Is the US a more democratic nation as a result of the democratization of the legal system?

1. Is the US a more democratic nation as a result of the democratization of the legal system?

2. Originalism/restraint: whose original meaning? • Madison on “original intent”? • Brown? • Activism/living constitution • Judge Dorn? • Penumbra?

3. Jim Crow Criminal System • Sam Hose • Convict lease system • “the live nigger is worth more than the dead one” • “If a nigger kills a white man, that’s murder. If a white man kills a nigger, that’s justifiable homicide. If a nigger kills a nigger, that’s one less nigger.” • “Whose nigger are you?”

4. SC Gov Cole Blease on commutating death sentence (1913) • “This defendant was convicted of killing another negro. I am naturally against electrocuting or hanging one negro for killing another, because, if a man had two fine mules running loose in a lot and one went mad and kicked and killed the other he certainly would not take his gun and shoot the other mule, but would take that mule and work it and try to get another mule; therefore, I believe that when one negro kills another, that he should be put in the Penitentiary and made to work for the State.”

5. Death Penalty • Yes: Nigeria (last 2001; sodomy), China (1,010 in 2006), Iran (177 in 2006), US (53), Russia (moratorium since 1996) • No: EU, Britain (1998; last 1964), Mexico (2005; last 1937) • Prison Population (2007) • Nigeria: 39, 438; 30/ 100,000 (Juveniles: 2.0%) • China: 1.5 million; 119/ 100,000 (1.4%) • Britain: 87,000; 148/ 100,000 (3%) • Mexico: 216, 290; 198/ 100,000 (N/A) • Iran: 150, 321; 212/ 100,000 (1.5%) • Russia: 889, 598; 628/ 100,000 (2.5%) • US: 2.2 mil; 750/ 100,000 (0.4%) • North Korea: unknown (everyone); estimated 200,000 political prisoners 900+/ 100,000

6. "In 82% of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks."- United States General Accounting Office, Death Penalty Sentencing, February 1990 • Nationally, over 80% of murder victims in cases resulting in an execution were White, even though only 50% of murder victims generally are White • 96% of states conducting reviews of race and the death penalty have discovered a pattern of either race-of-victim or race-of-defendant discrimination, or both • 98% of the Chief district attorneys in death penalty states are White • Jury selection procedures: 1986 Batson v. Kentucky • A Philadelphia study found that Blacks received the death penalty at a 38% higher rate than others when comparing similar defendants and similar crimes • A North Carolina study found that the odds of receiving a death sentence rose by 3.5 times among those defendants whose victims were White • Since 1976, executions: White Defendant / Black Victim (15)Black Defendant / White Victim (223)

7. Types of legal systems • Code Law: legislatures make laws and courts merely interpret (most common form) • Mexico, China, Russia, most of Europe • Civil/Common Law: based on decisions of courts (stare decisis; precedent); legislatures make new/amend laws, but don’t change the codified body of law • Britain, US, Commonwealth and former English colonies

8. Religious Law: using a religious text as basis of law • Iran: Shari’a—covers total social/personal experience (marriage, personal hygiene, business (usury), etc.) • All judges religious experts (mujtahid ); inquisitorial system: judge also jury, prosecutor, arbiter; Supreme Leader head of judiciary, appoints head Supreme Court + chief prosecutor • Article 170 of Constitution: judges "duty bound to refrain from executing governmental decisions that are contrary to Islamic laws." • Revolutionary Courts; Council of Guardians (Constitutional issues) • Common law element: Islamic jurists arbitrate shari’a law [compare Jewish Talmud]; fatwas: interpretation of the law (nonbinding) • Sunnis + Shi’ites believe ongoing interpretation; differ over which authorities/traditions (hadith) to include • Shi’ites: (Grand) Ayatollahs—expert teachers; issues editcts/fatwas • Religious and Civil: mix of religious law and civil • Nigeria (North vs. South)

9. US Supreme Court Cases

10. Civil Liberties • Civil liberties: protections against government • Civil Rights: positive acts of government to make constitutional guarantees a reality for all people

11. 1st Amendment: Religion • Free exercise clause: freedom of religion (w/o violating laws, public morals, harm health, welfare, safety) • Establishment clause: freedom from religion (wall between church and state; lots of ways through and around wall: military chaplains, tax-free status, national anthem + currency, etc.)

12. Free Exercise • West Virginia Board of Education v. Barnette (1943): no compulsory flag-salute (Jehovah’s Witnesses) • Board of Education of the Westside Community Schools v. Mergens (1990): Christian club had to be allowed on campus if other clubs were allowed • Gonzales v. O Centro (2006): Brazilian church can take drugs • Pledge of Allegiance case kicked for custody issues not Constitutional ones

13. Establishment • Engel v. Vitale (1962): no mandatory, nonsectarian prayer in school • Lee v. Wiesman (1992): no prayer at graduation • Santa Fe Independent School District v. Doe (2000): no prayer at high school football games • Epperson v. Arkansas (1968): no refusal to teach evolution • Edwards v. Aguillard (1987): no teaching “creation science”

14. Lemon Test • Lemon v. Kurtzman (1971): 1) purpose of gov’t aid to religion must be clearly secular (buses to parochial school for student safety); 2) primary effect must neither advance nor inhibit religion; 3) must avoid “excessive entanglement of government with religion” • Office of Faith Based Initiatives?

