A Fine Monday To You

Last week, as I drove around Cleveland listening to talk radio, I noticed two hot topics in the Sonia Sotomayor Supreme Court nomination.

Swallow the Whistle
Some pundits were quick to hammer Sotomayor's "wise Latina" remarks, in which she sort of hinted that her gender and ethnicity would help her reach better judicial decisions than a white man. Assuming those statements were not taken out of context, the lady deserves some heat. But let's not get ahead of ourselves and assume she will favor minorities beyond the normal scope of the law. Let's definitely not call her a "racist". Bottom line, is she a good judge or not? Show me the legal opinion in which she clearly butchered the law and stuck it to the white man. Then her comments will be infinitely more interesting.

No Bonus Points
On the other hand, let's not start patting each other's backs just because she is a Puerto Rican woman. Again, is she the right legal mind for the job or not? If she is in fact up to the task-and the Senate gets to decide that for us-then I suppose it is better to see some minorities represented among The Supremes.

While we're here, let's take the idea of diversity in a slightly different direction. David Fram points out that Sotomayor will make 8 of 9 justices who have little or no experience in business law. You think that might come in handy as legislators try to steer us out of the economic poop? I would add that The Supremes all went to the same schools and had the same teachers. I'd like to see some diversity of legal background.

On a Lighter Note...
Some people just have no shame.

10th Amendment, and Making Love

These next two cases illuminate interpretations of the 10th amendment (state sovereignty) from the 1990s.

New York v. United States (1992)

Facts
Back in the mid 1980s, we started to generate a lot of low level toxic waste. The original plan required any party who created toxic waste to dispose of it. The problem was that corporations would dissolve and there would be no one left to manage disposal.

Under commerce clause power, Congress attempted to force each state to create a site for handling its own toxic waste. There were three parts to this legislation.

1. Money- Congress created a chronologically escalating tax for shipping toxic waste across state lines. Those funds would go mostly to states that had created dumping facilities of their own.

2. Access- Congress vowed to gradually restrict and ultimately block shipping access to other states.

3. Take Title- When a state was left with toxic waste that could not be moved or disposed of, the state assumed title for the waste. On these grounds, the state was legally responsible for the consequences of maintaining toxic waste.

Question
Does Congress have the ability to regulate in these ways under the 10th amendment?

Holding
1. Yes
2. Yes
3. No

Reasoning
1. Congress can tax and put conditions on the money it gives out. Duh, the taxing power.
2. Congress has almost unlimited control over the channels of interstate commerce.
3. “Congress may not commandeer state legislatures and force them to regulate in a certain way.”

Reno v. Condon (2000)
The Driver’s Privacy Protection Act prevented states from selling information they obtained from driver’s licenses

Question
Can Congress regulate the states in this way?

Holding
Yes

Reasoning
Congress is negating an activity (selling driver’s information), not requiring an activity.

...So, Congress has some power over state and local legislatures.

Congress also has some power over state and local courts. For example, state courts are expected to uphold Supreme Court rulings on federal laws.

The state executive branch appears to be the most secure from Congressional interference, as evidenced by today’s final case…

Printz v. United States (1997)
The Brady Bill required states to carry out instant background checks for handguns.

Question
Can Congress commandeer the executive power of the states in this way?

Answer
No

Reasoning
The short answer is FEDERALISM! The longer answer is…well, I don’t know. They just can’t.

Notes
As far as I can tell, reasoning in Constitutional Law cases tend to be weak. Even when the same basic question is answered differently in different generations, the reasoning is often just a restatement of the question and holding. Or, “The Constitution says so.” Or, my personal favorite, "Cause I'm Alexander Hamilton, suckas. I came here to do two things: make love, and preserve federalism...Looks like I've pretty much preserved federalism."*

*I was paraphrasing Alexander Hamilton. He may not have used those exact words.

I realize that's the beauty of the Constitution - and our government - but it makes for pretty boring reading.

And the winner is…
The Hammer wins! He always wins!

summarized from Life of a Law Student

Treaties

The Constitution does not mention treaties or Congress’ powers regarding them. Missouri v. Holland clarifies how the treaty power is allowable under the necessary and proper clause.

Missouri v. Holland (1920)

Facts
Congress passed the Migratory Bird Treaty Act in 1918. Missouri sued to prevent a U.S. game warden from enforcing the act.

