Day: January 17, 2017

ConLaw Class 2- Why is the Constitution Supreme?

Class 2 – 1/17/17

Why is the Constitution Supreme?

  • The Federalist Papers (25)
  • Federalist No. 51
  • Federalist No. 78 (32-35)
  • Evidence of the Meaning of Judicial Power (93-97)
  • Foundational Cases on Constitutional Structure: The Marshall Court (83)
  • The Judicial Power (84-86)
  • No Advisory Opinions (672 -674)
  • Marbury v. Madison (86-93)
  • Ex Parte Merryman (512 – 518)
  • Cooper v. Aaron (to be discussed in class)

The lecture notes are here.

Today’s class will focus on these clauses of the Constitution:

Article II, Section 2: He shall have Power, by and with the Advice and Consent of the Senate . . . [to] nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United State, whose Appointments are not herein otherwise provided for, and which shall be established by Law.

Article II, Section 3: He  . . . shall Commission all the Officers of the United States

Article III, Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Article VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article VI, Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution .

Ex Parte Merryman was authored by Chief Justice Roger Taney, though in his capacity as Circuit Justice for Maryland.

This is the most famous portrait of Taney.

Here is Taney later in life:

This bust of Taney appears in the Supreme Court’s Great Hall.

As we will discuss later, Taney is a controversial Justice. Recently, the city of Frederick, Maryland agreed to remove his bust from public grounds. It was previously vandalized.

Please take a moment to look at this slideshow of the Little Rock Nine.

The Little Rock 9:

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06 Sep 1957, Little Rock, Arkansas, USA --- Elizabeth Eckford ignores the hostile screams and stares of fellow students on her first day of school. She was one of the nine negro students whose integration into Little Rock's Central High School was ordered by a Federal Court following legal action by NAACP. --- Image by © Bettmann/CORBIS

Gov. Orval Faubus holding up newspaper: “Guns Force Integration.”

Orval_Faubus

A very worthwhile trip if you ever make it to Little Rock.

During my recent trip to Little Rock, I visited the Little Rock Central High School. This is the locus of Cooper v. Aaron, and the school where the famous Little Rock 9 were escorted into the desegregated school by federal troops. What makes this national park site remarkable is that it is *still* an active high school.

Across the street from the school, they refurbished a gas station to appear as it did during the 1950s. It was at this gas station that the media filed their reports.

Mobil1

Gas was $.22 per gallon. Adjusted for inflation, that would be about $2.50 today.

mobil2mobil3

As I approached the school, and climbed those famous steps, I was overcome by a very powerful feeling. Constitutional history was made right here. Looking across the street, I imagined the lynch mobs tormenting those poor students. As I came to the front door of the school, I peered inside, and imagined what those students felt when they entered. (I understand they were rushed to the Principal’s office so they were not intercepted). As chance would have it, classes were in session, so I could not enter the school.

central1

The school is huge. It takes up an entire block, and has many sections.

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Across the street from the High School was a visitor center that had some interesting exhibits.

Alas, this sign states an inaccuracy–We the People , as written in in 1787, “included only white male landowners.” I understand the point they were trying to make, but the Constitution itself was not so limited. In fact, it spoke in broad terms of people, and not men. It didn’t even use the word “slave,” but reverted to other euphemisms (other persons, etc.). At the time of the framing, in New Jersey at least, women had the right to vote. They may have even participated in the Constitutional ratification conventions. It would be more accurate for the Museum to have explained how the Constitution was interpreted. But it is not accurate–and somewhat misleading–to state it like this.

sign1

One of the cooler exhibits in the Visitor Center was a telegram President Eisenhower sent Governor Orval Faubus.

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Here is a PDF of the original, courtesy of the National Archives:

When I became President, I took an oath to support and defend the Constitution of the United States. The only assurance I can give you is that the Federal Constitution will be upheld by me and by every legal means at my command.

Press_release_DDE_telegram_to_Faubus

Also at the Visitor Center were passes given to White Students, giving them permission to beat up the Black Students.

