages; personal vulnerability cuz visibility of his office & effect of his
actions on countless ppl.
b) distracts pres. from his public duties to detriment of pres, his office, and nation.

c)

Can be impeached

d) Subject to constant scrutiny by press

4.

e)

Re-election

f)

Maintain prestige, concern for historical stature

2 arguments:
a) dont want pres. to have to be concerned bout litigations arising, always looking over his shoulder. Concern of him
having to do his job.
b) All these law suits will arise. Waste of time.

E. Clinton v. Jones
1.

diff from Fitz: happened b4 he was pres., not part of his official conduct. Concern bout litigation arising out of conduct
of official duties dont apply when this concerns unofficial conduct.

2.

pres. said it interfered w/ his duties cuz burden & takes up time. Ct. rejected 1st argument from Fitz. Cuz depended on
claim but 2nd arg about time doesnt matter what claim is.

3.

Pres. only wanted to postpone the trial till left his office. But ct. says waiting too long poses problems such as witness
could forget, or die, evidence disappears. But Jones brought suit only 2 days b4 statute of limitations ran out anyway.
There isnt even statute of limitations for murder. So not usually a great concern. Pres can only be in term for a Max. of
10 yrs. Majority did not give enuf weight to press claims.

F. Impeachment: british common lawcant impeach the crown. What about impeach royal officials? Difficult to do although
successful on some occasions; politically motivated & focused on corruption in office so political retaliation. Then
Impeachment took on a more political nature. Judges could be impeached since could be fired at will. By time const.
adopted, English view of impeachment moved from political (getting rid of ppl they didnt like politically). It was mainly for
judges & that they needed more independence to decide cases so impeachment reserved for certain causes.
1.

In states, impeachment was to get rid of govt officials. 1780s 2nd wave of const.s, more like existing british notion that
not political but based on some kind of cause.

2.

const. 1787 says impeachment to be done by house/rep, trialed in senate, 2/3 vote of guilty by senate is enuf for removal
of that officer from his position. Impeached official shall never again hold office of honor under u.s. but Historical
custom has developed that just cuz convicted by article of impeachment doesnt mean youre barred from holding office.
There has to be a separate vote, from the impeachment, by senate, to bar u from office. Could u impeach pres. that
resigned? Ex. Nixon, when impeachment was pending. Point would be that if impeach, then could vote to bar him from
holding office.

3.

procedure: const. dont say nothing more bout procedure. So whats rules of evid in senate trial? Whats level of burden
of proof reqd? protections such as right to council apply? Does whole senate have to listen to all the evidence?
Fairness qs. Answerwho knows? Nonjusticiable so ct.s cant answer. But cts say impeachment is not purely legal
process.

4.

House/Rep: if theres a move to impeach civil officers (any non military official of u.s. not including members of senate),
h/r will appoint thru judiciary committee, some1 to investigate whether impeachment should proceed. If enuf there to
proceed, impeachment committee selected to investigate. House votes on articles of impeachment, majority vote on
articles will be passed to senate for trial on those articles. Many articles could be proposed but not all voted on.

5.

Senate becomes the trying body. Select committee of 12 who will investigate the charges brought to h/r, 12 includes
house managers/ prosecutor, speaker of house, oratory skills, intelligence, prosecutory skills. Senate committee is free to
ask 4 addl evidence. Accused is entitled to make statement, have council to present evidence, and committee can call
addl witnesses. Organizes the evidence and presents it to rest of senate. Each senator reviews this, they all meet.
Accused is there, qs asked to each other, then vote.

a) Process challenged by nixon. Saying doesnt say how many senators have to be present, process not expressed in
const.
b) Issue of senate trial is nonjusticiable. Judges cant tell em how to try. Process is Const. sufficient.
c)

Normal rules of evidence dont apply. Anything can come in & then decide how much weight its given.

d) Vp is presiding officer in impeachment trials unless pres is being tried, then its chief justice presiding cuz conflict
of interest.
6.

impeach for treason, bribery, other high crimes & misdemeanors.


a) High crimes is a felony. What does Misdemeanors mean?
b) Judge did bribery & said couldnt be removed/impeached if not convicted of a crimefalse.
c)

Standard of proof dont have to be guilty of a criminal offense but could be sued civilly; being found not guilty is
not a canonization. Sometimes wanna get rid of ppl b4 indicted. Dont have to be convicted/indicted of criminal
offense to be impeached.

d) How far does it reach?


e)

Only to indictable offenses. So even if not indicted yet, u engaged in conduct that could be a possible indictable
offense. Not limited to that, but also include other forms not subject to actual criminal laws, dont have to be what u
did while in office (could be behavior done earlier cuz raises doubt about ur behavior in office). Ex. corrupt
behavior as state judge could be used against u as a federal judge. Ongoing debate as to what constitutes indictable
behavior. Q regarding whether Clintons white lies was perjury & obstructing & corruption to be impeachable.

G. Nonjusticiable political Qs left to senators voting on the matter, for high crimes & misdemeanorsdunno what it means,
applies to all civil offices in u.s., can be impeached, removed & tried in a criminal ct.no dbl jeopardy.
H. How get rid of legislature? 2/3 vote of that house to expelif some1 from h/r, senate cant vote on it. Art.1s5
I.

So few cases where judges have to weigh the claims of whether confidentiality outweighs need 4 evidence. D usually wants
the confidential info. cuz govt is usually prosecuting & already has the info. if its relevant & necessary that D needs the
info, ct. can order to produce it. But if govt refuses to produce, there are sanctions (drop the charge to which the evidence
relates). Like in civil where if its refused, use sanctions such as it will be used as true & charged against u. Govt will make
the choice by refusing or not & judge will just dismiss, or say its not relevant? They just dismiss if refuse so thats why there
arent cases like this.

XXX.

Blending, overlapping of functions:

XXXI. Youngstown Sheet v. SawyerSteel seizure case


A. Branches stepping on each others toes.
B. 2 modes of interpretation when theres intra-branch issue
1.

Literal, textual, technical approach


a) Seizes upon provisions of const. text very rigidly.

2.

Functional approach
a) Opinion tends to downplay specific clauses & looks at overall balance of power among branches.

C. Pres ordered sec./commerce to seize the steel mills. Asked owners to stick around so Govt trying to cave into unions
demands. Owners tried to get injuction to prohibit govt from entering into K w/union. That was whole point of govt taking
over mills in 1st place.
D. During WWII, & Korean war, Feds created office of price stabilization that was to have govt regulate prices producers
charge for certain goods cuz war effort will affect production & therefore pricingdislocation. Goods become sparse so ppl
will increase priceprice rationing. Govt steps in so no gouging by producers.
1.

ex. major hurricane & ppl in area need water, food, blankets. Some will give theirs away but others wont. if can charge
whatever u want, buy more and send it over there. But if govt says u cant charge anymore, ppl wont help. So what

happens if theres price stabilization? Other options than price rationing: Give it to brother rather than stranger, offer
gifts to compete, black market.
2.

office of wage stabilization: if u have skill in high demand, cuz ppl at war & lack of skilled ppl, so sell your labor at the
highest price. So govt stabilized wages. What happens? Black market. Distortions.

E. Co. said willing to accept deal w/ union long as can pass price along to consumer. But office of price stabilization said no.
Deregulation of energy in CA. So Co. said they cant then so theyll go under. Govt came in to take over. Govt asked
congress: now that we have these cos, tell us what u want us to do, but they shyed away.
F. Issue is what is pres. power to seize mills.
G. Many Opinions of ct.,
H. J.Black: this is a legisl. act & pres. cant make law. congresss power, not pres. clear cut, b/w view on powers: pres doesnt
legisl. Textual approach.
1.
I.

Dissent: this is crucial industry for war effort. This is executive act; his role as commander in chief of military.
1.

J.

But pres. has veto power. So there are ways pres. participates in making of law.
But commander in chief role is too far removed.

J.Frankfurter: not as simple as the opinion ct. would have us believe. Its more complex in balacing competing interests.
Truman exceeded his powers. Functional approach. Various statutes giving pres. certain limited seizure powers, or tafthartley act considered giving seizure power, But the amendment was not adopted so he dont have them. Congress refused to
give him this power.

K. Black & Frankfurter did not like each other, diff. backgrounds & personalities; F indirectly attacking Bs formalistic opinion.
L. J. Jackson: Most significant Opinion. More Functional than Textual approach. balancing.
1.

Pres. own const. powers + congressional delegation; congress agrees w/ pres. so high powers.

2.

Pres. own const. powers (Art.2); since congress is silent.

3.

Pres. own const. powers Congress denial of authority.

4.

#1 puts him in stronger position in a sep/powers claim but not likely.

5.

#3 in theory, pres. could win but in reality, no. if congress says no, its no. congress refused to give Pres seizure authority
in Taft-hartley act.

6.

Which door does this case fall behind1,2,or 3? 1 is out. But assumption is made, like Frankfurter, that Congress is
only one who can give Pres. power. They never expressed denial of such power.

7.

ex. go home and say dont wanna have broccoli tonitewhy? What can u make out of something some1 Doesnt Do?
Could be a million things. what conclusion can u draw from something not disclosed? What conclusions can u draw
from congress not saying anything?
a) Congress didnt amend cuz dont want pres. to have the power, dont like senator who proposed it, already think he
has the power & dont need their authority so saying something would mean he didnt have it. Hard to tell y
congress voted it down, cant draw any conclusions.
b) Did they actually deny him the authority (#3)? Should it only be if its expressly forbid to Pres? nothing in const.
says only congress has power to seizeif so, needs to be express.

