Con Law Digest[1]

Con Law Digest[1] - A. Nature and Scope of Judicial Review...

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A. Nature and Scope of Judicial Review Federalist No. 10 : A faction is a number of citizens, whether amounting to a majority or minority, who are united and actuated by some common interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community. There are two methods of curing the problems of faction: (1) removing its causes; (2) controlling its effects. There are two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. A faction cannot survive without liberty. The most common source of factions is the various and unequal distribution of property. The causes of faction cannot be removed; therefore its effects must be controlled. If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. To secure the public good and private rights against the danger of a faction, and to preserve the spirit and form of popular government can be attained by either the existence of the same interest in a majority at the same time, which must be prevented, or the majority must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. By passing the public views through a chosen body of citizens, whose wisdom may best discern the true interest of the country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. The Constitution refers the great and aggregate interests to the national government, and the local and particular to the State legislatures. Factions are less dreaded in a republican government because the greater number of citizens and extent of territory which may be brought within the compass of it is greater. Comments : 1. Safeguards to factions would be found in a large republic. There, the diversity of interests would reduce the risk that a common desire would be felt by sufficient numbers of people to oppress minorities. Heterogeneity would work against factionalism and parochialism. At the same time differences of opinion and the jarrings of parties would promote deliberation and circumspection. And serve to check the excesses of the majority. 2.
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This note was uploaded on 05/25/2011 for the course LAW Con Law 1 taught by Professor Stern during the Spring '11 term at FSU.

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Con Law Digest[1] - A. Nature and Scope of Judicial Review...

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