Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P44 doc

1982, she and feminist author ANDREA DWORKIN convinced the Minneapolis and Indianapolis city councils to enact a pornography ordinance that recognized the civil rights violations of pornography. The ordinance described pornog- raphy as “a discriminatory practice based on sex which denies women equal opportunity in society,” and defined it as “the graphic sexually explicit subordination of women, whether in pictures or words,” that presents women (or any person) in violent or degrading contexts. The ordinance offered a civil CAUSE OF ACTION to persons who could prove physical harm caused by coercion into pornography, ASSAULT due to pornography, the forcing of pornography against a person, or trafficking in pornography. Supporters of the ordinance argued that the harms inflicted by pornography outweighed the rights permitted by free speech, and that the ordinance did not violate the FIRST AMENDMENT. The U.S. Court of Appeals for the Seventh Circuit, in American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (1985), overturned the ordinance. The court agreed that pornography affected the way in which people view and react to the world and their social relations, but it observed that the same could be said of other protected speech, including expressions of racial bigotry. Despite the demise of the ordinance, MacKinnon has remained steadfast in her view, sometimes debating persons who defend the publication of pornography on First Amend- ment grounds. In 1989 MacKinnon became a tenured law professor at the University of Michigan Law School. She was named as the Elizabeth A. Long Chair in Law in 1998. Since 1997 she has served as visiting professor of law at the University of Chicago and has alsoserved as a visiting professor at Columbia University and the University of Basel in Switzerland. She continues to write and to lecture about FEMINIST JURISPRUDENCE. MacKinnon’s 1993 book, Only Words, restated Catharine A. Mackinnon. TIME & LIFE PICTURES/ GETTY IMAGES Catharine A. MacKinnon 1946– ▼▼ ▼▼ 1950 2000 1975 ◆◆ ◆ ◆ ❖ 1950–53 Korean War 1961–73 Vietnam War ◆ ◆ ◆ ◆ 1946 Born, Minn. ◆ ◆ ◆ ◆ ◆ 1969 Earned B.A. from Smith College 1977 Earned J.D. from Yale; U.S. Court of Appeals for D.C. ruled that sexual harassment was discrimination 1979 Sexual Harassment of Working Women published 1982 Ind. and Minn. city councils adopted anti-pornography ordinance written by MacKinnon and Dworkin 1985 Seventh Circuit overturned Indianapolis ordinance 1986 Served as co-counsel for Mechelle Vinson in Meritor Savings Bank, FSB v. Vinson 1989 Accepted tenured law professorship at University of Michigan Law School; Toward a Feminist Theory of State published 1987 Earned Ph.D. from Yale 2001 Appointed co-director of Equality Now’s Lawyers’ Alliance for Women (LAW) Project 1997 Appointed visiting professor, University of Chicago Law School; In Harm’s Way, written with Andrea Dworkin, published 1993–2000 Represented Bosnian Muslim and Croat rape and torture survivors in suit against Serb leader Radovan Karadzic, filed under Alien Tort Claims Act and Torture Victim Protection Act (Kadic v. Karadzic) 1992 MacKinnon-Dworkin definition of pornography affirmed by Canadian Supreme Court in Butler v. The Queen 1993 Only Words published 1994 Violence Against Women Act signed into law, made sex-based violence a civil rights violation ◆ 2007 Sex Equality, 2nd edition, published GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 418 MACKINNON, CATHARINE ALICE her attack on pornography, rape, and the sexual subordination of women. In 1998 she published another book entitled In Harm’s Way: The Pornography Civil Rights Hearings, and in 2001 she published a casebook entitled Sex Equality, which was updated in 2007. In August 2000, along with co-counsel, MacKinnon successfully secured a $745 million verdict in a New York court for Croatian and Muslim Bosnian women and children who were sexual victims in Serbia. Kadic v. Karadzic, 866 F.Supp. 734 (S.D.N.Y. 1994), 70 F. 3d 232 (2d Cir. 1996), cert. denied 518 U.S. 1005 (1996). The case, originally filed under the Alien Tort Claims Act and Torture Victim Protection Act, established rape as a legal claim for GENOCIDE under INTERNATIONAL LAW and has been influen- tial in domestic and international courts. As of September 2009 MacKinnon con- tinues to teach at the University of Michigan and is actively involved with Equality Now, an international nonprofit WOMEN’S RIGHTS organi- zation that fights such injustices as rape and sex trafficking. FURTHER READINGS MacKinnon, Catharine. 2006. Are Women Human? And Other International Dialogues. Cambridge, Mass.: Harvard Univ. Press. ———. 2005. Women’s Lives, Men’s Laws. Cambridge, Mass.: Harvard Univ. Press. ———. 2003. Sex Equality: Sexual Harassment. New York: Foundation Press. ———. 2001. Sex Equality: Rape Law. New York: Founda- tion Press. ———. 1993. Only Words. Cambridge, Mass.: Harvard Univ. Press. ———. 