; A Brief American Legal History Outline
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A Brief American Legal History Outline

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									AMERICAN LEGAL HISTORY I. The Beginnings of American Law, to 1760 a. Early Constitutionalism in America i. American colonists frequently asserted their “ancient rights” as English people ii. The English have a cultural tradition of protecting their rights against tyranny/ bad kings iii. Magna Carta 1215 1. Response to King John. Barons, etc forced him to sign it. It was designed to protect the barons and their property. Later, became more of an idealized myth of the English people of how they love liberty/ hate tyranny a. Became an underlying aspect of American Revolution 2. The fact that the government (king) is subject to the law was a radical idea at the time 3. Rights Established: a. Right to trial by jury b. Law of the land  rudimentary idea of due process i. The law is an external check on the King c. Liberties are permanent  people don‟t have to fear that they will be taken away d. Qualified judges i. King was probably appointing “hacks” 4. When King acts “above the law,” there is a right to rebel against his power iv. Massachusetts Colony 1. Mayflower Compact 1620 a. People joining a covenant together to set up laws for the general good b. Locke‟s theories reflect what was in this document 2. A Model of Christian Charity 1629 – John Winthrop a. Theory of America as a “city upon a hill” b. Calls for unity for America‟s success c. Need faith and respect in God to help us through b/c don‟t want to be “made a story and a by-word through the world” 3. Law and Liberties of MA 1648 a. Intertwining of church and state – Thought it was essential to have religious and civil authority intertwined b. Kind of harsh, but compared to Dale‟s Laws in VA they seem like a vacation c. Looking for a moral society (sexual morality, no shuffleboard, no idleness) d. Concerned about the need for everyone‟s labor to help form and run the colony

e. Wanted to build a homogeneous society (No Jesuits, AnaBaptists, no heresy) v. Virginia Colony 1. Dale‟s Laws 1611 a. The laws were designed to regulate economic, political, and religious life in the colony as well as to prevent settlers from leaving without permission b. Notably harsh  maybe essentially martial law c. Can notice a concern about people leaving colony and joining the Indians (This was a capital offense) d. Economic regulation: Can‟t leave colony, concern about supplies(had to ask permission to kill a turkey), concern about disease (keep house clean) vi. Rhode Island Colony 1. Roger Williams set up this colony based on principles of religious liberty and tolerance 2. Williams believed if religion and state intertwined both would be corrupted vii. Other religiously tolerant colonies: PA (William Penn), NJ, DE viii. Notice tension in the laws and the society between liberty and survival ix. John Locke – Second Treatise on Civil Government 1690 1. His ideas are part of the ideology behind the American Revolution a. Man is born is a state of nature, free from impediments, with equal rights to all others b. Man in state of nature unable to protect individual rights; therefore, man relinquishes some individual rights to join society to better protect their life, liberty and property c. But man does not relinquish all individual rights – Govt has limited authority/ law should only be for the good of the people and must protect individual rights d. If power given to government not exercised for good of people, people have right to remove consent i. Right to dissolve government ii. Justification for revolution x. English Bill of Rights – 1689 1. William had to agree to these rights to become King of England – part of the Glorious Revolution 2. Rights: permanence of Parliament (can‟t suspend it); freedom of speech; free elections of parliament; no excessive bail; right to bear arms; overall reduction in power of monarchy xi. Reception of English law 1. The colonists took the common law to the extent that it was suitable for their own situations and condition b. Law and Colonial Society


i. Laws at this time regulated the colonists‟ behavior and their social relations, even the most intimate, in ways that we would find unacceptable in our time ii. Law was a method of social control iii. Legal Status for non-white, property owning males: 1. Single woman – same rights; could own property; More rights than married woman 2. Apprentice – Placed children w/ masters in a system known as binding-out for a period of years. Instrument of social control. 3. Children – Probably could not move out of social status; probably worked like a horse; could be taken from parents for binding-out 4. Married Woman – If husband was wealthy, then you were in good shape. Husband is in control; responsible for some things you do criminally. Basically property of husband. Moderate chastisement a. Blackstone – By marriage, husband and wife are one person in law  “the very being or legal existence of the woman is suspended during the marriage” b. Fem Sole Trader – when husband is away for long time i. This law was in place for practical reasons ii. Gave women in this position more rights 5. Indentured servant – In servitude for a period of time, but then will become free (5 yrs – 7 yrs was common term) a. Not passed down to your children b. Many immigrants sold themselves to get themselves to America c. Gave up right of where you could go. d. However, had right to food, clothing, shelter and some education 6. Free blacks – at least you had some personal liberty a. However, how do you prove that you are free? b. SC Slave Code – burden of proof shall lay upon the plaintiff 7. Slaves – Servitude lasted their lifetime/ passed on to next generation (determined by mother) a. Total regulation of life and body; some alleged protections iv. South Carolina Slave Code 1740 1. Tried to have some protections for the slaves, but probably were not enforced a. “cruelty is not only highly unbecoming those who profess themselves Christians …” 2. Wanted to prevent slaves from being empowered intellectually and physically a. Did not want the slaves to learn how to read b. Insurrection scared them to death – In SC, slaves outnumbered whites 2 to 1



c. Worried about poisoning by the slaves (ban on burning rice, etc) 3. Concern about overworking them (max hours) a. For slaveholders‟ benefit  maintain productivity b. Probably never enforced v. Colonial Trials 1. Salem Witch Trials a. In some respect, they were an aberration b. Concerns about use of spectral evidence and concerns about due process c. Increase Mather (Cotton‟s father) stated: “It were better that ten suspected witches should escape, than that one innocent Person should be condemned” 2. John Peter Zenger trial 1735 a. Zenger tried for seditious libel against NY governor b. At common law, publication of something that brought the government into disrepute is seditious libel. No defense of truth. Actually if it was true, more chance of disrepute. c. Andrew Hamilton (Philadelphia lawyer) argued that the jury not the judge should determine if the material was seditious and jury should acquit if it is true (even though this is not the proper law) i. Does not make sense to import this law from England d. Zenger acquitted by jury even though judge found him guilty – jury nullification Law in a Republican Revolution, 1760-1815 a. Law and the American Revolution i. Thomas Paine Common Sense 1776 1. Common Sense made revolution available to everyone 2. Paine was not of the same, high socioeconomic status as other founding fathers. Wanted a system of government decided by the common people. Many other Framers, did not trust the people 3. Paine was a radical ii. Thomas Jefferson - Declaration of Independence 1776 1. Could be considered a legal brief for separation/ independence 2. Concept of necessity/ compulsion that colonies are being forced to declare independence 3. Uses Locke‟s idea that when govt becomes oppressive enough people have right to rise up and abolish it 4. Contains huge list of grievances a. List targets the King, and not the Parliament b. Parliament could be changed, the King cannot c. Scapegoat the King/ show him as a tyrant 5. Declaration raises a continuing concern about right to overthrow government and need for stable government


