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y Perspective I y Law in an Organized Society: Individual Rights versus the Larger Good Introduction Ideas of civilization as inherently corrupt. o Piggy: Represents the logical thinking and rational of society that is thrown out the window in stressful situations. o Ralph: Natural leader, still torn between good and anarchy. Find that he is inherently good by the end of the book. Simon: Is a character that represents peace and tranquility and positivity, with some references to Jesus Christ. He is very in-tune with the island, and often experiences extraordinary sensations when listening to its sounds. He is very positive about the future. Roger: At first, is a simple "bigun" who's having fun during his stay on the island. Along with Maurice, he attacks a group of small children and destroys their sand castle. Maurice feels guilt for kicking sand into a child's eye, while Roger throws stones at the fleeing children. But the book states that Roger clearly threw the stones to miss, and felt the presence of civilization and society preventing him from harming the children. Later, once he feels that all aspects of conventional society are gone, he is left alone to his animal urges. He kills Piggy with a stone that was no longer aimed to miss, and becomes the executioner and torturer of Jack's tribe. He represents man's pure, animal evil, that is only restrained by the rules of society, and could be interpreted as the entire theme of the book embodied in one person. Jack epitomizes the worst aspects of human nature when not controlled or tempered by society. Like Ralph, Jack is a natural leader. However, unlike Ralph, Jack appeals to more basic desires in the children and relies on his status as leader of the choirboys (presumably ordained by the adults)

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The English Heritage and Magna Charta Magna Charta (1215) Attempt by the barons and kings subjects to make it fair between the king and his subjects in a feudal system. Agreement between king john the 1st and barons. Protection of property. Our Constitution draws directly from aspects of the Magna Carta. For example: Chapter 17 is the basis for creating a specific place for courts to meet. Prevents being called to a crazy inconvenient location. Article III section 2. Chapter 39 is the source for modern procedural and substantive due process. except by the lawful judgment of his peers or by the law of the land Note: Due Process and the Law of the Land Acts after the Magna Carta took it a step further. Act of 1346 provided that every Man may be free to sue for and defend his right in our courts and elsewhere, according to the law Act of 1354 first introduced the idea of due process of law The Beginnings of Constitutionalism in America 12-26

o Colonies that arrived in America were actively seeking to disband from the church of England. Know as protestants, they set up two religiously based colonies: Plymouth and Massachusetts bay.  Calvinist Protestants: Believe that the Reformation of Henry VIII had not gone far enough. People were more the recipients then participants in it. y Puritans: Believed that the Church of England could be reformed, purified, and so were willing to worship in the Anglican Church while in England, in addition to holding their own meetings and services. y Separatists considered the English Church to be beyond redemption and thus had to separate themselves from it. Most important, they both believed that churches, and the larger society should be organized on the basis of a compact between the members. y Colonies had a hard time figuring out the balance between personal liberties and governmental power. Neither believed in religious freedom.they stressed the need for conformation within their community.

Mayflower Compact: y y Separatists: Compact was made to legitimize their accidental landing on the shores of Plymouth Bay, Agreement between the settlers. Considered Americans first constitution. It is a civil contract, was an attempt to control none pilgrims.

John Winthrop: A model of Christian Charity 1629.

City upon a Hill: All eyes are on the colony, Need to keep it strictly within the vision of god, so show a good example. Community should all work together, basically act as a single unite in order to succeed in the face of hard times. Blended theology, social contracts and prophecy in his sermon.

Note: Roger Williams and Religious Liberty.

The unity demanded by Winthrop dissolved quickly in Mass. Tension between personal liberty and governmental power. o Williams was a bright man who questioned the rules regarding the Indians and settlers taking their land, believed said lands should be bought. Also, was mad about the use of the cross on the English flag.  Rejected laws for mandatory church attendance.  Was all for religious tolerance.  Started his own colony in Rhode Island.

The BloudyTenent of Persecution for Cause of Conscience 1644

No uniformity of religion required by God. Wants a separation of Church and State. Can both flourish in the same setting. o Foundation of Civil Power lives within the people. People should be free to set up a separate government outside the confines of the church. Popular sovereignty. Written in response to ministers who banished him from Mass. Bay colony.

Roger Williams to the Town of Providence y In this letter Williams denies that he favors absolute religious liberty, noting his opposition to exempting people from their civic obligations on the basis of religious claims. Same time, reiterates the need to let all people worship as they please. Ship metaphor, have duties in society that are further then religion.

The Laws and Liberties of Massachusetts:

The Laws and Liberties reflect the Puritans' concern that members of the community should live a Christian life true to the principles of the sect. Laws were meant to guide the righteous and punish the wicked, but they were also to be administered fairly. Religious heresy was severely punished as were fornication, adultery, and other behavior that violated the moral teachings of the colonists. Nevertheless, the code mandated that individuals could not be punished or penalized without due process of law.

The Glorious Revolution: y Second Treatise of Civil Government 1690. o The Second Treatise of Government places sovereignty into the hands of the people. Locke's fundamental argument is that people are equal and invested with natural rights in a state of nature in which they live free from outside rule. o People then exchange some of their natural rights to enter into society with other people, and be protected by common laws and a common executive power to enforce the laws. People need executive power to protect their property and defend their liberty o Locke describes a state with a separate judicial, legislative, and executive branch-the legislative branch being the most important of the three, since it determines the laws that govern civil society. o People have the right to dissolve their government, if that government ceases to work solely in their best interest. The government has no sovereignty of its own-it exists to serve the people. o To sum up, Locke's model consists of a civil state, built upon the natural rights common to a people who need and welcome an executive power to protect their property and liberties; the government exists for the people's benefit and can be replaced or overthrown if it ceases to function toward that primary end

Perspective II Law in a Republican Revolution: The People and the Principles of Government Declaration of Independence (1776) Written by Thomas Jefferson. Rips off John Locke political theory in the first part. Life liberty and pursuit of happiness y The logic of the document is clear; If neither the king nor Parliament can rule America, then Americans must be independent and rule themselves. o Basically a long list of grievances, done with tyranny of the king; want the people to rule.

