2-27-12
Lecture # 7: Law & Social Policy: Race
1. Reading (60 words) (Judith Peoples)
His son is excluded from the school where the sons of Europeans come to be educated. At the theatre, any amount of gold could not buy him the right to take his seat beside his former master; in hospitals he lies apart. The black is allowed to pray to the same God as whites but not at the same altars. Tocqueville 402
404-408: difference between the left and right banks of the Ohio. Read in Class # 3 by Nicholas Laughlin and John Brown: begin the class with reading from pages 405-408. On page 405 begin with "But the truth of this..." and read through the first 4 paragraphs on 406 ending with '.... the proceeds of their work.' Resume reading at page 407 with the words "The influence of slavery..." and continue through the first two paragraphs on page 408.
2. Summary of Class #6: The Death Penalty (in 250 Words or Less)
In the first class we examined the Power of the People; the second, the Power of the Judiciary; the third the Power of the Legislature; the fourth the Power of the Executive Branch in the fifth we reviewed social, political and governance themes and issues treated by Tocqueville in his classic work, Democracy in America. The sixth class concerned the Death Penalty. Here’s what we’ve learned:
In 1972 the Supreme Court ruled that the death penalty, as administered in the United States, was unconstitutional. Numerous reasons were cited but none commanded majority support. It is fair to say that the animating themes of the decision were that the death penalty, as administered, was illegal because it was: (1) cruel and unusual punishment (with two justices believing that death penalty was cruel and unusual punishment per se) and (2) arbitrarily applied. 74. While the death penalty was too broken to use, it was not too broken to fix. In 1976, the court declared it was fixed though incorporation of a guided discretion template crafted by the American Law Institute as part of the model penal code. In 2009, the ALI withdrew its support for the template it created and said it doesn’t work. Since reinstatement of capital punishment, the Supreme Court has used the 8th amendment to outlaw execution of mentally retarded and juveniles and limited the class of crimes eligible for the death penalty to aggravated murder and treason. 173 words
3. Lecture #7: Race. DV 5 minutes
Tocqueville assessment of the race problem in the United States (pp398-426) is grim. If Tocqueville were a biblical prophet, he would describe Slavery as American’s Original Sin—its’ Fall from Grace, the reason for its eviction from the Garden of Eden. He predicted violence in the South if freedom were not granted to Negroes and an abuse of freedom by Negroes if it were. He thought slavery was cruel to the slave but fatal to the master; that slavery was abolished in the interest of the whites not the Negroes.
[“Slavery in the United States is destroyed in the interest, not of the Negroes, but of the whites.” P 403. As further advances were made, people began, therefore to perceive that slavery, as cruel as it was for the slave, was fatal to the master.” P 405.]
He had a cynical and bleak prediction for the future:
“The Negroes may remain slaves without complaining but once they join the ranks of free men they will soon be indignant at being deprived of almost all the rights of citizens and, not being able to become equals of the whites, they will soon declare themselves their enemies.” Page 423.
What would Tocqueville have thought about the election of Barak Obama? What do we think about the election of Barak Obama? Will events subsequent to the election of America’s first African American president prove or disprove Tocqueville troubling predictions? Does the election of President Obama conclusively prove that Tocqueville was wrong? Or has Mr. Obama’s term as president exacerbated racism and perhaps given it new cloaks and new daggers to continue its iniquitous work? And has racism enlarged its scope in the last many decades to take in new ethnic and religious groups?
Our focus in this Class #7 is race; especially in the context of public and private education. We are interested in the outcome of Brown v. Board of Education ruling that school segregation was illegal but given the mandate of this course and its mission we are even more interested in how the court approached the problem and translated a new and compelling social policy into constitutional policy and action. And we are interested in last weeks’ news story that the United States Supreme Court will revisit the legality of affirmative action and perhaps change the current state of the law which allows university’s to take race into account in its admission policies to remedy the past effects of racial discrimination.
The power of the judiciary to declare laws unconstitutional is a special characteristic of the American judiciary. Tocqueville noted its uniqueness among governments and judicial systems. Hamilton and Madison believed the power to declare laws unconstitutional was an essential component of an independent judiciary that would ensure that the civic and political objectives of equality, freedom and liberty could coexist in the republic.
As a legal proposition, it may be said that the constitution is the ultimate source of law in America. As a political proposition, it may be said, as Tocqueville has in fact said it, that social conditions are the ultimate sources of law in America.
Here is a provocative question: can the constitution ever be UNCONSTITUTIONAL? Here’s another, less provocative but quite perplexing nonetheless: does the constitution ever contradict itself? Is it possible for constitution to be inconsistent? If so, what is the judiciary to do with conflicting or inconsistent or outright unacceptable constitutional provisions when exercising its power of judicial review?
Our review of death penalty decisions taught us that even though capital punishment may be expressly authorized in the constitution (by expressly stating the government may deprive a citizen of life and liberty in accordance with due process of law) it may also become cruel and unusual punishment per se or as applied if the evolving standard of decency declares it to be so…Our review of the death penalty cases introduced a more subtle form of conflict within the constitution and that is the requirement of guided discretion in administering the death penalty (Justice Scalia denies any conflict). The constitution requires both objective standards in order to avoid arbitrariness but also requires subjective, judgmental, deliberative and discretionary standards in order to remain just and in accordance with evolving standards of decency that mark the progress of a civilized society. Can you imagine death penalty administration becoming an algebraic equation? Law is not arithmetic. And yet, discretion is eroded with too much guidance and guidance is undermined by discretion.
Racial segregation, indeed slavery, is expressly authorized by the constitution. And while the 14th Amendment was adopted in the 19th century, it was not construed as prohibiting racial segregation until many years later.
So how does the court deal with overruling express constitutional mandates that have become unconstitutional not merely as applied but inherently? We will look to Brown v Board of Education to guide us.
4. Student Assignments
Class Assignments #7: Race
2-27-12
Readings: Judith P.
1. Nathan B: Dred Scott v. Sandford 60 U.S. 393 (1857)
2. Brad Corbin: Plessy v. Ferguson 163 U.S. 537 (1896)
3. Jacob Giesecke: Brown v. Board of Education 347 U.S. 483 (1954).
4. Zac Ricjards: Korematsu v. U.S. 214 (1944). [Also germane to Lecture #10]
5. Cathy Barnes: The Federalist Papers No. 54 (Madison) on why slaves are counted in the census for purposes of congressional representation pp. 334-338
6. John Brown: Tocqueville “The Position of the Black Race in the United States” pp.398-426
7. Nicolas Laughlin: Chemerinsky Chapter 9, Section 9.1.1 pp.684-685, 691 (first two paragraphs only), Section 9.3.1 “Race Discrimination” pp. 706-726
8. Molly: affirmative action case accepted by U. S. Supreme Court for 2012 argument.
Saturday, February 25, 2012
Saturday, February 18, 2012
#6 Class--The Death Penalty--2-20-12
2-20-12
Lecture # 6: Law & Social Policy: The Death Penalty
1. Reading (536 words) (Brandi Melvin)
Callins v. Collins, 510 U.S. 1141 (1994)
Bruce Edwin Callins will be executed [tomorrow] by the state of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses...will behold Callins...strapped to a gurney, seconds away from extinction. Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the...task of determining whether some human being is to live or die.
We hope...that the defendant whose life is at risk will be represented by...someone who is inspired by the awareness that a less-than-vigorous defense...could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge...committed to the protection of defendants' rights...
But even if we can feel confident that these actors will fulfill their roles...our collective conscience will remain uneasy. Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency or not at all, and despite the effort of the states and courts to devise legal formulas and procedural rules to meet this...challenge, the death penalty remains fraught with arbitrariness, discrimination...and mistake...
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored...to develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies... Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness 'in the infliction of [death] is so plainly doomed to failure that it and the death penalty must be abandoned altogether.' (Godfrey v. Georgia, 1980) I may not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessen us all."
Supreme Court Justice Harry A. Blackmun, from an opinion dissenting from the Supreme Court's decision denying review in a Texas death penalty case, Callins v. Collins, Feb. 22, 1994.
2. Summary of Class #5: Tocqueville on Social and Political Issues (in 450 Words or Less)
In the first class we examined the Power of the People; the second, the Power of the Judiciary; the third tthe Power of the Legislature; the fourth the Power of the Executive Branch and in the fifth we reviewed social and political themes and issues treated by Tocqueville in his classic work, Democracy in America. Here’s what we’ve learned:
Equality, not freedom, is the basic creed of the new American civic religion. Personal liberty and religion became allied in the new world, working together to mold a new order for a new people who were practical, money loving, kind in the administration of the criminal code (as it relates to political prosecutions), addicted to comfort and order, and subject to the fetters of public opinion. Lawyers and judges play a special role in tempering the excesses of majority rule and a private press and independent judiciary are the most powerful institutions in America. Other points:
For Americans, their whole lives are spent as if in a game of chance, in a time of revolution or a day of battle.
Democracy in America (1835-1840) Alexis de Tocqueville: Key Points
TYRRANY OF MAJORITY 68, 71, 223-224, 287-305, 603, 747
INDIVIDUALISM: 683 (isolation), 589
ASSOCIATIONS 219-227, 223, 595-609, 700-702 811 (danger of factions)
MATERIALISM: 627-628
FREE PRESS 213, 222, 811-812
LAWYERS 307-315, 308, 309, 314
PUBLIC EDUCATION: 53-54, 65 (job oriented)
WAR 755-756, 768, 260 (the draft)
NEW SOLUTIONS for NEW DISORDER 816-817 (main idea of the book, main purpose of legislation)
KINDNESS 653 (Death Penalty)
DEMOCRACY 181 (main threats to), 294 (main complaint against), MAJORITY RULE 297 (effect on opinions), 290, 292 299 (no freedom of thought), 747 (public approval)
DEPOTISM OF THE FUTURE 805-806
FEAR OF DISORDER, LOVE OF COMFORT 788
LOVE OF MONEY 41, 64, 616-618, 627-628, 713, 721, 722, 788 and comfort, 618.
WOMEN: 687, 692, 696, 700
UPWARD MOBILITY 637
EQUALITY & FREEDOM: The Puritans established America's democratic social state of equality. They arrived equals in education and were all middle class. 67
RELIGION & LIBERTY: Tocqueville observes that they contributed a synthesis of religion and political liberty in America that was uncommon in Europe. 55-56
MANNERS, SOCIAL CONDITION: 319, 357, 328, 705 Tocqueville believed that the Puritans established the principle of sovereignty of the people in the Fundamental Orders of Connecticut. The American Revolution then popularized this principle, followed by the Constitutional Convention of 1787, which developed institutions to manage popular will. While Tocqueville speaks highly of the America's Constitution, he believes that the mores, or "habits of mind" of the American people play a more prominent role in the protection of freedom.
LEGISLATIVE POWER, fear of: 288, 304-305
JUDICIAL POWER 122, 314, 315 812
NEW ARISTOCRACY 645-648
MAIN OBJECTIVE OF LEGISLATION 49, 817
SOURCE OF LAWS 49, 57, 58, 71, 319, 335, 357, 362.
RACE 398-426
MAIN IDEA OF BOOK: 335, 816-817
TWO MOST IMPORTANT POWERS: Judicial and Free Press, 812.
292
298 words
The love of comfort has become the dominant taste of the nation. Tocqueville 618.
3. Lecture #6: The Death Penalty. DV: words. 5 minutes
Never was the death penalty more frequently prescribed and never more rarely enforced. [On the original 17th century Puritan codes in America] Tocqueville 49
No Country administers its criminal law with more kindness than the United States. While the English seem bent on carefully preserving in their penal legislation the bloody traces of the Middle Ages, the Americans have almost eliminated the death penalty from their codes. Tocqueville 653 (1840)
In 1972, the United States Supreme Court ruled that the death penalty as administered in the United States was unconstitutional. Several reasons were cited although none commanded a majority of votes by the Supreme Court Justices: it is fair to say that the animating themes of the decision are cruel and unusual punishment, arbitrary application, lack of procedural guidelines for juries that also allow for application of discretion at appropriate junctures. Only two justices believed that capital punishment had become unconstitutional as a matter of law, cruel and unusual punishment because of the evolving standard of decency discernible in actions of the legislature and jury sentencing decisions. One justice thought the death penalty was cruel and unusual because it was arbitrarily applied and seemed to be governed by the same laws that determined where lightening would strike. In this view, the death penalty is a macabre lottery system.
So, while the death penalty was effectively declared too broken to use in 1972, it was not regarded as too broke to fix. And by 1976, the Supreme Court declared it fixed for good and executions resumed soon thereafter with the execution of Gary Gilmore by firing squad. The main impetus for the fix came from the Model Penal Code designed by the American Law Institute. The MPC designed a model template that would guide the discretion of the jury in capital cases, bifurcate the guilt and sentencing trials and allow the jury to meld, mold and entwine objective criteria with discretion in a way that would satisfy the requirements of due process and equal protection of the law. Or so it was thought. In 2009, the ALI withdrew support for its template and said it doesn’t work.
In this, the sixth lecture, we will consider the state of the law regarding capital punishment in the United States generally and I will describe the current status of executions in Kentucky. 297 words.
Allow me to read a letter from the February 2010 edition of the Los Angeles Times by the president emeritus of the American Law Institute):
Los Angeles Times
The death penalty -- it's unworkable
The American Law Institute, instrumental in structuring the model statutes on which most death sentences are based, has withdrawn its support of such laws.
