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American Legal History Law School  Outline Powered By Docstoc
					AMERICAN LEGAL HISTORY OUTLINE What guidance does history give us in current context? The history of the law – how has the law developed How the law has influenced historical events? Many of the great issues in US society have been legal issues. I. A. THE BEGINNINGS OF AMERICAN LAW, TO 1760 EARLY CONSTITUTIONALISM IN AMERICA 1. The Stuart Conflict and the Glorious Revolution (1689): a. b. Monarchy increased its power during the 16 th century. By end of 17th century, had revolution, executed king, bloodlessly got rid of another king, invited new king to throne: 1) Henry VII or VIII and Elizabeth I: both absolutist in view but also both very powerful and the exercise of their power was not seen as tyranny. 2) Stuart line - took over in 1603 following Elizabeth's death: a) Stuarts believe in divine rights of kings – did not like Parliament. (1) James (I'm “a little god over men, sent by God to rule”) asserted divine right. b) Dispute arose over whether sovereign was subject to any legal restraint. (1) Charles I – civil war breaks out b/w Royalists (pro King) and Cromwell/Roundheads (pro-Parliament) – king captured and beheaded. (2) Cromwell rules for several years. c) Monarchy restored in 1660 (unconditionally) with Charles II (a Stuart) unclear what powers king and Parliament have. 3) James II (Catholic) came to throne: a) Catholics very small minority and deemed to be very threatening to Anglican Church. b) Attempted to do away with legal disabilities on Catholics. c) The Case of the Seven Bishops (1688): attempted to convict 7 bishops of seditious libel and lost – the public supported acquittal. Glorious Revolution: 1) Events: a) Glorious Revolution: James II flees England. b) William of Orange comes and agrees to be subject to certain Parliamentary conditions (permanence of Parliament, king subject to law, certain rights will be codified). 2) Effect: a) King had to accept and acknowledge/respect (1) that he was bound by law; and (2) the 1689 Bill of Rights. b) Represented triumph of English liberty over tyranny. c) Led to English Bill of Rights: (1) Significance:

c.

1

(a) (b)

English tradition = when liberties are threatened, rise up and protect liberties Those who sought to dispose of monarch needed political justification/ideology for what they did – based on John Locke – American Revolutionists will use these same ideas.

2.

Ancient Rights that American Colonists Asserted as English People: a. Colonists thought of themselves as “English people living abroad” – King was usurping their ancient rights as English people – think of these rights as part of English culture – English cultural tradition of protecting their rights against tyranny/bad kings – those in the American Revolution used this English tradition Magna Carta (p5): response to bad King John – nobility rebelled – made King John sign the MC – “or by the law of the land” recognized rudimentary concept of due process of law – government (king) is subject to the law – this was a radical idea. Ancient Rights: 1) Right to trial by jury (Magna Charta) 2) Right to due process of law (Magna Charta) 3) Right to petition the government (1689 Bill of Rights) 4) Right to oppose government (Magna Carta, Parliament versus Stuart Kings, Glorious Revolution) 5) Right to bear arms (1689 Bill of Rights) 6) Right to free elections - freely elect members of Parliament (1689 Bill of Rights) 7) Right to freedom of speech, and debates or proceedings in Parliament (1689 Bill of Rights) 8) Rule of law governs all people, even the king (Magna Carta) 9) Raising an army in times of peace is illegal (1689 Bill of Rights) 10) No excessive bail, excessive fines or cruel and unusual punishment (1689 Bill of Rights).

b.

c.

3.

Religious Liberty and Its Influence on American Law: a. Early Settlers Experiences in England (with civil strife and/or religious persecution) Reinforced Ideas of Magna Carta - Affected the Development of the Law in the Colonies 1) There were two competing theories (compact and pluralist theories) re: state established religion – these theories affected the evolution of law in the colonies. Compact Theory 1) Definition: create religious communities where God has called settlers to come to new world and establish religious community whose success will show that God's will is being done 2) John Winthrop's Model of Christian Charity (1629): a) "City on a Hill" theory - model of Christian living - called for unity b) People enter into covenant and subjugate individual interests to public interest c) Unity of public and religious communities 3) Massachusetts Bay Colony and The Laws and Liberties of Massachusetts (1648): a) Imagery of church and state so intertwined as to be inseparable

b.

2

b) c.

Civil authority's job is to uphold religious doctrine

Pluralist Theory: 1) Roger William’s The Bloody Tenet of Persecution (1644): a) Civil servants are not agents of religious community. b) Religious freedom demands the separation of church and state: (1) There should be no state-established religion. (2) Forced religion is counter-productive. (3) Religious freedom will preserve lasting peace. (4) Intersection of church and state would corrupt the church. c) Belief that tolerance will lead to religious conversion Other Theories: 1) The Fundamental Constitutions of Carolina - John Locke: a) Guarantee of religious freedom b) Guarantee of civil liberty 2) First Frame of Government - William Penn: a) Concept of balancing forces in government b) Popular virtue in sustaining free government 3) The New York Charter of Libertyes a) Jury of peers b) No taxation without consent c) Religious toleration

d.

4.

John Locke's Theories of Government are Reflected in Colonial Documents: a. b. Locke’s On Civil Government: 1) Written to justify Glorious Revolution Locke’s General Theory: 1) Man is born in a state of nature, free from impediments, with equal rights to all others: a) Right to retain all property (life, liberty) b) Right to punish breaches of law 2) Man in state of nature unable to full protect individual rights: a) Thus - men join together, in society, to better preserve their property by establishing laws, indifferent judges to execute the laws, etc. 3) Man relinquishes some individual rights (the equality, liberty and executive power they had in the state of nature) to join society (voluntary assent for this preservation of liberty and property): a) Notion of consent of governed - once there is consent, civil authorities can act for good b) Men consent/authorize the government to make laws that carry out the purpose of protecting the general welfare of the people c) In the absence of consent, government is illegitimate 4) Man does not relinquish all individual rights: a) That would be irrational b) Laws must be passed for good of all people c) This is notion of limited authority: man does not consent to laws that don't protect individual rights 5) Legislature is supreme. 6) If power given to government not exercised for good of people, people have right to remove consent:

3

a) b)

“[T]here remains still in the People a Supreme Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them.” People have the right to alter or remove legislature when they find that the legislature has acted contrary to the trust reposed in them by the people (if government tramples on their rights) – people can withdraw their consent.

c.

Locke’s Influence on American Political Thought: 1) This can be a powerful idea for revolution for American colonists: a) Especially since colonists are trying to justify their revolution in the eyes of the English people and Parliament. b) Early colonial documents deal with the notion that people voluntarily join society under collectively beneficial laws 2) Examples: a) Declaration of Independence (1776) b) Mayflower Compact (1620) c) Laws and Liberties of Massachusetts (1648)

5.

Colonial Documents: a. Aspects which reappear in the Constitution: 1) Religious freedom; separation of church and state a) Rhode Island Patent (1643) b) Fundamental Constitutionals of Carolina (1669) c) New York Charters of Libertyes (1683) 2) Due process; jury of peers; legislature a) New York Charters of Libertyes (1683) 3) Consent to govern 4) Representative democracy 5) Majority rule 6) Rights should be written down 7) Guarantee of civil liberty 8) Balancing forces in government 9) Jury of peers Aspects which were peculiar to the early colonial period – did not survive in Constitution 1) Theocratic government 2) Hereditary aristocracy 3) Slavery: shows inherent tension b/w government asserting liberty as basis for government and having to reconcile that with depriving certain individuals of liberty.

b.

6.

Reception of English Law was an Important Issue for the Colonists: a. b. Colonists carried with them only so much of the English law is was applicable to their own situation and condition Not all aspects of ancient common law of England are carried over to colonies – colonists wanted it both ways – rights of English people but not rights of English classes – lots of tension about what law is and whether it should be binding

4

c. 7.

Colonists have no obligation to accept all laws.

Hamilton's Legal Argument in Zenger is Considered to Reflect the Ideology that Would Later Support the Break with England: a. Very famous trial – equivalent of “media circus” 1) Hamilton makes very political, subversive doctrine 2) Hamilton says we will concede publication but prosecutor must prove this material is false – court should not apply ancient English law – court should allow defense of truth – only tyrannical government would not allow defense of truth. 3) Says English law has no meaning b/c they are Star Chamber precedents (kangaroo courts) – that’s like what they did in Nazi Germany Argument: we should not be bound by the English c/l principle that truth is not a defense to libel Emphasized the different social and economic bases of law b/w America and England Legal argument: 1) When a ruler of people brings his personal failings into his administration, and the people find themselves affected by them, either in their liberties or properties, all things said in the ruler's favor will not be able to stop people's mouths when they feel themselves oppressed Held: jury acquits Zenger- jury chose not to follow law. Significance: 1) Nature of this argument and the way it resonated with the public is very important – America is a different nation – what was good for England may not be good for American. 2) Explicit arguments for speaking up against oppression 3) Trial transcript was published as a book – re-circulated – took on mythological nature as first blow against yoke of British oppression. 4) Compare to other instances where litigants used courts to achieve legal change – make a statement (e.g., SBA, civil rights, etc).

b. c. d.

e. f.

5

B.

LAW AND COLONIAL SOCIETY 1. Themes: a. b. c. To what extent was the social order in England translated to colonies in America? What was not transferable? Difficult to treat 160 years as one period – the colonial period – a lot happened during this time period. What does reading old laws tell us? Mere presence/existence of law on books tells us something but not everything – who was law enforced against? Was there popular support for it? Law as a method of social control: 1) Law was only way to maintain status quo (i.e., primary power in white males) 2) Wage regulation controlled prices, wages and quality of output

d.

6

2.

Individual Rights and Group Status: a. Individual rights and legal position were determined by status of group person belonged to Property rights Yes but once married lost all prop rights No Political rights No Autonomy Yes Criminal Law Education Yes

Single women Married women
Husband owed wife certain financial support. Husband legally responsible for much of what wife did. Chastisement okay Free status passed to children. Involuntarily brought to US. Has all the bad of all the other groups + other really bad things Indentured status did not run to children

No

No

Possibly – depend on class status

Free blacks Enslaved blacks Indenture d servants

Yes – some prop rights No Yes

Very limited political rights No Yes – once they own property

Yes

More severe penalties

No

No Not until released – and master did not always honor this Not much during apprenticeshi p Intimately regulated by government Depends on class – usually servant to family More severe penalties

No Yes required

Apprentic es

Yes

Yes

Yes required

Poor Whites Children

Probably not No

Not unless owned land No

Probably not Not required

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3.

Slavery in Colonial Times: a. Generally 1) Slavery goes back to antiquity but what US did was novel because was racial stratification of the free/slave population. 2) What can we discern about slavery at this time? South Carolina Slave Code: 1) Rationale: slave Code is in response to 1739 slave revolt – law passed in atmosphere of fear. 2) What are legislators trying to do with this law? a) Codifies black slaves as chattel: means property law applies to slaves. b) Establishes hereditary rules: mother passes her slave status on to her children . (1) Rationale: white masters were usually the fathers and did not want children of master and slave to assert freedom (2) Presumption that all blacks, mulattos = slaves c) Want to prevent against insurrection/secret communications among blacks: thus, prohibit any kind of communication device or gathering of blacks (i.e., drums, reading, burning haystacks – p39) d) Want to prevent runaway slaves: slaves had to carry papers and get permission to travel 3) Anti-cruelty provisions: a) Code says that slaves must be clothed, fed and worked a maximum number of hours. b) Rationale: (1) Self-economic preservation: wanted to keep their property in shape – but then do not need the law at all. (2) Christian morals: trying to appease their consciences - Bible said to treat servants well – this was a way to justify slavery on biblical terms – perceiving disconnect b/w Christian morals and slavery. (3) Social control: make sure that slavery is not so harsh that (a) Economic structure would not fall apart (b) Prevent insurrection (keep slaves minimally happy). c) Enforcement? (1) Not clear how to enforce this – neighbors could complain (2) Statutes inherently violent and enforced by cruelty and terror 4) Criminal Provisions: a) To poison - reflects white man's concern b/c slaves cooked food b) Destruction of products of the colonies - economic concern c) Tension with how law applies to slaves: (1) Treat slaves as property, apply property law to slaves v. owners want the criminal laws to apply to slaves. 5) Would slavery have been any different without the code? Did religious beliefs affect the way owners treated slaves more than the law?

b.

8

4.

Salem Witch Trials: a. b. c. Historical Facts What is a “witch trial”? Characteristics of Salem Witch Trials 1) No distinction b/w religious and legal authority 2) Controversy over what constitutes “due process” a) Spectral Evidence: (1) Need 2 witnesses for a capital crime and only 1 for a witch trial (2) Prior inconsistent statements go to credibility b) Cotton Mather’s Later Reflection: (1) Is this just a result of Mather’s guilt? (2) Advocated two witnesses, and/or a confession (3) Rudimentary notions of due process underlying Mather's analysis: (a) More credibility (b) Presumption that can be rebutted (c) Basically sets out relevant pieces of evidence, but which are not conclusive 3) Salem Witch Trials show that law was an important method of social control in Colonial America: a) Law was the only way to maintain the status quo, i.e. primary power in white males b) Wage regulation controlled prices, wages and the quality of output c) Reflect the primacy of law and justice in the community d) No distinction b/w religious and legal authority 4) Significance: a) Salem Witch Trials To show early forms of due process b) Reflects use of the legal system to achieve legitimate ends, however, the means were clouded by religious fears. c) Reflects a breakdown in the legal system - something went wrong procedurally. What is a “witch trial”? 1) Cases where the evidence is of a doubtful kind: a) Recovered memory b) Satanic covens 2) Where there really isn't a presumption of innocence: a) But why then is there some form of process? Modern Witch Trials 1) McCarthy hearings 2) Bork hearings

d.

e.

9

II.

LAW IN A REPUBLICAN REVOLUTION – 1760 – 1815:

A.

LAW AND THE AMERICAN REVOLUTION – P56-78 1. Background: a. b. c. d. e. Declaration of Independence is permissive doctrine – many people can pick it up and use it. 1763 - after Seven Year War (France v. England), Britain turned its attention to the colonies England had been financially drained from the war so they started collecting taxes from the colonists – divide starts to emerge England used the army to enforce these taxes Acts which caused the most controversy 1) Writs of Assistance: continuous search warrants used to investigate mostly for smuggling 2) Sugar Act of 1764: reinstatement of old customs duty that had never been previously enforced, imposed a tax on molasses and establishes an enforcement system permitting trial w/o juries in admiralty courts (anywhere in the colonies) 3) Stamp Act: requires that the tax stamps be used on virtually all public documents in the colonies Organizing idea = taxation without representation

f. 2.

Underlying Philosophies of Independence: a. William Blackstone - Imperial Constitution (orthodox view) - 1765 1) Blackstone’s view of English common law as applied to colonies a) Colonies are conquered land, not uninhabited land b) Colonists did not take all rights of English citizens with them they only had the rights allowed to them by Parliament c) Parliament has plenary authority in legislative field: there are no constitutional limits (internal or external checks) on its authority to pass laws d) This excerpt raises question of risks and dangers associated with complete legislative autonomy. 2) Disregards Locke's theory on the people’s right to overthrow the government if the government acts unjustly: Blackstone dismisses this idea out of hand "Rights of the British Colonies" - James Otis (moderate view) - 1764 1) Trying to find common ground b/w Blackstone’s idea and America’s Declaration of Independence. 2) Acts of Parliament are limited by natural law: if acts violate natural law, they are null and void. a) Power of Parliament is not absolute: they cannot legislate to deprive English people of their rights as citizens (i.e. no taxation w/o representation) just b/c they were not in England

b.

10

3)

theory: if Parliament passes a law, outside its authority, which violates rights, it will eventually come to its senses and relieve them of the unjust law; in the meantime, colonists must obey the law c) Writs of assistance were unconstitutional b/c they violated the ancient rights of English people Otis unwilling to take next step and break with England a) Wanted to let colonists know that citizens in England were hearing their cries - colonists were English and had the rights of English citizens. b) difference from radical theory: Parliament will see the light vs. removing colonists from Parliaments jurisdiction

b)

3.

Thomas Paine – Common Sense – 1776 - p65 a. Common Sense made revolution available to everyone 1) Paine uses street slang to get idea across to everyday people 2) Key idea = that ordinary people can understand and participate in government, do not need a king. 3) Paine was of different socio-economic class than other Founding Fathers. b. Rejects idea of hereditary monarchy: this is a powerful argument at this point of time because . . . 1) Very rude – calls William and Conqueror a “French Bastard” – appealed to views developing in colonies at this time Jefferson's Legal Theory as set forth in Declaration of Independence - 1776 a. b. Declaration of Independence – p66 Legal Justification for Break with England: 1) Inalienable rights Section a) That people have inalienable rights and when government becomes destructive to these ends, people have the right to alter or abolish it b) TJ writes as if break with England is matter of necessity, not a matter of choice (1) Colonies are compelled to break with England (this is evidenced by words he uses such as "necessary" "impel" "requires") - notion that America has been forced to break. (2) Thus, needs to list abuses by King 2) Abuses by King Section a) TJ says history of present King is history of tyranny (1) King has abused power and broken his agreement, therefore colonist no longer owe allegiance to the King and power rests with the people b) Focuses on King rather than Parliament Parts of Declaration which show the influence of Locke 1) There is social compact b/w government and people - government derives its power from the consent of the people 2) Thus, when government is not acting with consent of people, it is right and duty of people to rebel – take this last step with great caution.

4.

c.

11

a) 3) d.

THEME = withdrawing consent by the governed (constant revolution) No choice but to break – enemies in war and friends in peace.

Parts of Declaration which show the influence of Thomas Paine 1) List of abuses by the King: this enabled a psychological break from the theory of King as Protector 2) In American, the law is king Is this document part of our constitutional heritage? 1) Does it reflect what later appeared in US Constitution? 2) Remember this when we talk about US Constitution American Revolution “revolutionary”?

e.

f. 5.

Popular Sovereignty a. c. d. People are sovereign, so no one has to right to rule another without his consent power rests with people (phrased in Const as "authority of the People") Radical concept, but Jefferson makes it seem obvious Limitations on sovereign authority: (1) must be derived from the consent of the governed (2) powers must be for safety and welfare

6.

Persuasiveness of Declaration of Independence as a Legal Brief in Support of the Break with England a. b. It makes the break a matter of necessity, not choice Makes the radical seem obvious, for instance, all men are equal

7.

Pennsylvania Constitution a. b. Symbol of one form of government Purest form of revolutionary sentiment at the time – why was this considered too radical? 1) Too democratic a) Considered to be radical b/c of the fear of people becoming tyrants as opposed to one person 2) Broad suffrage: expanded voting rights to white males over 21 who pay taxes (universal white male suffrage) 3) Doors of assembly always open 4) Votes are printed: - Framers contemplating accountability 5) Term limits a) Underlying theory that people should be rotated in and out of government - accountability and new ideas 6) Very weak executive: a) Legislature picked Executive which was a council of two designed to give legislature more control 7) One house legislature a) Radical b/c no elite, i.e House of Lords 8) Judiciary branch

12

c. d.

Fear that b/c judiciary was accountable to legislature, and only accountable to the people through their choice of the legislature, that it should be more independent 9) Council of Censors: a) Function of reviewing whether PA Const had been preserved, whether the legislature was doing its job and that people's rights weren't being encroached Never enforced Federal Const adopts some of Penn Const points but rejected more of the radical concepts, i.e Fed Const gives less authority to legislature

a)

8.

Jefferson's Ideas for Social Reform in Virginia a. "Notes on the State of Virginia" 1) TJ’s experience as governor influenced his views on legislature 2) Thought legislature was too responsive to people – need to have some wisdom - Believed the legislature had too much power, and advocated more power in the executive - just has bad to have 103 democratic despots as one king despot. Jefferson's Views on Slavery - see supp 1) TJ actively opposition to slavery a) Anti-slavery b/c he thinks it is going to destroy the development of the nation (not because he thinks blacks deserve better) b) Acknowledges the inherent injustice in slavery 2) TJ’s views on blacks a) Writing to convince the Northern abolitionists that slavery is not as bad as they think b/c blacks are incapable of better b) Seems to contradict his notions in the Declaration, i.e. all men are created equal c) Says blacks are anthropological inferiority 3) What standard do we apply to assess TJ’s attitudes? Should we judge TJ by our standards or 18th century standards regarding slavery? Judge historical figures as we hope to be judged years from now.

b.

13

B.

REPUBLICAN NATIONAL CONSTITUTIONALISM – P78-93 1. Comments from Film a. ISSUE = whether Constitution reflected accurately the ideals of the Declaration of Independence b. Continuing Theme = how powerful should the federal government be? c. Madison drafts Bill of Rights and becomes its strongest supporter d. Constitution is one thing that we have that pulls all Americans together – it is the only adhesive – first people to make ideology the basis of its existence. e. Country founded on 3 pieces of paper – Dec of Independence, Constitution, Bill of Rights f. Theme: who is included in “we the people” Why was the period immediately following the Revolutionary War the most CRITICAL period? a. Historical events that influenced drafting of Constitution: 1) Despair – why did we fight this war if all we are going to now is bicker with each other (trade wars, economic depression, etc) – foreign enemies are waiting to invade us. 2) 1786 - Shay’s Rebellion: rebellion was easily put down but caused real concern among a number of framers that state governments were not strong enough and that federal government lacked ability to cope with internal security and generalized fear of mob rule. 3) Most individuals still considered their state their country 4) Economic concerns Crucial Constitutional Convention Debating Rule: 1) Members of Convention decided not to treat any vote as binding, no one bound to any previous position – permitted open debate, fluidity, allowed people to bring things up after they were resolved, allowed for compromise. Reaction to Constitution 1) People expected a mere revision of Articles of Confederation: were shocked by what Convention came up. Ratification 1) It was not a foregone conclusion that the Constitution would be ratified in fact, it seemed the Anti-Federalists were in the majority 2) Federalists and Anti-Federalists argued over what system would best protect the liberties won by the Revolution a) Federalists support the Constitution b) Anti-federalists oppose the Constitution: (1) Worried about creation of centralized power, did not think this met original ideals of the Revolution, Declaration of Independence (2) Worried that federal government will too big and too powerful (3) Want a bill of rights to protect individuals from big government

2.

b.

c.

d.

14

3) 3.

Central government proposed by Convention looked suspiciously like British government they just fought against. Need 9 states to ratify.

(4)

Articles of Confederation a. Policies underlying Articles of Confederation 1) Most framers did not think you could have a centralized government governing a large area – instead, agreed to a federation Why were they scrapped - defects in the Articles of Confederation 1) Clinging to the autonomy of the states: states retain all power not expressly delegated to the fed government 2) "League of Friendship": very ambiguous b/c more like an alliance then a national government and no enforcement mechanism 3) One state, one vote: tiny states got the same vote as the big states - not real representation 4) One state could veto anything 5) No authority to regulate commerce – so states were treating each other as foreign countries 6) Not much power in the central government: only express delegation a) no judiciary b) no taxing authority c) no separate executive d) no central army Similarities b/w Art of Confederation and Constitution Differences b/w Art of Confederation and Constitution

b.

c. d. 4.

Randolph Plan/Virginia Plan (big state plan): a. b. Madison was really architect of plan How does Randolph Plan respond to perceived defects in the Articles of Confederation? 1) Attempt to respond to the perceived defects in the Articles 2) Concerns a) Concern with possibility of foreign invasion, so provides explicit war plans 3) Components of Plans a) 2 house legislature (1) 1st house selected by people (represented people) accepted by the Constitution (2) ??? 2nd house selected by 1st house, out of people nominated by the state legislatures (represented states) concept accepted by Constitution b) Powerful central government (1) national judiciary (2) national executive chosen by legislature

15

(3) (4)

national legislature is given more central power than under the Articles, i.e. federal supremacy of the law over state law idea of judicial review in that the Council of Revision consisting of the Executive and some of the Judiciary should examine the acts of the Legislature -- dim notion of veto power

c.

Aspects of Randolph which were rejected in the Constitution 1) Rejected idea that 1st house chooses members of 2nd house 2) Rejected idea that President be elected by Legislature 3) Rejected idea that National Judiciary should be elected by the Legislature 4) Rejected idea of Council of Revision (instead put judicial review in hands of National Judiciary) 5) Rejected idea that National Legislature could veto state laws (now, the Court gets to do that). Which of the 2 plans was closest to ideals espoused at time of the Revolution? Patterson Plan (Small State Plan) 1) Concerns with Randolph Plan a) Small states thought Randolph Plan gave too much power to big states (state-state relationship) (1) Original design of legislature was that 1st house was determined by state population and 1st house chose members of 2nd house. b) Concern that national legislature would dominate the state legislatures (state-federal relationship) 2) Remedy: Senate represent states

d. e.

5.

Two Key Compromises a. The Great Compromise: the House of Rep will be proportional representation (satisfied Randolph Plan supporters and big states) and the Senate will be equal representation (satisfies NJ Plan supporters and small states) The Slavery Compromise 1) Interesting to note that framers of Constitution could not bring themselves to use the word “slave” in the Constitution – used many other words 2) Although slavery was raised as an issue, there was not any great debate at the Convention 3) What slave-holding states get: a) for representation purposes, slaves = 3/5 a person b) Art IV, s2, cl3: fugitive slave law (have to return the slaves) 4) What opponents of slavery get: a) Art I, s9: bans the importation of slaves after 1808 – people who do import slaves after that date will be taxed 5) Argument for Succession: a) Slave holding states argued that Constitution expressly endorsed and approved slavery, thus when federal government started to act against or undercut the institution of

b.

