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| Please contrast an equal protection claim with a due process claim. What does equal protection mean? What does due process? Can you give an example of each? |
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Definition
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| What is John Hart Ely's process-reinforcing approach to equal protection? Name one objection to this approach to judicial constitutional interpretation. |
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Definition
| At the heart of equal protection is the assurance that legislator's cannot make invidious distinctions and that the law must apply equally to everyone. However, legislators have to make basic distinctions all of the time. The question for judges is which decisions are acceptable and which are not. One of the approaches in order to determine the judiciary's role in answering this question is John Hart Ely's process-reinforcing model. This model interprets legislation through a proceduralit's lens, maintaining that the only way a judge can strike down legislation is if it violates some element of a democratic practice or procedure. A violation of a democratic procedure also includes preconditions to a democratic society, like education for example. A judge can strike down a law that interferes with a person's right to go to school. One critisism to this method speaks to the question of how do we identify a procedure that is critical for a democratic process? Obviously, the right to vote is a critical democratic process, but arguments such as the right to education are difficult to prove as critical to democratic procedure. |
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Term
| Defendant X is charged with the Felony Crime of Battery, a crime which carries a maximum sentence of 9 months in jail. Must Judge Z appoint counsel to Defendant X? Please explain. |
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Definition
| Before Gideon v. Wainwright, Betts vs. Brady established that the right to counsel for state crimes is to be determined by the state unless the offense is a capital offense. Gideon v. Wainwright addresses this issue of the right to counsel. Gideon was originally tried without counsel and then appealed his case to the supreme court, claiming that his sixth amendment due process rights (applied to the states by the 14th amendment) had been violated. The court's decision overturned Betts vs. Brady, holding that under the 6th amendment, the state is required to provide counsel to a defendant charged with a felony. The right to counsel is a fundamental right and essential for a fair trial. The courts can no longer distinguish between capital and non-capital offenses, this ruling applies to all felonies. Therefore, following the precedent established in Gideon v. Wainwright, defendant X must be appointed council because the charge is a felony. |
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| Defendant X is charged with the misdemeanor crime of Petty Theft, a crime in State Y which carries a maximum sentence of 3 months in jail. Must Judge Z appoint counsel to Defendant X? Please explain. |
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Definition
| Gideon v. Wainwright established the right to counsel in all felony cases. However, the question of the right to counsel in misdemeanous caes was not examined until Argersinger vs. Hamlin. In Argersinger v. Hamlin, the court held that no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by council. This case assures that any defendant facing jailtime is represented to an appointment of counsel. Scott vs. Illinois added that there must be actual imprisonment, not just the threat of imprisonment, at stake in order to require an appointment of counsel. Therefore, because Defendant X's crime carries a possible prison sentence, he must be appointed counsel unless Judge Z can guarantee that he will not sentence defendant X to jail time. If defendant X is not appointed counsel, he cannot be sentenced to jailtime. If he is appointed counsel, he can be. Therefore, the requirement of an appointment to counsel depends on the sentence that the Judge will give. |
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Term
| Contrast the standard account of Lochner v. New York with the revisionist account of Lochner v. New York. Make sure you explain the majority holding in Lochner. |
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Definition
| The issue in Lochner v. New York was a state law that limited the working hours of bakers. The court held that this legislation violated the police powers doctrine and infringed upon the freedom of contract of the citizens, that is, the right to engage in economic transactions without government interference. The standard account of this decision claims that this decision represents the judge's inappropriate promotion of their own policy preference. This account claims that the judges were promoting Laissez-Faire economics, in which government regulation in economics is minimized. Furthermore, the judges promotion of this policy through their decision represents a violation of judicial norms. Basically, the standard account asserts that the court was wrong in making this decision. The revisionist account, in contrast, takes into account. The revisionists claim that we cannot understand the decision in Lochner without considering how the court thought about bargaining power of labor and capital at the time. 3 MORE. During the time of Lochner, it was assumed that labor and capital had equal bargaining power, and any legislation that favored one group over the other was considered "class legislation." Considering the context, it was not inappropriate for the court to strike down legislation regarding businesses that are not affected by the public interest on the basis that it was class legislation. Basically, the revisionist account attempts to justify that court and show that their decision was not as inappropriate as the standard account deems it to be. |
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Term
| Explain "Police Powers doctrine," including its central distinction, master principle, and key assumption. What historical trends and events led to the erosion of the key assumption? |
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Definition
| Police powers are defined as the power of the state legislature to regulate in the interests of public safety, health, morals. In general, state Governments can regulate property rights, contract rights, in the interest of the general welfare. The police powers doctrine was all about how the 19th century court system struck this balance between protecting the interests of public welfare and infringing upon rights, especially the right to contract. The central distinction of the police powers doctrine distinguishes between general legislation, that of the public interest with partial legislation that favors one group over the other (group meaning labor and capital). The master principle is that the state shall have no favorites, that is, it shall not favor labor or capital over the other. The key assumption of this doctrine assumes equal bargaining power between labor and capital. The western frontier allowed for this balance in bargaining power because it allowed workers a certain degree of economic mobility. Eventually, as the western frontier was shut down and business shifted to favor large corporations in which the rights of the laborer might be swallowed up, bargaining power shifted toward capital. Therefore, the introduction of heavier economic regulation that would have previously been considered "class legislation" was necessary in order to protect the interests of the laborers who lost their stake in equal bargaining power. |