By Michael Traynor
February 4, 2010
Nearly 50 years ago, as concern grew in the country about the fairness of death penalty laws, the American Law Institute published a "model statute" aimed at helping state lawmakers draft laws to ensure that death sentences were meted out fairly and consistently. Last fall, the institute withdrew its support for the model death penalty law. The decision was a striking repudiation from the very organization that provided the blueprint for death penalty laws in this country. The institute, with a membership of more than 4,000 lawyers, judges and law professors of the highest qualifications, is the leading independent organization in the United States producing scholarly work to clarify and improve the law. In the decade after the institute published its law, which was part of a comprehensive model penal code, the statute became the prototype for death penalty laws across the United States. Some parts of the model -- such as the categorical exclusion of the death penalty for crimes other than murder and for people of limited mental abilities -- withstood the test of time. But the core of the statute, which created a list of factors to guide judges and jurors deciding when to sentence someone to death, has proved unworkable and fostered confusion and injustice. Now, after searching analysis by our country's top legal minds, the institute has concluded that the system it created does not work and cannot be fixed. It concluded that we cannot devise a death penalty system that will ensure fairness in process or outcome, or even that innocent people will not be executed. I am speaking for myself, not as a representative of the institute, but I can say with certainty that the institute did not reach these conclusions lightly. It commissioned a special committee and a scholarly study, heard various viewpoints and debated the issues extensively. A strong consensus emerged that capital punishment in this country is riddled with pervasive problems. The death penalty cannot balance the need for consistency in sentencing with the need for individualized determinations. Its administration is unequal across racial groups. There is a grave lack of resources for defense lawyers. The law is distorted by the politics of judicial elections, and it consumes a disproportionate share of public resources. California's death penalty exemplifies these problems. Portions of California's law were copied from the institute's model statute. The system now is on the verge of collapse. There are about 700 people on death row in California, and it can take 25 years for mandatory appeals to be completed. Since 1978, California has executed 13 prisoners, while 72 have died of old age or other causes. Resources are woefully inadequate. More than half of the people on death row don't have access to a constitutionally-required lawyer. A statewide commission found that there remains a serious risk that the state will execute an innocent person. And then there is the cost. Housing a prisoner on death row costs taxpayers $90,000 a year more than if that prisoner were held in another type of high-security prison. The total additional cost for housing all of California's death row inmates is more than $60 million a year. These problems are entrenched in the death penalty system, both in California and nationwide. The cumulative result: Executions remain as random as lightning strikes, or more so, and that is the very problem the institute's model statute intended to fix. In addition, across the country, at least 139 individuals have been released from death row after establishing their innocence. The institute's action comes at a time of widespread reevaluation of capital punishment. Fifteen states have abandoned capital punishment, including three in the last three years. In 2009, the country saw the lowest number of death sentences since the death penalty was reinstated in 1976. We now have decades of experience, which the institute lacked when it proposed its model statute almost 50 years ago. Life without the possibility of parole, now an important alternative in nearly every state, was then virtually untried. To the extent that society needs to punish murderers severely, it can do so far more effectively using tough yet fair prison sentences rather than through an ineffective and extravagant death penalty. The American Law Institute could have chosen to do nothing. But having laid the intellectual and legal groundwork for the modern death penalty, it concluded that it had a responsibility to act now that the system's fatal flaws have fully emerged. The withdrawal of the model death penalty statute recognizes that it is impossible to administer the death penalty consistently and fairly, and it therefore should not remain a punishment option in this country. The institute could no longer play a role in legitimizing a failed system. How much longer can any of us? Michael Traynor is president emeritus of the American Law Institute and lives in Berkeley
4. Lecture #6: Student Assignments for Class # 6: Capital Punishment
Lecture #6: Capital Punishment
[February 20, 2012]
___________________________________
Assignments for Class #5:
1. Furman v. Georgia 408 U.S. 238 (1972).
2. Gregg v. Georgia 428 U.S. 153 (1975); Woodson v. North Carolina 428 U.S. 280 (1976).
3. Herrera v. Collins, 506 U.S. 390 (1993) (Justice Blackmun dissenting).
4. Callins v. Collins (Justice Blackmun dissenting) 510 U.S. 1141 (1994).
5. Atkins v. Virginia 536 U.S. 304 (2002). Give special attention to the METHODS for determining the evolving standard of decency. Is this a template for law and social policy working together?
6. Roper v. Simmons 543 U.S. 551 (2005).
7. Kennedy v. Louisiana 554 U.S. 47 (2008).
8. Baze v. Rees 553 U.S. 35 (2008) see opinions of Justices Stevens, Scalia and Thomas on cruel and unusual punishment.
In republican government, it is in the nature of the constitution for judges to follow the letter of the law Montesquieu, The Spirit of the Laws (1748) page 76.
End
2-20-12
Class Assignments: Death Penalty
1. Furman v. Georgia 408 U. S. 238 ; Josh Porter (please brief opinion by Justice Douglas), Jenn S ( please brief opinion by Justice Stewart), Lu ( please brief Justice Whites’ opinion); John Brown (please brief Justice Marshall’s view), Darrick (please brief Justice Blackmun’s opinion in dissent), Chris ( please brief Justice Powell’s views), Zach ( please cover Justice Rehnquist’s opinion).
2. Gregg v. Georgia 428 U. S. 153 ( and Woodson v. North Carolina 428 U.S. 280) Jonathan Raymond, please brief the majority ruling and if you can, tell us what role the American Law Institute played in the outcome; Jillian Smith, please summarize the other opinions by Justices Stevens, Rehnquist, White, Brennan and Marshall ( is death different?);
3. Herrera v. Collins, 506 US 390 ( is actual innocence a reason to overturn the death sentence?) Chris Robert, brief the majority opinion. Nicholas, please brief Justice O’Connor’s concurring opinion; Jasmine, please cover Justice Blackmun’s dissent.
4. Callins v Collins; Brandi Melvin: cover Justice Blackmun’s dissent.
5. Atkins v. Virginia 536 U.S. 304: Cathy Barnes (brief the majority opinion and try to extract the exact method(s) used to determine the standard of decency); Paige Hamby, brief the dissents, especially Justice Rehnquist and the use of foreign law.
6. Stephanie Carr: brief Roper v. Simmons, 543 U.S. 551 (2005) was a decision in which the Supreme Court of the United States held that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18. The 5-4 decision overruled the Court's prior ruling upholding such sentences on offenders above or at the age of 16, in Stanford v. Kentucky, 492 U.S. 361 (1989), overturning statutes in 25 states that had the penalty set lower. Nicole Maddox, please brief the dissents.
7. Brittany: Brief the majority opinion in Kennedy v. Louisiana 554 U.S. 407: Cassle, brief the dissent by Justice Alioto. Also, the Senator David Vitter Resolution regarding this case AND the factual error and Justice Alioto’s quote: On October 1, 2008, however, the Supreme Court declined to revisit its decision that imposing the death penalty for child rape is unconstitutional. Concurring in the denial of rehearing, Justice Scalia explained his views against rehearing by denying the relevance of the factual error, writing that "the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.[18]
8. Jacob Giesecke February 4, 2010 letter to the Los Angeles Times by Michael Traynor, president emeritus of the American Law Institute.
(Case Material Summaries are from Wikipedia):
1. Furman v. Georgia, 408 U.S. 238 (1972) was a United States Supreme Court decision that ruled on the requirement for a degree of consistency in the application of the death penalty. The case led to a de facto moratorium on capital punishment throughout the United States, which came to an end when Gregg v. Georgia was decided in 1976.
In a 5-4 decision, the Court's one-page per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. Each of the justices filed their own concurrence or dissent; none were able to gather more than three other justices to support them. Only Justices Brennan and Marshall believed the death penalty to be unconstitutional in all instances. Other concurrences focused on the arbitrary nature with which death sentences have been imposed, often indicating a racial bias against black defendants. The Court's decision forced states and the national legislature to rethink their statutes for capital offenses to assure that the death penalty would not be administered in a capricious or discriminatory manner.[1] Wikipedia.
2. Gregg v. Georgia 428 U. S. 153 (and Woodson v. North Carolina 428 U.S. 280) Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 (1976), reaffirmed the United States Supreme Court's acceptance of the use of the death penalty in the United States, upholding, in particular, the death sentence imposed on Troy Leon Gregg. Referred to by a leading scholar as the July 2 Cases[1] and elsewhere referred to by the lead case Gregg, the Supreme Court set forth the two main features that capital sentencing procedures must employ in order to comport with the Eighth Amendment bar on "cruel and unusual punishments." The decision essentially overturned the de facto moratorium on the death penalty imposed by the Court in its 1972 decision in Furman v. Georgia 408 U.S. 238 (1972). Furman, Justice Potter Stewart remarked that the death penalty was "cruel and unusual in the same way that being struck by lightning is cruel and unusual." The Court set out two broad guidelines that legislatures must follow in order to craft a constitutional capital sentencing scheme:
First, the scheme must provide objective criteria to direct and limit the death sentencing discretion. The objectiveness of these criteria must in turn be ensured by appellate review of all death sentences.
Second, the scheme must allow the sentencer (whether judge or jury) to take into account the character and record of an individual defendant.
In Gregg, Proffitt, and Jurek, the Court found that the capital sentencing schemes of Georgia, Florida, and Texas, respectively, met these criteria; whereas in Woodson and Roberts, the Court found that the sentencing schemes of North Carolina and Louisiana did not. Wikipedia.
Other views expressed in these cases
Justices Brennan and Marshall expressed their views, which they also articulated in Furman, that the death penalty does not deter crime and that our society has evolved to the point that it is no longer an appropriate vehicle for expressing retribution. In every subsequent capital case that would come before the Court during their tenures, they would refer to their opinions in Gregg in support of their vote against the death penalty.
Justice White countered that capital punishment cannot be unconstitutional because the Constitution expressly mentions it and because two centuries of Court decisions assumed that it was constitutional. Furthermore, for White the judgment of the legislatures of 35 states was paramount, and suggested that the punishment should remain in use. He also felt that the Court should defer to a state legislature's response to the problem of juror response to the prospect of capital punishment, rather than dictate that the Eighth Amendment requires a particular response.
White also disagreed that the Constitution required a separate penalty hearing before imposing the death penalty. "Even if the character of the accused must be considered under the Eighth Amendment, surely a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively establishes that the criminal's character is such that he deserves death." He also saw no difference between Louisiana's definition of first-degree murder and Texas's definition of capital murder.
Justice Rehnquist would have upheld North Carolina's and Louisiana's mandatory death penalties. He disputed the historical evidence adduced in support of the claim that American juries dislike mandatory death penalties. He also felt that the Court's decisions had an analytical flaw. The Court had struck down the mandatory death penalty because it took away discretion from the jury. Yet, Rehnquist pointed out, a jury in Georgia could reject the death penalty for no reason at all. Thus, Georgia's scheme did not alleviate the concerns articulated in Furman about the arbitrariness of the death penalty any more than North Carolina's ignored them. He also disputed whether the appellate review of death sentences inherent in the systems the Court had approved could truly ensure that each death sentence satisfied those concerns. He finally took issue with the idea that the fact that "death is different" requires any extra safeguards in the sentencing process.
Justice John Paul Stevens remarked in October 2010 that his vote in the decision was regrettable. Stevens told the Washington Post that his vote was made with respect for precedent within the court that held capital punishment to be constitutional.
JONATHAN RAYMOND, THE Majority
JILLIAM SMITH, the other views
3. Herrera v. Collins, 506 US 390 Herrera v. Collins, 506 U.S. 390 (1993), is a case in which the Supreme Court of the United States (in a 6 to 3 decision) ruled that a claim that the Eighth Amendment's ban on cruel and unusual punishment prohibits the execution of one who is actually innocent is not ground for federal habeas relief. Chief Justice William Rehnquist’s majority opinion held that a claim of actual innocence based on newly discovered evidence did not state a ground for federal habeas relief. Herrera had claimed that, because the new evidence demonstrated innocence, his execution would violate the Eighth Amendment’s ban on cruel and unusual punishment which applied to the states through the Fourteenth Amendment. Rehnquist’s opinion noted that “[f]ew rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” Wikipedia.
Rehnquist’s opinion, although not explicitly holding that the Eighth Amendment does not prohibit executing an innocent person, emphasized that Herrera was not raising a constitutional violation. In discussing what relief Herrera would be entitled to were he to succeed on his claim of “actual innocence,” Rehnquist wrote, “Were petitioner to satisfy the dissent's ‘probable innocence’ standard…the District Court would presumably be required to grant a conditional order of relief, which would in effect require the State to retry petitioner 10 years after his first trial, not because of any constitutional violation which had occurred at the first trial, but simply because of a belief that in light of petitioner's new-found evidence a jury might find him not guilty at a second trial.”
Blackmun's Dissent
Justice Blackmun, joined by Justices Stevens and Souter, dissented. Blackmun believed that "[n]othing could be more contrary to contemporary standards of decency or more shocking to the conscience than to execute a person who is actually innocent." Blackmun would have remanded the case to the district court for a determination as to whether a hearing should be held and to resolve the merits of Herrera's claim of actual innocence.
Chastising the majority for its circumspection, Blackmun wrote, "We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced, but who, nonetheless, can prove his innocence with newly discovered evidence," and he took note of "the State of Texas' astonishing protestation to the contrary." Wikipedia.
CHRIS ROBERT Majority
NICOLAS LAUGHLIN, the Concurring Opinion by Justice O’Connor
JASMINE , Blackmun’s Dissent
4. Callins v Collins 510 U.S. 1141; Brandi Melvin: cover Justice Blackmun’s dissent. BRANDI MELVIN (this assignment will be the opening reading).
Justice Blackmun , dissenting.
On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing …..
Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, see Furman v. Georgia, 408 U.S. 238 (1972), and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake….To be fair, a capital sentencing scheme must treat each person convicted of a capital offense with that "degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U. S., at 605 (plurality opinion). ……
On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow. Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well. Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey v. Kemp, 481 U.S. 279, 313, n. 37 (1987), the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. [n.1] Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants "deserve" to die?--cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, ___ U. S. ___ (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, ___ U. S. ___ (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. ___ (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. [n.2]
….A year later, the Court reversed its course completely in Furman v. Georgia, 408 U.S. 238 (1972) (per curiam, with each of the nine Justices writing separately). The concurring Justices argued that the glaring inequities in the administration of death, the standardless discretion wielded by judges and juries, and the pervasive racial and economic discrimination, rendered the death penalty, at least as administered, "cruel and unusual" within the meaning of the Eighth Amendment. Justice White explained that, out of the hundreds of people convicted of murder every year, only a handful were sent to their deaths, and that there was "no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." 408 U. S., at 313. If any discernible basis could be identified for the selection of those few who were chosen to die, it was "the constitutionally impermissible basis of race." Id., at 310 (Stewart, J., concurring).
I dissented in Furman. Despite my intellectual, moral, and personal objections to the death penalty, I refrained from joining the majority because I found objectionable the Court's abrupt change of position in the single year that had passed since McGautha. While I agreed that the Eighth Amendment's prohibition against cruel and unusual punishments " `may acquire meaning as public opinion becomes enlightened by a humane justice,' " 408 U. S., at 409, quoting Weems v. United States, 217 U.S. 349, 378 (1910), I objected to the "suddenness of the Court's perception of progress inthe human attitude since decisions of only a short while ago." 408 U. S., at 410. Four years after Furman was decided, I concurred in the judgment in Gregg v. Georgia, 428 U.S. 153 (1976), and its companion cases which upheld death sentences rendered under statutes passed after Furman was decided. See Proffitt v. Florida, 428 U.S. 242, 261 (1976), and Jurek v. Texas, 428 U.S. 262, 279 (1976). Cf. Woodson v. North Carolina, 428 U.S. 280, 307 (1976), and Roberts v. Louisiana, 428 U.S. 325, 363 (1976).
There is little doubt now that Furman's essential holding was correct. Although most of the public seems to desire, and the Constitution appears to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it may not be administered at all. Eddings v. Oklahoma, 455 U. S., at 112. I never have quarreled with this principle; in my mind, the real meaning of Furman's diverse concurring opinions did not emerge until some years after Furman was decided. See Gregg v. Georgia, 428 U. S., at 189 (opinion of Stewart, Powell, and Stevens, JJ.) ("Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action"). Since Gregg, I faithfully have adhered to the Furman holding and have come to believe that it is indispensable to the Court's Eighth Amendment jurisprudence. Wikipedia.