Republican State Constitutionalism: y Lots of different styles of State Constitutions. Some even ended Slavery; Penn, Conn and Rhode Island. Other Northern States still had a need for Slavery and were not ready to part with the ideas of private property. In the South it was never really considered.

Slavery in the New Nation: y Thomas Jefferson on Slavery: Notes on the State of Virginia 1784 o Basically a scientific approach for the need of slavery. Blacks were not considered the same race. He approaches it from a scientific view of how they are better suited for work in the fields and without the whites strict help, they would be worse off. Slavery is Justified.  Goes through the differences in physical appearance, along with mental capacity, to that of the white race.  If freed would have to kick them out of the country.

Virginia Statute for Religious Freedom: Jefferson y Civil rights should have no dependence on our religious opinions, one of the most important steps in est. religious freedom. o Should not bar and individual from office because he does not denounce another religion. o II. All men should be free to practice and choose their religion without the burden of fines and impositions. o III. It is a natural right that cannot be infringed on by any legislative act. No other act can overrule this natural law.

Republican National Constitutionalism: First revolution of Government occurred at the state level. But out of this came a need for a National Government.

Articles of the Confederation: Start of the National Government y y y y y y y y Congress could successfully wage war, conduct diplomacy, and carried on essential governmental functions. Cleary a federation rather than a nation. Many provisions prevented full nationhood. expressly delegated clause of article II gave the States all the power. Each state given a single vote.frustrated the larger states, that provided the most money and men to the national army. Article II each state will retain its sovereignty. Articles could not be amended without the unanimous consent of the state leg. Article III. Binding in friendship for protection. Article V. Meeting of Congress once a year. Article VIII. All expenses for war shall be taken out of the national treasury.

Constitution: ???? Antifederalist Critiques of the Constitution: Elbridge Gerrys Report (1787) At philly convention, moved for a strong national government. y y y y y Thought that the Constitution subordinated the States No adequate representation for the people. Some of the powers of legislature are too ambiguous, and other indefinite and dangerous. Needs a bill of rights Executive and Legislative branches are too blended. Thinks it has great merits just needs to be amended. But should people adopt a government under the conviction that it wants amendment????

Federalist Thinkers: John Jay and John Marshall. Marshall wants to establish courts as ultimate guardians of the rule of law. He elevated Hamilton s federalist number 78 to the status of constitutional dogma. Used Marbury v. Madison est. Judicial review; the power of the courts to hold a statue or an action of the executive branch unconstitutional and accordingly to refuse to give it effect. Jefferson interpreted the constitution strictly, Hamilton viewed it loosely. James Madison: Federalist Number 10: In the end realized the need for a bill of rights and drafted them and sent them to be ratified after he was elected to congress.

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Interest group pluralism! Heart of Modern Liberal thought. Large republic over small Pure democracy favors the majority, should be avoided.

He then argues that the only problem comes from majority factions because the principle of popular sovereignty should prevent minority factions from gaining power. Madison offers two ways to check majority factions: either prevent the "existence of the same passion or interest in a majority at the same time," or render a majority faction unable to act. Madison concludes that a small democracy cannot avoid the dangers of majority faction because small size means that undesirable passions can very easily spread to a majority of the people, which can then enact its will through the democratic government without difficulty. Madison states The latent causes of faction are thus sown in the nature of man so the cure is to control factions effects. He makes an argument on how this is not possible in a pure democracy but possible in a republic. With pure democracy he means a system in which every citizen votes directly for laws, and with republic he intends a society in which citizens vote for an elite of representatives who then vote for laws. He indicates that the voice of the people pronounced by a body of representatives is more conformable to the interest of the community, since again, common peoples decisions are affected by their self-interest. He then makes an argument in favor of a large republic against a small republic for the choice of fit characters to represent the publics voice. In a large republic where the number of voters and candidates is greater, the probability to elect competent representatives is broader. The voters have a wider option. In a small republic it would also be easier for the candidates to fool the voters, while in a large one, harder. The last argument Madison makes in favor of a large republic is, in a small republic there will be a lower variety of interests and parties, so more frequently a majority will be found. The number of participants of that majority, will be lower, and considering they live in a more limited territory, it would be easier for them to agree and work together for the accomplishment of their ideas. While in a large republic the variety of interests will be greater so to make it harder to find a majority. Even if there is a majority it would be harder for them to work together because of the large number of people and the fact they are spread out in a wider territory. A republic, Madison writes, is different from a democracy because its government is placed in the hands of delegates, and as a result of this, it can be extended over a larger area. The idea is that in a large republic there will be more "fit characters" to choose from for each delegate. Also, the fact that each representative is chosen from a larger constituency should make the "vicious arts", a reference to rhetoric, of electioneering less effective. For instance, in a large republic a corrupt delegate would need to bribe many more people in order to win an election than in a small republic. Second, in a republic the delegates both filter and refine the many demands of the people so as to prevent the type of frivolous claims that impede purely democratic governments. Though Madison argued for a large and diverse republic, the writers of the Papers recognized the need for a balance. They wanted a republic diverse enough to prevent faction but with enough commonality to maintain cohesion among the states. In Federalist No. 2, John Jay counted as a blessing that America possessed "one united peoplea people descended from the same ancestors, speaking the same language, professing the same religion." Madison himself addresses a limitation of his conclusion that large constituencies will provide better representatives. He notes that if constituencies are too large, the representatives will be "too little acquainted with all

their local circumstances and lesser interests." He says that this problem is partly solved by federalism. No matter how large the constituencies of federal representatives, local matters will be looked after by state and local officials with naturally smaller constituencies
The New Republic: Bill of Rights: Expressed in negative liberties, Article 7 is the only non negative one. Federalist Number 78: Alexander Hamilton:

In particular, it addresses concerns by the Anti-Federalists over the scope and power of the federal judiciary, which would have comprised unelected, politically insulated judges that would be appointed for life. Federalist No. 78 is titled, "The Judiciary Department." Idea of Judicial review as a blessing not a vice. Most powerful.

