Sparrow's Reviews > Cohens V Virginia

Cohens V Virginia by Walter W. Burgess
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May 06, 2011

really liked it
bookshelves: reviewed, law
Read from May 03 to 06, 2011

This book totally rules. There were parts of it that even gave me chills. No kidding. That’s how nerdy it’s getting around here right now. The author did this study as a PhD dissertation in history at the University of Virginia, and at the beginning, there is a dedication that says, “For Kay, for all the reasons.” Awwww! I totally ♥ this book. Not that I would necessarily recommend it to you, unless you have a particular hankering for knowing about Virginia’s early-nineteenth-century protests of Supreme Court review of state court decisions. I know, you’re probably asleep already. But it is so interesting, I’m telling you! Also! The “Cohens” in the title are referred to as the Cohen brothers! I’m pretty sure they’re related to the Coen brothers.

So, when the People first agreed to the Constitution, there was some talk of judicial review, but nobody put anything specifically into the Constitution about it. That is to say, the Constitution says that the Supreme Court can hear certain types of cases, but the Constitution doesn’t say that the Court can tell everyone what the Constitution means. Later, the Court itself decided that it could tell everyone what the Constitution means. Then, during the same time that the Court decided that, it also decided that it could hear appeals from state courts if the appeal related to some kind of federal law.

This was a really big deal and is all prequel to this book. It is also a really cool exchange between the Virginia courts and the Supreme Court over the Martin v. Hunter’s Lessee case. It’s not the most fascinating case to read, but the exchange is so fun. So, the case got appealed to the Supreme Court, and the Supreme Court said, “We can decide on this case, and Virginia is wrong.” Then, they sent the case back to Virginia to correct the errors, and Virginia said, “That’s nice that you think that, Supreme Court, but luckily for us, we don’t have to listen to you.” The Virginia opinion is so great. So, then the case went back to the Supreme Court, and they said, “Oh yes we can.” And, then, Virginia did like they were told.

At the risk of spoilering this book for you (because I’m sure you’re going to run out and read it right away), I’ll tell you what it’s about. The Cohens v. Virginia case came after three other decisions where the Court had given itself and Congress a lot of power to “say what the law is.” In Cohens v. Virginia, the Court said it could review state court decisions on criminal matters where they related to the Constitution or other federal law. The Court also said that Virginia was right in the way it had decided the case.

Virginia kind of freaked out, and there was talk of passing a state law saying that anyone who enforced a Supreme Court decision that conflicted with a state supreme court decision would be fined $1,000. There was a lot of talk. Ultimately, no one did anything, and the decision goes down in history as one of Justice John Marshall’s genius political moves. While he had taken a big chunk of power for the Supreme Court, he had upheld what the state court had done, so they didn’t really have anything to complain about.

I’m going to write about how that time in the history of judicial review is similar to the relationship between the Supreme Court and the International Court of Justice in relation to international lawsuits over the death penalty. The ICJ has ruled that state procedure in the U.S. violates an international treaty. The Supreme Court has basically said what Virginia said in ye olden days, “That’s nice, but luckily for us we don’t have to listen to you.” And in relation to this law, the ICJ has basically agreed. And I think it's true, too. But, what if, suddenly, the ICJ was like, "No, you do have to listen to us"? It's interesting to speculate about what kind of enforcement power they would have.

Reading about all the fights that the bloggers newspapers had back in the day was one of those reminders that people basically stay the same, and the Supreme Court ends up with the power to say what the law is in the way that most meaningfully affects the People. It does make me wonder, though, how often it retains that power just by reaffirming the power of the states. Anyway, good book. If you ever write a paper on judicial review, I highly recommend it.
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message 1: by Aileen (new)

Aileen Cohens v. Virginia -- the case in which the SCOTUS expanded the judicial review of state law into criminal cases. It had previously decided in Martin v. Hunter's Lessee that it has the const. power to rule on VA state law in civil cases.


message 2: by Aileen (new)

Aileen Hopefully, that's mostly accurate (considering my final is tomorrow.)


Sparrow A+!!!!!

Oh, crap, except not. They can't rule on state law still. It's only on state court decisions that relate to what is basically a federal question. In Martin v. Hunter's Lessee, the issue was a treaty with Britain.