8.

#2 is more up in the air.


a) ex. b4 Truman, during civil war, Lincoln seized several N. RR he deemed necessary for war effort w/o affirmation
by congress. Dissent says 180,000 casualties in Korea. Wilson governed by congressional delegationthey told
Pres. to do it. FDR, june 1941, b4 war, seized aviation plant to settle a labor dispute he deemed injurious to war
effortbut u.s. not in war. WWII, Roosevelt seized 40 other industries for war effort, only half was delegated by
congress, one was Montgomery Wardif theyre needed for war effort, y not the steel industry?

b) There is long history of thisTruman not the 1st. So what does custom show? There was no express Congressional
denial in any of those cases.
c)
9.

Pres. have seizure power? Look at: Is there any precedent? Any Historical customs?

Must be Categorized in #2 or #3 by analyzing what congress is doing.

XXXII. Damesonmore v. Regan: late 1970s, ruler of Iran was opposed & # of supporters of new regime retained # of Americans as
involuntary guests for 144 daysy jimmy carter seen as ineffectual pres. Day b4 regan was to take over, Carter signed exec.
Agreement w/ new despots in Iran. Iran wanted to deal w/ Carter than Regan. So amer. Cos challenged the exec. Agreement that
it was taken out of ct.s. Ct. Upheld exec. Agreement as const. J.Renquist says issue is sep/power (pres. v. congress) and look at
Youngstown Steel case but needs adjustment cuz he was senior law clerk for Jackson at the time. Says 1,2,3 is too simplistic so
need to look at how clearly congress intended to deny pres. power to act. Marbury said Congress cannot take away the const.
authority of a co-equal branch. So #3 cant be if Pres. has own const. power.
XXXIII.Factors to look at when dispute between pres. const. pwers & act of congress diminishing pres power: Youngstown Steel,
Curtis Wright, Damesomore Cases; Look at nature of press power asserted. The more specific the power is, the less u need this
general analysisthere is a specific analysis. This one is a broad sep/powers analysis. Ex. of general powers: exec.power, take
care clause.
A. What is the source of pres. powers in the const. (appointment power?)ct. wont look at. But if its commander in chief or
sumpin, ct. may look at.
B. What is history & precedent; are there analogous precedents? Pattern of conduct? How has the power been historically
applied?
C. Nature of underlying subject matter; Curtis Wright case (ct. discussed pres power to speak in foreign affair matters, but dicta
cuz issue was congress delegation to pres. violating a doctrine): if deals w/ purely domestic relations, congress has more
power. Pres. has more power in foreign affairs. Jeffersonian view prevailed w/ domestic pwrs, but Hamiltonian view with
foreign affairs. Youngstowntreated as domestic matter, but dissent looked at it as foreign matter. Could usually be argued
both ways.
D. Source of Congress power: what does congress say its getting its authority to limit pres? if clearly given to congress, like
commerce power or spending power is better than implied congressional power on theory of war.
E. How express is congress action to limit/deny Pres. power to act? Congress saying we dont want Pres to seize even at
critical times of war v. senate adopts it, house doesnt. if congress limits pres, must be very clear & express. Ex.
Youngstownhow clear was congress disapproval of Pres. seizure?not very.
F. If congress dont say nothing, cant even get to 4 & 5ull be stuck at 1-3 of the analysis
G. When dealing w/ inter branch disputes/ authoritydo they sound like law or political accommodations? Is it really const.
law as we understand it in the traditional sense? We are accustomed to viewing const. as law but does that work w/
interbranch disputes? Difficult area to apply traditional legal analysis.
H. Youngstown: Blackformalistic/textualist. Others take more functional approach (Jackson)
XXXIV. Chadha case: issue is legislative veto. Important area of administrative law. immigration/nationalization system congress
controls. Chadha lost track of time & stayed longer than he was supposed to so tried to deport him. Chadha persuades INS not to
deport him but House/rep overrides that decision. 1 house of congress is allowed to override a decision of deporting aliens. This
law was by congress and signed by pres. Can 1 house override an exec. Actionis it const? Majority holds that congressional
veto is unconst. cuz:
A. Art.17Presentment clause: bill, order, resolutionthe nature of these are all legislative. Must be presented to the pres.
When house/rep overrode decision of exec. Branch, it must have been of a legisl. nature. It violates both the presentment &
bicameralism clauses.
B. Bicameralismsame thing has to be passed in same language by both houses, then presented to pres.

C. Nature of what house was doing must be legislative. Ex. if congress trying to pass a holiday, does it have to be presented to
pres? it dont matter what if its called a law, its nature/effect has to be legislative. What makes something legislative?if it
creates legal obligations on you, alter existing legal rights. So making a holiday is not legisl. if congress passes a law
redefining law of gravitytheres no effect so not legislative. But if it does change rights/ obligations, dont matter if its
called a right/bill, must go thru the process of presenting and bicameralism.
D. Chadha rights were changed. Ex. A sues B, ct. holds for A. does this change the pre-existing rights/obligations they have
toward ea. Other? Could since one has to pay the other. Is this legisl. since it changed their legal rights & oblig.? But this is
also an aspect of judicial determination. So is it legisl. or judicial action? Diff. btwn legisl & judicial: Statutes are forward
looking, general, address matters indiscriminately, whereas judicial cases deal with particular circumstances & parties &
apply it to particular facts at hand. Legisl in the procedure, but application is judicial nature.
E. Dissentfunctional approach: process that established this did go thru it: passed by both houses and presented to congress.
Problem is that we live in an age of broad delegation of exec. Branch. Maybe lawmaker didnt think of it when making the
law. laws are general. Congress powers to delegate are also general. Congress reserved to itself that when someone does
something in exec. Branch they didnt intend them to do, they have power to override it. It was adopted by a proper vote.
1.

But problem with this is that its a fundamental problem in that its excess of delegation, too far ranging, too open-ended,
no boundaries on its authority to overrideat least need like time frame or for certain causes, need to limit it moreit
says they can override anytime!

2.

Custom cannot supercede express law. Express law overrides custom. Custom can help us define nature of implied
powers that are not express. Cant go back and change custom, but there is customary evolution, changes with time and
if discover the past decision was wrong. If procedure is express, and been violating it by custom for past 70 yrs, dont
matter cuz its expressly enumerated.

3.

Alternatives: Congress could pass a law if they want to get rid of Chadha. Adopt it in both houses, present to pres. & if
he vetos, override that. Or use oversight function, saying were gonna cut youre funding if they do that, investigative
function. Or draft better, more specific laws & if they need more authority later, then amend it.

XXXV. Clinton v. NY: Budget process. Not only diff. in degree, but diff. in time. Peace time income tax was not adopted till 100yrs
ago & thrown out by s.ct. then brought back in 1913. during that time w/o an income tax, got $ from tariffs & duties & excise
taxes. Congress likes to spend $, and better if spend Other Ppls Money (opm). Needs are limitless when someone else has to pay
for it. How control that? Budget process more significant since new deal & great society programs. Processbills originate in
house, go to senate, agreement on budget, given to pres. for his signature & theres time table. Is there anything pres. can do to
keep congress in check? Unlike governors, pres. does not have a line-item veto.
A. Line Item Veto:
1.

get budget from legisl and there are line items where governor can just cross it out (some $ or none at all; all or
nothing). Congress can override veto w/ 2/3 vote. Hard for gov. cuz its all/nothing. Avoids padding that might go on.

2.

CA gov. can blue-pencil & write in a reduced amount, not just all or nothing; broader line-item veto. So cutting back on
excesses. Govern by veto. Not likely to be overrode by congress cuz still have some $. But congress can just make the
$ a lot on purpose, knowing gov. will reduce it (padding). Protection against runaway budgets. But congress likely to
override cuz required need of 2/3 votes to pass the item in the 1st place?

B. shall spend sounds more mandatory than may or have authority to. Pres. has own power in how to carry out the law.
congress can allocate the $ but pres. dont have to spend it that way. Does pres. have that inherent authority to cancel funds
and to what extent does congress have authority to
C. Art.2: Pres. power to refuse to spend funds specifically appropriated was a power exercised by Roosevelt, Nixoncongress
passed 1974 budget control act, upheld by ct., eliminated pres. ability to cancel funds. Congerss set up procedures but didnt
work. Since 1974, there was uninterrupted series of yrs. Where fed. Budget ran increasing deficit. w/ pres. out of the way,