Missouri argued that the treaty violated the 10th amendment (state sovereignty). The state also pointed out that Congress attempted to pass a similar law only a few years before. That act was struck as a violation of the 10th amendment. This treaty appeared to be the same policy repackaged.

Question
Is this treaty allowable?

Holding
Yes

Reasoning
Congressional powers cannot be used to contradict a Constitutional provision. But the necessary and proper clause makes sure that all appropriate government powers, which includes treaties, are vested in Congress. Treaties are therefore not reviewable under the 10th amendment.

And the winner is…
Holland. I’m guessing he was the game warden.

Notes
The significance of this case is simply that treaties can override the 10th amendment. It is likely that treaties must stand up to some other form of judicial scrutiny. And we'll probably cover that issue in a later post.

summarized from Life of a Law Student

Freaking Taxes

Okay.

We’ve firmly established that the Commerce Clause does not give Congress carte blanche. In this post we will look at the taxing power, another avenue for Congressional regulation of behavior.

The Constitution (16th amendment) gives Congress the power to tax and spend for the general welfare of the country. There are two general interpretations of this power. The Madisonian view is that both the taxes and the spending should be used for the general welfare of the country. The Hammer felt that Congress should be able to tax whatever they want, so long as the spending goes towards general welfare/realization of enumerated powers. Debate over this issue is ongoing.

The important thing to remember is that SCOTUS decides which taxes are constitutional and which taxes are struck. Although decisions are accompanied by much flowery writing, it appears to boil down to a simple gut-check by the justices. The lesson: Supreme Court appointments are REALLY important.

United States v. Doremus (1919)

Facts
Congress implemented a moral policy by placing a federal tax on the sale of narcotics.

Question
Is this allowable behavior under the taxing power?

Holding
Yes

Reasoning
It’s cool. SCOTUS doesn’t care if Congress legislates morality in this way. Besides, Congress is made up of elected officials. If they pass bad taxes, the people will surely take note and vote them out of office.

Note
The reasoning for this case could apply to any decision in which SCOTUS allows a federal tax.

Bailey v. Drexel Furniture (1922)

Facts
Congress passed a tax on businesses that used child labor.

Question
Can Congress regulate this practice through taxation?

Holding
No

Reasoning
Let the states regulate child labor.

Notes
-Similarly, the reasoning for this case applies to any case where SCOTUS strikes a tax.

-Remember Hammer v. Dagenhart? Congress already tried to regulate child labor through the Commerce Clause. SCOTUS struck that act, and now Congress is taking a stab with the taxing power. Standard operating procedure for the legislative branch. But we already know that the best way to get policy through is to simply appoint new justices.

summarized from Life of a Law Student

Blah Blah Blah

I think this will be the last Commerce Clause post for the foreseeable future. Thank God, I’m sick and tired of beating this dead horse.

Once again, Congress tries to use the open-ended Commerce Clause in lieu of (and sometimes in contradiction of) enumerated powers. Even though many of these laws regard issues every American would agree on, SCOTUS must strike the legislation if it is not an economic issue with interstate effects. The idea is to protect federalism.

United States v. Morrison (2000)

Facts
Congress used the Commerce Clause to pass the Violence Against Women Act. A woman was raped, and attempted to recover in federal court.

Question
Does Congress have the power to reach this type of activity under the Commerce Clause?

Holding
No

Reasoning
Rape is neither interstate nor economic activity. The plaintiff argued that rape affects interstate economic decisions such as tourism and business relocation. SCOTUS did not find this argument persuasive.

Note
It’s important to reiterate that SCOTUS is not saying that the federal government should allow rape. It is merely saying that the Commerce Clause is not the proper channel for legislation against such a crime.

summarized from Life of a Law Student

Good Laws Gone Bad

I hope you are enjoying the Commerce Clause, because we're still not done with it. Congress seems to try and use this clause to pass everything under the sun. You can almost imagine SCOTUS saying, "These are great laws, but this is none of the federal government's business. Let the states handle this themselves."

United States v. Lopez (1995)

Facts
The Gun-Free School Zones Act of 1990 banned possession of a gun within 1000 feet of a school. Congress passed this law under the Commerce Clause. They reasoned that guns affect education, and education affects commerce. Lopez, a high school senior in Texas, brought a gun to school.

Question
Can Congress use the Commerce Clause to regulate the carrying of guns in school?

Holding
No

Reasoning
Congress may regulate activities that have a substantial relationship to interstate commerce. This is not an interstate issue. This is not an economic issue. Education is the business of local and state governments. We don't want to federalize schools and everything within 1000 feet of them.

