Federalist No 78 Alexander Hamilton

Federalist No 78 Alexander Hamilton Following STRICTLY the instructions in the Research Paper Guidelines above, you may now select one of the following topics for your research paper.
1.In Federalist, No. 78, Alexander Hamilton, wrote: “The interpretation of the laws is the proper and peculiar province of the courts.

Federalist No 78 Alexander Hamilton
Federalist No 78 Alexander Hamilton

A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents” (Hamilton, in Burns, et al., 2001, p. A-7). In so arguing, Hamilton asserts that the Constitution is synonymous with the intention of the people; hence, when a law is subjected to judicial review, it is scrutinized as to whether it does not violate the Constitution or, in other words, the people’s intentions. But is not judicial review also an action which merely reflects the intention of the people’s other agents, specifically the thinking of the presiding judge(s)? If so, then how can a judge, or anyone else, ever determine what the original intent of the wording of the Constitution implies, so as not to violate the people’s intentions? Moreover, if original intent of the Constitution can never be determined, what purpose does judicial review serve?

Federalist No 78 Alexander Hamilton and the Judicial Process in America

2. The authors of our text Judicial Process in America define law as “a social norm the infraction of which is sanctioned in threat or in fact by the application of physical force by a party possessing the socially recognized privilege of so acting.” As the authors note, this definition suggests that law is comprised of 1) force; 2) official authority; and 3) regularity. Together, when combined, these three components of law, the authors write, “differentiates law from mere custom or morals in society.” They go on to write that:
In an ideal society, force would never have to be exercised; in an imperfect world, the threat of its use is a foundation of any law-abiding society. Although substitutes for physical force may be used, such as confiscation of property or imposition of fines, the possibility of physical punishment must nevertheless remain to deter a potential lawbreaker. The right to apply this force constitutes the official element of the definition of law. The party that exercises this right of physical coercion represents a valid legal authority. Finally, the term regularity, as used in the legal sense, can be likened to its use by scientists. Although the term does not reflect absolute certainty, it does suggest uniformity and consistency. The law calls for a degree of predictability, of regularity, in the way individuals are expected to behave or to be treated by the state. In American society, this emphasis on regularity is manifested by adherence to prior court decisions and precedents (the common law doctrine of stare decisis) and also by the mandate of the Fourteenth Amendment to the U.S. Constitution, which forbids the state to “deny to any person within its jurisdiction the equal protection of the law” (emphasis added) (Carp, Robert A., Ronald Stidham, Kenneth L. Manning, and Lisa M. Homes, 2016, p. 2).
Select one of the three elements that comprise law—viz. 1) force; 2) official authority; and 3) regularity—and write an essay supporting why or why not the element you have chosen is important for the establishment of law. Explain.
3. Our text Judicial Process in America lists the following as sources of law in the United States: a) the US Constitution; b) laws passed by Congress and the state legislatures and county commissions and boards; c) city councils, school districts, fire prevention districts, water districts, and municipal utility districts; d) quasi-legislative and quasi-judicial bodies; e) the US Securities and Exchange Commission (SEC); f) university and college boards of governors or regents; and g) political executives when they fill in the details of legislation or promulgate executive orders. Select one of these sources of law in the United States and write an essay delineating either why you prefer or detest this particular source of law and explain your reasoning.
4. There are a number of types of law in the United States including codified (code) law, statutory law, and common law. Most countries in Europe and in Latin America utilize code law, as does one state in the United States, viz. Louisiana, which operates under the Napoleonic Code. As Carp, et al. write: “A code is merely a body of laws, but it is one that consists of statutes enacted by a national parliament. These laws address virtually all aspects of the body politic; are often detailed; and are arranged in an orderly, systematic, and comprehensive manner (Carp, Robert A., Ronald Stidham, Kenneth L. Manning, and Lisa M. Homes, 2016, p. 5). Statutory law is a type of law enacted by legislative bodies such as Congress or state legislatures or city councils and consists of enactments in written form which address the needs of society as a whole, e.g. a congressional act which increases Social Security payments or a state legislative statute authorizing the death penalty for first-degree murder. Statutes that have been organized by subject matter can then be termed “codified law” or “the code.” If the statute is not organized by subject matter, then it remains simply statutory law. Common law is less orderly than statutory law and is compiled by “traditions, principles, and legal practices that have been handed down from one generation of lawyers and judges to the next. Because much of the common law is not systematically codified and delineated, as is statutory law, it is sometimes referred to as the unwritten law. However, this is not entirely accurate. Much of the common law exists in the form of court decisions and legal precedents that are in written form. The common law is known for its flexibility and capacity to change as it evolves in response to the changing needs and values of society” (Carp, Robert A., Ronald Stidham, Kenneth L. Manning, and Lisa M. Homes, 2016, p. 5). The legal principle which governs common law is adherence to prior court decisions and precedents otherwise known as the doctrine of stare decisis. Write an essay explaining your preference for either codified law or common law and explain the advantages and disadvantages of both and why you prefer one type of law over the other.
5. According to Marxist theory, class divisions within society create conflict and disorder. Law and, hence, the state, come into existence to address this conflict.

Federalist No 78 Alexander Hamilton and the Origin of the Family, Private Property, and the State

As Engels writes in Origin of the Family, Private Property, and the State (1884), the state “is a product of society at a particular stage of development; it is the admission that this society has involved itself in insoluble self-contradictions and is cleft into irreconcilable antagonisms which it is powerless to exorcise. But in order that these antagonisms, classes with conflicting economic interests, shall not consume themselves and society in fruitless struggle, a power, apparently standing above society, has become necessary to moderate the conflict and keep it within the bounds of ‘order’; and this power, arisen out of society, but placing itself above it and increasingly alienating itself from it, is the state” (Engels, 1884, “Barbarism and Civilization”, p. 92). The state that rises up to maintain order within society continues to perpetuate the conflict as a dominant class wielding power over subordinate classes with less power. Explains Lenin in The State and Revolution (1918): “The State is an organ of class domination, an organ of oppression of one class by another; its aim is the creation of ‘order’ which legalizes and perpetuates this oppression by moderating the collisions between the classes” (Lenin, V.I., “Class Society and the State”, 1918, p. 6). Laws are thus imposed by the state to quell these disturbances. Opponents of Marxist theory admit that the state does only exist where there are class contradictions and divisions between classes; however, they maintain that the state is an organ for the reconciliation of classes. ‘Order’, as understood by these opponents of Marxist theory, means precisely the reconciliation of class antagonisms and not the oppression of one class by another. Hence, ‘moderating the conflict’ means reconciling the differences between classes and providing common ground solutions to lessen class tensions. Marxists, however, argue that moderating the conflict means depriving the oppressed classes of definite means and methods of struggle to overthrow the oppressor. Write an essay in which you argue your perspective on whether law is merely the exercise of power by one dominant class over another or whether law is the attempt to reconcile class antagonisms and, hence, give rise to justice and peace. Explain your position.

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