January 28, 2013 at 5:22 pm #19678
My college supreme court and the constitution class outline.
I guess the first note of contention is that the Articles Of Confederation didn’t work. I haven’t had time to view any of the lectures which I’m almost positive deals with the subject matter…off to my first lecture…January 30, 2013 at 1:13 pm #19679
yuck…the professor thinks this is a great read:
Barry Friedman’s The Will of the People (2009, New York: Farrar, Strauss and Girouz.
In recent years, the justices of the Supreme Court have ruled definitively on such issues as abortion, school prayer, and military tribunals in the war on terror. They decided one of American history’s most contested presidential elections. Yet for all their power, the justices never face election, and hold their offices for life. This combination of influence and apparent unaccountability has led many to complain that there is something illegitimate—even undemocratic—about judicial authority.
In The Will of the People, Barry Friedman challenges that claim by showing that the Court has always been subject to a higher power: the American public. Judicial positions have been abolished, the justices’ jurisdiction has been stripped, the Court has been packed, and unpopular decisions have been defied. For at least the past sixty years, the justices have made sure that their decisions do not stray too far from public opinion.
Friedman’s pathbreaking account of the relationship between popular opinion and the Supreme Court—from the Declaration of Independence to the end of the Rehnquist Court in 2005—details how the American people came to accept their most controversial institution and, in so doing, shaped the meaning of the Constitution.February 3, 2013 at 8:15 am #19680
That is definitely a book to avoid.
The Supreme Court follows neither original understanding (that is, the people’s will) nor current preferences. Across a range of issues, what they do is instantiate the will of the Harvard Law/Yale Law mandarinate upon us via “constitutional law” rulings.
Take forced busing. The public never supported it, yet it was imposed upon the people of many areas of the country for three decades. Consider the ruling that the Due Process Clause of the Fourteenth Amendment established a right to burn a flag enforceable by federal courts against state governments. There never was a time when anything near a majority favored such a fatuous declaration, yet it can’t be undone. Think about the 1962 decision that the Due Process Clause of the Fourteenth Amendment banned states from requiring that students in public schools say an anodyne prayer each morning. 49 governors protested, and 70% of Americans still oppose it, yet it cannot be repealed. Think of the Supreme Court’s declaration a couple of years ago that the Due Process Clause of the Fourteenth Amendment means that you have a right to rape a child in America without receiving the death penalty. Like the others, this absurdity is unfounded in either original understanding or current public opinion.
I could go on and on and on. The bottom line is that where formerly they simply called for federal courts to write their opinions into law, liberals in the legal establishments today justify this idea with the assertion that whatever they do, federal judges are pretty close to average Americans’ opinions. It couldn’t be further from the truth. For the whole sordid story, please consider my THE POLITICALLY INCORRECT GUIDE TO THE CONSTITUTION.February 4, 2013 at 10:08 pm #19681
And thats why I love liberty classroom and facebbok…where else can I have a back and fourth with Thom and Kevin. I salute and thank you gentleman.
I all ready own the guide sir and was just listening to the audio book today actually to prepare for class.
I’m not a scholar but I guess to be a really good student (we/) I can read this atrocity and try to argue the point in my papers and in class since the professor says he agrees with 90% of the book.(Nice guy…lets me make my point without judgment or shouting me down…for now.)
From todays class: ” The notion that judicial review in Marbury v. Madison was a big deal is just not the case. Judicial review had already been set up in Bayard v. Singleton.”February 4, 2013 at 10:11 pm #19682
This was my admittedly poor response to his first class.. https://vimeo.com/58920409February 10, 2013 at 4:25 am #19683
I have to write a legal brief for Mcculloch-v-State-of-Maryland as outlined here.
Are those the facts? Which part of the lecture series deals with this case? The Marshel court lecture?
