The foundation of the Con Law skyscraper is the structure of government. After you've poured the concrete into the forms for the foundation to provide for the common defense, you can start building the floors representing individual rights, liberty, equality, freedom of conscience, expression, religion, press, assembly, etc. Because without a good foundation, you've got a superstructure that's going to collapse like one of those medieval cathedrals whose walls collapsed when built too high. What did medieval architects then do after surveying the rubble? They invented first buttresses and then flying buttresses.
You'll have to look those up. They're exterior extensions, one on top of another, to prevent the walls, with their stained glass windows, from bulging out when the roof went on, way high up.
We have our own buttresses and perhaps even a few flying buttresses in our constitutional edifice.
One of the really good, and interesting things that our Framers, or Foundation architects did in designing our governmental structure was to divide power into three more-or-less equal parts, legislative, executive, and judicial.
One of the nasty things about colonial era judges in New England was that they drew their salary from the crown and could be removed at the pleasure of the crown. In a dispute between you and a Redcoat, who do you think was going to win that lawsuit. Not you.
John Adams wrote about this before the Revolution as a controversy erupted when the colonists, British subjects all, insisted on paying their judges out of the colonist's money, not the Crown's.
Law professor Scott Gerber has this interesting article on the independence of judges and the separation of powers, giving much of the credit to John Adams for getting the ball rolling. Ideas such as these don't grow on trees, you know. Someone has to realize that as ideas they are good, can be made to work, and are worth fighting for.
This may have some relevance to the current exercise in nominating a qualified replacement for retiring Justice Sandra Day O'Connor, Prof. Gerber suggests, as we prepare to see yet another nominee grilled before the Inquisition of the Senate to see whether he or she passes the litmus test.
I guess we've got two choices, don't we, a secret litmus test known only, perhaps to the president and those in his circle who propose nominees for consideration to the high court, or, a public grilling in which we all get to play.
Somehow this may not be such a hot idea, having litmus tests, but I would like to know which rights are going to be jettisoned, wouldn't you? Like abortion and the separation of state and the far right?
Maybe it's worth the public grilling. After all, the vote of Justice O'Connor, as the tip-weight in the middle on so many important decisions, was worth all of the votes of the Congress and any state you name when it came down to issues of constitutionality. That's a lot of weight to put on one vote. Yet, that's our system where the Court has power to act as a Super-legislature, able to overpower Congress and the President combined.
This may not seem very democratic, but giving this great power to each of the nine justices acting as a body does have the merit that they were appointed by a popularly elected, more or less, president, and consented to by that other less then wholly democratic body, the Senate. Why less than wholly democratic? Because the Senate exists by virtue of a compromise between the big states and the little states at the 1787 Constitutional Convention in Philadelphia. The little states like Rhode Island, Delaware, and Maryland wanted equal weight with the big ones like New York, New Jersey, and Pennsylvania. So they came up with the idea of giving each state two votes in a separate house, the Senate. We have 100 Senators now.
Meanwhile, the other body, the House, would have proportional representation according to population. One state, today, North Dakota, I think, has only one Representative while California has what, 37 or so? We have over 500 Representatives if recollection serves. You'd think this information would jump out of my NYT almanac, but it's proving slower than I want to blog, so you're on your own for the stats, sorry.
Check out Adams, who wasn't cool, but was pretty good much of the time, nonetheless, when he wasn't stark raving mad, according to Franklin.
There's what Adams said in order to foment the Revolution and what he did after he became our second president in1797. He lasted only one term, as contrasted with Washington's two that began in 1789. During Adam's term, we were in an undeclared war with France called the quasi-War and by all accounts the citizenry was as worked up as after 9-11, only divided into two warring factions.
Why the quasi-war? Didn't France help us fight to get free of Britain, providing money and arms, soldiers and their fleet to bottle up the British at Yorktown? Yes, they did that.
So they were really ticked off when the U.S., under Washington and Hamilton (Treasury Secretary) began playing up to the British, making a treaty, the Jay Treaty of 1797, as I recall, restoring peace and good terms which were seen as caving in to the Brits and leaving France out in the cold.
So French sailors began boarding U.S. ships and commandeering them. Lotsa French ships in the Caribbean.
Meanwhile the French Revolution was raging starting 1789. By 1800 the Terror with all heads rolling from the guillotine in 1796 had become well-known, as had Napoleon, the Corsican artillery captain who had bombarded the British fleet in Toulons, the French port on the Med, as well as cannonaded the Paris mob, and had taken over.
American opinion was divided. We loved the loans but hated the head-rolling, not to say the French and Napoleon. Jefferson loved the French. Not Hamilton. Hamilton admired the British manner of finance and doing business.
All we got from France after the Revolution was wine and luxury goods for the bon-ton, not useful stuff like good sharp blades and scissors from Sheffield, England, and the like.
We've always been of divided opinion over France, it seems. We love 'em for their joie de vivre but hate their foreign policy. The French think they live at the center of the world when any New Yorker can tell them where the real capital is and San Franciscans, of course, give themselves points for never having left the City.
The past isn't dead. It isn't even past.
C'est la guerre...
To put a cap on it, Adams decided to send one last mission to France after the notorious XYZ Affair, in which we sent a delegation to treat with that bandit Talleyrand, the French Foreign Minister, in Paris. Elbridge Gerry, Charles Cotesworth PInckney, and John Marshall. Talleyrand wanted to shake the three down for some big francs and Marshall wrote a full report to Pres. Adams, who tried to keep it secret, anticipating a bad reaction from the public, no doubt. Congress wasn't having being kept in the dark and when Adams coughed up the report, all hell broke loose, with calls for war and "Millions for defense, but not one penny for tribute!"
The last mission, after the XYZ affair and another called the Citizen Genet affair, after a headstrong French minister who messed in internal U.S. politics to great chagrin all around, causing his recall as persona non grata, poured oil on the troubled waters and Adams took great pride in avoiding what seemed like a sure war.
Meanwhile, the Alien and Sedition Acts were passed by his party on his watch and he not only signed the bill into law but appointed judges and prosecutors and marshalls (who selected the juries that did the convicting) who oversaw the prosecution of Adams's political enemies (Jefferson's Democrat-Republicans) for speaking out against Adams and his policies. Jefferson was Adam's Vice-President who later ran against him in 1800 and beat him but a funny thing happened. The person who got the second most votes in the election became Jefferson's VP: Aaron Burr who had scoundrelly tendencies and was in Adams's Federalist party. We had a president from one party and a VP from another. To fix that, the 12th Amendment was passed.
So Adams, who had wanted to see power separated before the Revolution into three branches of government, was not above persecuting his political enemies with the Alien and Sedition Acts of 1798, later deemed by the Supreme Court, in NYT v. Sullivan (1964) to have been found unconstitutional in the court of public opinion. Those acts punished free speech on public affairs. In reaction, Jefferson and Madison drafted the Virginia and Kentucky Resolutions that purported to recognize a right in the states to ignore federal law they found to be unconstitutional by "interposing" state government between federal and the individual. That was the beginning of the nullification doctrine, where you'd least expect it. But they were the ones being gagged by the Sedition Act. Nullification, of course, becomes states rights, secession, and the Civil War. Lincoln drove a stake through the heart of states rights with the victory of Grant over Lee and the surrender at Appomattox. But, like the demon it is, states rights have revived under Chief Justice Rehnquist. The new states rights seemed to fizzle in Gonzales v. Raich, the federalism-marijuana case this term, however, in which Congress's power to keep you from smoking pot was upheld against a state power claim under the Commerce Power.
You see how everything interrelates in Con Law?
Good.
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