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Ham Manifesto > Ham Themes > Flashcards

Ham Themes Flashcards

1
Q

What is the fundamental nature of power?

A

trying to get away with getting more while doing less

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2
Q

The admin state is trying to escape ____ through ___

A

constitutional pathways, extralegal methods

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3
Q

How does Constitution handle justice?

A

doesn’t define it, leaves us to seek in myriad of ways

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4
Q

What are two fundamental differing views on the nature of the Consti?

A

fear of injustice (hard edge protections and limits that can’t be adjusted in response to public opinion) OR hope of greater justice (malleable protections)

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5
Q

What are the three modes of governance Ham identifies?

A

Leg, Admin, Conditions

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6
Q

What is Ham’s fundamental take on rights?

A

less is more

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7
Q

Ham thinks that as rights expand __

A

they bump into practical realities that restrict rights

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8
Q

Mathews makes due process ___

A

flexible contextual standard

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9
Q

Why are rights turned interests more easily curtailed?

A

subject to compelling govt interest

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10
Q

How does Goldberg restrict rights?

A

say right to hearing before deprived of benefits but untenable to have jury trial everytime so not what you get

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11
Q

what happens to the balancing test in Hamdi?

A

now applies to constraints not just benefits

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12
Q

What are powers restricting rights?

A

compelling govt interest, public right, police power

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13
Q

Case about admin state as public right

A

Atlas Roofing

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14
Q

Mathews turns rights into ____

A

interests rather than limits on govt

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15
Q

How does Madison letter to Jefferson characterize purpose of BoR

A

for people to internalize rights as norms

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16
Q

When court says rights are contingent on compelling govt interest ___

A

people will come to accept it and further weaken rights (Korematsu)

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17
Q

How has freedom of religion been watered down?

A

freedom from constraints (prohibition on discrim) –> freedom to benefit equally from govt/from law (now subject to govt interest)

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18
Q

How has freedom speech been watered down?

A

freedom from ex ante constraints _–> freedom from ex post punishment so opens space for govt to limit ex post and then ex ante

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19
Q

What are the solutions to watering down rights?

A

Don’t make new rights OR distinguish between old and new

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20
Q

Problems with distinguishing between old vs new rights

A

would have to be candid about judicial activism, progressive judges couldn’t expand rights as much as they wish

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21
Q

How does Const structure protect liberty?

A

authority to act + affirmative prohibitions (BoR)

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22
Q

How does Const authority to act protect liberty?

A

enumerated, SoP, certain rights (jury, due process)

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23
Q

Sebelius Scalia dissent about structure

A

structure most important to Framers because did it first

24
Q

structure most important to Framers because did it first (who said)

A

Sebelius, Scalia dissent

25
Q

Structure itself is ___

A

protection

26
Q

Morrison Scalia dissent says

A

SoP to protect individual freedom

27
Q

How does Section 230 erode structural protection?

A

effectively regulates what is said online by cutting off recourse to those affected

28
Q

Legal realist view of law

A

law is what is says it is, might makes right

29
Q

Positivist view of law

A

command of the sovereign

30
Q

Ham view of law

A

obligations (more than coercion) bound to because of consent

31
Q

Because of Stuart monarchs, Framers drafted Const wary of ___ and ___

A

absolute power, extralegal pathways

32
Q

Why only bound by laws passed by Leg and adjudications of Ct?

A

what we consented to with Consti

33
Q

4 main ways admin state harms civil liberties

A

(1) violate due process by extrajudicial (2) violate right to jury (only in courts) (3) violate independent adjudicator (4) interfere with federalism/state law

34
Q

How does admin state interfere with federalism

A

Supremacy Clause - only Fed laws made in pursuance of Const trump state laws

35
Q

Admin state is bad for the ___ so can’t afford not to get rid of it

A

economy (too much regulation)

36
Q

3 ways admin state bad for democracy

A

laws made by unaccountable knowledge class that is homogenous, no sympathy for regional differences, dilute right to vote

37
Q

Admin state rose in response to ___

A

greater democratization

38
Q

Arguments for admin state

A

(1) practicality (2) need expert judges (3) ALJ unbiased (4) more judges dilute elite status (5) if exec power merely to execute laws then any action taken by Pres with Cong. authorization is exec power even binding rules

39
Q

Response to practicality of admin state

A

Cong. gridlock mostly political, even if slower okay because most regulation long term

40
Q

Response to need for expert judges

A

expertise not worth much

41
Q

Response to ALJ unbiased

A

decisions non binding and reviewable by agency heads

42
Q

Response to exercising exec power

A

strange to make quintessential leg action into exec, would require all agency officials with rule making power to be put under Pres control

43
Q

Solutions to Admin Threat (4)

A

Stop fictionalizing (call it admin power not law), replace ALJ with real judges, Judges do duty (bigger caseload + non-deference), Pres should order agencies to send rules to Cong. for adoption

44
Q

Locke role of Consti

A

without govt all equally free, govt can only get power over you with consent

45
Q

What were early state consti?

A

charters from Crown (not the people)

46
Q

Early state consti introduced ___

A

federalism and SoP

47
Q

Perquimans case result

A

hold judicial act unconsti (not just error) because gave law retrospective effect

48
Q

Perquimans case is an example of following ___

A

the law where it leads at high costs

49
Q

Quock Walker is an example of following ___ because Mass Const

A

law where it leads and popular, all men born equal and free

50
Q

Nondelegation doctrine is justified by ___

A

fiction of intelligble principle

51
Q

Why does Ham think delegation is bad?

A

Leg Vest Clause, evade structure of govt chosen by the people

52
Q

Ham thinks NP and CC doctrine mean ___

A

fed govt no longer one of enumerated powers

53
Q

Ham thinks exec power is ___

A

lawful force of the nation

54
Q

Atlas Roofing defines admin state as ___

A

public right trumping private right of jury

55
Q

three views of Exec power

A

(1) all govt by nature certain powers (2) useful powers can be implied by Consti (3) Consti says what we need

Ham Manifesto (13 decks)

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