Legal Analysis & Racial Segregation

1. Legal Analysis&Racial Segregation Class Slides from 1/27/09 POL 327, Con Law: Equality & Free Expression

2. Patterns of Legal Reasoning In briefing cases you will find that there is no set pattern that appears in the reasoning section of every court opinion. Your brief should reflect the content of the opinion, rather than a standardized order.

3. Approaches to Constitutional Interpretation • There are, however, several common approaches to constitutional interpretation that you should be able to recognize when they appear. • What are these approaches? • What do they have in common? • How do they differ?

4. Approaches to Constitutional Interpretation • Textual Approaches • Literal reading of the words • Contextual analysis • Historical Analysis • Intent of those who drafted the document • Common man’s expectation of the effect of the document • Justice Scalia’s “Originalism” • Living/evolving constitution approach • Application of underlying value to unanticipated/changing circumstances.

5. A literal reading of the words • Most scholars and legal practitioners believe that, in most situations, judges should stick to a literal interpretation of the words used in the document. • Words are given their most commonly accepted dictionary definitions. EXAMPLE: Second Amendment to the U.S. Constitution states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” • What does it mean to keep and bear arms?

6. Literal Approach in District of Columbia v. Heller (2008) In District of Columbia v. Heller (2008), both the Opinion of the Court and the dissenting opinion supported their interpretation with dictionary definitions that lead to different conclusions. • Justice Scalia concluded that “keep” means to possess, and “bear” means to carry. He defined “arms” as both offensive and defensive weapons and then concludes that individuals have a right to possess and use firearms for purposes of self-defense and sporting activities in addition to service in the militia. • Justice Stevens cited the Oxford English Dictionary’s definition that “bear arms” means “to serve as a soldier, do military service, fight.” Based in part on this definition he concluded that the second amendment only protects the possession and use of weapons in the context of formal regulated militias.

7. Contextual Analysis • Sometimes, the same word can mean different things in different contexts. Consider the difference between a hit in a baseball game, a hit on Broadway, and a hit in Blackjack. 2nd AMENDMENT EXAMPLE: • How is the 2nd amendment clause about “A well regulated Militia, being necessary to the security of a free State,” related to the meaning of the right to “keep and bear arms?”

8. Contextual Analysis: Heller decision • Justice Stevens argued that, in light of these references to the role of the Militia, the restriction contained in the second clause should be limited to prohibitions that interfere with the Militia. • Justice Scalia’s opinion declared that the operative restrictions on keeping and bearing arms are not limited by the introductory clause. • Because the “operative clause” of the amendment refers to the “right of the people,” rather than to a right of people in the Militia, Justice Scalia interprets the 2nd amendment as creating a general right that is not limited to participation in the Militia.

9. Contextual Analysis NATURAL BORN CITIZEN EXAMPLE • Following the 2008 elections, several people filed law suits seeking to have the courts prevent declare that Barack Obama could not serve as President because he did not meet the constitutional requirement of being a “natural born citizen.” • An examination of Article II , Section 1 reveals the following relevant text: Article II, Section 1: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the age of thirty five years, and been fourteen years a resident within the United States.” • However, the term “natural born citizen” is not a commonly used or universally understood term in the English language and is not defined in Article II, Section 1.

10. Contextual Analysis: Natural Born Citizen • 14th amendment includes a definition of citizenship, • All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. but does not specify what it means to be a “natural born citizen.” • Article I, Section 8, gives Congress the power to establish a “uniform Rule of Naturalization,” which it did in Section 1401 of Title 8 of the U.S. Code where it gives a list of criteria that define “citizens of the United States at birth.” • First on the list of criteria is being born in the United States, and subject to the jurisdiction thereof.” • Given these statutes, does Barack Obama (who was born in Hawaii after it had become a state) meet this first definition?

11. Contextual Analysis: Natural Born Citizen • John McCain, on the other hand, was not covered by this provision because he was born on a military base in the Panama Canal Zone. • However, another provision of Section 1401 states: “a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States” • There is also a provision of Section 1403 that states: Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States. • Did John McCain meet the criteria of being a natural born citizen?

12. Historical Analysis • What are the two main types of historical analysis approaches to constitutional interpretation? • What is the difference between the two?

13. Historical Analysis: Intent of the Framers • The most common type of historical analysis focuses on the intentions of the people who drafted the document being interpreted. • What are the potential problems with this approach?

14. Historical Analysis: Intent of the Framers EXAMPLE: Establishment of religion clause of the first amendment: “Congress shall make no law respecting an establishment of religion.” Neither the first amendment, nor any other part of the Constitution define what it means to “establish” a religion.

15. Historical Analysis: Originalism What is Originalism and how does it differ from the intent of the drafter’s approach? What kind of problems go with this approach?

16. Historical Analysis: Originalism • The Originalism approach holds that the Constitution should be interpreted to reflect what the average person thought it meant at the time the provision in question was adopted. • What types of problems are associated with this approach?