5. Atkins v. Virginia 536 U.S. 304: Atkins v. Virginia, 536 U.S. 304 (2002), is a case in which the Supreme Court of the United States ruled 6-3 that executing the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishments. THE FOUR CRITERIA for DETERMINING THE STANDARD OF DECENCY. The Eighth Amendment to the United States Constitution forbids cruel and unusual punishments. In the ruling it was stated that, unlike other provisions of the Constitution, the Eighth Amendment should be interpreted in light of the "evolving standards of decency that mark the progress of a maturing society." The best evidence on this score was determined to be the judgment of state legislatures. In dissent, Justices Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist argued that in spite of the increased number of states which had outlawed the execution of the mentally retarded, there was no clear national consensus, and that even given if there were, there was no basis in the Eighth Amendment for using such measures of opinion to determine what is "cruel and unusual". Justice Antonin Scalia commented in his dissent that "seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members". The citing of an amicus brief from the European Union also drew criticism from Chief Justice Rehnquist, who denounced the "Court's decision to place weight on foreign laws." Wikipedia.
CATHY BARNES, Majority
PAiGE HAMBY, Dissents
6. Roper v. Simmons 543 U.S. 551 (2005) Roper v. Simmons, 543 U.S. 551 (2005) was a decision in which the Supreme Court of the United States held that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18. The 5-4 decision overruled the Court's prior ruling upholding such sentences on offenders above or at the age of 16, in Stanford v. Kentucky, 492 U.S. 361 (1989), overturning statutes in 25 states that had the penalty set lower. "evolving standards of decency" test, the Court held that it was cruel and unusual punishment to execute a person who was under the age of 18 at the time of the murder. Writing for the majority, Justice Kennedy cited a body of sociological and scientific research [1] that..
Justice Scalia wrote a dissent joined by Chief Justice Rehnquist and Justice Thomas. Justice O’Connor also wrote a dissenting opinion. The dissents put into question whether a “national consensus” had indeed formed among the state laws, citing the fact that at the time of the ruling only 18 of 38 death penalty states (47%) prohibited the execution of juveniles (the other 12 states executed neither juveniles nor adults).
However, the primary objection of the Court's two originalists, Justices Scalia and Thomas, was whether such a consensus was relevant. Justice Scalia argued that the appropriate question was not whether there was presently a consensus against the execution of juveniles, but rather whether the execution of such defendants was considered cruel and unusual at the point at which the Bill of Rights was ratified. Wikipedia.
STEPHANIE CARRR, the Majority
NICOLE MADDOX, the Dissents
7. Kennedy v. Louisiana, 554 U.S. 407 (2008) was a landmark decision by the Supreme Court of the United States that held that the Eighth Amendment's Cruel and Unusual Punishment Clause did not permit a state to punish the crime of rape of a child with the death Justice Scalia wrote a dissent joined by Chief Justice Rehnquist and Justice Thomas. Justice O’Connor also wrote a dissenting opinion. The dissents put into question whether a “national consensus” had indeed formed among the state laws, citing the fact that at the time of the ruling only 18 of 38 death penalty states (47%) prohibited the execution of juveniles (the other 12 states executed neither juveniles nor adults).
penalty; more broadly, the power of the state to impose the death penalty against an individual for committing a crime that did not result in the death of the victim is now limited to crimes against the state (i.e., espionage, treason). Justice Alito sharply criticized the majority for usurping the role of the legislature. Alito argued that Kennedy's rationale for defining national consensus was flawed, because the previous Coker decision had "stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency." In this Alito followed former Chief Justice Warren Burger, who had dissented from Coker because it, in his view, prevented a full debate over the uses of the recently-reinstated death penalty. In this vein, Alito also argued that "The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society."[13] In January 2009, U.S. Senator for Louisiana David Vitter introduced S. Res. 4, "A resolution expressing the sense of the Senate that the Supreme Court of the United States erroneously decided Kennedy v. Louisiana, No. 07-343 (2008), and that the eighth amendment to the Constitution of the United States allows the imposition of the death penalty for the rape of a child." This resolution was never voted upon by the full Senate and died in committee when the 111th Congress adjourned.[21] On October 1, 2008, however, the Supreme Court declined to revisit its decision that imposing the death penalty for child rape is unconstitutional. Concurring in the denial of rehearing, Justice Scalia explained his views against rehearing by denying the relevance of the factual error, writing that "the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.[18]. Wikipedia.
BRITTANY HAMPTON, the Majority
CASSLE KENNEDY, the Dissents
8. Letter from the February 2010 edition of the Los Angeles Times by the president emeritus of the American Law Institute 297 words (Traynor letter is 794 words):
Los Angeles Times
The death penalty -- it's unworkable
The American Law Institute, instrumental in structuring the model statutes on which most death sentences are based, has withdrawn its support of such laws.
By Michael Traynor
February 4, 2010
Nearly 50 years ago, as concern grew in the country about the fairness of death penalty laws, the American Law Institute published a "model statute" aimed at helping state lawmakers draft laws to ensure that death sentences were meted out fairly and consistently. Last fall, the institute withdrew its support for the model death penalty law. The decision was a striking repudiation from the very organization that provided the blueprint for death penalty laws in this country. The institute, with a membership of more than 4,000 lawyers, judges and law professors of the highest qualifications, is the leading independent organization in the United States producing scholarly work to clarify and improve the law. In the decade after the institute published its law, which was part of a comprehensive model penal code, the statute became the prototype for death penalty laws across the United States. Some parts of the model -- such as the categorical exclusion of the death penalty for crimes other than murder and for people of limited mental abilities -- withstood the test of time. But the core of the statute, which created a list of factors to guide judges and jurors deciding when to sentence someone to death, has proved unworkable and fostered confusion and injustice. Now, after searching analysis by our country's top legal minds, the institute has concluded that the system it created does not work and cannot be fixed. It concluded that we cannot devise a death penalty system that will ensure fairness in process or outcome, or even that innocent people will not be executed. I am speaking for myself, not as a representative of the institute, but I can say with certainty that the institute did not reach these conclusions lightly. It commissioned a special committee and a scholarly study, heard various viewpoints and debated the issues extensively. A strong consensus emerged that capital punishment in this country is riddled with pervasive problems. The death penalty cannot balance the need for consistency in sentencing with the need for individualized determinations. Its administration is unequal across racial groups. There is a grave lack of resources for defense lawyers. The law is distorted by the politics of judicial elections, and it consumes a disproportionate share of public resources. California's death penalty exemplifies these problems. Portions of California's law were copied from the institute's model statute. The system now is on the verge of collapse. There are about 700 people on death row in California, and it can take 25 years for mandatory appeals to be completed. Since 1978, California has executed 13 prisoners, while 72 have died of old age or other causes. Resources are woefully inadequate. More than half of the people on death row don't have access to a constitutionally-required lawyer. A statewide commission found that there remains a serious risk that the state will execute an innocent person. And then there is the cost. Housing a prisoner on death row costs taxpayers $90,000 a year more than if that prisoner were held in another type of high-security prison. The total additional cost for housing all of California's death row inmates is more than $60 million a year. These problems are entrenched in the death penalty system, both in California and nationwide. The cumulative result: Executions remain as random as lightning strikes, or more so, and that is the very problem the institute's model statute intended to fix. In addition, across the country, at least 139 individuals have been released from death row after establishing their innocence. The institute's action comes at a time of widespread reevaluation of capital punishment. Fifteen states have abandoned capital punishment, including three in the last three years. In 2009, the country saw the lowest number of death sentences since the death penalty was reinstated in 1976. We now have decades of experience, which the institute lacked when it proposed its model statute almost 50 years ago. Life without the possibility of parole, now an important alternative in nearly every state, was then virtually untried. To the extent that society needs to punish murderers severely, it can do so far more effectively using tough yet fair prison sentences rather than through an ineffective and extravagant death penalty. The American Law Institute could have chosen to do nothing. But having laid the intellectual and legal groundwork for the modern death penalty, it concluded that it had a responsibility to act now that the system's fatal flaws have fully emerged. The withdrawal of the model death penalty statute recognizes that it is impossible to administer the death penalty consistently and fairly, and it therefore should not remain a punishment option in this country. The institute could no longer play a role in legitimizing a failed system. How much longer can any of us? Michael Traynor is president emeritus of the American Law Institute and lives in Berkeley
Following are Wikipedia summaries:
In Gregg v. Georgia (1976) the Court majority upheld death‐sentencing when the legislature created statutory standards to guide the sentencing body's discretion in a separate trial where additional evidence relevant to sentencing could be adduced. A companion case, Woodson v. North Carolina, rejected a mandatory death penalty for all capital murderers, finding the Eighth Amendment evolving standards of decency required the individualized consideration of aggravating and mitigating circumstances. Ring v. Arizona (2002) required that juries, not judges, determine the presence of the aggravating factors that made one death‐eligible, and that these factors be proven beyond a reasonable doubt. Before Furman, most executions had been for murder, some for rape, and a few for kidnapping, treason, espionage, and aircraft piracy. In Coker v. Georgia (1977), the Court barred the death penalty for rape of an adult woman. Today, nearly all death sentences are imposed for homicide. Looking to objective indicators of the evolving standards of decency, the Court has reserved the death penalty for those most culpable offenders: The actual killer, or the accomplice who attempts to kill, intends to kill, or is a major participant in an accompanying felony and possesses a reckless indifference to human life, is death‐eligible (Tison v. Arizona, 1987). But the mentally retarded (Atkins v. Virginia, 2002), the insane (Ford v. Wainwright, 1986), and those under sixteen at the time of the offense (Thompson v. Oklahoma, 1988) are not. Between the Gregg decision in 1976 and 1 July 2003, there were 882 persons executed in 33 jurisdictions. Over three‐fourths of these executions occurred below the Mason‐Dixon line, led by Texas (311) and Virginia (89). The pace of executions rose sharply in the 1990s, perhaps in part as a consequence of the 1996 Anti‐Terrorism and Effective Death Penalty Act's trimming back of federalhabeas corpus relief mechanisms. At midyear 2003, over 3,500 persons awaited execution: 98 percent male, and 54 percent of minority race. Significant decisions in 2002 and in 2003 (regarding ineffective assistance of penalty phase counsel,Wiggins v. Smith), indicate the Court majority is willing to exert controls over the development of capital punishment policies and procedures that they had largely left to state legislatures, courts, and governors. Still, since many state judges and all the others face electoral challenges, conventional political processes will continue to play a major role in shaping future death penalty polices, including possible moratorium measures.
In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."
1. The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
2. "A severe punishment that is obviously inflicted in wholly arbitrary fashion."
3. "A severe punishment that is clearly and totally rejected throughout society."
4. "A severe punishment that is patently unnecessary."
Continuing, he wrote that he expected that no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a "cumulative" analysis of the implication of each of the four principles.
The Supreme Court declared executing the mentally handicapped in Atkins v. Virginia, 536 U.S. 304 (2002), and executing people who were under age 18 in Roper v. Simmons, 543 U.S. 551 (2005), to be violations of the Eighth Amendment, regardless of the crime.
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The case of Weems v. United States, 217 U.S. 349 (1910), marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual.[12] The Court overturned a punishment called cadena temporal, which mandated "hard and painful labor," shackling for the duration of incarceration, and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment.[13] However, others have written that "it is hard to view Weems as announcing a constitutional requirement of proportionality."[14]
In Trop v. Dulles, 356 U.S. 86 (1958), the Supreme Court held that punishing a natural-born citizen for a crime by taking away his citizenship is unconstitutional, being "more primitive than torture" because it involved the "total destruction of the individual's status in organized society." The ruling's reference to "evolving standards of decency" is frequently cited precedent in the court's interpretation of the Eighth Amendment's prohibition on "cruel and unusual punishment."
Death penalty for rape
In Coker v. Georgia, 433 U.S. 584 (1977), the Court declared that the death penalty was unconstitutionally excessive for rape of a woman and, by implication, for any crime where a death does not occur. The majority in Coker stated that "rape by definition does not include the death of or even the serious injury to another person." The dissent countered that the majority "takes too little account of the profound suffering the crime imposes upon the victims and their loved ones." The dissent also characterized the majority as "myopic" for only considering legal history of "the past five years."
On June 25, 2008, in Kennedy v. Louisiana,[16] the Court returned to the subject of its decision in Coker and ruled that the death penalty was excessive for child rape "where the victim’s life was not taken."[17] The Supreme Court failed to note a federal law, which applies to military court-martial proceedings, providing for the death penalty in cases of child rape.[18] On October 1, 2008, the Court declined to reconsider its opinion in this case, but did amend the majority and dissenting opinions in order to acknowledge that federal law. Justice Scalia (joined by Chief Justice Roberts) wrote in dissent that "the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.'"[19]
Special procedures for death penalty cases
The first significant general challenge to capital punishment that reached the Supreme Court was the case of Furman v. Georgia, 408 U.S. 238 (1972). In a 5-4 decision, the Supreme Court overturned the death sentences of Furman for murder, as well as two other defendants for rape. Of the five justices voting to overturn the death penalty, two found capital punishment to be unconstitutionally cruel and unusual, while three found that the statutes at issue were implemented in a random and capricious fashion, discriminating against blacks and the poor. Furman v. Georgia did not hold — even though it is sometimes claimed that it did — that capital punishment is per se unconstitutional.[20]
States with capital punishment rewrote their laws to address the Supreme Court's decision, and the Court then revisited the issue in a murder case: Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg, the Court found, in a 7-2 ruling, that Georgia's new death penalty laws passed Eighth Amendment scrutiny: the statutes provided a bifurcated trial in which guilt and sentence were determined separately; and, the statutes provided for "specific jury findings" followed by state supreme court review comparing each death sentence "with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate." Because of the Gregg decision, executions resumed in 1977.
Some states have passed laws imposing mandatory death penalties in certain cases. The Supreme Court found these laws to be unconstitutional under the Eighth Amendment, in the murder case of Woodson v. North Carolina, 428 U.S. 280 (1976), because these laws remove discretion from the trial judge to make an individualized determination in each case.[21] Other statutes specifying factors for courts to use in making their decisions have been upheld. Some have not: in Godfrey v. Georgia, 446 U.S. 420 (1980), the Supreme Court overturned a sentence based upon a finding that a murder was "outrageously or wantonly vile, horrible, and inhuman," as it deemed that any murder may be reasonably characterized in this manner. Similarly, in Maynard v. Cartwright, 486 U.S. 356 (1988), the Court found that an "especially heinous, atrocious or cruel" standard in a homicide case was too vague. However, the vagueness of this language depends on how lower courts interpret it. In Walton v. Arizona, 497 U.S. 639 (1990), the Court found that the phrase "especially heinous, cruel, or depraved" was not vague in a murder case, because the state supreme court had expounded on its meaning.[22]
The Court has generally held that death penalty cases require extra procedural protections. As the Court said in Herrera v. Collins, 506 U.S. 390 (1993), which involved the murder of a police officer, "the Eighth Amendment requires increased reliability of the process..."
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Evolving standards of decency
In Trop v. Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren said: "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Subsequently, the Court has looked to societal developments, as well as looking to its own independent judgment, in determining what are those "evolving standards of decency".[16] The Court has then applied those standards not only to say what punishments are inherently cruel, but also to say what punishments that are not inherently cruel are nevertheless cruelly disproportionate to the offense in question.[16]
An example of the "evolving standards" idea can be seen in Jackson v. Bishop (8th Cir., 1968), an Eighth Circuit decision outlawing corporal punishment in the Arkansas prison system.