iii. PA Consitution 1. Viewed by historians as the purest application of revolutionary theory 2. Emphasis on getting as close to a pure democracy as you can a. Broad suffrage b. No hierarchy – weak executive c. One house legislature – no elite house d. Elected judiciary with term limits e. Council of Censors – reviewed whether PA Constitution had been preserved i. Never met, never used ii. Separate body iv. Slavery 1. PA abolished slavery in 1780  PA Gradual Abolition Act 2. MA abolished slavery in 1780  MA Constitution of 1780 3. Somerset v. Stewart – British case a. Somerset, slave, accompanied his master to England b. Court: Slave is freed once he sets foot in England i. No extraterritorial effect of slavery law ii. Slavery is so odious that the only thing that could support it is “positive law” 4. Jefferson‟s views on slavery: a. Mentioned possibility of law to free slaves in VA, but at the same time could not support an end to slavery b. TJ knew as a nation that we would pay a great price for slavery c. Thought that once slaves were freed they should be taken out of the country d. Calls for gradual abolition and then immediate expulsion of blacks e. Saw blacks as inferior b. Republican National Constitutionalism i. Articles of Confederation 1. Established a federation of states, with no strong centralized government 2. Defects: a. States retained all their sovereignty b. “league of friendship”  more of an alliance than a national government c. Very limited power for the central government ii. Randolph Plan/ VA Plan 1. Drafted mainly by James Madison 2. Created basic outline for bicameral legislature 3. Govt w/ strong centralized power a. Fed govt could negate state laws



iv. v.



4. Quickly resisted by smaller states b/c big states would have more representation b/c legislature was allocated by population Paterson or Small States Plan 1. Great Compromise – One house would be proportional representation and the other house would have equal representation for each state Antifederalist objections to the Constitution were: lack of Bill of Rights and belief that national government will swallow up the states Slavery in the Constitution 1. Framers did not put the word “slave” into the Constitution 2. There was a fear that if there were not some protections for slavery, 2 or 3 of the slaveholding states would not join the Union 3. Provisions: a. 3/5th‟s rule: Counting population + 60% of slaves to determine population b. Fugitive slave provision: Art IV, sec 2: States must cooperate in returning fugitive slaves c. Clause to stop importation slaves: Art I, sec. 9: Bans importation after 1808 d. Art V – amendment clause: cannot amend importation clause e. Implicit provisions: against rebellion, taxes on imports and exports, amendment process, electoral college James Madison, Federalist, Number 10 1787 1. Federalist papers were written to garnish support for the Constitution 2. Madison was a realist about human nature a. Concerned about factions and majority rule 3. Factions are formed based on self-interest 4. Factions are neither bad nor good a. GW thought they were bad 5. Way to control factions: Need to divide and diffuse the forms of government so that it is difficult for one faction to take over the government a. Checks and balances b. Competing factions will compromise Alexander Hamilton, Federalist Number 78 1. This was written as a response to anti-federalist concerns about a national judiciary a. Concerns that one political party will dominate the court; that having judicial review, will allow the courts to take away the Constitution and oppress people; judiciary removed from democratic control 2. Hamilton calls the judiciary the least dangerous branch a. No influence on the sword or the purse 3. Independent judiciary


a. Insulated from political pressure b. Judiciary can protect people from the legislature who goes beyond their authority i. Keeps a check on the legislature 4. Danger of oppression comes from the legislatures and not the courts c. Law in the Federalist Era i. Federalist Party dominates in this era – GW and John Adams. ii. Then the Federalist Party is not a force at all after ruling first 12 years of politics in US 1. Exception: John Marshall on Supreme Court iii. Concerns about political opposition because it might lead to a rebellion iv. Fed Party is seen as sympathetic to the British and Dem-Rep Party of TJ seen as sympathetic to the French v. George Washington‟s Farewell Address 1796 1. GW did not favor opposing parties b/c may lead to the overthrow of govt. 2. Calls for people to preserve the government and the “permanency of your present happy state” 3. Once you voted for us, you should give us your support 4. GW objected to becoming king and having absolute power. Thus, he was offended when the opposition questioned his motives. vi. Sedition Act 1798 1. Passed at a time when there was a strong feeling that we were going to go to war with France 2. Federalists thought the Dem-Reps were French sympathizers and traders 3. The statute enacted the common law of seditious libel, however, there were some medications to the common law. a. Juries decided if the publication was seditious libel instead of judges deciding b. Also, defendant allowed to argue truth as a defense vii. Lyon‟s Case 1798 1. Lyon, fiery Irish congressman from VT called President pompous and foolish. Prosecuted and convicted. Re-elected while in prison. 2. Lyons called the presiding judge to testify. The judge has dined with Adams and can testify to him being pompous 3. Judge refuses. Lyons, however, through this tactic makes the trial look like a kangaroo court. viii. US v. Cooper – circuit court case, PA 1800 1. Cooper published a pamphlet critical of Adams administration 2. Presiding Judge – Samuel Chase a. Highly partisan, short-fuse b. Signer of D of I c. Chase said that Cooper was trying to influence people against the President in the next election






xiii. xiv.

i. Idea of opposing President in election was never known before even though contemplated in the Constitution 1. Note: no divisive contests yet US v. Callender 1800 1. Callender, TJ ally, wrote really vicious book 2. Callender argued that jury should determine constitutionality of Sedition Act 3. Chase: Juries not competent to do such Conflict at this time between freedom of speech and Sedition Act 1. Revolutionaries who come into power are usually not in favor or another revolution 2. When TJ was elected he wanted to use Sedition Act against Federalists, but the Act expired The Attempted Impeachment of Samuel Chase 1. TJ Took out revenge on Chase by trying to impeach him 2. Chase‟s defense ironically was that the Dem-Reps are attacking him based on his political opinion 3. Key argument: Nothing he did raised to the level of high crimes or misdemeanors 4. The failed impeachment strengthened the concept of an independent judiciary. a. Discouraged subsequent attempts to impeach judges for partisan reasons b. Forced judges into a less partisan role c. Limited incoming administrations‟ ability to get rid of justices they did not like The Virginia and Kentucky Resolutions 1798-1799 1. Contemporaneous with the Sedition Act 2. Stated the compact theory of the states and the federal government a. Constitution is a compact amongst the states and the states delegated limited powers to the federal government b. When fed govt, assumes un-delegated powers, they are void and have no force c. This theory comes up again during Secession and Brown Jefferson wins Presidency and presides over the first peaceful transition of political power in US Judiciary Act of 1789 1. Created the judiciary format b/c the Constitution did not provide for how the courts were to be set up 2. Established diversity jurisdiction 3. Sec. 25 – gives authority to the US Supreme Court to re-examine, reverse, or affirm decisions of state supreme courts –fed questions will still be heard in state courts first 4. Sec 34 – requires that the US Supreme Court apply the laws of the states in cases from the state



