American Constitutionalism in Historical Perspective (packet)

Rights skeptical challenge: believe protection of human rts s/n be foundation of the judiciary. (Hand)

1. 
   Marbury is usurpation of power, founders never intended to give. Supremacy is over the states, not a coequal branch of govt. If remove human rights authority, no jud rev. Leave power to Congress -legislative process has utilitarian justification and leads to aggregative results. But utilitarian aggregates d/n include minorities’ pain, smaller the minority, the easier it is to hate them.
   
2. 
   Judicial review is counter-majoritarian. Judiciary becomes a third legislative chamber which isn’t accountable and as flexible as the legislative and executive branch to changing political opinion.
   
3. 
   Politics serves core utilitarian values:
   
   1. 
      Equality: everyone should have the right to vote, be treated as an equal.
      
   2. 
      Liberty: everyone has the duty to shape their own lives & make their own moral mistakes
      
   3. 
      Conventional (society) vs. critical morality (utilitarianism)
      
   4. 
      Legal positivism—separation of law and morals. Morality comes from outside the la
      

Hand rebuttals

1. 
   Weschler: democracy is responsive govt but i/n based on principle. Judiciary is based on principle so judicial review only has weight if decisions are made in a principled way, otherwise they are illegit.
   
   1. 
      Retrospective: justifying decision based on precedent.
      
   2. 
      Prospective: principles enunciated by the court must be applied to future cases in a principled way.
      
   3. 
      Brown decision illegitimate because it is not consistent retrospectively or prospectively.
      
      1. 
         Abridgement of fundamental right: ed as a fund rt not upheld in later cases (Rodriguez); Brown extends to all state power whether bears on basic human rt or not (golf courses)
         
      2. 
         No racial classification by the state: used later to uphold affirmative action. (if injury is racial, remedy must be racial). Weschler worried that this principle will invalidate affirmative action.
         
      3. 
         Expression of invidious prejudice: Wechsler d/n want this to apply to gender prospectively.
         
      4. 
         Freedom of associatn: favor rts of those who want integration over those who want segregation.
         
2.