16

b)

slavery, then they violate the Constitution and breach the contract b/w the states and the federal government – we will look at this in more detail later. Many people thought slavery would wither and die for economic reasons b/c institution of slavery was more fluid in late 1700s before the invention of the cotton gin

6.

Factions According to Madison a. What does Madison mean by “factions”? 1) Federalist 10 2) Thinks of factions as farmers v. city people 3) Madison did not anticipate political party factions – this is unbelievable – will prevent major threat to government Theory = letting factions fight is best way to preserve liberty 1) Afraid of majority rule, b/c majority is just another faction 2) Human nature is that people will look out for their own interests so there will be competing interests 3) Union has a tendency to control and break the violence of faction by gridlock, i.e. no one controls b/c the 4) Process of lawmaking requires compromise and factions will balance each other 5) If there are too many factions (differing interests), no one will dominate How does Constitution reflect this idea? 1) Constitution structures the government in a way that controls factions (e.g., branches, term limits, 3/4 vote of states to amend Constitution) 2) Question: are these controlling mechanisms anti-democratic?

b.

c.

7.

Northwest Ordinance a. One of the most notable achievements of the Continental Congress, mainly because: 1) prohibited slavery and involuntary servitude in new territories north of Ohio (but there were still Fugitive Slave Laws) 2) rejected colonial status for new territories and set up provisions to make them equal states 3) reflected a movement away from property ownership = voting rights 4) reflected aspects of the Bill of Rights, such as religious liberty

8.

Anti-Federalists’ Theory a. b. See above comments Legal Theories Underlying Opposition to the Constitution 1) Subordination of the states (fear of loss of sovereignty), i.e. too much power in the central government 2) No adequate provision for representation of the people 3) No Bill of Rights Anti-Federalist Concern that Power of Judicial Review would make Judiciary Superior to the Legislature

c.

17

1) 2) 3) 4) 5)

Hamilton: no legislature can enact laws contrary to the Constitution Courts were designed to be an intermediate body b/w people and the legislature to keep the latter within the limits assigned to their authority Power of people (under the Constitution) are superior to both the Legislature and the Judiciary (judiciary is just defending the Constitution) Objections raised to ratification of Constitution are still reflected today – important political strains today

9.

Role of Judiciary under the Constitution - Federalist 78 (Alexander Hamilton) – p90 a. b. Constant theme throughout this course Federalist #78 was a response to anti-federalist who were concerned about national judiciary – think of this as political propaganda 1) Why did anti-federalists oppose the national judiciarya) Worried that having judiciary removed from demo control would result in oppression b) Having unelected judiciary construing the Constitution would result in tyranny c) Federalists feared a legislature would be the captive of politicians – faction dominated - legislature will just react to popular sentiment – oppress people d) Anti-federalist feared that unelected judges would undue what the legislature did for the people. Hamilton’s Views of Strengths of Federal Judiciary 1) Life tenure will protect people from encroachments by legislature 2) “always the least dangerous branch”: weakest branch, i.e. least likely to infringe on the rights of the people b/c it can never attack with success either of the other two branches 3) Independent judiciary a) Permanently appointed, therefore, no need to worry about reelection b) Factions have no effect b/c judiciary is insulated from the popular will 4) Danger of oppression comes, not from judiciary, but from legislature Defense of judicial review 1) Independent judiciary is part important when you have a Constitution of limited powers – need independent body to ensure legislature stays within its limited powers. 2) “Whenever a particular statute contravenes the constitution, Was Hamilton’s vision of judiciary accurate in first 50 years? Problem in that this theory seems anti-democratic 1) Internal contradiction in that legislature represents the people, but judiciary protects people from the 2) legislature 3) Answer: judiciary working with legislature and not controlling it

c.

d.

e. f.

18

10.

Reasons why Independent Judiciary was Necessary under the New Constitution a. b. Bypasses factions because election is permanent so don't need to worry about popular election Protect people from the Legislature

19

C.

LAW IN THE FEDERALIST ERA – P93-113 1. Generally a. b. 2. Read trial transcripts Washington (so revered) was a politician

Political Opposition a. b. c. Political parties were unknown Legitimate political opposition was an alien concept Fear of dissent (1) French Revolution (a) federalists were afraid that the same thing could happen in America (b) fear that Jefferson was like a French revolutionary -- aligned with bloodthirsty mobs (2) Whiskey Rebellion (a) tax protest which was put down by federal troops led by Hamilton (b) federalists said this shows what would happen if political opposition went unchecked (3) French War with America on the high seas (a) XYZ Affair: French attempted to solicit bribes to get favorable terms in the treaty Perceived government would be run by consensus, therefore, there was no contemplation of political parties Tension between the notion that the judiciary ought to protect the people and the notion that the judiciary should support the government * struggle over the role of the judiciary as a defender of individual rights or a defender of order and liberty Notion of strong national government vs. notion of state sovereignty (i.e. power to determine constitutionality of laws) attempt to impeach Federalist judges (i.e. Chase) Sedition Act strengthened the Jeffersonian republicans

d. e.

f. g. h. 3.

Political Views/Parties a. Federalists 1) Win first 3 elections and then disappear 2) John Marshall is only federalist with political power in the 19th century a) Washington, Adams (period of Alien & Sedition Acts), and Hamilton b) wanted power in central government c) President can do anything he is not expressly forbidden to do d) opposed to the French b/c wanted domestic order and stability e) wanted good relations with Great Britain f) wanted suppression of political opposition during wartime Republicans

b.

20

1) 2) 3) 4) 5) 6) 7) 4.

Jefferson and Madison less elite than federalists; more into agriculture relied on separation of powers theories favored concept of narrowly bound President wanted Congress to grant limited powers to President embraced French Revolution supported political opposition

Washington's Farewell Address (1796) – a. Washington’s goals while president: 1) Wanted to strengthen federal government 2) Ensure federal government not fall subject to rebellion 3) Shows government still not well established As Washington leaves office, concept of political party is starting to form. Washington’s Views on the Legitimacy of Political Parties in the New Republic 1) Washington’s Theory: a) Very wary of factions b) Once government is established, people owe it their support c) Opposition to government is disloyal and unpatriotic d) Thought opposition to a particular president was the same as opposition to the Constitution and the entire government e) As a federalist, did not perceive themselves as a faction, but as the government 2) Rationale for Washington’s Views: a) Worried that opposition to government could topple the government b) Avoid irregular factions by supporting the government -- a strong government is the best way to protect liberty because factions place the will of the few in front of the will of the nation c) Fear that mob might take over the government Washington’s Views As Contrasted with Views during the Revolutionary Period: 1) Criticism of Washington: a) Washington is threatened by both the opposition political party and the threat of rebellion b) But isn’t there a distinction b/w armed rebellion against the government and political opposition (e.g., objections to the formation of a bank, taxes, etc.) c) Remember there is no experience with two party systems 2) Revolutionary period: a) If the government abuses it powers, it can be overthrown b) It is a duty to oppose the government when it abuses its powers 3) Compared with Federalist 10: a) GW thinks that the government is not a faction, whereas Federalist 10 treats even the majority as a faction which sacrifices the public good to its ruling passion and interest

b. c.

d.

21

5.

The Alien and Sedition Acts a. Context of Passage 1) Adams was President 2) Adams barely beat TJ in 1796 3) Antipathic relationship with TJ 4) Battles on high seas b/w US and France – trying to avoid war 5) Jeffersonian Republicans starting to form as a political party 6) Federalists worried that US would be destroyed if TJ became president 7) Adams highly criticized in the press 8) Federalists’ goals in passing the Alien and Sedition Acts a) The two acts were supposed to put country on wartime footing b) Manifestation of the fear of factions c) Meant to combat political opposition to government (President or Congress) d) Used by the federalists to harass the Jeffersonian republicans The Acts Described 1) It is a crime to write false comment against the government Legal Justification for the Sedition Act 1) Federalists argue this was a liberal act because permitted truth as a defense. 2) It was wartime a) 20 yrs after outbreak of war with Great Britain b) 10 yrs after national elections 3) During a time when war with France seemed imminent a) Ended in 1801 (can be said was only used for wartime purposes) b) Notion that Republicans were radical French revolutionaries, so there was a fear that if there was war the c) Republicans would side with the French and they wanted to suppress any opposition to established government Sedition Act Prosecution 1) How did these prosecutions become ammunition against Samuel Chase in impeachment? a) Samuel Chase: a patriot – quite partisan about his view of government – later becomes symbol of Federalist judiciary - an ardent supporter of John Adams b) Chase’s ideas seem inconsistent with idea of popular sovereignty c) TJ comes into power through peaceful transition (1) Many Jefferson Republicans think they need to clean house of federalist judge (2) First go after Pickering (3) Then go after Chase – impeached by House and then stands trial in Senate (presided by Aaron Burr) (a) Chase argued that what he did may have been errors but were not grounds for impeachment (b) Do we think Chase should have been removed from office based on his role in the Sedition prosecutions.

b. c.

d.

22

d)

Why didn’t republicans in Senate finally pull the trigger (d) What is long term significance of Chase’s impeachment by House (e) That he was impeached (f) Or that he was not removed (g) If Chase had been removed, would every transition of power have resulted in removals of judges from the bench Other comments on Chase impeachment attempt: (1) As an ardent federalist, Chase was hated for his active participation in the Sedition Act prosecutions (2) 1805: Impeached for his alleged bias during the Sedition Act and treason trials (3) Was acquitted because he argued that although he had erred and overstepped his bounds, these were not impeachable offenses, i.e., high crimes and misdemeanors (4) Possible reason for acquittal was the fear that the judicial independence would be weakened if justice could be impeached for mere errors (5) Even though the Jeffersonian republicans had a majority in the Senate, many voted to acquit Chase (6) Effects of Acquittal (a) Strengthened judicial independence (b) Force judiciary into a less partisan role, i.e. Chase was never political again (c) Limited incoming administrations ability to get rid of justices

(c)

2)

Lyon’s Case: a) Lyon called the presiding judge (to testify to the President’s pomp and circumstance) to wanted to show the influence that the President had over the judiciary and to show that judge was NOT impartial. b) Lyons is convicted. c) Reelected to Congress while serving his prison sentence U.S. v. Cooper: a) Alleged sedition: Cooper had published a pamphlet critical of the Adams administration and the national judiciary. b) Cooper has to now prove his allegations were TRUE (1) Cooper tried to call Adams himself as a defense witness. (2) Cooper also trying to show such allegations will not destroy reputation c) Justice Chase’s charge to jury (1) Made a biased charge to the jury because he stated that the pamphlet was an attempt to "poison" the minds of the people to influence their minds against him in the next election (2) Chase’s Views on How Dissent in Government Should Be Managed:

3)

23

d)

Elitist underpinning, i.e., that the government knows best (b) Suggests that role of the judiciary is expansive Judiciary is protecting the government (c) Attempt to prop up a weak government Result of this case: (1) Insulate federal judiciary from this kind of pressure (2) Suggests that political dissent was not tolerated - but in reality it made the republicans speak out even more

(a)

4)

Callender Case: a) Alleged sedition: wrote a scathing book b) Context (1) All attorneys involved in case were rising political figures c) WHO gets to decide the constitutionality of the Sedition Acts? (1) D argues that jury should determine constitutionality. (a) Early form of jury nullification - b/c this was only way to win since Chase would not let D proof the truth of the alleged sedition and the D had violated the Act as it was interpreted. (b) D wants judge to yell at them – fits into larger argument that judge is partial and oppressive. (2) Government and Chase argues that judge gets to determine constitutionality. (a) Was Chase wrong about the law here? (b) This is pre-Marbury v. Madison: Marshall was actually in the courtroom during this trial. Inconsistent with Federalist Papers because they stressed the judiciary as a watchdog, i.e., a protection for the people from the government

5) e.

Could the Acts survive constitutional challenge today? 1) Historical significance of these acts is unnerving: this is the same Congress that passed the Bill of Rights – what does this say about what the Framers thought was or was not constitutional. 2) Many argue that it is more important that the Act was repealed than that it was enacted. CONSTANT THEMES 1) Federalist 10 – factions: assess validity/applicability 2) Federalist 78 – least dangerous branch: assess validity/applicability

f.

6.

Theories of Sovereignty Underlying the Virginia and Kentucky Resolutions a. b. These were direct responses to the Alien and Sedition Acts Compact theory: states entered into a compact with the federal government under which the Constitution 1) Delegated certain definite powers to the government BUT reserved the residuary mass of powers to their own self-government

24

2) 3) c.

When the fed government assumes undelegated powers, they are void and of no force Fed government was not the final and exclusive judge as to its delegated powers

Jefferson would not go to the length to say that he would not obey the fed government, but he thought that the threat of secession would prevent the federal government from passing unconstitutional laws Republicans had no power in the fed government, so this was a way of giving them power (i.e., in the state government) Significance of compact theory for Southern secessionists: theory that states are sovereign and have powers independent of those of the federal government and can nullify the compact if the fed government exceeds those powers Significance of compact theory to Brown opponents: Southern theory of Interposition to reason that states may interpose themselves between the federal government and the people

d. e.

f.

7.

Significance of Election of Jefferson a. 1800 Election: 1) Initially, the election resulted in a tie between Jefferson and Aaron Burr 2) Election was thrown into the House where each state had 1 vote – there were 19 tie ballots before federalists finally, although there were anti-TJ, decided that Jefferson was less of a risk than Burr as President. 3) No separate elections for President and VP, so 1st highest vote was Pres, 2d was VP Significance 1) Jefferson wins the Presidency and presides over the first peaceful transition of political power in the new Republic 2) Resulted in separate ballots for President and VP - 12th amendment 3) Effect on Marbury: federalist frantic to get as many federalist judges into office before “evil TJ” took over – John Marshall was one of the last judicial appointments. Jefferson's Inaugural Address 1) Seems inconsistent with his views in the Virginia and Kentucky resolutions 2) Views everyone as Republicans and Federalist whereas previously drew a large distinction between the two 3) Believes dissent should be tolerated but at the same time talks about preserving the Government 4) Succinct statement of his principles of democracy 5) Majority rule protection of minority 6) Notion of frugal government, and that the U.S. would be an agricultural nation

b.

c.

25

D.

COURTS IN THE FEDERALIST ERA 1. Judiciary Act of 1789 a. b. c. Compromise measure between advocates of state and federal judicial power Rationale for Judiciary Act: states were refusing to enforce debt contracts between instate and out-of-state residents and British merchants What did Judiciary Act Do? 1) Created the judiciary format because the Constitution did not provide for how the courts were to be set up 2) Created diversity jurisdiction 3) §25: gives authority to CT to re-examine, reverse or affirm decisions of state supreme courts - shows that federal questions will still be heard in state court first 4) §34: requires that the CT apply the laws of the states in cases from the state - leaving substantial power in the states to decide federal questions changed in 1870

2.

Case - Calder v. Bull - (Chase opinion) - Idea of checks on government power that are not explicitly in the Constitution. a. Significance (1) Basic doctrine of American Constitutional law (2) Led to the notion of substantive due process (a) check on legislative power (b) notion of fundamental rights (c) the disagreement between Chase and Iredell is the source of these fundamental rights (3) source of fundamental rights Chase (1) (2) (3) theory of natural/higher law natural law limits legislative power to be declare void, the law does not have to be defined in the constitution, because no one would assume that citizens would give up certain fundamental rights (i.e., property) if they are not explicit in the Constitution therefore, if a law violates a fundamental/natural right, it is void source of fundamental rights is natural justice influenced by Locke's theory of a natural right to protection of property

b.

(4) (5) (6) c.

Iredell (1) rejects natural law theory (2) believes that a law can be invalidated by judicial decree, BUT only where there is a violation of fundamental rights within the Constitution (3) a law cannot be declared void on the basis that it is contrary to natural justice (because Constitution is high than natural law) (4) agrees with Chase that there are limits to legislative powers (Constitution) (5) source of fundamental rights is the Constitution

26

3.

Case - Marbury v. Madison a. Historical Context of Case 1) John Marshall generally a) In the military during Revolutionary b) Frustrated by failure of state government to send necessary provisions to the soldiers at Valley Forge. c) Marshall instituted the practice of only one opinion from the Court. 2) This case comes down prior to Chase impeachment but threat of impeachment is in the air – 3) Court has little power when Marshall ascended to chief justice Is this case consistent with Chase’s idea? Is this case consistent with revolutionary ideals and popular sovereignty? 1) CONSISTENT with revolutionary ideals a) Marshall says independent judiciary is essential to representative government b) Court protects Constitution (which is doc based on consent of people) 2) INCONSISTENT with revolutionary ideals a) Anti-democratic to have an un-elected judiciary have so much power in a representative democracy (b/c giving judiciary so much power takes power further away from the people). b) Notion of judicial review is inconsistent with revolutionary principles of popular sovereignty because the judiciary isn't representative of peoples views, they are independent Justification of concept of judicial review: those who apply rules to particular cases must of necessity expound and interpret those rules Significance 1) CT gives up a small power to get a huge power back, i.e., judicial review 2) Gives judiciary the power to interpret laws made by the legislature 3) Strengthened the court by avoiding a direct confrontation with Jefferson (who might have said, "Screw you" and completely undercut the power of the courts) while at the same time scolding him 4) Strengthened the prestige of the court when it did not have much, or it was questionable 5) Made everything look obvious and self-evident by framing the issue in such a way as to state that Marbury had a right and a remedy, but that the court did not have jurisdiction to enforce this right or remedy 6) CT did not exercise this power until 50 years later 7) TJ thought each branch had a right to determine constitutionality

b. c.

d. e.

27

III.

THE ACTIVE STATE AND THE MIXED ECONOMY, 1812-1860

A.

THE SUPREME COURT AND THE NEW ECONOMY 1. Intro a. b. c. d. e. f. g. h. i. Population increasing rapidly Migration West Lack of government ability to absorb so many people Revolution in interstate and intrastate transportation canals, bridges, steamboats, and railroads resulted in a growth in commerce 80% of the population is involved in agriculture Emergency of universal white male suffrage, i.e., abolishment of property requirements Difference in CT procedures: No briefs, no opinions, not many questions by the bench, arguments from principles because not a whole lot of legal citations

2.

Economic Significance of Marshall’s Broad Definition of “Commerce” in Gibbons v.

Ogden
a.

Livingston v. Van Ingen (N.Y. 1812)
(1) (2) (3) (4) (5)

issue: whether a steamship monopoly was constitutional factual dispute: NY granted Livingston a monopoly over the right to operate a steamboat for compensation for financial risks taken holding: monopoly is constitutional rationale: power to regulate navigation is a state power because it is an internal affair and states have power over all internal affairs policy reasons: (a) to support entrepreneurs because they provided great benefits to the states (b) encourage experimentation with new technology (c) important for state to have the power to stimulate growth Facts: Ogden purchased from Livingston a franchise to operate steamboat from NY to NJ - sued Gibbons for infringing on his franchise right by operating a line from NY to NJ - Gibbons argued that his federal coasting license entitled him to operate boats anywhere in the U.S. Issue: whether state can grant a monopoly over navigation rights Held: state cannot grant monopoly Marshall's rationale: a) navigation is commerce and since the federal court has plenary authority to regulate interstate commerce, the states only have the power to regulate commerce where Congress has not yet acted but has the power to regulate b) Marshall's justification for his broad definition of commerce was that all America understands that navigation is a form of commerce

b.

Gibbons v. Ogden (U.S. 1824) – Marshall – p121
1)

2) 3) 4)

28

5)

Significance: a) Is this case more symbolic than real? b) Political Significance: (1) There is a range of federal authority that states cannot intrude upon (2) Reiteration of the supremacy of the Constitution (3) Limits state’s ability to control commerce (4) Court takes an express federal power and expands the definition Economic significance: stimulates growth in the economy b/c shows court believes competition is most efficient way to allocate goods Slavery: states worry that federal government can control, regulate, ban slavery – Court comments that certain areas of commerce would NOT be subject to federal power – instead these areas required local control – slavery would probably be an area under local control. How would economic growth have been different if this case were decided differently.

c) d)

e)

3.

Case - McCulloch v. Maryland (U.S. 1819) – p127 a. Facts 1) 2) b. Tension between states and federal government as to whether states can tax federal banks There was popular resentment toward the national bank because its tight credit policies hampered the economy

Maryland's Arguments: 1) Luther Martin, attorney for Maryland, argued that the states had unlimited authority to tax --- he argued from his memory of his participation in the Constitutional Convention 2) There is no enumerated power in the Constitution to set up a national band --- rejected through Marshall's interpretation of the Necessary and Proper Clause 3) Marshall declared that state law that allowed states to tax federal banks unconstitutional Marshall's Theory of Interpretation: 1) Relies on original intent, i.e., what the framers wanted (can argue he only does this when it suits him) 2) Is this a strict of loose construction? a) Strict construction: the Constitution does not use the word "express" b) Loose construction: interpreting the absence of the word "express" to mean that there are "implied" powers 3) Rationale for Marshall’s Theory a) Marshall believes that notion that the Constitution is an outline on limitations on authority that strengthens the Constitution as a living document

c.

29

b) c) d.

In any case, he is an expansionist because no matter what theory of interpretation is used, he is trying to give the government more power Marshall wanted to increase government power to stimulate the economy

Justifications: 1) Rejects state compact theory and the theory that the states retain all but the express powers given to the 2) federal government in the Constitution 3) Establishes that sovereignty comes from the people and not the states 4) The N&P Clause implies powers to the federal government other than those express in the Constitution -- uses 10th amendment to demonstrate this principle Significance of Marshall's Construction of the Necessary and Proper Clause: 1) 2) Notion that the Constitution should be expanded to adapt to new experiences What if this case came out differently? a) Would federal government have been completely hamstrung b) If government wanted to build a bank, would have to expand constitution Was there an alternative way to resolve the issue

e.

3) 4. 5.

Marshall’s construction of the N&P Clause Emergence of Corporate and Labor Law a. Dartmouth College (1819) 1) Facts 2) Issue: state power to regulate a corporate charter --- i.e. whether the corporate charter was a private or 3) public contract 4) Held: 5) Reason: a) It is a contract with the consideration being the corporate charter b) The college is private because if it was public the state would have an interest in the school and would have the power to make changes c) Private because of the founding, funding and operation d) Hands off theory: that growth of enterprise will be faster outside the reigns of the state e) Impairment of right to contract because the amendment by the state unilaterally changed the charter (by changing the way the school is run and the persons running it), which was the initial consideration for the contract f) Importance to Marshall of treating charter as a contract: g) In reality, the Contract Clause of the Constitution dealt with states interfering with debts owed to citizens of other states, so Marshall reached to find violation of Contract Clause h) One party cannot unilaterally amend

30

i) 6)

In order for the CT to have jurisdiction, there has to be an impairment of contract Long term significance for private corporations: a) Business coming into the state because of the college is sufficient consideration in return for the charter, b) therefore, the state has no control over the corporation c) Encourages incorporation d) Enlarges the power of the CT e) Reduces state power over the corporate form

6.

Economic Significance of Charles River Bridge Case (1837) – Taney - p146 a. b. c. Issue: if state could create new corporations that might compete with or destroy the vested interests of existing corporations Held: states can create new corporations that may compete with existing corporations because a franchise is not a ban on competition Taney's Reason: 1) government has power to intervene for purposes of economic growth 2) if decided the other way, there would be no competition, increased litigation and halt in progress (transportation would be slowed) Economic significance – p149-159: 1) CT was seeking to promote a national economy – p150. 2) Illustrates how new technologies and new corporations affected 19th century economic and legal development 3) If CT had gone other way, will tie hands of state governments to promote economic development 4) CT construes these corp charters narrowly – receive to read any restriction on chartering a competitor 5) Government has power to intervene to stimulate economy 6) Encouraged public to use the corporate form, where before people were afraid of corporate growth for fear of too much corporate wealth 7) States regained some power over corporations because they could now charter competition, BUT states still cannot interfere after charter is granted (consistent with Dartmouth) 8) Emergence of new means of transportation influenced the court's decision in that they did not want to stunt the growth of new railroads

d.

7.

President Jackson’s views on government’s role in overseeing the national economy a. Jackson generally 1) Different theory of Constitution 2) Vetoed Second National Bank 3) Coordinate branches each have authority to decide what is constitutional 4) Court is not supreme if it says something is unconstitutional, a coordinate branch may decide differently Marshall v. Jackson’s Approaches

b.

31

8.

Marshall – why did he write opinions the way he did a. b. c. d. e. f. Results-oriented writer Makes results seem self-evident, obvious – says this questions are really easy. Glosses over weak points Says he wishes he did not have to decide this issue but cannot shirk our duties No precedent for his decisions, just principles, rhetorical – does not use law – using rhetoric to give court authority. View of Constitution: Marshall does not think the Constitution was a statute – it should be construed in way that is true to its spirit but not interpreted as bound by text – it is more expansive – Constitution sets out a framework and future generations fill in that framework

32

B.

LAW AND THE GROWTH OF COMMERCE – P150-86 1. Summary a. b. c. Theme: should judges be doing this – weighing in on one side of a political debate Significance to Slavery: same judges who are making all these changes in prop law, labor law say they are not able to manipulate the law re: slavery. Relevance to today? 1) How should judges decide cases in the current technological climate? 2) Judges decided Microsoft case are trying to figure out how their decision will effect the economy – not easy to know how a legal decision will effect the economy. 3) How many areas of the law has the Internet placed pressure on. 4) Reno v. ACLU: CT reluctant to interfere with Internet

2.

