OCC CIV NOTES 11/3

Read Locke's Second Treatise for section

Regime in England may have been a failure essentially because it was a military coup, and remained military for some time
Cromwell's people who he put in charge were essentially his military friends, who were very unpopular with the population
-walked into areas around the country and started ruling
-abolished things like xmas and carnival
-very very unpopular

Cromwell's regime was AGAIN resisted by the republicans
-Cromwell's regime was essentially tyrannical, almost more so than the monarchy
-the single most prominent effect of the regicide was a huge support for royalism
-people started comparing life under the royalty to life under Cromwell, realized that Cromwell just sucks
As soon as Cromwell dies in 1660 (or within 2 years), EVERYTHING is put back into place
-royalty, bishops, other religious and secular hierarchy, carnival culture all reestablished
-they ended up giving even more power to the king
-in the years after the execution of the king, people start to say that the king gets his power directly from God, king is accountable to nobody else
-essentially James VI and I's views

Sir Robert Filmer wrote Patriarcha, ended up being the key text supporting monarchical superiority
-filmer says that king's power is from god alone, and to god alone is he accountable
-patriarchal power is also royal (father over his family)
-if this is so, then Adam (first man) is the king of all men, as he's the father of all men
-Adam is Father, King, and Lord
-all kings are simply descendants of Adam
-Adam was Monarch of the whole world, people only owned things by his grace
-Eve was Adam's subject ('He shall rule over thee')
-Monarchy was the first government on earth
-monarchy MUST BE ABSOLUTE
-no such thing as tyranny, no such thing as just resistance
-parliament only exists by the grace of the monarchy
-monarchy existed before parliament, therefore it was better
-everybody born after Adam (everybody) was born a slave, but for his grace
-Adam owned all property as king, therefore all contemporary kings owned all the property in the land
-basically, you own things at his pleasure, and he can take shit from you whenever
-'a son, a subject, a slave are but one. there is no such thing as tyranny'
-even more radical than James VI and I

Locke's First and Second treatise were written in response to filmer
-first treatise is a direct response
-2nd is less direct, but a response nonetheless
-there are 3 central contentions by locke
-the right of resistance to tyranny is reserved to the people at all times
-more liberal than some who believed that only certain people could resist
-the possibility of resistance is straightforward a RIGHT, not a DUTY
-huge difference there from others, who believed that it was the 'duty' to have a godly society
-right of resistance is treated as a possession of each and every individual
-humans were originally free, transferred sovereignty to governments AT THEIR PLEASURE, can resist at any point at all
predecessors of Locke
-buchanan
-john mayor
-jacque almach (sp?)

we read locke now as an exponent of classical liberalism
-we should know what liberalism is.... yay IP
-limited govt
-avoidance of arbitrary power
-sanctity of private property
-responsibilities of individuals for their own fates
-humans are born in a state of perfect freedom, a state of equality
-is totally AGAINST arbitrary power
-also has the big three- life, property, pursuit of happiness
-jefferson loved this guy

locke wrote this in a period with MAJOR censorship
-people would be hanged, drawn, and quartered for other censored materials
-for making similar arguments, other writers were actually executed
-locke had to flee to the netherlands to save himself from execution
-wrote anonymously

who was locke?
-he was a gentleman, and extremely proud of it
-absentee land owner, lived for most of his life off of the rent
-he was a speechwriter and political analyst at one point
-would advise an Earl on his reading, what he should read to be educated, etc
-argued that the problem of the poor in society was simply because of the lack of discipline and manners
-did this while he served on the board of trade during the 1690s
-argued that the poor were just pretending to be unable to work, would put them in labor camps on the ports or throw them in jail
-children should be whipped if begging outside their parish, women incarcerated and forced into labor for the same offense
-thing is, these sorts of things were so common in the day that he was actually reducing the number of such punishments
-except that he removes age restrictions on corporal punishment, is the first to advocate wholesale incarceration of the poor and elderly
-his entire philosophy is based on manual labor rather than education
-lets go back to the 1660s, before he wrote his treatises
-he aided in the drafting of the carolina colony
-was explicit in restricting the democracy in the colony
-established a hereditary monarchical society, with a parliament made of landowners
-provided for 'leet men' (haha), essentially serfs bound to the land
-believed that it was a bad thing for men who were poor to write laws that would affect the rich, or even themselves
-established that slaveowners could dictate their slaves religions
-was a stockholder in the royal africa company (brought slaves back and forth)
-locke in even his treatises was that slavery was OK in the case that the person had participated in an 'unjust war'
-did NOT support hereditary slavery

