The Great Fall was in 1787
Kurt.Lash at lls.edu
Wed Aug 17 20:39:39 PDT 2011
Yes, John Marshall was there at the Founding. And he swore, at the time, that Article III would not be read to allow private suits against the states without the states' consent. I know it's fairly common to think the court's sovereign immunity doctrine does not reflect original understanding of Article III, but the history strongly indicates otherwise.
As for the Bank, Madison never changed his mind (as I think many people on this list already know). He deferred to long-standing precedent, but he never changed his view that it was based on an erroneous reading of the constitution.
Finally, I am rather surprised to read others raising the views of George Washington as if they somehow confirm that there is "no principled reason to prefer Madison's view of the constitutionality of the bank to Hamilton's." Washington also thought the Sedition Acts were perfectly consistent with Article I and the First Amendment. Adams and Marshall agreed; Madison did not. The disagreement and Washington's preference hardly suggests that there is "no principled reason" to think that Madison had the better of that argument. Same for the Bank.
Kurt T. Lash
Alumni Distinguished Professor of Law
Director, Program in Constitutional Theory, History and Law
University of Illinois College of Law
----- Original Message -----
From: Steven Jamar <stevenjamar at gmail.com>
Date: Wednesday, August 17, 2011 8:47 pm
Subject: Re: The Great Fall was in 1787
Cc: "ConLawProf (conlawprof at lists.ucla.edu)" <conlawprof at lists.ucla.edu>
> I await the constitutional amendment overturning the CJ Marshall precedents. Seems enough time has passed for them to have been adopted if there were support for them. Isn't that the route to use, not judicial activism -- for those who think it is activist justices who got us off on the wrong path in the first, second, third, fourth, . . . . place.
> Oh. Wait. Our constitution is almost unamendable. Certainly not by a minority of such tiny proportions as Jon's erstwhile thundering herd.
> It is a constitution we are discussing (and the court is interpreting) and the constitution was not designed for failure or inflexibility in changing times or utter impotency. It was never treated thus. Not ever. Not by justices then or now. Not even Justice Thomas.
> I marvel at the erstwhile textualists and originalists (whatever that may in fact mean today) who applaud the amazing abuse of the 11th Amendment as they decry the commerce clause interpretation and substantive due process and ignore the precedents set by the early court under CJ Marshall. He was there. At the time. His opinion, and that of the court with him, should count for something in current constitutional interpretation, one might be forgiven for thinking.
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