congress just spent, and budget never came in on time & moved it to end of fiscal yr.(cuz have to be more careful so took
longer). So, there were govt shut downs. To deal w/ shut down prob, passed Grand Rubin Hollings Actbaseline for
congressional spending, and if went over could be overridden, pres. could refuse to spend. But this act was unconst. so
challenged in Bousher v. Shinard and ct. struck it down saying controller general appointed by congress is exec. Official, and
cant say nuthin cuz it would be a legisl. veto. If he can do this, he must be exec. Official cuz its exec. Function, so congress
cant appoint him cuz against appointing. So either way, its unconst.
D. Statute giving pres. power to cancel certain authorized appropriations, specified what they might be, pres. had to certify in
canceling that it wouldnt harm natl interest, would reduce deficit, then tell congress, who could override it by making a new
bill, then pres. could veto the bill, congress could override again.
E. Clinton v. Raines: congress challenged line-item veto act but ct. found there was no evid. That any harm occurred from pres.
exercise of the act. Argued that they could suffer political harm but issue was premature.
F. Majority: Formalistic; not following Art17, this is a legisl act so under art17, for pres to strike a portion of it, he departs
from the approach in art 1 so its unconst. what comes out after pres is thru w/ law is diff. from what congress adopted so in
violation. But pres. already has authority to veto under const. a bill deals w/ a single subject (fraud, wills) & in budget, a
line would be a subject so pres. can veto/cancel a particular appropriation. Problem is that its an omnibus budget, composed
of total items. But that is not the way press have looked at the budget since Washington. Ambiguous concepts can be
defined by custom over time. Budgets have been large & complex.
G. Dissent: not an issue of failure of presentment. It was presented to pres., & it was adopted by both houses. Issue is pres.
action. Const. to tell pres. to spend or not spend. Issue: Executive function was being performed in administration of law by
allowing him to cancel. Was cancellation unconst. in other ways? That pres. cant cancel funds congress ordered him to
spend may be true, also that pres. cant cancel a program congress said he could cancel. But thats not true cuz we already
have a long history of that. So question is whether pres could cancel a specific program, or to cancel all kinds of legisl.
appropriations, whether it violates delegationthat its excessive delegation. Ct. said no excess of delegation. If not purely
exec. Function, look at delegationdid congress give pres. too much power or did they act w/in their scope. Functional
approach. excessively broad delegation?
H. Chadhatoo open ended, gave congress too much power in future, unknown circumstances. Same here. If congress adopts
law and it says pres. could cancel the legisl they made, its narrow so its upheld. But if say whatever they are in the future, u
can cancel them for any reasons long as u notify, so unforeseen appropriations are yet to come and its too broad, too much
control over budget by excessive delegation.
I.

Pocket vetoart 17; bill presented to pres, w/in 10 days sign it or return it to house w/objections, or pres can sit on the bill
and after 10 days it becomes law unless congress makes a return impossible. Pres. putting bill in his pocket and not act on it,
bill dies and like it was vetoed. When does house make return of bill by adjournment, making it impossible? Adjournments
are when congress ends every 2 yrs. There are also intra-session adjournments, where they take vacations. Technically,
Senate never adjourns cuz carry over terms. Can congress appoint someone 2 receive veto messages once they adjourn,
circumventing pocket veto power of pres? dunno. Congress can for an intra-session adj. but once they adjourn, they cant
appoint someone since theyre gone. But its possible for temporary adj, to appoint some1 to receive pres. vetoes. Argue 4
pocket veto is that congressional work backs up at end of session, quality is not good cuz procrastinated, so pres. could veto.
But if pres. is gonna sign/veto, thats what we want him to do & not duck responsibility like that.

XXXVI.Appointment & Removal Powers. Part of pres. ability to protect inner workings of exec. Branch. When exec branch 1 st
formed, question bout its nature. Cabinet like ministers and pres like umpire among them. This idea fell away w/ jeffersonians,
and john adams as pres in 1797, and took on form like todayPres. being in charge of cabinet, as chief officer. Idea of minister
type govt makes sense w/ appointment power, but today, pres. is in charge of cabinet.

A. Art 2, appointment power: pres appoints all officers of u.s. w/ advice & consent of senate (senates role has withered away
cuz it was when it was minister type & it didnt work cuz too many of themany advisory role by informal contacts & not
formally by senate, advice b4 nominations). Senates role regarding appointment of officers is limited to consenting or
rejecting nomination. Officers of u.s., civil/military, appointed by pres w/ consent of senate. What is an officer of u.s.?
anyone who is performing some law enforcement or law administrative role w/in executive dept. includes commissioners of
independent agencies (fed. Elections commission, fed. Comm. commissions)performing fair amount of discretion in policy
making, judgesanyone performining adjudicatory role. Only members of congress & employees are not officers of u.s. it
was thought at one point that senate was officers of u.s. cuz involvement in appointing but rejected this idea when impeached
someone. Senate & Reps are not considered officers of u.s.
B. Art 2, 2 Congress may vest appointment power of inferior officers to pres alone, courts of law, or in heads of departments,
w/o needing their consent. Congress can never, w/ no exceptions, appoint an officer of u.s. Only ppl congress can appoint is
ppl that work for house/repnot considered officer of u.s. Congress vesting power is not delegations cuz to delegate, means
u have the power already. It is a power to direct who shall do it, but not delegation of their own power cuz never had that
power. Ex. giving someone the power to decide which kids to give my 4 to when I die. There are so few inferior officers but
if congress dont give power, default rule appliespress appoints w/ consent of senate.
C. Congress must act to vest power & must deal only w/ inferior officers (not principal officers.) During senatorial recess, pres.
can make recess appointments who can hold office till next term & if senate approves they could stay & if not approved,
resign. Senate only met few times, had real jobs so had recesses. There have been a number of recess appointments.
D. Removal power; not exec power, to be performed by legisl. branchimpeachment process. Impeach by house, trial by
senate. Impch by houseall civil officers of u.s. subject to impeachment. Excludes members of congress, who are removed
by 2/3 vote of the house. Also excludes military officers, who are removed by ct. marshall, or presnot impeached.
Impeached for Treason, bribery, other high crimes & misdemeanors. High crimes mean felonies. Misdemeanorsdriving
erratically? No. means malfeasance of office, behavior that exhibits a corruptness/unfit for office. Dont have to be
convicted or indicted of a crime to be impeached. Privilege against self-incrimination applies in the trial, but nothing else.
E. Pres removal powernot in const. does pres. have power to fire/remove? Issue w/ 1st congressthey said pres. is
authorized to remove sec/state w/o congress authorization. Problem was that u could be in favor of this auth., but against it
cuz dont want pres. to have that power w/o senate approval, or that he already has it and giving him auth. undercuts idea that
he already has the power. Tenure of Office Actwhether Jackson could remove sec/treasuryreqd pres to get approval of
senate to remove officer. After civil war during reconstruction, congress wanted to prevent pres. Johnson from firing fed.
Officers, sec/war Stanton, and hired Ulysses Grant, violating tenure act. Stanton wouldnt leave so fired again. Johnson was
impeached for violating tenure of office act. This was cuz congress didnt like Johnson, he was acquitted.
1.

1876 lawpostmasters and assts appointed by pres. serve for 4 yrs, and removed b4 then only by pres w/ senate
consent. Pres. harding wanted to remove Myers, myers challenged. Ct. said law, like tenure act, was unconst. Taft,
justice & pres, said look at hamiltons essaypres has all powers not specifically denied him or placed in another
branch, so has power to remove. But look at historical custom/practice. 1st congress looked at this. Even if it was
practice, tenure act and this law were accepted so what was const. trend? Pres. was even impeached over this. General
principle of sep/powers: what power is needed to protect core independence of each branch? Pres. needs to be able to
fire ppl w/in exec. Baranch w/o congressional interference. Pres is head of exec. Branch. Cabinet officers dont have
that independent protection. So can fire as he deems necessary, to protect indep. Of exec. Branch (Take Care clause)
ability to fire bad subordinates. Also part of Commander in Chief powerthis is pres. function and cant do this if cant
fire. Exec. Power clausepres has to control inner workings of his branch and protect it. Ther is implied removal
power pres. has under const.

2.

Limitations on pres removal power: Humphrey v. u.s.; Wiener v. u.s.: commission power on agencys. Congress
limited pres power to remove only to particular instances of good cause. Agencys not directly under exec. Branch, they
are independent agencies. Pres only has power to remove them to congress permitting them. Const. cuz trying to create
independence for them.

F. Morrison v. Olson.
1.

EPA case. U.S. v. House/rep.

2.

house wanted special prosecutor appointed under Ethics & govt Act. Sp.prosec. resigned cuz conflict/interest &
another appointedmorrison. Extensive, long investigation on Olson.

3.

Ethics & govt, if dont file an indictment, can get legal fees back from govt. If file, and no conviction, still have to bear
cost of legal fees. Olson & govt occurred lots of legal expenses. Morrison declined to indict.

4.

attorney general must seek appointment of sp.pros. unless theres no reasonable ground 4 further invest.
a) This is high hurdle in order not to seek appointment of a prosec. Cuz always grounds 4 invest.
b) If fail to appoint, lot of noise made as to why not.
c)

Problem is it could be used in political partisan ways. Politically motivated; Discriminatoryex. const. when its
spending for Iran, but unconst. when its Kenneth starr spending time & money to invest. Clinton.

d) Purpose is to invest. 1 person. But this is not purpose of regular prosec.


e)

Special prosec. Had to regulary report to congress cuz funds being spent, but not bound by pres/attorney general.
Attorney general dont even have this freedom. More like justice dept. is w/in prosec. Cuz attor.gen. supposed to
assist him.

f)

What if spec.pros. orders info. fr. Pres, but pres says no cuz natl sec. Pres must surrender.

g) Olson emphasizes spec. pros. Is low level official but thats not the case.
h) Spec. pros. Has full investigative, prosecutorial powers. Not under control of atto.gen. or pres in deciding what
charges to file.
i)

Only attor. Gen. may remove spec.proc., and only for good cause (not if pres. tells him to)

j)

possible for spec.pros. to say invest. Done and no more grounds to invest, but could also drag on 4 years.

k) Special division could remove spec. pros. as well but no reason 4 them to get involved, so not likely.
l)

If theres a removal, usually by attor.gen.

m) Removal decision is reviewable by cts. & spec. pros. can be reinstated.