1989. Toward a Feminist Theory of State. Cam- bridge, Mass.: Harvard Univ. Press. MACPHERSON V. BUICK MOTOR CO. A famous 1916 New York Court of Appeals decision, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, expanded the classi- fication of “inherently dangerous” products and thereby effectively eliminated the requirement of privity—a contractual relationship between the parties in cases that involve defective products that cause personal injury. The Buick Motor Company manufactured automobiles that it sold to retailers who, in turn, sold them to consumers. The plaintiff, Donald MacPherson, bought a car from a dealer and was subsequently injured when the car collapsed during a drive. The accident was due to a defective wheel, which the defendant, Buick, did not make but purchased from another manufacturer. Evidence indicated that the defect could have been discovered by reasonable inspection, but none took place. The plaintiff sued the defendant for his personal injuries, but the defendant claimed that it was not liable for the wheel manufacturer’s NEGLI- GENCE . The state trial and intermediate appellate courts found for the plaintif f, and the defendant appealed to the Court of Appeals, the highest court of New York. The court narrowed the issue to whether the defendant owed a duty to anyone but the retailer to whom it sold the car. In a majority opinion written by BENJAMIN CARDOZO , the court affirmed the judgment for the plaintiff. Because the defendant was a manufacturer of automobiles that, if defective, are inherently dangerous by virtue of their existence, it had a responsibility for the finished product, which included testing its various parts before placing it on the market for sale. The manufacturer could not avoid liability based upon the fact that it purchased the wheels from a reputable manufacturer, because it had a duty to inspect the car, which it failed to do. The defendant argued that because poisons, explo- sives, or comparable items that are normally used as “implements of destruction” were not involved, there was no “imminent danger” to the plaintiff’s life. There was therefore, no basis for the imposition of liability upon a manufac- turer to a third person, who was not a party to the contract between the manufacturer and seller of the dangerous product. The court rejected this argument, reasoning that if a product when negligently made poses a danger of personal injury, then the product is “a thing of danger,” because injury is a foreseeable consequence of its use. Because the car had room for three persons and the retailer who bought the car from the manufacturer planned to resell it, ultimately to the plaintiff, it could be expected that injury could occur to persons who did not purchase the car directly from the manufacturer. The failure of the defendant—the manufacturer of the finished product for sale to the public— to inspect the car, and in light of the other factors mentioned, rendered the company liable to the plaintiff who was not in privity with it. The rule of MacPherson v. Buick Motor Co. that eliminated the need for privity between a manufacturer and an individual suffering personal injury from a defectively made product GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MACPHERSON V. BUICK MOTOR CO. 419 became the majority rule in the United States and one of the fundamental principles of the law of PRODUCT LIABILITY. v MACVEAGH, ISAAC WAYNE Isaac Wayne MacVeagh served as U.S. attorney general from March to October 1881. His app- ointment was short because of the assassination of President JAMES GARFIELD early in the president’s term of office. MacVeagh resigned soon after Garfield’s death so that President CHESTER A. ARTHUR could select his own attorney general. MacVeagh was born on April 19, 1833, in Phoenixville, Pennsylvania. He attended school in Pottstown, Pennsylvania, before entering Yale College, where he graduated in 1853. He studied law in West Chester, Pennsylvania, and was admitted to the bar in 1856. In 1859 he became district attorney of Chester County, Pennsylvania. During the Civil War, MacVeagh served as an infantry captain and as a major in the cavalry. He was forced to resign from the military because of ill health. He resumed his position as district attorney, but he also became active in REPUBLICAN PARTY politics. He was appointed U.S. ministe r to Turkey in 1870. The following year he returned to Pennsylvania and waged a failed campaign to win a U.S. Senate seat. In 1877 President RUTHERFORD B. HAYES selected MacVeagh to direct an organization, subsequently known as the MacVeagh Commis- sion, to arbitrate political differences in Louisi- ana. The actions of the commission hastened the removal of federal troops from the area and ended the last vestiges of Reconstruction in the South. President James Garfield appointed him attorney general on March 5, 1881, but MacVeagh had little time to perform his duties. Garfield was shot on July 2, 1881, after only four months in office, at the railroad station in Washington, D.C., by Charles J. Guiteau, a disappointed office seeker. For 80 days the president lay ill and performed only one official act—the signing of an EXTRADITION paper. On September 19, 1881, Garfield died. MacVeagh submitted his resignation on October 24, 1881. In 1882 MacVeagh decided to join the DEMOCRATIC PARTY. In 1893 President GROVER CLEVELAND , a Democrat, appointed MacVeagh minister to Italy, a post he held until 1897. ▼▼ ▼▼ Isaac Wayne MacVeagh 1833–1917 18251825 18751875 19001900 19251925 18501850 ❖ 1833 Born, near Phoenixville, Pa. ◆ 1853 Graduated from Yale College ◆ 1856 Admitted to Pennsylvania bar 1861–65 U.S. Civil War 1859–64 Served as district attorney of Chester County, Pa. 1862–63 Served in Union Army 1870–71 Served as emissary to Turkey ◆◆ 1881 Served as U.S attorney general under President Garfield 1877 Directed MacVeagh Commission, which led to end of Reconstruction 1893–97 Served as minister to Italy ◆ 1903 Appointed chief counsel for United States at the Hague Tribunal during Venezuelan loan repayment dispute ❖ 1917 Died, Washington, D.C. 1914–18 World War I Isaac W. MacVeagh. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 420 MACVEAGH, ISAAC WAYNE Toward the end of his career, MacVeagh served as chief counsel for the United States at the HAGUE TRIBUNAL during a dispute involving Venezuela’s repayment of loans to several countries. MacVeigh died on January 11, 1917, in Washington, D.C. FURTHER READINGS “Isaac Wayne MacVeagh (1881): Attorney General.” 2009. Miller Center of Public Affairs, Univ. of Virginia. Available online at http://millercenter.org/academic/ americanpresident/garfield/essays/cabinet/353; website home page: http://millercenter.org (accessed September 6, 2009). Justice Department. 1985. Attorneys General of the United States, 1789–1985. Washington, D.C.: Government Printing Office. Available online at http://www.usdoj. gov/ag/attygeneraldate.html; website home page: http:// www.usdoj.gov (accessed July 8, 2009). “MacVeagh Family Papers, 1833–1950. Philadelphia, PA: The Historical Society of Pennsylvania. v MADISON, JAMES James Madison was the fourth president of the United States, serving from 1809 to 1817. Before achieving the nation’s highest office, he participated in the Virginia Constitutional Convention; was a delegate to the CONTINENTAL CONGRESS ; drafted a proposal for the U.S. Consti- tution; supported ratification of the Constitution, through The Federalist Papers, written with ALEXANDER HAMILTON and JOHN JAY; served in the House of Representatives; helped write the BILL OF RIGHTS ; and was Thomas Jefferson’s SECRETARY OF STATE . Born March 16, 1751, in Port Conway, Virginia, Madison was the first of 11 children in his family. His father, James Madison Sr., was the wealthiest landowner in Orange County, Virginia, and provided Madison with a stable and comfortable upbringing. Eleanor Conway Madison, his mother, was an affectionate woman who gave the family emotional support throughout her 98 years of life. Madison grew up on an isolated plantation in Montpelier, Virginia. As a teenager he attended school in King and Queen County, studying logic, philosophy, mathematics, astronomy, and French, among other subjects. Although Madi- son suffered from ill health during much of his youth, he developed a reputation as an intense and ambitious student at the College of New Jersey (now Princeton University), which he attended from 1769 to 1772. By 1774 it was becoming clear to many observers that the differences between the colonists and the British government could not be resolved peacefully. During that year Parliament passed the Coercive Acts, which closed the Boston Port, restricted town assem- blies, and authorized British authorities to house their troops in private colon ial resi- dences. In September 1774 the First Continental Congress convened to discuss the emerging crisis with Great Britain. Unlike many colonists, who were reluctant to take any radical measures before Parliament could respond to the petition of grievances drafted by Cong ress, Madison favored immediate military preparations. As Madison became more politically vocal, he became more politically active. In Dec ember 1774 he was elected to the Orange County Committee of Safety, one of many colonial bodies formed to carry out congressional mandates such as the American boycott of English goods. In October 1775, six months after the Revolution began in Lexington and Concord, Madison was commi ssioned a colonel in the county militia. In 1776, at age 25, he was elected as a delegate to the Virginia Provincial Convention, where he helped draft Virginia’s constitution. James Madison. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION MADISON, JAMES 421 In May 1776 the Vir ginia Provincial Con- vention, later known as the New House of Delegates, instructed its representatives at the Second Continental Congress to draft a decla- ration of independence, negotiate foreign alli- ances, and complete the U.S. ARTICLES OF CONFEDERATION . The Articles of Confederation empowered Congress to govern certain areas of national concern, including foreign policy. The several states retained power to govern most other issues within their own borders. In the New House of Delegates, Madison forged a friendship with Jefferson that would leave an indelible imprint on U.S. law and U.S. history. Jefferson and Madison shared a love for books, ideas, and solitude. Jefferson had authored the Declaration of Independence, and Madison would be considered the architect of the U.S. Constitution. But whereas Jefferson was idealistic and impetuous, Madison was more realistic and rational. Although Madison was eight years younger than Jefferson, his thoughtful temperament often helped palliate the mercurial Jefferson. From 1777 to 1779, Madison served as a cabinet member for