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On Sep 23, 2012, at 4:21 PM, c b <cb31450 at gmail.com> wrote:
> CB: Most common everyday legal issues and conflicts remain part of
> state law and in state courts. Federal courts have almost no
> jurisdiction over criminal law, contracts, torts, family law., which
> are the meat and potatoes of what goes on in courts in America. I
> think you should interpret "establish" as an ongoing process. Not that
> I sign off on the notion that most of what all those state courts were
> doing was just. (smiles). Of all the law that "goes on" , the vast
> majority of it was not then nor is it now in federal courts, n'est-ce
> pas ?
>
>
> 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."
>
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