Historical Context Generally a. Historical Context – possible influences on CT’s decision 1) Remember Charles River Bridge Case: shows appropriateness of taking into account economic views in deciding cases 2) Rapid population growth: 8 children per woman; pop doubles from 1790 to 1815; very youthful pop; policymakers concerned about absorbing all these people 3) Transportation revolution: size of country shrinks, RR puts pressure on all these areas of law. 4) Emergence of labor unions, BUT they were not a force because the common law crime of conspiracy was brought against fledgling unions 5) Growth in commerce and shift away from agriculture: 6) Both Government Intervention and Laissez-Faire Economic Principles are present in the Antebellum Period a) Government intervention: where public needed it, i.e., Charles River Bridge b) Laissez-faire: employer/employee relations, i.e., Fellow Servant Rule c) Judges began to change their notions of the role of the judiciary and realize that they could be instruments in fostering public growth 7) Political shifts: a) Universal white male suffrage: elimination of prop ownership restrictions b) People no longer feel Constitution is a precarious experiment but still tensions about where federal government fits. c) Slavery issue is smoldering in background: courts always worried when deciding prop, tort, etc cases about implications for slavery.

3.

What is the Nature of the Shift in Law Governing Workers in the Colonial Era to the Mid-19th Century?

33

a. b. c.

Shift from laws governing individual status to laws governing large bodies of workers Reason for Shift - INDUSTRIALIZATION Other Changes 1) Loss of personal contact in workplace a) Colonial era: master and apprentice had close working relationship / mentor b) Mid 19th century: factories with large amounts of workers separated from owners/managers 2) No division of labor a) Less skilled workers because of machines 3) Workers have little power to control their future and present conditions a) In colonial era, there was a chance of moving up as apprentices b) ??? In mid-19 century, there is less mobility

4.

Corporations Law a. b. Transition in Corp Law Since the Colonial Period Shareholders not liable

5.

Labor Law a. b. c. Transition in Labor Law Since the Colonial Period Master-Servant Rule Fellow-servant rule

6.

Property Law a. b. Transition in Real Property Law Since the Colonial Period 1) Developing railroads, factories required more land for the public use Eminent Domain 1) B/c of RRs and canals 2) Increase state power to take property 3) Expanded the meaning of "public use" 4) Greater public need for industrialization and transportation 5) Notion that states could give this power to private corporations as long as the corporation used the power for public use and there was just compensation Landlord/Tenant Law: 1) Van Ness v. Pacard: ct rejected the previous rule that if a tenant made improvements on land, the improvements belonged to the landlord 2) Encouraged tenants to make improvements which was a profitable use of land (3) Traditional law of waste did not apply

c.

34

d.

Transition in Water Laws 1) Very different in East than in West 2) Facilitate the growth of competition 3) Developing Water Rights a) Development of new principles governing water rights in the West paralleled legal development during the colonial era in that b) Colonies adapted the water rights of England c) West was adapting the water rights of the East (with some modification due to aridity and different uses, i.e., gold mining) d) In East, had to own land to get water from it e) In West, did not have to own land, only had to use it for a beneficial purpose to divert it for your own uses f) This shows that legal developments were beneficial to the lower classes as well as big business and prop owners 4) Case - Cary v. Daniels: a) Pro-development opinion by Shaw which encouraged industrialization b) If mutually exclusive (both competing to use the same water), then first in time is first in right c) If subsequent mill entrepreneurs could take over water rights of prior entrepreneurs then there would be a d) major disincentive to build (industrialize) e) These policies increased productivity of cotton mills f) Mills Act: gave mill owners a statutory right to damages from flooding, but took away nuisance actions 5) Case - Irwin v. Phillips: a) Arid Region Doctrine b) More irrigation out West c) Traditional water law in the East was not applicable to the West, so if you had a beneficial use for the water, d) you could divert a stream from its natural channels e) Factors of Arid Region Doctrine: see pp. 168 in book

7.

Contracts a. 19th Century was called the "Golden Age of Contract Law" 1) industrialization and the rise of the national and international markets 2) legally enforceable contracts did not have to be fair, there only had to be a meeting of the minds and valuable consideration 3) recognized and supported the belief that unfair bargains were necessary for the commercial and industrial development of the day Caveat emptor became a primary principle in contract law because it 1) encouraged contracts and thus growth in the economy 2) also encouraged people to be more careful in their business dealings Dramatic changes in contract law: 1) industrialization 2) courts concerned with economic policy of the developing country so taking a more activist role * courts notion of encouraging economic developments will increase standards for everyone 3) Seymour v. Delancy (1824)

b.

c.

35

4) d.

(a) "meeting of the minds" standard (b) courts will not look to the underlying deal to see if it is fair (c) wanted to encourage risk taking changes in business practices

Case - Icar v. Suares: (1) Louisiana rejected caveat emptor (2) applied civil law to contracts (3) contracts governed by code

8.

Torts a. Before the mid 19th century, tort law was virtually nonexistent, instead, there were recognized certain non-criminal wrongs not arising out of contract which were litigated under the old common law writ system as "trespass" or "trespass on the case" Two reasons for development (1) writ system collapsed forcing judges to think more logically and ending the distinctions between trespass and case (2) industrialization led to more accidents and harms and the writ system was incapable of handling the exploding number and variety of suits caused by industrial mishaps Case - Brown v. Kendall (Mass. 1850) – CJ Shaw – p181 1) Chief Justice Shaw 2) first case which discusses the concept of negligence 3) change from former law in that not strict liability, so that fault matters (4) concept of ordinary care to vary with the circumstances (5) presented notion of contributory negligence (6) placed burden of proof on the ¶ both as to the prima facie case and that ¶ was not contributorily negligence (7) policy reasons of Shaw (a) encourages people to take chances because they will no longer be strictly liable (b) reacting to social climate (maybe) (c) equity and justice (NOT)

b.

c.

9.

Shaw’s Influence on the Development of the Law a. Case – Commonwealth v. Hunt (1842) 1) Chief Justice Shaw --- pro-labor opinion 2) Facts: Ds were members of the Boston Journeymen Bootmakers' Society who refused to work for any employer who hired nonjourneymen 3) Held: rejected the conspiracy doctrine as against labor unions because he reasoned that in order to be convicted of conspiracy, there must be achievement of an illegal purpose or use of illegal means to achieve a purpose 4) Reason: he reasoned that if people are free individually to force the employer to do something, then they may join together to do so Case – Farwell v. The Boston and Worcester Railroad Co. (1842)

b.

36

1) 2) 3)

4) 5)

6)

Chief Justice Shaw --- seemingly anti-labor facts: ¶ was an engineer for the railroad injured in an accident caused by another worker Fellow Servant Doctrine: one worker cannot recover from employer for negligence of another employee, he can only recover from the employee who caused the injury (usually a dead end because judgment proof) holding: ¶ could not recover from railroad rationale: a) not tort theory, but contract theory b) implied in contract between employer and employee assumption of the risk of on the job injury, i.e., that the contract does not include compensation to employee for negligence of other employees Reconciliation of Hunt and Farwell a) Both are about laissez faire – competition is best policy b) Shaw's goal was industrialization, therefore, he was for economic development (1) Hunt: (1) people can help themselves because organization doesn't affect corporations and (2) affects employee directly (2) Farwell: (3) Some anti-labor result, but it is better for the corporation and does not foreclose the possibility of contracting for compensation for on the job injury (4) Affects employee only indirectly (5) Farwell does not preclude employees from organizing to obtain the right to contract for compensation for on the job injury from employers

10.

Did the Law Drive the Economy or did the Economy Drive the Law a. b. Is this a conscious decision on part of courts (by design) or by accident? Role of Law During this Economic Period 1) Is it proper for court to be protecting ERs over EEs? 2) Anti-democratic - isn’t the legislature the one who should be making these decisions? a) Example: RRs start losing tort judgments, RRs go to legislature to get a fellow servant rule passed. b) Counter: there was no concept of lobbying for a statute, judges are used to developing c/l. 3) What if judges had done everything in their power to thwart industrialization a) What if judges said we fear technology – going to stick with old common law – not going to let country grow so fast. b) Ludite: someone who fears technology – John Ludd and followers smashed the looms, technology was destroying their pastoral way of life. c) There were many people who felt that technology was bad.

37

4)

5)

So who are judges representing? Was it appropriate for judges to place their thumb on scale in favor of industrialization? J. Willard Hurst: a) Argues that antebellum period allowed for the "release of creative energies" of the American people, allowing for new technologies, players in the economy and encouraging the economy Morton Horowitz: a) Law in this period was developed through alliance b/w entrepreneurs/elites and attorneys to further their own selfish economic interests. b) Court plan to further economy was Machiavellian. c) Conspiracy of courts adopting opinions of the most influential judges

d) e)

11.

Summary a. b. c. What should judges be doing? To what extent is it appropriate for judges to take into account other, non-legal, issues – what issues can they consider and what issues can they take into account. When are judges bound by the law and when are judges capable of changing the law, reading the law flexibly.

38

IV.

SLAVERY, THE CIVIL WAR, AND RECONSTRUCTION

A.

SLAVERY AND STATE LAW 1. Generally a. b. How did law contribute to or instigate the start of Civil War? Very different responses when people thought slavery was going to die out than when they all realized that slavery was permanent.

2.

Thomas R. Cobb's Treatise on Law of Slavery (1858) – p190 a. b. Background: Cobb was the reporter from the Georgia supreme ct, a professor of law and responsible for drafting of Confederate Constitution Rationale for slavery: 1) Negro physical characteristics promoted by a state of slavery because they are adapted to servitude 2) Negro mental characteristics are suited to servitude - not inventive or imaginative 3) Slaves have no moral character 4) Slavery in U.S. is not absolute as compared with other nations due to Christian enlightenment civilization a) Slavery designed by God to ensure these barbarous savages be christianized (1) Slavery is a positive good for slaves and the Negro is happier and his development is promoted by slavery (2) They are given protection of life in that the murder of a slave is considered homicide (3) There are penalties for cruel treatment of slaves 5) How do biology and the law intersect? a) Biology is destiny b) Slaves are not human – ever if human, not same species as whites Mixes racist theories with legal arguments Comparison with Jefferson's Notes: 1) Similarities a) Both used physical and mental characteristics to justify subordination b) Racist notions underlie both 2) Differences a) TJ trying to reconcile slavery with his own notions of independence while Cobb trying to justify slavery to others and shows no remorse b) Where TJ ambivalent about future of slavery and what to do about it (should exile the (this argument holds no more sway by 1850s because most slaves are American born), Cobb espouses affirmative belief that this is best system and should not be challenged.

c. d.

39

3.

South Carolina Slave Code a. How is this similar to Cobb? 1) Inconsistency between the SC Slave Code and Cobb's theories because Cobb contends that slaves are mentally inferior yet the Code makes it illegal to teach slaves to read or write 2) conflict between notion that slaves are developed by being in slavery vs. prohibition against allowing them to improve themselves by reading and writing 3) Cobb makes it sound like slavery isn't really harsh, yet the Code provides for capital punishment for its violation 4) ¶ 31 of Cobb's treatise states that slaves are incapable of reason, yet the Code contain criminal liabilities for plotting to escape 5) although Cobb treats slaves as property, the Code treats them as humans in regard to criminal liability 6) suggests that the South did not believe their own propaganda and this is why the penalties in the Code were so harsh Contradictions inherent in imposing criminal liability on slaves 1) Codes simultaneously treated slaves as prop and as people subject to criminal law a) If want to treat slaves as prop, cannot hold prop criminally liable. b) If Cobb says Negroes are not human, and you only impose criminal liability on humans and people capable of reason (to know criminal law), then how can you impose criminal liability on Negroes.

b.

4.

Judge Ruffin’s View on Slavery in State v. Mann a. b. Judge Ruffin was a Southern slaveholder. Case – State v. Mann (N.C. 1829) – p192 1) Facts: slave owner complaining about D ill-treating her slave. 2) Issue: is there absolute dominion over rented slave re: punishment 3) Held: D cannot be held liable. 4) Reason: a) There has to be total domination of master over slave because no one would agree to be subjugated, no one would willingly agree to accept this terrible treatment – this is not like teacherstudent relationship – p193. (1) Because there were more blacks than whites at this time, there was fear of revolt; so only when the number of whites exceeded the number of blacks would this fear be lessened to the extent that blacks would be given better treatment (2) Ruffin later said master’s dominion is not so great as include death. b) Ruffin espouses a non-interference theory for courts. c) Ruffin acknowledges slavery is harsh regime in theory. d) Ruffin thinks slavery is less harsh in practice because non-legal factors will have a greater effect on slavery than law will this is not role for courts - law (not just courts, law in general –

40

5)

this is not a defense to legislature) is not the proper vehicle for insuring humane treatment of slaves (1) Community pressure: community will only bear so much oppression (2) Romantic notion that this creation sense of family: slaves become like family because white children grow up with black children (3) Self-interest of owner: economic reasons for better treatment of slaves (in that they are more productive when they are treated well) e) Falsely beneficent [northern] judges will do more harm than good Significance a) Judges are very active in the areas of commerce and economic development, but claim here that their hands are tied b) Inconsistent with Cobb (1) Cobb says slavery was a positive good, good for slaves where Ruffin acknowledges slaves are human (there has to be total domination of master over slave because no one would agree to be subjugated) whereas Ruffin says slavery goes against nature.

c.

Was Ruffin opposed to slavery or apologizing for it? 1) Pro-slavery: shows that masters have ultimate control over slaves under the law 2) Anti-slavery: shows how judges are bound under the law 3) Harriet Beecher Stowe says Ruffin is opposed to it. What role should the law play in protecting slaves? 1) Law is not the proper vehicle for insuring humane treatment of slaves – should rely on extra-legal factors. 2) Falsely beneficent [northern] judges will do more harm than good What extralegal factors does Ruffian rely upon? 1) See above Reconcile with Souther v. Commonwealth (Va. 1851) – p195 1) Illustrates that in extreme circumstances the law will act to protect slaves 2) Ruffin's theory says that community pressure will not allow slavery to be carried to its extremes 3) This case, however, sends a man to jail for only 5 years for the brutal murder of his slave 4) Undermines Ruffin's view 5) Did it matter whether there was law against cruelty when owners can still do this – is the law relevant at all?

d.

e. f.

5.

Case – Mitchell v. Wells (Miss. 1959) – p196 a. Facts: Mississippi slave owner emancipated his slave (who was also his daughter) in Ohio; he then returned to Miss. where he died and left her money; the executor refused to give the money to her on the grounds that Miss. prohibited owners from freeing slaves

41

b. c.

Held: Mississippi did not have to recognize the free status (given by Ohio) of a slave who was once domiciled in Miss. Reason 1) Strong state policy against emancipation, therefore, the state had no duty to recognize another state's act that is so far against this state policy 2) Ohio has terminated comity by emancipation and the abolition of slavery by lawless interference with the local rights of Miss. 3) We came into Union with understanding that slavery would be allowed and protected and with understanding that blacks would not be a part of this legal community/compact - thus, we have no obligation to recognize another state’s law that undermines those principles. 4) “peculiar philanthropy” refers to abolitions Dissent 1) Points out inconsistency b/w ideology of slavery and ideology of absolute dominion over property a) If master has absolute dominion over slaves (no court interference) b/c prop, then court cannot interference with how he disposes of that property. 2) Growing idea about dissolving the Union: “Whilst this confederacy [meaning Union] continues” – we have to put up with this until we dissolve our union with the Northern states. Significance 1) What is dilemma faced by court in this case? a) Interfering with the actions of masters and conceding that the right of masters to control their property was the essence of slavery 2) Is this case about slavery or state’ rights? Can these issues be separated? a) States rights: Ohio does not have the right to interfere with the laws of Mississippi so as to render them ineffective b) Slavery: slaves are an inferior race who cannot have the right to inherit property or be recognized as free

d.

e.

6.

Northern Judges’ Views on Slavery a. b. THEME: effect of slavery outside of slave states. Case Northern Confrontation of Slavery -- Commonwealth v. Aves (1836) – Shaw - p29supp 1) Facts a) Child slave was brought into the free state of Massachusetts temporarily (i.e. traveling through the state with master) 2) Issue: if a slaveholder brings a slave into a free state, is the slave then free? 3) Held: child is no longer a slave 4) Reason a) Theory underlying Somerset – if you cross line into a state that did not legally recognize slavery, that was sufficient to change legal status of slave b) Slave owner’s argument relied on comity

42

c)

5)

Slavery is illegal in Massachusetts because of the state constitution d) Therefore, if a slave is brought into the state, the slave is free unless something supersedes state law (i.e., Fugitive Slave Act) e) Fugitive slave acts govern fugitive slaves, and the child was not a fugitive, b/c was brought in by master f) Federal law does not apply, therefore, she is free Significance a) Add questions from syllabus b) Shaw goes far in interpreting the Massachusetts constitution to say that slavery is abolished (1) Used the phrase, "all men are created equal" to justify this conclusion – “it would be difficult to chose words more adeptly directed to opposing slavery.” (a) Is he right? There is possibility of more than one conclusion – clearest way to do this is to say Mass does not recognize slavery. (b) THEME: how much wiggle room in the language? In what circumstances did judges take advantage of wiggle room and in what cases they did not (2) But he does not reconcile this with the fact that the U.S. Constitution says the same thing, but it has never abolished slavery based on this phrase c) Shaw rejects comity argument d) Shaw says Fugitive Slave Clause does not apply here (1) Why? because Shaw construes “fugitive” in Fugitive Slave Law narrowly (2) He refused the broader interpretation of "fugitive" as one who refused to return to slave state e) Shaw’s consistency in later opinions (1) Shaw interprets Mass. const. broadly, but Fugitive Slave Law narrowly to get the result he feels is consistent with natural justice (2) Shaw later voted to uphold the Fugitive Slave Law saying he was bound by the law and had no other choice (3) In the absence of positive law, people are free (4) In reality, might have been trying to avoid civil war f) If Shaw wanted the opinion to come out the other way, what could he have used (1) There was a decent legal argument that a slave who is brought into a free state, and who refuses to return is comparable to a fugitive (2) She became a “fugitive” once a habeas petition was filed. (3) Lanctot’s point: there was sufficient legal precedent to allow Shaw to come out either way – she is showing when judges take advantage of flexibility in the law. g) Southerners outraged by this decision

c.

??? Tension Faced by Antislavery Judges During the Antebellum Theory 1) Struggle b/w being pro-slavery and pro 2) Fear of Civil War and secession vs. personal beliefs

43

3)

Did not really reconcile this tension by coming out with pro-slavery decisions, etc., but easier to say with hindsight

44

B.

SLAVERY AND THE CONSTITUTION 1. Film a. b. c. d. e. f. g. h.

Cotton gin Start of Powerful Abolition movement: William Lloyd Garrison: call for absolute abolition, slavery was sin, those who maintained it were criminals; Harriet Beecher Stowe; Frederick Douglas Southern Response to Abolition: especially Calhoun Killing of Lovejoy: white man killed over issue of slavery John Brown Bleeding Kansas exploded over issue of whether or not to have slavery Lincoln’s “House Divided” speech THEME: difficulty of maintaining a legal system that crossed boundaries – slavery – comity – settlement of new territories.

2. 3. 4. 5.

Problems Leading Fugitive Slave Clause within Constitution: Constitutionality of the Fugitive Slave Act of 1793 Case – Prigg – Story – p?? a. Facts & Historical Context 1) Problems Leading up to Prigg a) Positions hardened (1) South views slavery as a positive good (2) Abolitionists took a more radical position demanding immediate freeing of all slaves b) Passage of personal liberty laws c) Continuous acquisition of new territories involved constant decisions about slavery (1) Missouri Compromise of 1820: issued of slavery was thought to have been resolved (2) Emergence of organized abolition – “The Liberator" newspaper Issue: were these conflicting slave laws constitutional or did they conflict with the FSC. Held: FSC is constitutional Reason: 1) If there was nothing in Constitution that specifically spoke to slavery, then states would be free to do whatever they wanted. a) But there is a clause that speaks specifically to it – thus, states are not absolutely free to do whatever they want 2) FSC was essential to ratification of Constitution:

b. c. d.

45

a) b) 3)

There would be no Union if there was no FSC Southern states would not have entered Union if there was not a guarantee of protection of slavery. State laws on slavery are field preempted by FSA – states may not legislate in area of fugitive slave a) Even without federal statute, there would be unqualified right b) Power has to be exclusive in Congress c) States may use police power to arrest a fugitive slave d) States may NOT use interfere with or obstruct right of slave owner to reclaim his slave.

e.

Significance: 1) Support for pro-slavery position a) Prevented northern states from passing personal liberty laws. 2) Support for anti-slavery position a) Angered southern states b/c: (1) Divests states of any control. (2) Meant southern state law dealing with fugitive slaves are also being divested. b) There was no real federal enforcement system: relied on state courts 3) Is Justice Story’s opinion in Prigg consistent with his decision in Amistad? 4) Story viciously attacked for this opinion – thought about resigning after this decision. Earlier notes on Prigg v. Pa. (1842) from outline

f. 6.

Case - Dred Scott – CJ Taney – p?? a. Facts: 1) 2) Taney thought this was opportunity for CT to decide once and for all the slave issue - attempt by Justice Taney to destroy the Republican party Historical context: a) Problems with new territories (1) Tremendous expansion into new territories: CA, TX, UT (2) Increasing pressure to permit territories to decide for themselves whether or not to be slave states. b) New Fugitive Slave Law of 1850 (1) Tougher on slaves because the burden of proof was on slaves to prove their freedom (2) No habeas corpus (3) No jury trial (4) Bribery aspects (a) if slave found free - $5 fee (b) if not free - $10 fee (c) so in the self interest of the judges to find slave c) Compromise of 1850: thought to have set aside the risk of civil war and secession d) Kansas/Nebraska Issue: should they be able to decide themselves -- led to big battles e) Republican party emerged

46

(1) (2) (3) b.

anti-slavery believed that only positive law could support slavery felt government should prohibit slavery in the territories

Issues 1) Are blacks citizens of the US? 2) Is the Missouri Compromise constitutional? Held: 1) 2) Blacks are NOT citizens of the US Missouri Compromise is unconstitutional

c.

d.

Reason: 1) Blacks are NOT citizens of the US b/c a) How does Taney support his contention that Scott was not a citizen of Missouri? (1) Historical analysis: citizenship limited to participants in process at time Constitution was passed – p208. (a) Declaration of Independence and the Constitution "all men are created equal" could not be read to mean that slaves were equal to white men because they were slaves at the time these documents were written (b) Blacks cannot be citizens because popular opinion has kept them separate --- but then goes on to say that popular opinion cannot justify deciding that slaves are citizens (c) Used 3/5 compromise to justify that they didn't count as citizens (2) My hands are tied language b) Criticism of this argument: (1) History of blacks in US was not accurate. (2) Acts as if there are no free blacks, but this is not true b/c blacks had rights in the North (3) Citizens and inhabitants as Taney uses the terms are not interchangeable (4) Is Dred Scott ultimately original intent argument or a perversion of original intent theory? c) If CT decides Scott is not a citizen, then it needs go no further – did not have to reach constitutionality of Missouri Compromise but it did 2) Missouri Compromise is unconstitutional a) Taney held that the Missouri Compromise was unconstitutional with respect to the purported right of Congress to legislate to take away property, i.e., slaves b) This is part that becomes politically inflammatory c) This is first time since Marbury that CT has declared an act of Congress unconstitutional. d) Suggests that it is a violation of civil liberty for the North to disallow people to hold slaves – (1) Unconstitutional b/c this is a civil rights issue Congress cannot use its power to take people’s prop

47

e)

rights away – frames the issue as a due process violation - p212. Criticism of this part of decision (1) He did not have to get into this issue (2) Decision based on a tortured reading of the Constitution (a) Plain language says Congress has the power to regulate territories (b) Taney construed this as meaning that Congress only had the power to regulate the territories at the time the clause was passed – did not give Congress power to regulate new territories

e.

Significance: 1) Taney: a) First catholic jurist b) Slaveholder by inheritance by his father – freed his slaves c) Believed slavery was sanctioned by Constitution 2) Why is this opinion so explosive? a) Explosive because seems to say that any interference with slavery is an interference with property and a violation of the Constitution b) Explosive because seems to say that Congress does not have the power to halt the expansion of slavery (1) Seems to imply that slavery is unstoppable in territories and in the already existing states. 3) How should the Court have decided this case? 4) How does Taney support his contention that Scott was not a citizen of Missouri? See above 5) Compare his analysis to that of CJ Shaw in Aves a) Shaw: "all men are created equal" meant all men are equal b) Taney: "all men are created equal" meant all white men are created equal 6) Is his reliance on history persuasive? a) Taney's reliance on history is not persuasive because he takes selectively only anti-black provisions from history and used them to support his own views 7) Why does Taney reach the issue of whether the Missouri Compromise’s restriction on extending slavery to the territories was constitutional? 8) Many say this case caused the Civil War 9) How does this argument foreshadow the emergence of due process after the Civil War?

7.

What role should CT and judges have in resolving divisive national issues? a. Compare to Nuremberg Trial movie 1) Issue: whether judges in Nazi Germany are responsible for crimes against humanity? 2) One view: judge must sacrifice one’s own sense of justice to the legal authority of the state – allegiance to international law and the law’s of one’s own country 3) Are judge’s responsible for their acts?