And the winner is...
Lopez

New Deal Breaks Through

By the mid 1930s some of the older Supreme Court Justices were stepping down. Naturally, President Roosevelt began packing the court with his own justices. This new court led to a new interpretation of the Commerce Clause, which grants Congress the power to regulate "interstate commerce". A broadening scope of Congressional authority led to an easier time for New Deal legislation.

The Former Supreme Court
Commerce is the buying and selling of goods. A business action has either interstate or intrastate effects. If the line is blurry, we'll deem it to be intrastate. We want to preserve state sovereignty whenever possible.

The New Supreme Court
Commerce includes the steps leading up to the actual buying and selling of goods. Congress can regulate things like labor agreements and manufacturing practices because they have an effect on commerce. If the line between interstate and intrastate effects is blurry, then obviously the action is interstate. Congress therefore has the power to regulate.

Briefs
The first two decisions overturn rulings from my last post. I'll list the relevant cases in parentheses. The final case puts forth a powerful new principle of aggregation that we will most likely be revisiting in the future.

NLRB v. Jones and Laughlin Steel Corp. (1937)
(A. L. A. Schecter Poultry Corp. v. United States)
(Carter v. Carter Coal)

Facts
The National Labor Relations Act provided all workers with the right to join a union. Jones and Laughlin Steel Corp. were sued for firing employees who wanted to unionize. The company argued that the NLRB had no authority over the firings, because they were neither interstate actions nor commerce.

Questions
1. Are unions linked to commerce strongly enough to grant federal authority?
2. Do the layoffs have interstate effects?

Holding
1. Yes
2. Yes

Reasoning
1. Labor agreements affect the production of goods, which indirectly affect commerce. This link is sufficient to grant Congress authority.
2. Seventy-five percent of Jones & Laughlin's business is interstate. Although the layoffs themselves are intrastate, they affect interstate commerce.

U.S. v. Darby (1941)
(Hammer v. Dagenhart)

Facts
The Fair Labor Standards Act of 1938 established regulations such as maximum hours and minimum wage for workers. Goods that were manufactured in violation of the FLSA could not cross state lines.

Question
Can Congress close channels of interstate transportation to combat intrastate violations?

Holding
Yes

Reasoning
Although the effects of barring intrastate transportation are indirect, they are an effective means to an end.

Wickard v. Filburn (1942)

Facts
The Agriculture Adjustment Act granted the Secretary of Agriculture power to regulate the industry. One regulation set standards for the maximum amount of wheat a farmer could legally grow. A farmer in Dayton, OH doubled his growing allotment. He did not sell any of the excess wheat. It was used to feed his family and animals.

Questions
Can the Commerce Clause apply to goods that never become part of commerce?

Holding
Yes

Reasoning
Filburn affected commerce because if he had not used his own wheat for home consumption, he would have been forced to buy wheat from someone else. Of course, his actions alone would have little effect on the wheat industry. But imagine the aggregate effect of all wheat farmers growing their own wheat. This would clearly have a significant effect on commerce.

Not so fast, Mr. President

Shortly after taking office, President Roosevelt and Congress teamed up and began passing "New Deal" legislation. Unfortunately, they met serious resistance in the form of judicial review by the Supreme Court. Today we'll look at a pre-New Deal case that sets the stage for a narrow interpretation of the Commerce Clause. We'll also see three cases from the New Deal era with similar decisions.

In the next post, we'll wrap up the New Deal with a more broad interpretation of the Commerce Clause. We will see this new interpretation opening the door for FDR's economic reform.

Hammer v. Dagenhart (1918)

Facts
Congress took the initiative in fighting the exploitation of children for labor. They passed laws making it illegal to ship cotton products manufactured by children across state lines. In other words, they went around their ass to get to their elbow. A North Carolina cotton mill broke the law, and the case reached the Supreme Court.

Question
Is it within the authority of Congress to prohibit such transportation of goods?

Holding
No

Reasoning
Congress has the authority to regulate interstate commerce in order to prevent harmful results. In the case of these cotton products, the harmful action has already occurred. It is true that if the federal government began seizing sweaters (or whatever), cotton mills would stop using child labor. However, this would be an indirect effect. Congress only has authority to make regulations with direct effects.