Sparrow Do you have con law questions? I know Derek and Nadia cut you guys off, and Nadia's not really allowed to tell you guys that you can ask me, but you can if you want. Secretly, here in the secret clubhouse.


message 5: by Aileen (new)

Aileen Meredith wrote: "A+!!!!!

Oh, crap, except not. They can't rule on state law still. It's only on state court decisions that relate to what is basically a federal question. In Martin v. Hunter's Lessee, the iss..."


Crap. None as of right now. My problem is and always has been that I fail to recognize gaps in my work. I'm working through the DCC cases to see if there are any ideas that I left out.


Sparrow Oh, I love DCC! <3! But, we didn't cover it in Chinn, so I'm not super fresh on it. That's the case with the watermelons and the case with the fish, right? Oh, and the garbage cases. <3 DCC!


message 7: by Aileen (new)

Aileen Garbage, Creameries, Fish, and Cantoloupes (for us).

This is the first year Raban is using Chemerinsky, and so we've read a lot of cases that don't progress or define the issue further. So my issue is that there are a lot of cases missing from my notes/outlines that may help. ugh.


Sparrow Yeah, but if you have at least one case that represents a certain idea, you're probably good. Like, if you have too many, you could spend test time trying to figure out which one to use.


message 9: by Aileen (new)

Aileen Exactly! I'm at the point where I just want to leave my outline alone and hope for the best, you know?


Sparrow Yeah. I know. Can you bring your book?


message 11: by Aileen (new)

Aileen Yup, open book and outline. 30 multiple choice and 2 essays. He's of the "less-is-more and I will mark down points if you ramble, dammit" style of essay grading.


Sparrow MULTIPLE CHOICE?!!!!!!!!

I feel like I just looked into the face of evil.

I guess we had multiple choice for fed jur. I'm not good at that stuff.

Have you tabbed? I think being able to find stuff if I need to is the most helpful preparation I can make for a test.


message 13: by Aileen (new)

Aileen I've tabbed the major parts and am going to tab the divisions/earth-shattering cases.

I don't want to get overwhelmed with it, you know?


Sparrow Totally, and you have to do whatever's going to be the most convenient for you. Everyone's different with testing, I think.


message 15: by Sparrow (last edited May 04, 2011 05:12PM) (new) - rated it 4 stars

Sparrow *amended msg 3: the SC can review state decisions on a writ of error relating to state law, but that's not really the same as reviewing state law. Also, not relevant to what you studied, but I still realized what I said was too broad.


message 16: by Aileen (new)

Aileen Ahh, the joys of const. law -- where one misspoken word can change the entire meaning of what you're saying.


message 17: by Flannery (new)

Flannery I really like your back and forth explanation of the court case as a dialogue. I laughed out loud thinking of how we do it in regular conversation--

"And then Philadelphia was like, 'We're just gonna go ahead and drop all our trash on you, mmmmkay?'"

or

"And then O'Connor was all like, 'you can regulate abortions as long as it doesn't cause undue hardship and all that'."

or

"And then Justice so and so was being his usual d-bag self and said..." (name redacted so as to not call a sitting Supreme Court Justice a douchebag)


Sparrow hahahhaa! That's how I think of the stuff they say! Easier to remember, you know?

It's okay to talk like that in oral arguments, right?


message 19: by Aileen (new)

Aileen One of my notes went like this, "And then Scalia was like, 'WTF? None of these rights are textually supported in the Constitution. Where are you getting them from?" and the Court was like, "Cause we're America! F*** Yeah!"


Sparrow *Hamdi v. Rumsfeld

Or really any case in which Scalia dissents, I guess. That is how my notes go, too. That's kind of how my ACE power points were, also, which might not be kosher.


message 21: by Ian (new)

Ian Wow, things are getting really, really nerdy around here right now ;)


Sparrow Just wait'll I review the Stone Con Law book. I'm thinking about writing some sort of love sonnet to it. I've been putting it off because it's hardest to review the books you love, you know?


message 23: by Ian (new)

Ian Meredith wrote: "*amended msg 3: the SC can review state decisions on a writ of error relating to state law, but that's not really the same as reviewing state law. Also, not relevant to what you studied, but I sti..."