Jefferson, who was the governor of Virginia. In December 1779 Virginia chose Madison as one of its five delegates to the Continental Congress. Earning respect for his sober and methodical approach to lawmaking as well as his intellectual prowess, Madison helped Congress pass a revenue measure that rescued the fledgling nation from BANKRUPTCY. Over the next three years, Madison learned how to shape an agenda and to achieve results through compromise. On April 15, 1783, Congress ratified a peace treaty with Great Britain that concluded the Revolutionary War, and won U.S. indepen- dence. This year also marked the end of Madison’s tenure with the Continental Con- gress. After returning home to Virginia, Madi- son was elected by the voters of Orange County to the state legislature in 1784. During the 1784 fall session, the Virginia assembly approved an act to incorporate the Episcopal Church, and postponed action on another bill that sought to subsidize Christianity by levying a tax on behalf of teachers who taught this religion. In response to this proposed bill, Madison anonymously published a short leaflet entitled Memorial and Remon- strance against Religious Assessments. This leaflet called for a separation of church and state, denounced government aid to religion, declared the equality of all religions, and articulated a general liberty to worship according to the dictates of one’s conscience without fear of persecution. Many copies of the leaflet were distributed to the state assembly in October 1785, along with supporting signatures, which helped influence enough legislators to defeat the Christian subsidy. The following year Madison joined Hamil- ton in urging Congress to summon a national convention at Philadelphia to draft a federal constitution that would replace the Articles of Confederation. Under the Articles of Confeder- ation, Congress had no power to regulate commerce. As a result the 13 states engaged in a series of trade wars with each other. Many ▼▼ ▼▼ James Madison 1751–1836 17501750 18001800 18251825 18501850 17751775 ❖ 1751 Born, Port Conway, Va. ◆ 1772 Graduated from the College of New Jersey (now Princeton) 1779–83 Represented Va. in the Continental Congress ◆ 1776 Participated in the Va. Constitutional Convention 1775–83 American Revolution ◆ 1787 Wrote the Virginia Plan, basis for U.S. Constitution adopted by Constitutional Convention 1789 U.S. Constitution in effect; Madison drafted amendments to Constitution that became the Bill of Rights ◆ 1789–97 Served in U.S. House ◆ 1803 Supreme Court established its right of judicial review of acts of Congress in Marbury v. Madison 1812–14 War of 1812 1809–17 Served as fourth president of the United States 1801–09 Served as secretary of state under Jefferson 1826–34 Served as director of the University of Virginia ❖◆ 1840 Madison's notes as unofficial reporter at the Constitutional Convention published 1836 Died, "Montpelier" Orange County, Virginia GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 422 MADISON, JAMES states imposed discriminatory taxes and regula- tions on goods imported from other states, and some states refused to import any goods from neighboring states. Also under the Articles of Confederation, Congress had no power to tax. When Congress requested money to pay for the public debt and the Continental Army, the states often failed to respond. Consequently, the national debt grew and the Continental Army suffered a rash of desertions. Congressional ability to obtain credit dwindled. Madison observed that the 13 states would be in a precarious and vulnerable position if the country were required to defend its borders against foreign invas ion. Congress was the country’s only federal government body; the Articles of Confederation did not provide for an EXECUTIVE BRANCH to enforce congressional will, or a judicial branch to resolve disputes. This single body was virtually powerless to do anything about out- breaks of rebellion that were becoming more frequent in the states. For example, it offered no reasonable resolution for SHAYS’S REBELLION of 1786, an insurrection of nearly two thousand farmers who were protesting Massachusetts’s land foreclosure laws. Fifty-five delegates representing 12 states attended the Constitutional Convention during the summer of 1787. Reaching Philadelphia on May 14, Madison was the first delegate to arrive from any state other than Pennsylvania. Busi- ness would not begin until May 25, when a quorum of seven states would first be present. Madison seized the intervening 11 days to draft a 15-point proposal that formed the under- pinnings of the U.S. Constitution. Known as the Virginia Plan, this proposal presented a radical departure from the Articles of Confederation. In it, with help from the other Virginia delegates, Madison suggested a constitutional system comprising a strong centralized federal government with three branches: executive, legislative, and judicial. The sovereignty granted to each branch would be limited by the sovereignty granted to the other two branches and by the concurrent sovereignty retained by the states. This system of checks and balances had no predecessor in history. The Virginia Plan provided the blueprint for a bicameral (two-chamber) legislature, with an upper chamber known