17. Historical Analysis: Originalism EXAMPLE: The Eighth Amendment states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. • In applying this approach to cases involving the issue of capital punishment, one must seek to determine if the average person in 1791 considered the death penalty to be “cruel and unusual” punishment.

18. Historical Analysis: Originalism EXAMPLE: “Cruel and unusual” punishment • Supporters of this approach emphasize that: • the death penalty was commonly accepted both before and after the adoption of the 8th amendment. • the 5th amendment (adopted at the same time as 8th) authorizes deprivation of life as long as there is due process. • What do you think opponents argue?

19. Living/Evolving Constitution • All of the approaches discussed so far are based on the assumption that the constitution has a fixed meaning that does not change from one decade to another. • Advocates of what is variously called the “living constitution,” the evolving constitution” or “subjective intent” approach believe the constitution was intentionally designed to be able to change with the times. • They assert that terms like “unreasonable searches and seizures,” “due process of law,” and “equal protection of the laws” were designed to identify fundamental values rather than specific rules, and that it is the proper task of contemporary judges to apply these fundamental values to changing circumstances.

20. Living/Evolving Constitution EXAMPLE: UNREASONABLE SEARCHES AND SEIZURES • Is it a violation of the 4th amendment provision against unreasonable searches and seizures for government agents to use a thermal-imaging device aimed at a private home from a public street for the purpose of detecting evidence of a crime? • What problems do you run into when applying literalism and historical analysis?

21. Living/Evolving Constitution EXAMPLE: UNREASONABLE SEARCHES AND SEIZURES • In deciding a case involving use a thermal-imaging device Justice Scalia wrote: It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. …The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy. Kyllo v. United States, 533 U.S. 27 (2002).

22. Interpreting the Equal Protection Clause of the 14th Amendment Equal Protection Clause is found at the end of Section 1 of the 14th amendment. See Appendix A, p. 797. Key language is: “Nor shall any State …deny to any person within its jurisdiction the equal protection of the laws.” How helpful is the literalism approach when interpreting this clause?

23. Literal Reading of the Equal Protection Clause “Nor shall any State …deny to any person within its jurisdiction the equal protection of the laws.” • The dictionary defines “equal” as having the same capability, quantity, or effect as another as in equal strength or equal weight. • How does this help determine what it means to deny someone “equal protection of the laws?” • Does it mean that governments must always treat everyone the same way?

24. Contextual Approach The Civil War Amendments • 13th abolished slavery and involuntary servitude • 14th amendment • made slaves citizens of US and states wherein they reside [Overturns Dred Scott case.] • prohibited states from abridging the privileges or immunities of citizens of the US • prohibited states from depriving any person of life, liberty, or property without due process of law, • prohibited states from denying any person within its jurisdiction of the equal protection of the laws. • 15th prohibited denial of the right to vote on the basis of race, color, or previous condition of servitude. • Do these other sections help define what “equal protection of the law” means?

25. Historical Analysis • Although an analysis of the text of the 13th, 14th, and 15th doesn’t directly define “equal protection of the laws,” it does provide evidence as to the “intent of the drafters.” • What do you think their intent was? • What did the majority opinion in Plessy say about the intent of the drafters?

26. Historical Analysis in Plessy • Justice Harlan’s dissenting opinion, on the other hand, concluded that the Louisiana statute was exactly the type of burden or disability that constitutes the badges of slavery or servitude that are prohibited by the 13th. • He also rejects the argument that this is a neutral law that treats both races the same because the legislative history showed that the white people who passed the law did so because they believed that Blacks were inferior to Whites.

27. “Living/EvolvingConstitution” Approach • In Brown v. Bd. of Education, the unanimous opinion of the Court utilized the living/evolving constitution approach. : • Chief Justice Warren first sought to identify the underlying goal the equal protection clause was designed to achieve, and then • Applied that goal to contemporary conditions. • He identified the goal of the 14th amendment to be that of insuring fair treatment for the former slaves. • He then concludes that in the context of the contemporary importance of public education, it must be equally available to people of all races. • Opinion states: "...it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.“

28. Use of Precedent Cases • In determining the meaning of various sections of the constitution, judges are also expected to consider the precedents set by prior court decisions dealing with the same sections of the constitution. • This expectation is based on the doctrine of Stare decisis • Latin for “let the decision stand.” • Holds that courts should decide cases in ways that are consistent with the decisions reached in precedent cases.

29. Pros & Cons of Stare Decisis • JUSTIFICATIONS FOR USE: • Predictability, need to plan ahead • Equality of treatment • Efficiency • CRITICISM OF USE: • It increases the impact of unjust decisionsby perpetuating “mistakes.”

30. Power to Overrule Precedent • While lower courts are required to follow precedents established by higher courts, • There are circumstances in which courts—especially Supreme Courts—can overrule their own precedents. • A classic example is when Mapp v. Ohio (1961) overturned Weeks v. United States (1914) and applied the exclusionary rule to the states.