5.

3 issues: scope of appointment power, pres. removal power, sep/powers.

6.

pres. appoints all officials w/consent of senate. Congress gives power to appoint inferior officers & if they dont
delegate it, defaults to pres. appointing w/consent of senate.

7.

Appointment power: it was by special division of ct. and not by pres.


a) Is this an officer of u.s.? yesnot legislature, but law enforcing/administering/judicial function.
b) Is Morrison inferior or principal officer? if principal, have to have pres. appoint. If inferior, its const. cuz congress
could delegate power to appoint to ct. distinguish between officer and employee. Factor to look at:
i)

Where are u in the organizational flow chart? The more ppl above u who can fire u, the more inferior of an
officer u are. Ex. v.p. of bank, but lot of layers above u who can fire u & direct what u do, so is employee, not
ceo

ii) Can be fired by attor.gen., asst. level & too far down. Attor. Gen. even has to appoint her.
iii) But she can only be fired for cause & that can be challenged in a law suit. Pres. can fire attor. Gen. & cant sue
in ct. of law so attor. Gen. can be fired & has less protection cuz can be fired. Pres. can even be removed by
impeachment. If fact that u can be removed by cause makes u inferior, is pres. inferior?
iv) Limited tenureonly there for this job. But one spec. pros. had longer tenure than 5 attor.gens.

v) Limited scope of job. Limited to what she does; told what to do. But can expand invest. w/ approval of special
division. If spec. division denies, can obtain info. indirectly. Have full prosecutorial powers. Ex. elections
commission is a principal official even though limited scope since undefined powers w/in that scope. Parameter
of where u will act is defined, but w/in that u have full powers. Sec of commerce works in defined area of
authority too.
c)

Sep/powers: look at if its formalistic/functional approach.


i)

Even if technicalities of appointment clause r met, the prosecutorial function is quintessential executive
function. Technically, control of what this person could do what in power of ct., so appointment was ultimately
done by ct. so have judicial appointing exec. Officers. If inferior officer, pres. or attor. Gen. as head must
appoint. But here, ct. did. Distorts role of ct.s.

ii) Majority is functional. Theres not significant burden on sep/powers. Doesnt signif. Alter power & immunities
of exec. Branch. Just technically burdens sep/powers. What if congress violated a technical aspect of ct.s
functions, Marbury v. Madison,
iii) Technical violation cuz doesnt impair/interfere w/ the function.
iv) Marathon pipeline casebankruptcy act of 1978, gave bankruptcy ct.s power, but technical violation of judicial
power & cts struck it down. Even if only a lil unconst. dont matter.
v) Congress is taking power from pres. & giving it to ct. technical violations are okay long as its given to ct. Cts
should be consistent in their decisions.
G. Art3 & Art1 Distinctions: Judicial power vested in S.cts & all cts congress may deem, but not all cts congress creates are
art.3 cts. ex. military. Art1 cts such as tax & bankruptcy ctsdont have to have life tenure, could have fixed term,
decisions dont have to have finality. Whereas Art.3 ct.s decisions have finality or theyre mere advisory opinions. Ex.
Chadha caseINS decision was subject to review by attor.gen. Marathon case, giving bankruptcy ct. (Art1ct.) power steps
on Art3 cts power.
H. Removal power:
1.

Ask: Whether particular indiv. is exec., administrative (independent agency, not treasury dept-exec.), or judicial officer
of u.s. All appointed by pres unless inferior.

2.

Officials can be removed by impeachment. Congress could impeach & try a spec. pros. but wouldnt cuz small fish, and
its usually congress seeking appointment of spec.pros. and they fund them.

3.

Pres. power to fire. Tenure of office Actpres. has to get consent of senate to firestruck down. Pres., 4 exec. Branch,
needs to control exec. officers most & judicial the least. Pres has no power to remove judicial officers & congress cant
give him the power. Judicial can only be removed thru impeachment.
a) Exec officers: Principal / Inferior executive officers. Pres can fire at will.
i)

Principalpres must be able to fire w/o any interference. Only fire attor.gen for cause would be limitation and
not allowed.

ii) Spec. pros. is inferior so can limit pres. ability to fire inferior long as it doesnt unduly burden pres to carry out
functions of exec. Branch. If no limitations, pres could fire at will. Congress can limit ability to fire.
b) Admistrative officers: Humphrey executors & wieners case.
i)

Pres firing power 4 administ. Officials, r only those given to him by congress. What if congress dont say
anything bout pres. ability to fire? Then default to pres. can fire at will.

ii) Morrison is inferior officer. but ct. said she has to act on her own, independent. Biggest fear is being fired &
not able to act. Freedom if u can only be removed 4 cause. Independence is important. but clash if
independent and Inferior.

iii) Conspiracy theorists think brennan would have written the opinion if Rehnquist joined dissent & Rehnquist
took it upon himself to weaken pres. power argument.
XXXVII.

Pardoning Power: pres. has very broad power to pardon.

A. Pres has power to pardon. Art22. limitations: pres can pardon only for offenses against u.s. If u commit ordinary murder,
its not offense against u.s. if u wanna pardon, have to apply to governor of CA cuz its against CA. a pardon cannot prevent
impeachment if its civil officer of u.s. Pardon dont prevent u from being impeached & removed from office. If commit
offense both against u.s. & CA, can apply to pres. 4 pardon, but ca can still prosecute u. if violate CA & NV law, can get
pardon from CA, but NV can still go after u. violating independent sovereigns. Not dbl jeopardy.
B. Exparty Garland casefed. Law prohibiting ex.confederates from practicing in fed. Cts. Garland was prominent lawyer,
applied 4 readmission to practice b4 s.ct. bar. Pres. issued pardons to ex-confederates. Garland said it was ex-post-facto law
and unconst. ex-post-factobackward looking law but only to criminal laws, or increases crim. Punishement beyond what it
was when act was committed, or evidence detrimental to criminal. The law didnt make anything a crime, it was just a
disability that cant practice law if been in revolution b4. not ex-post-facto. Bill of attainderact of parliament, declaring u
guilty of a crime & punished u for it, sentence to death, subject to being hunted down by anybody, forfeit your property,
corruption of blooddescendants are declared bastards so legal disabilities. Bill of Pains & Penalitiesguilt & punishment
but not sentenced to death. Parliament was not legisl. body, but more judicial & advisory, till 18 th century. bill of attainder
looks legisl. Art11 against bills of attainder & pains & penalties. Garland said its punishment for not letting him practice 4
acts he committed. Bill of attainder only works w/ ex post facto. But this is not bill of attainder cuz not punished 4 anything
just cant get license to practice b4 fed. Cts. Ct. said its like a bill/attainder.
1.

Garland also argued that he received full pardon from pres. so his participation in rebellion was obliterated as matter of
legal consequence so should be readmitted. Ct. agreed, saying when pres. issues a pardon for an act its as if the act never
occurred. But took this idea too farwhat about murder?

C. Pardon actually means that u dont suffer the criminal law base consequences of the act, but can still be sued civilly.
D. Pardon can occur anytime after act is done, not before. Dont have to wait for a conviction either. So can happen b4
indictment, and after convicted (cuz in some states, u lose some rights if convicted)
E. could u refuse a pardon? If u think u didnt do anything wrong. But usually apply for pardon so no issue of refusing.
Sometimes pres. will offer pardon & can force u to take a pardon u dont want. Can force cuz Ford pardoned Nixon not
based on issue, but to move on. Carter pardoned cuz time to end this chapter and move on. Public policy based. Andrew
Johnson pardoned to heel wounds & move on.
F. can pres put conditions on a pardon? Ex. pres. dont pardon u, but dismisses your sentence. Schick v. Reed (1975)murder
by u.s. soldier in Japan; tried in amer. Military cts, and sentenced him to death; Eisenhower commuted sentence from death
to life w/o parole, and stayed till fed. Death sentence was found unconst. in 1973. S.Ct. rejected Ds argument that his
sentence should be commuted. That would mean pres was legislating., by creating new sentence, and have to follow the
const. (eternal law, not made up from nowhere & making it up, just following const.) so if the law was unconst. in 1973, it
was also unconst. in 1940. so death penalty was always unconst. and sentenced him to life w/o parole. Dissent said
pardoning power was exec. Act, not legislative. Majority said exec act and If purely exec. Power, pres can impose
conditions. But pres cant impose anything unconst. Would conditions such as changing sentence but adding that u have to
stay inside your house, or subject to searches for no reason for the next year, or u cant say/write anything critical of
administration, or cant have sex be unconst?dunno. Broad power of Pres. to pardon. not much is unconst. could pres.
pardon himself? Nothing in const. says he cant.
XXXVIII.

War Power

A. Art18: congress power regarding war & military.


B. Art2: Pres is commander of chief of army & navy &

C. Extent of commander in chief power. Once thought it meant pres would lead troops into battle. Problem is that one of the 2
areas framers couldnt have foreseen was change in nature of warfare from what they were used to in 18th (chessboard type v.
modern street brawler by mass armies v. whats to come w/ terrorism). Civil wars are more bloody & brutal than intl wars.
So established laws of war, changing nature of war from civilians to soldiers & armies, take place outside cities, aims of war
limited to a reason (not just to mess up the guy), very civilized. Framers knew this type of warfare and didnt think wed go
backward. Framers thought about threat posed by military. Pres. dont have to do much during peacetime. Congress will
declare war. Framers didnt expect so much involvement w/ intl. Civil war of 1812 showed deficiencies of militiany &
ma militia acted incompetently/treasonously by just sitting there watching fed. Forces beat down by british army. Powers in
congress cuz militia might not be up to snuff cuz of diff. armaments, so want standard equipment.
1.