xv. Calder v. Bull 1978 1. Written by Chase 2. Theory that there is some kind of check on what governments can do that is not in the Constitution  inherent limitation on legislative power 3. Social compact theory – illogical to assume that people would give govt the power to oppress people xvi. John Marshall – Supreme Court Chief Justice 1. Instituted the practice of having one opinion 2. Marshall‟s primary political goals was to expand the power of the national government 3. Marbury v. Madison a. Created concept of judicial review b. Marshall justifies this concept even though it was not in the Constitution c. Supremacy of the Supreme Court‟s interpretation over the legislature‟s interpretation d. Those who apply rules to particular cases must of necessity expound and interpret those rules 4. McCullough a. Stressed how Constitution was founded by the people b. It is a creation of the people not the States 5. Gibbons v. Ogden a. Commerce clause – Lays foundation for national economy b. States that navigation is commerce 6. Dartmouth College a. Treats charter as contract xvii. Andrew Jackson Veto Message – Each branch can decide constitutionality xviii. Big question: Is judicial review and a strong Supreme Court inconsistent with popular sovereignty? The Active State and the Mixed Economy, 1812-60 a. See McCullough, Gibbons, and Dartmouth as how the Supreme Court and Marshall promoted a national economy b. Charles River Bridge Taney 1837 i. Court found that the economic development and creation of new channels of trade are important and must not be inhibited. Thus, state is allowed to charter competing companies ii. Shows court promoting the economy c. Labor Law i. Hunt (Shaw)– not illegal to unionize, prior to that is was considered a criminal conspiracy 1. The union does not come together for an illegal purpose 2. Have the right not to work; not under a contract ii. Farwell (Shaw) – fellow servant rule 1. Imbedded in Shaw‟s opinion is the concept of assumption of risk



2. Shaw triple hearted the railroads. Feared that if court had a rule that interfered w/ the progress of the railroads then investment in them would die d. Property Law i. Van Ness – Rejection of common law tradition that what was built on a piece of land is part of the land 1. Underlying factor: Railroads very interested in using eminent domain ii. Parham – “It is very clear that the legislature may take the property of a citizen for purposes of public necessity or public utility” as long as the govt compensates the owner e. Tort Law i. Law of torts rapidly changed in mid-19th century ii. Previously used to be just a variety of wrongs/ old common law writ system iii. Industrialization led to more accidents and a better way of dealing with these claims that the writ system iv. Recognition of negligence as a cause of action f. Contract Law i. Courts didn‟t inquire into the adequacy of consideration anymore – Shift away from analyzing fairness to analyzing arms-length contracts ii. Caveat emptor principle emerges iii. Courts wanted people to be held to their contracts b/c it would foster economic growth  Don‟t want courts voiding contracts left and right g. Water Rights i. Water rights was very different in the east and in the west 1. In East, had to own land to get water from it and in the West, did not have to own, but only could use it for a beneficial purpose to divert it for your own uses ii. Cary v. Daniels – Shaw 1. Pro-development case 2. If subsequent mill entrepreneurs could take over water rights of prior then there would be a major disincentive to build iii. Irwin v. Phillips 1. Traditional water law of East did not apply out west. More irrigation out west. Could use water for beneficial use and thus could divert a stream from natural channels Slavery a. Slavery and State Law i. Thomas R.R. Cobb, An Inquiry into the Law of Negro Slavery 1858 1. Reflects conventional wisdom in the South close to secession 2. Views: a. Black color fit for their endurance of the heat b. Mental inferiority c. Slavery is what is best for the slaves


i. No longer viewed as a necessary evil but rather a necessary good d. North doesn‟t understand what goes on in the South 3. Slave codes were re-enacted during this time w/ limited protections ii. State v. Mann – Judge Ruffin - slaveholder 1. Theoretical underpinning of slavery –necessity of total dominion to maintain institution of slavery/ Slavery can only work if there is no protective laws for slaves 2. Can‟t have criminal punishments for cruel and unusual punishments of a slave b/c it is against institution of slavery a. This barbarity is part of slavery 3. Rebellion by the slaves makes sense. They are human and no human would want to live like this. Thus there needs to be uncontrolled authority over the body of slaves 4. Ruffin is essentially stating that himself and the law are helpless 5. Harriet Beecher Stowe thought Ruffin was expressing his opposition to slavery iii. Question of comity between the states and whether states should recognize other states‟ decisions about slavery 1. Mitchell v. Wells – Mississippi did not have to recognize the free status of a slave who was once domiciled in Mississippi a. Ohio has terminated comity by emancipation and the abolition of slavery by lawless interference with the local rights of Mississippi 2. CW v. Aves Chief Judge Shaw a. Shaw was personally anti-slavery but felt that abolitionists were too radical/ not pragmatic b. If person brings his slave into MA that person may not keep the slave under slavery while in MA and force him to return against his consent c. Analysis: i. Slavery was abolished in MA Constitution by “All men are born free and equal” ii. Slavery is contrary to natural law. Needs positive law for it to be enforced iii. Shaw does not accept the argument that laws of personal property follow the property b/c people are not property d. Note: There was sufficient legal precedent for Shaw to come out either way on this issue b. Slavery and the Constitution i. Lincoln detested slavery. He read the Constitution literally, but at first wanted restrictions, not abolition. Lincoln did not think that the Union could continue to survive as half-slave and half-free. Will become one or the other ii. Aves cont.


1. Fugitive Slave Clause and a federal statute that enforces this clause 2. Shaw: This clause is for the escaped slave who runs away to a free state, not a slave who is voluntarily brought to a free state by his or her master iii. Prigg v. PA Justice Story 1842 1. Story was also personally anti-slavery, however, he was convinced that the Constitution sanctioned slavery 2. Argument here is that the federal law pre-empts any state law that gives more liberties to a fugitive slave 3. Both pro and anti-slavery forces took comfort in this decision: a. Pro: Finds a constitutional basis for Fugitive Slave Act/ federalizes slavery b. Anti: Fed govt does not have the enforcement apparatus that the states do. Story put the enforcement power in the feds who are not able to do so. Opens possibility for lax enforcement by some states. Preemption means states cannot weaken or strengthen Fugitive Slave Act iv. Dred Scott v. Sanford – 1857 – Justice Taney 1. Blacks are not citizens a. When Constitution was written blacks were not citizens. b. “All men are created equal” does not include blacks c. Popular opinion has always separated blacks/ regarded as inferior d. The Union was based on slavery e. Universal opinion that slavery was correct at time of the Constitution 2. The Missouri Compromise is unconstitutional a. Cannot restrict expansion of slavery b. Congress is not allowed to pass a law saying that slavery can be excluded from some territories i. But Congress has power of territories ii. Taney believes this provision of the Constitution to mean only the territories at the time of its inception c. Congress cannot ban rights in the territories – can‟t ban free speech and can‟t deprave people of their property i. This is an early substantive due process argument c. Morality, Judging and the Law of Slavery i. There is danger in judges applying their own moral conscience instead of the law, but there is also danger in judges just blindly following the law ii. Shaw – Aves – personally anti-slavery iii. Story – Prigg – personally anti-slavery BUT the Constitution explicitly talked about slavery and upheld it. Felt he had to follow the law iv. Shaw and Story seemed to do as much as they could without usurping the legislature‟s power v. Robert Cover, Justice Accused: When a judge is caught between the law and morality, he has 4 choices:



Apply law against conscience Apply conscience and be faithless to the law Resign Cheat – manipulate the law -> Preserves an appearance of conformity to the law and morality Civil War and Reconstruction a. South Carolina Ordinance of Nullification 1832 i. Nullified tariff on import related to slavery based on belief that state sovereignty allowed them to nullify federal law ii. SC‟s theory: Theory of Compact 1. The Constitution was a compact and if one side did not meet its obligation then the other side could nullify iii. Said that courts could not question nullification and legislatures had to take an oath to the nullification b. Andrew Jackson‟s Response: i. The Constitution was designed to form a more perfect Union ii. Ability to nullify would reduce the bond of the Union  Constitution does not contemplate this iii. No independent right to secession iv. States have not retained full sovereignty as SC argues c. Declaration of Secession – SC 1860 i. Based on the compact theory 1. The other states are not following through on their obligation under the fugitive slave clause  This is a material breach, thus, making the contract (the Constitution) null and void 2. Last paragraph similar to the Declaration of Independence d. Abe Lincoln‟s First Inaugural Address 1861 i. “The Union is much older than the Constitution.” 1. Note: 4 scores and 7 years ago goes back to 1776 ii. Therefore, no state can leave the Union and to leave the Union would be anarchy iii. Since Union came before the Constitution, then a breach of the Constitution does not mean a state can leave the Union iv. Trying to keep country together – Said would not interfere with slavery but denied the states any right to secede e. Confederate Constitution i. Almost identical to the US Constitution with some changes ii. Framers of this Constitution thought they were restoring original intent iii. Slavery is built into this Constitution however 1. In privileges and immunities clause reference to “slaves and other property” 2. Abolishes importation of blacks for slaves 3. Confederate states can acquire new territory and institution of slavery would be recognized there iv. Note: No provision for secession

1. 2. 3. 4.


v. Preamble mentions that “each State acting in its sovereign and independent character” entered into the Constitution, but it was established to form a permanent federal government 1. These words were a response to McCullough vi. Other differences: 1. 6 year Presidential term 2. President has line item veto 3. Sharp limitations on what govt could spend money on 4. No general welfare clause 5. Concerned about not giving fed govt too much power, but at least enough to prosecute the war vii. Codifies Dred Scott -> slaves are property and state to state movement of slaves allowed f. Gettysburg Address – 1863 i. Hearkens back to 1776 – thus no compact theory ii. Lincoln never viewed this as a war between two countries, but rather saw the South as a rebellion from within iii. Expresses his idea of a country of the people, by the people, for the people g. Restrictions on Civil Liberties during the Civil War i. At the beginning of the war, Lincoln unilaterally suspended habeas corpus while Congress was not in session. Believed had emergency power to do so ii. Taney declared Lincoln‟s suspension of habeas corpus unconstitutional in Ex parte Merryman 1. Only Congress has the power to suspend habeas corpus. Court is assuming this. Historical argument about monarchs abusing their power. Framers would never have wanted to give this power to the President iii. Lincoln ignored Taney‟s order to release the Confederate activist Merryman. Congress subsequently ratified Lincoln‟s actions with the Habeas Corpus Act of 1863. iv. After this case, fed courts showed huge deference to Lincoln v. Prize Cases 1863 1. Court debated whether the conflict should be defined as a war 2. This is a war even if it is internal. Therefore, constitutional for President to take actions to suppress insurrections 3. Court thus upheld Lincoln‟s unilateral use of blockade against southern ports vi. Ex parte Vallandingham 1864 1. Court refused to intervene on behalf of civilian arrested, tried, and sentenced by a military tribunal 2. Said it didn‟t have jurisdiction over the case 3. Lincoln: “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? I think that in such a case to silence the agitator and save the boy is not only constitutional, but withal a great mercy.”



vii. Lincoln argued that the entire country was a war zone and that military arrests far from the front lines were justified viii. Lincoln‟s view: Punish advocacy of unlawful action but not opposition to the war. This is a fine line at times. ix. Ex parte Milligan – post war case 1866 1. Civilian may not be tried by a military tribunal when civil courts are open and functioning 2. Martial law is against the Constitution 3. The law is equal in times of war and in times of peace h. Emancipation Proclamation – 1863 i. At first, Lincoln said he would save the Union by freeing no slaves, all the slaves, or some of the slaves ii. By 1862, his opinion changed to the fact that the slaves needed to be free iii. Lincoln said that he made a pack with God that if they won the battle, he would free the slaves iv. The Emancipation Proclamation frees the slaves in the South, but not in the border states 1. Lincoln feared that the border states would join the Confederacy 2. Slaves were freed as Union army took over parts of the South 3. Lincoln asserted that his Commander-in-Chief powers allowed him to do this because it was a time of national emergency Race Relations in the 19th Century a. Andrew Johnson and Reconstruction i. Johnson was determined to maintain inferior status of blacks 1. Racist 2. Opposed to Reconstruction – Hostile to the idea of imposing requirements on southern states for readmittance ii. His presidency itself maybe one factor for the failure of Reconstruction 1. Reconstruction was a lost opportunity 2. Vacuum of leadership – Lee surrendered 5 days before Lincoln was assassinated iii. Jackson‟s Impeachment 1. Congress wanted to place limitations on Johnson‟s ability to remove officials – Reconstruction Tenure in Office Act 2. Johnson failed to comply with act 3. He was impeached, but acquitted by one vote 4. Political overtones to articles of impeachment: Congress was on track for Reconstruction and Johnson was an obstacle to success a. Political motivation behind it probably hurt impeachment effort 5. Unclear whether this was a high crime or misdemeanor 6. Impeachment distracted from Reconstruction b. Mississippi Black Codes 1865 i. Gave blacks right to sue/ be sued; right to marry within race; legitimatization of slavery marriages; some property rights ii. However many things parallel to old black codes


iii. Restrictions on interracial marriage iv. Vagrancy laws prohibited blacks from congregating together v. Employment contracts: If black employee quits before contract ends, blacks forfeit all wages/ May arrest and carry back to his or her employer any black who quits 1. Still wanted to control labor c. Civil Rights Act of 1866 i. Congress‟ response to the proliferation of southern black codes ii. Designed to federalize protection of newly freed blacks iii. \Designed to overrule Dred Scott  all born in US are citizens d. The Slaughterhouse Cases 1873 i. Privileges and immunities clause of 14th A only applies to citizenship of the Nation and not of the States 1. Narrow reading 2. The rights of national citizenship are right to travel, etc ii. Court said that a broader reading would have been a radical re-ordering of the relationship between the federal govt and the states 1. Court did not see this as the intent of the 14th A iii. Dissent stressed the nationalization of liberty under the 14th e. Segregation i. Roberts v. Boston 1840 school segregation in the north 1. Shaw: Equality does not mean you have to treat people the same a. Separate does not necessarily mean unequal b. As long as school district had rational basis for segregation 2. Shaw saw segregated schools as giving an education to blacks which was good 3. “This prejudice, if it exists, is not created by law, and probably cannot be changed by law” ii. Plessy v. Ferguson 1896 1. 14th A was undoubtedly to enforce absolute equality, but did not diminish distinctions based upon color 2. Blacks are choosing to see segregation as a badge of inferiority 3. Law cannot remedy social inequality 4. Harlan dissent: a. The laws of segregation are clearly creating inferiority b. The Constitution is colorblind – no caste system in US i. Close textual reading of Constitution ii. Purpose of Reconstruction amendments was to end racial discrimination c. Harlan concerned about the social implications of these laws  will lead to social unrest d. “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.”



