CHIEF JUSTICE JOHN MARSHALL AND THE U.S SYSTEM OF CONSTITUTIONAL LAW

                                       

CHIEF JUSTICE JOHN MARSHALL AND THE U.S SYSTEM OF CONSTITUTIONAL LAW

If, Jurisprudence, in the eye of the legal practice, is recognized of it feature, as in the current state, of two well established genre; the Common law, and the Constitutional Law, in a canonical form, upon which all divisions of study, is rooted from, then, it globally undoubted, the Americans, are touted, as the lead in Constitutional law, and the foundation of modern written constitutional text.

And for the record purpose, Chief Justice John Marshsall, is acclaimed as the fourth Chief Justice of the United States, and the Principal founder of the U.S system of Constitutional Law. And further, known to have been responsible for constructing, and defending  both the foundation of Judicial power, and principles of American Federalism.

John Marshall on records, was born on the 24^th September 1755, in Fauquier County near Germantown, in current Virginia State. The American colony as at then, and the revolt, conscribe him to the American Army in the early stage of his life. In the year (1775), he was already serving as a Lieutenant, at the age of (20)years, under Captain George Washington, who was then the General and the Commander in Chief, of the Colonial Armies, for American Revolution, until his death in the year (1799). During Marshall service in the Army, he went ahead to enlist himself into George Wythe lectures, who was a Law professor and Attorney General of Virginia State, under the College of William & Mary. George Whythe, was a legal scholar and the founding fathers of the United States, as part of the first seven signatories of the United States declaration of Independence from Virginia, serving as a representative of Virginia State, to Continental Congress, and the Philadelphia Convention.

 John Marshall, eventually rose to the rank of a Captain, in the year (1783) at the age of (28)years, and admitted to bar in the year (1780), and finally, sought to be discharged from the Army completely, in the year (1785) at the age of (30)years, to enter into private law practice, and entered into the Federal Government, as President John Adams’s envoy to France, and later as secretary of [S]tate, while he played the role  in the year (1788) convention, at which the Virginia State, ratified the U.S Constitution. On January 20^th  1801, John Adams, the 2^nd President of the United States, nominated John Marshall, at the age of (46)years, to serve as the youngest Chief Justice, to replace the Chief Justice Oliver Ellisworth, as the 4^th Chief Justice of the United States, sworn to office on the 4^th February of that same year.

In other to appreciate the crucial role, and relevance of Chief Justice John Marshall, in modern Supreme Court of United States, the reader memory has to be awoke, on the status of the Court prior to the year (1801). It was a Supreme Court, which was relatively insignificant institution. And most legal disputes were resolved at the [S]tate Courts, rather that the Federal Courts, which was expected to be the Omnipotent to the law. It took Marshall’s (34)years tenure, serving as the Chief Justice, to emerge the Supreme Court, out of oblivion, as a formidable force, to be reckon with, by the Federal Government, and to re-shape the Nation understanding of Constitutional law. Having the new Marshall Court issuing series of landmark cases, decisions, with greater part written by John Marshall himself, as the Chief Justice, and an adopted practice, contrary to the previous Court procedure, in airing their public cases.

 This time, the Supreme Court, hand-down, a single majority opinion of the Court, to present a clear rule to the Public, which was defined by Del Dickson in his Article published in (2001) of the Supreme Court in Conference(1940-1985); the Private discussions behind nearly 300 Supreme Court decisions. There is a consensus of the Associate Justices, to build the reputation of the Court, as a source, reliable, predictable and definitive final Judgment, in legal and constitutional matters.

In John Marshall wisdom of personal leadership to the Court, he has set forth his general principles of Constitutional interpretation, and acknowledging his vulnerability, as not widely read and rigour in the law, thou, seldom cite precedents, after the Court comes to a decision by all Associate Justices, he will do the write-up to all the opinions by himself, and call on his long time friend, Justice Joseph Story, with him at the Bench, as a renowned legal scholar, to do the ‘chores’ of locating the precedents, saying, ‘the Story’ that is the law of this case, now go and find the authorities, to complete the write-up, as a formal document for the Court. This was the foundational anchor, and the wisdom in steering the Marshall Court, which has become the modern precedent for Supreme Court, practices and procedures, though, slightly modified, dependent on jurisdiction affairs.

 The following are outlined landmark cases, presided by the Marshall Court, as the Supreme Court of the United States, and the notable dissents from the Chief Justices, John Marshall;

 I. Marbury Vs. Madison (1803)

“ It is emphatically, the province and duty of the Judicial Department, to say what the law is. If, Courts are to regard the Constitution, and the Constitution, is superior to any ordinary Act, of the Legislature, the Constitution, rather that such ordinary Act, must govern the case, to which they both apply. A law repugnant to the Constitution, is void.”