Railroad Retirement Board v. Alton Railroad Co. (1935)

Facts
Congress enacted compulsory retirement and pension plans for railroad workers. Their argument was that an aging railroad workforce is a threat to the safety and efficiency of rail transportation.

Questions
1. Are safety and efficiency of the railroad within the domain of the Commerce Clause?
2. On these grounds, may Congress mandate railroad companies to provide pension plans?

Holding
1. Yes
2. No

Reasoning
1. Railroad safety and efficiency have a direct effect on interstate commerce.
2. The aging railroad workforce has an indirect effect on safety and efficiency, and is therefore outside the scope of the Commerce clause.

A.L.A. Schecter Poultry Corp. v. United States (1935)

Facts
A Brooklyn, NY slaughterhouse was indicted for violating the "Live Poultry Code", which was a group of federal laws regulating the poultry industry. Defense argued that all violations of the code occurred within New York state, and were therefore not a federal issue. Congress pointed out that all of the chickens were shipped in from other states.

Question
Does the interstate shipping of the poultry give the federal government authority over Schecter?

Holding
No

Reasoning
All violations of the code occurred after the chickens came to rest in the state of New York. The state retains sovereignty over these acts.

Carter v. Carter Coal Co. (1936)

Facts
The Bituminous Coal Act provided coal workers with a collective bargaining agreement. This really upset stockholders. Mr. Carter was so upset that he sued his own company.

Question
Can the federal government force coal companies to honor a collective bargaining agreement?

Holding
No

Reasoning
The collective bargaining agreement is not commerce. It occurs before commerce, and has only an indirect effect on the buying and selling of coal products. This issue should be left up to the states.

*summarized from Life of a Law Student

Sugar Monopilies, Railroad Scams, & Lottery Tickets

Two weeks ago I introduced the Commerce Clause, which grants Congress the power to regulate trade. Today we'll look at three attempts to apply this power. We can view each case as a referendum on exactly how much discretion Congress has.

United States v. E.C. Knight Co. 156 U.S. 1 (1895)

Facts
American Sugar Refining Company purchased a controlling share in four Philadelphia refineries. With this purchase, American Sugar obtained almost complete control of refined sugar in America. This is recognized as a monopoly, and is illegal. Congress has the power to disintegrate monopolies. However, this lawsuit did not seek to break up American Sugar. The plaintiff only requested that the purchases of the Philadelphia refineries be voided.

Questions
1. Can Congress use this direct action to suppress a monopoly?

Holding
1. No

Reasoning
1. Technically, manufacturing is not commerce. Voiding the refinery purchases may uphold the spirit of the commerce clause, but is not congruent with the letter of the law.

Houston, East & West Texas Railway Co. v. United States 234 U.S. 342 (1914)

Facts
Louisiana made it extremely expensive to ship via railway into Texas. This had a negative affect on commerce in Texas. The Interstate Commerce Commission established a maximum rate for railway shipping across the state line.

Questions
1. Does Congress have the power to overrule the Louisiana state legislature.

Holding
1. Yes

Reasoning
1. When an intrastate legislative action has significant interstate consequences, it becomes a federal issue. Congress can and should step in.

Champion v. Ames 188 U.S. 321 (1903)

Facts
In 1895 Congress passed a law prohibiting the shipment of lottery tickets across state lines. Charles Champion was indicted for buying lottery tickets in Paraguay and shipping them to California and Texas. He appealed that the law was unconstitutional.

Questions
1. Congress has the power to regulate commerce, but can Congress prohibit commerce?

Holding
1. Yes

Reasoning
1. Congressional power to regulate includes the power to prohibit.

Notes
The first case is an example of Congress being restrained. The other two cases show SCOTUS expanding the legislative power. Dissenting opinions in these cases argued that if SCOTUS keeps granting Congress a longer leash, lawmakers will eventually run wild.

This point was rebuffed by one of the justices. He argued that SCOTUS would remain vigilant. Furthermore, if a senator or representative starting passing bad laws, the people would vote them out of office.

The Commerce Clause

I think Constitutional Law is about to get really interesting. Today we'll start digging into the Commerce Clause, which will lead us to the New Deal. If this picture is any indication, understanding the New Deal will help us understand Obama. Perfect timing.

The Commerce Clause within the Constitution "states that Congress has the power to regulate commerce with foreign nations, among the states, and with the Indian tribes." Gibbons v. Ogden provides an example of federal regulation of interstate commerce.

I'm quoting from Audio Case Files below.

