WH: With respect, this is not really so, though it was a widespread part of the propaganda of the Federalists supporting the new Constitution. Several perceptive anti-Federalists strongly opposed the Constitution on the precise ground that too many contract and tort cases would be diverted from state to federal courts by the new fundamental law.
^^^^ CB With respect , it is definitely so. The vast majority of cases are and were in state courts. .
^^^^^
What I mean is that -- while there is no DIRECT federal jurisdiction over contracts, torts, etc., in Article III -- these sorts of issues could and can become subject to suit in federal court in two (I think reasonably ingenious) ways. The first way is through an exercise of the federal courts' "diversity" jurisdiction -- that is, by bringing ordinary contract or tort suits into federal court because the litigants were either from different states or because one of them had foreign citizenship. The second way is through what we now call "federal question" jurisdiction, by claiming that one or another state law "impair[ed] the obligation of contract," preventing the collection of a debt (or of some parts of the debt), and thus bringing up the "federal" question of the effectiveness of the state law.
^^^^^^ CB: Could and can , but didn't. Probably less than .000001% or some very small number of state cases are moved to federal court. Don't you think the vast majority of contracts were between people in the same state ?
How many cases were moved to federal court due to "impairment of contract" ? Please
^^^^
The new federal judges Washington appointed were (with one exception, district judge Harry Innes in Kentucky, who soon turned out to be a Jeffersonian) 100% Federalists, or supporters of Washington and Hamilton. They had NO interest in pulling wholesale into their courts ALL contract and tort cases, but they did wish to allow in all of the "ordinary" contract and tort cases which involved pre-Revolutionary debts, upon which the various states had attempted to impose "impairment" of the contracts -- by installment laws, by laws denying part or all of the wartime interest, and by many other legal dodges which I lay out and explain in my 1989 Duke Law Journal article concerning the origins of federal court jurisdiction.
Hundreds of these cases flooded into the federal courts in the 1790s -- almost all of them through the first (or "diversity") method. This phenomenon persisted into the 1820s, largely because the federal courts proved very friendly to the creditors, while state courts were not so friendly, especially to creditors from a different state or from a foreign country (like England). They were indeed "ordinary" contract and tort cases, which could have been (and sometimes HAD been) pursued in state courts, but they did not of course include ALL contract and tort cases.
^^^^^ CB" Didn't include _most_ contract cases. Tort cases don't involve impairment of contracts.
^^^^^^
So of course the "vast majority" of torts and contracts cases stayed in the state courts, but many of such instances which were crucial to federal policy -- not reneging on pre-Revolutionary debts -- went to federal court before 1820.
^^^^^^ CB: Like I said , with respect, what i said is definitely so.
^^^^^^
CB: Furthermore, I don't interpret the Justice Establishment clause as confining the task to only the Judiciary. The Legislative and Executive are charged with establishing justice , too. I'm not at all saying the the history of the US government has been predominantly to do this nor that the US has not established more injustice than justice. However, now we can demand that those words be fulfilled truthfully. Why not ?
WH: An excellent argument, I agree not only wholeheartedly but enthusiastically. The words are there, and they should be used as best we can for OUR goals.
^^^^^^^
CB: They mean that by "Freedom" or "Liberty" , too.
"It (the bourgeoisie) has resolved personal worth into exchange value, and in place of the numberless indefeasible chartered freedoms, has set up that single, unconscionable freedom - Free Trade. "
"The bourgeoisie keeps more and more doing away with the scattered state of the population, of the means of production, and of property. It has agglomerated population, centralised the means of production, and has concentrated property in a few hands. The necessary consequence of this was political centralisation. Independent, or but loosely connected provinces, with separate interests, laws, governments, and systems of taxation, became lumped together into one nation, with one government, one code of laws, one national class-interest, one frontier, and one customs-tariff."
CB: The Inter-state Commerce Clause of the Constitution and the whole federating/centralizing dimensions of the Constitution that you discuss reflect this process described by Marx and Engels in _The Manifesto of the Communist Party_
WH: Agreed again. Marx understood quite well, in my view, what had gone into the making of the United States, and its 1787 "political centralisation."
___________________________________ http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk