…in 9 hours. 7 pages of notes on three Federalist papers and some notes on Marbury v. Madison. Nothing is organized except by the texts I’m covering, and I do have an introduction ready whereby I explain that it is difficult to talk about the judiciary in America, and then I guess my notes are going to be a demonstration of that thesis, given how disorganized they are.
Since this is UD, I’m going to start with the “American history is defined by the tension between liberty and equality” and then ask how this relates to the classical vision. Since all of them have had the Homer/Virgil course, I’m betting a quick take on Homer – that Homer is concerned with virtue, and that virtues change as rule by god/men becomes rule of men over men – can introduce the question “Well, what about virtue in the American regime?” I’m betting all of them have read Plato in some way and I can introduce the questions of Justice, Moderation, and the Good fast. The intro should take 10 minutes and leave off with the question of whether the American order takes justice seriously (and whether, by extension, it is genuinely concerned with equality – recall what political rule is for Aristotle in Book 1 Chapter 1 of the Politics). Once upon a time, after all, taking justice seriously meant taking all those other things seriously.
Then comes the hard part. Federalist 78 leaves the door open for judicial review, which Marbury v. Madison formalizes. But there are a million other considerations in 78 that need to be touched on, and from the way I’m beginning this lecture, I need to address the character of the justices before I address jurisdiction of the Supreme Court. I also need to address why a Supreme Court, esp. given that Montesquieu doesn’t have one. The fun, contradictory answer is that a Supreme Court helps preserve constitutional form (“judgment,” as distinct from “force” and “will,” seems to have less to do with deliberating and more to do with sticking to the Constitution and laws dictated to one by the legislature), but precisely an emphasis on “form” means an appeal to the character of justices – for all the talk about “integrity” and “knowing the law and precedents” and junk – rings very hollow.
Then comes two other papers – 81 and 84 – which could take hours to walk through. 81 repeats a lot of 78, but has sections on original and appellate jurisdiction that I need to touch on. Trouble is, those sections occur in the context of “does the notion of a Supreme Court attack the idea of trial by jury,” and not in the context of Marbury, where the issue is whether the Court can rule on Marbury’s case.
84 is rich with stuff that can be used against nutcases on the Left and Right. In it, Hamilton attacks the idea of a Bill of Rights, pretty much arguing that it is populist junk (i.e. “freedom of the press” is populist junk). The argument is that when push comes to shove, stating one’s values (“we’re for free speech,” as if no one else is) isn’t enough – the formal restraints need to be in place to prevent government from acting secretly and jailing its own citizens without anyone knowing. Hence, habeus corpus and a prevention of bills of attainder and ex post facto laws are the real security for rights. The rest of the government is meant to reflect the popular will as best as possible.
The question is, how does that all tie together? If I drop the intro, it’s just a lot of assorted topics about rights and the judiciary. With the intro, it is the question of authoritative opinion. Pre-judicial review, the court’s power still comes from opinion. But with judicial review, that opinion becomes a heck of a lot more authoritative (i.e. Marbury can go to court to get a writ of mandamus and have the court digress on why the Judiciary Act of 1789 sucks and is unconstitutional and never get anything while being told he has a “right”). And what is critical about opinion in both cases, of course, is how it influences or counteracts popular opinion, which is everything for us.
But for Homer and Plato, opinion wasn’t something that resulted in factionalization necessarily: it was a grasping for truth. Inasmuch as politics was concerned with opinion, it was concerned with our being virtuous, knowledgable and happy. The judiciary isn’t as bad an institution as people say it is: absent the sword and the purse and popular legitimacy, Hamilton is right – it can’t tyrannize as badly as some other orders in government can. It tells us nothing about justice, though, and makes us wonder whether security being a public concern meant that justice had to recede, overwhelmed by technical considerations meant to keep ambitious lawyers running in circles trying to outdo the other.