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Term
| Explain why the Civil Rights Cases of 1883 and a "state action" problem confronted supporters of the Civil Rights Act of 1964 who wanted to authorize this legislation under the 14th amendment. Why did supporters turn to the Commerce Clause to authorize the Civil Rights Act of 1964? Give an example of a commerce clause case in which they relied. |
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Definition
| Supports of TITLE II of the Civil Rights Act of 1964 originally hoped that they would be able to use the due process clause of the 14th amendment to justify the legislation. However, this became difficult as the Civil Rights cases of 1883 continually struck down public accomodations acts, claiming that Congress lacked the constitutional authority under the enforcement provisions of the Fourteenth Amendment to outlaw racial discrimination by private individuals and organizations, rather than state and local governments. This problem, referred to as the "state action problem" led supporters to look elsewhere for justification. They turned to the commerce clause because as commerce is an economic matter, it only triggers rational level scrutiny. In this case, it is easy to prove a rational basis for desegregation. One example of a case which relies on the commerce clause is Heart of Atlanta Motel vs. United States, in which the court ruled that an hotel must be desegregated because segregation was interfering with interstate commerce. |
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Term
| Do you see any tension between the holding in Lochner, and Williamson v. Lee Optical? Please explain your answer. |
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Definition
| The decision in Lochner vs. New York overturned state legislature that regulated the working hours of bakers, claiming that all citizens have the right to contract. In contrast, the court upheld state legislation in Williamson vs. Lee Optical, that regulated who can fit eye glasses, claiming that only a liscensed Opthamologists and Optometrists may complete this. The court took a stand that they need only apply rational basis review of this case, and they held that this legislation was reasonable. Basically, the court held that they should defer to the legislature on economic matters. Although on the surface, the two decisions seem to contradict each other, I feel that the decisions represent a progression in jurisprudence from the time the Lochner decision was made to the Lee Optical Case. During the time of the Lochner case, inherent in the police powers doctrine was the key assuption that labor and capital had equal bargaining power. Therefore, legislation that protects a particular class, labor or capital, was unnecessary. As time progressed, this assumption became eroded due to a shutting down of the western frontier and the introduction of industrialism. Therefore, during the time of Williamson vs. Lee Optical, it was necessary for the court to back off and leave it up to the legislature to maintain a balance of bargaining power. Therefore, these seemingly contradictory decisions actually make sense when taking historical context into consideration. |
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Term
| Can the Court be an effective vehicle for social change? Please provide at least two reasons for your answer. |
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Definition
| I do not believe the court can be an effective vehicle for social change on it's own. Rosenberg's view of the "Contrained Court" points out some important limitations that make the case for me tat the court is not necessarily as effective in producing social change. First, Courts lack budgetary and physical powers (no military, finance system, sword and the purse, no independent means of carrying out their will). The court can make many important decisions, but they do not have a means by which to carry them out. Secondly, the public is sometimes unaware of the important court decisions going on at the time. For example, the majority of people are unaware of the decision in Brown v. Board of Education. ROseberg argues that protests and demonstrations had a bigger impact on public opinion than the court. I agree with this claim because the media heavily broadcasts instances of violence and protest, and therefore it is more likely that hte public would be well informed about these things than a court decision. |
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Term
| What is the harm that is at stake in Brown v. Board of Education? |
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Definition
| Brown vs. Board of education overturned the "seperature but equal" doctrine established in Plessy v. Ferguson by declaring that separate public schools for black and white students denied black children equal educational opportunities. One of the harms at stake in this type of racial segregation is severe psychological harm. Psychological studies had been done in which children were asked which dolls they preferred, the white or the black ones. It was found that both white and blacks exhibited an overwhelming preference for the white doll, showing that even at such a young age the black race was associated with inferiority. In addition to psychological harm associated with feelings of inferiority for black children, it is argued that there was a stigma associated with this type of segregation. Additionally, a system of segregation only furthered the racist hierarchy that the 14th amendment intended to fix. Finally, it has been proposed that this segregation provides a lower quailty of eduacation to blacks as it is nearly impossible to ensure that every eduactiional institution is equal. The court ruled that in light of these harms, seperate but equal is not equal, and therefore ordered schools to desegregete. |
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Term
| Some theorists say that Brown can be defended according to an anti-caste conception of equal protection--that equal protection is a prohibition on "badges of servitude." What is this argument? Is this a good way of defending Brown? |
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Definition
| The "badges of servitude" argument asserts that there are some social practices which create certain markers of categories of citizens, and that any practice which creates a social hierarchy through this creation of a social marker is unconstitutional. If a law creates or promotes a system of social hierarchy, it is unconstitutional. If a law helps to rid society of these social markers, it is constitutional. THe only exception to a creation of badges of servitude is if they help the cause of the minority. For example, a law that would help women to achieve civic equality would be considered constitutional. This is a good way of defending Brown v. Board of Education because in a way separating students on the basis of race automatically marks or "badges" African Americans will a stamp of inferiority, to say that they cannot be in the same vicinity as white people. Brown vs. Board of Education is a way to reduce this social hierarchy which places blacks inferior to whites, and is justified by the badges of servitude argument in that it helps to put African Americans on equal playing field. |
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