The "evolving standards" test is not without its scholarly critics. For example, Professor John Stinneford asserts that the "evolving standards" test misinterprets the Eighth Amendment:
The Framers of the Bill of Rights understood the word “unusual” to mean “contrary to long usage.” Recognition of the word’s original meaning will precisely invert the “evolving standards of decency” test, and ask the Court to compare challenged punishments with the longstanding principles and precedents of the common law, rather than shifting and nebulous notions of “societal consensus” and contemporary “standards of decency.”[23]
On the other hand, Dennis Baker has asserted that the evolving standards of decency test accords with the moral purpose of the Eighth Amendment and the Framer’s intent that the right be used to prevent citizens being subjected to all forms of unjust and disproportionate punishments.[24] As Professor John Bessler points out, "An Essay on On Crimes and Punishments," written by Cesare Beccaria in the 1760s, advocated for proportionate punishments. Many of the Founding Fathers, including Thomas Jefferson and James Madison, read Beccaria's treatise and were influenced by it.[25]
But on February 22, 1994, less than two months before announcing his retirement, Blackmun announced that he now saw the death penalty as always and in all circumstances unconstitutional by issuing a dissent from the Court's refusal to hear a routine death penalty case (Callins v. Collins), declaring that "[f]rom this day forward, I no longer shall tinker with the machinery of death." Subsequently, adopting the practice begun by Justices Brennan and Marshall, he issued a dissent from denial of certiorari in every death penalty case, citing and reiterating his Callins dissent. As Linda Greenhouse and others have reported, Blackmun's law clerks prepared what would become the Callins dissent well in advance of the case coming before the Court; Blackmun's papers indicate that work began on the dissent in the summer of 1993, and in a memo preserved in Blackmun's papers, the clerk writing the dissent wrote Blackmun that
Lecture # 6: Law & Social Policy: The Death Penalty
1. Reading (536 words) (Brandi Melvin)
Callins v. Collins, 510 U.S. 1141 (1994)
Bruce Edwin Callins will be executed [tomorrow] by the state of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses...will behold Callins...strapped to a gurney, seconds away from extinction. Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the...task of determining whether some human being is to live or die.
We hope...that the defendant whose life is at risk will be represented by...someone who is inspired by the awareness that a less-than-vigorous defense...could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge...committed to the protection of defendants' rights...
But even if we can feel confident that these actors will fulfill their roles...our collective conscience will remain uneasy. Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency or not at all, and despite the effort of the states and courts to devise legal formulas and procedural rules to meet this...challenge, the death penalty remains fraught with arbitrariness, discrimination...and mistake...
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored...to develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies... Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness 'in the infliction of [death] is so plainly doomed to failure that it and the death penalty must be abandoned altogether.' (Godfrey v. Georgia, 1980) I may not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessen us all."
Supreme Court Justice Harry A. Blackmun, from an opinion dissenting from the Supreme Court's decision denying review in a Texas death penalty case, Callins v. Collins, Feb. 22, 1994.
2. Summary of Class #5: Tocqueville on Social and Political Issues (in 450 Words or Less)
In the first class we examined the Power of the People; the second, the Power of the Judiciary; the third tthe Power of the Legislature; the fourth the Power of the Executive Branch and in the fifth we reviewed social and political themes and issues treated by Tocqueville in his classic work, Democracy in America. Here’s what we’ve learned:
Equality, not freedom, is the basic creed of the new American civic religion. Personal liberty and religion became allied in the new world, working together to mold a new order for a new people who were practical, money loving, kind in the administration of the criminal code (as it relates to political prosecutions), addicted to comfort and order, and subject to the fetters of public opinion. Lawyers and judges play a special role in tempering the excesses of majority rule and a private press and independent judiciary are the most powerful institutions in America. Other points:
For Americans, their whole lives are spent as if in a game of chance, in a time of revolution or a day of battle.
Democracy in America (1835-1840) Alexis de Tocqueville: Key Points
TYRRANY OF MAJORITY 68, 71, 223-224, 287-305, 603, 747
INDIVIDUALISM: 683 (isolation), 589
ASSOCIATIONS 219-227, 223, 595-609, 700-702 811 (danger of factions)
MATERIALISM: 627-628
FREE PRESS 213, 222, 811-812
LAWYERS 307-315, 308, 309, 314
PUBLIC EDUCATION: 53-54, 65 (job oriented)
WAR 755-756, 768, 260 (the draft)
NEW SOLUTIONS for NEW DISORDER 816-817 (main idea of the book, main purpose of legislation)
KINDNESS 653 (Death Penalty)
DEMOCRACY 181 (main threats to), 294 (main complaint against), MAJORITY RULE 297 (effect on opinions), 290, 292 299 (no freedom of thought), 747 (public approval)
DEPOTISM OF THE FUTURE 805-806
FEAR OF DISORDER, LOVE OF COMFORT 788
LOVE OF MONEY 41, 64, 616-618, 627-628, 713, 721, 722, 788 and comfort, 618.
WOMEN: 687, 692, 696, 700
UPWARD MOBILITY 637
EQUALITY & FREEDOM: The Puritans established America's democratic social state of equality. They arrived equals in education and were all middle class. 67
RELIGION & LIBERTY: Tocqueville observes that they contributed a synthesis of religion and political liberty in America that was uncommon in Europe. 55-56
MANNERS, SOCIAL CONDITION: 319, 357, 328, 705 Tocqueville believed that the Puritans established the principle of sovereignty of the people in the Fundamental Orders of Connecticut. The American Revolution then popularized this principle, followed by the Constitutional Convention of 1787, which developed institutions to manage popular will. While Tocqueville speaks highly of the America's Constitution, he believes that the mores, or "habits of mind" of the American people play a more prominent role in the protection of freedom.
LEGISLATIVE POWER, fear of: 288, 304-305
JUDICIAL POWER 122, 314, 315 812
NEW ARISTOCRACY 645-648
MAIN OBJECTIVE OF LEGISLATION 49, 817
SOURCE OF LAWS 49, 57, 58, 71, 319, 335, 357, 362.
RACE 398-426
MAIN IDEA OF BOOK: 335, 816-817
TWO MOST IMPORTANT POWERS: Judicial and Free Press, 812.
292
298 words
The love of comfort has become the dominant taste of the nation. Tocqueville 618.
3. Lecture #6: The Death Penalty. DV: words. 5 minutes
Never was the death penalty more frequently prescribed and never more rarely enforced. [On the original 17th century Puritan codes in America] Tocqueville 49
No Country administers its criminal law with more kindness than the United States. While the English seem bent on carefully preserving in their penal legislation the bloody traces of the Middle Ages, the Americans have almost eliminated the death penalty from their codes. Tocqueville 653 (1840)
In 1972, the United States Supreme Court ruled that the death penalty as administered in the United States was unconstitutional. Several reasons were cited although none commanded a majority of votes by the Supreme Court Justices: it is fair to say that the animating themes of the decision are cruel and unusual punishment, arbitrary application, lack of procedural guidelines for juries that also allow for application of discretion at appropriate junctures. Only two justices believed that capital punishment had become unconstitutional as a matter of law, cruel and unusual punishment because of the evolving standard of decency discernible in actions of the legislature and jury sentencing decisions. One justice thought the death penalty was cruel and unusual because it was arbitrarily applied and seemed to be governed by the same laws that determined where lightening would strike. In this view, the death penalty is a macabre lottery system.
So, while the death penalty was effectively declared too broken to use in 1972, it was not regarded as too broke to fix. And by 1976, the Supreme Court declared it fixed for good and executions resumed soon thereafter with the execution of Gary Gilmore by firing squad. The main impetus for the fix came from the Model Penal Code designed by the American Law Institute. The MPC designed a model template that would guide the discretion of the jury in capital cases, bifurcate the guilt and sentencing trials and allow the jury to meld, mold and entwine objective criteria with discretion in a way that would satisfy the requirements of due process and equal protection of the law. Or so it was thought. In 2009, the ALI withdrew support for its template and said it doesn’t work.
In this, the sixth lecture, we will consider the state of the law regarding capital punishment in the United States generally and I will describe the current status of executions in Kentucky. 297 words.
Allow me to read a letter from the February 2010 edition of the Los Angeles Times by the president emeritus of the American Law Institute):
Los Angeles Times
The death penalty -- it's unworkable
The American Law Institute, instrumental in structuring the model statutes on which most death sentences are based, has withdrawn its support of such laws.
By Michael Traynor
February 4, 2010
Nearly 50 years ago, as concern grew in the country about the fairness of death penalty laws, the American Law Institute published a "model statute" aimed at helping state lawmakers draft laws to ensure that death sentences were meted out fairly and consistently. Last fall, the institute withdrew its support for the model death penalty law. The decision was a striking repudiation from the very organization that provided the blueprint for death penalty laws in this country. The institute, with a membership of more than 4,000 lawyers, judges and law professors of the highest qualifications, is the leading independent organization in the United States producing scholarly work to clarify and improve the law. In the decade after the institute published its law, which was part of a comprehensive model penal code, the statute became the prototype for death penalty laws across the United States. Some parts of the model -- such as the categorical exclusion of the death penalty for crimes other than murder and for people of limited mental abilities -- withstood the test of time. But the core of the statute, which created a list of factors to guide judges and jurors deciding when to sentence someone to death, has proved unworkable and fostered confusion and injustice. Now, after searching analysis by our country's top legal minds, the institute has concluded that the system it created does not work and cannot be fixed. It concluded that we cannot devise a death penalty system that will ensure fairness in process or outcome, or even that innocent people will not be executed. I am speaking for myself, not as a representative of the institute, but I can say with certainty that the institute did not reach these conclusions lightly. It commissioned a special committee and a scholarly study, heard various viewpoints and debated the issues extensively. A strong consensus emerged that capital punishment in this country is riddled with pervasive problems. The death penalty cannot balance the need for consistency in sentencing with the need for individualized determinations. Its administration is unequal across racial groups. There is a grave lack of resources for defense lawyers. The law is distorted by the politics of judicial elections, and it consumes a disproportionate share of public resources. California's death penalty exemplifies these problems. Portions of California's law were copied from the institute's model statute. The system now is on the verge of collapse. There are about 700 people on death row in California, and it can take 25 years for mandatory appeals to be completed. Since 1978, California has executed 13 prisoners, while 72 have died of old age or other causes. Resources are woefully inadequate. More than half of the people on death row don't have access to a constitutionally-required lawyer. A statewide commission found that there remains a serious risk that the state will execute an innocent person. And then there is the cost. Housing a prisoner on death row costs taxpayers $90,000 a year more than if that prisoner were held in another type of high-security prison. The total additional cost for housing all of California's death row inmates is more than $60 million a year. These problems are entrenched in the death penalty system, both in California and nationwide. The cumulative result: Executions remain as random as lightning strikes, or more so, and that is the very problem the institute's model statute intended to fix. In addition, across the country, at least 139 individuals have been released from death row after establishing their innocence. The institute's action comes at a time of widespread reevaluation of capital punishment. Fifteen states have abandoned capital punishment, including three in the last three years. In 2009, the country saw the lowest number of death sentences since the death penalty was reinstated in 1976. We now have decades of experience, which the institute lacked when it proposed its model statute almost 50 years ago. Life without the possibility of parole, now an important alternative in nearly every state, was then virtually untried. To the extent that society needs to punish murderers severely, it can do so far more effectively using tough yet fair prison sentences rather than through an ineffective and extravagant death penalty. The American Law Institute could have chosen to do nothing. But having laid the intellectual and legal groundwork for the modern death penalty, it concluded that it had a responsibility to act now that the system's fatal flaws have fully emerged. The withdrawal of the model death penalty statute recognizes that it is impossible to administer the death penalty consistently and fairly, and it therefore should not remain a punishment option in this country. The institute could no longer play a role in legitimizing a failed system. How much longer can any of us? Michael Traynor is president emeritus of the American Law Institute and lives in Berkeley
4. Lecture #6: Student Assignments for Class # 6: Capital Punishment
Lecture #6: Capital Punishment
[February 20, 2012]
___________________________________
Assignments for Class #5:
1. Furman v. Georgia 408 U.S. 238 (1972).
2. Gregg v. Georgia 428 U.S. 153 (1975); Woodson v. North Carolina 428 U.S. 280 (1976).
3. Herrera v. Collins, 506 U.S. 390 (1993) (Justice Blackmun dissenting).
4. Callins v. Collins (Justice Blackmun dissenting) 510 U.S. 1141 (1994).
5. Atkins v. Virginia 536 U.S. 304 (2002). Give special attention to the METHODS for determining the evolving standard of decency. Is this a template for law and social policy working together?
6. Roper v. Simmons 543 U.S. 551 (2005).
7. Kennedy v. Louisiana 554 U.S. 47 (2008).
8. Baze v. Rees 553 U.S. 35 (2008) see opinions of Justices Stevens, Scalia and Thomas on cruel and unusual punishment.
In republican government, it is in the nature of the constitution for judges to follow the letter of the law Montesquieu, The Spirit of the Laws (1748) page 76.
End
2-20-12
Class Assignments: Death Penalty
1. Furman v. Georgia 408 U. S. 238 ; Josh Porter (please brief opinion by Justice Douglas), Jenn S ( please brief opinion by Justice Stewart), Lu ( please brief Justice Whites’ opinion); John Brown (please brief Justice Marshall’s view), Darrick (please brief Justice Blackmun’s opinion in dissent), Chris ( please brief Justice Powell’s views), Zach ( please cover Justice Rehnquist’s opinion).
2. Gregg v. Georgia 428 U. S. 153 ( and Woodson v. North Carolina 428 U.S. 280) Jonathan Raymond, please brief the majority ruling and if you can, tell us what role the American Law Institute played in the outcome; Jillian Smith, please summarize the other opinions by Justices Stevens, Rehnquist, White, Brennan and Marshall ( is death different?);
3. Herrera v. Collins, 506 US 390 ( is actual innocence a reason to overturn the death sentence?) Chris Robert, brief the majority opinion. Nicholas, please brief Justice O’Connor’s concurring opinion; Jasmine, please cover Justice Blackmun’s dissent.
4. Callins v Collins; Brandi Melvin: cover Justice Blackmun’s dissent.
5. Atkins v. Virginia 536 U.S. 304: Cathy Barnes (brief the majority opinion and try to extract the exact method(s) used to determine the standard of decency); Paige Hamby, brief the dissents, especially Justice Rehnquist and the use of foreign law.
6. Stephanie Carr: brief Roper v. Simmons, 543 U.S. 551 (2005) was a decision in which the Supreme Court of the United States held that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18. The 5-4 decision overruled the Court's prior ruling upholding such sentences on offenders above or at the age of 16, in Stanford v. Kentucky, 492 U.S. 361 (1989), overturning statutes in 25 states that had the penalty set lower. Nicole Maddox, please brief the dissents.