so how did Locke become a supporter of resistance?
-1678-81 -> there was a huge debate in parliament over whether to exclude the brothers of the king from succession
-why? because the king's brother was catholic, and the parliament believed that the protestants would be executed by him
-king refused
-parliament AND the people (led by the whigs) kept demanding to exclude him
-the Whigs started to debate over what the powers of the king were, Whigs wanted to limit it, Tories wanted to expand it
-King decides to try and rule by himself, without parliament (because they were just getting annoying)
-Charles II (the king at the time) actually had the money to rule without parliament, so it might actually work!
-but this isnt all the king wants
-wants to get rid of his opponents, also ensure that he could call a parliament that would be favorable to him
-did this by just not letting his opponents vote
-changed also the method of appointment of juries to be more favorable to him
-essentially just buttfucks the republican system
-essentially, the king is able to decide who he wants to try and execute, and can do so
-attempts to try and execute the earl of chaffsbury
-initially the jury was pro-Earl, didnt let him get tried and/or executed
-the king just changed the juries again
-locke in the 2nd treatise essentially demands rule by LAW, not by FIAT
-first argument made was that men join political society to 'punish with a fair determination of law'
-read the second treatise
-people could resist if they feared that tyranny could be imposed
-called what the king was doing to the Earl 'perverted law'
-at the center of his concerns was the power of the king to execute the king's opponents
-essentially, locke wasn't his huge liberal idealist, he just doesnt want to get killed
-he has a vested interest in the social hierarchy
-the real reason he has for opposing absolute monarchy is essentially because the king is trying to execute his patron, and will probably kill him well
-'the threat of execution tends to concentrate the mind wonderfully'
-to make the case, he generalizes
-argues for large numbers of non-specific rights
-'life, liberty, and property'
-there are ways to defend these rights, as well as others
-still believes that servants, slaves can exist
-argues that labor creates a large amount of value, but should not necessarily be rewarded with the full value
-work isnt for the laborer
-the function of government is to protect property
-preserves massive inequality in property and wealth
-if you fail to work the land, we can come and take it
-justification for taking the lands of indians
-does locke give the right to resist when gov't is NOT tyrannical?
-not really, no
-does locke guarantee the right to franchise?
-again, nope
-locke's arguments are those of resistance to, not participation in government
-argues that men should rule because they are 'abler and stronger'
-believed that if you talked about natural rights, you'd have to find ways to strip women and children of rights

OCC CIV NOTES 11/2

reasons for the revolution
-no taxation without representation
-NOT about questioning sovereignty
-DID NOT question hierarchies of gender, wealth, etc
-new model army essentially forces the english hand with regards to democracy
-this forms the idea of natural rights

Ireton says
-property is a necessary thing
-the poor have rights, but not as many as the rich
-fuck you, poor
-all males need not have equal rights

Rainsborough says
-why does property exist?
-comes from unjust feudalism
-you NEED universal male suffrage

oops wikiracing

Revolution
-Army had been fighting the civil war for years
-army was filled with veterans of horrible early modern war
-army's pissed off at the king
-debate over regicide now
-john milton becomes the premier defender of regicide
-they also argue that his blood needs to be spilled to keep the land and people from suffering further
-they argue that if you do not punish in the name of God those who deserve it, God will punish you
-Milton writes the tenure of kings and magistrates
-tyrants are beasts and need to be taken out of power
-the people can legally and morally resist and dethrone a king