as the Senate and a lower chamber known as the House of Representatives. As originally conceived, the plan gave Congress the indefinite power to legislate in all “cases to which the states are not competent.” State governments would retain authority to legislate local concerns, and to create constitutional systems of their own. However, Madison made clear that the federal government would be supreme, and that any state law in contravention of the U.S. Constitu- tion, a congressional enactment, or a federal treaty would be void. At the same time, Madison’s proposal for a broad grant of undefined congressional power was jettisoned. Madison argued that Congress should be given more legislative authority than state legislatures because state laws had been largely responsible for the recent trade wars and farmer rebellions. However, Madison was unable to explain why the federal government, made up of rep resentatives from the several states, should be trusted to exercise its lawmak- ing powers any more prudently than had the state governments. Thus, the delegates persuaded Madison that the powers of the executive and legislative branches must be limited to those expressly enumerated in the Constitution. However, one of those enumerated powers, Congress’s power to make all laws “necessary and proper” in the performance of its legislative function, has provided a broad constitutional basis for federal lawmaking similar to that originally envisioned by Madison. The NECESSARY AND PROPER CLAUSE was only one of the constitutional provisions vigorously defended in The Federalist Papers, a series of essays written by Madison, Hamil ton, and Jay that explained and promoted the system of government created by the Philadelphia con- vention. Called The Federalist Papers because proponents of the federal Constitution were known as Federalists, this collection of essays was circulated among the delegates to the state ratifying conventions, in an effort to win their support. Opponents of the federal Constitution, known as Anti-Federalists, published and circu- lated essays and leaflets of their own. Some Anti-Federalists eventually lent their support to the ratification movement when Madison and other Federalists promised to draft a bill of rights that would protect individual liberty and state sovereignty from encroach- ment by the federal government. In 1788 the BUT WHAT IS GOVERNMENT ITSELF , BUT THE GREATEST OF ALL REFLECTIONS ON HUMAN NATURE ? I F MEN WERE ANGELS , NO GOVERNMENT WOULD BE NECESSARY .IF ANGELS WERE TO GOVERN MEN , NEITHER EXTERNAL OR INTERNAL CONTROLS ON GOVERNMENT WOULD BE NECESSARY . —JAMES MADISON GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MADISON, JAMES 423 Constitution was adopted by the states. The next year Madison was elected to the House of Representatives, where he subsequently repre- sented Virginia for eight years. During the First Congress, in 1789, Madison drafted 12 amend- ments to the U.S. Constitution, ten of which were ultimately adopted by the states, with some subtle changes in language, and now stand as the Bill of Rights. Neither the Constitution nor the Bill of Rights expressly mentions the power of JUDICIAL REVIEW , which is the prerogative of state and federal courts to invalidate laws that violate a constitutional provision or principle. Article VI declares that the federal Constitution “shall be the supreme Law of the Land.” Yet it does not state whether the executive, legislative, and judicial branches possess the power to nullify laws that are unconst itutional. Although the Framers of the Constitution recognized that courts had traditionally exercised the authority to interpret and apply the law, the power of judicial review had never been a clearly established practice in Anglo-American LEGAL HISTORY . In the landmark case MARBURY V . MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), the U.S. Supreme Court established the power of judicial review in the United States. While serving as secretary of state to President Jefferson (1801– 1809), Madison was sued by William Marbury, a judge who had been appointed to the federal bench during the waning hours of President John Adams’s administration. Marbury argued that Madison had violated his duties as secretary of state by failing to deliver to Marbury a commission that he needed to complete his appointment to the federal judiciary. Although the Supreme Court agreed that Madison had wrongfully withheld the commis- sion, it denied Marbury’s claim because it had been brought pursuant to an unconstitutional provision of a federal statute. By invalidating that provision, the Supreme Court establi shed the power of judicial review. When Madison learned of the Supreme Court’s decision, he criticized the judicial branch for attempting to usurp congressional lawmaking power. Madison said that to allow unelected federal judges to overturn legislation enacted by the popularly elected branches of government makes “the judicial department paramount in fact to the legislature, which was never intended, and can never be proper.” Madison changed his mind on this issue near the end of his life. As an elder statesman attending the Virginia Constitutional Convention in 1829, and as a director for the University of Virginia from 1826 to 1834, he