Gibbons v. Ogden, 22 U.S. 1, (1824)

Facts
"Defendant had a New York granted monopoly on steamboat operations between New York and New Jersey. Plaintiff began operating like routes, under a license based on a federal Congressional statute. Defendant got a New York injunction forcing plaintiff to stop."

Outcome
"Congress may regulate commerce that has INTERSTATE effects even if the commerce occurs within one state. So, in this case, Congress has the exclusive power, pursuant to the commerce clause, to regulate navigation between the waters of two states."

Congress on a leash

As I noted after Ex Parte McCardle the Necessary and Proper Clause cuts Congress quite a bit of slack, but SCOTUS still holds the leash. In U.S. v. Klein, we see an example of the Supreme Court keeping Congress in check.

U.S. v. Klein, 80 U.S. 128 (1871)

Facts
Following the Civil War, citizens who could prove they did not aid the Confederates were allowed to reclaim any seized property. The Supreme Court ruled that the general Presidential pardon provided all citizens the opportunity to automatically reclaim their property. Congress then passed legislation stating that presidential pardon was insufficient.

Outcome
SCOTUS decided that this time, Congress went to far.

McCardle take 2, making an omelet

I went slightly overboard when I scored Ex Parte McCardle a massive victory for Congress. Let's keep some big picture perspective and remember checks and balances. Yes, Congress can regulate the judiciary. But we shouldn't forget that it is actually SCOTUS who decides whether the regulations are necessary and proper. On the podcast, Weheneman offers an excellent image. In McCardle, SCOTUS is basically saying to Congress, "We'll cut you some slack, but don't forget that we're still the ones holding the leash."

Also, his summary of the case is much better than mine. McCardle will make more sense with some historical perspective. Let revisit it.

The period immediately after the civil war is known as Reconstruction. During this time the military became the temporary acting government in some (all?) of the former Confederate states. President Lincoln suspended habeus corpus (which protects citizens from imprisonment without due process) to ease the transition.

Later habeus corpus was reinstated, and shortly thereafter McCardle (a former Confederate soldier) began speaking out against the military government in his newspaper. When his appeal reached SCOTUS, Congress had a very strong interest in seeing him lose. If McCardle and others were allowed to speak freely against the military government/tribunal, reconstruction would be threatened. Congress took the opportunity to revoke habeus corpus, and it was up to SCOTUS to decide whether that action was unconstitutional. And SCOTUS let it happen!

Why would the Supreme Court allow a citizen to be detained without due process? Why would it tacitly allow a citizen's freedom of speech to be denied? Doesn't this decision sort of violate the spirit of the Constitution?

Actually, no.

Let's keep the necessary and proper clause in mind. SCOTUS must have felt that reconstruction of the country warranted denying a citizen his basic rights. If you want to make an omelet, you have to force an egg to be tried in front of a military tribunal, on penalty of death by hanging. Ouch.

For the history buffs out there, habeus corpus was suspended or limited 3 more times in U.S. history. In the aftermath of WWII and the Oklahoma City bombings, and currently. The current exceptions to habeus corpus (for suspected terrorists) are being pretty hotly contested in the courts.

Ex Parte McCardle...

...is latin for I'm sorry I burned down your frozen banana stand.

Either we've lost something in translation or my latin is rusty.

Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868)

Facts
McCardle was alleged to have published articles about the military that were both incendiary and libellous. He was detained by the military and requested a writ of habeus corpus, which would grant him freedom from their custody pending his trial. The writ was granted but the military detained him anyway. He appealed to SCOTUS to declare his detainment unlawful. When the case began SCOTUS had jurisdiction to grant the writ. Just before the ruling Congress passed legislation that repealed that jurisdiction.

Questions
1. Does SCOTUS have jurisdiction?
2. If so, was McCardle's detainment unconstitutional?

Holding
1. No
2. N/A

Reasoning
1. The Constitution provides Congress the power to regulate the judiciary. Remember McCulloch v. Maryland? Congress can do whatever it needs to, as long as it is necessary and proper.
2. N/A

Notes
-That is an impressive victory for Congress. The legislative body is truly the alpha-branch of our government. Even the president is pretty impotent without the Senate and House behind him. That's one of the subplots of Obama's first year that I find intriguing. Eventually he's going to butt heads with the DNC, and it's going to be like my senior prom all over again. Will Congressional Democrats dance with the girl that brought them (Pelosi), or the super-hot sophomore who looks awesome in her dress (Obama).