Hamilton says that the Judiciary branch of the proposed government would be the weakest of the three. Hamilton believed that because the judiciary had neither "FORCE nor WILL" to enforce its judgments, there was little concern that the judiciary would be able to overpower the political branches. The political branches have the institutional capacity to make and enforce the law: Congress controls the money flow and the President controls the military. Courts, on the other hand, do not have the same clout from a constitutional design standpoint. The judiciary depends on the political branches to uphold its judgments. Legal academics often argue over Hamilton's description of the judiciary as the "least dangerous" branch. Hamilton also explains how federal judges should retain life terms as long as those judges exhibit good behavior. In actuality it is the most powerful. Marbury v. Madison: Marshall Opinion: Uses the language of Federalist 78 written by Hamilton. y This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force Secretary of State James Madison to deliver the documents, but the court, with John Marshall as Chief Justice, denied Marbury's petition, holding that the part of the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional. Marbury v. Madison was the first time the Supreme Court declared something "unconstitutional", and established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the "checks and balances" of the American form of government. The idea that courts could declare statutes void was defeated in England with the Glorious Revolution of 1688, when King James II was removed and the elected Parliament declared itself supreme

y y

The constitutional issue on which Marbury v. Madison was decided was whether Congress could expand the original jurisdiction of the Supreme Court. Jefferson opposed this idea of judicial review.

Calder v. Bull: Natural: The courts ruled that the courts could not justly take property from one person and give it to another. Article I section 10 of the constitution up held to prevent ex post facto law. Applies solely to criminal law.Higher law articulated by Justice Samuel Chase. Leg. Does not have the authority to do as it pleases, there is an inherent social compact the overrides bad law. Examples of people being tried for ex post facto law. It is beyond reason that people would have intrusted the legislature with such power, and because of this, it cannot be presumed that they have. Substantive Due Process replaced this concept. Iredell (legal positivism): Not within the means of the court to shut down legislature on the idea of a higher power. They make laws to benefit the people and the courts should merely enforce these laws. Martin Luther King Jr. Letter from jail Higher Law. Any law that degrades human personality is unjust. Segregation is unjust. Respect the law, just knowingly and openly, lovingly defy the laws that are unjust. Slavery the Civil War and reconstruction: States were reluctant to accept slaves as freedmen, and the courts where there too. 215 pg. Perpetual union: John Quincy Adams and Daniel Webster Secession: Andrew Jackson threatened to march on South Carolina. Thomas RR Cobb, An Inquiry into the Law of Negro Slavery (1858) Stating that the law of nature actual serves the negros better in slavery. Goes into both a pro law stance on slavery and a scientific exploration of the benefits of slavery. White mans duty to cultivate and improve the negro race. Racialist defense and Paternalistic defense.

1. Maternal line is slaves. 2. Statutes have done much to relieve the slave from this absolute dominion.
State vs. Mann Ruffin: How much authority does a slave holder have over its slave? Mann shot Lydia jones, who was lent to him from Elizabeth Jones. Lydia was shot trying to run from punishment, the court held that A owner had complete control over his Slave. The ability to punish as fit, without going to the point of killing the individual, and even then, was deemed within the rights of a slave owner. Ruffin was torn on

the decision, but ultimately said that a slave was nothing more than property, and individuals have control over their right to personal property. Slavery and the Constitution: African Slave trade and interstate trade of slave, Return of Fugitive slaves, slavery in federal territories, admission of slave states into the union, Harriet Breecher Stowe on Southern Judges:

1. Deep respect for Ruffin, but the horror of the system was apparent.
Dred Scott v. Standford: Taney super pro slavery decision. Army Surgeon in Illinois territory, an area that was free under the Missouri compromise, Surgeon died and Dred Scott was considered free because he was living in a nonslave jurisdiction and remained free when he went back to Missouri. Missouri Supreme Court reversed the decision and held that Dred Scott was still a slave. Dred Scott came back onto slavery and tried to sue for his freedom using diversity jurisdiction. Court said that he had no standing since he was not a citizen under the Constitution. US congress had no authority to regulate slaves in territories. Held Missouri compromise to be unconstitutional. Slaves, Free or not, are not considered persons under the constitution. Framers intent argument. Also specifically state that congress does not have the power to make the new land free under the Missouri compromise. No power is given to acquire a territory to be held and governed permanently in that character. Can t just have territories with their own laws., still bound by the general government. Reaction: Curtis Slaves had been citizens in at least five states before 1787, and thus had been citizens of the United States before the Constitution was adopted. Really got the northern ball rolling for anti slavery movements!. House Divided Speech Mad at opponent Douglas trying for conspiracy to open up all the territories to slavery. Citing the Kansas-Nebraska Act of 1854 and the Dred Scott decision as major factors. Lincoln feared that another Dred Scott decision would open up slavery in the north. Territories were able to gain slavery options by popular sovereignty . Supreme Court made Illinois a slave state! Following this speech the Lemmons were freed once they entered NY and it was declared that a slave is free the second it voluntarily enters a free state. Still upheld the rule for runaways. Reconstruction and Its Aftermath:

13th Amendment Abolishes slavery and indentured servitude 14th Amendment section 1: All persons born or naturalized are citizens, direct response to Dred Scott; also due process of law and equal protections of law. Congress has ability to enforce if needed. 15th Amendment: Voting rights Mississippi Black Codes (1865) :No intermarriages, can be sued and sue in courts, Contracts for employment cannot be quite, if they are, all wages are forfeited. Can be legally carried back to serve out an employment contract. People can also get in trouble trying to persuade people to quite or leave jobs before they are done. 1/8 rule means you are legally black. Vagrant Laws: Putting all negroes who are not working in Jail. If refuse to pay vagrant tax, get locked up right away. Response to Mississippi Blacks Code is below. An Act to Protect all Persons in the United States in Their Civil Rights, and Furnish Means of Their Vindication 1866: President Johnson tried to veto it, but became law over his veto. 13th Amendment enforcement provision allowed congress to pass this law. In 1870, after the passing of the 14th and 15th amendments, congress reenacted the 1866 act giving it more constitutional authority. Any violation of civil rights act must go to federal court. Everyone born in use is a citizen. 14th Amendment. 1865: The Freedmen s Bureau; Greatest success was establishing schools for freedmen. Basically a program to get newly freed slaves back on their feet. Created courts to hear different cases. 1st federally funded government relief program. Civil Rights Act of 1875: Act attempted to bring more equality to America, but it had little to known impact on blacks and most of it was declared unconstitutional in the Civil Rights Cases (1883) Race and Segregation in the 19th Century: Law and Society Plessy v. Ferguson (1896) Test case: Issue, Constitutionality of an act of the General Assembly of the State of Louisiana, Passed in 1890, providing for separate railway carriages for the white and colored

races. Claiming right to equal protection is violated. 1st tries 13th amendment, moves on to the 14th amendment.Legal quality, but social inequality. Justice Brown majority: Equal but separate is okay. Separate services are constitutionally okay. Harlan Dissenting: Takes issue to the problem of equality of rights and the lack of personal liberty blacks are able to enjoy. This is a badge of slavery that we are allowing. What was the purpose of the 13th and 14th amendments if not to destroy the idea of slavery. Equality is not separate. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US. Nor shall any state deprive life liberty or property . How is this okay? Makes reference to a Chinaman over a black in the riding situation. Additional notes: Plessy cites Roberts. This case took place before reconstruction and the civil war. Was done in Mass that did not have an equal protections clause like the 14th, and also was overturned in 1855. Race and Gender in the 19th Century: Cherokee Nation v. Georgia (1831) The injunction was denied, on the grounds that the Cherokee people, not being a state, and claiming to be independent of the United States, were a "denominated domestic dependent nation", over which the Supreme Court had no original jurisdiction. Although the Court determined that it did not have original jurisdiction in this case, the Court held open the possibility that it yet might rule in favor of the Cherokee on an appeal from a lower court. Georgia was enacting laws to get more Indian territory. The Cherokee tribe resisted and brought the issue to court, aiming to get an injunction to stop the procurement of their lands. Marshall gave the opinion: Looks to Jurisdiction before merits. Says there is no original Jurisdiction. Uses a framers intent argument for how Indian s are not a foreign state, but rather more like a ward to a guardian. Injunction is denied, but does say there may be a different avenue to seek redress. Asians: People v. Hall (1854):California courts deciding that Asian s could not testify against a white man. The 14th section of the Act of April 16th, 1850, regulating Criminal Proceedings, provides that "No Black, or Mulatto person, or Indian, shall be allowed to give evidence in favor of, or against a white man. The Court went on a goose hunt to connect Asian s to Indian s as was the goal of Columbus s original intent on landing in America. Chinese were actually considered Indians. YickWo v. Hopkins (1886): Laundry case were Chinese were barred from applying for exemption from the wooden building rule when whites were allowed to apply for an exception. Ruled that the discrimination was illegal because it violated the 14th amendment. Imprisonment of the petitioners is

therefore, illegal, and they must be discharged. Can a statute be declared unconstitutional when it is neutral on its face. Looks like a contrast to Jim Crow Laws, but really courts were worried about the ordinances threat to property rights. Legislation was designated to a specific class and threatened property rights as well, had to deem it unconstitutional. More concerned with property rights. Chinese Exclusion Acts: Acts the meant to stem the growing influx of Chinese laborers and miners in the west. Act limited the amount of Chinese that could enter and prevented laborers from leaving and returning. Limited access to bail bonds and required them to carry around identification certificates. In 1902 completely closed the door to chinese. Latinos and Hispanics: Cali ex rel. M.M. Kimberly v. Pablo de la Guerra: Can t decide if Pablo should be able to be a Judge. Under the treaty of Guadalupe Hidalgo. Language of treaty says they are no longer Mexican citizens, but it is upon congress to act and grant them citizenship. Three choices 1) Stay and retain citizenship 2) Move Back to Mexico. 3) Become US Citizen. Court says that the Constitution of California is in conflict with the ninth article of the treaty, which states that if they elect to become citizens of the United States, they shall be admitted to all the rights of citizens. The constitution discriminates. Pablo gets his spot as Judge. Being a citizen does not mean you have the right to vote. Gender: William Blackstone In the Eyes of the Law (1765) Natural order of things; women where owned by their husbands. Had little to no rights outside the marriage. Bring no action without her husband, cannot be found liable for any crime on her own. Goes back to her husband. Man is allowed to chastise his wife like a servant or child. Doctrine of Fem Covert. no legal action for wife. Bleak view on women and their role in society. In the colonies, wives were treated a bit different as a result of the protestant revolution. A man could no longer just leave his wife. Laws were made to force the husband to support their wives and children. Married women were protected from personal abuse, the cruelty, and the improper conduct exercised toward her by her husband. An Act Concerning Feme-sole Traders: Married women whos husbands are away at sea or traveling are giving more control over the household and are able to sue and be sued without naming there husband. They are given greater control over the estate in their husbands absence. Widows of New York and Taxes:

Widows are upset that they are responsible to pay taxes and give to the government, but get no benefit in return that is readily given to males. Rights of Women: The Seneca Falls Declaration of Sentiments (1848) A declaration modeled of the Declaration of Independents fighting for women s rights. Were the original Declaration had the King as the vileness, this declaration looked at men as having all the power and women nothing. Sick of being deprived their rights once they are married women. Written by Elizabeth Cady Stanton and Lucretia Mott. The New York Married Women s Property Acts (1848) Unmarried women enjoyed the same legal position as men, except they could not vote. Married women were equated to slaves. Pressure to help married women against spendthrift husbands, legislatures adopted a system to protect their property. Same year as the declaration shows a move towards women equality in society. Women were allowed to hold onto their private property, and receive property and gifts keeping it separate from her husband as if it was she was a single female. Big step towards equality, no longer just an extension of their husband. Bradwell v. Illinios (1873) Was a United States Supreme Court case that solidified the narrow reading of the Privileges or Immunities Clause of the Fourteenth Amendment, and determined that the right to practice a profession was not among these privileges. The case is also notable for being an early legal challenge to sex discrimination in the United States. 8-1 decision written by Miller. The Privileges or Immunities Clause of the Fourteenth Amendment did not include the right to practice a profession, so it was properly regulable by the states. Major setback for women. Nothing explicit in the constitution, wants courts to read it implicitly. Up to the state to make the call, not a constitutional protected thing. Minor v. Happersett: United States Courts refused to recognize women as the political equals of men. Missouri women claimed at right to vote under the privileges or immunities clause. Missouri had men-only suffrage laws. No explicit right to vote in the constitution. The Supreme Court of Missouri upheld the Missouri voting legislation saying that the limitation of suffrage to male citizens was not an infringement of Minor's rights under the Fourteenth Amendment.The United States Supreme Court affirmed and upheld the lower court's ruling on the basis that the Fourteenth Amendment does not add to the privileges or immunities of a citizen, and that historically "citizen" and "eligible voter" have not been synonymous. Since the United States Constitution did not provide suffrage for women, the Fourteenth Amendment did not confer that right. The court's decision had nothing to do with whether women were considered persons under the

Fourteenth Amendment; the court ruled that they were clearly persons and citizens. It rested solely on the lack of provisions within the Constitution for women's suffrage. Susan B. Anthony: Goes in front of Judge Hunt arguing for women s right to vote according to the 14th amendment. Why should they be taxed without governmental voice! The Lawyer in American Society: Alexis de Tocqueville on Lawyers and Judges (1835): Basically saying that lawyers are in a special spot in society, they are part of the arisotracy that has strong connections to the other classes. Possess a very formulaic mind that loves order. Still move to their emotions in the moment, but have a strong pull towards logical thinking, order and form. They are in the minority. Courts are able to control the democracy, protect the right of the minority. Christopher C. Langdell: The man who invented the still highly used concept of case law study in law school. Had to develop a way to teach all his students knowingly that the best way was to see a case and think for themselves. Legal formulism! Critics say lack policy decisions. Holmes on Langdell: Believes he is a great legal theorist, but believes that lay is not so formal as langdell would propose. The life of law has not been logic; it has been experience. Holmes The common Law (1881) Legal Realism: Wanted to rid laws of moral concepts, grounding it instead on the views of public policy. Law had to acknowledge the primacy of the majority s view of what is desirable as a matter of policy. Holmes The Path of the Law (1897) Defines law as a prediction of what the courts will do. Influenced by Charles Darwin thoughts. Spurleanking Case: Foster s Take: Natural Law .Utilitarian approach to the death of the individuals. Willfully taking the life of another, how do we look at this? Intention of the Murder Statute: To prevent murders, but should it be so black and white? Should context be taking into account? Keen, J:Legal positivist; using a systematic approach, the purpose of the law. Don t want to allow any exceptions to the law. Tatting, J: Legal formalist. Doesn t vote knows he shouldn t make an ends orientated decision. Looks to the strict interpretation of the law. That s why he chooses not to vote. Handy, J: Legal realist: Rely upon public policy to reach a decision that is best for individuals and society.

Holmes: Legal Realist, trying to find meaning in the statute that goes beyond its plain language. Lochner v. New York: Rufus W. Peckham Violation of labor laws in New York stopping a self-employed baker from working 60 hours a week. Court looks at the law from a perspective of its contracts and liberties. Facts: Hired employee to work and he worked for more than 60 hours a week. Principles: Substantive due process 5th and 14th encompasses substantive limits on the authority of the government to abridge certain basic rights. States police power: Have the interest desire and ability to pass laws for the general welfare of its citizens. Liberty to contract: Nowhere in the constitution, but Majority thinks it is implicit in the 14th Amendment. Court read it in. Within the constitution is a particular sentiment towards laissez fair economic theory. Liberty of contract prevails. Holmes Dissent (Legal Realist):Reading this into the 14th tells us more about you as a judge then what the law tells us. Tells us that you, as a judge, want a laissez faire economy.