Gender and Domestic Relations a. 1820-1860 – The “Second Awakening” of religious fervor in the United States. This religious revival serves as an impetus for a variety of reform movements, such as abolitionism, temperance, and women‟s rights i. Note: liquor companies were very against women‟s movement b/c it was tied to the temperance movement b. Seneca Falls Declaration of Sentiments 1848 i. Elizabeth Cady Stanton (seen as much more radical than Susan B. Anthony) and Lucretia Mott organized the Seneca Falls Convention ii. They modeled the language of their Declaration on the Declaration of Independence. They charged that men had usurped women‟s freedom and dignity 1. Men had “absolute tyranny” over women 2. Wanted their inalienable right to the elective franchise c. Arguments used against giving women right to vote: i. Women will just vote like their husbands OR will vote differently than their husbands and cause civil strife in marriages d. Orestes Brownson, “The Woman Question” 1869 i. By nature, a woman‟s place is as a wife and mother. Women suffrage would lead to the breakdown of the family ii. “The most degraded of the savage tribes are those in which women rule and descent is reckoned from the mother instead of the father” iii. Concerned with discourse within the family 1. Voting differently, husband and wife running against each other e. There was a racist appeal to the movement: Why should the govt let uneducated black men vote, but not wealthy, educated white women? i. Frederick Douglas was tied to the movement, but during the ratification of the 13th, 14th, and 15th A‟s he said it was the “negro‟s hour.” f. There were attempts to argue that the Privileges or Immunities Clause and the EP clause of 14th A protected women i. Bradwell v. Illinios 1873  Practicing law is not a privilege or immunity protected by 14th A ii. Minor v. Happersatt 1875  Right to vote not one of the “privileges or immunities” g. US v. Susan B. Anthony 1873 i. Anthony found guilty of unlawfully voting ii. Used every moment of the trial to get publicity for her cause 1. She went around speaking about the case. Prosecutor moved for change of venue b/c could not get a fair trial b/c Anthony had convinced everyone she should be able to vote iii. Judge Hunt was worried about jury nullification. Said case did not have to go to the jury because there was no factual dispute iv. Anthony used trial as a political process. The exposure mattered more than the outcome v. The drive for a constitutional amendment began in earnest after Anthony‟s thwarted attempt to vote.


h. The NY Married Women‟s Property Acts 1848 i. Under the doctrine of coverture, the property of the wife came under control of her husband. This practice left many women economically dependent on their husbands 1. This dependence was costly to the economy ii. State legislatures adopted married women‟s property acts as a means of dealing with the twin problems of providing greater stability to the economy and ensuring the equitable treatment of women (and minor children under their care) from spendthrift husbands iii. More about equity in treatment than equality with husband i. Marriage i. Change in how marriage was viewed – more of a contract than a covenant with God ii. Joel Bishop, “The Nature of Marriage and How Defined” 1881 1. “[I]t is not merely either a civil or religious contract; and at the present time it is not to be considered as originally and simply one or the other.” 2. No matter how religious in nature the marriage is, “the law leaves this nature to the sole care of religion, and contemplates it only as a civil institution.” iii. Breach of promise suits were used to police courtship i.e. Wightman iv. Reynolds v. US 1879 – polygamy case j. Divorce i. During the colonial period, most divorces were granted to women and most of them were based either on a husband‟s adultery or physical cruelty ii. In 19th Century, a more liberal view of divorce developed 1. Extreme mental cruelty could be ground for divorce Walrdon k. Contraception i. By 20th century, US had one of the lowest fertility rates ii. Companionate form of marriage and more attention to the kids may have led to the decline iii. But also use of contraception effected it. iv. Women viewed the practice of birth control as one way of increasing their autonomy v. There was a backlash that led to criminalization of dissemination of birth control info (constitutional - Sanger) and practice of abortion l. Abortion i. At the beginning of the nineteenth century, abortion carried no legal penalties so long as it was performed before “quickening.” By the end of the century, opinion began to shift 1. Quickening doctrine CW v. Bangs 1812 2. State v. Slagle – high misdemeanor VIII. Legal Reform at Century’s End a. Legal Reform in the Nineteenth Century i. Legal education was very informal 1. There was no oversight of the profession






2. No formal education – became an apprentice to a lawyer Alexis de Tocqueville on Lawyers and Judges 1835 1. In America, all social questions become legal questions 2. Judiciary is the most powerful branch 3. Lawyers, not by birth but by profession, become part of an aristocracy Lawyers and judges impeded democracy 1. Note: Seen as anti-democractic 2. The law was being applied in a haphazard way a. Lead to a more systematic approach  idea of “legal science” 3. Push for elected judge 4. Codification of laws by the legislatures to tie the judges‟ hands Christopher Columbus Langdell 1. Dean of Harvard Law School from 1870 to 1895 2. Thought that law should be viewed as a science and not as philosophy 3. Need to apply logic. Thus, use systematic ways to apply the law to the facts of a particular case 4. Created the casebook method of law study. Also started the use of the Socratic Method, 3yrs of law school and final exams a. Casebooks were a way to reduce everything to a formula b. He picked out the good cases and got rid of the bad ones 5. Legal education should stress the deduction of enduring principles from leading judicial decisions Oliver Wendell Holmes 1. The Common Law 1881 a. Holmes lectures on the common law. These documents are seen as the founding documents for sociological jurisprudence b. “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.” c. “The law embodies the story of a nation‟s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” d. “The substance of the law at any given time pretty much corresponds … with what is then understood to be convenient” e. Thus the law responds to the felt needs of the times


2. Experience in the Civil War shaped his outlook on life. Made him cynical of human nature a. Harsh view: sterilization  “three generations of imbeciles is enough” 3. He was skeptical of ideals and ideologies. Thought that all ideals are subject to change and modification 4. Calls Langdell a “legal theologian” 5. Thinks public policy and not morality should be the basis for law 6. Holmes believed that practical considerations rooted in underlying social needs and conflicts ultimately shaped the course of the law 7. Thought there were no moral or social absolutes; rather judges articulated law based on their perceptions and sentiments a. The lawyer‟s job was to predict their behavior 8. “The Path of the Law” – 1897 a. Torts: There should be no difference between a bad man doing something wrong an a good man i. Bad man theory ii. Wanted to dispel confusion about morality and the law iii. Bad man follows the law only so he does not get in trouble b. Differences of character should not be taken into account when deciding blameworthiness 9. Isn‟t Holmes not a legal scientist himself b/c he is trying to bring a dispassionate view to the law b. Judicial Reaction to the Regulatory State i. The late nineteenth century saw a substantial increase in regulation 1. States used their “police power” as the basis for regulations ii. Populist movement 1. Populist Party demanded that government curb private economic power and affirmatively aid the disadvantaged iii. Many judges were cautious/ skeptical about the regulation of business 1. Many of them believed in laissez-faire economics iv. Many did not like intrusion on property rights 1. David Brewer, ”Protection to Private Property from Public Attack” a. “Private property is sacrificed at the hands of the police power in a least three ways: first, when the property is destroyed; second, when by regulation of charges its value is diminished; and third, when its use or some valuable use of it is forbidden.” v. New York Worker‟s Compensation Act 1. The basic policy of worker‟s compensation was a guaranteed recovery for death or disability and statutory abolition of the fellow servant rule, offset by a cap on liability plus abrogation of tort remedies of the injured worker vi. Bradley dissent in Slaughterhouse Cases