Well regulated militiato standardize/normalize; the state has power to provide for a well regulated militia, standardize
& make regular their equipment. Fed. Army was small until the civil war.

D. Fed 69: commander in chief clausesupreme command of ; power to be exercised only on congressional authorization
was extended. Commander in chief is Military role. Lincoln used the crisis of civil war & combined comm./chief w/ take
care clause to come up w/necessity.
E. Civil war raised some issues:
1.

trying to deal w/ traditional concepts of organized political violence. Unorganized is random assassin. Organized is:
a) Insurrection/insurgencyarmed, uprising 4 political objectives (overthrow of govt). in trad. Intl law, ppl in an
insurrection were more than pilots/highwaymen, not engaged in war so cant claim full privileges of war & not
protected.
b) rebellion: organized political org. not to overthrow or enforce existing law, but to separate from Parent state. Diff.
betwn rebellion & insurrection, reb. Involved de facto control of area of land, & effort is sizable enuf to cast doubt
on the outcome. Rebellion is treated as a war for intl purposes and rebels get rights as if under war. Prisoners are
pow. De facto treatment of union by southern confederacy was to capture & treat as treason prisoners. Confederate
view of civil warindependnet nation & war betwn diff. states.

2.

Prize cases: from issue of what civil war was. Pass of ships thru blockade in southern ports. Ct. said dont care what
kind of war it is, pres could do anything he wanted as comm./chief w/o consent of congress, and do whatever is
necessary to deal w/ this type of situation (deal w/it when theres threat of invasion). throwing blockade is act of war in
intl setting. Blockade recognizes belligerent nature of those ur blockadingbut ct. said have to get congressional
authorization since blockade is acting offensively in the war.

3.

What constitutes a war? Theres only 5 declared wars. Majority of events like war, are not declared as war. Does this
have characteristics of war wher u need congressional author? Korean, Vietnam, civil, etc. were not declared wars.
Amer. Casualities far higher in undeclared than declared wars. Prize cases are only time Cts said anything bout war
issue. Cts try to avoid this.
a) no clear line in what constitutes a war. Look at objectives.

4.

what factors to declare a war? B4, sent letter to go to war. It was part of process. Or combined w/ comm./chief power
and congress. There have been presidential (Vietnam, korea, WW1 & 2) & congressional wars (spanish-amer. War, war
of 1812). When one branch is determined, hard for other side to resist. If pres wants war, hard 4 congress to oppose
pres. on that issue. Tonkin resolutiongive pres. some power to act? Congress authorizes by voting for appropriations
year after year, & if congress dont want it, cut of their funds. Congress can voice its support for press comm./chief
efforts w/o of formal declaration of war. Even acceptance of funding effort. Pres. can say it performs function or
previous declaration of war. Formal declarations are rare.

5.

broad interpretation of pres. power under WW2, Roosevelt. Used concept of prvios declarations. 1883 statte for disposal
issues. Based on law of june 1940, long as materials do pres made 2 proclamations2 natl emergencies. w/o
congressional auth.

6.

Extended to internal security, especially in times of military threat. Civil war. Treason statutes passed by congress but
not enuf to deal w/southern anti-union efforts, so congress adopted anti-rebellion & conspiracy laws for crime of treason.
Lincoln couldnt enforce these laws in south or even in north. So he used military arrests that were handled by state
dept., secret service agents, fed. Marshals. Suspended writ of habeus corpus so prisoners held w/o trial or release. 1862,
jurisdiction over arrests transferred from military to ? , to review and release if appropriate. Thousands arrested on
suspicion of disloyalty. But many quickly released. Lincoln viewed the laws as profalacticsuspicion so arrest but if
nuthin wrong, released and problem gone. Prisoners treated humanely. Practice was less extensive than pres. suggested.
He couldve arrested many more but didnt. Exparty marymant case

XXXIX.Lincoln dealing w/ const. crisis during civil war.


A. Prize casespres. didnt have to wait to invade; Pres. implied powers
B. Used powers to seize power lines? Suspended writ of habeus corpus. Had ppl imprisoned w/o normal rights such as
informed of charges against em, access to council, held indeterminately, tried b4 military cts.
C. Power Lincoln claimed were greater than what administration applied.
D. Pres Own claimed const. powers, cuz of 3 usual suspects & that he took an oath so it was his duty to do whatever necessary
to preserve const.
E. Did pres have power to suspend writ of habeus corpus? Had to come from congress, what nature of legisl. act, art19 deals
w/ limitations of congress power to suspend writ of h-cunless rebellion/invasion. So even congress couldnt suspend writ
of h-c in those areas.
1.

But pres said he has indep. Power (under oath & stuff) to do whatevers necessary & this was nec. To protect operation
of union.

2.

congress declared that pres. was authorized to suspend writ of h-c. under h-c Act.
a) military was relieved from statute of having to answer the writ.
b) Ct. said prisoners had to be released.
c)

Those tried in military cts were not covered by statute.

d) Military was not used a lot.


e)

Exceptions:

f)

X-party landing hamformer democ. Rep from Ohio, made speech during civil war that denounced Lincoln regime.
Convicted of disloyal sentiments w/objective of weakening the govt. tried in military cts. S.Ct. refused to review
the case cuz precedent prevented itcivil cts cant review military. Ct. never even questioned pres. & military
cts powers

g) X-party milligan casect. finally reviewed?


XL. Pres claimed const. powers w/o statutory power.
A. late 80s, 1989, David Terry, former chief justice of S.Ct. who resigned during civil war to raise confederate troops in CA.
while he was justice, Terry killed CA senator in a duel, killed a minor w/a machete during a brawl. Steven Field, U.S. S.Ct.
justice, brother Dudley field was NY attorney who drafted pleadings of common law code system (Code Pleadings), brother
Syrus field, uncle of S.Ct. justice Bruer, related to Whitney. Sara Hill was society party girl. William Sharon was NV
Silver senator who lived in CA. Sharon & Hill had an affair so Sharon died. Hill said they were secretly married &
produced a marriage K to get his silver. Fed Cts rejected the K. Steven Field was judge sitting in the Ct. Terry was tall,
former Texan. Terry said Field better not show up in CA againthreatened him. Field went to U.S. Attorney to get
bodyguard when he came to CA. They went to Pres. Harrison who appointed Marshall Negal to be Fields bodyguard. Did

this on basis of exec. Power & take care Clause to preserve peace of u.s. Field comes to l.a., and goin back home on train,
Terry & Sara Hill (mrs. Terry) board the train. Field gets off train to eat, Terrys enter, slaps him & Negal shoots Terry. Hill
throws herself on Terry saying hes been murdered. Negal & Field arrested for murder of Terry. Terry did not have a
weapon. Formally arrested in S.F. Field is let go, Negal jailed. Negal tried for murderdefense is that he acted under fed.
Law so not subject to CA authorities. Ct. said no authorization for Pres. w/o congressional power to authorize him to do so.
Pres. auth. upheld.
B. Pullman Strike. Pres. said to guard mail trains under inherent powers of commander/chief & exec powers. Roosevelt &
Woodrow Wilson did anything to protect nation. Roosevelt, dealing w/ domestic security, not w/ foreign matters:
1.

Internment of Jap. Americans pursuant to military order. Following attack on pearl harbor, pres. issued exec order
authorizing military to take whatever steps necessary to deal w/ problem of enemy aliens and enemy supporters. Entire
west coast was made a military theater of war. There was kurfew on all ppl of jap ancestry & german & Italian nationals.
Military exclusion order issuedhave to leave the area. Military detention order issuedgonna hold u.

C. One case, Only addressed kurfew & upheld it cuz natl emergency and disloyalty of Jap.
D. Kuramatsu v. U.S. Exclusion order upheld, military security needs under power of pres. to determine, not for ct.s
E. X-party Endoct. upheld detention on other grounds
F. Duncan v. kamakakuafter war. establishment of military tribunals unconst.
G. Trial of enemy personnel. X-party Querincaptured on u.s. soil, and were u.s. citizens, tried b4 military ct., ct. denied
appeal of h-c w/o explanation, ct. ruled that natl war power was sufficient to establish military tribunals to try these ppl w/o
distinction if they were u.s. citizens. Military Tribunals not cts in traditional sense so no right to jury trial or 5 th/6th
amendments. Military cts dont have these const. rights. Prisoners were already executed.
H. 1946 Inrae Amashtact rejected idea that captured jap. General tried by military cts had no const. rights except those the
pres. chose to accord him. So his conviction for war crimes not subject to civil ct. review at all, but only by higher military
authority.
I.

True enemy combatants, even if tried in u.s. military ct.s, have no const. rights or right to review in civil ct.s

J.

Pres. powers strong & upheld regarding foreign affaris & military tribunals; under commander/chief power. Secret trials cuz
concern bout natl security & cant have this stuff be public cuz sensitive info.

XLI.

Federalism re. sep/powers. Virginia & Kentucky resolutions, etc. Doctrine of Federalism. Diff. between art/confederation &

const. of 1787 (dual federalism where sovereignty is basis for state & natl govt, so its not that states have sov. of which fed.
Govt aroseex. both have power to tax, & both get power from ppl). Contrast w/ federalism of Dutch rep (core of sov. at ppl in
town levelnot in provinces).
XLII.