assailed the nullification theories of southern legislators who proclaimed the prerogative to ignore federal laws in certain circumstances. Only the judiciary, Madison concluded, had the power to declare federal laws unconstitutional. Serving as the fourth president of the United States (1809–17), Madison revealed the same propensity to reevaluate strongly held beliefs in light of experience. Earlier in his career, he had opposed the creation of a congressionally chartered national bank. He had initially believed that under no faithful interpretation of the Constitution was Congress authorized to establish a national bank. Yet, in 1816 Madiso n signed a bill that established the Second Bank of the United States, agreeing that it represented a constitutional exercise of co ngressional power. Popular acceptance of the First Bank of the United States had altered Madison’s perception. The WAR OF 1812 provided some of the best and worst moments of Madison’s presidency. During the low point of the war with Great Britain, English troops occupied Washington, D.C., and burned down the White House. Despite other such humiliating moments for the U.S. military, Madison’s troops rebounded in 1815 and soundly defeated the British in the final battle of the war at New Orleans. Although Americans gained nothing tangible from the war, they had successfully defended their soil. The perseverance and resolve demonstrated by Madison and his troops during the war proved to be an important step in the matura- tion process of the young republic. By winning the War of 1812 and defeating British troops for a second time in less than half a century, JOHN ADAMS remarked, Madison brou ght more glory to the United States than any of his three predecessors in office. Madison also unified the country like never before in its short history, allowing his successors to build upon the emerging national identity. After the close of his second term, Madison retired from public office and returned home to Montpelier, Virginia, where he devoted long hours to farming and became president of the local agricultural society. Madison welcomed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 424 MADISON, JAMES retirement, seeing it as an opportunity to renew his passion for reading and resume his corre- spondence with THOMAS JEFFERSON. He died on June 28, 1836. RESOURCES Abney, David L. 1994. “Constitutional Interpretation: Moving toward a Jurisprudence of Common Sense.” Temple Law Review 67. Bailyn, Bernard. 1977. The Great Republic: A History of the American People. Lexington, MA: Heath. Goldwin, Robert A. 1998. From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution. Washington, D.C.: AEI Press. Hawkins, Michael Daly. 1999. “Mr. Madison, Meet the Modern Judiciary & its Critics.” Oklahoma City University Law Review 24 (spring-summer). Levy, Leonard W. 1988. Original Intent and the Framers’ Constitution. New York: Macmillan. Meyers, Marvin, ed. 1981. The Mind of the Founder: Sources of the Political Thought of James Madison. Rev. ed. Hanover, NH: Brandeis Univ. Press. Rakove, Jack. 2006. James Madison and the Creation of the American Republic. Upper Saddle River, NJ: Pearson. ———. 2002. “Judicial Power in the Constitutional Theory of James Madison. William and Mary Law Review 43 (March). Reiss, David. 2002. “Jefferson and Madison as Icons in Judicial History: A Study of Religion Clause Jurispru- dence.” Maryland Law Review 61 (winter). Scott, James Brown. 2009. James Madison’s Notes of the Debates in the Federal Convention of 1787. Charleston, SC: BiblioBazaar. Wills, Garry. 2002. James Madison. New York: Times. Wood, Gordon S. 1998. The Creation of the American Republic, 1776–1787. Chapel Hill: Univ. of North Carolina Press. CROSS REFERENCES Bank of the United States; Constitution of the United States; Federalism; Federalist Papers; Virginia Conventions. MAGISTRATE Any individual who has the power of a public civil officer or inferior judicial officer, such as a JUSTICE OF THE PEACE. The various state judicial systems provide for judicial officers who are often called magistrates, justices of the peace, or police justices. The authority of these officials is restricted by statute, and jurisdiction is com- monly limited to the county in which the official presides. The position may be elected or appointed, depending on the governing state statute. The exact role of the official varies by state; it may include handling hearings regard- ing violations of motor vehicle codes or breaches of the peace, presiding over criminal preliminary hearings, officiating marriages, and dispensing civil actions involving small sums of money. U.S. magistrates are judicial officers appointed by the judges of federal district courts pursuant to the United States Magistrates Act (28 U.S.C.A. §§ 631 et seq.), enacted in 1968. This act was designed to reduce the workload of federal courts by replacing the old system of U.S. commissioners with a new system of U.S. magistrates. U.S. magistrates can perform more judicial functions than could U.S. commissioners. Federal magistrates may be assigned some, but not all, of the duties of a federal judge. They may serve as special masters (persons appointed by the court to carry out a particular judicial function on behalf of the