48

b. Judge Story Shaw Ruffin Taney Harris

Judges to compare View on Slavery Anti-slavery Moderate anti-slavery Slave owner Pro-slavery Very pro slavery

Cases Prigg Aves and Fugitive Slave Act Mann Dred Scott Mitchell c.

Discussion 1) When should judges follow the law and when should judges not follow the law. 2) What if the law is evil? 3) Anti-slavery judges who reached pro-slavery opinions seem to have interpreted a fairer reading of the 4) Constitution --- Story 5) They did their best within the bounds of the law 6) But willing to stretch the law for commerce and economic decisions 7) What should the judge do when a law is evil – Robert Cover – Justice Accused a) Resign in protest b) Manipulate the law to get around it c) Follow the law

8.

Constitutional Issues a. b. Extension of slavery into the new territories Extent to which non-slave states had to cooperate with slave states in returning fugitive slaves

49

C.

MORALITY AND THE LAW OF SLAVERY

See above discussion

50

D.

LAW AND THE CIVIL WAR 1. Historical Background (Civil War Documentary) a. Secession 1) Abraham Lincoln a) Platform was to halt slavery where it currently existed. Didn’t please radical abolitionists or southerners. Not even on ballot in 10 southern states 2) South Carolina a) Called for secession convention after Lincoln’s election 3) Many Southerners didn’t think secession was best decision 4) Suddenness of secession a) SC, Miss, Fla, Ala, Ga, La, Tx, Va (i) Very rapid process b) Fort Sumter (i) Federal troops moved out of Charleston following secession of SC and were quickly surrounded 5) Jefferson Davis a) Senator from Mississippi who resisted secession until Miss seceded Confederate Constitution 1) Almost identical to U.S. except president had line item veto, 6 year presidential term, outlawed international slave trading

b.

2.

Legal Justification for Secession c.

Declaration of the Immediate Causes which Induce and Justify the Secession of South Carolina (1860)
1)

2) 3)

4)

Compact theory: Constitution was compact between individual states and federal government and Article IV was violated (fugitive slave clause) a) Hearkens back to language of Declaration of Independence b) Potential sources (i) Locke and Mayflower Compact as What constituted breaches of compact? a) Abolitionist societies in North supposedly inciting insurrection b) Court cases weakening Southerner property rights in slavery Why were these breaches material a) Assertion that South would not have entered into the Union and signed the Constitution without the provisions protecting slavery b) North’s end of bargain was that it would assist South in upholding slavery and protecting it Forerunners of this a) Virginia and Kentucky Resolutions reflecting notion of federal constitution as compact and federal breach gives states right to remedy b) Articles of Confederation

d.

Is secession constitutional or lawless? 1) For Lincoln, Constitution would have to be amended to allow for secession, otherwise this is a lawless act

51

a)

Lincoln treats the Civil War as putting down lawless insurrection, not conflict between sovereign states

3.

The Confederate Constitution e. f. Modeled on U.S. Constitution Differences 1) Legislative power restricted a) Congress can’t appropriate money for any internal improvement except for a few things b) No necessary and proper clause 2) Presidency a) 6 year term but no re-election 3) Line item veto (§ 7 cl. 2) a) Concern about accountability (i) Had this power been in hands of pro-slavery Presidents, excesses of North would be controlled 4) Preamble a) “each State acting in its sovereign and independent character” 5) Slavery a) Outlawed international slave trade (§ 9 cl. 1) (i) Protect market price for slaves (keep it high) (ii) Gain international repute because so many countries had outlawed international slave trade (iii) Slavery was well-established in South and no real need to protect importation (iv) Concerns of sovereignty; reinforcing sovereignty b) Prohibited importation of slaves from any non-Confederate slave-holding state (§ 9 cl. 2) (i) Essentially to other slave-holding states: if you don’t get with program, you’ll be isolated c) No impairment of property rights (§ 9 cl. 4) (i) Reaction to Aves, other decisions (ii) Codified Dred Scott How would Constitution have fared in absence of war? 1) Is this more of a states rights constitution? a) Seems more pro-states rights but took slavery off the table of state’s rights 2) No provision for secession from Confederation a) There was tremendous debate about whether to put secession clause in but concerned that this would be a show of weakness b) Preamble indicates that this is a union of states as states, not people (response to McCulloch) 3) Southerners believed that they were restoring balance originally intended for U.S. Constitution Reflects different vision of government 1) Rests on state sovereignty rather than popular sovereignty 2) Fiscal conservatism and accountability 3) Explicit protection of slavery

g.

h.

52

4.

Theory of Perpetual Union a. First Inaugural Address 1) Perpetuity is implied in fundamental law of all national governments a) This is essential because it makes secession an uprising not war between sovereign nations and also means that there is no compact theory and no breach of contract 2) What was formed at creation of Constitution was people, not confederation of sovereign states Gettysburg Address (Nov 19, 1863) - p41supp 1) Hearkens back to 1776 because that’s when nation began b) Therefore, there was no compact in 1787 c) “Fourscore and seven years ago, our fathers brought forth upon this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” d) It is not the Constitution that formed the nation but the Declaration 2) Can invoke martial law throughout all of country, not just southern states, because this is a domestic insurrection a) Suspension of writ of habeas corpus b) Emancipation Proclamation Emancipation Proclamation (January 1, 1863) 1) Lincoln’s primary goal when he became president: a) Preservation of union b) During candidacy, said he didn’t want to abolish slavery c) In 1862, said if he could save union without freeing single slave, would do it or freeing just some of them 2) Purpose behind the Proclamation a) After emancipation, no longer “Union as it was” – now “Union as it should be” b) Cabinet felt that it would strike at economic basis of South c) Lincoln wanted Union victory to announce Proclamation (got it at Antietam) d) Issued on Sept 22, 1862 – 5 days after battle of Antitiem e) Slavery was already disintegrating - may have been an international diplomatic coup f) Tell the international community that war was about slavery g) Knew Britain and France would not go against a country that abolished slavery h) Made Union army into emancipators i) Created large pool of ex-slaves for military service j) Diverted Confederate Army resources to enforcing slavery 3) Limits/Criticism a) Did not free a single slave in the North (DE, MD, KY, Missouri) 4) Legal Basis for Proclamation a) Lincoln asserts that his commander-in-chief power allowed him to do this because it is time of national emergency b) Major criticism of Lincoln was that he expanded power of President beyond that allowed in Constitution c) Does it matter whether Proclamation was constitutional or not? Was Proclamation based on a power higher than the Constitution? Significance of The Prize Case (1862)

b.

c.

d.

53

1) 2)

Rule: when there is an insurrection against government, President does not have to wait for Congress to declare war - “President was bound to meet it in the shape it presented itself, without waiting for Congress . . ..” Significance: a) If Court had come out the other way, then most of what Union did would have been unconstitutional. b) Raises question if President had taken too much power.

5.

Civil Liberties in the Civil War a. Civil Liberties Altered During War 1) Suspension of writ of habeas corpus a) Lincoln believed that substantial Southern support in border states (arson, rioting) justified writ of habeas corpus because Civil War was domestic insurrection b) Constitution allows for suspension of writ in times of national crisis (Art I, § 9) - question wasn’t whether writ could be suspended but who could suspend it c) Congress (power located in Article I) or President 2) Use of military tribunals to try civilians Suspension of Habeas Corpus: Ex parte Merryman (1861) – p45supp 1) Facts: a) Merryman arrested in Maryland and imprisoned in military fort. Taney issued writ. b) This was not a S. Ct. case. Court never took it because it knew Lincoln wouldn’t enforce it. 2) Held: suspension of writ of habeas corpus was unconstitutional 3) Reason: a) Union counter argument (1) Fact that clause appeared in Article I was irrelevant. It was an emergency clause, had to be exercised quickly and therefore for President to do because Congress doesn’t move quickly. At worst, it was a concurrent power because text of Constitution doesn’t say b) Suspension of write is legislative prerogative (1) Habeas corpus clause is located in Article I – thus, this is congressional power, not one that President can exercise c) Purpose of writ of habeas corpus (1) People always feared of writ being taken from them and framers would never have considered allowing executive to have power to take writ from them (comparing Lincoln to despotic English kings) 4) Significance: a) This opinion shocked the Lincoln administration. b) Question of whether Lincoln was going to obey the decision c) Congress later passed law delegating power to suspend writ to President Use of Military Tribunals to Try Civilians: 1) Lincoln’s justification for military tribunals

b.

c.

54

a)

Entire country was war zone and military arrests in areas far from front justified because civil courts “utterly incompetent” to deal with such a massive threat to the nation

2)

Ex parte Vallandingham (????) – p50supp a) Facts 1) In Ohio, V is Southerner-supporter who violates Burnside’s order to not make speeches in favor of South b) Reason: (1) Lincoln’s Argument: (a) “Must I shoot a simple-minded soldier . . .” – p51supp (b) Analogous to Lincoln’s view re: Constitution “can’t I violate one part of Constitution to preserve entire document and entire nation?” (2) Supreme Court’s abdication (a) Didn’t grant writ of cert claiming it had no jurisdiction over complaint and therefore no authority to review conviction (b) Supreme Court didn’t want to have confrontation with Lincoln Ex parte Milligan (1866) - p52 a) Facts (1) Enforcement of martial law in Indiana was challenged. Milligan was charged with conspiracy to seize munitions at federal arsenals and free Confederate prisoners. Milligan was court martialed and sentenced to death. (2) Historical context: Lincoln dead, Johnson is President, war is over b) Held: civilian may not be tried by military tribunal when civil courts are open c) Reason: (1) Constitution cannot be subverted except in locales of actual war (2) “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invited by the wit of man than that nay of its provisions can be suspended during any of the great exigencies of government.” d) Significance: (1) Compare to Court’s earlier rhetoric (a) Now that war is over, we can think clearly about civil rights. (b) Court rejects the argument that Constitution and its provisions can be suspended during times of war – Court said Framers drafted the Constitution after going through the war - see bottom of p53supp. (2) THEME: 2 views on whether Constitution should be construed differently during war time – consider this as we look civil war, WWI, WWII, Korea, Vietnam - imprisoning newspaper editors, political opponents? (a) How quickly do we get rid of the Constitution once there is a war?

3)

55

d.

Assess Lincoln’s record on civil rights 1) Generally a) Did he have any other options – did ends justify means. b) Arguments in Favor and in Opposition to Lincoln’s Suppression of Civil Liberties 2) Arguments in Favor a) Court recognized in Milligan that it retains power to limit president’s exercise of power and therefore executive can act because can be reined in b) Constitution grants to executive the power to enforce laws of United States and conduct war c) Executive needs leeway d) Congress has some power to limit free speech 3) Arguments in Opposition a) Court does not protect civil liberties in time of war (see above “a”) b) Constitution specifically give war-making power to Congress and thus Congress should be the one to resolve it c) It’s easy to protect civil liberties when there is a time of peace because no one cares and it is times of crisis that they emerge stark

56

E.

RECONSTRUCTION 1. Historical Background (Civil War Documentary) a. b. Lincoln’s Second Inaugural Address – “malice toward none and charity towards all” Aftermath of War 1) South lay in ruins 2) Confederate army almost in non-existent End of War resulted in joy in North but hatred in South 1) Northern cities celebrate 2) Southerners hate North Image of Reconstruction 1) Yankee carpetbaggers and scalawags taking unjust revenge on South, foisting unprepared blacks into politics, trampling on South and destroying – see Birth of a Nation, Gone with the Wind 2) Historical shift e) Reconstruction as lost opportunity f) There was an opportunity that was missed by Congress and the courts to assist newly freed blacks to make political approach Tenor of Reconstruction 1) Reconstruction was a lost opportunity a) Lost 80 years in race relations. b) Lee surrendered only 5 days before Lincoln was assassinated – led to great turmoil – great absence in leadership at time that desperately needed leaders. 2) Andrew Johnson was racist who was determined to maintain inferior status of blacks a) Was probably the person least qualified to bring Union back together. b) His presidency itself may be one factor in which Reconstruction could not work c) Hostile to Congress d) Hostile to civil rights (1) Regularly vetoed civil rights laws that came in front of him 4) Jackson’s Impeachment a) Factual basis (1) Jackson dismissed Stanton who refused to give up his physical office. Congress passed act requiring president to wait for Congress’ approval before removing federal officer (to protect Stanton). Johnson was impeached for failure to comply with act and his actions. Johnson survived by one vote b) Articles of Impeachment (1) High crimes and misdemeanors (basis of impeachment) (a) 10A: bringing office of presidency into ridicule and disgrace because of his harangues (b) Defying Tenure in Office Act c) How did he survive? (1) Impeachment process not well managed in Congress

c.

d.

e.

57

(2) (3) (4) 2.

Inclusion of goofy charges (yelling at Congress) weakened Articles of Impeachment Concern by some in Congress about whether defying an act of Congress is really grounds for impeachment, especially an act that some considered unconstitutional anyway Unclear what a high crime and misdemeanor is

Legislation on Race and Judicial Response a. Mississippi Black Codes 1) What rights were given? a) Right to sue/be sued b) Right to marry within race c) Legitimization of slavery marriages 2) Restrictions a) Interracial marriage prohibited and criminalized b) Vagrancy laws prohibited blacks from congregating together unless there on business - punished both blacks and white employers c) Employment contracts: if black employee quits before contract expires, black forfeits wages for entire year (“fugitive employee law”) 3) Compare to S.C. Slave Code a) Lots of control over day-to-day activities b) Some limited protections but those also existed in the Slave Codes Civil Rights Act of 1866 1) Reflects hostility of Congress to Black Codes a) Felt Southern states were defying will of Congress 2) Placed enforcement of civil rights under federal jurisdiction a) Historically protection of individual rights had been province of states b) Supreme Court was very uncomfortable with this change c) Granted citizenship to anyone born in United States (designed to overrule Dred Scott) Supreme Court Opposition to the Civil Rights Act – The Slaughterhouse Cases (1873) 1) Holding a) Narrow construction of privileges and immunities clause of XIVth Amendment to only those P&I of national citizenship b) Clause cannot protect citizens from state restrictions c) Rejected idea that Reconstruction Amendments represent dramatic shift between state and federal power 2) Effect of case a) Relegated protection of blacks’ civil rights to state governments that had enslaved them 3) Civil Rights Cases a) Found Civil Rights Act of 1875 unconstitutional b) Undermined Congressional efforts c) Federal government withdrew from field of race relations Responsibility of Courts for Failure of Reconstruction 1) Great responsibility a) Refused to enforce Constitutional amendments that would have allowed Congress to legislate civil rights

b.

c.

d.

58

2)

“Redemption”: white Southerners reasserted control of state legislatures (rescuing themselves from pernicious Northern influence) Social pressures on the Court a) Desire to reconcile with South after 10-15 years b) Persistence of racist beliefs/racial ideology in North and South

b)

59

F.

RACE RELATIONS IN THE 19TH CENTURY 1. Segregation a. School Segregation in the North - Roberts v. Boston (1849) 1) Facts a) Racial segregation in schools. Roberts wants to send his daughter to nearest, all-white, school. No statutory or ordinance requirement of segregation b) 10 years before Dred Scott, pre-dates Fourteenth Amendment, first school segregation case and in North, not South 2) Held: school segregation not illegal 3) Reason: a) Equal does not mean that you have to treat people the same (1) Permissible to distinguish between men and women, children and adults (2) “What those rights are, to which individuals, in the infinite variety of circumstances by which they are surrounded in society, are entitled, must depend on laws adapted to their respective relations and conditions.” b) Rationale basis is all that is needed (1) As long as state/city can come up with some rationale basis for distinction, okay c) Dealing with prejudice as result of separation of races (1) Prejudice is result of blacks’ insecurity (2) Law does not create racial inferiority so law can’t remedy it 4) Significance a) Comparing this to earlier Shaw opinions (1) Inconsistent (a) Cannot have social equality without political equality (b) In economic cases, seems creative and dynamic (“master-servant” rule) but not here (2) Consistent (a) Just because people hated slavery doesn’t mean there wasn’t racial bias (b) Aves and Roberts not necessarily opposed but on different level (c) Inherent prejudice and fear of losing white power Case - Plessy v. Ferguson (1896) 1) Facts a) Comes to Court approximately 30 years after Civil War in period of rethinking/re-evaluating Civil War b) Test case deliberately brought to challenge emergence of racial segregation. New Orleans had very specific statutes about who constituted blacks/whites c) Plessy: extremely light-skinned black male who took seat in white car with detective standing near by d) Justice Brown: from Massachusetts but sympathetic to South 2) Reason a) Rationale to support separate but equal and response to “badge of inferiority”

b.

60

3)

4)

Reliance on Roberts (1) Shows that segregation is universal (2) Ignores fact that case decided before XIVth Amendment. Roberts doesn’t say anything about Congressional intent with XIVth Amendment c) “Badge of Inferiority” argument (1) Any badge of inferiority emerges in minds of blacks, not whites, and is not because of law d) Law cannot remedy social inequality (1) “If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals.” Harlan’s dissent a) Conservative and textual/original intent approach b) Compares to Dred Scott (1) Dred Scott led to war, this will lead to social unrest; racial hatred (2) Within 20 years of Plessy, South is almost entirely segregated c) Reconstruction amendments (1) Should have put an end to racial discrimination (2) They are supposed to protect all civil rights d) Concern about possible social implications of holding (1) Pernicious consequences of this holding (“The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments . . . The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.”) e) Calls a spade a spade (1) Everyone knows what purpose of law is: to give stigma of inferiority (2) Majority opinion is disingenuous Significance a) Does majority opinion reflect social racism? b) Harlan recognized right of racial pride c) Majority insisted races (white race) had right to decide who could spend time together b)

2.

Similarities Between Legal Status of Blacks and Other Minorities

Blacks Property Didn’t have many conflicts over land

Native Americans More conflicts over land

Chinese More conflicts over land

61

Political Equality

Able to vote, be citizens

Sovereignty acknowledged on some levels, not allowed to be citizens Indians were romanticized

Not allowed to vote or be citizens Discriminatory laws against Chinese were struck down (some of them) Seen as heathens, language barrier

Social Equality

Subject to segregation, Jim Crow laws Mostly Christian Great fear of blacks roaming free and posing terrific threat of violence

Religion Threat of Violence

Seen as heathens, language barrier

62

G.

GENDER AND DOMESTIC RELATIONS 1. Background a. Factors leading to changes in law 1) Increase in urbanization a) Real concern about destruction of family relationships because of this b) Also factor with crime 2) Expansion of settlement into the West a) Social structure not well defined, somewhat more egalitarian by gender 3) Industrial Revolution a) Places tremendous pressure on traditional family b) Entry of women into workforce (paid labor force) in greater numbers than had ever been seen - young single women going into factories with idea that they would get married and leave workforce 4) General emergence of reform groups 1) Abolitionist movement best known 2) Women’s rights movement - grew out of abolitionist movement 3) Temperance movement 5) Secularization of society a) Second Great Awakening b) Religious fervor c) Religious influence on society waning (even while Great Awakening taking place) Lifestyle 1) Average rate of birth was 7 children per woman at beginning of 19 th century (1800) 2) Rate drops to 5 in 1850 and 3.5 in 1900 3) Significant drop in birth rate 4) About 1/30 women expected to die in childbirth in 1900 5) Even greater in 19th century

b.

2.

Suffrage movement a. Leading suffragists 1) Elizabeth Cady Stanton a) Mother of 7, daughter of judge b) Married abolitionist, very dedicated 2) Susan B. Anthony a) Led fight for women to have right to vote Stanton and Anthony Publish The Revolution 1) The Revolution died 2 years later due in part to the growth of The Ladies’ Home Journal published by Lucy Stone (bitter rival of Stanton and Anthony) Contemporary Attitudes Towards Women 1) Brownson, The Woman Question (1885) a) Contradictory/conflicting images of women (1) Women as natural wives and mothers, by nature designed

b.

c.

63

b) 2)

Women had special superior gifts with regard to certain things (b) Destiny is to be “queen in her own household, and to make home cheerful, bright and happy” (c) Are better at domestic duties (patience, endurance, passive courage, quick sensibilities, sympathetic nature, great executive and administrative ability) (d) Women turned this argument on its head – “political housekeeping” – women would purify politics (2) Women are also ambitious and destructive and left on their own (a) Women are root of all evil. (b) “as an independent existence, free to follow her own fancies and vague longings, her own ambition and natural love of power, without masculine direction or control, she is out of her element, and a social anomaly, sometimes a hideous monster, which men seldom are, except through a woman’s influence.” Right to vote seen as weakening and destroying Christian family (1) Wife and husband may support different parties, policies

(a)

Compare Brownson’s Views on Women with Jefferson’s Views on Blacks a) Similarities (1) Both say that other person is inferior, thus white males must be supreme over for their own good. (a) Blacks are inferior but they are perfectly suited for role which has been decided for them. (b) Women are inferior but they are perfectly suited for role which has been decided for them. b) Differences (1) Brownson takes a pedestal approach to this: not just a general critical approach to women like the writings in favor of slavery were (Jefferson, Cobbs) Court’s opinion in Bradwell plays on same rhetoric Was Orestes Brownson right ? Has the family fallen apart?

3) 4) d.

Suffrage Ideals: Declaration of Sentiments (1848) 1) Why did it take 72 years to get right to vote? a) Whole movement put on hold during civil war. b) Women’s right to vote subsumed in getting blacks the right to vote – “this is the Negroes’ hour” – this leads to split. c) Court certainly did not help – it greatly limited the 14A. d) Temperance movement meant that liquor industry was powerful force against women’s right to vote Possible Strategies/Theories a) Go through courts – based on federal constitution (1) Based on Dec of Independence and 14A: certain natural rights which pre-exist government and cannot be violated - if laws enacted that violate natural rights, laws are void (2) This was a carefully planned national strategy

2)

64

b)

Lobby each state’s legislature (1) But women as lobbyists do not carry any power – cannot threaten not to vote.

3)

Contents of the Declaration of Sentiments a) Most radical part then was insistence on right to vote (1) Supporters didn’t want that in there. (2) Why? (a) Women would have some radical effect on politics if allowed to participate. (b) See Orestes Brownson, The Woman Question – p62supp b) Other parts seem more radical by contemporary standards than right to vote: (1) Attack on double standard: moral delinquencies tolerated in men but not women (2) Attack on religious oppression of women Modeled after Declaration of Independence a) Did she mean this document to be revolutionary? b) Rationale for basing this on Dec of Independence: (1) To give the women’s movement legitimacy - make it a serious cause – women had been previously ridiculed (2) Echoes revolutionary fervor: gives women’s cause an air of legitimacy because takes framework of throwing off yoke of English oppressors, analogy to - men are equivalent of tyrant King George III

4)

e.

Protection under 14A - Bradwell v. The State (1872) – p64supp 1) Background a) Argued same day as Slaughterhouse Cases. part of trend of Court narrowing the 14A b) Bradwell sought bar admission as privilege & immunity under 14A 2) Holding: admission to bar or any kind of office is not privilege or immunity of state or federal citizenship 3) Rationale: state controls right to regulate and control licensing to practice law 4) Bradley’s concurrence a) Legal basis for concurrence (1) Impairment of woman’s right to contract in absence of husband meant that anything woman did on behalf of client that amounted to contract would be void without husband’s consent (2) But point may be overstated because right of women to sue for breach of promise to marry is a sue for breach of marriage contract (3) Wouldn’t prohibit single women from becoming lawyers b) Rhetorical basis - notion of woman as inferior (1) Woman properly belong in domestic sphere (2) Men are protectors (3) Reflects Orestes Brownson’s view Right to Vote: United States v. Anthony (N.D.N.Y. 1873) 1) THEME: use courts to attempt to change the law a) Early movements b) Suffrage movement

f.