-I feel very confident putting The Cable Guy in my list of Top 5 underrated movies. I laugh every time I read about a writ of habeus corpus. "I'll put the SYSTEM on trial!"

McCulloch v. Maryland

Note
I did most of this brief myself. Although I was able to correctly identify the second question in this case, I gave up on figuring out the holding and reasoning for that question. I found a nice brief by someone called CJ at the following URL: http://www.4lawschool.com/conlaw/mc.shtml, and summarized that material below. You will see a * next to that summary in my attempt to clearly show where my original thoughts begin and end.

On the one hand I'm slightly disappointed I couldn't do this myself. On the other hand, the rest of my brief looks pretty damn good. I wrote almost exactly what CJ wrote for the first half of my brief.

McCulloch v. Maryland, 17 U.S. 316 (1819)

Facts
Mr. McCulloch was a cashier at a Baltimore County branch of the Bank of the United States (not just a catchy name, it was a federal bank). He was sued by the state of Maryland because the bank failed to pay state taxes. The law in Maryland required all banks not chartered by the state to pay taxes on each transaction.

Questions
1. Is is constitutional for the federal government to incorporate banks?
2. Is it constitutional for state governments to tax federal agencies?

Holding
1. Yes
2. *No

Reasoning
1. In order to carry out it's duties the federal government can do anything it wants, as long as it is "necessary and proper". Federally incorporated banks are necessary to generate revenue. As far as I can tell, "proper" just means congruent with the rest of the Constitution.
2. *The federal government is supreme over the state goverment. States do not retain sovereignty over each other. State jurisdiction over the federal government would, in a sense, be the same as jurisdiction over all the other states.

Marbury v. Madison

Marbury v. Madison, 5 U.S. 137 (1803)

Facts:
Towards the end of his term in office President Adams made multiple appointments, including William Marbury to serve as a justice of the peace. The appointments were approved by the Senate, and the commissions were signed and sealed. However, Adams' presidency ended before the appointees were sworn in. The duty fell to new Secretary of State James Madison to actually give the men their appointments. He did not. Marbury and the others sued in hopes of the court serving Madison with a mandamus (court order) forcing him to make the appointments.

Questions
1. Does Marbury have a legal right to the commission?
2. If he has such a right, and it has been denied, is there a legal remedy?
3. Is the mandamus Marbury is suing for the correct legal remedy?

Holding
1. Yes
2. Yes
3. No

Reasoning
1. The commission was signed by the President and sealed, thus making it a law.
2. There is always a legal remedy for breaking the law.
3. Although a mandamus is the correct legal remedy, issuing a mandamus in this particular case is unconstitutional. The power to issue a mandamus to the Secretary of State would fall under appellate jurisdiction.

Bill of Wrongs?

For the old Sunday Drive we're taking a brief look at the Bill of Rights. A man named Ira Krakow recorded a podcast (available at irakrakow.com) titled, "Is the Bill of Rights Really Necessary?"

But first a little quiz. How many of the first ten amendments can you name? Don't worry about matching the amendment with the correct number, just name as many basic rights as you can. The wife and I both got three. I'm sure you can beat us. Check the comments for answers.

Krakow ponders the question of the Bill of Rights and cites a Federalist Paper (guess we aren't done with those yet) written by Alexander Hamilton as the main argument against the first ten amendments. Hamilton felt that listing the specific rights of individuals opened the door for the government to take away any and all other rights not specifically listed. In rebuttal Krakow notes that the Soviet Union did not enumerate individual rights in it's constitution, and later legally murdered millions of citizens.

I wonder if the Soviet Union analogy is relevant. Hamilton was no dummy. In fact I've considered referring to him as "The Hammer" because he deserves a nickname befitting his intelligence and testiclitude. The Hammer thought the Constitution alone was enough to reign in the dark side of human nature.

Then again, Ira Krakow sounded pretty damn smart too. This one might be over me head.

I am Publius, bring it on

Today we look at Federalist Paper No. 51, which was written by either Madison or Alexander Hamilton under the pseudonym "Publius".

No. 51 examines the structure of the federal government, and argues for the importance of balancing power between the divisions. Some of the highlights include the notion that the legislative body is well positioned to trample the executive and judicial. We arrived at a bicameral legislature to limit the power of Congress and encourage parity among the three branches. Publius also concedes that, as a result of all our systems of checks and balances, the federal government might not actually get a whole hell of a lot done.

