http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1331505
Three models of the state:
*the state as family
(corresponds to sovereignty as property – King – Father, Mother Queen, subjects are property)
*the state as a contract (business)
-can correspond to the mercantilist state (Volkswirtschaft; Gemeinschaft); and the mercantilist state is coherent with the idea of social democracy.
-but can also correspond to the minimalist “night watchman” state (which is the U.S. view)
Rule of law: nulle crimen, nulle poena, sine legia preavia – no crime without a prior law.
Putin/Duma – recent law: Terrorists’ relatives must pay compensation<
Probably a violation of the ECHR.
E.g., U.S. Constitution prohibits “attainder” “corruption of the blood”. French revolution definitively rejected the idea of collective responsibility, replacing it with the idea of individual responsibility.
Which is likelier to be effective? Example, if relatives are liable, then are they likelier to stay silent, or not?
IRAC
Explaining dicta versus holding
What was the dicta in Marbury?
1) Does he have a right?
2) Does he have a remedy?
3) Is the remedy mandamus?
4) Does this court have jurisdiction?
(No. Because the Constitution lists the original jurisdiction of the Supreme Court. That list is exclusive; to modify it by ordinary legislation is unconstitutional because ordinary legislation does not have the same requirements as a constitutional amendment)
Constitutional amendments via
1) Constitutional Convention (3/4 of states) OR
2) Both houses (2/3)
“Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof”
1) does he have a right?
commission was signed and sealed but not delivered
-contract?
-gift?
-letter patent
a) Ministerial act
(Muss Entscheidung)
versus Discretionary act (Kann Entscheidung)
his right vested at signature of the president, and did not require delivery to vest: “letters patent”.
2) does he have a remedy?
a) argues that a vested right always corresponds to a legally enforceable remedy
b) contrast vested rights to hortatory rights – which are at best merely persuasive
c) or to programmatic goals, which set out objects to be obtained
d) or to political rights which are remedied at the ballot box or at gunpoint
e) or executory rights where one must do some further action in order to make the right enforceable
3) Is the remedy mandamus? (A comMand to deliver the commission)
4) is the right enforcable before this court? (recevabilité.)
(no)
How would we analyse this in German law?
(We will get to that, for now I want you to think about the question: what would happen if a case like Marbury went to the BVerfG?)
Per Marbury: Why Judicial Review? (=Revisionsverfahren)
“Written constitution” different procedure than ordinary laws.
But e.g. the Russian Constitution of 1917 was hortatory (hortatory rights also serve to educate people, in revolutionary Russia part of that was literacy)
And we could also review ordinary laws against ideas of “natural reason” (Vernunftrecht) “natural right” (Naturrecht) “natural justice” “natural law” (Vernunftrecht).
Let’s Compare Marbury to Van Gend
Rule – what’s the rule in Van Gend
1) The EC Treaty creates *directly enforceable* legal rights held by *individuals*
Treaties normally only create rights and duties between States,
and most countries do not make treaties enforceable in domestic law without ratification (Ratifizierung).
2) Member State’s domestic legislation must be in conformity with their EC Treaty obligations.
Rationale:
How did the European Court of Justice (ECJ) reach that conclusion?
– A new legal order whose subjects are not merely the Member States but also the peoples.
– Purpose of the Treaty (Teleological reasoning): the treaty is to draw Europe together into mutual prosperity to prevent another war.