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:
Gov. Orval Faubus holding up newspaper: “Guns Force Integration.”
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.
Gas was $.22 per gallon. Adjusted for inflation, that would be about $2.50 today.
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.
The school is huge. It takes up an entire block, and has many sections.
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.
One of the cooler exhibits in the Visitor Center was a telegram President Eisenhower sent Governor Orval Faubus.
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.
Also at the Visitor Center were passes given to White Students, giving them permission to beat up the Black Students.
This was the original docket sheet for Cooper v. Aaron.