Legal Positivism: Understanding and interpreting a written rule. Stresses written rules or laws expressly enacted adopted or recognized by a law making authority. Courts role is to give effect to that written rule, regardless of your views on the wisdom of the views. Scallia, Breyer. Natural Law: Stresses principles of morality, religion and justice. Such that a law, including one written by the legislature, that is not fair and not just should not be considered the law and should not be enforced. Gives too much discretion to the judge to make a decision based on his own views of what is right. Legal Realism: Holmes (also a legal positivist) 1920 s and 30 s. Questions the formalist notion that the law could be neutral and objective.Realist believe that all law is subjective. A judge can mold to reach any result that he or she wants. It s how a judge decides his case. Maybe written in neutral terms, but the principle that a judge chooses to decide a case has less to do with the law, then the individual interest or desires of the judge. Tells more about the person applying the principle then about whether someone has breach his duty of care. Troubles those who want uniformity and clarity in the law. Legal Formulism:Langdell, Case book and first class. Law is characterized as a system of rules and principles that courts can logically apply in an objective neutral fashion to reach a result. Removes the person preferences of the judges, neutral principles exist and I can find them and apply them to the facts and reach a result that does not, in any way, so my personal belief.

Perspective VI: Story of transformation; industrialization, Urbanization: people are leaving the fields behind looking to move to the big cities. Also a story of wars; two sides 1) Pro war 2) antiwar. Resulted in increased governmental reach into individuals lives. What is the role of law in changing society? Schenck v. United States:Schenck is a member or the American socialist party, general manager. Distribution of anti-draft leaflets, prosecute under federal law. 1) Espionage act, during world war I 1917. Anyone who makes false statements with intent to interfere with the operation of success of the military, cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military .or shall willfully obstruct the recruiting or enlisted service of the United States. 2) Pamphlet wants resistance of the draft as it violates the 13th amendment. 1) Schenck was a socialist Everyone is equal, tries to level social classes. No class struggle. Government and society has a responsibility to care for all its citizens. Capitalism is the problem to socialism. Not helping the scores of working class people, they are suffering from capitalism. 2) Capitalism is benefiting the already powerful, rich classes while killing the working class. 3) Socialist party is against world war I. Based on imperialism. Capitalist approach to the war. It s the working class sons and daughters that end up fighting the war. 4) Sent out 15,000 pamphlets. 5) 1st amendment defense of freedom of speech. Just merely putting out an idea, not trying to harm anyone. Clear and present danger test: Holmes says that there are some circumstances that allow the exceptions to the 1st amendment right. None of these rights are absolute rights. Have to be balanced against state and federal governments police rights esp. when trying to conduct a war. Abrams v. United States: Abrams and his co-defendants protesting the Russian revolution.Boshevicks revolution, communist throwing over the Kaiser. U.S. was trying to stop the communist from overthrowing the government. 7-2 vote says it does not violate Abrams 1st amendment rights. It is a time of war, something are prohibited from being said. Government is scared of communism. Holmes Dissent opinion with Brandeis: Only the present danger of an immediate evil or intent; Immediate becomes the major test. Market place of ideas: Silly leaflet by an unknown man Intent of distribution of leaflet; was only thrown out the window not given directly to a targeted audience. The best test of truth is the power of the thought to get it accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out . Kurimastu v. United States: Executive order 9066: Gave authority to the military to relocate Japanese-Americans. 125,000 thousand Japanese sent to camps. Barbed wire, armed guards. Korematsu raises the constitution shield. 14th Amendment equal protection clause. y Rigid scrutiny test for racial discrimination.

That law is presumptionally unconstitutional. Government needs to come forward with compelling evidence and interest. y Narrowly tailored to achieve a compelling interest. Gender Intermediate Scrutiny: Upheld only if it is substantial related to an important interest. Others: Rational Basis Reasons are related to a reasonable government interest. Gender and others are presumptionally constitutional. 1) Strict Scrutiny- compelling/narrowly tailored 2) Intermediate Scrutiny- legitimate/substantially related (gender) 3) Rational Basis Rational/reasonable Individual trials were not realistic, dire need to protect the coast. 1) Compelling interest; in protecting the coast, had evidence, rumored proof of disloyalty. 2) Narrowly tailored military order that was given. y Religious limitations: Government is not outlawing something to discriminate against a particular religious group. In reality, they are outlawing it for different reasons that are not particular to the religious group. Examples of Indians smoking peyote, or Mormons have a polygamist nature; government does not ban these acts because they want to limit the religious group, instead it is for the safety and benefit of society as a whole. Weeks v. United States (1914) Violated federal law prohibiting lottery ticket sales as a form of gambling. Morality crimes are being replaced with criminal acts. Al Capone brings in a new era of organized crime. How do we police the police? Selling lottery tickets through the mail, it s a federal crime so a federal marshal was looking into Weeks and came to his house without a warrant and took documents from his house and these documents were used to convict Weeks. He is convicted Appeals on the basis of the 4th Amendment uses it as a shield. Courts are there to protect the rights of the individual from the authority of the majority. Olmstead v. United States (1928) Public v. Private conversations: What can be considered evidence? A conversation in the public domain? A conversation without the confines of a private setting is being voluntarily given, as public information. Oliver Wendell Holmes, JR. Law and the Court 1913 - Legal realist movement grandfather of this movement. - Was all about social needs and conflicts that ultimately shaped the course of law. - Opposed to Langdell who turned the study of law into a strict scientific movement. - Believes that judges base decisions more on their own beliefs and experiences some way or another. Recognition that there are no legal absolutes. Understanding the law requires us to understand what a particular judge would view or apply the law; less objective. - Sees law as a means to govern human behavior, prediction on trends and other behaviors . Not a hard science, but a suto-science. - As lawyers, you should be able to predict a judges behavior and to advise clients accordingly. - Decisions are a reflection of who you are and what you want the law to be.