7. Brittany: Brief the majority opinion in Kennedy v. Louisiana 554 U.S. 407: Cassle, brief the dissent by Justice Alioto. Also, the Senator David Vitter Resolution regarding this case AND the factual error and Justice Alioto’s quote: On October 1, 2008, however, the Supreme Court declined to revisit its decision that imposing the death penalty for child rape is unconstitutional. Concurring in the denial of rehearing, Justice Scalia explained his views against rehearing by denying the relevance of the factual error, writing that "the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.[18]
8. Jacob Giesecke February 4, 2010 letter to the Los Angeles Times by Michael Traynor, president emeritus of the American Law Institute.
(Case Material Summaries are from Wikipedia):
1. Furman v. Georgia, 408 U.S. 238 (1972) was a United States Supreme Court decision that ruled on the requirement for a degree of consistency in the application of the death penalty. The case led to a de facto moratorium on capital punishment throughout the United States, which came to an end when Gregg v. Georgia was decided in 1976.
In a 5-4 decision, the Court's one-page per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. Each of the justices filed their own concurrence or dissent; none were able to gather more than three other justices to support them. Only Justices Brennan and Marshall believed the death penalty to be unconstitutional in all instances. Other concurrences focused on the arbitrary nature with which death sentences have been imposed, often indicating a racial bias against black defendants. The Court's decision forced states and the national legislature to rethink their statutes for capital offenses to assure that the death penalty would not be administered in a capricious or discriminatory manner.[1] Wikipedia.
2. Gregg v. Georgia 428 U. S. 153 (and Woodson v. North Carolina 428 U.S. 280) Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 (1976), reaffirmed the United States Supreme Court's acceptance of the use of the death penalty in the United States, upholding, in particular, the death sentence imposed on Troy Leon Gregg. Referred to by a leading scholar as the July 2 Cases[1] and elsewhere referred to by the lead case Gregg, the Supreme Court set forth the two main features that capital sentencing procedures must employ in order to comport with the Eighth Amendment bar on "cruel and unusual punishments." The decision essentially overturned the de facto moratorium on the death penalty imposed by the Court in its 1972 decision in Furman v. Georgia 408 U.S. 238 (1972). Furman, Justice Potter Stewart remarked that the death penalty was "cruel and unusual in the same way that being struck by lightning is cruel and unusual." The Court set out two broad guidelines that legislatures must follow in order to craft a constitutional capital sentencing scheme:
First, the scheme must provide objective criteria to direct and limit the death sentencing discretion. The objectiveness of these criteria must in turn be ensured by appellate review of all death sentences.
Second, the scheme must allow the sentencer (whether judge or jury) to take into account the character and record of an individual defendant.
In Gregg, Proffitt, and Jurek, the Court found that the capital sentencing schemes of Georgia, Florida, and Texas, respectively, met these criteria; whereas in Woodson and Roberts, the Court found that the sentencing schemes of North Carolina and Louisiana did not. Wikipedia.
Other views expressed in these cases
Justices Brennan and Marshall expressed their views, which they also articulated in Furman, that the death penalty does not deter crime and that our society has evolved to the point that it is no longer an appropriate vehicle for expressing retribution. In every subsequent capital case that would come before the Court during their tenures, they would refer to their opinions in Gregg in support of their vote against the death penalty.
Justice White countered that capital punishment cannot be unconstitutional because the Constitution expressly mentions it and because two centuries of Court decisions assumed that it was constitutional. Furthermore, for White the judgment of the legislatures of 35 states was paramount, and suggested that the punishment should remain in use. He also felt that the Court should defer to a state legislature's response to the problem of juror response to the prospect of capital punishment, rather than dictate that the Eighth Amendment requires a particular response.
White also disagreed that the Constitution required a separate penalty hearing before imposing the death penalty. "Even if the character of the accused must be considered under the Eighth Amendment, surely a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively establishes that the criminal's character is such that he deserves death." He also saw no difference between Louisiana's definition of first-degree murder and Texas's definition of capital murder.
Justice Rehnquist would have upheld North Carolina's and Louisiana's mandatory death penalties. He disputed the historical evidence adduced in support of the claim that American juries dislike mandatory death penalties. He also felt that the Court's decisions had an analytical flaw. The Court had struck down the mandatory death penalty because it took away discretion from the jury. Yet, Rehnquist pointed out, a jury in Georgia could reject the death penalty for no reason at all. Thus, Georgia's scheme did not alleviate the concerns articulated in Furman about the arbitrariness of the death penalty any more than North Carolina's ignored them. He also disputed whether the appellate review of death sentences inherent in the systems the Court had approved could truly ensure that each death sentence satisfied those concerns. He finally took issue with the idea that the fact that "death is different" requires any extra safeguards in the sentencing process.
Justice John Paul Stevens remarked in October 2010 that his vote in the decision was regrettable. Stevens told the Washington Post that his vote was made with respect for precedent within the court that held capital punishment to be constitutional.
JONATHAN RAYMOND, THE Majority
JILLIAM SMITH, the other views
3. Herrera v. Collins, 506 US 390 Herrera v. Collins, 506 U.S. 390 (1993), is a case in which the Supreme Court of the United States (in a 6 to 3 decision) ruled that a claim that the Eighth Amendment's ban on cruel and unusual punishment prohibits the execution of one who is actually innocent is not ground for federal habeas relief. Chief Justice William Rehnquist’s majority opinion held that a claim of actual innocence based on newly discovered evidence did not state a ground for federal habeas relief. Herrera had claimed that, because the new evidence demonstrated innocence, his execution would violate the Eighth Amendment’s ban on cruel and unusual punishment which applied to the states through the Fourteenth Amendment. Rehnquist’s opinion noted that “[f]ew rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” Wikipedia.
Rehnquist’s opinion, although not explicitly holding that the Eighth Amendment does not prohibit executing an innocent person, emphasized that Herrera was not raising a constitutional violation. In discussing what relief Herrera would be entitled to were he to succeed on his claim of “actual innocence,” Rehnquist wrote, “Were petitioner to satisfy the dissent's ‘probable innocence’ standard…the District Court would presumably be required to grant a conditional order of relief, which would in effect require the State to retry petitioner 10 years after his first trial, not because of any constitutional violation which had occurred at the first trial, but simply because of a belief that in light of petitioner's new-found evidence a jury might find him not guilty at a second trial.”
Blackmun's Dissent
Justice Blackmun, joined by Justices Stevens and Souter, dissented. Blackmun believed that "[n]othing could be more contrary to contemporary standards of decency or more shocking to the conscience than to execute a person who is actually innocent." Blackmun would have remanded the case to the district court for a determination as to whether a hearing should be held and to resolve the merits of Herrera's claim of actual innocence.
Chastising the majority for its circumspection, Blackmun wrote, "We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced, but who, nonetheless, can prove his innocence with newly discovered evidence," and he took note of "the State of Texas' astonishing protestation to the contrary." Wikipedia.
CHRIS ROBERT Majority
NICOLAS LAUGHLIN, the Concurring Opinion by Justice O’Connor
JASMINE , Blackmun’s Dissent
4. Callins v Collins 510 U.S. 1141; Brandi Melvin: cover Justice Blackmun’s dissent. BRANDI MELVIN (this assignment will be the opening reading).
Justice Blackmun , dissenting.
On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing …..
Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, see Furman v. Georgia, 408 U.S. 238 (1972), and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake….To be fair, a capital sentencing scheme must treat each person convicted of a capital offense with that "degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U. S., at 605 (plurality opinion). ……
On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow. Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well. Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey v. Kemp, 481 U.S. 279, 313, n. 37 (1987), the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled--along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. [n.1] Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants "deserve" to die?--cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, ___ U. S. ___ (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, ___ U. S. ___ (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. ___ (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. [n.2]
….A year later, the Court reversed its course completely in Furman v. Georgia, 408 U.S. 238 (1972) (per curiam, with each of the nine Justices writing separately). The concurring Justices argued that the glaring inequities in the administration of death, the standardless discretion wielded by judges and juries, and the pervasive racial and economic discrimination, rendered the death penalty, at least as administered, "cruel and unusual" within the meaning of the Eighth Amendment. Justice White explained that, out of the hundreds of people convicted of murder every year, only a handful were sent to their deaths, and that there was "no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." 408 U. S., at 313. If any discernible basis could be identified for the selection of those few who were chosen to die, it was "the constitutionally impermissible basis of race." Id., at 310 (Stewart, J., concurring).
I dissented in Furman. Despite my intellectual, moral, and personal objections to the death penalty, I refrained from joining the majority because I found objectionable the Court's abrupt change of position in the single year that had passed since McGautha. While I agreed that the Eighth Amendment's prohibition against cruel and unusual punishments " `may acquire meaning as public opinion becomes enlightened by a humane justice,' " 408 U. S., at 409, quoting Weems v. United States, 217 U.S. 349, 378 (1910), I objected to the "suddenness of the Court's perception of progress inthe human attitude since decisions of only a short while ago." 408 U. S., at 410. Four years after Furman was decided, I concurred in the judgment in Gregg v. Georgia, 428 U.S. 153 (1976), and its companion cases which upheld death sentences rendered under statutes passed after Furman was decided. See Proffitt v. Florida, 428 U.S. 242, 261 (1976), and Jurek v. Texas, 428 U.S. 262, 279 (1976). Cf. Woodson v. North Carolina, 428 U.S. 280, 307 (1976), and Roberts v. Louisiana, 428 U.S. 325, 363 (1976).
There is little doubt now that Furman's essential holding was correct. Although most of the public seems to desire, and the Constitution appears to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it may not be administered at all. Eddings v. Oklahoma, 455 U. S., at 112. I never have quarreled with this principle; in my mind, the real meaning of Furman's diverse concurring opinions did not emerge until some years after Furman was decided. See Gregg v. Georgia, 428 U. S., at 189 (opinion of Stewart, Powell, and Stevens, JJ.) ("Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action"). Since Gregg, I faithfully have adhered to the Furman holding and have come to believe that it is indispensable to the Court's Eighth Amendment jurisprudence. Wikipedia.
5. Atkins v. Virginia 536 U.S. 304: Atkins v. Virginia, 536 U.S. 304 (2002), is a case in which the Supreme Court of the United States ruled 6-3 that executing the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishments. THE FOUR CRITERIA for DETERMINING THE STANDARD OF DECENCY. The Eighth Amendment to the United States Constitution forbids cruel and unusual punishments. In the ruling it was stated that, unlike other provisions of the Constitution, the Eighth Amendment should be interpreted in light of the "evolving standards of decency that mark the progress of a maturing society." The best evidence on this score was determined to be the judgment of state legislatures. In dissent, Justices Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist argued that in spite of the increased number of states which had outlawed the execution of the mentally retarded, there was no clear national consensus, and that even given if there were, there was no basis in the Eighth Amendment for using such measures of opinion to determine what is "cruel and unusual". Justice Antonin Scalia commented in his dissent that "seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members". The citing of an amicus brief from the European Union also drew criticism from Chief Justice Rehnquist, who denounced the "Court's decision to place weight on foreign laws." Wikipedia.
CATHY BARNES, Majority
PAiGE HAMBY, Dissents
6. Roper v. Simmons 543 U.S. 551 (2005) Roper v. Simmons, 543 U.S. 551 (2005) was a decision in which the Supreme Court of the United States held that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18. The 5-4 decision overruled the Court's prior ruling upholding such sentences on offenders above or at the age of 16, in Stanford v. Kentucky, 492 U.S. 361 (1989), overturning statutes in 25 states that had the penalty set lower. "evolving standards of decency" test, the Court held that it was cruel and unusual punishment to execute a person who was under the age of 18 at the time of the murder. Writing for the majority, Justice Kennedy cited a body of sociological and scientific research [1] that..
Justice Scalia wrote a dissent joined by Chief Justice Rehnquist and Justice Thomas. Justice O’Connor also wrote a dissenting opinion. The dissents put into question whether a “national consensus” had indeed formed among the state laws, citing the fact that at the time of the ruling only 18 of 38 death penalty states (47%) prohibited the execution of juveniles (the other 12 states executed neither juveniles nor adults).
However, the primary objection of the Court's two originalists, Justices Scalia and Thomas, was whether such a consensus was relevant. Justice Scalia argued that the appropriate question was not whether there was presently a consensus against the execution of juveniles, but rather whether the execution of such defendants was considered cruel and unusual at the point at which the Bill of Rights was ratified. Wikipedia.
STEPHANIE CARRR, the Majority
NICOLE MADDOX, the Dissents
7. Kennedy v. Louisiana, 554 U.S. 407 (2008) was a landmark decision by the Supreme Court of the United States that held that the Eighth Amendment's Cruel and Unusual Punishment Clause did not permit a state to punish the crime of rape of a child with the death Justice Scalia wrote a dissent joined by Chief Justice Rehnquist and Justice Thomas. Justice O’Connor also wrote a dissenting opinion. The dissents put into question whether a “national consensus” had indeed formed among the state laws, citing the fact that at the time of the ruling only 18 of 38 death penalty states (47%) prohibited the execution of juveniles (the other 12 states executed neither juveniles nor adults).
penalty; more broadly, the power of the state to impose the death penalty against an individual for committing a crime that did not result in the death of the victim is now limited to crimes against the state (i.e., espionage, treason). Justice Alito sharply criticized the majority for usurping the role of the legislature. Alito argued that Kennedy's rationale for defining national consensus was flawed, because the previous Coker decision had "stunted legislative consideration of the question whether the death penalty for the targeted offense of raping a young child is consistent with prevailing standards of decency." In this Alito followed former Chief Justice Warren Burger, who had dissented from Coker because it, in his view, prevented a full debate over the uses of the recently-reinstated death penalty. In this vein, Alito also argued that "The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society."[13] In January 2009, U.S. Senator for Louisiana David Vitter introduced S. Res. 4, "A resolution expressing the sense of the Senate that the Supreme Court of the United States erroneously decided Kennedy v. Louisiana, No. 07-343 (2008), and that the eighth amendment to the Constitution of the United States allows the imposition of the death penalty for the rape of a child." This resolution was never voted upon by the full Senate and died in committee when the 111th Congress adjourned.[21] On October 1, 2008, however, the Supreme Court declined to revisit its decision that imposing the death penalty for child rape is unconstitutional. Concurring in the denial of rehearing, Justice Scalia explained his views against rehearing by denying the relevance of the factual error, writing that "the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.[18]. Wikipedia.
BRITTANY HAMPTON, the Majority
CASSLE KENNEDY, the Dissents
8. Letter from the February 2010 edition of the Los Angeles Times by the president emeritus of the American Law Institute 297 words (Traynor letter is 794 words):
Los Angeles Times
The death penalty -- it's unworkable
The American Law Institute, instrumental in structuring the model statutes on which most death sentences are based, has withdrawn its support of such laws.