65

c) d)

Civil rights movement Women’s rights movement within abolitionist movement and then split – theme reflected in 20th century – anti-war movement part of civil rights and then split

2)

Historical background to right to vote a) Came right after Civil War. Leading abolitionists argued that suffrage for blacks and abolition would suffer if linked to suffrage for women (“This is the hour of the Negro”). Women’s suffrage movement splits over this argument. Anthony’s theory why women have right to vote a) This was part of a carefully planned national strategy, based on 14A, to get the issue of women suffrage before the Supreme Court – instead it went before the state court b) Arguments (1) 14A: guarantees right to vote as privilege and immunity SBA’s 14A argument is undercut by use of word “male” (2) 15A: women were in condition of servitude (3) Natural law argument: voting rights pre-exist government b/c government can only govern with consent of governed – she cannot consent if she doesn’t have right to vote. c) See also print out from SBA web-site. Facts a) She and 15 other women registered and voted in Presidential election (fine and 3 years imprisonment). She was arrested and refused bond (to be martyr) but lawyer paid bail. Grant administration wanted her convicted and didn’t want case to come to Supreme Court Anthony’s tactic (1) SBA went to district of every county from which jurors would be drawn and made speech (essentially closing argument) - SBA used every moment of this event to get publicity for this cause. (2) Prosecution moved for change of venue and got it although Anthony then went there Anthony not allowed to testify b/c incompetent Tried before Judge Hunt

3)

4)

b)

c) d) 5)

It was very unusual for a court to direct jury to return guilty verdict a) Should a judge be able to do this? Probably not acceptable procedure today – questionable then. b) Distinguish from directing verdict of not guilty c) Directing a verdict of guilty seems to violate the right to trial by jury. Rationale for court’s action a) Bradwell said 14A didn’t provide greater privileges and immunities for women (1) Amendments do not say can’t deny right to vote based on gender (if it wanted to, could have said sex) b) Judge Hunt says this case doesn’t have to go to jury because no factual dispute – this is only a legal issue (1) Law says that she doesn’t have right to vote (2) There was no question of fact because no argument that she didn’t have criminal intent

6)

66

(3) 7)

Court appears concerned about danger that Anthony could actually persuade jurors if allowed to testify

Judge Hunt worried about the jury nullification a) SBA sought jury nullification b) Does court have to tolerate jury nullification argument? (1) Yes: she had no other recourse (2) No: there are other venues Result a) b) No appeal available: SBA not have ability to appeal under law at the time. SBA refuses to pay fine: (1) She was fined $100 but refused to pay (2) SBA hoped by not paying the fine, they would come after her and throw her in jail so that she could further publicize

8)

9)

Significance a) Think about case in terms of its theatrical value. b) Judge Hunt played into SBA’s hands – made point that she was being oppressed. c) THEME: political trials (sedition trials, impeachment, SBA trial, Milosevic [trying to paint himself as a victim – no lawyer, continuous challenge of court’s juris]) (1) Very self –conscious use of courts – deliberate strategy to use courts – see above discussion. (2) When trials are used for political process, outcome is not as important as process/exposure. (3) Note common tactics (SBA and Milosevic both silenced by judge – makes point that this court is oppressing me) – shows how courts can be used, manipulated to score political points. Held: U.S. Supreme Court said voted was not privilege guaranteed to US citizenship - each state could decide. Significance: a) Led to southern states creating laws that would prohibit blacks from voting. b) Stanton and Anthony gave up on winning vote through courts – instead seek constitutional amendment

g.

Minor v. Haberstet (US 1970s)
1) 2)

3.

Gender Issues a. Generally 1) Law in domestic relations reflect social attitudes about marriage – when there are legal changes, they reflect change in social attitudes 2) Tension b/w those attempting to keep traditional family and those pursuing new roles for women. 3) Identify society’s concerns underlying rejection of new roles for women a) Worried about destruction of family unit. 4) What is appropriate role of state in regulating morality? Regulating economy? a) Tension: same people support state regulation of morality and yet call for laissez fair (no regulation) of economy

67

b.

Marriage 1) Colonial Period a) Subordination of women with no legal capacity to act independently of husbands 2) 19th Century a) Generally (1) Shift away from religious content of marriage and more like a contract (rather than covenant with God) (2) Real decline in traditional matchmaking (3) Greater rights within relationship (4) Rise of action of breach of promise to marry - by being seduced into promise of marriage, condemned to life of celibacy when promise broken (5) Women started working (6) Western expansion (7) Dramatic change in birth rates – drop: there is difference b/w women who spend most of married life pregnant and those who only spend several years pregnant. b) Legal reforms: Married Women’s Property Act (1848) – p266 (1) Wife retained property after marriage and property not subject to disposal by husband (2) Purpose was to protect against having poor widowed/abandoned women c) Polygamy (1) Seen as destructive of democracy because it creates patriarchy (2) Also considered immoral Divorce 1) Colonial period a) Very rare b) Physical cruelty recognized as ground for divorce 2) 19th Century a) Shift to recognizing rights of women to get out of marriage b) Possible grounds for divorce (1) Physical cruelty was recognized as mode of divorce in colonial times (2) Mental cruelty grounds for divorce (but needs to be extreme cruelty--Waldron v. Waldron) (3) General intemperance could be grounds alone (4) Adultery could be grounds for divorce Contraception 1) Decline in female fertility gave rise to concern about birth rate 2) Contraception seen as way of increasing women’s autonomy 3) Criminalization of distributing contraceptive information constitutional (People v. Sanger) Abortion 1) Colonial period a) High rate of infanticide 2) 19th Century a) Early 19th: abortion not a crime as long as done before baby “quickened” (4-5 months) (Commonwealth v. Bangs)

c.

d.

e.

68

b) f.

Late 19th: abortion either “high misdemeanor” or murder (State v. Slagle, Commonwealth v. Taylor (outlawing abortion))

Prostitution 1) Illegal but flourished everywhere 2) Generally, authorities ignored it as long as it was underground and off streets 3) Moral purity movement in late 19th century attacked prostitution 4) Brothels often served as distribution center for contraceptive and abortion information

69

V.

LEGAL REFORM AT CENTURY’S END

70

A.

LEGAL REFORM IN THE 19TH CENTURY 1. Summary a. 2. THEME: who should make the law? Judges or legislature (codification theory)

Historical background a. Period of very rapid growth and little restriction on bar admission 1) People would find someone to read law with and “examination” for bar admission would be oral conversation with local court judge – no formal examination or education 2) Very little in way of regulation until after Civil War 3) Usually do an apprenticeship Factors 1) Geographic and social mobility 2) Greater need for lawyers in commercial transactions Legal Education 1) No formal education. Very difficult to do research because not much systematic presentation of case law (no reporters, etc.). Function of apprentices was to copy out documents by hand, run messages, drop off documents Why Did People Hate Lawyers in 19th Century? 1) Lawyers are anti-democratic force in society – obstacles to democratic reform a) Why? (1) B/c lawyers have monopoly on knowledge of law (2) B/c lawyers are opportunists – do not really want a solution – like conflict b/c then they will make more money (a) See P.W. Grayson – p312 (3) B/c lawyers take control away from the people (a) Middleman b/w the Constitution and the people (b) B/c courts are so important and only lawyers can (4) Other sources (a) Alexis de Toqueville on Lawyers and Judges – p307 2) Society’s attempt to counter anti-democratic nature of lawyers: a) Codification b) Elect judges Metaphor - Law as Science 1) Lemuel Shaw on Lawyering (1827) – p305 2) Theory (how is law like science) a) What was concept of “science” in 19th century – methodical science did not arise until early 20th century b) Both are verifiable, repeatable c) Both are based on rational, systematic, immutable, universal principles (1) Laws are pre-existing and people can uncover them. (2) Thus, able to be codified (3) At this time, natural law was predominant legal theory (a) This is pre-legal realism movement

b.

c.

d.

e.

71

3)

4)

Thus, lawyers who manipulate the law are muddying what should be rational, scientific process – enemies of clarity Criticism (how is law NOT like science) a) How do you account for societal influences on development of law. b) Not verifiable c) There is no analogy to the law of gravity in law (although 1L students think there are answers) d) Holmes rejects this theory – instead, law is politics Significance of law as science theory a) Law as science is theory on which legal education is based

(b)

3.

Codification and Elected Judges Movement a. Concerns underlying movement to codification and elected judges 1) Underlying goals a) Get law out of hands of judges and into legislature: final voice on law should not be UNELECTED judge (acting on whim [e.g., what judges did in late 19th century during industrialization]) but elected legislature. b) Limit discretion of lawyers and judges c) Create predictability in the law d) Law should be open to all - not concealed, only interpreted by a few 2) Lawyers seen as aristocratic, not in touch with masses, conservative a) “Men who have made a special study of the laws derive from [that] occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.” (De Toqueville, On Lawyers and Judges) b) “Seldom do their sad eyes look beyond the musty walls of authority . . .” (Grayson) 3) Judges as arbitrary: common law seen as highly discretionary, arbitrary; whatever the judges want Election of judges 1) Attempt to make judges more like members of the legislature a) Judges won’t be able to make decisions without considering popular opinion on issue b) Restricts ability to thwart will of people as enunciated through legislature 2) This movement lasts throughout 19th century: pendulum shifts back to appointment on 20th century Codification 1) Advantages of codification a) Legislature represents will of people and codification will therefore represent that will and will take away unbridled discretion of minority and individual (Rantoul) b) Will make legal research easier (Story) c) Will harmonize dicta (Story) 2) Judges’ resistance reflected in dogma that statutes in derogation of CL will be construed narrowly 3) Success of codification effort a) Certain branches of law (civil procedure) codified b) Restatements of Law and Uniform Commercial Code written c) Most areas of substantive law remained in common law

b.

c.

72

4.

Methods of Legal Education a. Traditional method 1) Serving as apprentice in return for rudimentary training 2) Very hit and miss depending on who you latched onto Litchfield Law School (1828 Advertisement) 1) Approach a) Very systematic, breaking law down into titles b) Independent research after lecture 2) Reflected attitude as law as science a) Categorization of general principles from which law is derived b) Far more systematic and rigorous approach than reading law 3) Teaching method a) Lecture by professor b) Students get together afterwards, recopy notes and annotate them by looking up cases in library c) Exam every week about what was learned 4) Independent law schools modeled themselves on this a) Learning by rote, lecture b) Books were treatises (not casebooks) 5) Methodology went into decline when Langdell introduces his theory and then pretty much eradicated in early 20th century Theory: there should be systematic training in law Langdell – Harvard – p337 1) Langdell’s Reforms a) Instituted more rigorous admission requirements (stiff entrance exam or baccalaureate degree) b) Instituted law review c) Instituted 1L curriculum d) Instituted Socratic method e) Instituted exams f) Three years instead of 2 g) Introduced casebook What’s scientific about the Socratic and casebook method? a) Socratic method is experimental method (1) Question and answer process isolate the principles and then apply those principles to varying fact scenarios (a) Understanding process of getting to answer is what’s truly important so that you back it up. (2) Science is looking for unknown answer using general principles and Socratic method is similar b) Casebook as Darwinian natural selection (1) Casebook will select the good cases and the bad ones will perish (2) But who gets to decide which case are “good cases” Effectiveness of Langdell’s Method a) Extends power of legal profession

b.

c. d.

2)

3)

73

b) c) 4)

Gave greater national training when need for such lawyers because of growth of corporation No longer focused on law in a particular state but rather cosmic legal principles

WHY has this approach endured? a) Enduring: basic system set into place has endured (1) Why does the model still hold if the underlying assumption (law is science) is no longer valid? b) Elevate law from trade to a profession (1) Legal developments after Civil War create demand for formally trained lawyers (e.,g., rise of corporations, have to know national law rather than just local law) (2) Benefits of this elevation: (a) Langdell legitimated study of law as sophisticated academic endeavor (b) Increased relationship between law schools and state bars (c) Increased prestige (d) Serves large corporate clients (e) Made law more systematic – there are benefits to this. c) Teach students to “think like a lawyer” (1) What does “think like a lawyer” mean? Is it just selfperpetuating? (a) How much is ideology? (b) How much is self-perpetuating? (2) Assumes people learn law better in situation of tension rather than lecture. (3) Trains people both to litigate but also get people into larger corporate practice (casebooks geared to national focus) d) Law school is cost-effective: (1) Perceived that individualized instruction isn’t necessary e) What are weaknesses/disadvantages of Langdell’s method (1) Divorces legal education from practice (a) No clinical legal education (b) Criticism: would you like to go to a doctor who was trained in Socratic method but never saw a patient? (c) This was not Langdell’s vision: his vision was to study principles in scientific way and understand abstract principles (2) Certain fields are elevated above others (a) Only study certain subjects (property, contracts) and not others (constitutional law, legislation) (b) Neglect study of legislature and legislative process (3) Focuses only on appellate cases (a) Seems to discount regional variations in law. (4) Rejects legal reform (a) Very conservative, narrowly focused way of looking at law – (5) These ideas influence Holmes’ views Changes Since Langdell’s time a) Development of legal writing curriculum b) Development of clinical programs

5)

74

5.

Theories of Legal Decision-Making a. Law as a science 1) Principle (Shaw’s Lemuel Shaw on Lawyering) a) Lawyers extract principles out of law and apply them to situations in front of them like scientist applies principles to hypotheses b) Derive principles from natural law and apply them to cases - Therefore law is not indeterminate, arbitrary 2) Law as Science (Langdell) a) Library is laboratory b) Books are where we glean information, like scientists do from science experiments (1) Not experience-based learning (2) Socratic method is experimental method for students to apply principles to situation Legal Realism According to Oliver Wendell Holmes 1) Possible EXAM Question on Holmes a) THEME – it is a struggle to be fair (1) Lanctot: neutrality is impossible, fairness is possible - judges recognize that they have biases and that they try to rise above those biases. b) Questions: (1) Holmes believed . . .. Using 3 examples from different time periods, would you agree or disagree with Holmes’ philosophy or Langdell’s philosophy. (2) How do judge’s respond to changes in society? Industrial revolution? Regulatory state? Internet? c) Industrial revolution: (1) Would Holmes agree that courts should have followed/encouraged with their decisions technological development? (2) But remember “three generations of imbeciles is enough” – upholding sterilization. (3) If society is changing, then courts should step back and let legislature do. Background a) Wounded many times in civil war b) Went to law school b4 Langdell c) Delivered series of lectures entitled The Common Law d) 1882 - 1902: Holmes serves on Mass Supreme Court e) 1902-1932: Holmes served on U.S. Supreme Court Holmes’ Criticism of Langdell – a) Holmes insultingly calls Langdell “the greatest living legal theologian”: (1) What does Holmes’ mean by this? (a) Disagrees with Langdell’s idea that there is logical, coherent order to law – Holmes think law is like roll of dice.

b.

2)

3)

75

(2) 4)

Holmes criticizes Langdell b/c he divorces the law from practical reality. Criticizes Langdell for being romantic:

(b)

Holmes’ Descriptive View of Law: a) What is law for Holmes? (1) “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” (a) Generally: law is not a neutral science but politics (b) Law is judges acting on their personal experiences i. Law is history and political, “law is politics,” law is ever-changing (c) Judges decide cases based on expediency (d) There is no room for justice and morality in what judges do (e) Lochner dissent: Holmes said “judges should not impose their social biases” i. Is this consistent? No, because seems like he is talking about a higher morality ii. Ironic – b/c that statement sounds like Scalia but Scalia is probably natural law theorist. (2) Discussion: (a) How much law is actually done in courtrooms, as opposed to backrooms? (b) Is Holmes saying the law about nothing more than prediction? Is Holmes saying there is no such thing as law? (c) Is there any room for abstract ideas of morality and justice in Holmes’ theory? (d) If law is nothing more than history and politics, and there is no room for justice and morality in what judges do, what do you do with slavery? b) Holmes’s on Role of Precedent - The Common Law (1881) – p347 (1) Formalistic reliance on precedent (because its been around for a while) is bad idea - Law is always approaching and never reaching consistency

5)

Holmes’ “Bad Man” Theory of Law - The Path of the Law (1897) – p350 a) Purpose is to dispel confusion of morality and law b) To know what law is, bad man wants to get away with as much as possible. Cares less about morality, only cares about what imposes liability and how likely liability will be imposed c) Doesn’t matter whether something is right or wrong, matters only whether social policy has said liability should be imposed Holmes’ Normative View of Law a) Does Holmes’ want judges to act on their personal views or does he want them to recognize them and rise above them?

6)

76

b) c) 7)

What is Court’s role when it encounters something that legislature is done? Holmes thought of himself as a great skeptic – he thought he skeptically recognized his own beliefs

Holmes’ View on Legal Education a) Lawyers should debate social advantages/disadvantages of particular policy/law and evaluate on that, not on irrelevant notions of morality Criticism of Holmes and Legal Realists a) Not clear whether they are being descriptive or normative b) Leads to nihilism (but Lanctot does not think Holmes goes this far) c) No notice, no ability to affect behavior (if everything is relative, subjective, how can law affect behavior?) d) No role for justice

8)

77

B.

THE EMERGING REGULATORY STATE 1. Post-Civil War Regulatory Efforts a. Growth of Reform movements at state level – state legislatures starting to question laissez faire economy 1) General Concerns a) Concern about concentration of wealth b) Concern about health and safety of workers 2) Reasons for emergence of labor regulation a) Fear of labor unions b) Population crisis as expansion slows and cities become more populated c) Fear of cheap immigrant labor depriving Americans of jobs d) Response to increased industrialization 3) Workmen’s compensation laws a) Abolition of fellow-servant rule (1) Guaranteed recovery for death or disability (2) Placed caps on amount of recovery b) Advantages for business (1) Decrease in liability and slowdown in growth of unions (2) Could build liability cost into cost of doing business 4) Child labor laws a) Labor unions moved for these to decrease child labor competition b) State laws generally upheld because part of police power c) Federal laws generally struck down because interfered with police power, intrastate commerce Growth of Federal Economic Regulation – Roots of Administrative State 1) General Reasons for Growth of Federal Econ Regulation a) Growth of RR (1) Creates interstate markets (cannot be regulated by individual states) b) Growth of Economy (1) Made national solutions both important and possible (2) Problems no longer local in scope (requiring national solution) and government has greater capacity to deal with problems (administrative apparatus) c) Growth of large corps/trusts becomes a political issue (1) emergence of national corporations (2) Congress passes Anti-Trust Act in 1898 (3) TR as “trust-buster” 2) Federal administrative agencies and constitutional issues a) Separation of powers issues: these are executive agencies that will foster power of executive (1) Administrative agencies didn’t seem to fit within any of three branches (2) Combination of executive, legislative and judicial functions b) Supreme Court’s approach (1) Concerned about emergence, hesitant to provide support (2) Gradually, agencies emerge but not until New Deal do courts acquiesce and develop variety of doctrines

b.

2.

Rudimentary Economic Substantive Due Process (Cooley and Tiedemann)

78

a.

Concerns Underlying Development of Substantive Due Process Theory 1) Socialism would allow government to come in and regulate everything (expansion of federal government spurred this concern) 2) Property rights needed to be protected 3) Concerned about income tax legislation (income tax declared unconstitutional) 4) Social legislation (child labor, worker’s comp) interfere with property rights: interference with freedom of K Concept of Substantive Due Process: 1) Inherent limitation on legislative power going back to notions of inherent rights (Magna Carta, Calder v. Bull: act of legislature contrary to natural law is void (Chase, J.)). 2) Purpose for taking must proper and related to needs of government (p. 341) 3) What is required for substantive economic due process? 4) Significance of theory: as states try to regulate economic conduct, courts strike down laws based on substantive economic due process laws Early Glimmerings of Substantive Due Process 1) Magna Carta: fundamental rights/liberties. 2) Cases a) Some of these concerns played out under Contract Clause (e.g., Dartmouth College Case) b) External check on legislature that flows from due process (Calder v. Bull – Chase – 189) – natural law as check on legislature if legislature breaks social compact – legislation is void c) Dred Scott - law that bans slavery in territories violates SDP – law that interferes with private prop could not be dignified with name of due process of law 3) Treatises: a) General theme: Interference with free through regulation market inherently violated SDP b/c interfere with liberty of K. b) Cooley - A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union (1868) (1) Most influential treatise in late 19th century and early 20th (2) Due process doesn’t just mean regular procedure but also means looking at substantive laws to see if there is an interference with property rights that there is a very good purpose c) Tiedemann - A Treatise on the Limitations of Police Power in the United States (1886) (1) More extreme view of Cooley (2) Almost all laws that interfere with property rights (liberty of k or right to private property) are void Collision Course b/w Reform Groups and Unsympathetic, SDP-concerned Court

b.

c.

d.

79

C.

JUDICIAL REACTION TO THE REGULATORY STATE 1. Two Theoretical Approaches a. Substantive Due Process Approach - Slaughterhouse Cases (US 1873) – Bradley dissent – p370 1) There are fundamental rights (life, liberty and property) that cannot be interfered with 2) Problem was not privileges and immunities but . . . . 3) “[A] law which prohibits . . . .” P371 4) Laws that interfere with one’s livelihood violate due process Reaffirmation of Police Powers Approach - Munn v. Illinois (US 1877) – p372 1) People have fundamental rights but, when they enter society, they give up some of those rights when its for the common good 2) There is a police power to regulate health, morals, safety in “industries infected with public interest.” Reconciling these two views 1) Bradley’s dissent recognizes existence of police power - “material” infringement.

b.

c.

2.

Judicial Reaction to Regulations a. Congressional Power Under the Commerce Clause Cases: 1) In re Debs (US 1895) – p378: a) Federal police power and labor b) Government injunction of labor strike constitutional exercise of commerce power c) Evolved out of 1894 Pullman Strike which halted operation of all railroads running through Chicago d) Eugene Debs (Union president) convicted for violating injunction 2) U.S. v. E.C. Knight & Co. (US 1895) – p381 a) Commerce power may only act directly on rules by which commerce shall be governed b) Cannot directly act on monopoly involving single state but only indirectly c) Monopolies fall within police power of state d) Federal government had tried to apply Sherman Anti-Trust Act to sugar company controlling 90% of market 3) Reconciling Debs and Knight a) Result-oriented jurisprudence b) Knight struck down federal regulatory power which impeded corporations c) Debs was broad power to break unions (protect corporations) Liberty of Contract Cases: 1) Allgeyer v. Louisiana (US 1897) – p383 a) States may not interfere with liberty of contract (including labor contracts) b) Struck down statute regulating writing of insurance contracts by out-ofstate firms 2) Holden v. Hardy (US 1898) – p384 a) State may limit number of hours employees could work because labor and employer do not have equal bargaining power

b.

80

b) c) 3)

4)

State statute regulating hours of miners Paternalistic side of Court, involved health and morals as well as liberty of contract Muller v. Oregon (US 1908) – p392: a) Paternalism and the female worker b) State may regulate employment relationship between women and employers because women need special care like minors (physically weak, often mother of children) and are at disadvantage c) State statute regulating hours women can work d) Why does CT pull back on liberty of K when it is women’s bargaining power not men? Is it that liberty of K concepts do not apply to women or is that liberty of K concepts apply differently to women? Women have no political power – cannot vote – CT has to protect them? e) Why did progressive women, feminists support this legislation? Reconciling Allgeyer, Holden and Muller a) Liberty of contract protected in all three because equal bargaining power prerequisite of liberty of contract b) Race suicide – if women are destroying their reproductive ability, it will destroy future well-being of the human race. c) Would Lochner come out differently if there was a Brandeis brief? I think no b/c there is no public safety issue – no race suicide.

c.

State’s Power to “Destroy” Property: 1) Wynehamer v. The People (NY 1856) – p368: a) All property is sacred, despite its form b) State may not declare form of property worthless and destroy it c) State prohibition statute 2) In re Jacobs (NY 1885) – p374: a) Substantive due process in state courts b) “[A]ny law which takes destroys [property] or its value, or takes away any of its essential attributes, deprives the owner of his property.” c) Exercise of police power must bear some relationship to ends d) State law banning production of tobacco-products in tenements

3.

The Reach of Substantive Due Process a. b. c. How much deference if any will courts give to legislature? What will legislature have to show to have regulation upheld? Lanctot questions characterization of CT during this era as “Lochner era” – era when CT just struck down all economic regulation - she says it is more complex than that – try to find other rationales/justifications. Themes for why upheld or why struck down? How would legal scientist explain the outcomes in these cases? How would legal realist/Holmes explain the outcomes in these cases? Concerns about socialism, rise of labor unions, immigration, emigration Regulation Struck Down Regulation Upheld

d. e. f.

81

Wynehamer (NY 1856) State can’t prohibit alcohol sale In re Jacobs (NY 1885) State can’t prohibit producing tobacco-products in tenement houses Lochner v. NY (US 1905) state can’t regulate hours working in bakery Allgeyer v. La. (US 1897) Regulating insurance k by out-of-state firms E.C. Knight (US 1895) Sherman Anti-Trust Act doesn’t apply to sugar mills Ives v. Railway (NY 1911) Worker’s compensation laws

Munn v. IL (US 1877) Holden v. Hardy (US 1898) Max hrs for workers in mines Muller v. OR (US 1908) Max hrs for women workers in laundries P461 Champion v. Ames (US 1903) Regulation of lotteries In re Debs (US 1895) Regulation of unions by allowing injunctions to break strikes Loewe (US 1908) Regulation of unions by applying anti-trust laws to them

4.

Reconciling Lochner and Muller a.

Lochner v. New York (1905)
1) Statute: a) b) c) d) Holding a) b) c) d) Regulated hours bakers worked Legislative findings Bakers more likely to inhale contaminants, fumes Bill passed unanimously (to limit working hours)

2)

3)

Struck it down Legislation interferes with freedom of k Workers have freedom to sell labor and employers to buy Law that purports to interfere with this freedom exceeds police power and is unconstitutional e) Says can’t regulate hours, skeptical that this was really about regulating health Holmes’ dissent a) Court decided case on economics b) Shouldn’t second-guess legislature c) It’s not for Court to decide whether regulation of work hours is a good idea d) Reasonable person could believe this to regulate health e) State can regulate liberty of k (i.e., Sunday laws, etc.)

b.

Impact of Muller: led to lots of protective legislation for women that doesn’t break down until Title VII (e.g., maximum hours, regulating times that women can work, what jobs they can work). Reconciling Lochner and Muller 1) How much of a role did gender play?

c.

82

2)

There were more paternalistic views towards women But in Holden regulation of hours of men in mines was regulated (and upheld) c) Muller said women were at disadvantage in bargaining power (legal incapacity, economic pressures from employers) Role of the Brandeis brief a) Brandeis Brief: (1) 100 pages: 98 facts, 2 legal arguments (2) Talked about physical inferiority of women (3) Women are weaker and require special protection b) Why would feminists embrace this brief (actually asked him to write it)? (1) May have believed the societal image of women as weaker and now there are medical facts to back this up (2) Protective laws needed to protect unique functions of women (childbearing) and bargaining power (3) If Court’s attitude was substantive due process and liberty of k is almost absolute and need really good reason to interfere Brandeis brief gives really good reason to interfere c) Were Court’s own ideas about women confirmed by Brandeis brief?

a) b)

5.

