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 />americanpresident/garfield/essays/cabinet/353; website
home page: (accessed September
6, 2009).
Justice Department. 1985. Attorneys General of the United
States, 1789–1985. Washington, D.C.: Government
Printing Office. Available online at oj.

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