Only if there's a federal question or diverse citizenship, though, yes? I mean, say I live in California (cuz I do) and I sue another California citizen on a cause of action that is granted by California statute; I don't think the USSC would ever have jurisdiction absent a question of whether California's statute is preempted or runs afoul of the Federal Constitution.


message 24: by Ian (last edited May 07, 2011 10:36AM) (new)

Ian "Then, during the same time that the Court decided that, it also decided that it could hear appeals from state courts if the appeal related to some kind of federal law."

Was this before federal-question jurisdiction was granted by statute, or after?


message 25: by Ian (last edited May 07, 2011 10:39AM) (new)

Ian Meredith wrote: "Just wait'll I review the Stone Con Law book. I'm thinking about writing some sort of love sonnet to it. I've been putting it off because it's hardest to review the books you love, you know?"

Yes. It's why I have yet to review Hyperion, which I've read three times and is the single most influential piece of fiction in my own life.


Sparrow Ian wrote: "Only if there's a federal question or diverse citizenship, though, yes? I mean, say I live in California (cuz I do) and I sue another California citizen on a cause of action that is granted by California statute; I don't think the USSC would ever have jurisdiction absent a question of whether California's statute is preempted or runs afoul of the Federal Constitution."

That's what I'm wondering. Because I know that our fed courts prof kept saying that you can appeal on a writ of error, and I know you can make habeas appeals that are only based on state law, but I think it's because those are on a writ of error. In my mind, in that case, it would be because the court would be evaluating the procedure (which might bring in the 14th amendment?), not the substantive law.

I know that the most recent case on the topic of the SC reviewing matters of state law said that if you have dual issues (fed question and state), the state court has to specifically say that the matter was decided entirely based on a separate state issue in order to keep it out of federal courts. So, I think the courts are leaning more toward review now if that makes sense.

I don't think that they can review the substance of state law, but I'm not totally clear on whether they can or cannot review procedure on a case dealing entirely with state law.


Sparrow Ian wrote: "Was this before federal-question jurisdiction was granted by statute, or after?"

Before. It's 1821, so there still wasn't that much federal statutory law. They kind of refer to treaties, Constitution, and federal statutes the same way, though, they just don't have the federal question language. The issue of the Cohens case was basically whether DC law could govern states, and I think it's really interesting to think of that being a question.


message 28: by Ian (new)

Ian I wonder what you prof meant by "writ of error" in this context? Because it's not how I think of the term. By definition, when the California Supreme Court rules substantively on California law, that interpretation is California law, notwithstanding anybody's opinion of the court's logic. Now, a habeus corpus petition is essentially a procedural due process claim under the 14th Amendment, as you indicate, so that's where the federal question comes in. And yes one can challenge state law under procedural or substantive due process, so maybe that's what your prof was talking about? You should ask and report back!


Sparrow I know, I was thinking I need to ask her about it. I'm thinking it has to be a 14th Amendment appeal. Maybe in the sense that the state has laid out the process, and the court failed to follow it?

I mean, how did Bush v. Gore get to the Supreme Court? Isn't that a writ of error? Because in that they overturned a state supreme court decision on substantive law. I'm not saying it's a case that makes any sense to begin with, but I think they justified it by saying that the state court was obviously defying the legislature's written law. And I think the SC can do that? I'll ask.


message 30: by Ian (new)

Ian Cool. I'll be eager to hear your report!

(And Bush v. Gore is a bad example, I think, as the case was too unique and political to really stand for any general principle.)


Sparrow Yeah, and actually I looked it up and that was diversity jurisdiction and started in a Florida district court. I'll let you know what she says.


Sparrow So, she said it's the same as the usual rule: it's okay for the SC to review matters of federal law, but not state law. The writ of error is just like it sounds, she said - it's an application based on some error of the state court, but it has to be over a federal matter. I can see where a state law could get entangled by interfering with constitutional rights, but I think the law that they're interpreting has to actually be a federal law.

That's my amendment to my amendment of message 3, which kind of reinstates my original message 3.


message 33: by Ian (new)

Ian Thanks for checking, Meredith! So your prof is answering emails on Saturday nights?


Sparrow Well, it's finals week.


message 35: by Manny (new)

Manny they sent the case back to Virginia to correct the errors, and Virginia said, “That’s nice that you think that, Supreme Court, but luckily for us, we don’t have to listen to you.” The Virginia opinion is so great. So, then the case went back to the Supreme Court, and they said, “Oh yes we can.” And, then, Virginia did like they were told.