Compare Courts’ Response to Regulatory State to Courts’ Response to Industrial Revolution a. b. EXAM QUESTION Regulatory Liberty of Contract 1) Change in economic conditions 2) In theory, liberty of k doesn’t wholly support business because assumes equal bargaining power 3) Legislature was inactive, doing nothing – courts had to act – nothing to defer to 4) Judges aided development – ahead of their time – acting in favor of popular will Industrial Revolution 1) Change in economic conditions 2) Desire to promote growth and fear that state legislation would threatened economic growth 3) Legislature was very active – should courts have been more deferential 4) Judges as obstacles to progressive reform – behind their time – acting against popular will Themes 1) Think about Legal Realist and Legal Scientist Approaches 2) What is judges’ role in the political, governmental system? 3) What about “judicial recall/removal”?

c.

d.

83

VI. A.

THE PROGRESSIVE ERA INDIVIDUAL LIBERTIES IN CHANGING TIMES 1. Brandeis & Warren – The Right to Privacy (1890): a. b. Concept: right to privacy was natural evolution of common law Developments that would lead to concern about right to privacy: 1) Population growth: 2) Growth of mass media: a) Press becoming intrusive b) Emergence of tabloid press publishing gossip 3) Growth of technology: a) Camera b) High-speed, able to publish photographs, presses c) Recording devices d) Emergence of tabloid press publishing gossip e) Telephones f) Could be wire-tapped – see Weeks v. US (US 1914) (discussing searches of homes) and Olmstead v. US (US 1928) (upholding wire taps). g) Party lines (shared lines with others--could hear other people’s conversations) 4) Urbanization/industrialization: a) Prior laws on property not enough protection for modern day conditions b) Number of factories increasing New Theory of Privacy: 1) Theory: there should be protection against the use of one’s personality for private gain by others. 2) Effect of new theory: create tort of intentional infliction of emotional distress.

c.

2.

WWI and Civil Liberties – Suppression of Dissent: a. Government’s Actions During WWI: 1) Suppressed suffrage movement: arrested and interrogated suffragist picketing White House and calling Wilson “our Kaiser.” 2) High level of hysteria re: Bolsheviks and anti-German sentiment. 3) Used mass media and government to spread propaganda, demonizing enemy. 4) Sedition Act of 1917: a) Felony to disrupt recruitment or enlistment b) Felony to encourage support for Germany or disrespect for America c) Felony to bring government, leaders or symbols into disrepute 5) Espionage Act of 1917: a) Illegal to cause insubordination b) Illegal to interfere with enlistments c) Illegal to transmit false statements that obstruct military d) Established postal censorship Compare to Government’s Approach in Other Times of Crisis:

b.

84

1) 2)

1798 Sedition Act: a) Fear of domestic insurrection and end of government b) No concept of loyal opposition to government Civil War: a) Fear of domestic insurrection and end of government b) War occurring within national boundaries

c.

CT’s Reaction to Protection of Civil Liberties During WWI: 1) Clear and present danger test (established in Schenck v. United States (US 1919) and refined in Abrams v. United States (US 1919)). a) Schneck Facts: defendant who mailed anti-war leaflets to draft age men in WWI b) Abrams Facts: defendant had been prosecuted for publishing 2 proBolshevik leaflets c) Standard established in Schenck: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” (1) Derived from common law by Holmes. (2) Compare to Holmes’ dissent in Abrams where he said danger had to be “immediate.” 2) Holmes’ dissent in Abrams later adopted by CT. 3) Case – Whitney v. CA (US 1927): Holmes and Brandeis write eloquent defense of freedom of expression. Role of First Amendment during wartime: 1) THEME: CT interpreted its constitutional role as deferring to executive branch in time of war a) Rationale: (1) CT isn’t supposed to get into foreign affairs issues (2) Executive branch has privilege to override civil liberties in wartime (because accountable to people). b) But Ex parte Milligan: the Constitution is the Constitution in war as in times of peace; framers knew that we would get into more wars. 2) Is this still CT’s approach today?

d.

3.

Rise of Constitutional Amendments as Way to Change the Law: a. b. Constitution amended 6 times in 20-year period (1913-1933) - (one amendment repealed another). Amendments: 1) Income tax (XVI) 2) Direct election of senators (XVII) 3) Women get right to vote (XIX) 4) Setting terms for president/assembly of Congress/succession (XX) 5) Repealing Prohibition (XXI) 6) Prohibition (XIII): a) Notions that stopping consumption of liquor would improve society. (1) Parallels to modern day prohibition of drug. (2) Modern analogy might be complete ban on sale of cigarettes b) Had fairly dramatic effect on law:

85

(1) (2) (3) (4)

Led to organized crime (bootleggers made money, gave income to go into other areas of crime). Search and seizure law expanded to enable enforcement of law. Tremendous upswing in number of cases in criminal court re: prohibition. Social impact: (a) Did people become more skeptical about law, less concerned about following it? (b) Is this connected at all to MLK’s statement about a duty not to follow unjust laws?

c.

Compare to New Deal where preferred way to change the law was by legislation – why the change?

86

VII. A.

THE LAW AND THE NEW DEAL THE LAW AND THE NEW DEAL 1. THEME – what is proper way to affect social change? a. Effect social change through amendments changes to effect social change through legislation?

2. 3.

ROOTS OF NEW DEAL – Oliver Wendell Holmes, Jr. – Law and the Court (1913) ROOTS OF NEW DEAL – Brandeis – “Brief for the Defendant in Muller v. OR” – Sociological Jurisprudent (1907) ROOTS OF NEW DEAL - Roscoe Pound – Liberty of Contract - Criticism of Legal Formalism a. b. Pound as bridge figure in legal realism: 1) His work was represented a transition in legal realist theory from Holmes to Frank Background 1) Pound was a scientist (botanist) by training 2) Rejected Langdell’s theory of legal science 3) Influences: Darwin’s theory of evolution and empirical evidence Pound attacked CT’s decision in Lochner: 1) Said CT’s decision in Lochner constituted “mechanical jurisprudence” – he argued for sociological jurisprudence. 2) Elevated private prop and K above what constitution was designed to do – reflects Holmes dissent in Lochner Sociological Jurisprudence as a Theory 1) Law is based on moral and ethical values but is flexible 2) Law should take into account modern ideas about the law 3) View on judges a) Felt judges should pay more attention to social impact of their decisions b) Judges should take facts instead of abstract principles into account 4) Compare to Holmes a) As opposed to Holmes, Pound continued to insist that law had a moral dimension b) This makes him the figure against which the younger legal realists rebel – they did not think law had any moral dimension c) Pound was a radical challenging the establishment but later became part of establishment. Post-script 1) Legal realist turn against Pound by 1930s

4.

c.

d.

e.

87

5.

ROOTS OF NEW DEAL - Jerome Frank – Law and the Modern Mind (1936) – p467 a. Background 1) 20 years younger than Frank 2) Active corporate lawyer before beginning to teach 3) Frank underwent psychoanalysis and this profoundly effected his life 4) Frank was a suspect for a short time in the Leopold and Lob murder case: some commentators say this experience influenced his great skepticism about fact-finding and skepticism about juries. 5) The publication of this book catapulted him into fame 6) Principle advisor to FDR, general counsel to AAA and first chairman of SEC, later a judge Where is “law” in his view? 1) Lanctot finds it intriguing that law students all complain that judges make it up as they go along, never follow precedent, only decide cases based on what they had for breakfasts BUT then same students reject Frank (do not want to embrace ultimate end of their cynicism) View of legal precedent as basis for deciding cases 1) Little value in precedent because language of earlier decisions is just manipulated 2) Therefore, law is unpredictable because precedent is meaningless 3) Compare to Langdell: a) Precedent reflects underlying legal principles and when we uncover them, we should keep the cases that follow these principles and discard these others. 4) Compare to Holmes: a) Be careful of precedent – do not cling to it with skepticism/analysis. View on how judges do decide cases – descriptive: 1) He thought judges based their decisions on emotions and unconscious biases View on how judges should decide cases - normative: 1) Thought psychology should influence judicial decisions a) Thought all judges should undergo psychoanalysis before going on bench so that they could understand their own thought processes – judges should be in “enlightened state of awareness of their unawareness.” b) Law is uncertain and that’s a good thing c) “Father-as-infallible-judge” theory: people looking for certainty are looking for unachievable father figure 2) ??? Law doesn’t have content Criticisms: 1) Frank is hopeless 2) What historical examples support Frank’s position Post-script: 1) After Nazi atrocities of WWII, Frank became an advocate of natural law doctrine 2) Does law school train all students to be legal realists?

b.

c.

d. e.

f.

g.

6.

ROOTS OF NEW DEAL - Evolution of Legal Realism

88

a.

The American Law Institute – RSTMTs - Elihu Root – “Report of the Committee,” American Law Institute – 1923: 1) Underpinnings for RSTMTs a) Wanted greater precision/certainty in the administration of justice b) Wanted to avoid court decisions based on impulse of moment decisionmaking c) Thought courts would welcome and embrace the RSTMTs d) Grew out of belief that experts and elites could scientifically figure out what the law were and write them down, thereby avoiding the legislature e) Reliance on experts – these questions should not be left to horse-trading legislators 2) Compare to codification concept from turn of century: a) RSTMT (early 20th century): (1) Goal is to record what law should be (2) Legislature not involved b) Codification – legislature better than judge-made law/common law (late 19th century): (1) Goal is to record what law is (2) Legislature debate and draft the code c) Judge-made - worship c/l – judge-made law is better than legislature (early 19th century): 3) Are RSTMTs neutral? a) No - in actuality, drafting of RSTMT reflects policy judgments Brandeis Brief: 1) Persuaded courts by scientific accumulation of facts, not legal argument 2) Court can then consider facts and how they apply to society 3) Reflects idea of legal realism that law is in part policy 4) Often used in internet, cyberspace cases – in pretty much any case arguing for reform Holmes was precursor to formal notion of legal realism - factors that shape the law (Holmes’ view): 1) Law is not based on morals but rather ethical realism 2) Unconscious biases motivate judges 3) Law is made up of historically contingent choices 4) Law is uncertain 5) Social sciences can illuminate legal controversies 6) Experience 7) Legislatures should be afforded great deference 8) Practical considerations rooted in underlying social needs and conflicts Tenets of Legal Realism in Early 19th Century - Karl Llewellyn – p469: 1) View of law a) No legal absolutes b) General skepticism about whether rules predict behavior; empirical data is better c) Law should be divorced from reality 2) View of legal system a) Judges influenced by extra-legal and unconscious factors: judicial discretion is necessary, healthful and inevitable b) Factual findings should be more trustworthy: trained jurors and special verdicts

b.

c.

d.

89

e.

Why Did Legal Realism Emerge in 1930s/Progressive Era? 1) Post WWI 2) Great public cynicisms about institutions - Ivory Tower 3) Public viewed legislature as unresponsive: a) Public thought that legislature was composed only of wealthy person who did not take into consideration the needs of society – thus, passed laws that did not take into account needs of society 4) Public viewed courts as opponents of reform: a) Reformers thought legal realism theory was solution to judiciary that was unresponsive to social demands of industrialization, urbanization and immigration Significance of Legal Realism During Great Depression: 1) Justified social legislation by relying on empirical data, not precedent How viable is legal realism as a legal philosophy today? 1) Legal Realism Fell into Disfavor Due to World Events: a) Theory that law is irrelevant/indeterminate/law is divorced from morality/no moral content in law justifies atrocities in Nazi Germany b) Downfall of legal realism comes at end of WWII: Jerome Frank rejects legal realism after WWII 2) But legal realism is still very influential today.

f. g.

7.

ROOTS OF NEW DEAL – Rise of Legal Liberalism a. Shift in underlying character of liberalism – government has positive duty to provide for well-being of each citizen.

8.

ROOTS OF NEW DEAL – Historical Background of Depression and New Deal: a. The Great Depression: 1) Defining event of American generation. 2) Effect on economy: Stocks almost worthless Unemployment at all-time high Car production at 20% 3) Roosevelt elected in 1932 to save country from Depression: elected by landslide, immediately took a lot of measures to foster economy. FDR’s First Term - American Experience video: 1) 1932: FDR elected president 2) FDR changed mood of country – electrifying, dynamic, establishes himself as a leader 3) Public sentiment = free enterprise system was failing, would communism take over (image of violent overthrow of government [i.e., Russian Revolution, Germany, Italy] 4) Big question = would economy repair itself or should government intervene? 5) FDR did not have any consistent plan – tried all sorts of new things 6) Did New Deal create concept of welfare state – create idea that individuals are entitled to government help? 7) FDR orchestrated publicity campaign around NRA – government and industry should work together

b.

90

8) 9) 10) 11)

FDR used radio to speak directly to American people FDR charmed the press – conspiracy to cover up his handicap. Criticized by his high society peers for being a “traitor to his class” because his legislation attacked them. Thrust of New Deal legislation = CODES: a) Ban unfair competition b) Codes were supposed to be written by industry c) By time they reached Court, bogged down in bureaucracy

c.

Democratic Convention of 1936: 1) Renominated by popular acclamation and re-elected by landslide: a) Biggest popular margin in history b) Captured black vote, white southerners, inner-city immigrants 2) New Deal at high tide: a) 6 million already back to work b) Corp profits rising c) Overwhelming popularity and personal connection to people (“He gave me a job,” “He saved my house”) d) Considered his opponent to be big business 3) Eleanor Roosevelt: a) Advocate of New Deal, black Americans b) Loved or hated

9.

CT’s Response to New Deal Legislation a. Court Composition: 1) Conservative wing (“The Four Horseman of the Apocalypse”): a) Justices Van Devanter, Sutherland, McReynolds and Butler b) Had matured in law in late 19th century and were entrenched in those beliefs c) Voted as bloc to strike down economic legislation (economic substantive due process) 2) Liberal wing: a) Justices Brandeis, Cardozo and Stone b) Generally supported New Deal Legislation 3) Middle (Hoover appointees): a) Chief Justice Hughes and Roberts (ultimately swing vote) Early Defeat of New Deal Legislation: 1) Collision course: needs of country as expressed in New Deal legislation collided with CT’s view of constitutional doctrine from another era. a) Result: from 1920-33, CT struck down 23 pieces of legislation. 2) Rationale: CT is concerned with presidential power grab – worried about fascism and communism (what is going on in Europe is in back of all justices’ minds) – do not want too much power concentrated in one branch. 3) Case - Schecter v. United States (1935): a) Held: Code unanimously struck down as unconstitutional b) Facts: (1) Code, under National Recovery Act (NRA), regulated unfair competition in poultry industry (2) Industry had first chance to write codes but, if it didn’t, then federal government stepped in c) Challengers’ Legal Theory = SOP Concerns:

b.

91

d)

e)

Non-delegation doctrine: too much legislative authority is given to executive and separation of powers (2) Saber rattling about FDR becoming a dictator Justice Department’s Legal Theory: (1) Constitution is flexible, susceptible to expansion in times of crisis (2) Enough that Congress identifies general goals, then okay to delegate authority to carry out means CT’s Response: (1) Uncomfortable with flexible concept of Constitution (also reflected in United States v. Butler) (a) Butler dealt with Agricultural Adjustment Act: struck down as violating amend. X’s reservation of powers (affirmative limitation on federal powers) and dormant commerce clause (2) No power to regulate agricultural production under Art. I § 8 under guise of regulating for general welfare.

(1)

c.

Later New Deal Success: 1) Case - West Coat Hotel v. Parrish (1937): a) Held: CT upheld minimum wage law almost identical to one struck down year before - Justice Roberts switched vote b) How would Langdell view this? (1) Either incorrect principles were applied year before or misapplied correct principles c) How would Holmes’ explained this? (1) CT was reacting to political effect of packing plan (2) Maybe Court started to rethink position in light of popular support for Roosevelt, FDR’s pressure, “felt necessities of time” d) What happened with Roberts? (1) Some historical evidence that Roberts was considering switching his approach before FDR’s plan ??? Reasons for Change in CT’s Approach to New Deal Legislation: FDR’s Effect on Composition of CT during his Three Terms: 1) FDR’s First Term: FDR does not get to appoint anyone. 2) FDR’s Second Term: FDR appoints Reed, Frankfurter, Douglass, Murphy and Black to replace Van Devanter who retires in 1937 (there is huge battle over Black because he was member of KKK early in career). 3) FDR’s Third Term: FDR appoints Jackson, Burns and someone else. 4) Only seat FDR didn’t fill is Roberts’.

d. e.

10.

FDR’s Court-Packing Plan a. Events leading up to CT-packing plan: 1) FDR wins 1936 election in landslide – overconfident. 2) FDR afraid CT was going to strike down SSA and union collective bargaining law. 3) FDR was personally angry with CT for their opposition to New Deal legislation: a) From 1920-33, CT struck down 23 pieces of legislation. b) Anger may have led him to miscalculate. Scheme:

b.

92

1) 2)

Details of scheme: Bill give President power to appoint additional justices and therefore outnumber his opponents. FDR’s underlying theory of how government should work and, especially how CT should work: a) Three-horse team pulling together: all 3 branches need to work together, having same political ideas - all need to be working together to get country moving. b) FDR viewed courts as political animals. c) FDR viewed SOP and checks and balances system more as “overlapping powers” than separate powers.

c. d.

Possible effect of scheme had it worked: make CT much more political Why did the court-packing plan fail? 1) Why did FDR meet such opposition? a) Unexpectedly strong public opposition: (1) Was public reaction so strong because of how the scheme changed the executive branch’s power or because of how scheme changed judicial branch? (2) Judicial branch concerns: (a) CT is special: there is something about attacking Court in particular that got people riled up – judiciary is supposed to be independent. (b) Public trusts the courts as independent protectors. (c) Public has great reverence for courts at this time. (3) Executive branch concerns: fascism b) Concern about naked power grab: “More power than a good should want or than a bad made should have.” c) Unexpectedly strong congressional opposition from both sides: (1) FDR attempted to charm Congressmen (like he had in past) but was never able to win enough votes. 2) Was this really a failure? a) NO – b/c CT stopped opposing his New Deal legislation. b) YES - expressly (1) FDR lost confidence of country. (2) FDR and his party paid for it in 1938 elections when Republicans won governorships, congressional seats. (3) FDR lost popularity - didn’t attain great popularity again until WWII began. (4) Opponents recognized that FDR was not invincible – they could beat him. Post-Script: 1) New Deal lost some momentum when economy crashed (e.g., stock market fell, businesses went out of business) press called it the “Roosevelt recession”

e.

93

VIII. A.

WORLD WAR II WAR POWERS 1. THEMES: a. b. 2. Are military tribunals constitutional? Should military tribunals provide constitutional protections?

Trial of the Nazi Saboteurs - Ex Parte Quirin (US 1942): a. b. c. d. Facts: defendant Germans snuck into US, without uniforms, to destroy certain forces. Held: no trial by jury for offenses against the law of war. Reason: lawful and unlawful combatants Significance: 1) Compare and contrast with Ex Parte Milligan (Civil War cases re: habeas corpus). 2) How can both supporters and opponents of military tribunals for Afghan prisoners find historical support in this decision? 3) Essay question on constitutional rights available to prisoners of war – Afghan prisoners in Cuba.

3.

War Crimes: a. Case – In Re Yamashita (US 1946): 1) Facts: should Japanese commander be responsible for atrocities committed by his soldiers? 2) Issue: does military tribunal have jurisdiction here? 3) Held: military tribunals are not equivalent of courts, same rights do not attach 4) Murphy and Rutledge Dissents: there is no exception in Constitution for military persons – all people are entitled to protections of Constitution – Constitution applies in war and peace – universal principles. 5) Significance: How can both supporters and opponents of military tribunals for Afghan prisoners find historical support in this decision?

94

B.

CIVIL LIBERTIES DURING WARTIME 1. THEMES a. b. 2. What is CT’s role in times of war/crisis? To uphold Constitution or know when Constitution needs to defer to circumstances? Do we evaluate our form of government or how our government should be work differently in times of war/crisis?

Flag Saluting Cases a. Upholding statute: Minersville Sch. Dist. v. Gobitis (1940): 1) Facts: Jehovah’s Witness children refused to salute flag as required by district because tantamount to worshiping graven image. 2) Held - Frankfurter (majority 8-1): a) Very deferential review: as long as there is some rational basis for requiring flag salute, then statute constitutional b) Purpose of statute = instilling patriotism, national unity - this is a legitimate purpose 3) Stone (lone dissenter): a) “The very essence of the liberty which they guaranty is the freedom of the individual from compulsion as to what he shall think and what he shall say, at least where the compulsion is to bear false witness to his religion.” b) Believes strict scrutiny required c) Decision interpreted by states as giving them free rein to run around and expel Jehovah’s Witnesses Striking down statute: West Va. State Bd. v. Barnette (1943): 1) Facts: state law requiring flag salute resulted in financial penalty, jail for parents and expulsion for kids if violated 2) Held: statute was unconstitutional. 3) Significance: a) Transformed issue from freedom of speech to freedom of religion assertion that thought cannot be compelled b) War time decision - might have expected this to come out the other way 4) Frankfurter’s dissent: a) Extremely upset by both direction Court had taken and what he perceived as personal attacks b) People wrote to him after Gobitis said, “You, as a member of a persecuted minority (Jewish), should have come out a different way.” c) Doesn’t matter that his personal opinion might be different. d) It is his role to let the legislature act unless there is some flagrant constitutional violation. e) Emigrant from Vienna (at 2 years) f) Perceived as liberal, progressive in 1939 g) Particularly concerned with exercising judicial restraint a la Oliver Wendell Holmes h) Became increasingly convinced that states should be free to do as they chose What motivated the Court to change?

b.

c.

95

1)

2) 3)

4)

5) 3.

Legal realism a) Court responding to felt necessities b) “Has Hugo been reading Constitution?” “No – he has been reading the newspapers” Langdell’s explanation a) Court realizing immutable principles had not been followed Court Composition a) Composition of Court changed (one resigned and FDR appointed) b) 3 Justices changed votes c) Black had been very upset about reports re: riots against Jehovah’s Witnesses d) Concerns about practical results? Incredible media attention to result of Gobitis a) Result of Gobitis case led to open season against Jehovah’s witnesses b) Members of CT worried that they created a principle of oppression they had not intended to create c) Reaction from religious-affiliated law schools, esp. Catholic law schools d) Voluminous press and scholarly criticism e) Extent to which War affected popular ideas of mandating salutes - Justices become worried that forcing people to salute was analogous to Nazi Germany – totalitarian, fascism. f) Reversal was acrimonious Frankfurter particularly upset by result

Treatment of Japanese During WWII a. Japanese Internment 1) Background: a) Anti-Japanese feelings were not simply aroused by Pearl Harbor long history of ill feeling toward Japanese immigrants (at least 40 year history) b) Restrictions: (1) Owning property (2) Naturalization (3) Immigration from Japan barred (4) Segregated schools (5) No right to vote in many places (6) Immigrants could not become citizens c) Culture of treating Japanese as being “unassimilatable” within American society: (1) 112,000 interned, 75% were American citizens (2) They could only take what they could carry (3) Resulted in tremendous loss of property 2) Home movies of Japanese internment camps (not shown before): a) Forced removal from homes by American army b) People living in barracks, with dirt roads c) Fences surrounding camps, bordered by a river d) Had to receive day passes to leave e) “Americanism is a matter of the mind and heart. Americanism will never be a matter of race or ancestry.” FDR quote hanging in camp - men from internment camp served in American army f) Thousands lived in camps, mess halls, block laundry rooms g) Japanese brought in by bus, train to camps

96

h) i) j) k) b.

Inmates would be moved and segregated to other camps At first, cameras were banned within camps Heart mountain camp in Wyoming, very cold (snow) located by mountains. People don’t look like they have proper clothes, windy and dusty Living quarters - Everyone in one room - beds lined up next to each other - corrugated aluminum walls (?) - some playground areas

Internment - Korematsu v. United States (US 1944) 1) Applies strict scrutiny but upholds classification and internment a) Compelling interest in preventing sabotage b) No least restrictive means because army has said no way to separate out loyal from disloyal 2) Black doesn’t see this as racial classification a) “Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice.” 3) Dissenters: a) General criticism: this is a racial classification b) Murphy’s dissent: Hirabayashi went to brink, this goes over c) Jackson’s dissent: (1) This is racial classification because someone is being imprisoned for national origin (2) This precedent will lie around like a “loaded weapon” – this is why CT should not have granted cert in this case – would have been better to deny cert – then no legal precedent laid down - “But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. . . . A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.” d) Roberts’ dissent: (1) Distinguishing Hirabayashi as “keeping people off the streets at night . . . On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp . . . solely because of his ancestry, without evidence or inquiry concerning his loyalty. . . .” (2) This is a loyal citizen of U.S. who is imprisoned because of his race 4) Is this decision an example of “legal realism”? A response to the political times, the fear of being attacked? 5) There was no civil liberties jurisprudence at the time this case was decided. 6) Did CT become part of the 3-horse team in this decision? 7) What motivated decision?

