PSCI 4220 Civil Liberties/Rights

PSCI 4220Civil Liberties/Rights I: The Supreme Court, Judicial Power, and the Role of the Supreme Court in Social Policy

Introduction: Judicial Power and Role of SupCt • 2 broad issues in Constitutional (con) law: • 1) Structural Problems of Const and more broadly in American Govt. • 2) Individual Rights -- “LIBERTIES” -- due process, equal protection, criminal rights, 1st Amendment rights, etc. • This course solely concerned with second issue: civil rights/liberties as protected by Const • More specifically, how are minorities protected by Const?

Key const’al clauses: • “freedom of speech” (in 1st A), • “due process” (in 5th and 14th As) and • “equal protection” (in 14th A) • Key questions: • 1) Should SupCt have power to protect civil liberties? • 2) Is SupCt effective in protecting civil liberties? • Rosenberg book: all courts are poorly equipped to protect liberties (different from conventional wisdom)

ORIGINS OF CIVIL LIBERTIES IN U.S. • Declaration of Independence (1776) • Who wrote this? • This document is greatest embodiment of individual rights ever written • Articles of Confederation (1777-- ratified in 1781) • Our first Constitution • Deficiencies (e.g., lack of protection of civil liberties) led to Const’al Convention of 1787

Constitution (1787) • officially ratified in 1788 • all 13 states ratify by 1790) • Key components: • 1) set up structure and scope of system of govt in US • 2) provided protections for individuals against intrusion by new federal govt: • In other words, protects “civil liberties” from governmental intrusion.

Key Elements of the Constitution: • Article III -- Judicial Article • Section 1 -- “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” • Section 2 -- Jurisdiction: power of a court to hear and decide particular case Based on Article III, courts became deeply involved in defining extent and limits of civil liberties

Bill of Rights • Are actually the first 10 Amendments to the Constitution, ratified 1791 • 1st A -- free speech, free press, peaceably assemble, petition govt for grievances; no religion established by govt, nor prohibition of free exercise of religion • 2nd A -- “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.” • 3rd A -- No quartering of soldiers

4th A -- no unreasonable searches and seizures • 5th A -- grand jury indictments; no double jeopardy; no self-incrimination; fed govt cannot deprive any person of “life, liberty, or property, without due process of law” • 6th A -- right to: speedy and public trial by impartial jury; informed of criminal charges; confront witnesses; legal defense counsel

7th A -- right to jury trial in civil cases • 8th A -- no excessive bail or fines; no “cruel and unusual punishments inflicted” • 9th A -- enumerated rights do not “deny or disparage others retained by the people” • 10th A -- Reserve clause; If the federal govt doesn’t have a particular power, states get that power.

Other key components: • The BOR limited only fed govt’s infringement on civil liberties; • States were not similarly precluded • Madison’s proposed amendment to limit state govts: • “No state shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.” • Senate rejected, so BOR only limits fed govt (originally) • Eventually the BOR is incorporated onto the States.

Amendments subsequent to BOR which affect civil liberties: • Civil War As (13, 14,and 15): • 13th A (1865) -- abolished slavery

14th A (1868) -- formally overruled infamous Dred Scott decision • Citizenship if born in US; States cannot deny any person due process, equal protection, privileges or immunities; 3/5 clause removed • 14th A limits State govts, similar to Madison’s proposed (failed) amendment • 15th A (1870) -- right to vote cannot be denied b/c of “race, color, or previous condition of servitude”

19th A (1920) -- right to vote cannot be denied “on account of sex” • Only mention of gender in the entire Constitution. • 26th A (1971) -- right to vote cannot be denied to anyone at least 18 years old

THE limitations on judicial power: • “Threshold requirements” limit judicial power: • 1) jurisdiction; and 2) cases and controversies • Must have both of these before a federal court can hear the case • Must have standing: • Injury – tied to litigant • Causation – tied to whom is being sued • Redress – Court must be able to give some redress. • Caveat: if civil liberties issue present (i.e., potential violation of 1st, 5th, or 14th A), fed court has jurisdiction; threshold requirements not practical limitation on judicial power

JUDICIAL REVIEW (JR) • power of court to hold act by another branch of govt unconst’al • JR based on Marbury v. Madison (1803) • Federalist #78 (Hamilton): fed courts should have JR, though not specifically in Const • JR provides SupCt potential power to override congressional/ state laws infringing individuals’ rights