By Michael Traynor
February 4, 2010
Nearly 50 years ago, as concern grew in the country about the fairness of death penalty laws, the American Law Institute published a "model statute" aimed at helping state lawmakers draft laws to ensure that death sentences were meted out fairly and consistently. Last fall, the institute withdrew its support for the model death penalty law. The decision was a striking repudiation from the very organization that provided the blueprint for death penalty laws in this country. The institute, with a membership of more than 4,000 lawyers, judges and law professors of the highest qualifications, is the leading independent organization in the United States producing scholarly work to clarify and improve the law. In the decade after the institute published its law, which was part of a comprehensive model penal code, the statute became the prototype for death penalty laws across the United States. Some parts of the model -- such as the categorical exclusion of the death penalty for crimes other than murder and for people of limited mental abilities -- withstood the test of time. But the core of the statute, which created a list of factors to guide judges and jurors deciding when to sentence someone to death, has proved unworkable and fostered confusion and injustice. Now, after searching analysis by our country's top legal minds, the institute has concluded that the system it created does not work and cannot be fixed. It concluded that we cannot devise a death penalty system that will ensure fairness in process or outcome, or even that innocent people will not be executed. I am speaking for myself, not as a representative of the institute, but I can say with certainty that the institute did not reach these conclusions lightly. It commissioned a special committee and a scholarly study, heard various viewpoints and debated the issues extensively. A strong consensus emerged that capital punishment in this country is riddled with pervasive problems. The death penalty cannot balance the need for consistency in sentencing with the need for individualized determinations. Its administration is unequal across racial groups. There is a grave lack of resources for defense lawyers. The law is distorted by the politics of judicial elections, and it consumes a disproportionate share of public resources. California's death penalty exemplifies these problems. Portions of California's law were copied from the institute's model statute. The system now is on the verge of collapse. There are about 700 people on death row in California, and it can take 25 years for mandatory appeals to be completed. Since 1978, California has executed 13 prisoners, while 72 have died of old age or other causes. Resources are woefully inadequate. More than half of the people on death row don't have access to a constitutionally-required lawyer. A statewide commission found that there remains a serious risk that the state will execute an innocent person. And then there is the cost. Housing a prisoner on death row costs taxpayers $90,000 a year more than if that prisoner were held in another type of high-security prison. The total additional cost for housing all of California's death row inmates is more than $60 million a year. These problems are entrenched in the death penalty system, both in California and nationwide. The cumulative result: Executions remain as random as lightning strikes, or more so, and that is the very problem the institute's model statute intended to fix. In addition, across the country, at least 139 individuals have been released from death row after establishing their innocence. The institute's action comes at a time of widespread reevaluation of capital punishment. Fifteen states have abandoned capital punishment, including three in the last three years. In 2009, the country saw the lowest number of death sentences since the death penalty was reinstated in 1976. We now have decades of experience, which the institute lacked when it proposed its model statute almost 50 years ago. Life without the possibility of parole, now an important alternative in nearly every state, was then virtually untried. To the extent that society needs to punish murderers severely, it can do so far more effectively using tough yet fair prison sentences rather than through an ineffective and extravagant death penalty. The American Law Institute could have chosen to do nothing. But having laid the intellectual and legal groundwork for the modern death penalty, it concluded that it had a responsibility to act now that the system's fatal flaws have fully emerged. The withdrawal of the model death penalty statute recognizes that it is impossible to administer the death penalty consistently and fairly, and it therefore should not remain a punishment option in this country. The institute could no longer play a role in legitimizing a failed system. How much longer can any of us? Michael Traynor is president emeritus of the American Law Institute and lives in Berkeley
Following are Wikipedia summaries:
In Gregg v. Georgia (1976) the Court majority upheld death‐sentencing when the legislature created statutory standards to guide the sentencing body's discretion in a separate trial where additional evidence relevant to sentencing could be adduced. A companion case, Woodson v. North Carolina, rejected a mandatory death penalty for all capital murderers, finding the Eighth Amendment evolving standards of decency required the individualized consideration of aggravating and mitigating circumstances. Ring v. Arizona (2002) required that juries, not judges, determine the presence of the aggravating factors that made one death‐eligible, and that these factors be proven beyond a reasonable doubt. Before Furman, most executions had been for murder, some for rape, and a few for kidnapping, treason, espionage, and aircraft piracy. In Coker v. Georgia (1977), the Court barred the death penalty for rape of an adult woman. Today, nearly all death sentences are imposed for homicide. Looking to objective indicators of the evolving standards of decency, the Court has reserved the death penalty for those most culpable offenders: The actual killer, or the accomplice who attempts to kill, intends to kill, or is a major participant in an accompanying felony and possesses a reckless indifference to human life, is death‐eligible (Tison v. Arizona, 1987). But the mentally retarded (Atkins v. Virginia, 2002), the insane (Ford v. Wainwright, 1986), and those under sixteen at the time of the offense (Thompson v. Oklahoma, 1988) are not. Between the Gregg decision in 1976 and 1 July 2003, there were 882 persons executed in 33 jurisdictions. Over three‐fourths of these executions occurred below the Mason‐Dixon line, led by Texas (311) and Virginia (89). The pace of executions rose sharply in the 1990s, perhaps in part as a consequence of the 1996 Anti‐Terrorism and Effective Death Penalty Act's trimming back of federalhabeas corpus relief mechanisms. At midyear 2003, over 3,500 persons awaited execution: 98 percent male, and 54 percent of minority race. Significant decisions in 2002 and in 2003 (regarding ineffective assistance of penalty phase counsel,Wiggins v. Smith), indicate the Court majority is willing to exert controls over the development of capital punishment policies and procedures that they had largely left to state legislatures, courts, and governors. Still, since many state judges and all the others face electoral challenges, conventional political processes will continue to play a major role in shaping future death penalty polices, including possible moratorium measures.
In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."
1. The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
2. "A severe punishment that is obviously inflicted in wholly arbitrary fashion."
3. "A severe punishment that is clearly and totally rejected throughout society."
4. "A severe punishment that is patently unnecessary."
Continuing, he wrote that he expected that no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a "cumulative" analysis of the implication of each of the four principles.
The Supreme Court declared executing the mentally handicapped in Atkins v. Virginia, 536 U.S. 304 (2002), and executing people who were under age 18 in Roper v. Simmons, 543 U.S. 551 (2005), to be violations of the Eighth Amendment, regardless of the crime.
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The case of Weems v. United States, 217 U.S. 349 (1910), marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual.[12] The Court overturned a punishment called cadena temporal, which mandated "hard and painful labor," shackling for the duration of incarceration, and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment.[13] However, others have written that "it is hard to view Weems as announcing a constitutional requirement of proportionality."[14]
In Trop v. Dulles, 356 U.S. 86 (1958), the Supreme Court held that punishing a natural-born citizen for a crime by taking away his citizenship is unconstitutional, being "more primitive than torture" because it involved the "total destruction of the individual's status in organized society." The ruling's reference to "evolving standards of decency" is frequently cited precedent in the court's interpretation of the Eighth Amendment's prohibition on "cruel and unusual punishment."
Death penalty for rape
In Coker v. Georgia, 433 U.S. 584 (1977), the Court declared that the death penalty was unconstitutionally excessive for rape of a woman and, by implication, for any crime where a death does not occur. The majority in Coker stated that "rape by definition does not include the death of or even the serious injury to another person." The dissent countered that the majority "takes too little account of the profound suffering the crime imposes upon the victims and their loved ones." The dissent also characterized the majority as "myopic" for only considering legal history of "the past five years."
On June 25, 2008, in Kennedy v. Louisiana,[16] the Court returned to the subject of its decision in Coker and ruled that the death penalty was excessive for child rape "where the victim’s life was not taken."[17] The Supreme Court failed to note a federal law, which applies to military court-martial proceedings, providing for the death penalty in cases of child rape.[18] On October 1, 2008, the Court declined to reconsider its opinion in this case, but did amend the majority and dissenting opinions in order to acknowledge that federal law. Justice Scalia (joined by Chief Justice Roberts) wrote in dissent that "the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.'"[19]
Special procedures for death penalty cases
The first significant general challenge to capital punishment that reached the Supreme Court was the case of Furman v. Georgia, 408 U.S. 238 (1972). In a 5-4 decision, the Supreme Court overturned the death sentences of Furman for murder, as well as two other defendants for rape. Of the five justices voting to overturn the death penalty, two found capital punishment to be unconstitutionally cruel and unusual, while three found that the statutes at issue were implemented in a random and capricious fashion, discriminating against blacks and the poor. Furman v. Georgia did not hold — even though it is sometimes claimed that it did — that capital punishment is per se unconstitutional.[20]
States with capital punishment rewrote their laws to address the Supreme Court's decision, and the Court then revisited the issue in a murder case: Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg, the Court found, in a 7-2 ruling, that Georgia's new death penalty laws passed Eighth Amendment scrutiny: the statutes provided a bifurcated trial in which guilt and sentence were determined separately; and, the statutes provided for "specific jury findings" followed by state supreme court review comparing each death sentence "with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate." Because of the Gregg decision, executions resumed in 1977.
Some states have passed laws imposing mandatory death penalties in certain cases. The Supreme Court found these laws to be unconstitutional under the Eighth Amendment, in the murder case of Woodson v. North Carolina, 428 U.S. 280 (1976), because these laws remove discretion from the trial judge to make an individualized determination in each case.[21] Other statutes specifying factors for courts to use in making their decisions have been upheld. Some have not: in Godfrey v. Georgia, 446 U.S. 420 (1980), the Supreme Court overturned a sentence based upon a finding that a murder was "outrageously or wantonly vile, horrible, and inhuman," as it deemed that any murder may be reasonably characterized in this manner. Similarly, in Maynard v. Cartwright, 486 U.S. 356 (1988), the Court found that an "especially heinous, atrocious or cruel" standard in a homicide case was too vague. However, the vagueness of this language depends on how lower courts interpret it. In Walton v. Arizona, 497 U.S. 639 (1990), the Court found that the phrase "especially heinous, cruel, or depraved" was not vague in a murder case, because the state supreme court had expounded on its meaning.[22]
The Court has generally held that death penalty cases require extra procedural protections. As the Court said in Herrera v. Collins, 506 U.S. 390 (1993), which involved the murder of a police officer, "the Eighth Amendment requires increased reliability of the process..."
[edit]
Evolving standards of decency
In Trop v. Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren said: "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Subsequently, the Court has looked to societal developments, as well as looking to its own independent judgment, in determining what are those "evolving standards of decency".[16] The Court has then applied those standards not only to say what punishments are inherently cruel, but also to say what punishments that are not inherently cruel are nevertheless cruelly disproportionate to the offense in question.[16]
An example of the "evolving standards" idea can be seen in Jackson v. Bishop (8th Cir., 1968), an Eighth Circuit decision outlawing corporal punishment in the Arkansas prison system.
The "evolving standards" test is not without its scholarly critics. For example, Professor John Stinneford asserts that the "evolving standards" test misinterprets the Eighth Amendment:
The Framers of the Bill of Rights understood the word “unusual” to mean “contrary to long usage.” Recognition of the word’s original meaning will precisely invert the “evolving standards of decency” test, and ask the Court to compare challenged punishments with the longstanding principles and precedents of the common law, rather than shifting and nebulous notions of “societal consensus” and contemporary “standards of decency.”[23]
On the other hand, Dennis Baker has asserted that the evolving standards of decency test accords with the moral purpose of the Eighth Amendment and the Framer’s intent that the right be used to prevent citizens being subjected to all forms of unjust and disproportionate punishments.[24] As Professor John Bessler points out, "An Essay on On Crimes and Punishments," written by Cesare Beccaria in the 1760s, advocated for proportionate punishments. Many of the Founding Fathers, including Thomas Jefferson and James Madison, read Beccaria's treatise and were influenced by it.[25]
But on February 22, 1994, less than two months before announcing his retirement, Blackmun announced that he now saw the death penalty as always and in all circumstances unconstitutional by issuing a dissent from the Court's refusal to hear a routine death penalty case (Callins v. Collins), declaring that "[f]rom this day forward, I no longer shall tinker with the machinery of death." Subsequently, adopting the practice begun by Justices Brennan and Marshall, he issued a dissent from denial of certiorari in every death penalty case, citing and reiterating his Callins dissent. As Linda Greenhouse and others have reported, Blackmun's law clerks prepared what would become the Callins dissent well in advance of the case coming before the Court; Blackmun's papers indicate that work began on the dissent in the summer of 1993, and in a memo preserved in Blackmun's papers, the clerk writing the dissent wrote Blackmun that
Friday, February 10, 2012
Lecture #5-- Law & Social Policy 2-13-12: Tocqueville on Social Issues
2-13-12
Lecture # 5: Law & Social Policy: Social and Political Issues Raised by Tocqueville
1. Reading 5 minutes (516 words)
On Lawyers (pp. 308, 309, 310, 311, 313, 314, 315)
Reading by Stephanie Carr and fellow students--
Page 308: begin at first full paragraph with words...."Men who have made the law their special study...." and continue with the next 3 paragraphs ending in the 4th ".... you may be certain that lawyers will be very active agents of revolution.”
Page 309: begin at first full paragraph "I am saying that in a society where
lawyers unquestionable hold high rank....." and continue reading all paragraphs to and including page 310 thru the first full paragraph on page 311 ending with the words ".....the influence of lawyers in its affairs did not grow in proportion to the power of the people."
Page 313: begin with the words "In America, there are neither nobles nor men of letters and the people distrust....." through the paragraph that begins: "The law courts are the most obvious institutions used by the legal fraternity to influence democracy."
Page 314: begin in the middle of the page with the paragraph: " Since lawyers form the only enlightened class not distrusted..." read the entire paragraph ending with the words..."if the choice is left to them."
Page 314: begin: "There is hardly a political question in the United States
which does not sooner or later turn into a judicial one...." and continue on
through the next and final paragraph...."Lawyers in the United States constitute a power.....
In America there are neither nobles nor men of letters, and the people distrust the wealthy; lawyers therefore form the political upper class, and the most intellectual circle of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not composed of the rich, who are united together by no common tie, but that it occupies the judicial bench and the bar. P 313
“The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority from it and over it.
The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.
[And here are a few more nuggets:]
Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other} men, are governed by their private interests, and especially by the interests of the moment.
The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known; they serve as arbiters between the citizens; and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude. P 308 422 words
2. Summary of Class #4: The Power of the Presidency (in 250 Words or Less) (your professor flunked this requirement this time; 600 words +++++). 6 minutes
The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period. Tocqueville quoting Thomas Jefferson Ch. XV
In the first class we examined the Power of the People; in the second, the Power of the Judiciary; the third treated the Power of the Legislature and in the fourth the Power of the Executive Branch.
Summary of Class #4
The people elect the president for four years; the king is a perpetual and hereditary prince. The president is amenable to personal punishment and disgrace while the king is sacred, immune and inviolable. The president has a qualified negative upon legislative acts, the king has and absolute negative. The president has the right to command the military and naval forces but the king has the additional rights to declare war and raise and regulate armies and fleets by his own authority. The king possesses the right to make treaties without concurrence by any other authority; the president has a concurrent power to do so. The king can confer personal and commercial privileges the president cannot. The king can coin money and regulate commerce, declare embargoes, regulate weights and measures, and prohibit circulation of foreign coin. The president has NO spiritual jurisdiction; the king is head of the church. 151 words.