1. Origins of substantive due process in US Supreme Court may be traced to this dissenting opinion 2. SDP in the Magna Carta; Thomas Cooley‟s Constitutional Limitations 1868; Calder v. Bull 1798 – Justice Samual Chase 3. SDP – unlimited, substantive limitations on what legislatures can do using its police power a. Need to balance legislature‟s police power with protected rights 4. The right to choose one‟s calling is man‟s property and right vii. Regulations upheld in: 1. Munn v. Illinois US 1877 a. People have fundamental rights, but when they enter society, they give some of those rights up when its for the common good b. There is a police power to regulate health, morals, safety in “industries infected with public interest” 2. Holden v. Hardy US 1898 a. Upheld state statute regulating hours of miners b. Paternalistic side of Court, involved health and morals and liberty of contract (no equal bargaining power between ee‟s and employers) 3. Slaughterhouse Cases 1873 4. Muller v. Oregon US 1908 a. Restriction of number of hours women can work b. Liberty of contract was not an absolute bar to employment regulations c. This case, paternalistic; more based on women being different than men i. Brandeis Brief viii. Regulations struck down: 1. Wynehamer NY 1856 a. State can‟t prohibit alcohol sale 2. In re JacobsNY 1885 a. State law banning production of tobacco-products in tenements b. Substantive due process argument. “any law which destroys [property] or its value, or takes away any of its essential attributes, deprives the owner of his property.” 3. Allgeyer v. LA 1897 a. Landmark case – The right of capable parties to enter contracts was part of the liberty protected by the due process clause of the 14th A against unreasonable state abridgment 4. Lochner v NY US 1905 a. State regulated number of hours bakers could work



b. Liberty of contract: Workers have freedom to sell labor and employers have the freedom to buy it 5. Ives v. South Buffalo Railway Co NY 1911 a. NY Court of Appeals struck down NY Worker‟s Compensation Act – Viewed it as an impermissible deprivation of an employer‟s property without due process of law b. Supreme Court sustained revised Act. Revised Act made compensation the sole remedy, got rid of negligence action. Lawmakers thought there needed to be a benefit to both EE and ER to meet the possible constitutional objections The Progressive Era – Individual Liberties in Changing Times a. Louis D. Brandeis and Samuel D. Warren, “The Right to Privacy” 1890 i. Brandeis was nicknamed the “People‟s Attorney” ii. Discussed how privacy concerns have arose because of new technologies, population growth, growth of mass media, urbanization/ industrialization iii. Right to be left alone iv. Right of privacy was natural evolution of the common law b. Dissent during World War I i. Espionage Act and Sedition Act 1. Same fear as during other wars of domestic insurrection and end of government a. However, now the govt is far more organized/ more prosecutions/ longer sentences ii. Court‟s Reaction to Suppression of Free Speech 1. Clear and present danger test a. Schneck – def mailed anti-war leaflets to draft-age men i. Congress can only prevent speech if there is a clear an present danger b. Abrams – def distributed leaflets that urged a general strike to protest “barbaric intervention” in Russian Revolution i. Holmes dissent – He flip-flopped 1. Just a crazy guy with a leaflet 2. Its human nature that we do not like dissent, but we need a marketplace of ideas 3. Danger has to be imminent and likely 2. Holmes upheld the Espionage Act conviction of Eugene Debs a. Debs, Socialist candidate for President – ran from prison iii. ACLU comes into existence during this time period c. Constitutional Amendments i. Amending the Constitution emerged as a method of social reform during the Progressive Era ii. Prior to 1912, there were only 5 new amendments. Between 1913 and 1933, 6 amendments became law, although one repealed another iii. Amendments: 1. 16th – Income Tax



a. Response to Supreme Court in the Pollock case, striking down income tax as unconstitutional b. The relatively quick success of this amendment, coupled with its broad popular support, led many reformers to believe that constitutional amendments could be an effective way to achieve political and social change th 2. 17 – Direct Election of Senators 3. 18th – Prohibition 4. 19th – Women‟s suffrage 5. Failed amendment – child labor amendment 6. 20th – Lame Duck Amendment 7. 21st – Repealing Prohibition The Law and the New Deal a. Ideas about the Law in 1930‟s i. Sociological Jurisprudence 1. Relied on social science to determine laws. Looked to empirical evidence rather than the immutable doctrines of Langdell 2. Developed by Roscoe Pound 3. Law might be flexible, but it was – and should be – value laden 4. Ex) Brandeis brief ii. The American Law Institute 1. Elihu Root and others thought that the Restatements would bring consistency to the law and create a foundation 2. Thought there was capacity to bring order to the chaos a. Used experts to help establish rules to guide judges b. Similar to Langdell  establishing rules 3. Restatement was essentially a codification of the common law a. Codification w/o democratic input b. Was the ALI restating the law or writing it? iii. Legal Realism 1. The opposite response to trying to bring order to the law was to accept the fact that the law is constantly changing 2. Legal realism was more of a critique of existing law than a program for action 3. Jerome Frank, Law and the Modern Mind 1936 a. Note that Frank underwent psychoanalysis b. Frank actually advocated that all judges undergo psychoanalysis c. Judges use their own beliefs and personalities when deciding a case, not just the law d. Psychology had a huge hold on popular culture at this time e. Highly skeptical of legal rules and of fact-finding 4. Some scholars felt that the legal realists went to far because they undermined any moral compass of the law. WWII, Nazism, fascism, etc led to a rejection of legal realism