Marbury v. Madison (1803), CJ Marshall • Adams (federalist) pushed through new appointments in the final hours of his presidency. When Jefferson won, however, he refused to make the appointments. • One of them was to Marbury, Justice of the Peace • Madison was Secretary of State and refused to state the commissions.

writ of mandamus was filed -- court order compelling a public official to do his job • original jurisdiction, § 13 of Judiciary Act of 1789 – allows the Court to issue these writs. • 1) is Marbury entitled to commission? YES • 2) since Marbury has right to post, does law provide remedy? YES • 3) is writ of mandamus from SupCt proper? NO. Why?

Const supreme law of land; • § 13 of the Judiciary Act contradicts the Const by giving the Court added original jurisdiction power; • Congress can’t do that, therefore, § 13 unconst’al. • Strong assertion of SupCt’s power of JR over co-equal branch of fed govt: • “It is emphatically the province and duty of the judicial dept to say what the law is.” • JR gives SupCt power to protect civil liberties by preventing Congress or States from infringing upon individual rights • Most Important: It makes the SCT extremely powerful!

So the judiciary decides what the Constitution says • Jefferson doesn’t react because he won the case. • Marshall limited the Court’s power, not expanded it, so Jefferson couldn’t be ordered to deliver the commission. • He expanded judicial power by ‘losing’ the case. • But hidden in this retreat was the idea that laws that conflict with the Constitution can’t stand. AND that the Court says what the Constitution means!

Myth of the Court (even today!) – the Supreme Court is above politics. They find law; not create law. • Stare decisis – past decisions rule law. • What is the proper role for courts in exercising JR? • Should courts protect civil liberties when disparaged by majorities in legislative/executive branches? • Compelling arguments on both sides.

Rosenberg: courts should/must protect individuals against legislatures • Madison’s argument: judges must protect individuals’ rights, to ensure tyranny of majority does not occur • Per this view, central role of judiciary to protect rights of minorities • It is the best branch (the only branch?) of government to do this since it’s not connected directly to majority • It might rule in a counter-majoritarian way • But it’s the only branch that could do so.

Judicial Activism – • Political process insufficient, so courts’ role to protect civil liberties • Alternative: judicial restraint • SupCt should not take on role bc it counters effective will of majority and the very essence of democracy • Courts inappropriately engaged in judicial supremacy over representative branches • Judicial restraint – judges presume const’ality of govt actions, uphold legislature or executive • Judicial activism – judges do NOT presume const’ality of govt actions

Liberal vs. conservative judges • Restraintist and activists judges do not go hand and hand with liberal/conservative ones (e.g., liberal judges aren’t always activists and vice versa). • Judges can (and do) become conservative activists and liberal restraintists. Rehnquist was a good modern day example of a conservative activist. • Thomas, ditto. • Why does this matter for this course? • You’ll see the transformation of various areas of law. I want you to think about the time period: is the country going through a liberal or a conservative period? Who is on the Court? Has the Court changed membership since a prior case? Who appointed the new justices?

So our Court is the most powerful Court in the world. • Now you know why. • A) our judges have the power of judicial review that b) isn’t even mentioned in the Constitution. • This class is about how people are protected from government interference.

Eras of the Court • Marshall 1801-1935 – focused on defining the central government’s powers. • Taney 1836-1863 – Dredd Scott and Armistad decision and concerned with protecting property rights and returning power to the states. • Chase and Waite 1864-1874, 1874-1888 – undistinguished but worked hard to shed the biased reputation gained from the Scott case.

Fuller, White and Taft1888-1930 – property rights, combating social welfare legislation, reigned in federal government by supporting state ability to take care of citizens • Hughes 1930-1941 – FDR and New Deal Programs (the Shift in Time that Saved 9) • Stone, Vinson 1941-1946, 1946-1953 – certain rights (fundamental to ‘liberty’) deserve higher judicial scrutiny. Civil rights rock. • Warren 1953-1969 – activism of the Stone agenda. Criminals deserve protections

Burger 1969-1986 – continued Warren tradition on individual liberties but backpedaled on protections of criminal defendants • Rehnquist 1986-2005 – favored property rights and state powers, more cautious toward individual rights • Roberts 2005 -

PSCI 4220 Civil Liberties/Rights