American Polity by Serow and Leadership: Ethics and Decision Making by Brattebo

Readings for Mar 10

 

Serow  #43 by Alexander Hamilton; The Federalist 78 (p315)

  • Independent Judiciary
    • Judiciary is least dangerous to the Constitution because it has the least capacity tro do so
    • Has no “force” or “will” but only judgement on which it must depend on the aid of the executive to enforce
    • Liberty has no reason to fear the judiciary alone but every reason to fear it combined with another branch
  • Lifetime Appointment – protects it from being overpowered; indespinsible ingredient
    • Allows justices to be “bulwarks of a limited Constituion against legislative encroachments”
  • Court’s Power – Judicial Review
    • Judiciary more can declare their laws null
    • Keeps the legislature within limits of their assigned authority
    • Citizens rule both the Judiciary and the Legislature
      • The Judiciary ought to be governed by the people, not the legislature
  • Independence of Judges – may be essential to safeguard against the ill humors of society

 

Serow  #44 by Eugene Rostow; The Democratic Character of Judicial Review (p319)

  • Some believe judicial review as undemocratic and that it should be stopped
    • Judicial check keeps the Constitution from meaning whatever the Pres or legislature want it to mean
  • Purpose of the Constitution is toassure the people a free and democratic life
    • Society aims to maximize the individual’s freedom
    • Seperation of powers limit branches of gov to protect citizens
    • Root idea of the Constitution: “man can be free because the state is not”
  • There are some phases of American life which should beyond the reach of any majority, save an amendment
  • Not all with authority need to be elected – admirals can win and generals can lose wars in the exercise of discretion
    • Federal Reserve Board could plunge the country into depression
  • Judiciary can do much to keep the gov from being dominated by any branch

 

Serow  #45 by David O’Brien; Storm Center (p323)

  • Landmark Cases
    • Brown v. Board of Education
      • Case put off to wait for the right time
      • Case consolidated with others to give the case national coverage
      • Justice Frankfurter – “When you have a major social political issue of this magniture,” timing and public reactions are important considerations
  • Because Court’s decisions are not self-executing, public reactions weigh on the minds of the justices
    • Justices strategize to obtain good public appearance; they waiting a year after Brown I to mandate “all deliberate speed” be given to desegregation
    • Enforcement and implementation requires the cooperation of all three branches
  • Justices deny being directly influenced by public opinion but must and should be to some degree
  • Court sometimes draws controversy  because it challenges the majority to respect minority rights

 

Brattebo #1 by William H. Rehnquist; When the Laws Are Silent (p84)

  • Japanese attack on Pearl Harbor stunned the nation, but particularly the West Coast
  • Japanese children were citizens by birth; mmigrants from Japan did not get it b/c of Naturalization Act of 1790
  • Gov. Culbert and many in the West had already wanted the Japanese relocated
  • Roberts Commission appointed by Roosevelt investigated the attack
    • Found that espionage had been a major part of the attack
  • 1942 – Jap sub shelled oil installations near Santa Barbara
    • Call to remove Japs strengthened
    • President leaves the matter in the hands of his SecWar
    • Movement of of 100,000 Japs from the West Coast ensues
      • Much anger over it, but Supreme Court approves it as legitimate war powers
      • Authorized by Executive Order 9066; Congress makes criminal punishment for a failure to follow that order a few weeks later
      • No physical brutality, but they were forced to sell homes, businesses, and leave; Spartan quarters
      • Eventually Nisei volunteers were allowed to fight (442nd Combat Team in Italy)
      • Others were given work permits
      • Most released by the beginning of 1945
      • The Order was challenged on constitutional grounds but the Chief Justice said it was not the court’s place to challenge the wisdom of the Pres or Congress when using war power and that he would not substitute his own judgement for theirs
  • Challenges (3)
    • Hirabayashi – Court only addressed the curfew issue with him as his sentences ran concurrently
    • Korematsu – case delayed until Oct ’94 when the court upheld relocation (6-3)
    • Endo – sued for being confined; she said the order only made her relocate – they decided to release her(9-0)
  • Post-war public opinion saw the detention as a grave injustice
  • Military is only supposed to look out for national security, not balance that with civil liberties
    • The OICs at Pearl had been removed so Western Command was safer to err on the side of preparedness
    • Also, government officials in the West were the first to suggest the move
  • Blame rests more on Roosevelt for his prefunctory approval over the phone
    • Sec State Biddle’s protest were to no avail b/c the public had no problem with it at the time
  • Criticisms of the Court’s opinions on the above cases
    1. Deferential treatment given to the government’s argument due to military considerations
    2. Decisions upheld a program based on racial distinctions