II. Fletcher Vs. Peck (1810)

“ The question of whether a law is void, for its repugnance to the Constitution, is a question of much delicacy, which ought seldom to be decided, in the affirmative, and doubtful case. The opposition between the Constitution, and the law, should be such that, a Judge is clear and in strong conviction, of their incompatibility, with each other.”

III. MuCulloch Vs. Maryland (1819)

“ Let the end be legitimate, let it be within the scope of the Constitution, and all means that are appropriate, and plainly adapted to that end, which are not prohibited, but in consistent with the letter and spirit of the Constitution, are constitutional.”

IV. Cohens Vs. Virginia (1821)

“ A case arising under the Constitution, or laws of the United States, is cognizable in the Courts of the Union, and whoever maybe the parties to that case.”

V. Johnson & Graham’s Lessee Vs. Mcintosh (1823)

“ Native American inhabitants, are to be considered merely occupants, to be protected, while in peace in the possession of their lands, but deemed incapable, of transferring absolute title to others.” 

VI. Gibbons Vs. Ogden (1824)

“ The power to regulate commerce, does not stop at the external boundary of a [S]tate, although it does not extend to commerce, that is completely internal.”

VII.  U.S Vs. PERCHEMAN (1832)

“ Private property, generally should not be confiscated, and private right, annulled on a change in the sovereignty of a territory.”

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Photo of Chief Justice John Marshall © Supreme Court of United States Historical Society

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Emmanuel Tweneboah Senzu, DBA., Ph.D., SJD.

Professor of Constitutional Law and Economic Criminology, fellow, University of Sierra Leone.

Fulbright Research Fellow, J. Reuben Clark Law School, Brigham Young University, USA.

 

 

SIR. BHIMRAO RAMJI AMBEDKAR AND CONSTITUTIONAL ECONOMICS

                  SIR. BHIMRAO RAMJI AMBEDKAR AND INDIA REFORMATION

India in her pre-independence era, had numerous and renowned Intellectual revolutionists, and dozen lists of social reformists, yet, certain iconic names, appears as renowned figures, in their independence struggle, herein Sir. Mahatma Gandhi, the leader of Indian Independence Movement, against the British rule, came to be considered, ‘the Father of the nation’, Sir. Jawaharlal Nehru, as the first Prime Minister of India, and Sir. Bhimrao R. Ambedkar, as the Founder of India, Independent Labour Party, became recognized, as ‘the Father of India Constitution’. Having the India Constitution recognized globally, as the longest structurally written text.

Dr. Ambedkar as a jurists and economist, was born on 14^th April 1891 into Hindu Mahar Caste (an Upper Class elite) of  India society. Received his High School Education in Elphinstone Secondary School, passed his matriculation examination in the year (1907) to enter Elphinstone College, an affiliate to the University of Bombay. At the age of (21)years, he has obtained his first degree in Economics and Political Science, from the University of Bombay, in her contemporary form incorporated as, University of Mumbai. And in the year (1913), did receive a scholarship grants from Baroda State of India, to have a post-graduate study at Columbia University in New York at USA. In the year (1915), he has obtained the Masters degree in Economics, with minor study in Sociology, History, Philosophy and Anthropology, from University of Columbia, and further pursued the Doctoral study in Economics, and graduated in the year (1927).

He furthered his study to be admitted, and enrolled at the Bar Course at Gray’s Inn as a Barrister-at Law in London, and received an admission to the London School of Economics, as a second doctoral degree in Economics, with a strong major in Finance, in the year (1928), and graduated in the year (1931) at the age of (41)years.

Dr. Ambedkar returning to his home country, India, after a long tour of study in Europe and United States, was offered a lectureship position, as a professor of Political Economy in Sydenham College of Commerce and Economics. And invited to testify before the Southborough Committee, which was then, preparing Government of India Act (1919), to create an electoral college. Onwards, Dr. Ambedkar began his social reformation intellectual work, as an activist, against Socio-culture inequality in India society, under the castes system, and sought for constitutional abolition of discriminatory practice, which emerged as a religious form of Hindu caste system. And went ahead to practice his law at Bombay High Court. He was later appointed, as a Principal to the Government Law College at Bombay, and oversaw her consolidation, with the the Law Department created by Aligarh Muslim University, by the founder Sir. Syed Ahmad Khan, in the year (1883), under the inaugural ceremony of Justice Douglas Straight (1844 - 1914), as a British Lawyer and Indian Jurist, having such a Law Department, recognised in the history of India Legal Education, as the oldest English Law School of India, with pedagogical concentration on philosophical teachings and writings of the English law, and in the year (1960) became a full-fledged Aligarh Muslim University Law Faculty. Dr. Ambedkar, thereafter, became the Chairman, of the Governing Body of Ramjas College, University of Delhi. And honoured up to this day, for his significant contribution to the early draft Constitution, of the Republic of India, towards her Independence, having the India Constitutional text, known in the world, as the highest volume of articles, in Constitutional law history.