Tocqueville is more worried about the presidency being politicized than kingship (although he worries about a future tyranny of the executive branch) (perhaps if, as and when certain external limitations on presidential power are lifted (geography, lack of enemies)). The extended reading with which our class began (from pages 158-161, Tocqueville “Re-election of the President’) praises the founders of the country for drafting a constitution that balances the power of the executive branch but then makes a jarring condemnation:
“But when they introduced the principal of re-election, they in part destroyed their work’ (p. 161). “Once the president can stand for re-election…he is but a docile tool in the hands of the majority.’ (P.161).
Tocqueville felt it is impossible for a president to observe the normal course of affairs when his own re-election dominates his thoughts and official actions and policies. And while the founders intended that the president guide the people and the legislature, he instead follows them. 159
Article II of the constitution provides that the executive Power shall be vested in a president. The Article then enumerates specific powers of the presidency. Early debate centered on the question as to whether the president was granted certain inherent powers.
Social policy animates decisions and actions of the judiciary, the presidency and congress through the commerce clause (and the general spending power and the 14th Amendment), through judicial review based on the constitution (and the evolving standard of decency test of the 8th Amendment) and through the inherent powers of the presidency that are formed and forged in the seething cauldron of social, political and economic change.
Limitations imposed on the president by circumstance
Certain practical limitations on the power of the presidency are due to external conditions. These interest us today because the limitations he noted no longer exist. They all deal with the president’s war powers and foreign policy prerogatives. For example, while the president is commander in chief, the army had only 6000 men at the time Tocqueville wrote and the navy had only a few vessels. The United States had no neighbors and was protected by the vast ocean; it had no enemies; this shows, Tocqueville wrote, “…that the practice of government must not be judged by theory.” (P 147). He noted that the president enjoyed almost ‘royal prerogatives which he has no chance of exercising.” (P.147). “The laws enable him to be strong; circumstances keep him weak” (P. 147). 600 words
3. Lecture #5: Social Issues Raised by Tocqueville. DV: words. 5 minutes
Tocqueville’s book aimed to study American laws (p 355). He begins with the source of those laws: social conditions. A social creed and code of equality brought by the Pilgrims furnished the ethos of the country that was divided into two classes: the gold seekers of the south and the enterprising people of the north. America was a land of wonders, a new land with new men that needed a new political science for the new world that was being born. For the first four classes we studied Tocqueville observations on HOW the new system worked: separation and balance of powers among the people, the judiciary, the legislature and the executive branch. In this our fifth class we look into the ‘sociology’ of America rather than its governance. Last class we considered:
Class # 4 Tocqueville commentary on
(1) Fear of legislative power (181, 288, 304-305), ‘justice is the end of government’; Federalist 51; (2) tyranny of the majority (68, 71, 181, 223-224, 287-305, 603,747), (MOLLY: What moderates the tyranny of the majority? P 305-322, Chapter 8, Part 2); (3) Nicole Maddox: DEMOCRACY 181 (main threats to), 294 (main complaint against), MAJORITY RULE 297 (effect on opinions), 290, 292 299 (no freedom of thought in America), 747 (public approval) and finally (12) the main objective of legislation and legislator , new solutions for new disorders (49, 817).
Class # 5 we consider Tocqueville commentary on
(3) war (755-757), (4) the law of property and inheritance (60-64, 840-841), (5) a free press (213, 222, 811-812), (6) judicial power (122, 314, 812), (7) love of money (41,64, 616-618, 627-28, 713, 721-722, 788), (8) how a new aristocracy may emerge in America (645-648), (9) lawyers (…lawyers form the only enlightened class not distrusted by the people. 314, 307-315), (10) wages (675-677) and work (639), (11) women (687, 692, 696, 700), (13) the source of laws (49, 57, 58, 71, 319, 335, 357, 362), (14) freedom and equality (583-587), (15) individualism (583-586-91, 683, 780), (16) religion (54-56, 336-352, 636), (17) public education American style (53-54, 65 [job preparation], 352-357, 537), (18) the social theory of the United States (42-47) (equality, freedom and practicality), (19) voluntary associations [compare with The Federalist Papers No. 10 (Madison on Factions] (219-227, 595-609, 700-702), (20) race (398-426); (21) manners (705): Materialism, Free Press, Kindness, Love of Comfort, Religion and Liberty.
Assignments for Class # 5
1. Sara Thompson: INDIVIDUALISM 683 (isolation), 589
Also Sara reads from page 475 beginning with words "The Americans dwell in a land of wonders”...and ending with words
"For Americans, their whole lives are spent as if in a game of chance, in a time of revolution or a day of battle.'
2. Zac Richards: ASSOCIATIONS 219-227, 223, 595-609, 700-702 811
3. Nathan Batey: MATERIALISM 627-628 (read this aloud in class)
4. Natalie Humphrey: FREE PRESS 213, 222, 811-812
5. Darick Crumbly: LAWYERS 307-315, 308, 309, 314
6. Jonathan Raymond: PUBLIC EDUCATION
7. Brandi Melvin: WAR 755-756, 768, 260 (the draft): page 756: “All those who wish to destroy freedom within a democratic nation should realize that the most reliable and most rapid means of achieving it is war. That is the first principle of knowledge.”
8. Jacob Giesecke: NEW SOLUTIONS for NEW DISORDER 816-817 (main idea of the book, main purpose of legislation)
9. Brittany HAMPTON KINDNESS 653 (Death Penalty)
10. Chris Moncrief: DEPOTISM OF THE FUTURE 805-806
11. Stephanie Carr: FEAR OF DISORDER, LOVE OF COMFORT 788
12. Paige Hamby: LOVE OF MONEY 41, 64, 616-618, 627-628, 713, 721, 722, 788 and comfort, 618
13. Cathy Barnes: WOMEN 687, 692, 696, 700
14. Jillian Smith: UPWARD MOBILITY 637
15. Cassle Kennedy: EQUALITY & FREEDOM: The Puritans established America's democratic social state of equality. They arrived equals in education and were all middle class. 67
16. John Brown: RELIGION & LIBERTY: In addition,Tocqueville observes that they contributed a synthesis of religion and political liberty in America that was uncommon in Europe. 55-56
17. Nicolas Laughlin: MANNERS, SOCIAL CONDITION: 319, 357, 328, 705 Tocqueville believed that the Puritans established the principle of sovereignty of the people in the Fundamental Orders of Connecticut. The American Revolution then popularized this principle, followed by the Constitutional Convention of 1787, which developed institutions to manage popular will. While Tocqueville speaks highly of the America's Constitution, he believes that the mores, or "habits of mind" of the American people play a more prominent role in the protection of freedom. Read from page 705: Last sentence from 1st paragraph beginning with the words. “Thus it is that the effect of democracy is not to impose certain manners on men but, in a sense, to stop them from having any at all.”
18. Lauren Reynolds: JUDICIAL POWER 122, 314, 315, 812
19. Jasmine Hardin, NEW ARISTOCRACY 645-648 “…Day by day, he gains in skill….[end 646]….end of second literary paragraph…It has assigned him a certain station in society which he cannot escape. It has brought him to a stop in the midst of universal movement.” Page 648: “The business aristocracy seldom lives among the industrial population it manages….” To the end of the page. Read page 665: Begin second to last paragraph with word “From where they stand…[continue to page 666) read first four paragraphs and the two sentences from the next: “In the United States, I have not seen his like. Not only are Americans ignorant of the type of man in question but one has a great deal of trouble explaining his existence to them.’
20. Jenn Siewersen, SOURCE OF LAWS 49, 57, 58, 71, 319, (manners, custom, social condition) 335, 357, 362 (laws successful due to prosperity, 328).
21. Josh Porter: RACE 398-426
22. Molly: MAIN IDEA OF BOOK: 335, 816
Molly: TWO MOST IMPORTANT POWERS: Judicial and Free Press, 812
The love of comfort has become the dominant taste of the nation. Tocqueville 618.
Lawyers and Judges
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
Alexis de Tocqueville, 1835
Alexis de Tocqueville, a French political scientist, historian, and politician, is best known for Democracy in America (1835). ”). The aim of this book was to reveal American laws. [335] The main idea of the book is to seek new solutions to new disorders: to lay down extensive and transparent and settled boundaries for governmental power, to grant private individuals certain rights, to raise up the level of society as a whole is the objective of the legislator for the period we are about to enter [817]. A believer in democracy, he was concerned about the concentration of power in the hands of a centralized government. During his visit to the United States in 1831 and 1832, Tocqueville observed the deep social and political divisions produced by slavery. He was impressed, however, by the power of a free press and the importance that citizens placed upon the legal system.
In his observations on lawyers and judges, Tocqueville noted that U.S. courts of law possessed enormous political power. Judges had the power of judicial review, which allowed them to strike down laws as unconstitutional. He also observed that lawyers were active in politics, bringing to government and the political arena the knowledge, skills, and temperament peculiar to their profession. Tocqueville pointed out that lawyers are wedded to the public order and are often conservative. He concluded that "lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society."
Lawyers and Judges
Whenever a law that the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule; this power is the only one peculiar to the American magistrate, but it gives rise to immense political influence. In truth, few laws can escape the searching analysis of the judicial power for any length of time, for there are few that are not prejudicial to some private interest or other, and none that may not be brought before a court of justice by the choice of parties or by the necessity of the case. But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force.
* * *
Within these limits the power vested in the American courts of justice of pronouncing a statute to be unconstitutional forms one of the most powerful barriers that have ever been devised against the tyranny of political assemblies.
* * *
When we have examined in detail the organization of the [United States] Supreme Court and the entire prerogatives which it exercises, we shall readily admit that a more imposing judicial power was never constituted by any people. The Supreme Court is placed higher than any other known tribunal, both by the nature of its rights and the class of justiciable parties which it controls.
* * *
From Democracy in America.
The peace, the prosperity, and the very existence of the Union are vested in the hands of the seven Federal judges [of the United States Supreme Court]. Without them the Constitution would be a dead letter: the executive appeals to them for assistance against the encroachments of the legislative power; the legislature demands their protection against the assaults of the executive; they defend the Union from the disobedience of the states, the states from the exaggerated claims of the Union, the public interest against private interests, and the conservative spirit of stability against the fickleness of the democracy. Their power is enormous, but it is the power of public opinion. They are all-powerful as long as the people respect the law; but they would be impotent against popular neglect or contempt of the law. The force of public opinion is the most intractable of agents, because its exact limits cannot be defined; and it is not less dangerous to exceed than to remain below the boundary prescribed.
* * *
Democratic laws generally tend to promote the welfare of the greatest possible number; for they emanate from the majority of the citizens, who are subject to error, but who cannot have an interest opposed to their own advantage. The laws of an aristocracy tend, on the contrary, to concentrate wealth and power in the hands of the minority; because an aristocracy, by its very nature, constitutes a minority. It may therefore be asserted, as a general proposition, that the purpose of a democracy in its legislation is more useful to humanity than that of an aristocracy. This, however, is the sum total of its advantages.
* * *
In visiting the Americans and studying their laws, we perceive that the authority they have entrusted to members of the legal profession, and the influence that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy. This effect seems to me to result from a general cause, which it is useful to investigate, as it may be reproduced elsewhere….
Men who have made a special study of the laws derive from [that] occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.
The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but not very generally known; they serve as arbiters between the citizens; and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude. Add to this that they naturally constitute a body; not by any previous understanding, or by an agreement that directs them to a common end; but the analogy of their studies and the uniformity of their methods connect their minds as a common interest might unite their endeavors.
Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other men, are governed by their private interests, and especially by the interests of the moment.
* * *
I do not, then, assert that all the members of the legal profession are at all times the friends of order and the opponents of innovation, but merely that most of them are usually so. In a community to which lawyers are allowed to occupy without opposition that high station which naturally belongs to them, their general spirit will be eminently conservative and anti-democratic. When an aristocracy excludes the leaders of that profession from its ranks, it excites enemies who are the more formidable as they are independent of the nobility by their labors and feel themselves to be their equals in intelligence though inferior in opulence and power.
* * *
Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten, also, that if they prize freedom much, they generally value legality still more; they are less afraid of tyranny than of arbitrary power; and, provided the legislature undertakes of itself to deprive men of their independence, they are not dissatisfied.
* * *
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a two-fold authority from it and over it. The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.
The profession of the law is the only aristocratic element that can be amalgamated without violence with the natural elements of democracy and be advantageously and permanently combined with them. I am not ignorant of the defects inherent in the character of this body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could hope to exist at the present time if the influence of lawyers in public business did not increase in proportion to the power of the people.
* * *
In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar.
The more we reflect upon all that occurs in the United States, the more we shall be persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element. In that country we easily perceive how the legal profession is qualified by its attributes, and even by its faults, to neutralize the vices inherent in popular government. When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. These secretly oppose their aristocratic propensities to the nation's democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.
The courts of justice are the visible organs by which the legal profession is enabled to control the democracy. The judge is a lawyer who, independently of the taste for regularity and order that he has contracted in the study of law, derives an additional love of stability from the inalienability of his own functions. His legal attainments have already raised him to a distinguished rank among his fellows; his political power completes the distinction of his station and gives him the instincts of the privileged classes.
* * *
It must not be supposed, moreover, that the legal spirit is confined in the United States to the courts of justice; it extends far beyond them. As the lawyers form the only enlightened class whom the people do not mistrust, they are naturally called upon to occupy most of the public stations. They fill the legislative assemblies and are at the head of the administration; they consequently exercise a powerful influence upon the formation of the law and upon its execution. The lawyers are obliged, however, to yield to the current public opinion, which is too strong for them to resist; but it is easy to find indications of what they would do if they were free to act. The Americans, who have made so many innovations in their political laws, have introduced very sparing alterations in their civil laws, and that with great difficulty, although many of these laws are repugnant to their social condition. The reason for this is that in matters of civil law the majority are obliged to defer to the authority of the legal profession, and the American lawyers are disinclined to innovate when they are left to their own choice.
* * *
The influence of legal habits extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habit to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate. The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time and accommodates itself without resistance to all the movements of the social body. But this party extends over the whole community and penetrates into all the classes which compose it; it acts upon the country imperceptibly, but finally fashions it to suit its own purposes.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
Lecture # 5: Law & Social Policy: Social and Political Issues Raised by Tocqueville
1. Reading 5 minutes (516 words)
On Lawyers (pp. 308, 309, 310, 311, 313, 314, 315)
Reading by Stephanie Carr and fellow students--
Page 308: begin at first full paragraph with words...."Men who have made the law their special study...." and continue with the next 3 paragraphs ending in the 4th ".... you may be certain that lawyers will be very active agents of revolution.”
Page 309: begin at first full paragraph "I am saying that in a society where
lawyers unquestionable hold high rank....." and continue reading all paragraphs to and including page 310 thru the first full paragraph on page 311 ending with the words ".....the influence of lawyers in its affairs did not grow in proportion to the power of the people."
Page 313: begin with the words "In America, there are neither nobles nor men of letters and the people distrust....." through the paragraph that begins: "The law courts are the most obvious institutions used by the legal fraternity to influence democracy."
Page 314: begin in the middle of the page with the paragraph: " Since lawyers form the only enlightened class not distrusted..." read the entire paragraph ending with the words..."if the choice is left to them."