McCulloch (cashier of Bank of U.S.) v. Maryland

A. Natl govt. for congress to act, it must always be able to point to an expressly enumerated, delegated power, mostly under
art18, or implied. Ex. commerce power is given to congress. McCulloch deals w/ creation of Natl Bank. Nothing in const.
allows em to establish a Natl Bank. Ct. upheld Bank thru theories of N/P clause.
1.

N/P Clause is not a grant of substantive end power. Doesnt say congress has power to create all laws nec & proper
Period, but Only to carry out the foregoing powers. Not a general legislative power (like States). This is only means to
obtain another objective art 18. Doctrine of Implied Powers is same thing in Agency Law. Ppl are the principals &
delegated certain governing functions to states & to congress. Agent has express powers given to him & any implied
powers to do the job/ carry out the objective (using telephone, car, etc. to solicit Ks). To interpret how broad your
implied powers are, Look if there are limitations, nature of Agency created.

2.

Problems:
a) Congress can only act if express powers or if N/P to accomplish an art18 objective.
b) framers discussed and rejected congressional grant to cover charters.

c)

inter-governmental taxing. States cant tax the whole but govt can tax the part.

d) Bank was anything but a govt entityonly 20% was govt, rest was Private.
3.

acted like regular bank. Expired in 1811. War of 1812=$ problems. So demands to make Bank to help w/ $ probs.
Popular, but expanded credit policies during inflationary times. Depression ensued. Bank kept acting against economic
trends. States retaliated against Bank by barring them, taxing, etc. McCulloch challenged all state restrictions on fed.
Authority. West ignored This decision.

4.

Bank was re-charted in 1832, Jackson vetoed it.

5.

Treasury Secretary was Roger Tawny of Maryland (later Chief Justice). Tawny & 2 partners formed largest State bank in
Maryland. No branch of Bank of u.s. in D.C. if Bank failed, u.s. funds would probably go to largest bank in state of
Maryland. Tawny was also close to Jackson.

6.

McCulloch was chief executive agent & main lobbyist. This branch was most important. McCulloch later prosecuted
for embezzling over 1mil?

7.

Issue is nature of sovereignty. Sov. derived from ppl, not the states.
a) But fed. 39 says ppl voting & acting in their States. Everythings organized on basis of states.

8.

N/P Clause. Maryland said cant rely on implied powers cuz N/P clause says it expressly defines means theyre
supposed to use; & Necessary means are interpreted narrowly; dont have to have the Bank. Bank said N/P should be
construed broadly, long as means are reasonable & convenient to the objectiveLike Rational Basis Test.

9.

Federalist 44. Madison said fed. Govt has power by direct allocation & those that exist by unavoidable implication, and
those which are indispensably necessary.

10. Interpret const. by looking at whats been done in the past. Even if const. doubt the 1st time it was discussed, look at
whats happened since. Legislative action on it, pres debated this, etc. Its little too late to argue its constitutionality cuz
itll just throw the past out. Const. Custom evolves that becomes like general common law of const. Practice adhered to
for over century, not only 25 yrs.
11. 10th amendment proprosal to add expressly. Madison objected to that cuz it would too greatly circumscribe power of
govt. it was voted down. Marshall sees this distinction as central govt to have express & other powers; N/P clause to
be read broadly. Central govt under articles/confed. had some powers to act; the new const. 1787 had more powers.
Art/Conf, Central did not have direct power to tax or over commerce, but had power to copyrights.
12. If means are to be reasonable (construed broadly), what are the limits on congress power? Limit congress boundaries.
a) Could congress impose a natl curriculum in schools, divorce laws. Divorce laws take up lot of time, stress, etc. so
it has substantial effect on commerce. So to balance that, it should make marriage more difficult. Ex. Lopez case.
b) If congress passes law that violates spirit of const, even if technically w/in letter of it, it will be struck down.
i)

Is this practical? using pretext approach. looking at motives of legistl. Ct. has abandoned pretext approach.
ex. Lottery casepoint was to deal w/ vice of gambling.

13. assuming congress could charter the Bank, can it be taxed?


a) Supremacy Clause, then Taxing power violates immunities of central govt if exercised in discriminatory fashion or
to interfere w/ fed. Instrumentatlity. State taxing interferes w/ operations of central govt so in violation & unconst.
14. Decision is Strong declaration of Federal Sovereignty. Sov. derived from ppl of u.s., not the state govts.
a) Historical context: Madison was pres. (Jefferson ally) challenged authority of central govt, supporting auth. of
states to nullify such unconst. laws w/in their borders. Central govt was weak compared to natl govt. Centrifugal
forces of state sov. were in danger of overwhelming centrifical force of a natl const.
b) Is Marshall saying States sov. overwhelming Central govt valid today?
B. Defines scope of Fed & State powers.
C. Whether Maryland could collect a tax from Bank of U.S.

D. Broadly construed Congress powers & narrowly limited authority of State govt to impede Fed. Govt.
E. 30 yrs ago, there was dispute between Hamilton & Jefferson.
1.

Hamilton favored creating such a bank; Jefferson & Attorney Randolph opposed.

2.

Jefferson & R said Congress lacked authority under Const.

3.

Ultimately, Hamilton persuaded GW to support creation of Bank.

4.

James Madison, House/Rep also opposed. But Federalists controlled Congress & ended up enacting legislation to create
Bank of U.S.
a) Madison, as pres. 25 yrs later, endorsed its re-creation.

F. Congress had authority to create the Bank


1.

Historical practice; History of the 1st Bank is authority for const. of the 2nd Bank.
a) After great debate, congress enacted Bank w/ consent of Exec. Even Madison changed his mind.
b) But history should not presume constitutionality.

2.

People ratified the Const, not the States. So the People are sovereign, not the states.
a) Rejects the view of compact federalismthat states are sovereign cuz they created the U.S. by giving it power and
ratifying const.; Const. is not a compact of the states, where states retain ultimate sovereignty.
b) Govt of the union is govt of the people.
c)

3.

But Art 7 says ratified by States.

Broad interpretation of Art.1.


a) Congress is not limited only to those acts specified in Const.; Congress may choose any means, not prohibited by
const., to carry out its lawful authority.
b) Const. doesnt expressly say anything bout power to create bank, but can as a means to carry out many of its other
powers.

4.

Art.18. Broad interpretation of Necessary & Proper Clause. Congress may choose any means, not prohibited by const.,
to carry out its express authority.
a) Necessary means useful/desirable, not indispensable/essential.
b) N/P clause is in 8, which expands Congress powers, not in 9 which limits them.

XLIII. Printz v. U.S.


A. Brady Handgun Violence Prevention Act (requiring state law enforcement officers conduct background checks on prospective
handgun purchasers) violates 10th & is unconst.
B. Cant compel state officers to act.
C. Violates sep/powers cuz congress gave executive authority to state law enforcement personnel; All exec. Power vested in
pres.
D. Amendments to balance consolidationist (all powers in central govt) tendencies of S.Ct. Look at broad framework of
federalism when interpreting const.Checks & Balances. Ct. has reawakened to this balance of state & fed. Govts in last
10 years. Ex. Lopezput constraints on commerce clause, has to be commercial, defining reach of commerce power; even
if commercial, when does it use federalism? 10th & 11th
E. Printz uses 10th
F.

Martin Case: can force state cts to adjucications. fed govt can abolish

lower fed. Cts. to what extent can congress demand state legisl pass fed. Laws

congress wants em to pass? Making state officials act? Ex. NY v. US & Printz. Ct. rejects congress auth. to drag in state
legisl. to do fed. Govt bidding, or to make state exec. Administer. Forces central govt not to create unfunded mandates.
G. Y cant congress make states adopt certain legislation or make state officials act? They are diff. sovs and cant tell another
sov. how to exercise its political authority.

H. Garcia v. SA mass transitreversed natl league of cities case; Ct. said if state was concerned bout their sov, dont come to
cts, do it politically; left door lil bit open by saying there could be a point where central govt so drastically burdens state
autonomy where well step in, but this aint such a case. Municipal buslines are not trad. Govt function.
I.

Printz10thfed govt cant do sumpin that significantly burdens operations of a state. More a threat to federalism than
Garcia. Unfunded mandatecongress giving orders but not paying for it.
1.

Cant tell an executive how to carry out political discretions. Ask: Is it interfereing w/ state sov & how significant is the
invasion?
a) Is fed. Legisl. affecting state in a sov. capacity?
b) Is burden on state sov. significant?
c)

J.

Is there some overwhelming fed interest?

Framers recognized states may want to take over these functions but didnt expect it to be exec/legisl functions of state

K. Congress can ask states to help them out & usually will. Some provisions in const. require states to assist fed. Govt when
concerns fugitives. Fed. Govt could use its spending power to bribe the states (so mandate would be funded).
L. Printz, w/ NY v. US, ct. is sensitive of fed. Govt to hijack states sovereignty.
M. 11th: deals w/ matters of sov. immunity. Can u sue a state w/o its consent? Chisholm v. Georgias. Carolina citizen could
sue Georgia w/o states consent. 11th prohibits a citizen from state A sueing citizen of state B w/o consent. 11th expresses
Doctrine of Sov. Immunityjustified on basis of common law: sov. residing in King, King can do not wrong cuz he makes
the law & if he violates law, can just change it. Cant sue sov. cuz sov. makes the rules & can just change em so no longer
breaking em. But this doesnt sit well w/ our sensitive ears & psyches. So justified in allowing suits since any money
judgments are from state treasurey & not for cts to do this, but for state legisl. (no taxation w/o representation), so improper
for judicial body to enter judgment against the state.
1.