15. 1st Amendment: Speech and Press • US v. O’Brien (1968): burning draft card banned • Earl Warren: "[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest." • Prior restraint: can’t curb ideas before they are expressed (w/o huge burden)

16. Schenck v. US (1919): “clear and present danger” (of handing out anti-WWI pamphlets to draftees) • Gitlow v. New York (1923): incorporation; “dangerous tendency” class of speech can be banned • Tinker v. Des Moines SD (1969): political speech on campus protected if not disruptive of educational purpose of school (key to all your rights on campus: schools are different) • New York Times v. US (1971): merely embarrassing info can’t be blocked by gov’t

17. Buckley v. Valeo (1975): money is political speech if “issue” not “candidate”—magic words • Texas v. Johnson (1989): flag burning is fine • Obscenity and Press • Roth v. US (1957) and Miller v. California (1973): obscene if 1) applying contemporary local standards would find it “prurient”; 2) work depicts acts that are illegal; 3) work lacks “serious literary, artistic, political, or scientific value” • Hazelwood SD v. Kuhlmeier (1988): censorship of school papers fine

18. Shield Laws • Press privilege? • Branzburg v. Hayes (1972): reporters must answer Qs of law enforcement • Judith Miller, Scooter Libby, Karl Rove, Valerie Plame

19. Association • Boy Scouts of America v. Dale (2000): ok to discriminate against gays • Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) (2006): colleges can’t ban military recruiters (“don’t ask, don’t tell” is discriminatory) w/o losing all federal funds

20. 2nd Amendment • U.S. v. Miller (1939): weapons can be regulated if don’t serve “well regulated militia” • 2nd has not been incorporated (States do what they want (for now)) • U.S. v. Emerson (5th Circuit Court of Appeals: 2001): asserts individual right to bear arms; no SC ruling yet • D.C. handgun ban District of Columbia v. Heller (Oral arguments: March 18th, 2008) • But is D.C. a State?

21. Due Process: 5th and 14th • Procedural: how the policies are enforced gov’t must follow the rules • Substantive: what the policies are the rules must be fair

22. Security of Home and Person • 4th Amendment • Probable Cause for warrant to search (unless “exigent circumstances” or “plain view”) • Exclusionary Rule: Weeks v. US (1914) • Incorporated: Mapp v. Ohio (1961): “fruit of the poisoned tree” • Nix v. Williams (1984): “inevitable discovery”

23. But not at school • New Jersey v. TLO (1985): reasonable suspicion < probable cause • Vernonia School District v. Acton (1995) + Bd of Ed, Pottawatomie County v. Earls (2002): random drug testing • But during war • Ex Parte Milligan (1866): habeas corpus • Hamdi v. Rumsfeld (2004): “enemy combatants” • Unless you’re not white • Korematsu v. United States (1944) • Wiretapping • Katz v. US (1967): overturns Olmstead 4th protects “persons, not just places”

24. Privacy? • Sheppard v. Maxwell (1966): press freedom vs. rights of accused • Griswold v. Connecticut (1965): right to contraceptives (14th) • Roe v. Wade (1973) • Planned Parenthood of Southeastern Pennsylvania v. Casey (1992): “reasonable limits” w/o imposing “undue burden” • Should a married woman have to inform her husband? No (but minors must notify parents) • Gonzales v. Carhart (2007): Partial-birth abortion and Anthony Kennedy: "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." That regret might later cause "severe depression and loss of esteem."

25. Keep your mouth shut • Miranda v. Arizona (1966): 1) right to remain silent (5th), 2) anything you say can and will be used against you in court, 3) you have the right to an attorney (Powell v. Alabama (1932): Scottsboro Boys), 4) if you can’t afford an attorney one will be appointed to you (Gideon v. Wainwright (1963), [5) you can stop questioning at any time] • Even if you’re a minor: In re Gault (1966)

26. Ok, so you were busted… • Furman v. Georgia (1972): death penalty cruel in its application • Gregg v. Georgia (1976): two phases required: trial then punishment

27. Civil Rights • Primarily 14th • Reasonable classification: some discrimination necessary • Rational basis: does the classification bear a reasonable relationship to the achievement of some proper governmental purpose? • Strict scrutiny: “compelling governmental interest” justifies distinctions drawn

28. Plessy, Brown • Regents of the UC v. Bakke (1978): quotas out, but race may be one of a number of factors • Adarand Constructors v. Pena (1995): affirmative action not benign, so must be “narrowly tailored” to overcome specific, clearly provable discrimination • Grutter v. Bollinger and Gratz v. Bollinger (2003): AA (points) ok for law school, not for undergrad; diversity is a legitimate goal, but must be narrowly tailored • US Army sided w/AA—national security issue

29. Baker v. Carr (1962): “one man, one vote” in redistricting • Texas 2003 redistricting case: (clearly) partisan, racial impact League of United Latin American Citizens v. Perry : largely upheld, not unconstitutionally partisan, mid-decade redistrict fine, only 1 district had to be redrawn