Brief for the Defendant in Error from Muller v. Oregon, Brandeis Brief Very social science approach to legal arguments. Anticipates what the judge will do and be, and caters his argument to the specific judge. Lochner was already determined; court could have just looked to the very similar decision there to determine Muller. But instead he manages to convince the court that this was a constitutional protection of women s rights, back by scientific sociological evidence. - Brandeis recognizes that the court here is going to be sexist and paternalistic, he caters his argument to allow the judges to view the social science research and still allow the judges to feel that they are carrying out the law in a sufficient manner consistent with the law. JEROME FRANK: Precedents are an illusion, you can manipulate the law to say anything you want it to say; Legal realism. - Impossible to reach into a judges mind and show exactly why he made his decision. - Judges are not aware of how they decide cases; they just think they are deciding cases on how they apply the rule or the exception. - Judges are their own persons, no way to not be bias in some way or another. - Legal Realism who is deciding the case matters.Helped us understand how judges decide cases. - What they didn t do: Did not give us any methods by which we should decide the cases. Formalists gave us the tools to decide cases. New Deal and the Rise of Legal Liberalism: FDR and the New Deal: Economic disaster has led the way for Legal Liberalism Drastic difference from old style liberals who wanted individual liberties. Duty upon the government to take care of its people; very active government. 1900 Free market enterprises, laizee fair economic, capitalist society. Great depression brings about a need to stimulate the government. Regulation of business and corporations. Rise of the welfare state, a safety net for the poor. FDR s Biggest challenge Is the supreme court, court packing plan . - 72 years old and didn t want to accept the retirement plan, a new judge would be put on the court. - Adding the Judge in addition to other 72 year old judge. - President appoints the Judge. West Coast Hotel v. Parrish (1937) Facts: Chambermaid is being paid under minimum wage and sues the hotel. Hotel says the law is interfering with my laws as an individual to contract under the due process. Formalist would say that it interferes. Regulation by the state for the public good, public safety and liberty of contract. Lochner says liberty of contract trumps police state powers. Here, now the legislature is able to adopt principles to protect the public safety. Special interest in protecting women, minimum wage law. Formalist could explain this decision, realist could say that this court decision was a direct response to the countries and FDR need for them to change. RIGHTS, LIBERTY, AND SCIENCE IN MODERN AMERICA

Coming out of WWII the US was in a prosperous economic time, Jobs had opened up and the market was booming. The cold war had begun against communism and had even resulted in extreme escalations between the countries to the point of war. Gender and Race were slowly gaining more ground in the push for equality. War time efforts opened up many avenues for blacks and women in the service industry, and these carried over beyond the war into the booming economy. The average American family increased at this time as well. With the growing number of children in the US, education became a priority. Rise of the NAACP, thurgood Marshall and the role of the courts in civil rights. Thurgood Marshall: Realized that the courts were the key to civil rights. Dismantle segregation in the South by chipping away using litigation. Very methodical approach to dismantling segregation, took only cases he knew he could win. Sweatt v. Painter (1950) using Plessy v. Ferguson separate but equal, but there is no other law school to go to. The law school in Texas was not separate and equal. Working within the accepted frame work to make social changes; using litigation to achieve results that are not obtainable through the democratic process. He used the Constitution as a sword, rather than a shield, to challenge the law. Brown v. Board of Education of Topeka, Kansas (1954) Attempt by the NAACP to dislodge the separate but equal doctrine Plessy v. Ferguson (1896).Class action brought by black elementary-school children. - There was a companion case, Bolling v. Sharpe, In Washington DC. - Brought under the 5th, not the 14th amendment. Court looked to the 14th Amendment Equal protection clause to establish combined school systems. Plaintiffs argue that segregated schools are not equal and cannot be made equal and hence they are deprived the equal protection of the laws. - Looked to the history of the 14th amendment - Plaintiffs contend that the 14th was meant to remove all distinctions among all persons born or naturalized in the US - Defendants see the amendments as having a very limited effect. What others in congress and the state legislatures had in mind cannot be determined with any degree of certainty. - At the time of 14th, the south had not established free common schools. No real history on the 14th pertaining to education. - Plessy v. Ferguson was transportation, not education. Tangible factors may be equal, but untangible things need to be accounted for The court cannot base its decision off purely tangible factors. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the education and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system . - Separate school systems are inherently unequal De facto segregation exists today. De Juri segregation by law no longer exists. Warren got a unanimous decision on the case 9-0. - Warren was the prosecuting attorney for Cali Japanese round-up Can be seen as giving rise to a right conscience culture frustrates the democratic process. SOUTHERN DECLARATION ON INTEGRATION (1956)

