Posted on 01/14/2008 5:52:34 AM PST by Loud Mime
bttt
What form of government do we have in the United States?
What is the only guarantee in the Constitution?
What are the Federalist Papers?
Only ONE person knew two answers - out of over 100 students.
Usually the people would guess “life liberty, etc..
I would say “wrong document.” Then ask “Do you KNOW, not can you guess.”
The papers were published simultaneously in the form of a debate with each side stating an issue and defending it from the other side. The papeback Mentor edition edited by Ralph Ketchum has a chronology of publication in the appendix. If you read both sets of papers interleaved in strict order of publication, you can watch the ebb and flow, the point and counterpoint, of the debate over ratification of the Constitution in New York. For example, Hamilton will make a point in a "Federalist Paper" that is answered by "Brutus" in an "Anti-Federalist Paper", which in turn receives a riposte from Madison in yet another "Federalist Paper". Reading them this way clarifies the scope of the debate.
Eighteenth Century English is quite a trial for today's readers who are used to a shorter sentence structure. I've found that one has to read a given paragraph 3 to 5 times to distill all the meaning the writer has poured into it. But it's worth the effort. Just don't rush it.
When you read the "Federalist Papers", pay close attention to the prose style. Hamilton comes across as a brilliant highly paid corporate lawyer -- which he had become by that time -- and dazzles you with his intellect. Madison comes across as the earnest student of history he was, one who had ready everything written by the ancients. (I'd ask Hamilton over to entertain a dinner party full of brilliant people, but if I wanted a friend over for a beer, I'd pick Madison.)
Jay comes across as the comic of the group with a puckish sense of humor. He likes to needle his opponents, not dazzle them or convince them with historic analogies. It's easy to spot a Jay essay.
I’ve read the Anti-Federalist papers about ten years ago and enjoyed them. They did have their points.
Jay sounds like he was a good attorney who ran a light courtroom in life and press. I imagine that when your life involves deep study it’s hard to stop thinking of it (When I studied chess I avoided Italian restaurants because of their checkered tablecloths - if the olive oil bottle were a knight it could take the pepper mill).
My plan is to keep Monday’s threads focused on one founder, then Thursday/Friday’s on a good mix of quotes. Working on Jay was from a point of curiosity; I knew little about the man and now know a little more.
I’ve noted the more personal style of Madison, he’s easier to read than Hamilton. Sometimes I find myself putting my hands over my ears and reading the sentences out loud so I fully understand them. Hey, if singers do the same in the studio.... Anyway, I gather that Madison could appear today for a chat at the pub he would like a draw of Sam Adams.... ;)
I may miss one of these threads because my Aunt is 99 and hospitalized....she’s not doing well. Since my father has dimensia I’m the next in line for the legal stuff.
Hear Here!
In fact this should be a requirement for graduation from High School!
^5 on that one!
In 1988, in U.S. v. Krzyske, the jury asked the judge about jury nullification. The judge responded “There is no such thing as valid jury nullification.” The jury convicted the defendant, and the judge’s answer was upheld on appeal.
In 1997, in U.S. v. Thomas[20], the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).
We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court’s instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.
I’m surprised I’ve never seen anyone draw a loopy parallel between Alcibiades and GWB. :’)
LOL!
Hundreds of years of jurisprudence says differently:
U.S. vs. DOUGHERTY (1972) [D.C. Circuit Court of Appeals]:
The jury has...."unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge."
Justice OLIVER WENDELL HOLMES (Horning v. District of Columbia, 249 U.S. 596 (1920)):
"The jury has the power to bring a verdict in the teeth of both law and fact."
U.S. SUPREME COURT (State of Georgia v. Brailsford, 3 DALL. 1,4):
"...it is presumed, that the juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still, both objects are within your power of decision. You have a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy."
------
Jury nullification is what gave the People the ability to judge the government and to prevent it from usurping any power that it did not legitimately possess:
LYSANDER SPOONER (An Essay on the Trial by Jury, 1852):
"The authority to judge what are the powers of the government, and what are the liberties of the people, must necessarily be vested in one or the other of the parties themselves--the government, or the people; because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with."
"This preposterous doctrine, that "ignorance of the law excuses no one," is asserted by courts because it is an indispensable one to the maintenance of absolute power in the government."
"For more than six hundred years--that is, since Magna Carta, in 1215, there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws."
4TH CIRCUIT COURT OF APPEALS (United States v. Moylan, 417F.2d1006, 1969):
"If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence...If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."
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