But how did the Supreme Court enforce their interpretation? It sounds like a complete deadlock the way you tell it. Why couldn't Virginia just continue to refuse to accept their authority?

I'm sorry if this got answered higher up the thread... the language got kind of technical, and I don't speak US law :)


Sparrow So, it's kind of the same as whenever the Supreme Court makes any decision. It has to rely on the other branches to enforce any decision it makes. There is an interesting article by Robert Dahl, called Decision-Making in a Democracy, where he talks about how we make a big deal that the Supreme Court is activist, but actually it usually follows majority opinion pretty consistently, because otherwise it would have to worry about enforcement.

In the Cohens v. Virginia case, it was really convenient because they said they have the power to review the state decision, and then they upheld the state decision.

In the earlier Martin v. Hunter's Lessee case, which is really fun, the issue was whether a British citizen could keep land that he owned in Virginia. I don't think they really had to enforce anything.

They did have the Civil War not too long after these cases, though, and the doctrine of secession became popular partly as a result of them, according to my casebook. There are some other cases dealing with Indian rights that I read this year, where Andrew Jackson refused to enforce a Supreme Court judgment, and that lead to other states asserting sovereignty in really inconvenient ways to him. He learned his lesson and started enforcing judgments.

The biggest situation that people usually talk about of having to enforce an unpopular Supreme Court decision was in Brown v. Board of Education, and the President called out the National Guard to help enforce that. Usually, though, the states just comply on their own. Even then, some would argue that schools aren't really desegregated still in a lot of places, so it's a question whether the rule of the judgment has been totally effective.


message 37: by Ian (new)

Ian The American Civil War left a pretty big scar on our national psyche that still has implications today. You have to keep in mind that war killed 600,000 americans, making it by far the most deadly war in US history. Yes, the war was about slavery, but just as fundamentally it was about the extent to which individual states can operate on their own under our federalist system. The states-rights side lost, and there's still a lot of lingering bitterness aobut that, and not just in those states that were part of the rebellion.

What the Civil War proved is that the will of the Federal Government, of which the US Supreme Court is one branch, is ultimately backed up by the might of the US military. Today that sort of power is not invoked as everybody seems to accept complying with a Supreme Court order as a given.

But we do have an interesting case now coming out of Arizona. The State of Arizona is essentially asserting that it can have its own foreign policy which may or may not be consistent with the Federal Government's foreign policy. So far the case has been heard in trial court and at the intermediate appellate level, and at both levels the courts have said that's ridiculous--no individual state may have its own foreign policy, but must defer to the feds on such matters. The next step is the US Supreme Court and I think it's safe to say that those of us in the legal profession will be shocked if the high Court rules any differently and allows Arizona to do its own thing. But the interesting question will then be, what if Arizona says "screw you Supreme Court and screw you Feds, we're going to do what we want"? That sort of defiance has happened only a couple of times and each time things didn't turn out so well for the state(s) in question. (See, e.g., the Civil War.) But the people in charge in Arizona seem just about militant enough that I have to wonder if they'll try something that crazy.


Sparrow I think it's interesting to think about whether the confederate states had a choice in signing on to the 13th, 14th, and 15th amendments after the war. I haven't done a lot of research about that, but it's my understanding that they had basically no options in signing amendments that permanently restructured the relationship between the states and fed.

This book talks a little bit about how a lot of the leaders in Virginia that later strongly influenced states to secede were actually anti-slavery themselves.

The Arizona case is interesting. It seems so unlikely to me that it will go anywhere, though. I do think it's one of the signs that some of the protections of state sovereignty that the SC has found constitutional are unrealistic in a world where international law is increasingly relevant to the daily workings of government. That's one of the conclusions of my paper, anyway.


message 39: by Ian (new)

Ian I hadn't even thought about that issue of the post-war amendments being rammed through. I would love to read more about that.

Hey, Mere, will you be sharing your paper with your GR friends in the legal profession? Honestly, I would be interested in reading it.


Sparrow I'll see if it's worth anything first. The last two papers this year have been pretty disappointing. I'll see if I can post it in the writing section if it comes together in any way worth reading. Or, I'll send it to you if that ends up being too complicated with footnotes. I'll let you know. Thanks for talking about all of it! I'll let you know if I hear of anything worth reading on the post-war amendments, too.


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