97

8)

9)

10)

Is it the war, or race, that makes it easy for CT to accept the military’s argument in this case? b) Racial fear. c) Government’s argument: (1) It’s impossible to separate out the loyal from disloyal (2) Japanese were so inscrutable that questioning won’t make a difference (3) Essentially said, “You rule against us, we lose the war” d) Justice Department’s role: (1) CT has had special relationship with Solicitor General: has always given particular deference to Solicitor General’s position – thus, when SG gave facts, Court generally paid deference. e) Vengeance: America wanted pay back! f) Practical considerations: too hard to gather Italians and Germans g) Japanese had no political power (1) Compare to Italians: FDR when asked about interning Italians: “They’re just a bunch of opera singers” – FDR didn’t want Joe DiMaggio’s father (who lived in SF) picked up and taken to internment camp - Italian-Americans could vote, had political power where Japanese didn’t Japanese reaction - Japanese serving in American army – have to prove loyalty: a) Those taken to camps could volunteer. b) Most decorated unit in war was Japanese unit. c) Tension in camps among Japanese about enlisting: some said enlisting was best way to show loyalty while others said enlisting was foolish, shouldn’t die for this country d) THEME: *** Compare propaganda that US government used in WWII with Japanese-Americans (prove your loyalty/patriotism by coming to camp) with what US government is doing now with Arab-Americans (prove your loyalty/patriotism by cooperating, by not asking for procedural rights) – in face of mistreatment/discrimination, minority groups try to show loyalty/patriotism (e.g., Japanese-Americans, feminists, civil rights, Arab-Americans). e) THEME: For a minority that has few rights, it is very hard to assert separateness to get new rights (compare to how black civil rights movement members were viewed as communists/agitators). Should Court defer to military during times of war? a) Argument that civil liberties should take back seat to military necessity when else there would have been “chaos” b) There was not, even at the time, lock-step agreement within government or military on this. Ethical obligations of government lawyers (Hirabayashi v. United States (9th Cir. 1987)) a) Government lawyers withheld information (suppressed report of General DeWitt which showed he was racist) - report showed that this was not a military necessity. b) It is a violation of traditional rules of legal ethics for a lawyer to knowingly make a false statement of law or fact to a court.

a)

c.

Curfews - Hirabayashi v. United States (US 1943) 1) Facts: senior at university refused to obey curfew imposed on Japanese-Americans and report to civilian control station 2) Held: upheld curfew law. 3) Reason:

98

4)

Racial classifications usually irrelevant but military has to be able to scrutinize every relevant fact. b) How is racial classification relevant? (1) “The adoption by the Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant.” (Stone, CJ) Murphy’s concurrence: a) Rejected notion that people of certain race are uniquely incapable of assimilation. b) Murphy’s response to government concern about certain characteristics of Japanese-American (e.g., worshiping emperor as God, children attending Japanese-language schools, several Japanese-Americans held dual citizenship) - “In this sense it bears a melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe.”

a)

4.

Simultaneous Expansion of Civil Liberties in Non-War Context: a. Selective Incorporation of Bill of Rights - Palko v. Connecticut (1937) 1) Incorporated those rights within Bill of Rights into XIV amendment if essential to the concept of ordered liberty and so rooted as to be ranked fundamental. Strict Scrutiny - Carolene Products (1938) 1) Incorporated most of Bill of Rights into XIVth. 2) Articulated strict scrutiny for fundamental rights. 3) Warned court will not defer when there is prejudice against discrete and insular minorities.

b.

99

IX. A.

CONTEMPORARY LAW AND SOCIETY THE COLD WAR AND THE LAW 1. McCarthy and Communism a. McCarthy Biography Video 1) McCarthy facing re-election – needed an issue – found one in fear of communism. 2) Speech to WVa women’s group – alleged 200 communists in State Dept (bold faced lie) - then friends try to find something to support allegation in FBI files. 3) Hunting communists was a big game – did not really care about finding communists – needed to get re-elected - knew allegations were reported on pA1 and denials were reported on B27. 4) McCarthy labeled liberals and democrats as Communists – McCarthism is attempt by Republicans to get Democrats (who had been in office for really long time) out of office. 5) Lots of innocent people got rolled 6) John Service: despite McCarthy’s failure to prove any changes, John Service’s career was ruined 1954 McCarthy-Army Hearings 1) Once Eisenhower (Republican) elected, there is far less enthusiasm within the Republican party to attack the government – no longer wanted to say “there are communists in the government” b/c Republicans were in the executive office. 2) Roy Cohn was McCarthy’s lawyer – David Shine, friend of Roy Cohn, was private in Army and worked for McCarthy’s committee – McCarthy charged Army with mistreating Shine so that he could not investigate communists in the Army – the Army made counter-allegations. 3) All hearings were televised – McCarthy at this point had lost public support – Eisenhower did not like him. 4) Army attorney started to press McCarthy (“give us the names of all these communists you say are in Army”) – McCarthy feel apart. 5) McCarthy later censured by Senate and then dies at age 48.

b.

2.

Cases During Cold War: a. b. Case – Dennis et al. v. US (US 1951): uphold Smith Act – see strong dissent from Black. Case - Youngstown Sheet & Tube Co. v. Sawyer (US 1952): 1) Facts: President tried to seize steel mills to prevent a strike b/c needed it for Korean War. 2) Issue: whether it was in constitutional power of President to order Sec of Commerce to seize nation’s steel mills? 3) Held: President cannot do this – it is NOT in President’s constitutional power to order Sec of Commerce to seize nation’s steel mills. 4) Reason: a) President relies on Lincoln b) CT limits President’s power to either act of Congress or Constitution c) Allusions to dictatorship – worried that if give President too much power, it will lead to totalitarism

100

d) 5) 6) 7)

Ex parte Milligan – we do not know who will fill this office – thus, we have to be careful that we do not give the office of the President too much power. Lots of concurrences Dissent a) Vinson seems to have history on his side (or is Cold War different?) – “all the other President get to do it – why can’t I do it?” Notes: a) Can we describe this case as “war” cases – is this case analogous to cases that happen during actual “wars”? b) Odd b/c traditionally CT has been deferential to President during wartime. c) Does CT think cold war is different – is CT more concerned about increasing President’s power in this context.

c.

CT’s Response to Communism: 1) Context: a) Theme – how does CT treat dissenters? b) American Communist Party was fairly active – many people involved. c) The Smith Act 2) Rationales for CT’s response to communism: a) Do not have to wait for government to be in revolution before you can put a stop to actions that seek to overthrow the government b) Communism was not like other types of “dissent” – communism was not just a political philosophy – communists were not free thinking (took orders from Moscow) – thus, not entitled to free speech. 3) Case – Lawson v. US (D.C. Cir. 1949): 4) Case – Scales v. US (US 1961): a) Scales convicted for membership in group that advocates overthrow of government. b) Allusions to mobilizing the Negro workers – some thought black civil rights movement was part of communism. c) JFK later granted clemency.

101

B.

DESEGREGATING AMERICAN SOCIETY 1. Historical Background to Desegregation: a. b. Earlier cases 1) Plessy v. Ferguson had legalized segregation in both North and South Litigation Strategy of NAACP: 1) 1909: NAACP founded (particularly in response to Birth of a Nation) 2) By 1910-1920: segregation of everything, lynchings, emerging strength of both KKK and NAACP 3) Attack on segregated schools led by Charles Huston (first black member of Harv. L. Rev., protégé of Felix Frankfurter, Houston became Dean at Howard and instructor of Thurgood Marshall, among others) 4) Began attack at graduate school level 5) In 1930s, NAACP developed a legal arm 6) Strategy = attack school segregation – most visible – start from top of education pyramid (b/c NAACP thought judge might be more sympathetic because this is a case about law, legal representation, being lawyers, justices would understand how poorly a segregated school would be to train lawyers) and work down. Law School Segregation: 1) Case - Missouri ex rel. Gaines v. Canada (1938): a) Facts: (1) Gaines denied admission to Mo. Law Sch. because of race (2) Houston represented Gaines. a) Why did NAACP attack segregation at law school level first? (1) Better chance of convincing Court: (a) If federal judges afraid of desegregating public schools because of cost, law schools would be cheaper (b) Emotions may not run as high in law school setting (c) Saw this as case they could win - ideal test case because no alternative school in state (d) Law schools could be intuitively understood by federal judges and Justices (e) Be able to show injustice of sending plaintiff to out of state school (2) Open up law schools to train black lawyers to join struggle. 2) Case - Sweatt v. Painter : a) Texas law school - created makeshift classroom and put plaintiff alone in there b) Resonated with federal judges c) Effect: said what was provided for whites had to be offered to blacks (although said it didn’t have to be offered in same school) 3) Case – McLauren: Shift in NAACP philosophy: 1) Shift from chipping away strategy to frontal assault strategy 2) Huge migration to north 3) Blacks in military 4) Jackie Robinson

c.

d.

102

2.

Desegregation of Public Elementary Schools – Brown v. Bd. of Edu (1954): a. Delaware Case: 1) Delaware had been slave-holding state 2) Had used poll taxes, etc. to bar blacks from voting 3) Total segregation 4) J. Collin Seitz, chancellor in chancery court: first judge to issue integration order in public schools in country History of Litigation: 1) Brown was argued in very different climate from Gaines and Plessy a) Blacks entered into army in great numbers b) Jackie Robinson becoming national symbol of integration 2) Argued by Thurgood Marshall 3) Sent back to be re-argued because of so much division in Court 4) Key events that influences the CT between first and second argument a) C.J. Vincent (opponent of desegregation) died b) Ike appointed Earl Warren in place - no one anticipated what he would accomplish - Warren very good at forging consensus and working with individual justices. 5) Case reargued for 3 days 6) Issues for re-argument a) What was history of 14A with regard to segregation in public schools? b) Regardless of what intent had been, did 1868 Congress understand that public school integration would be argued in future? c) What should remedy be? Did CT have power to order integration and, if so, from where? (these issues not reached until Brown II) 7) NAACP submitted Brandeis brief to show segregation had great psychological effect on black children. 8) Unanimous decision: no one in NAACP thought they would get a unanimous decision. CT’s Basis for Finding “Separate But Equal” Unconstitutional: 1) Social science research: a) Segregation had impact on black children: (1) “Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding” is void. (2) Separate institutions inherently unequal because always psychological impact. b) Footnote 11 (to “amply supported by modern authority”): (1) Warren said not doctrinal underpinning of authority – Warren said this was response to ridiculous psychology (inferiority comment) in Plessy. (2) Lanctot thinks this footnote was designed to combat state’s theoretical argument: “we could make facilities equal” - separate facilities can never be equal. 2) Equal Protection Clause (EPC) of 14A: a) Legislative history of 14A was inconclusive. b) Argument that EPC plus social science research equaled the basis for the CT’s rationale: EPC was the gun and the social science research was the bullet.

b.

c.

103

d.

Why was Unanominity so Important to CT (esp. CJ Warren)? 1) The only other decision that was unanimous was Cooper v. Aaron. 2) Warren wanted it unanimous to send a message. 3) Warren wanted it to be short and comprehensible enough so that it could be published in every newspaper in the country in full – attempt by CT to speak directly to people. Attacks on Brown: 1) Brown was attacked by both conservatives and liberals 2) CT ignored history of 14A: a) Segregation was allowed, condoned by 14A (Southern Manifesto). 3) Footnote 11 a) People said CT did not decide this case on Constitutional grounds b) People said what if sociology studies came out the other way and said black students thrived in segregated schools (wouldn’t this undercut the decision). 4) This was Lochnerizing a) Rehnquist (as clerk) memo to Justice Jackson: Brown was nothing more than revival of Lochner – “Plessy was rightly decided.” 5) Wechler’s Neutral Principles of Constitutional Law 73 HARV. L. REV. 1 (1959): a) Thesis: attacked Brown on ground that it was not decided on “neutral principles of constitutional law” and not politics. b) Rationale for attack: agreed with decision but worried about next decision down line.

e.

3.

Reaction to Brown – Southern Declaration on Integration (Mar 12, 1956): a. b. c. d. e. f. Signed by 96 Southern U.S. Congressmen Asserts XIVth not designed to apply to public schools This is naked grasp of power by S. Ct. to meddle with states’ rights Resistance to Brown Began to revive Virginia and Kentucky resolutions, John C. Calhoun’s statements on states’ rights Enacted laws to block integration under other guises

4.

State Resistance to Desegregation – Cooper v. Aaron (1958): a. Historical background: 1) Video - Integration of Little Rock, Arkansas 2) Arkansas integration effort: a) Black leaders believed school integration would go well in Little Rock b/c Arkansas had accepted bus integration. b) But they were wrong – Governor Faubus sent state troops used to prevent enforcement of federal law. 3) Politics: a) Governor knew he needed segregationist vote to be re-elected even though he was moderate and had been supported by blacks. Governor ordered in state national guard to admit only whites (ordered in night before).

104

b) c) 4)

Eisenhower’s role: thought he had convinced Faubus to let children in – Faubus changed his tactic – removed National Guard and only left city police – very explosive situation for children to go to school - mob. Eisenhower eventually had to send in U.S. paratroopers – they stayed whole year to protect black students – troops meant the declaration of war in school – each student had an individual soldier/guard.

5)

6)

School: a) 8/9 students arrived together and were barred b) One students arrived alone (Elizabeth Medford) and faced by threatening mob Court battle: a) NAACP and parents went back to state - National NAACP saw this as battleground case b) Question whether federal government would support Court ruling c) Resistance to federal law spreading d) Eisenhower told that amicable solution could be found to crisis through reasoning with governor Students: a) Were harassed throughout the year b) One kicked out after dumping chili on white kid’s head who was insulting her (racial epithets)

b.

Case - Cooper v. Aaron (US 1958): 1) Held: state cannot prevent students from attending school 2) Court’s reaction a) Decided the day after it was argued, unanimous decision (signed by every Justice) b) We’ve thought about it, we decided, we’ve now revisited it and we’re still unanimous and we’re not going to capitulate 3) What was Frankfurter trying to accomplish in his concurrence? a) Thought that he could appeal to Southern moderates b) States can criticize, dissent but not violently resist 4) What Court was trying to accomplish? a) Reaffirm Brown, show unanimity of purpose even though there were some new Justices on the Court

5.

Segregation in the Boston Schools: a. See below.

105

C.

THE AFTERSHOCKS OF BROWN 1. Video on busing in Boston Schools (Sept 1974): a. b. This was 20 years after Brown, 17 after Little Rock crisis. Federal court (Judge W. Arthur Garrity, Jr.) in Boston ordered busing to achieve racial balance between Roxbury (primarily poor black community) and South Boston (primarily poor white community) Many Boston public officials opposed the order: 1) Boston Mayor tried coffee chats with white parents 2) Majority of Boston public officials never spoke out for busing or for desegregation. 3) Boston Public School Commissioner opposed federal busing order 4) Edward Kennedy supported busing system – rejected by the white mob in the federal courthouse 5) Gerald Ford opposed forced busing – gave heart to white parents. Parents support for plan: 1) White Parents: a) Then white parents instituted a boycott of all Boston Public Schools b) Many white parents did not send their children to Roxbury c) Interesting to note that white parents’ strategy was borrowed from black civil rights movement. 2) Black Parents: a) Worried that safety of children was not worth education. Racial attacks increased: 1) Black motorists pulled from a car and attacked by white mob. 2) Stabbing of white student, white students left and white mob gathered around school and black children were trapped inside - had to smuggle black students out of school “Reconstruction has finally come to the North with a vengeance.” Revised federal court order: 1) Gave Garrity power to approve all school board committee composition, lot of control over school board, basically federal judge ran school system. President Gerald Ford’s first press conference: said he didn’t agree with court order Outcome: almost one third of white students left the Boston public school system. THEME – did law change hearts and minds or did it only harden people’s hearts? 1) Did we integrate because of law of because of gun (force lies beneath the law)? Hamilton said judiciary not have power of purse or sword – or does it? What does this tell us about the role of the CT? What did CT accomplish in Brown? Did it establish a baseline standard? A change of heart? Provide a foundation upon which to rely for government action? 2) Did CT anticipate this kind of reaction? 3) What should Faubus, as a public official, have done?

c.

d.

e.

f. g.

h. i. j.

106

2.

Compare this school desegregation crisis in Sept 1974 to crisis in Arkansas in Sept 1957: a. Similarities: 1) Theory underlying forced desegregation in both cities: a) If got blacks and whites to mingle with each other at young age, racial problems will go away. 2) In both cases, integration was forced upon white students (and upon black students). 3) Politicians overcome by forces they initiated (in both places, politicians overcome by mob). 4) Parents in both Little Rock and Arkansas attack federal courts. 5) THEME – what power does CT have? Law and its enforcement – what is role of public officials to enforce a federal law with which they do not agree? a) Does this show power of federal courts to grapple with difficult social issues or show limits of court? Courts do not have power of purse, power of sword nor power of public support. Difference: 1) Can argue that Boston’s response was based on non-racial factor: a) Big difference is that in South, white students did not have to leave their schools. b) Were whites really upset about not being able to send children to neighborhood schools? c) What if you were busing to achieve some purpose (like bus between poor and rich schools) other than racial balance? 2) Was the federal busing order a huge mistake (like throwing lighted match into dynamite) to bus b/w these two cases? 3) THEME - many of those opposed to busing used rhetoric of 1960s black civil rights movement to disobey busing laws: a) Relationship b/w civil rights protest of 1960s and opposition to busing. b) White parents want to know why courts protect rights of blacks but not rights of whites? c) Remember MLK’s letter from Birmingham jail about just and unjust laws. (1) How do people who decide to oppose a law know whether law is just or unjust? (this was also an issue in slavery). (2) Is this idea workable or does it lead to chaos (everyone decides not to follow law because they think it is unjust). (3) Then why isn’t okay for Southern objectors to disobey the federal laws. (4) Can argue that public officials, as opposed to general citizens, cannot oppose laws – have to follow law. (a) Do public officials have a further duty to actively support the law, state their support for the law?

b.

3.

THEME – when can citizen disobey unjust laws? a. b. c. 1700s sedition trials Elizabeth Cady Stanton MLK letter

107

d. 4.

White parents in Boston

How do we put this into historical context? a. b. c. See Magarian Con Law Outline. Big Question: Is history like legal precedent, easily manipulable, manipulate it to support your legal argument? Thus, is this a pointless exercise? Affirmative Action Cases 1) Swann v. Charlotte-Mecklenburg (US 1971): CT was very frustrated that promise of Brown had not been realized – thus, CT gave very forceful endorsement of enforced busing to achieve racial balance. 2) Bakke (US 1978): upholding affirmative action programs. Historical arguments pro and con affirmative action: 1) Pro: a) History of legal discrimination (slavery) b) Plessy. c) Need court-ordered change (and violent enforcement) b/c society will not change on its own (e.g., Civil War, Boston and Little Rock school incidents) d) Korematsu, Hirabiashi and Japanese internment shows that you need these programs to integrate the minority into society so not seen by majority society as “different” – shows dangers or permitting racism to persist in society, need intervention – in absence of AA, people’s discriminatory views will prevail. e) Brown 2) Con: a) Slavery b) Harlan’s dissent in Plessy – “the constitution is colorblind” c) Hirabiashi and Japanese internment shows that taking race into account (even for good motives) is detrimental. d) Little Rock and Boston incidents show that court-enforce busing is not most effective way to achieve racial balance/harmony. e) Brown f) What if CT had washed its hand of the desegregation and let society take over? What would have happened?

d.

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D.

VIETNAM AND THE LAW 1. Compare to Other Wars: a. b. c. d. e. Revolutionary War: Dec of Independence, Articles of Confederation 1798 Quasi-War: Sedition Acts, Virginia & Kentucky Resolutions Civil War: Merryman, Vallandinham, Emancipation Proclamation and Milligan WWI: Schneck, Abrams WWII: Quinni, Yamashita, Korematsu, Barnette 1) In WWII, 80% of men eligible for military joined voluntarily. 2) In Korean, 50% of men eligible for military joined voluntarily. 3) In Vietnam, 2.2 million were drafted; 8.7 million men volunteered (this percentage is significantly lower). Cold War: Youngstown, McCarthy, Dennis, Brown, Cooper

f. 2.

Video on LBJ and Gulf of Tonkin: a. Gulf of Tonkin and the Gulf of Tonkin Resolution: 1) Events preceding the alleged attack: a) Although LBJ said attack was unprovoked, the US (and with LBJ’s consent) had been sending covert missions into Vietnam for six months. b) Daniel Ellsberg (DOD staffer) was receiving operational cables saying they were being attacked at night but then later said it might have been lightning storm – but LBJ went ahead anyway even though evidence as to actual Viet Cong attack was inconclusive – LBJ told American people his own version of the story (LBJ referred to it as “deliberate Viet Cong attack and unprovoked” – both were lies) c) Few Americans questioned LBJ’s version of the story (until much later). 2) August 7, 1964: Gulf of Tonkin Resolution: a) LBJ never asked Congress to declare war, instead, used the incident to cut himself loose from congressional control. 3) Criticism of Gulf of Tonkin Resolution: a) Could argue that Gulf of Tonkin was part of LBJ’s 1964 election strategy – Republican candidate was Barry Goldwater (very right wing) – LBJ used this incident to show he was as tough on communism as Republicans. 1964 Goldwater v. LBJ Election: 1) Nuclear bomb commercial Vietnam 1) Throughout 1964 election campaign, LBJ kept American public ignorant of what was going in Vietnam. a) LBJ sewed the seeds of his own ruin. b) LBJ and General Westmoreland conduct a war propaganda campaign to maintain support – did they lie when they said “we are winning this war” c) (1967?): LBJ’s trip to Vietnam to meet with soldiers. d) Tet offensive - like “roof falling in” – shattered illusion of progress in Vietnam war – LBJ had mislead the American people so often that they did not believe the truth when he actually told them. 2) Robert McNamara, Secretary of Defense, resigned in 1967: a) This really hurt LBJ.

b. c.

109

d.

Clark Clifford replaced McNamara – Clifford confronted the Pentagon on the War, learned that there was no plan for victory – Clifford wanted to change U.S.’s policy in Vietnam (but like a great train that you cannot suddenly put into reverse). c) Almost beyond human capacity to say “we were wrong” after spending so much money and losing so many men – have to send more men to vindicate deaths of those who died. 3) The Wise Men (?) said U.S. should exit the War. 1968 Election 1) LBJ hated RFK 2) In early 1968, LBJ remained adamant that U.S. would win Vietnam War. 3) In a March 31, 1968 speech about Vietnam, LBJ announces (surprisingly) that he will not run for re-election. 4) Lame duck president as country listed toward anarchy – MLK killed, RFK killed, rioters at Chicago Democratic Convention, Kent State

b)

3.

Vietnam Based on Gulf of Tonkin Resolution, NOT a Declaration of War: a. Big Questions 1) What is significance of not declaring war? 2) Why the reluctance to declare war since WWII? 3) Especially today where US has not declared war even though conducting a war on terrorism? “Gulf of Tonkin Resolution – August 10, 1964: 1) Vote: 414-0 in House, 88-2 in Senate. 2) Events leading up to it: a) LBJ said there was an unprovoked VC attack on American destroyer (but there is much debate about whether U.S. provoked, or at least welcomed, it). 3) General Thoughts on the War Powers Resolution Act Drafted After Vietnam: a) WPR was drafted in response to Vietnam: (1) Desire of Congress to create self-executing scheme to limit military involvement overseas b) Purports to delineate situations in which President can send in troops: (1) Has sunset provision of maintaining troops in field c) Generally, presidents have said WPR exceeds Congress’ power: (1) Court has said it was non-justiciable (political question, no standing, case not ripe, case moot). Was Vietnam a Legal War? 1) Several lawsuits argued that Vietnam was not “war” as meant in Art. I, § 8. 2) Was Gulf of Tonkin Resolution Equivalent to Declaration of War? a) WWII was last declaration of war. b) Argument that resolution is equivalent of declaration of war: (1) Congress’ annual appropriation of money for the Vietnam + Gulf of Tonkin Resolution = functional equivalent of declaration of war (2) Congress has power to declare war and can delegate to President that – if President thinks it’s like a war, President can send troops. c) Argument that resolution is NOT equivalent of declaration of war

b.

c.

110

(1) d.

Violate SOP - impermissible delegation of legislative power.

Why not declare war in 1964? Why resistance to declare war? 1) Not want to declare war for political reasons: to get re-elected. 2) Not want to declare war because fear nuclear war: a) People not want to declare war because war means total war and total war means using everything in your arsenal and that means using nuclear weapons and that leads to nuclear war (e.g., Goldwater political ad) 3) Not want to declare war because worry that China or Russia would declare war on U.S. 4) Not want to declare war because WWII veterans reluctant to send children to war. Influence of WWII on Decision: 1) WWII taught a lesson about how you handle aggression – people had not nipped Hitler in the bud soon enough – thus, when see aggression in Vietnam, felt they had to act fast – worried about domino effect. 2) Always fighting the last war when in next war. ??? What about Influence of Korean War? 1) The U.S. never declared war. The Court 1) The Court never resolved (never took any case questioning) whether the Gulf of Tonkin Resolution was constitutional: a) Why? (1) Political Question Doctrine. (2) Court has certain amount of political capital and is wary of expending it: (a) Examples of where CT lost some political capital: Bush v. Gore, Roe v. Wade, Brown v. Board. (3) Did CT abdicate its responsibility or was this issue not within its jurisdiction? Is it the Court’s responsibility to decide constitutional questions when they arise (4) What interests was CT balancing in deciding not to assess constitutionality of Gulf of Tonkin Resolution? (a) Interests in executive having power to act on military matters (b) Interests in legislature on protecting province of declaring war (c) Interests of individuals who are being drafted b) What constitutes a “war”? (1) The commission of troops? (2) The death of soldiers? 2) Mora v. McNamara (US 1967): a) ??? Stewart’s (a decorated veteran) dissent: b) Was this a “couldn’t” or “shouldn’t” decision by the Court? 3) Does CT share some responsibility in morass of Vietnam for refusing to intervene? 4) Compare to how CT reacted in other wars.

e.

f. g.