(You probably want to take a moment to nod in agreement)

Publius goes on to say that gridlock is palatable if it protects us from tyranny. Besides, the really important things that we all agree on should still sail through.

We are now finished with these early documents that supply us with a context for the Constitution. Next up is the Bill of Rights, and then I brief my first case.

Before we move on I have to say that I'm feeling pretty good about being an American. These days it's so easy to be frustrated with the government. It's nice to remember that the founding fathers had a pretty amazing vision for our country, and that America always has the power to change itself.

I want to leave you with a great quote from Federalist No. 51:

"In framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to control
the governed; and in the next place oblige it to control itself." ~Publius

James Madison was kind of a big deal

I always thought James Madison was just some tiny school in Virginia that showed up in my March Madness bracket every few years-usually next to a number like 14. I also vaguely knew he did something important that may or may not have warranted getting his face on some money.

It turns out James Madison was kind of a big deal, despite the fact that he was only 5'4", 100 pounds. He was the fourth president, considered to be "the father of the constitution", and a big time Federalist.

Following the drafting of the Constitution, the states had to vote on whether or not to ratify it. The Anti-Federalists emerged and wrote a series of essays arguing that the Constitution needed some changes first, especially a bill of rights. They came up with a great name for their papers, the Anti-Federalist papers.

In response the Federalists published their papers to defend the Constitution as currently constructed.

How much these guys actually disagreed I don't know. The Constitution was ratified, but they immediately added a bill of rights. I'm calling it a draw for now.

Why is this important to The Boom? The Constitution comprises the most basic law of the United States. The Federalist Papers give us insight into the intent of the law, which can be just as important as the letter of the law. These writings are still used, albeit controversially, in Supreme Court rulings where intent becomes a major point of debate.

Federalist Paper No. 10 - James Madison

This paper got me fired up about being an American. I even did a fist pump right there in my living room. Madison alludes to our organization of government and explains how it gives us the best chance for true functional liberty.

Madison argues that faction among individuals and groups is actually a wonderful thing. Disagreement and conflict are symptoms of freedom. Therefore we should not try to eliminate faction. However, we can't just let everyone do what they want either. In a direct democracy the minority is very likely to be trampled upon.

The vision of America was that it would find the sweet spot between tyranny and anarchy. The federalist proposal was a strong central government in which power is properly checked and balanced.

And as it turns out Madison did get his face on some money. Sort of. You know how UNC retires way too many jerseys? Ladies and gentlemen, the $5000 bill... http://ragemanchoo.tripod.com/5000dollar_1934_FedReserveNote.jpg

Angry Farmer's, Whiskey, and America's Big Do-Over

We begin with a little history lesson.

There were three assigned readings for the first episode of Neil Wehnemen's Constitutional Law I podcast. Links to the readings and the mp3 file can be found at http://www.lifeofalawstudent.com/.

Onto the briefs. I read the Articles of Confederation, and wikis for Shay's Rebellion and The Whiskey Rebellion.

The Articles of Confederation
Do you remember learning about this in 9th grade? I'm ashamed to admit that, although "The Articles of Confederation" did ring a bell, I was unaware that America was actually on it's second constitution. I don't have time to list all the grievances cited in the wikis, but understand that people from all walks of life were irate for most of the 6 or so years under The Articles. In general the central government had very little power compared to the states.

After we whooped the Brits (sorry England, I'm cheeky) in the Revolutinary War, most or all of the states were in debt. This became a major problem when some citizens (notably farmers, who are always angry as hell) either couldn't or wouldn't pay their taxes. A man named Daniel Shay (probably a farmer) is credited with leading a rebellion that exposed just how little power the federal government had, and why that might be a problem. Opponents of The Articles used this opportunity to ratify The Constitution, and give America it's big do-over. Goodbye unicameral legislature, state currency, and general feeling that Canada is just as good as us-and maybe we should even let them join up.

The Whiskey Rebellion was led by a bunch of angry farmers (really, is there any other kind?) who felt they were being unfairly taxed on their whiskey. By this point the federal government had bought up all that war debt and was springing it on the common man in new and exciting ways. The difference is that the new government, which had much more central power, squashed the farmers in a historic beatdown. Ba-da-bing! Over 200 years later The Constituion Part 2 is still a hit. Maybe with the grace of god, and the quick thinking of Nicholas Cage she'll be around for 200 more.