Ct created exceptions to this doctrine, but it all changed in 1990s. S.Ct., in cases like Tribe v. Florida, etc. revived
doctrine of Sov. immunity, much more broadly.

2.

Ct. said whenever congress attempts to allow law suit against state under fed. Right, cant do so w/o states consent. State
must consent to being sued. Central govt doesnt have a broad consent to be sued either. Fed govt cant create any $
damage action, or equivalent of $ damages, under art 18, w/o states consent.
a) Its possible to sue state officials for misconduct under color of state lawusually injunction.

3.

14th, sec5: if law adopted under this, congress can create fed. Right to sue state.

4.

Test for congress to order state to appear w/o consent:


a) Fed right must have been created under 14th5 not art18, commerce clause
b) must make congress intent to sue unmistakeably clear.

5.

revival of sov. immunitiy doctrine has created protections for state; long as state consent, no prob.

6.

if want background checks, just ask. If they consent, no const. prob.

7.

10th (federalism) & 11th (doctrine of sov. immunity) are federalism doctrines.

8.

14th purpose was to change relationship btwn central govt & states. To make state more subject to fed. Regulation &
rights.

XLIV. Legislative delegation; Admistrative law. Utilitarians


A. Big change in jurisprudence in 20th century, was outgrowth of utilitarianism in 19th century and a significant/dominant school.
Util. views go way back to Plato.
B. Hobbes is considered as father of modern utilitarianismppl are driven by pain & pleasure, in a constant state of war so seek
that one thing that makes em feel goodpeace, all our actions are done trying to avoid pain & seek pleasure; interested in
state craft so didnt get around to looking at ethical level, but Hume did.

C. David Humescottsman, mid 18th, critic of extreme rationalism of enlightenment; jovial fellow, atheist, saw Russo as
kindred spirit till he spent the night; we are moved by our passions, not by our reason. We engage in calculated activities,
but were not moved by them. Reason allows us to calculate what & how we should do. But moved by passion. Humes not
that convinced by this though, just overstating. Were attracted by what we like, what feels good, what gives us pleasure &
repelled by what gives us pain. Utilitarians saw this as ethical principle.
D. Jeremy Benthamlate 18th and early 19th, English
1.

Philosophic calculusu and legislature decide right & wrong from looking at how much pleasure a conduct w/ bring &
balance w/ pain it will bring. If degree & quantity of pleasure exceeds pain, its what u ought to follow.
a) But what if one gets lotta pleasure from killing homeless person, and lot of ppl will too. how is it any diff. from
getting pleasure from ballet? But can say homeless person will have painbut only quickly. Also, no 1 is
dependent on him.
b) Bentham says u can consider indirect injuriesif u do this, ur gonna do it to family member, ppl will be insecure if
allow this.
c)

Calculus made it too scientific, but not.

E. John Stuart Mill & John Austin also utilitarians.


F. Didnt look at intent behind conduct, but at its effect. Dont really know intent for sure (reason).
G. Modern util: Sociological jurisprudencethat function of law is to balance/adjust competing interests in society.
1.

Roscoe Pound: interest in society: public interestthat which affects the ppl as a whole, private interests, and group
interests. Adjust competing interests.

No external notion of right/wrong. So law becomes instrumental onlykinda

positivist.
H. Blurs role btwn law & politics (competing interests).
I.

Agencies are they to make law/policy, expressly taking into account orders by congress to adjust competing interest. Ex.
environmental lawadjust social interest w/ private individuals of recreation & fishing industry. Agency tries to promote
objectives of all the interests. Most law is in administrative regulation.

J.

Statutory law became the dominant law in 19th centuryqualitatively. Cuz: growth of legisl. power w/ identification of
houses/rep w/ purely legisl. function, they became full-timers, codification movementgot rid of common law pleadings &
make statutory forms. Stat. law superior to common law. get more specialized laws. Getting more complex & pervasive.
Legisl, even though full-timers, they are overwhelmed. So in last 80 yrs, we have turned increasingly to admin. Agencies to
deal with competing interests. Congress creates agency & delegates them certain powers under enabling statutes. Agencies
can be w/in exec. Branch & outside of it (independent).

K. Cuz of growth of util. doctrine, notion of K has changed. 200 yrs ago, it was a promise w/ moral weight (moral obligation).
By mid 19th century and now, breach is not a moral sin, but a util. calculation (ex. lose more $ by sticking w/ K than by
breach). Balancing pros & cons. But getting someone to breach K is moral issue & tort. But we still have moral laws-molum insae (moral crimes like murder). molum prohibitum (jay walking)
L. Nondelegation doctrineex. hire u to paint my portrait, but ur busy that day cuz u have agreement to paint someone else.
So u assign someone else to paint the portraitdelegate the duty to someone else. Sue saying u cant delegate duty cuz u
agreed to do it, I Kd for your services. This common law doctrine modified. Ex. paint housedelegated duty to another.
But this is not the same cuz anyone can do it. Nothing wrong w/ someone else performing the service.
M. Wieman v. Sutherreitereated nondelegation doctrine. If u get delegation, cant redelegate, but applies only to important
subjects. Congress is delegate of certain powers of the ppl, so how can they redelegate to some agency? Doesnt it violate
nondelegation doctrine? Only if it deals w/ important subject.
1.

What is important subject? Ex. Schecter-sick chicken case.

New dealgetting rid of natl actto cartel lies & quotas, price-fixing over fair trade prices. Agricultural law (butler).

Govt set up fair trade laws, price-fixing. Where u had to charge a min. price. Ct. threw this out as delegation run a riot.
Exec. Branch sets this all up, regs over industry w/o control by congress over whats goin on. Violation of non-delegation doctrine.
Scheterlast time ct. threw out law for violating non-delegation doctrine. Now, they use test:
1) w/in authority of congress to delegate; congress power to delegate. If congress dont have authority, cant assign
authority.
2) Must not be otherwise unconst. cant violate any other const. limitations such as 1st.
3) Delegation must set up clear goals for the delegate to achieve. Rule making function of agency. This is easy for congress
to make it. Ex. To ensure integrity of securities market.
4) Delegate must be provided w/ standards by which agencies conduct can be measured. Ex. rate fixing, provide
guidelines/standards in how to fix the rates. Rates must assure reasonable rate of return is adequate standard. What
does return on investment meanhow calculate, what formula to use?
Easy for agency being challenged to meet the test & avoid non-delegation doctrine.
Ins v. chadhalegislative veto. Gave broad delegations to agencies & safety valve. Violated art17 cuz it was legisl veto, violating
bicameralism requirement & presentmentwith anything of legisl. nature. Legislative if changes rights of individuals. Distinguish
legisl & judicial act. Legislforward looking, indiscriminate, ill defined. Judfocus on actions of particular individuals/ 2 parties.
Both affect rights of individuals, changing them, but do so in a diff. way. Safety valve against excessive delegation.
Now what? Make new law, cant just override.
REVIEW:
Principles of Sep/powers & blending/overlapping of functions in const. of 1787
Important to follow news. Not essay Q on barmore on MP
Book anti-federalist papersgonna made next years class read it
I.

Const. is a way to allow govt to do its job & not to do it too effectively (Madison).
A. Const to further these objectives: Stability v. indiv. liberty, sep/powers, federalism.
B. Govt is necessary evil. Its nec & can turn into evil. Framers viewCant trust virtue of rulers, maybe trust virtue of
ppl. Plato say cant trust virtue of ppl, but must trust rulers. Framers views differed: Adams & federalists totally
unconvinced of that (trusting ppl), Jefferson optimistic of trusting ppl. Madison says there may be a primary reliance
on ppl, but need [const] auxiliary precautionsthis is what federalists today emphasize.

II. Sep/functions to preserve co-independence of ea. Branch & prevent them from usurping powers of another branch, &
Overlapping of functions. To prevent one branch of becoming too powerful thru arbitrary legislation/govt that restricts
citizenry.
III. FED 10, Plato, Madison: Sep/powers is:
A. To Provide stability. What undermines stability? Madison said how do u deal w/ mischief of faction.
B. How do u preserve Liberty? Keep govt from becoming overbearing / tyrannical. Madison also concerned bout this.
C. Concern w/ stability of govt, yet preserving they dont become all to powerful.

IV. Congress
A. Speech & debate clausecant be challenged for any vote that u cast, or any speech that u make; exec. Cant go after
u for that or be sued in ct. Look at:

1.

Who made the speech? --member of congress or any chief assts. cant be low-level. Questionable if former rep.
should cuz should go to the speech & not the person

2.

Where did this take place?in capitol bldg. of senate, etc. are part of the s/d clause. If beyond that, reps forum
in own district, outside d.c., then have to ask if its related to legislative action/activity or is it political activity
(then not s/d).
a) What if seeking input on certain legisl? cant be campaigning or seeking funds.

3.

Control of membership, art15, each judgeover its members

B. But Outer parameters are only the 3 qualifications residency in state, citizenship of u.s. & age (art12).
C. Nonjusticiable political question.
1.

Aspects of nonjusticiability: relates to who, when, what of law suit. Any case must be matter of controversy, not
hypothetical dispute. Must show Standing:

2.