4.

Historical Background (Making Sense of the Sixties) a. Draft evasion: 1) Illegal draft evasion - going to Canada

111

2) b.

Legal draft evasion - getting draft deferment

Resistance movement: 1) Vietnam was about white people questioning authority - many for the first time: a) Backyard picnics, bars, etc. b) Resulted in division between friends, family 2) Felt peaceful resistance wasn’t working: a) Burning draft cards b) Disrupting military induction center (mass civil disobedience) c) Relatively small percentage of resisters 3) Class conflicts? a) Police were mostly from white, blue-collar backgrounds b) Protestors were white, middle-class backgrounds c) Police training d) Trained to combat civil disobedience with violent means, not avoiding confrontation e) Most police behaved appropriately 4) Credibility gap: LBJ/Westmoreland said everything was great - Movies from Vietnam/news reports didn’t match up. Emotion at time: feeling of constant anger, among people and families. Country split 50-50 over whether to continue war: 1) Political differences: a) Liberals wanted to work within the system b) Radicals wanted greater revolution 2) LBJ’s troubles: a) His coalition was unraveling b) Attacked on all sides 3) Hubert Humphrey: VP of LBJ - facing split in party. 4) MLK spoke out against Vietnam. MLK’s assassination: riots in 126 cities (46 dead, 21000 arrested, 100s injured) RFK’s assassination: 1) RFK was “stop the war” candidate 2) Popular among blacks, Hispanics, old guard liberals, some radicals 3) In June, 1968, RFK close to winning nomination 1968 Democratic National Convention: 1) Riots in city streets 2) Young protestors beaten by cops in Chicago 1968 as a horrible year: 1) Shock of LBJ deciding not to seek re-election 2) Two weeks later, MLK shot and riots 3) Two months later, RFK shot 4) At Olympics, black power salute 5) Russians moved tanks into Czechoslovakia in summer 6) Democratic convention in Chicago

c. d.

e. f.

g.

h.

5.

The Court and Anti-War Protests:

112

a. b.

CT takes very different approach to 1A rights than it had in previous wars. CT’s Approach to Anti-War Protests: 1) Generally, CT was more protective of individual rights that it had been in other wars: a) Unless there was some direct threat to running war (e.g., O’Brien burning draft cards), little deference to government/military. 2) Compare this to how CT protected individual rights in Civil War: a) More protective than during Civil War: b) Bond v. Floyd (1966) and Ex parte Vallandingham (Civil War case) c) Did Vallandingham Court consider case about direct threat to Union itself? d) In Bond, Bond made somewhat inflammatory statements and Ga. House of Rep. didn’t want to seat him. Court said this was unconstitutional impingement on First Amendment e) In Parker v. Levy, individual was serving in military and greater restrictions on speech allowed f) Bond had racial overtones that Vallandingham did not (Bond was black, Ga. House almost completely white, Bond closely associated with MLK – so it was not just about Vietnam). Was there an overlap of issues (racial discrimination and First Amendment)? 3) Kent State a) During height of protests over Cambodian incursion, 4 students shot by National Guard (1971) b) Mass reaction by anti-war movement and pro-war movement. CT’s Approach to 1A Protection: 1) Constitutional restrictions on speech: a) Military law restricting speech against Vietnam War, and court-martial punishment against army physician, was constitutional – see Parker. b) Law prohibiting burning of draft cards was constitutional – see O’Brien. 2) Unconstitutional restrictions on speech: a) Ga legislature’s attempt to unseat Bond because he spoke out against the Vietnam War was unconstitutional – see Bond. (1) Compare to Civil War case - Vallingham. b) School’s ban on protest arm bands was unconstitutional – see Tinker v. Des Moines Ind. Comm. Sch. Dist. (1) Children and teachers have First Amendment rights and can exercise them as long as they don’t disrupt school (2) This was quite a change from how CT treated children in earlier times – see Black’s dissent. c) State law prohibiting word “fuck” was unconstitutional – see Cohen v. California. (1) Because wearing “Fuck the Draft” jacket is pure speech and protected d) Prohibition against conscientious objectors’ objecting based on religious beliefs and philosophical, political, sociological beliefs was unconstitutional – see United States v. Seeger. e) Prohibition on publication of Pentagon Papers was unconstitutional – see New York Times v. U.S. (1971). (1) NYTims and Wash. Post printed highly confidential report on U.S.-decision-making process in Vietnam (Pentagon Papers). Court said that prior restraint of publication carried extremely heavy burden (although some members were willing to allow prior restraint on war plans)

c.

113

d.

What causes CT’s change toward 1A? What is CT doing? Legal realism? Natural law? Legal science? 1) Is CT just following the Constitution? Just following the law? a) There had developed since the Civil War a large body of 1A precedent – there was some law upon which to base these holdings. b) Make sure to develop this for exam. 2) Does fact that Vietnam is considered an illegal war influences CT’s holdings? a) Is fact that Vietnam is not technically a “war” influencing these decisions? b) We are not at war, therefore do not have situations like Civil War and WWI and WWII when it was okay/necessary to suppress opposition. 3) Is this example of legal realism? a) Was CT acting politically – just expressing its own views on the war? Reflecting fact that significant portion of society opposed this war? b) Court couldn’t figure out what public wanted, decided on merits. c) CT is concerned about country’s stability. 4) Is CT relying on universal principles (Langdell)? a) Deriving universal principles of individual rights an applying. 5) Is CT just balancing individual rights and government interests? a) Allowing individual liberties to triumph unless some compelling government interest (raising armies in O’Brien) 6) Differences in Society and CT from CT’s Approach to 1A in Earlier Wars: a) There is now a greater body of precedent on 1A. b) Civil rights movement and forms of protests radically change conception of “speech” and CT has to assess these changes in form. c) Much greater tolerance for political dissent. d) Compare to Civil War and WWII, where U.S. thought it would lose all if it did not win – but people in 1960s also thought world was coming to an end (protests, riots, anarchy) - great fear of domino effect and USSR. e) Because Congress declared war in other wars, Court was willing to defer because war declared by representatives of people but in Vietnam didn’t have formal declaration of war. f) But WWI was high water mark of First Amendment restrictions and was not war for survival on own soil (Espionage Act, Sedition Act) g) Had Court learned from its repression of WWI and WWII (internment camps, suppressing speech) h) Was Court trying to equalize relationship between citizens and government? (Pentagon Papers, protest movements were giving information to people in order to determine what government should be but Pentagon Papers didn’t reveal military strategy).

114

E.

WATERGATE AND THE PRESIDENCY 1. Historical Background: a. Video: 1) Oct 20, 1973 - Saturday Night Massacre: a) After D.C. District Court issued order and Nixon ordered Cox and Archie Cox holds press conference – Saturday Night Massacre. b) Richardson refused (U.S. Attorney General) c) William Ruckelshaus refused (Assistant Attorney General) d) Robert Bork (Solicitor General [acting AG]) said: “I will fire him and resign immediately afterwards” – because he thought President could not be faced down in public by a subordinate official. e) What was proper thing for AG to do in this instance – what was in the “public interest.” 2) Oct 20, 1973 - Second Presidential Order Abolishing Office of Special Prosecutor: a) Although Nixon able to get rid of Cox, rest of special prosecution staff was still there – next in line was Henry Ruth (and Angelo Lano [FBI]). b) Was this a most “serious constitutional crisis”? c) Received 150,000 telegrams condemning President – telling special prosecutor’s office to “hang in there.” 3) Bork received much of the blame for what President did 4) Nixon still had to respond to D.C. District Court order - Hearing: a) President agreed to turn over the tapes – Nixon knew the tapes could destroy him. 5) Role of lawyers in this situation: Fears of security leaks: 1) Pentagon Papers published Watergate break-in: 1) June 17, 1972 burglars break into DNC HQ at Watergate complex 2) Nixon directs aides to use CIA to terminate law enforcement investigation into break-in 3) February 1973 Senate Comm. begins investigation of campaign activities 4) Public hearings in Senate begin in May of 1973. Nixon agrees to establish Special Prosecutor (Cox) 5) Butterfield reveals secret tapes in July. Cox subpoenas White House tapes and Judge Sirica orders Nixon to comply 6) October: Nixon loses claim of executive privilege. Orders Cox to cease attempts to get subpoena. Cox calls press conference, Nixon orders AG Elliot Richardson to fire Cox in Saturday Night Massacre. Richardson refuses and resigns; Solicitor General Bork fires Cox 7) March 1974: Mitchell, Haldeman and Ehrlichman indicted. Nixon named as unindicted co-conspirator 8) April 1974: Nixon reveals edited transcripts but still fights on unedited ones. 9) July 1974: Supreme Court unanimously decides in favor of Special Prosecutor 10) August 1974: Nixon resigns.

b. c.

2.

Striking Down Executive Privilege: United States v. Nixon (1974):

115

a. b.

Context: 1) House of Representatives was considering Articles of Impeachment Holding: 1) Executive privilege against having documents subpoenaed in this case (because too general) did not outweigh the government’s interest in obtaining certain tapes Nixon possessed that would help in ongoing prosecution of aides in Watergate break-in. Political Significance of Case: 1) This was a very popular CT decision. 2) Resolved a crisis as to whether President was going to be held above the law because Court knew that impeachment or resignation could result. 3) Reinforced Court’s power (espoused in Marbury) to review executive acts. 4) Limited absolute privilege of President. 5) Decision unanimous out of fear Nixon would defy CT. 6) This case is all about the CT’s power. Reasons Court Became Involved: 1) Compare to other decisions by the CT to grant or deny cert: a) Make list of cases which CT decline and those which it heard (that it arguably did not have to). b) CT declined to hear civil rights case for a while c) CT declined to decide constitutionally of Vietnam d) CT decided Bush v. Gore. 2) CT had no choice: a) B/c government had ground to halt so CT could not stay out of issue. b) B/c case involved a federal criminal proceeding and federal court order (thus, difficult for CT to dodge as a practical matter - CT’s won authority was being challenged). c) B/c real concern that Nixon would not obey a court order (1) THEME – does CT’s authority come from anything other than backing of 3) What if CT had not heard case: a) Declining cert would have been political statement that President could do this, President could abuse power. b) If CT had declined, it would have lost much of its political capital. c) If CT had declined, Congress probably would have impeached Nixon – isn’t the end result the same? But doesn’t this radically change view of power of CT? 4) Other Reasons: a) Legal basis was that Nixon was not a party, but third party with information necessary to prosecution. b) Nixon did not show any particular “national security” need to assert privilege. c) Congressional elections were coming up and Court knew impeachment would come up and didn’t want it to be political issue. d) Country was obsessed with Watergate.

c.

d.

3.

Articles of Impeachment: a. Article I: 1) Obstruction of justice (Committee vote: 27-11)

116

2) b.

Actually a crime so viewed as impeachable offense

Article II: 1) Abuse of Power (Committee vote: 28-10) 2) Minority argued: a) laundry list of disconnected abuses which by themselves would not have resulted in impeachment b) gross broad claim of abuse of power not impeachable offense c) didn’t impeach JFK for Bay of Pigs, FDR for Court packing, Truman for Korean initiative Article III: 1) Non-compliance with House subpoena (Committee vote: 21-17). 2) It has been argued that Supreme Court’s decision made this Article superfluous but on other hand Court’s order to comply gave support to allegation of impropriety because Nixon didn’t comply. Compare to Johnson Articles of Impeachment: 1) Charges in Nixon’s impeachment were more specific allegations of offenses as compared to allegations against AJ that he badmouthed Congress 2) Charges against Nixon more like “high crimes and misdemeanors” contemplated by Constitution even though AJ’s dismissal of Stanton was in violation of Tenure in Office Act 3) AJ was impeached more for his obnoxious personality, personal racism and opposition to Reconstruction whereas Nixon was impeached as result of public outcry Compare to Clinton Articles of Impeachment:

c.

d.

e. 4.

Gerald Ford and the Pardon: a. Arguments for and Against Pardon: 1) For: a) Nixon and country had “suffered enough.” b) Pardon Nixon and draft dodgers. c) No one really wanted to see president in handcuffs. d) Watergate had consumed the whole country for more than two years – people felt it was time to move on. 2) Against: a) Interfered with rule of law b/c giving President a pass that others had not received. b) Everyone else (other DOJ employees, government employees, actual robbers) all served jail sentences. c) Did Ford and Nixon make a political deal (this concept tarnished Ford’s image) Effect on Ford’s Political Career: 1) Went from approval rating of 71% before Pardon to 50% after Pardon. 2) Lost 1976 election. Very hard for people of that generation to swallow Nixon’s re-erection – polished rehistory.

b.

c.

117

5.

Ethics in Government Act (Independent Counsel Act) of 1978: a. Basic structure: 1) Insulate special prosecutor from accountability to President 2) Certain mandatory categories in which Atty Gen is required to conduct investigations 3) If AG has reasonable cause for further investigation, asks for independent counsel from court who appoints 4) IC: technically part of DOJ, has its resources, prosecutes in name of US 5) IC can be removed by AG for good cause, mental incapacity, etc. or by impeachment/conviction 6) Statute has to be regularly renewed 7) Political reality: whoever is on receiving end decides this is horrible law, party on giving end loves it Reason for Act: in response to Saturday Night Massacre Constitutionality of Act: 1) 1988 challenge upheld Act in Morrison v. Olsen 2) Not enough intrusion into executive function of prosecution 3) Scalia vehemently dissented, arguing prosecution is core executive function Two possible lessons from history leading to different conclusions: 1) History of Ethics in Government Act reflects need for IC law (Saturday Night Massacre): a) Need adequate protection from President thwarting criminal investigation and inherent conflict of interest in political appointees in investigating boss 2) Nixon paid fearsome price for firing IC: a) Public reacted quite swiftly against him b) Popularity took substantial hit from which he never recovered c) Political process will take care of when President is being investigated 3) Lanctot’s take: a) IC operated completely separately from DOJ and treated DOJ as bunch of co-conspirators with President - believes press will take care of this. b) Her separation of powers theory is fairly close to Scalia - Framers set up really good sep of powers scheme. c) Problem with IC is that it operates differently from any other prosecutor’s office; absolutely no political control (institutional memory, allocation of resources). Post Script: Congress declined to renew special prosecutor act in 2001.

b. c.

d.

e. 6.

Watergate’s Effects: a. b. Watergate’s Effect on Legal Profession: legal profession class is direct result of Watergate scandal. Watergate Terms: “smoking gun” and “-gate” and “stonewalling” and “twisting slowing in the wind.”

118

c. d.

Watergate Personalities: G. Gordon Liddy, William Safire, Pat Buchanan, Hillary Clinton and Fred Thompson Political/government structure effects: 1) Permanent cynicism about presidency. 2) Suspicion among branches – desire to monitor and check for scandals by other branches.

119

F.

THE REHNQUIST COURT 1. THEMES: a. b. c. To what extent should judicial ideology/philosophy be taken into account by President in selecting nominees? To what extent should judicial ideology/philosophy be taken into account by Senate in confirming nominees? To what extent does judicial ideology/philosophy actually affect judicial decisionmaking/affect the writing of opinions? 1) Bork nomination process crystallized the focus on ideology in the 1980s.

2.

Role of Courts in Enforcing Modern Fundamental Rights: a. Two Views on How the Role of Judiciary Changed from 1950’s: 1) Courts became more willing to actively involve themselves in political issues, especially those concerning individual rights: a) Rationale for increased activism: because legislative branch and local governments would not act. 2) Courts did not become more activist – they just switched political sides: a) Example: whereas Justice Shaw in Roberts (upholding segregated schools in Boston) agreed with white majority, Judge Garrity in Roxbury case (ordering busing to integrate Boston schools) agreed with black minority. THEME - What Is the Role of the Courts in Protecting Individual Rights? 1) Is it appropriate for courts to act against will of majority? 2) Compare courts’ approaches to race relations in 20th century to courts’ approaches to economic reforms in 19th century: a) In both instances, courts engaged in social engineering to advance country. 3) Does law matter? a) Lanctot feels that the imprimatur of separate but equal advanced prejudice, hatred. b) Integration does serve larger social good. Factors Affecting CT’s Fundamental Rights Analysis: 1) Civil Rights Movement’s stress on individual liberties and using court power to enforce. 2) Civil Rights Movement’s attack on state governments seen as intransigent while federal courts seen as protectors. 3) Anti-war movement. 4) Women’s movement focusing on individual rights and liberties. 5) Change in composition of CT (Warren in the 60’s). Recognized Fundamental Rights: 1) Privacy Rights in Procreation: a) Case - Griswold v. Connecticut (fundamental right to use contraceptives): “Umbrella” of Bill of Rights, Zones of Privacy, 9A, 14A.

b.

c.

d.

120

2)

b) Case - Roe v. Wade (fundamental right to abortion): Effect of Civil Rights Movement: a) Raised consciousness of society as a result of high profile sit-ins, marches b) State laws now seen as oppressive and obstacles to achieving protections for fundamental rights

e.

Arguments to Uphold/Strike Down Affirmative Action Using Historical Argument: 1) Compare to earlier discussion about using legal history to support legal arguments. 2) Upholding Affirmative Action: a) Role of courts in favoring slavery b) Failure of courts to protect Reconstruction c) Court struggle to desegregate d) History of country is 400 years of discrimination and only 40 years of federal law making it unlawful (and only 30 in the employment context) 3) Striking Down Affirmative Action: a) Whenever race has been taken into account, led to greater discrimination b) Law must be color blind (Harlan’s Plessy dissent) c) Declaration of Independence’s “all men are created equal” means race cannot be taken into account d) Danger of taking race into account (Japanese internment, segregated society) e) Tremendous developments in race relations have taken place without affirmative action

3.

Law in the Reagan Era: a. Lineup on the Court in 1987 at Bork confirmation hearings: 1) Left wing: Stevens, Brennan, Marshall and Blackmun 2) Swing vote: Powell (retiring) – thus, perception that Bork = fifth vote to overrule Roe. 3) Right wing: Rehnquist, White, Scalia and O’Connor (she actually goes with left wing and upholds Roe 1986 Bork interview with Bill Moyers on The First Amendment: 1) Bork’s Views on Original Value of Amendments a) Judges should decide what values the Framers were trying to protect. b) Have to apply values of Framers in order for Constitution be law (compare to Meese’s views on Constitution and constitutional law). Bork’s Views on Fundamental Rights/Values: a) Bork does not like term “fundamental rights” b) Bork’s views on finding fundamental rights: (1) Have to be “fairly implicated” in Bill of Rights (2) Views on 9A: (a) Not a warrant for judges to declare new rights (b) 9A never used to justify judicial power (c) Research suggesting that 9A was to limit federal restraints on states’ grants of rights – according to federal government should not interfere with rights guaranteed by state’s constitutions (Bork) (3) Judiciary is not source of rights/powers

b.

2)

121

c) d)

e)

Framers saw protection of rights in proportional representation, voting Protected areas according to Bork: free speech, press, religion, right to jury trial, freedom from state intervention in home - Bill of Rights really describes “rights of autonomy”. Bork’s views on free speech: (1) Bork did not think the Framers had a “coherent, overall theory of free speech” – just a concept that they thought was essential to free society. (2) Speech v. Conduct: said Framers protected speech, not conduct, because speech is essential to free society: (a) Framers wanted to protect political speech but also speech about science, morals. (b) Bork thinks that art as “speech” is close to the outer limits BUT he does not necessarily mean that speech has to have political overtones. (c) Pornography: never understood it as being protected – views it as “vicious entertainment that doesn’t feed community information” Bork’s Views on CT’s Development of Right of Privacy: (1) Bork describes the CT’s theory of right to privacy as “undefined.” (2) Criticizes CT’s theory or right to privacy b/c: (a) Gives too much latitude to judges. (b) Allows judges to make decisions free of restraint (c) Have to focus on level of generality at which right is being defined – he thinks it should be found in explicit provisions

(4)

3)

Bork’s View on Supreme CT Precedent: a) System won’t work unless lower courts follow CT. b) Law is a not a military system, it is a political, intellectual decision – have to follow CT’s decision but you can also criticize them.

c.

Reagan Administration’s take on CT: 1) Edwin Meese - Perspective on the Authoritativeness of Supreme Court Decisions: The Law of the Constitution, 61 Tul. L. Rev. 979 (1987): a) Regarding: (1) Meese represented the Reagan administration’s views of constitutional interpretation: (2) In response to Roe v. Wade: (3) Reflects administration’s desire to appoint justices committed to “judicial restraint.” (a) Compare to FDR’s court-packing plan – Reagan’s plan was more subtle. (b) THEME – presidential efforts to reshape the CT. (c) Can President further his political philosophy with judicial appointments. (d) Specific intent by Executive Branch to restructure the political ideology of the Court. b) Argument: (1) Draws distinction between constitution and constitutional law:

122

c)

Constitution: i. “the instrument by which the consent of the governed--the fundamental requirement of any legitimate government--is transformed into a government complete with the powers to act and a structure designed to make it act wisely or responsibly” (b) Constitutional law: i. “what the Supreme Court says about the Constitution in its decisions resolving the cases that come before it.” ii. Supreme Court isn’t only interpreter of Constitution; other 2 branches of government have role. iii. Subtext of criticism (creating “new” rights” is Roe v. Wade) (2) How drawing distinction between Constitution and constitutional law bolsters attempt to overturn Roe? (a) Constitutional law decisions do not have to be last word in constitutional law (b) Decision binds parties to law. (c) This does reflect historical statements by previous presidents: i. Lincoln’s take on Dred Scott. ii. Andrew Jackson’s belief that executive had equal power to interpret Constitution. iii. Roosevelt’s Court-packing scheme (3 horses of government all should be pulling together). Criticism: (1) Very radical statement b/c seemed to cast doubt on whether state courts had to follow CT precedent. (2) Criticisms b/c opens up question of who gets to determine what the Constitution says – if CT cases are not law, then state courts do not have to follow CT decision.

(a)

d.

Bork Nomination: 1) 2) Roe lineup before Bork hearings: a) Reagan administration thought Bork would be fifth vote to overturn Roe. Hearings: a) Bork’s willingness to discuss his judicial ideology/philosophy was novel thing in confirmation hearings - also the thing that doomed him: (1) Senators went after Bork re: Griswold, women’s issues, civil rights – specifically chose not to go after Bork on Roe because it was so divisive. (2) Vicious debate over philosophical underpinnings of Bork’s judicial philosophy (3) Bork had a lot of writings from his days as law professor – this gave lots of wood for the fire of Democratic senators. (4) Would he have been better off if he had refused to answer questions like Scalia.

123

b) c)

Later problem of confirmation conversion (trying to soften his views) hurt him. Bork’s role in Watergate: (1) This was a lurking issue (Bork firing Cox in Saturday Night Massacre) – this was what Reagan administration was worried about – Reagan administration did not anticipate that there would be such a battle over Bork’s ideology – that Democrats would argue Bork was too far outside main stream.

3)

To what extent should judicial ideology/philosophy be taken into account by President in selecting nominees? a) If a President wants to nominate someone who is in line with his political philosophy, should the Senate be able to stop him? b) To what extent should judicial philosophy be taken into account? c) Does it matter whether a Justice is extreme or centrist? To what extent should judicial ideology/philosophy be taken into account by Senate in confirming nominees? a) If the nominee has the credentials, why should Senate take into account judicial philosophy. b) Structurally, it’s set up that President nominates and Senate confirms: c) If President has power to nominate someone that he likes, doesn’t Senate have right to block someone they don’t like d) Do these battles excessively politicize the Court? To what extent does judicial ideology/philosophy actually affects judicial decisionmaking/affects the writing of opinions? Did Reagan’s attempt to reshape judicial philosophy of Supreme Court by appointment succeed or fail? a) Succeeded: CT did get more conservative b) Failed: (1) CT did not overturn Roe: Planned Parenthood v. Casey (1990): Casey sustained central features of Roe (written by Kennedy, Souter and O’Connor). (2) Scalia has been unable to unite a conservative majority: Scalia was Bork’s intellectual equal but has been unable to unite a conservative majority because of personality and poison pen opinions. (3) Bork’s replacement turned out to be moderate: (a) Ginsburg was next nominee but lasted only 9 days b/c smoked pot with law students. (b) Kennedy was next nominee and was confirmed as Justice – thought he would overturn Roe. (c) Kennedy was “80 percenter” with Reagan Administration’s views. Lessons from Bork Nomination: a) Nominations now are a much more political process – executive branch much more cognizant of doing background searches, prepping the candidates, etc. b) Pickering nomination was “warm-up” for next Supreme Court Justice

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THEMES Civil Liberties During Times of Crisis Sedition Act Civil War World War I World War II Vietnam Role of Judiciary in Society Should it play active or passive role Industrial Revolution Slavery Civil Liberties Should it decide political questions Civil liberty Powers of coordinate branches of government Role of executive Do coordinate branches have power to interpret Constitution Andrew Jackson Lincoln and perpetual union FDR and Court-packing

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