3 big challenges to the revolution

1) 1649-1650 sees the emergence of a group in england which calls themselves the 'true levelers'
-or the 'diggers'
-they take over the common land with the purpose of creating a communist haven
-they linked communism to christianity
-god required communism, in their view
-all should be equal, because all are equal in the eyes of god
-they argued against property, but didnt forcibly take any away
-believed that heaven and hell didnt exist, they were fictions made by the rich to subjugate the poor
-the real heaven should be love and brotherhood on earth
-they just get slaughtered, because they're pacifists

2) Quakers enjoy much more support
-didn't advocate for communism
-they believe that things could belong to people
-they argued that the holy spirit worked equally in all, men and women alike
-they didnt respect such social niceties as removing your hat when you meet a superior, or calling them 'sir' or 'ma'am'
-there are female preachers among quakers as well
-most quakers spent much time in prison

3) Republicanism
-most of the power went to oliver cromwell
-people started getting pissed
-there's a huge upswelling of republicanism after the regicide
-pissed at cromwell, who they see as a king or tyrant
-lots of texts published that happened to be circulated through the americas

CON LAW NOTES 11/1

Slaughterhouse cases- 1873
-essentially blocked enforcement of the 14th amendment for ~75 years
-READ THEM
there are descriptions of two cases in the supplement which we should read to understand standing to sue
-1st case- involves Daimler-Chrysler (Daimler-Chrysler vs Cuno (page 10))
-ohio offered a tax credit to Daimler-Chrysler to expand operations in ohio
-question- Who has standing to sue?
-a bunch of taxpayers got together and sued, arguing that it posed a burden on the taxpayers
-it was decided that the taxpayers didnt have the requisite interest to bring the case
-2nd case involves gerrymandering
-challenge to Tom Delay's effort to gerrymander texas to score a bunch of seats
-again, who has standing to sue? god only knows

Political Questions Doctrine
-there are some times when the supreme court need not to decide a case, and there has to be some rationale for doing so
-seeds of this doctrine in Marbury v Madison
-Luther v Borden is a good example of this case. for some reason
-happened in Rhode Island, was pretty much like a small civil war, with an insurgency and a competing government
-insurgency sued with the question of whether the Rhode Island charter violated the guaranteeing of a republican form of government clause in the constitution
-supreme court ruled that this was non-justiciable

Child Labor amendment- proposed because the senate wanted control over child labor
-question in a case with this amendment:
-does the lieutenant governor have the right to cast a tie-breaking vote in a ratification tie?
-court pussied out again

prior to 1842, congressional representatives could be elected 'at large'
-at that point, the court ruled something like 'one man one vote'

aaannnnnnnnndd i stopped taking notes.

IP NOTES 11/1

Side Category: International Law
Criminal Law
extradition is another nice concept that works in international law
-bilateral treaties are another
-usually you send people back for "political crimes"
-"extraordinary rendition"- when you go and essentially kidnap someone
Merchant Law
more like economic law here, not really political
something like contracts that are enforceable in the courts of both countries
Regime Law
different from all of the above
-it's extremely uneven, in some ways really powerful, some ways very weak
-the WTO, for instance, is EXTREMELY powerful
-but many environmental laws and organizations are pretty damn weak
Universal Declarations
random normative statements, especially from the UN
not really carrying any power to strong states
#14 Constructivism

I Constructivism: General
-Atomism
atomism- individuals are the unit actors
taken at least mostly from economics, micro especially
-Instrumentalism and Materialism
instrumentalism- behavior is a MEANS to an end
materialism- emphasis on power and wealth
-Identities and Interests Exogenous
ideas/identities, common understanding, norms SHAPE interests
constructivists dont take preferences as given, they try to explain them
constructivist idea is that the three things above are SOCIAL

Sociological Alternative
social- shit. look above

Types of Facts
-Brute Facts
-basically contextual shit. things that are OBJECTIVE
-mountain ranges are here, there is water here, etc
-Subjective Facts
-a fact which exists at the level of perceptions or misperceptions
-Social Facts
-a fact which exists solely because of inner subjective understandings
-constructivists want to say that sovereignty is an social fact
-Norms and Norm change
-people in politics believe that certain things are right and wrong
-problem is that NORMS CHANGE with time
-example, decline of colonialism
-norms are rules of appropriate behavior
-Types of Rules
-2 types
-regulative rules
-example- traffic laws
-they're good because they're necessary for safety, etc
-constitutive rules
-example- games
-football, for instance, means nothing at all without the rules
Wendt's System-Level Constructivism
Return to Idealism
-Realism v Idealism
-idealism- world politics SHOULD be this way- this is essentially bullshit
-wendt talks about realist Idealism
-he's saying that things can be real without being realist
-Normative Idealism vs realist Idealism
-normative idealism- good and bad
-realist idealism- not really sure