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This was the original docket sheet for Cooper v. Aaron.

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Prop1 Class 2 – Efficiency and Fairness

Class 2 – 1/17/17

Efficiency and Fairness

  • Ghen v. Rich, 26-29
  • Notes and Questions, 29-30
  • Keeble v. Hickeringill, 30-32
  • Externalities: 46-50
  • The Coase Theorem
  • Notes and Questions 50-56 (Skim)

Today in class we will be talking about Ghen v. Rich and Keeble v. Hickeringill, through the lens of economic efficiency and fairness.

Today’s lecture notes are here.

Ghen v. Rich.

Here is the harvesting of a finback whale.

Finback_whale

Fin whales are on average about 90 feet long, and can weigh over 70 tons. By point of comparison, an African elephant weighs roughly 8 tons.

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Fin Whale

This is a bomb lance harpoon.

Bomb_Lance_Harpoon_for_whales

And a patent diagram of an 1878 bomb lance:

408px-DImg

Another patent diagram from 1879.

408px-Bomb_Lance_Patent_2

408px-Bomb_lance_patent_3

More pics of bomb lances. It was basically a harpoon with a rocket attached to it.

Bomb_Lance_1

Bomb_Lance_2

This is a bomb lance gun.

Bomb_lance_gun

Here is a drawing from 1897 showing the firing of a bomb lance (Frank T. Bullen, The Cruise of the Cachalot (1897)

Bomb_lance

This is what a captured whale looks like:

Captured_fin_whale

Keeble v. Hickeringill

Here is Edmund Hickeringill (courtesy of the British Musuem)–doesn’t he just look like a jerk!?

hickeringill

This is Lord Chief Justice John Holt who was the Lord Chief Justice of England, the author of the opinion in Keeble v. Hickeringill.

Sir_John_Holt_by_Richard_Van_Bleeck

Here is a plan for the duck decoy.

Keeble

The ducks get caught in these nets over the pipes.

Decoy_in_action

Duckdecoypond

BoarstallDuckDecoy

Here is a dutch video showing the ducks getting cut (fast forward to about 1:05)

I suspect many of you have tried this kind of duck hunting.

DuckHuntBox

 

 

Coase Theorem

To illustrate the Coase Theorem, we will utilize the classic example of the Fountainbleau Hotel in Miami.

fountainbleau

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Or this related case from Dallas:

The Nasher contends that the developers of the $200 million tower, completed in January, have been intransigent in refusing to modify its reflective glass skin; the Nasher has proposed louvers for the facade.

Museum officials say the garden has had to be resodded twice because of the higher temperatures created by sunlight bouncing off the glass; that some trees have burned; and that light-blocking panels were needed for the roof during a recent Ken Price sculpture retrospective.

glare

And the owners have suggested building screens to block the sun!

Gizmodo has a great writeup of the case:

They also hired a group of designers to study the feasibility of installing a gigantic shading system to block the rays, rather than fixing the problem at the source.

This month, the architects behind the project—a New York firm called REX, which built the (fantastic) Wyly Theater near the Nasher—presented their final proposal, dubbed Surya.

It looks complex, but the concept is actually very simple: The team looked at the annual path of the “death ray” and, based on its coordinates, created a huge shading system to block it as it changes. To lessen the presence of the shade, they also devised a series of umbrella-like devices that only open up when needed. So, for most of the year, these devices look like thin tubes strung up on a massive metal frame—which is better than an opaque surface… I guess?

Coase!

REX-SURYA2-OK-P1

This is like something Mr. Burns would design.

The “umbrellas” open up during different times of the day so as not to obstruct the views.

20130130091742_08-Closing-Opening-Umbrella

And they follow the sun’s path through the year.

20131024064934_03_Sunrays

20130201121822_04a-Moving-Sunspots

Images courtesy of dukeminier-property.com, Wikipedia, and Professor Frank Buckley.

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