 When, India attained her independence on the 15^th August 1947, the first Prime Minister Sir. Jawaharlal Nehru, appointed Dr. Ambedkar, to serve as the first Law and Justice Minister, and the Chairman to the drafting Committee of the Constitution, for the future and sovereignty of the Republic of India. When, he assumed office, he lay a foundation to a Constitution, which will guarantee and protect, a wide range of civil liberties for individual citizens, as an Indian, including, Freedom of religion, the abolition of ‘untouchability’, as well outlining all forms of discrimination. With a depth of understanding, to the prevailing challenges of the India society at that era, went further, to advocates, and in documentation propose for extensive economic and social rights for women, introduced a system of reservations of jobs, in the civil services, schools and colleges, for members of scheduled castes, scheduled tribes, and other backward class, as an affirmative constitutional economics policy drive.

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Photo of Dr. B. R. Ambedkar © Republic of India National Archives

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Emmanuel Tweneboah Senzu, DBA., Ph.D., SJD.

Professor of Constitutional Law and Economic Criminology, fellow, University of Sierra Leone.

Fulbright Research Fellow, J. Reuben Clark Law School, Brigham Young University, USA. Visiting fellow, Dr. Ambedkar Chair of Legal Studies & Research- Aligarh Muslim University, Faculty of Law, India.

 

 

JUSTICE STEVEN GERALD BREYER AND COURT LEGITIMACY

 

                                                JUSTICE STEVEN GERALD BREYER 

Steven Breyer, in his early upbringing in Lowell High School, San Fransisco, California, USA, was noted in active debate clubs. He was raised from a middle-class family, graduating from the High School in the year (1955), got admitted to Stanford University to read philosophy, and graduated in the year (1959), and went ahead to receive both Rhodes Scholarship and Marshall Scholarship, in admission to Magdalen College, Oxford University, to read Economics, Politics and Philosophy, thou, graduated in the year (1961), and returned to Harvard University to pursue Law degree, and finally, graduated in the year (1964).

Until, his sworn-in into the Supreme Court of the United States, as an Associate Justice from (1994) to (2022), which is the core-subject of deliberation, his known uphold principle was, the ‘Court Legitimacy’ as his sustained purpose, hence, quote him from the Harvard University Magazine established in the year (1898);

“ The job, and that of other members of the Supreme Court, is to speak for the law, it does not mean, ‘Justice’ is a ‘Platonic Guardian’, as an ironclad power to impose on the nation, as a will of jurists, despite being unelected, rather, to be deference to the elected branches of government, for caution and doubt.”

Justice Breyer, was observed as a pragmatist, influenced by the real-world consequence, in deciding for his case, on the basis of the constitution. He had vehemently argued, ‘Justices’ are not ‘Junior-varsity politicians’, as second in guesses of Congress men, nor the President. Rather, should uphold a Supreme Court that maintain, a workable Constitutional system of government, and take greater account, in the constitution democratic nature, in terms of interpretation and statutory texts meaning. Which requires judicial modesty, and exercise of judicial authority, to produce a better law, that helps community of individuals, who are democratically finding practical solutions, to contemporary problems.

Steven Breyer philosophy of Constitutional Interpretation, were ascribe into five basic element, as follows;

I. The Language and structure of the text, as the historic meaning accorded to, by the law markers.

II. The Tradition, as in, the general application of the chosen words in law.

III. The Judicial Precedents.

IV. The ‘Words’ purpose, the values it embodies, in society.

V. The ‘Words’ consequence or impacts, in society.

On that basis, the following are few captured, and notable dissent of Justice Breyer, at the Supreme Court of the United States, on cited landmark cases;

i. Oregon Vs. Guzek (2006)

      “ A [S]tate may limit the innocence-related evidence, which a capital defendant, can introduce at a sentencing proceeding, to the evidence introduced, at the original trial.”

ii. Hertz Corp. Vs. Friend (2010)

      “ For the purpose of Federal diversity jurisdiction, a corporations principal place of business, refer to the place, where its high-level officers direct, and coordinate the corporation’s activities, as the nerve center.”