court), supervise pretrial or discovery proceed- ings, and provide preliminary consideration of petitions for postconviction relief. U.S. magis- trates generally may not decide motions to dismiss or motions fo r SUMMARY JUDGMENT, because these motions involve ultimate decision making, a responsibility and duty of the federal courts. However, if all the parties to a case agree, a federal magistrate may dec ide such motions and may even conduct a civil or misdemeanor criminal trial. Federal magistrates are not permitted to preside over felony trials or over jury selection in felony cases. MAGNA CARTA On June 15, 1215, King John (1199–1216) was surrounded on the battlefield at Runnymede by a cordon of England’s most powerful barons, who demanded royal recognition for certain liberties and legal procedures they enumerated in a w ritten document that became known as the Magna Carta. Contained in the Magna Carta’s 63 chapters are the seeds of trial by jury, due process, HABEAS CORPUS, and equality under the law. The Magna Carta was reissued three times during the reign of Henry III (1216–72) with some minor alteration, and confirmed by the Crown more than 30 times thereafter. Sometimes called the Great Charter or Magna Charta, the Magna Carta is widely considered to be the foundation of the English and U.S. constitutional systems, representing the first time the often tyrannical power of the monarchy was restrained by law and popular resistance. The Magna Carta was cited by SIR EDWARD COKE , esteemed Eng lish jurist and member of the House of Commons, in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MAGNA CARTA 425 opposition to the monarchy’s assertion of absolute power in the seventeenth century. During the American Revolution, colonists relied on the Magna Carta when they convened the First CONTINENTAL CONGRESS to restore the rights lost under the coercive legislation of Parliament. Almost from its inception, the Great Charter has been imbued with two separate meanings, one literal and the other symbolic. The literal meaning is reflected by the original understanding of the Magna Carta in the thirteenth century; the symbolic meaning was developed by subsequent generations, which interpreted its provisions in light of a changing political landscape. The literal meaning was associated with the concrete rights enforced by the barons against the monarchy; the symbolic meaning became associated with the RULE OF LAW , an impartial system of justice, and government by the consent of the people and their representatives. To understand the sym- bolic importance attached to the Magna Carta, one must view the literal meaning in its original context. The Magna Carta is the product of three competing legal jurisdictions: royal, ecclesiasti- cal, and baronial. The royal system of justice maintained jurisdiction over all matters that affected the monarch’s peace, directly or indi- rectly. Royal courts heard disputes at a central location in Westminster, and royal itinerant judges traveled locally to dispense the monarch’s justice to communities across England. The Catholic church, with the pope presid- ing as the spiritual head in Rome, ran the ecclesiastical courts. These courts maintained jurisdiction over the discipline of the church’s clergy, religious offenses such as heresy, and most moral, marital, and testamentary matters. Baronial courts were governed by barons, powerful men who were given titles of dignity by the Crown and who held large parcels of land, known as manors, from the monarch. Each baron, as lord of his manor, was invested with the authority to hear disputes involving his tenants, men and women who agreed to work the land in exchange for shelter and security. John alienated both the ecclesiastical and baronial jurisdictions during his reign as king, converting them into adversaries. The first ten years of John’s reign were consumed by controversy with the church. John considered the pope to be subordinate to the Crown and treated the archbishop as a mere civil servant. The church, however, considered itself to be a separate and independent sovereign that had shared power with the Crown since the time of Henry I (1100–1135). Henry I and the church had agreed that the nomination of bishops in England would tacitly remain with the king. But the pope retained power to confirm bishops by conferring upon them the honorary symbols of their title, the spiritual staff and ring. The agreement between Henry I and the church provided no resolution for the contro- versy between King John and Pope Innocent III at the outset of the thirteenth century. The controversy began when Innocent III rejected John’s candidate for archbishop of Canterbury and substituted his own choice, Stephen Lang- ton, a man of superior “moral and intellectual greatness” (Trevelyan 1982, 146). John res- ponded by confiscating the church’sproperty in England. The papac y, whose power had Part of the Magna Charta, signed by England’s King John in 1215. The document became a model for written contracts between governed and governed, such as the U.S. Constitution. BRITISH MUSEUM COLLECTION GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 426 MAGNA CARTA grown as a result of its compromise with Henry I, subsequently undertook a series of steps to damage the