What if anything should i know that was not coverd in the lecture as far as further details?February 10, 2013 at 5:03 pm #19684
Chapter 5 of the politically incorrect guide by Gutsman talks about it..reviewing now.February 15, 2013 at 3:09 pm #19685
While I admire your outside reading of obscure history professors, I’m not sure Prof. Gutzman fully understands Prof. Friedman’s argument. The Supreme Court is a representative institution in that it attempts to do what is right for the nation as a whole. No member of Congress has a national constituency, only the President does, but deferring to him all the time would give him tyrannical power. The Court is able to take a long-run, national view of the Constitution in a way that no elected official can since he must pander to the masses who elect him and the contributors who fund his candidacy. The Constitution was designed to establish a republic, not a democracy, and its savior is the fact that the Court can do what is best for the nation as opposed to what is best for its electoral interest. The Federalists disdained rule by the mob and attempted to establish a republic led by wise men who could rise above politics. Sadly, the last vestige of their vision is the Supreme Court.
My preference is that you do the assigned reading first and then do outside reading if you wish. I will expect you to be well versed on Gibbons v. Ogden next Wednesday.February 15, 2013 at 3:10 pm #19686
from the professor..February 26, 2013 at 3:47 pm #19687
The idea that I may not be familiar with this boilerplate law-school “history” truly is absurd. To the contrary, I’ve written a best-selling book arguing against it from beginning to end, largely on the basis of my numerous peer-reviewed articles in the top history journals.
“The professor” tells us that the Supreme Court “is a representative institution in that it attempts to do what is right for the nation as a whole,” and for that we have only the word of the judges and of their aiders and abettors in academia, the legal profession, and the media. I suppose that the Chinese premier or the president of Syria would describe himself in the same way: that he is representative in that he attempts to do what is right for the nation as a whole. As in the case of the Supreme Court’s legislation, the policies conferred upon the people by the Chinese and Syrian leaders are not susceptible to popular revision, let alone rejection. Their sad subjects simply have to take their word for it.
“The professor” tells us that, “The Constitution was designed to establish a republic, not a democracy, and its savior is the fact that the Court can do what is best for the nation as opposed to what is best for its electoral interest.” Since he had deigned to instruct me on the “design” of the Constitution, let me note that the role his syllabus and his comments here ascribe to the Court was not envisioned by anyone involved in approving the Constitution’s design; in fact, the only people who hinted that it might have anything akin to its current role were a few ANTIfederalists in New York. If any politician had said in the ratification process, “Federal judges will be better than elected officials because elections cloud people’s judgment,” as “the professor” does here, he would have been hooted down.
Since he is obviously unfamiliar with my best-selling constitutional history, not to mention with the best-selling book in the same field that Tom Woods and I co-authored, I suspect that “the professor” is also blissfully unaware of my account in JAMES MADISON AND THE MAKING OF AMERICA (JMMA) of Madison’s response to MCCULLOCH V. MARYLAND (1824). If the people had known the Constitution was going to be read that way, he said, they would never have ratified it. Both in JMMA and in my contribution to A COMPANION TO JAMES MADISON AND JAMES MONROE, I demonstrate that this is no doubt true.
Another way of putting it is that the system “the professor” advocates is completely unlike, in many ways contrary to, the one the people were sold in the ratification process. “The professor” likely doesn’t know this, as legal training in this area doesn’t extend far beyond reading a few old judicial opinions and a few excerpts from THE FEDERALIST. That’s why I like to say that once I graduated from a top-ten law school, I entered UVA’s PhD program to get an education.March 4, 2013 at 8:35 pm #19688derosa8Member
Dr. Gutzman! When will your new constitution course be released?March 4, 2013 at 8:40 pm #19689
Soon. Stand by.March 17, 2013 at 9:03 am #19690
Very , very soon, JohnD. Stand by.March 17, 2013 at 2:43 pm #19691derosa8Member
Haha thanks, I am very excited! By the way, the Raoul Berger recommendations on books have been nothing short of awesome.March 23, 2013 at 9:33 am #19692
I hope you are profiting from the new Constitutional History course.
- You must be logged in to reply to this topic.