Signed by 101 members of congress;theyfeel that the Supreme Court is overstepping its bounds on inherently state issues of how education should be carried out. Arguments about how the decision has brought about more race tension than ever before. Griswald v. Connecticut: Using the constitution as a shield. The right of privacy is violated 1) Invasion of the privacy for a married couple to use and to learn about birth control methods. 2) Specifically, to allow someone to give out information pertaining to birth control and contraceptives. rd 3 Amendment don t have to bare soldiers=right to privacy of the home. 9th Amendment Other rights retained by the people, since not in the constitution, implicit in the 9th amendment. 4th Amendment No unreasonable searches or seizures. Preventing the government for breaking down our doors and going through our draws Zone of privacy is created by the overlapping of the different shadows of the amendments within the constitution. 14thAmendment - Liberty portion of the amendment. Dred Scott, substantive right to property. Also in Lochner, government cannot prevent you from your right to contract, it would deprive them of their liberty in the 14th amendment. Now, does Liberty protect certain fundamental rights. If we wanted to make the debate, go back to Magna Carta (framers intent) which the framers used as an example for our constitution. They wanted a right to privacy and property rights. Privacy argument that stems from different portions of the constitution.Prenumbras of the constitution, 1st amendment, 9th amendment, and 14th. Griswold is arrested under Connecticut law Roe v. Wade: Abortions are illegal unless they are necessary to protect the women s life. Is the right to privacy enough to allow to give a women a right to an abortion? 14th amendment is founded in the personal liberty and restrictions upon state actions. Broad enough to include a women s right to choose. - District court found it in the 9th amendment, but either way, there is a right to one s body. Court is unwilling to specifically rule on when a fetus becomes a person . Right to individual property. Court says that this right to privacy is not absolute though; The right to abortion is there, but the state still has an interest in regulated; protection of health, medical standards, and prenatal life, become dominant. Does the right to privacy give a right to abortion? Court says yes. Ginsburg Dissent in Carhart: Sets forth nicely where the law is today. State cannot place an undue interference or burden on the woman s right to choose before viability. Examples parental notification law. Second, After viability State has the power to restrict abortions to after fetal viability only if the law has an exception to allow if the woman s life is in danger. State can require that the abortion be safe and be proper doctors and medical staff.

State has a legitimate interest in protecting the life of the mother. For Ginsburg, her position in Carhart is much more about guaranty women s equality then medical autonomy. She wants women s equality and freedom of her body. Should be struck down when they interfere with a women s right to participate in the political economy. Can t limit or restrict abortions because of a religious view of moral code. Bowers held that states could criminilize sexual conduct in the bedroom Lawrence v. Texas: Court said no to Brower Fundamental Due process issue; certain fundamental rights associated with privacy. Sexual Orientation: ROMER v. EVANS Colorado constitution making it illegal to give homosexuals special rights violates the 14th amendment. Raises an equal protection question. - States and local governments are passing laws that are banning discrimination against gays and lesbians. - In Colorado, Amendment 2 passed: Can t create laws that give special rights to gays and lesbians. - Gays should be given any special privileges from the government. - States and local governments could no longer pass laws banning discrimination against gays and lesbians. - The case was argued on October 10, 1995. On May 20, 1996, the court ruled 6-3 that Colorado's Amendment 2 was unconstitutional, though on different reasoning than the Colorado courts. Justice Anthony Kennedy wrote the majority opinion, and was joined by John Paul Stevens, Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. - Rejecting the state's argument that Amendment 2 merely blocked gay people from receiving "special rights", Kennedy wrote: - To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. - Kennedy argued that protection offered by antidiscrimination laws was not a "special right" because they protected fundamental rights already enjoyed by all other citizens. Though antidiscrimination laws "enumerated" certain groups that they protected, this merely served to put others on notice (i.e., the enumeration was merely declaratory). - Instead of applying "strict scrutiny" to Amendment 2 (as Colorado Supreme Court had required) Kennedy wrote that it did not even meet the much lower requirement of having a rational relationship to a legitimate government purpose: - Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. - And: - [Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. - Kennedy did not go into depth in rejecting the claims put forward in support of the law (protecting the rights of landlords to evict gay tenants if they found homosexuality morally offensive, etc.) because he held that the law was so unique as to "confound this normal process of judicial review" and "defies...conventional inquiry." This conclusion was supported by his assertion that "It is not within our constitutional tradition to enact laws of this sort." Finding that

"laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected," the Court implied that the passage of Amendment 2 was born of a "bare...desire to harm a politically unpopular group". Majority says the reason this passed is b/c the people of Colorado passed the law because they do not like gays and lesbians.

Dissent is saying that Gays and lesbians are not a suspect class: Not a suspect class, rational review. Scalia says not a suspect class, no strict scrutiny He applies a rational basis argument and says that the government has a legitimate reason the protect the morals of its people. FINAL EXAM REVIEW: DECEMBER 13, 9:00AM 2 hour exam: 20 multiple choice questions (2 min per question), rest for essay portion. Scantron for multiple choice (material since the midterm): Blue book for essays. Maybe even short answer (paragraph at most). Leaning towards taking a position on a case discussed. Maybe even argue for both sides of the case. Concurrence , or dissent; or concurrence and dissent. Similar fact pattern to cases we have studied: Study Shenck: 90% of laws do not invoke constitutional questions. 14th amendment: privileges and immunities (dead letter since slaughter house cases) due process of law, equal protection of the law. - Due Process: Government cannot take away life liberty property without adequate process. Notice and opportunity to be heard, procedural due process. - Supreme Court has shown that the due proces clause protects certain substantive rights. Fundemental rights that the government cannot take away or infringe upon with some compiling interest (similar to strict scrutiny)(Lochner). Not necessarily absolute rights. - What rights are fundamental? (Griswold, Roe v. Wade) - Depending on constitutional interpretation, rights explicitly stated, intended by framers, or are with our evolving sense of our rights. Right to Privacy (liberty clause in particular) can t take them away without a compiling interest. Can take right to raise children if you have been convicted of a crime and are sitting in jail.Needs a compiling interest to allow it. Equal Protection Clause: Laws raise equal protection concerns anytime they treat similarly situated person different. When is the government allowed to discriminate against a group of people? Strict scrutiny compiling interests, means narrowly tailored (presumptively unconstitutional, not a guaranty) Rational basis legitimate interest, presumed constitutional Intermidiate scrutiny hard look at it. Language applies just to the states and local governments, but courts have made them applicable to congress through the 5th amendment (also includes an equal protection clause). Makes 14th amendment applicable to 5th.

Legal realism: Not a license to do anything as a judge. It s a school of thought that recognizes that law is not objectively natural; law is inherently subjective and is a reflection of the political, economic and moral views of the judges deciding the case.