iii. ABC Vs. Aereo, Inc.(2014)

      “ A streaming service, infringed the public performance right, by selling, to its subscribers, a technologically complex service, that allow them to watch television programs, over the internet, at about the same time, the program broadcast over the air.”

iv. NLRB Vs. Canning (2014)

      “The Recess appointments clause, empowers, the President to fill any existing vacancy during any Senate recess, of sufficient length. The Senate, is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.”

v. Hefferman Vs. City of Paterson (2016)

       “ When an employer demotes an employee, out of a desire to prevent the employee, from engaging in protected political activity, the employee is entitled, to challenge that unlawful action, under the First Amendment and section 1983, even, if, the employers actions, are based on a factual mistakes about the employees behaviour.”

In conclusion, Jurists are placed in a ‘cross road’, to acknowledge that, any infirmity of the Court, attack the Court Legitimacy, and decline public acceptance of the Court decisions.

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Photo of Justice S.G. Breyer © Historical Collections of the Supreme Court of the United States.

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Emmanuel Tweneboah Senzu, DBA.,PhD.,SJD.

Professor of Constitutional Law and Economic Criminology, fellow, University of Sierra Leone.

Fulbright Research Fellow, J. Reuben Clark Law School, Brigham Young University, USA.

JUSTICE LOUIS DAVID BRANDEIS

                           JUSTICE LOUIS DAVID BRANDEIS (1856 -1941)

In recognition of Louis David Brandeis, early stage of financial struggle, prior to admission at Harvarad Law School at the age of 18 years, in the year (1875), after his graduation from Annenschule School, as Dresden City Council College from Germany. His graduation from Harvard Law School, started his journey of Practice at Boston, and having a sense of appreciation to his family background, and average economic living, took a path, which he became known of, as the people’s attorney, by representing the ‘interest’ that empowers the vulnerable before the law, on the grounds of fairness and principle. Doing so committedly, in pro bono, as in the case of, Muller vrs. State of Oregon (1908), devising a system in presenting his pleading before the Supreme Court, which, he will later be sworn-in to serve; was a 113 page document, outlining quasi-scientific data analysis, that relied on economic, sociological data, historical experience, and expert opinions, methodically developed to support the Legal propositions, which became a classic document to be called ‘Brandeis Brief’, with the same method used, in ‘discharging’, the case of Equitable Life Assurance Society of New York Vrs. New England Policy-Holder Protective Committee (1915), which defined the policy direction of Life Insurance services, as at then, to be offered over-the-counter by ‘Savings Banks’[Investment Bank in modern rendition], at a rates within the means of workers, sought the Court, to correct the statutes of various [S]tates prescribing maximum hours of labour, and minimum wages by the Investment Bankers, over the American Industry from (1907) to (1914), as well persuading the Court, to uphold a Law restricting the working hours of women, despite the general tendency, to strike down the economic regulation of that era. And similar cases of that nature, paving his way into the Supreme Court of the United States of America, as an Associate Justice from (1916) to (1939). With a record of the notable dissenting, on the landmark cases at the United State Apex Court, as follows;

I. Erie Railroad co. Vs. Tompkins (1938)

A Federal Court exercising diversity jurisdiction must apply the [S]tate Law, as declared by the highest [S]tate Court. There is no Federal General Common Law.

II. Chicago Board of Trade Vs. U.S. (1918)

The true test of legality, is whether a restraint merely regulates, and perhaps, thereby promotes competition,or whether, it may suppress or even destroy competition. To determine that question, a Court must consider the facts peculiar to the Business, its condition before, and after the restraint was imposed, the nature of restraint, and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, and the purpose or end sought, to be attained, are all relevant facts.

In conclusion, as reference to his profound quote from his 1911 year publication, ‘The Opportunity in the Law’, published by the Harvard University Press.

I quote;

“The Public is often inadequately represented or wholly unrepresented. That presents a condition of great unfairness to the public. As a result, many bills pass in our legislatures, which would not have become law, if, the public interest had been fairly represented. Those of you who feel drawn to that profession, may rest assured that, you will find in it an opportunity for usefulness, probably unequaled. There is a call upon the legal profession, to do a great work for this country.”

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Photo of Justice L.D. Brandeis ©Harvard Law School, Historical & Special Collections

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Emmanuel Tweneboah Senzu, DBA., PhD., SJD.

Professor of Constitutional Law and Economic Criminology, fellow, University of Sierra Leone.

Fulbright Research Fellow, J. Reuben Clark Law School, Brigham Young University, USA.