Three Cultures of Anarchy
Hobbesean- states are enemies
Lockean- states are rivals
Kantian- states are friends

you measure these according to the degree of institution. for some reason
the kantian idea is that if states are friends, it doesnt matter what the degree of institution is
neorealist belief- IR is essentially Lockean with a core of Kantian beliefs between certain states

IP NOTES 10/31

#14 International Society

I International Society
English School and "Grotian Model"
English school- Henry Bull ("The Anarchical Society")
states are like billiard balls with tenuous cobwebs between them
there are three other real categories of theories
Hobbesian- System of States- Entirely self-interest
Grotian- Society - self-interest + morality
Kantian- World Society- morality trumps self interest

Hobbesian- constant war
grotian- there is war, yes, but also periods of peace
kantian- perpetual peace
Presuppositions (3)
1) Must be a balance of power
-when a balance of power breaks down, the societal approach does not operate
2) Responsible great powers
-the great powers take responsibility for the ordering of the system
3) the presence of common civilization
-basically that western-style governance is predominant
II Sovereignty
Two Faces
Westphalian ideal (1648)
1) the inside face
-within the polity, there is some form of final authority
2) the outside face (more important)
-there is a relation of mutually recognized autonomy

Exclusivity, Equality, and Non-Intervention
1) states are exclusive
-there is a difference between a TREATY and a CONTRACT
-only SOVEREIGNS make treaties
2) all sovereigns are equal as sovereigns
-this doesn't mean that they all have the same power, but all are recognized equally
3) when states recognize eachother as autonomous, they say that they won't intervene in eachother's internal affairs
From European to Global
first non-european state to claim sovereignty was the US
-this was because the US and other smaller countries wanted recognition as sovereigns, to keep the europeans out
post WWII there was a huge outbreak of claiming sovereignty
-the UN is an example of this- a club of sovereigns
III Role in World Politics
Positive consequences (2)
1) conflicts are limited
-civil wars do not so readily become international wars
-nice containment principle here
2) constraint on power
-weak states make HUGE gains by claiming sovereignty
Negative Consequences (2)
1) state apparatus becomes privileged
-big issue- internal oppression
-everything becomes an internal matter
-one of the main features of international liberalism- cut down sovereignty
-whenever peoples are oppressed, it is the responsibility of the free peoples of the world to fight for them
2) impedes collective action
Modifying Sovereignty (2)
1) add responsibilities to sovereignty, make sure the countries know that they have to do certain things to remain sovereign
2) UN intervention
-in the wake of the cold war, the UN became very active

IV Diplomacy
Origins

Features (2)
permanent conversation between states
diplomatic immunity
V International Law
Elements of Law
Americans aren't bound by Russian law, or vice versa
1) code of rules have to be present (YES)
2) court, some judges must be present (KINDA)
3) must be some element of enforcement (GOD NO)

From Grotius to Vattel
idea of a "ius gentium"
-there are certain types of behavior that everybody can agree on as unjust
"Law of Nations" (1758)
-talked about states

Treaties, Neutrality, & Laws of War
idea that treaties may change, but states don't
-treaties are binding, but not necessarily permanent
neutrality- when two states are at war, a third state can declare itself neutral and not be bothered
Laws of War
-proportionality
-war is not to affect civilians
-noncombatants are safe
-after WWII, we get things like the Geneva Conventions to ensure this
International Court of Justice
the Hague ~1900
ICJ
there is a neutral arbitrator
Sovereign Immunity
criminal AND civil immunity from suit
cause you're a sovereign
Genocide and War Crimes
Nuremburg + Tokyo War Crimes Tribunal
Bosnia, the people are tried as well
Milosevic was turned over to the Hague where he actually stood trial
International Criminal Court
The US is basically leading the international opposition to the ICC
Clinton signed the treaty in his last hours of the presidency
-bush UNSIGNED it
we're pissed about this because it takes away from our sovereignty
US gets the ability to try its own citizens FIRST, THEN if they're not tried the ICC can try them

