Tuesday, August 22, 2006

On The First Day Of School, and Reading Marbury v. Madison For The Nth Time

I actually did this myself and made it into an iron-on t-shirt:

The new school year has truly arrived. Orientations are like fake little meet-and-greet soirees, but now it's time to get down to business. Yesterday I bought multiple colors of the poor grad student's ultimate pen, otherwise known as the Pilot G-2 gel pen. This, despite the fact that ever G-2 I have ever owned has stopped writing after maybe 3 weeks, despite evidence that there remains more than 75% of ink left in the barrel. This despite the fact that I actually own some very nice pens (Mont Blanc, vintage Parker) but refuse to use them for anything other than my antiquated epistolary exercises. But for the work of school, it just seems the thing to do to buy a cheap pen. We are students, and not yet professionals who need to wield $200 sticks of prestige. Okay, so I graduated from law school already, but I still dont need to do that. The cool thing about being a student again is that the only pretensions you should aspire to are intellectual ones. Now that I'm out of Bourgie city, it appears that I no longer have to wear labels or stilettos to school while carrying 20 lbs on my back. The look here is "bookish," and I think the pens will go along way towards helping with that image. That, and buying a blank marbled "composition notebook," something you could associate with a grade schooler, but has recently become the favored notebook (as, say Moleskine was the favored notebook of Picasso) of grad students who need to diagramm their papers. Not law students, per se, who seem to have a peculiar fondness for the too-widely ruled and too buttercup-yellow legal pad. What, do we need to shout "I am a lawyer, I use legal pads" at this stage already? No, I identify better with those quirky and often poor grad students and their blank journals, or at least what I remember of them (I have current English grad student friends, but the "standards" in my mind are those messenger-bag toting, coffee drinking, Lacan-discussing, glasses and Cosby-sweater wearing types who were my TAs back in college). Now that I'm done with the stressful JD, I'm just another coffee-swilling, breeze-shooting grad student (when I'm not obsessively working in the privacy of my apartment). In fact, I better finish this post in an hour, because I'm to have coffee and pastries with the other European LLMs at the nearby "Cafe Bellagio" (not the name, but you get the idea). The second time around is so much better.

So after buying my school supplies like some eager young pup and packing myself a turkey sandwich, apple, and granola bar for lunch (I kid you not), I am at school. Listen up people, I am at school. For the first time in a year, among people my age and not babies with dirty diapers. And I just finished my first class in a year. And I am a bit tired from staying up reading my first homework assignment in a year (Every time there is "optional" reading I view it as "mandatory.") I feel quite the excited schoolgirl.

So what was my first assignment of the year? Marbury v. Madison. A case I have read I don't know how many times, from my first reading at the age of 16 in "Intro to Law" at my university (I took some college classes part time in HS, then later enrolled full time), to the more advanced constitutional law courses (there were at least two more classes where it was assigned: Law and Society and Courts and The Political Process), and finally again in Con Law I in law school. It's not that it's an "over-assigned" case--it really is that important. (Well, I am fond of any case involving federalism, and believe that all are very important, but that's just me.

On the nth reading, I find myself completely enthralled with the case. I am sure that I read it much too carelessly as an undergraduate, and I was too stressed as a 1L to enjoy the reading (worrying more about my grade, and knowing that it would probably not be tested since there was enough material on everything from structural issues (commerce clause, privileges and immunities) to equal protection to make a 3 hour final). But seriously, this is a marvelous case to read.

For one thing, the case deals with such complex, interesting issues that are still relevant today. The separation of powers, in particular executive authority vis-a-vis the legislative powers, and as refereed by the Court. The power of the Court to address only constitutional questions of law, as opposed to political questions for which it has no jurisdiction. Moreover, the case is so delightfully obsessed with language and interpretation. Most cases, particularly those dealing with statutory interpretation will be very invested in interrogating the exact nature, meaning, and intent of the words. And by the time such a case reaches the Supreme Court, interpretation will necessarily involve not only reading within the text, but a comparative reading to some more authoritative or conflicting test--e.g., the Constitution. But Marbury takes the cake on both counts.

I'm reading the Fallon, Meltzer, and Shapiro 5th edition of Hart and Weschler's The Federal Courts and the Federal System. As you may recall, this was the most influential book for now Chief Justice John Roberts. It is weird, coming from a background in deconstruction and CRT to be reading such a Legal Processs school text. Whatever my current doctrinal project, I'm still a legal realist at heart. But I am enjoying this book, and I can see why the (probably 1954 edition) book was so influention on Chief Justice Roberts. The book is incredibly comprehensive (a little too comprehensive, what with the excessive notes that follow each case that introduce updated case law, criticisms, and other schools of thought). I like that the cases aren't too redacted, which makes it easier for a linguaphile like me to really get a feel for the opinion. And like I said, this case is obsessed with language, and so you need a lot of langauge to parse.

As I was reading the case, I found myself breaking out my new Pilot G-2s and mapping out the issues in a more visual format on my new notebook. Yes, my fate really is to annotate. Gy "mapping out" I do not mean necessarily "P states a claim for ______" ---> "D rebuts ______" or anything like that. Rather, I copied out bits of the case to parse out the language and its meanings, mapping out the sentences. This case was obsessed with the language of the statute it was trying to interpret and whether it reconciled with the meaning of the constitution, and so I became obsessed with the language of the court.

Take for example, the "Ed." (H &W?) note to the Court's interpretation of Sec. 13 of the 1789 Judiciary Act:

"Pfander...argues that Marshall was more likely to have relied on a 1796 edition of the officially authorized but privately published Laws of the United States, which substituted a colon for the semicolon in the italicized sentence and capitalized the "And" that immediately follows it. According to Pfander, the difference is significant, because it highlights the independece of the grant of mandamus authority from the reference to "appellate jurisdiction" in the crucial sentence's initial clause and thus supports the Court's conclusion that the conferral of mandamus jurisdiction was "freestanding," rather than being limited to cases otherwise within the Court's "appellate juridiction."

Language, even if merely a colon (vs. a semicolon) or a capitalized letter (vs. a lowercase letter) can determine the constitutionality of a statute. Interpretation depends greatly on the framing of the issues and the standpoint of the author (Legal Realism, anyone?), but there is something to be said about how this is to be done within the linguistic confines. That is, the construction of sentences, the choice of words, and the objective/subjective interpretion of those words and structures will greatly affect the ultimate determination. So while "reading" is not merely an action but a human act, there are enough structural rules in the interpretation of language to compel certain interpretations. (Yes, I am really backing away from deconstructionism now, sorry Stanley Fish).

More evidence of the case's obssession with language?:

From Marshall himself:

[T]he plain imort of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.


Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, suppsoed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are boundby that instrument.

My Fate Is To Annotate.