Crown’s prestige and credibility. The pope excommunicated King John, suspended religious sacraments in England, and declared the English empire a forfeit from God. Facing growing pressure from the church and increasing unpopularity among Catholics within his own country, John surrendered England to the papacy, receiving it back as a fief, which meant the Crown was now subordi- nate to Rome and was required to pay homage to the pope. These royal concessions satisfied the pope and made him a cautious ally of the Crown. Archbishop Langton was determined to achieve similar concessions for the barons. The grievances voiced by the barons were quite different from those voiced by the church. The barons’ dissatisfaction stemmed from the manner in which the royal system of justice had been abused by King John. Prior to the reign of HENRY II (1154–89), ENGLISH LAW had comprised a loose collection of customs and traditions followed by a variety of ethnic groups scattered across the realm. Henry II created a centralized system of justice that emanated from London, which the monarch’s officials administered in a uniform manner to all English people in common. Although this “common law” estab- lished a body of rights and procedures by which all litigants appearing before the ruler’s courts would theoretically be treated the same, it also vested an enormous amount of power in the Crown. The tension separating ARBITRARY royal power from the principle of equality under the law erupted during the struggle between King John and his baronial magnates. King John regularly sold legal rights and privileges to the highest bidder, rewarded favor- ites, punished enemies, and otherwise adminis- tered justice in an erratic and unfair fashion. For a dispute to be heard by the royal courts, parties were required to pay the monarch fees, which varied from case to case depending on the circumstances. If the Crown was in need of emergency revenue—and it seemingly always was during the reign of King John—these litigation fees were increased commensurate with the urgency of a particular financial crisis. Litigants in good graces with the monarch typically paid lower court fees than litigants in disfavor. A defendant who requested the postponement or suspension of a legal matter was required to pay a greater fee than the plaintiff was charged. Such litigation fees, which were paid in all legal matters—civil, criminal, ma trimonial, and probate—simply enabled parties to assert their claims and defenses before the royal court. They did not guarantee a particular outcome, although the amount paid may have influe nced the outcome, and they bore no relationship to the pen alty or fine imposed on the losing party. Consequently, defendants who paid an exorbi- tant fee just to present an unsuccessful defense often faced fines of an equally outrag eous amount. Defendants who suffered incarceration for a wrongdoing were usually forced to pur- chase their freedom from the monarch. The manner in which the ruler enforced and collected royal debts was no less capricious. Litigants who could not afford to pay the legal fees set by the Crown frequently borrowed money from the ruler in order to pursue a particular right or remedy. The terms of such loan agreements were typically draconian. As collateral for these loans, John required the debtors to pledge their estates, PERSONAL PROPERTY, and sometimes family members. In one case, a debtor was forced to pledge his castle and four sons as collateral. On other occasions, friends and family members of the debtor were held hostage by the king until the loan was repaid in full. In some instances, the king simply forgave a loan because the debtor was a personal friend, had promised political favors, or had provided an invaluable service. In most instances, the invaluable service was military duty. During the thirteenth century, each baron was required to serve as a soldier in the monarch’s army, and provide the Crown with a certain number of knights for military service. A fine could be paid in lieu of the baron’s military service, and a tax, known as scutage, was then paid in lieu of the knights’ service. When King John launched a military campaign, he dramatically increased the fines and taxes for nonservice, and used these monies to pay mercenaries to fight his battles. Although King John dreamed of building an English empire through military conquest on the European continent, he was an utter failure on the battlefield. With each military loss, the miscellaneous economic de mands made by the Crown seemed less justified and more absurd. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MAGNA CARTA 427 . and member of the House of Commons, in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MAGNA CARTA 425 opposition to the monarchy’s assertion of absolute power in the seventeenth century. During the American. Constitution. BRITISH MUSEUM COLLECTION GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 4 26 MAGNA CARTA grown as a result of its compromise with Henry I, subsequently undertook a series of steps to damage the. Sex Equality, 2nd edition, published GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 418 MACKINNON, CATHARINE ALICE her attack on pornography, rape, and the sexual subordination of women. In 1998