CON LAW NOTES 10/30

Standing to sue! the sexiest topic ever!

three questions to answer when you're deciding a case
-jurisdiction- are we allowed to decide the case?
-standing to sue- is the plaintiff allowed to bring the case?
-Justiciability- is it a good idea to decide this case?

standing to sue really only came into play pretty recently
-origins were political
-fostered by some of the more liberal justices of the 1930s (brandeis, frankfurter)
-they were trying to protect the New Deal from the court, by making sure people didnt have the standing to bring cases
-nowadays, the doctrine is more used by the conservatives
-has roots in Article 3 AND is prudential
-basically, the doctrines are incoherent and contradictory

there's one case that encapsulates all of these questions. yay
-the Lujane case? lujan? fuck.
-involved several ardent environmentalists
-suing to force the secretary of state to force environmental rules onto other countries which they wanted to visit
-essentially, the secretary of state had no jurisdiction to force rules onto other countries
-scalia writes up a nice doctrine for standing to sue
-1) must have suffered an injury in fact, not a pretend one. must be real, but not necessarily physical
-2) must show a causal connection between the injury and the conduct or law complained of (must be traceable to the actions sued for)
-3) the injury must be redressable (assuming that the first two tests are met, this is the question of whether the supreme court or the party sued can do anything about it)
-4) oops. maybe three

another interesting case- US vs SCRAP
-SCRAP= students challenging regulatory something procedures
-scrap became an unincorporated organization
-they sued the interstate commerce commission to suspend a temporary surcharge on freight rails
-their alleged injury was that a general rate increase causes an increase in the use of raw materials, causes more junk and trash in the parks, which they use
-wtf.
-court accepts this. for some reason
-they say that there's an 'attenuated line of causation'

right now, the Rehnquist and Roberts courts are pretty hostile using standing to sue
-cause they're more conservative
-the warren court was more liberal, opened up the courts more. interesting, no?

original cases that were nice and defined standing to sue:
-Frothingham v. Melon
-Massachucetts v. Melon
-Melon was the secretary of the treasury
-mrs. frothingham was a citizen of mass.
-sued the sec. of the treasury under the maternity act of 1921, trying to stop the money from being spent
-the maternity act was money spent by congress given to states that would be used to reduce infant mortality
-she argued that this was a power reserved by the state, NOT given to the federal government
-also argued that it was unconstitutional because it would increase her tax burden, taking her property without due process (5th amendment)
-unanimous rejection of Mrs. Frothingham's case because of lack of jurisdiction
-first, Frothingham had too minute an interest to permit her to sue on 5th amendment grounds, and if these cases were allowed, everybody would challenge everything
-BTW, for personal knowledge, if you want to sue for something like this, you have to actually be harmed first (so you have to actually pay the tax before you can sue against it)
-2nd, she showed NO SIGN of personal injury. supreme court cannot decide cases in the abstract

in 1965, congress passed a bill known as the secondary school education act
-first major funding bill for secondary schools in the US by the federal govt
-this was mostly in the form of block grants
-in order to pass the bill, the supporters had to agree to an amendment that said that the bill would not only fund public schools, but also private and parochial schools
-back in that time, nearly every single private school was catholic
-lyndon johnson signed the bill, assuming that the courts would just strike down the religious school part of the bill
-this led to the case: Flast v Cohen
-cohen was basically the secretary of education
-flast was a plaintiff
-the court rules that Frothingham was not an absolute barrier to a taxpayer suit
-the warren court rules that a taxpayer could bring a lawsuit, under specific circumstances
-for instance, if he brought a constitutional question
-Flast met the tests, Frothingham didn't
standing to sue, however, has still been relatively scaled back