a. Frank turns 180 degrees and espouses natural law as a basis of law b. The New Deal and the Supreme Court i. Traditional liberalism had held the individual paramount and feared the active state. The new liberalism reversed that and saw government as a positive good which should be used to promote the public interest/ social and economic justice ii. Composition of the Supreme Court: 1. Four Horsemen of the Apocalypse – Van Devanter, Sutherland, McReynolds and Butler 2. Liberal justices – Brandeis, Cardozo and Stone 3. Swing votes – Hughes and Roberts iii. In Home Building and Loan Association v. Blaisdell 1934, they sustained the Minnesota Mortgage Moratorium Law and in Nebbia v. NY 1934 they upheld NY statute regulating the price of milk. Both votes were 5 to 4. iv. FDR administration however realized it was headed for trouble when the Court began hearing cases about the nastily drawn “First New Deal” legislation. v. Schechter v. US 1935 – sick chicken case 1. Unanimous decision striking down the National Industrial Recovery Act (NIRA) as unconstitutional a. Excessive delegation of legislative power to the President b. Unconstitutional regulation of intrastate commerce vi. West Coast Hotel v. Parrish 1937 1. Washington State minimum wage statute 2. Court: No more economic substantive due process and no more right of liberty to contract 3. Big flip flop on the part of the Court 4. How do you explain this? a. Langdell would have said that the judges were finally realizing the correct rule that there is no liberty of contract b. Fireside chat may have been a wake-up call about the dire times of the Depression c. Court reacting to the political effect of FDR‟s courtpacking scheme vii. FDR‟s Court-Packing Plan 1. By the presidential election of 1936, the Supreme Court had overturned or significantly limited all the major parts of the “First New Deal” and the justices were about to tackle the “Second New Deal” 2. FDR in 1936 won a landslide victory 3. FDR frustrated with the Court and the fact he did not get to fill any vacancies in his first time. Saw Court as a barrier to progress. 4. He was afraid the Court would strike down the Social Security Act and National Labor Relations Act


5. Despite FDR‟s enormous popular support, the Judiciary Reorganization Bill, stirred public anxiety b/c seen as putting politics above the law a. Concerned about independence of judiciary b. Concerned about fascism/ too much power for FDR 6. Court packing scheme led to a loss of confidence in FDR by the country 7. “Fireside Chat on the „Court-Packing Bill‟” 1937 a. Govt has 3 horses. President and Congress are 2 horses moving in one direction. The third horse, the Court, is not pulling in unison b. Turns constitutional policy on its head  seems to go against checks and balances XI. World War II a. Although isolationism was a powerful force, the surprise bombing of Pearl Harbor united Americans as few events have. There was a lot of national unity behind the war effort b. In addition, dissent was tolerated and there were few attacks on civil liberties c. The flag salute cases i. Minersville School District v. Gobitis 1940 1. Characterized flag salute as part of the patriotic fabric that underlies our society. Flag salute promoted national unity ii. WV State BOE v. Barnette 1943 1. Gobitis is overruled 2. State is trying to compel a belief/ this is coercion of conscience b. Justice Stone‟s Footnote 4, US v. Carolene Products 1938 i. Articulated strict scrutiny for fundamental rights ii. Warned court will defer when there is prejudice against discrete and insular minorities c. Japanese Internment i. Executive Order – No. 9066 interned the Japanese ii. Hirabayashi v. US 1943 – upheld curfew for Japanese iii. Korematsu v. US 1944 1. Court applied rigid strict scrutiny because it was a racial classification, but still upheld it b/c of compelling interest in national security/ preventing sabotage. Court said this was a military necessity 2. No least restrictive means because army had said no way to separate out loyal from disloyal a. Racist undertones about the “sneaky Oriental” 3. Court too deferential to the military. 4. The Court seemed not to appropriately apply its own standards 5. Note: Military had no evidence of Jap disloyalty iv. For Germans and Italians, there were just separate loyalty hearings 1. Some Italian and German internment, but it was for a short term



v. Note: No internment in Hawaii despite their being 158, 000 Japanese there. Used loyalty hearings vi. Note: There were pro-fascist German and Italian organizations, but no Japanese ones vii. How does this compare with other wartime cases? 1. In other cases there were actual people speaking out against the govt The Cold War and the Law a. Executive Authority and the Cold War i. Youngstown Sheet & Tube Co v. Sawyer 1952 1. Example where the Court was not deferential to executive branch and the military 2. Concerned that the Cold War is a different kind of war and it might last a long time 3. Concerned about increasing the President‟s powers b. Anti-Communism and the Constitution i. US and Soviet Union had each developed nuclear weapons. Big concern about mutual assured destruction ii. Communism – the ideas of this form of govt were as dangerous as an y weapons iii. Dennis et al v. US 1951 1. Dennis, head of American Communist Party, was found guilty under the Smith Act of advocating the overthrow of the govt of the US 2. Court: Smith Act constitutional a. Clarified the clear and present danger test  “Must ask whether the gravity of the „evil,‟ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger b. Here  Just b/c Communists were not successful does not mean they do not pose an imminent danger. The danger of them is so grave iv. Fear of Communism developed b/c of: 1. 1920‟s – USSR‟s stated desire for worldwide communism a. Palmer Raids 2. USSR domination of Eastern Europe and the partition of Germany after WWII 3. Fears of Communist infiltration of federal govt – i.e. Alger Hiss 4. Fall of China to communism 5. Korean War v. Senator Joseph McCarthy 1. In Feb 1950, charged that he had a list of Communists in the State Department 2. Initially led to a lot of popularity for McCarthy 3. Ike was enraged by McCarthy‟s attack on the Army


4. McCarthy-Army hearings televised. His bullying style played very poorly on TV, and his popularity dwindled 5. He was later censured by the Senate XIII. Desegregating American Society a. Before Brown i. States that were hostile to blacks took the Plessy decision of separate but equal and ran with it ii. Litigation strategy of the NAACP 1. It was founded in 1909 but did not formulate a legal strategy until the 1930‟s 2. Strategy was to attack segregation in schools a. Start at the top of the education pyramid and move down b. Argued that separate schools were not equal in fact 3. Led by Charles Houston (1st black member of Harv. L. Rev/ Dean of Howard Law School) iii. In 1941, FDR forbids discrimination by federal defense contractors iv. In 1948, Truman abolishes segregation in the armed forces by executive order. In Shelly v. Kramer, the Court prohibits state enforcement of restrictive covenants v. Missouri ex. rel Gaines v. Canada 1938 1. Major civil rights victory because Court required that a state provide “equal” facilities along with “separate” ones vi. In Sweater v. Painter and McLauren v. Oklahoma State Regents, the Supreme Court strikes down segregation in law schools and graduate schools but does not confront Plessy. b. Brown v. BOE 1954 i. Warren wanted a unanimous decision and he got it (Reed, last one to sign on to decision). He didn‟t want a divided Court to be used as an argument against enforcing desegregation. Warren thought that separate but equal was based on the thought that the black race was inferior ii. Basis for finding “separate but equal” doctrine unconstitutional: 1. Education is a fundamental aspect of our society 2. Social science research showed that segregation had negative impact on black children. a. FN 11- cited a bunch of psychological studies. Warren saw this FN as a rebuttal to the cheap psychology in Plessy (Court there stated if blacks felt inferior that was their own mental problem) 3. EP Clause a. History behind 14th A inconclusive b. Based on the concept of equality rather than equality defined through the past precedent of EP cases iii. Criticisms of Brown: 1. Court ignored history of 14th A – segregation was allowed then 2. FN 11 had no constitutional grounds 3. Wechler‟s Neutral Principles of Constitutional Law