Standing:
a) P must prove he has suffered an actual, concrete injury thats attributable to Ds conduct, & ct. can grant
relief (donctrine of standingwhether its right of P).
b) 3rd party standingcant sue on behalf of my neighbor unless can show he couldnt bring action cuz too
expensive or dont want his name to be known; usually cant represent 3rd parties. Exceptionsif its a child,
cuz they cant represent themselves & could show doctrine of standing. victim meet req. of 3 rd party standing.
3rd party cases usually dont work.
c)

Tax payers cant sue for fed. Expenditures, but cdan sue for fed. Taxes they pay. Dunno where tax money
goes. Exceptions: if $ goes to a particular expenditure (Butler), taxpayer could sue.its an earmark tax,
goin to specific tax. OR if

d) Associational standingsuit on behalf of a group/assn. Same as ordinary standing: that assn. hurt by govt,
or suing on behalf of members who were hurt. Was it hurt or its members hurt?
e)

Did marbury have standing to even breing the suit? Cuz if he believed

3.

Mootness & ripeness go to timing of law suit.

4.

Overbreathfaciall attack on stattue so unconst. on its face. Dont have to discuss further if theres adversarial
dispute.
a) If unconst as applied, ask if there has been unconst. application. Dont have to wait till happens in future.
b) Rightness doctrine assures P is not jjumping the gunthere must be actual harm occurred or will occur. Not
hypo.
c)

Mootnessis there still adversarial dispute? Exceptions: if there are still collateral effects that come from
the matter; repetition debating reviewex. abortion casetechnically violating law, challenge law & b4
S.Ct. can render opinion, kid is born so matter is moot, so will review cuz if happens again, will always be
moot.

D. Non justiciable Political Qs doctrine: can any ct. resolve this subject matter (not about venue, jurisdiction, moot,
standing)
1.

Const. designation: impeachment & Qualifications calusesenate has sole power. These are taken from judicial
branch.

2.

Prudential/ institutional basiscases ct. is incapable of deciding cuz shouldnt be deciding these cases. They are
unsuited for resolution by unelected body so ct. shouldnt be doing that. Is it not suitable for judicial discretion?

3.

Nonministerial justiciable duty: allowed to cover. Opposite of nonjustic.

4.

Matters that involve branch discretion: war, diplomatic affaris,

5.

Marbury case.

6.

Can issue writ against pres? even if nonminist.

7.

Dispute between superior and lower in co-equal branch.if judicial interference, its disrespectful.

8.

Sep/powers dispute between co-equal branches. If direct suit btwn exec & legisl branch. Ct. shouldnt interfere.
a) Ex. direct lawsuit. Morrison case. Exec. V. house/rep. nonjusticiable.

V. Pres: co-indep of exec. Branch.


A. Exec. Privilegeto withhold info. from other branches. Nixon case upheld it in dictum. If based on natl security,
pres. claim is protected. But if not, ct. has balancing test: party seeking info. has to show info. to be relevant &
necessary to his case (crucial to give fair trial, cant get anywhere else), weigh against general claim of confidentiality
of general workings of exec. Branch.
B. Ct. shyed away from orders of pres personal appearance. Enforcing order against pres.
C. Can pres or lower level invoke this? Only pres, maybe v.p. & heads of depts. Cuz const. officers. Recently, lower level
ppl have said they have this power w/o order from pres. they can if pres. gives the order.
1.

Apply balancing test if no criminal proceeding?

VI. Exec. Immunity from law suit. Pres. immune from $ damage actions arising from conduct from his job. For other exec.
Officials, its qualified immunity long as showing good faith. Applies to judges too.
A. Nonofficial conduct. Clinton v. jones. No $ damage. Ct. downplayed concern bout interference to do his job. No
absolute immunity, or right to delay.
B. Can pres. be prosecuted criinally / be indicted? No. has to be removed or wait till out of office.
VII.Impeachmentdesire by framers to have 1 branch (congress) have control over occupants of other branches (not the
branches themselves). Congress could get rid of all the cts, but not a particular judge. Impeachment: Allowed to target
indiv. judges & other officers only on reasonable grounds.
A. By house/rep majority vote, tried by senate, conviction by 2/3 vote, officer removed. Senate can hold 2nd vote to bar
him from ever holding office again.
B. Misdemeanors? Indictable offensescould be brought in a criminial prosecution. Corruption, underminging
integrity/prestige of office, etc. are not indictable, but could be misdemeanor.
C. Can be brought against any civil officers of the u.s. any judge, inferior officers, administrative. Except military &
members of congress.
D. Const. rights of target: nonjusticialbe political Qs. resolve by the branches alone. Cuz impeachment textually
committed to a co-equal branch, and unsuitable for life term judges to judge ones power to control judiciary.
E. Pardon from pres.
VIII.

Appointment powerpres appoints all officers w/ consent of majority of senate. Judges, exec, admini, anyone who

performs an executive type function, judicial function, (law enforcement, administrative duty requiring discretion,
judges.)
A. Congress can never appoint officers of u.s. only non officershouse of sergeant at arms, advisory committee.
Congress can vest appointment of inferior officers in pres. alone so pres dont have to get consent of congress. If they
dont inferior of officers treated w/ default ruleconsent.
IX. Removal power. To allow pres to gauarantee indep. Of exec. Branch. Strongest when concerns exec. Branch officials, &
nonexistent when its judgeswho can only be removed by impeachment.
A. What type of officer is being removed?
1.

Principal exec. Officerscan fire at will, w/o consent of anyone.

2.

Inferior exec. Officerscongress can restrict pres. power to fire them unless interference impedes pres. power to
control exec. Branch. If no restrictions by congress, can be fired at will

3.

Independent agenciesonly fire w/ congress authority. If term of 5 years, cant remove em.

X. Pardoning powerunrestricted unless crime against u.s., dont protect from.only criminal proceedings, &
XI. Sep/powers. Youngstown steel, curtis wright.
A. Jackson: pres own powers, w/ congress act, & congress limits. But 2 & 3 are ambiguous. What is congress intent
when veto?
1.

Look at nature of source of pres. power? Enumerated/ implied powers?

2.

How has this power historically been applied in this area pres is trying to use it now? Precedent cases, legislative
precedent, exec. Actions, etc. const. custom.

3.

Look at nature of dispute: foreign v. domestic affairs. Pres. more leeway when deals w/ foreign. If domestic,
congress more assertive & ct. more sensitive to functional balance of power.

4.

Source of Congress power. Usually a statute / enumerated.

5.

How specifically & expressly has congress sought to limit pres? Youngstown steel.

B. Armed forces & war powers: use 5-part test above. Pres says he could do it, & someone says no cuz it theyre power
& they have to give him the authority. Unless: When deals w/ military directly, pres. has his say under
commander/chief power. When controversy arises in war zone cuz commaner/chief power. Ambiguous when pres
action not dealing w/ military action or theater of waruse 5-step approach. Youngstown steel was not direct control
over military or in theater of war so used 5-steps.
XII.Federalism. In con. Law. mccullochinterpretation central govt not restricted to powers enumerated. Limitation
comes from whatever congress does must be express power or get to it thru n/p clause. Must be express power,
directly/indirectly.
A. Prinz case. 11th. Structure of dual federalism. Limitations on congress if express powers undermine federalism.
10th-- Central govt cant burden the sov. actions of states in any substantial fashion. So if congress tries to regulate
states, if they are told what laws to pass, to follow fed. Laws. Intrusion of state sov. has to be more than deminimus
has to be substantial.
B. 11thstands for structure of fed. Not exclusive. Part of general issue of sov. immunity. Fed. Govt, in exercise of natl
powers, cant force states to respond to law suits w/o their consent. Ask whats source of congress authority? If
congress acting under 14th 5, ask is intent of congress to force state to answer law suits unmistakeably clear under
face of legislation?
C. Congress can get around sov. immunity by bribing states. Spending program.
D. New dealgetting rid of natl actto cartel lies & quotas, price-fixing over fair trade prices. Agricultural law
(butler).
1.

Govt set up fair trade laws, price-fixing. Where u had to charge a min. price. Ct. threw this out as delegation
run a riot. Exec. Branch sets this all up, regs over industry w/o control by congress over whats goin on.
Violation of non-delegation doctrine.

2.

Scheterlast time ct. threw out law for violating non-delegation doctrine. Now, they use test:
a) w/in authority of congress to delegate; congress power to delegate. If congress dont have authority, cant
assign authority.
b) Must not be otherwise unconst. cant violate any other const. limitations such as 1 st.

c)

Delegation must set up clear goals for the delegate to achieve. Rule making function of agency. This is easy
for congress to make it. Ex. To ensure integrity of securities market.

d) Delegate must be provided w/ standards by which agencies conduct can be measured. Ex. rate fixing,
provide guidelines/standards in how to fix the rates. Rates must assure reasonable rate of return is adequate
standard. What does return on investment meanhow calculate, what formula to use?
3.

Easy for agency being challenged to meet the test & avoid non-delegation doctrine.

E. Ins v. chadhalegislative veto. Gave broad delegations to agencies & safety valve. Violated art17 cuz it was legisl
veto, violating bicameralism requirement & presentmentwith anything of legisl. nature. Legislative if changes
rights of individuals. Distinguish legisl & judicial act. Legislforward looking, indiscriminate, ill defined. Jud
focus on actions of particular individuals/ 2 parties. Both affect rights of individuals, changing them, but do so in a
diff. way. Safety valve against excessive delegation.
1.

Now what? Make new law, cant just override.