a. Case was not decided on neutral principles b. Both parties are affected by desegregation. Thus, not really an EP problem c. Concerned about freedom of association iv. Brown II 1. Implementation part of school desegregation greatly resisted 2. Segregation should be abolished with “all deliberate speed” c. Aftershocks of Brown i. White Citizen Councils in the South conspired to frustrate implementation of the decision, and the Ku Klux Klan, which had been moribund for a number of years, sprang back to life ii. Southern Declaration on Integration 1956 1. Signed by 101 members of Congress, including all the southern Senators except 3 2. Began massive southern resistance to Brown 3. Asserts that neither the Constitution not the 14th A say anything about education a. Stated that the debates preceding the submission of the 14th A clearly show that there was no intent to effect the systems of education b. The very Congress that proposed the amendment subsequently provided for segregated schools in DC 4. Court is meddling with states‟ rights 5. Pledge to do all they could to resist decision and get it reversed iii. Desegregation in Little Rock, Arkansas 1957 1. Gov. Orval Faubus called out National Guard to make sure only white children were allowed into Central High 2. Ike met w/ Faubus and thought he convinced him to allow black kids to go to school 3. Faubus just changed his tactic by removing the National Guard and only left the city police in charge of protecting the school – Police could not stop the mob of people 4. Ike then called out US paratroopers to restore order and to integrate the school. They stayed the whole year to protect the black students 5. Cooper v. Aaron 1958 a. Claim by Governor Faubus and legislature that they had no duty to obey the federal court orders resting on the Court‟s considered interpretation of the US Constitution b. Unanimous decision of the Court – state cannot prevent students from attending school c. Court asserted that it alone could conclusively interpret the meaning of the Constitution iv. Swann v. Charlotte-Mecklenburg BOE US 1971 1. Court-ordered school busing


2. Court said that school districts can no longer resist attempts to desegregate 3. Federal courts retained substantial flexibility to review process 4. Forceful statement by the courts v. Desegregation in the Boston Schools 1974 1. Morgan v. Hennigan - Federal court (Judge W. Arthur Garrity, Jr.) in Boston ordered busing to achieve racial balance between Roxbury and Southie a. Court decided that school board consciously kept up a system of black schools and white schools 2. School board at first refused to follow order. Garrity given control 3. Led to white flight from Boston and white students going to private schools vi. What does all of this say about Court‟s ability to influence events? 1. Courts don‟t have authority to send troops 2. Courts cannot change hearts and minds, or does the Court start the ball rolling wrt hearts and minds? XIV. Vietnam and the Law a. Gulf of Tonkin Resolution 1964 i. Resolution seemed like Congress gave LBJ a blank check ii. Congress may have thought time was of the essence 1. Sufficient concern about domino effect of communism iii. Gulf of Tonkin incident created a credibility gap for LBJ administration b. Shift in Congress from almost unanimously voting for Gulf of Tonkin Resolution (1964) to when the Congress voted on the War Powers Resolution (1973) c. Mora v. McNamara US 1967 i. Cert denied. Court shuts the door to challenging the constitutionality of Vietnam ii. Does not answer whether the Vietnam war was illegal b/c not in accordance w/ Art I, sect 8, clause 11 (giving Congress power to declare war) d. Free Speech during Vietnam era i. Prior, Court was pushed on free speech law by the civil rights movement (i.e. public forum doctrine, etc) ii. Court more tolerant of dissent. Maybe thought that repression would have led to more chaos and anarchy iii. Parker v. Levy 1974 1. Levy, physician in the military made statements against the war which were deemed “unbecoming an officer and a gentleman” 2. No 1st A problem – acceptable for military to have stricter restrictions because of necessity of discipline iv. Bond v. Floyd 1966 1. “[F]or while the State has an interest in requiring its legislators to swear to a belief in constitutional processes of government, surely the oath gives it no interest in limiting its legislators‟ capacity to discuss their views of local or national policy.”



2. The “manifest function of the 1st A” is to allow legislators to express their views on policy v. US v. O‟Brien 1968 1. Draft card burning case –not expressive conduct just conduct 2. There is a need for a draft and for men to keep their draft card 3. Court says the law was unrelated to the suppression of speech and only had an incidental restriction on it 4. Nevertheless, there was legislative history that the law was to target speech 5. Douglas: Asks if draft is permissible absent declaration of war vi. Tinker v. Des Moines Indpt Community School District 1969 1. Neither students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate 2. Fear of disruption is not enough to overcome a right. There was no evidence that the work of the schools or any class were disrupted 3. Targeting viewpoint b/c school allowed students to wear other symbols vii. Cohen v. CA 1971 1. “Fuck” is not obscene; it is not a fighting word 2. No sound basis that this would cause a huge uproar 3. “One man‟s vulgarity is another‟s lyric” Watergate and the Presidency a. Nixon argued that the tapes were like presidential papers and he had a right to keep them private b. Nixon ordered AG Richardson to fire special prosecutor Archibald Cox. He refused. Nixon fired him anyway. Richardson resigned i. This led to a public outrage c. US. v. Nixon 1974 i. Decided July 24, 1974 and 15 days later Nixon resigned ii. Executive privilege is outweighed by the fact that this was a criminal matter and these tapes were a necessity iii. The defiance of the court by Nixon weighed heavily in Court‟s decision iv. What if it was a subpoena by Congress instead of criminal matter? Maybe different outcome/ political question v. Did the Court short-circuit the impeachment process? d. Articles of Impeachment i. Art. 1 – obstruction of justice ii. Art II – abuse of power iii. Art III – non-compliance w/ House subpoena e. Gerald Ford‟s Pardon of Nixon: i. Arguments for: 1. Nixon and country had suffered enough 2. Pardoned both Nixon and the draft dodgers 3. Time to move on 4. Not necessary to see President in handcuffs ii. Arguments against:


1. Everyone else had to pay a price for Watergate iii. Pardon tarnished Ford‟s career. He lost credibility. May have lost the 1976 election because of it f. Watergate‟s effect on the legal profession: i. Legal profession classes in law schools were a response to Watergate and all the bad lawyers involved g. Watergate led to an even greater cynicism toward presidency and govt XVI. Rehnquist Court a. A significant theme in the Rehnquist Court has been the revival of a high regard for state autonomy/ federalism i. See US v. Lopez 1995; Printz v. US 1997; Morrison b. Reagan and Bush tried to make the Court more conservative; however, the Court is still divided today. i. Robert Bork 1. Believes that judges should decide based on the Framers‟ intent. Framer‟s intent means they should look to the values the framers were trying to protect when they wrote the Constitution. 2. Believes that rights have to be fairly implicated in the Constitution for them to be considered a. For example, believes “right of privacy” is undefined and thus gives to much latitude to the judges 3. Lower courts are constrained by Supreme Court precedent. System won‟t work any other way 4. Bork Nomination - Process focused on his ideology. Seemed like it all came down to abortion in the end ii. Big Question: To what extent can a President change the ideology of the Court through appointments c. Important cases: i. Federalism  mentioned above ii. Separation of Powers  Morrison v. Olson, Mistretta, Clinton v. Jones, Clinton v. NY iii. Race  Adarand, Grutter iv. Individual Rights  Casey, Lawrence, Smith, Zelman, Bush v. Gore v. Criminal Law  Dickerson, death penalty cases


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