Page 314: begin: "There is hardly a political question in the United States
which does not sooner or later turn into a judicial one...." and continue on
through the next and final paragraph...."Lawyers in the United States constitute a power.....
In America there are neither nobles nor men of letters, and the people distrust the wealthy; lawyers therefore form the political upper class, and the most intellectual circle of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not composed of the rich, who are united together by no common tie, but that it occupies the judicial bench and the bar. P 313
“The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority from it and over it.
The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.
[And here are a few more nuggets:]
Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other} men, are governed by their private interests, and especially by the interests of the moment.
The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known; they serve as arbiters between the citizens; and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude. P 308 422 words
2. Summary of Class #4: The Power of the Presidency (in 250 Words or Less) (your professor flunked this requirement this time; 600 words +++++). 6 minutes
The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period. Tocqueville quoting Thomas Jefferson Ch. XV
In the first class we examined the Power of the People; in the second, the Power of the Judiciary; the third treated the Power of the Legislature and in the fourth the Power of the Executive Branch.
Summary of Class #4
The people elect the president for four years; the king is a perpetual and hereditary prince. The president is amenable to personal punishment and disgrace while the king is sacred, immune and inviolable. The president has a qualified negative upon legislative acts, the king has and absolute negative. The president has the right to command the military and naval forces but the king has the additional rights to declare war and raise and regulate armies and fleets by his own authority. The king possesses the right to make treaties without concurrence by any other authority; the president has a concurrent power to do so. The king can confer personal and commercial privileges the president cannot. The king can coin money and regulate commerce, declare embargoes, regulate weights and measures, and prohibit circulation of foreign coin. The president has NO spiritual jurisdiction; the king is head of the church. 151 words.
Tocqueville is more worried about the presidency being politicized than kingship (although he worries about a future tyranny of the executive branch) (perhaps if, as and when certain external limitations on presidential power are lifted (geography, lack of enemies)). The extended reading with which our class began (from pages 158-161, Tocqueville “Re-election of the President’) praises the founders of the country for drafting a constitution that balances the power of the executive branch but then makes a jarring condemnation:
“But when they introduced the principal of re-election, they in part destroyed their work’ (p. 161). “Once the president can stand for re-election…he is but a docile tool in the hands of the majority.’ (P.161).
Tocqueville felt it is impossible for a president to observe the normal course of affairs when his own re-election dominates his thoughts and official actions and policies. And while the founders intended that the president guide the people and the legislature, he instead follows them. 159
Article II of the constitution provides that the executive Power shall be vested in a president. The Article then enumerates specific powers of the presidency. Early debate centered on the question as to whether the president was granted certain inherent powers.
Social policy animates decisions and actions of the judiciary, the presidency and congress through the commerce clause (and the general spending power and the 14th Amendment), through judicial review based on the constitution (and the evolving standard of decency test of the 8th Amendment) and through the inherent powers of the presidency that are formed and forged in the seething cauldron of social, political and economic change.
Limitations imposed on the president by circumstance
Certain practical limitations on the power of the presidency are due to external conditions. These interest us today because the limitations he noted no longer exist. They all deal with the president’s war powers and foreign policy prerogatives. For example, while the president is commander in chief, the army had only 6000 men at the time Tocqueville wrote and the navy had only a few vessels. The United States had no neighbors and was protected by the vast ocean; it had no enemies; this shows, Tocqueville wrote, “…that the practice of government must not be judged by theory.” (P 147). He noted that the president enjoyed almost ‘royal prerogatives which he has no chance of exercising.” (P.147). “The laws enable him to be strong; circumstances keep him weak” (P. 147). 600 words
3. Lecture #5: Social Issues Raised by Tocqueville. DV: words. 5 minutes
Tocqueville’s book aimed to study American laws (p 355). He begins with the source of those laws: social conditions. A social creed and code of equality brought by the Pilgrims furnished the ethos of the country that was divided into two classes: the gold seekers of the south and the enterprising people of the north. America was a land of wonders, a new land with new men that needed a new political science for the new world that was being born. For the first four classes we studied Tocqueville observations on HOW the new system worked: separation and balance of powers among the people, the judiciary, the legislature and the executive branch. In this our fifth class we look into the ‘sociology’ of America rather than its governance. Last class we considered:
Class # 4 Tocqueville commentary on
(1) Fear of legislative power (181, 288, 304-305), ‘justice is the end of government’; Federalist 51; (2) tyranny of the majority (68, 71, 181, 223-224, 287-305, 603,747), (MOLLY: What moderates the tyranny of the majority? P 305-322, Chapter 8, Part 2); (3) Nicole Maddox: DEMOCRACY 181 (main threats to), 294 (main complaint against), MAJORITY RULE 297 (effect on opinions), 290, 292 299 (no freedom of thought in America), 747 (public approval) and finally (12) the main objective of legislation and legislator , new solutions for new disorders (49, 817).
Class # 5 we consider Tocqueville commentary on
(3) war (755-757), (4) the law of property and inheritance (60-64, 840-841), (5) a free press (213, 222, 811-812), (6) judicial power (122, 314, 812), (7) love of money (41,64, 616-618, 627-28, 713, 721-722, 788), (8) how a new aristocracy may emerge in America (645-648), (9) lawyers (…lawyers form the only enlightened class not distrusted by the people. 314, 307-315), (10) wages (675-677) and work (639), (11) women (687, 692, 696, 700), (13) the source of laws (49, 57, 58, 71, 319, 335, 357, 362), (14) freedom and equality (583-587), (15) individualism (583-586-91, 683, 780), (16) religion (54-56, 336-352, 636), (17) public education American style (53-54, 65 [job preparation], 352-357, 537), (18) the social theory of the United States (42-47) (equality, freedom and practicality), (19) voluntary associations [compare with The Federalist Papers No. 10 (Madison on Factions] (219-227, 595-609, 700-702), (20) race (398-426); (21) manners (705): Materialism, Free Press, Kindness, Love of Comfort, Religion and Liberty.
Assignments for Class # 5
1. Sara Thompson: INDIVIDUALISM 683 (isolation), 589
Also Sara reads from page 475 beginning with words "The Americans dwell in a land of wonders”...and ending with words
"For Americans, their whole lives are spent as if in a game of chance, in a time of revolution or a day of battle.'
2. Zac Richards: ASSOCIATIONS 219-227, 223, 595-609, 700-702 811
3. Nathan Batey: MATERIALISM 627-628 (read this aloud in class)
4. Natalie Humphrey: FREE PRESS 213, 222, 811-812
5. Darick Crumbly: LAWYERS 307-315, 308, 309, 314
6. Jonathan Raymond: PUBLIC EDUCATION
7. Brandi Melvin: WAR 755-756, 768, 260 (the draft): page 756: “All those who wish to destroy freedom within a democratic nation should realize that the most reliable and most rapid means of achieving it is war. That is the first principle of knowledge.”
8. Jacob Giesecke: NEW SOLUTIONS for NEW DISORDER 816-817 (main idea of the book, main purpose of legislation)
9. Brittany HAMPTON KINDNESS 653 (Death Penalty)
10. Chris Moncrief: DEPOTISM OF THE FUTURE 805-806
11. Stephanie Carr: FEAR OF DISORDER, LOVE OF COMFORT 788
12. Paige Hamby: LOVE OF MONEY 41, 64, 616-618, 627-628, 713, 721, 722, 788 and comfort, 618
13. Cathy Barnes: WOMEN 687, 692, 696, 700
14. Jillian Smith: UPWARD MOBILITY 637
15. Cassle Kennedy: EQUALITY & FREEDOM: The Puritans established America's democratic social state of equality. They arrived equals in education and were all middle class. 67
16. John Brown: RELIGION & LIBERTY: In addition,Tocqueville observes that they contributed a synthesis of religion and political liberty in America that was uncommon in Europe. 55-56
17. Nicolas Laughlin: MANNERS, SOCIAL CONDITION: 319, 357, 328, 705 Tocqueville believed that the Puritans established the principle of sovereignty of the people in the Fundamental Orders of Connecticut. The American Revolution then popularized this principle, followed by the Constitutional Convention of 1787, which developed institutions to manage popular will. While Tocqueville speaks highly of the America's Constitution, he believes that the mores, or "habits of mind" of the American people play a more prominent role in the protection of freedom. Read from page 705: Last sentence from 1st paragraph beginning with the words. “Thus it is that the effect of democracy is not to impose certain manners on men but, in a sense, to stop them from having any at all.”
18. Lauren Reynolds: JUDICIAL POWER 122, 314, 315, 812
19. Jasmine Hardin, NEW ARISTOCRACY 645-648 “…Day by day, he gains in skill….[end 646]….end of second literary paragraph…It has assigned him a certain station in society which he cannot escape. It has brought him to a stop in the midst of universal movement.” Page 648: “The business aristocracy seldom lives among the industrial population it manages….” To the end of the page. Read page 665: Begin second to last paragraph with word “From where they stand…[continue to page 666) read first four paragraphs and the two sentences from the next: “In the United States, I have not seen his like. Not only are Americans ignorant of the type of man in question but one has a great deal of trouble explaining his existence to them.’
20. Jenn Siewersen, SOURCE OF LAWS 49, 57, 58, 71, 319, (manners, custom, social condition) 335, 357, 362 (laws successful due to prosperity, 328).
21. Josh Porter: RACE 398-426
22. Molly: MAIN IDEA OF BOOK: 335, 816
Molly: TWO MOST IMPORTANT POWERS: Judicial and Free Press, 812
The love of comfort has become the dominant taste of the nation. Tocqueville 618.
Lawyers and Judges
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
Alexis de Tocqueville, 1835
Alexis de Tocqueville, a French political scientist, historian, and politician, is best known for Democracy in America (1835). ”). The aim of this book was to reveal American laws. [335] The main idea of the book is to seek new solutions to new disorders: to lay down extensive and transparent and settled boundaries for governmental power, to grant private individuals certain rights, to raise up the level of society as a whole is the objective of the legislator for the period we are about to enter [817]. A believer in democracy, he was concerned about the concentration of power in the hands of a centralized government. During his visit to the United States in 1831 and 1832, Tocqueville observed the deep social and political divisions produced by slavery. He was impressed, however, by the power of a free press and the importance that citizens placed upon the legal system.
In his observations on lawyers and judges, Tocqueville noted that U.S. courts of law possessed enormous political power. Judges had the power of judicial review, which allowed them to strike down laws as unconstitutional. He also observed that lawyers were active in politics, bringing to government and the political arena the knowledge, skills, and temperament peculiar to their profession. Tocqueville pointed out that lawyers are wedded to the public order and are often conservative. He concluded that "lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society."
Lawyers and Judges
Whenever a law that the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule; this power is the only one peculiar to the American magistrate, but it gives rise to immense political influence. In truth, few laws can escape the searching analysis of the judicial power for any length of time, for there are few that are not prejudicial to some private interest or other, and none that may not be brought before a court of justice by the choice of parties or by the necessity of the case. But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force.
* * *
Within these limits the power vested in the American courts of justice of pronouncing a statute to be unconstitutional forms one of the most powerful barriers that have ever been devised against the tyranny of political assemblies.
* * *
When we have examined in detail the organization of the [United States] Supreme Court and the entire prerogatives which it exercises, we shall readily admit that a more imposing judicial power was never constituted by any people. The Supreme Court is placed higher than any other known tribunal, both by the nature of its rights and the class of justiciable parties which it controls.
* * *
From Democracy in America.
The peace, the prosperity, and the very existence of the Union are vested in the hands of the seven Federal judges [of the United States Supreme Court]. Without them the Constitution would be a dead letter: the executive appeals to them for assistance against the encroachments of the legislative power; the legislature demands their protection against the assaults of the executive; they defend the Union from the disobedience of the states, the states from the exaggerated claims of the Union, the public interest against private interests, and the conservative spirit of stability against the fickleness of the democracy. Their power is enormous, but it is the power of public opinion. They are all-powerful as long as the people respect the law; but they would be impotent against popular neglect or contempt of the law. The force of public opinion is the most intractable of agents, because its exact limits cannot be defined; and it is not less dangerous to exceed than to remain below the boundary prescribed.
* * *
Democratic laws generally tend to promote the welfare of the greatest possible number; for they emanate from the majority of the citizens, who are subject to error, but who cannot have an interest opposed to their own advantage. The laws of an aristocracy tend, on the contrary, to concentrate wealth and power in the hands of the minority; because an aristocracy, by its very nature, constitutes a minority. It may therefore be asserted, as a general proposition, that the purpose of a democracy in its legislation is more useful to humanity than that of an aristocracy. This, however, is the sum total of its advantages.
* * *
In visiting the Americans and studying their laws, we perceive that the authority they have entrusted to members of the legal profession, and the influence that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy. This effect seems to me to result from a general cause, which it is useful to investigate, as it may be reproduced elsewhere….
Men who have made a special study of the laws derive from [that] occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.
The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but not very generally known; they serve as arbiters between the citizens; and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude. Add to this that they naturally constitute a body; not by any previous understanding, or by an agreement that directs them to a common end; but the analogy of their studies and the uniformity of their methods connect their minds as a common interest might unite their endeavors.
Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other men, are governed by their private interests, and especially by the interests of the moment.
* * *
I do not, then, assert that all the members of the legal profession are at all times the friends of order and the opponents of innovation, but merely that most of them are usually so. In a community to which lawyers are allowed to occupy without opposition that high station which naturally belongs to them, their general spirit will be eminently conservative and anti-democratic. When an aristocracy excludes the leaders of that profession from its ranks, it excites enemies who are the more formidable as they are independent of the nobility by their labors and feel themselves to be their equals in intelligence though inferior in opulence and power.
* * *
Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten, also, that if they prize freedom much, they generally value legality still more; they are less afraid of tyranny than of arbitrary power; and, provided the legislature undertakes of itself to deprive men of their independence, they are not dissatisfied.
* * *
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a two-fold authority from it and over it. The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.
The profession of the law is the only aristocratic element that can be amalgamated without violence with the natural elements of democracy and be advantageously and permanently combined with them. I am not ignorant of the defects inherent in the character of this body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could hope to exist at the present time if the influence of lawyers in public business did not increase in proportion to the power of the people.
* * *
In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar.
The more we reflect upon all that occurs in the United States, the more we shall be persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element. In that country we easily perceive how the legal profession is qualified by its attributes, and even by its faults, to neutralize the vices inherent in popular government. When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. These secretly oppose their aristocratic propensities to the nation's democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.
The courts of justice are the visible organs by which the legal profession is enabled to control the democracy. The judge is a lawyer who, independently of the taste for regularity and order that he has contracted in the study of law, derives an additional love of stability from the inalienability of his own functions. His legal attainments have already raised him to a distinguished rank among his fellows; his political power completes the distinction of his station and gives him the instincts of the privileged classes.
* * *
It must not be supposed, moreover, that the legal spirit is confined in the United States to the courts of justice; it extends far beyond them. As the lawyers form the only enlightened class whom the people do not mistrust, they are naturally called upon to occupy most of the public stations. They fill the legislative assemblies and are at the head of the administration; they consequently exercise a powerful influence upon the formation of the law and upon its execution. The lawyers are obliged, however, to yield to the current public opinion, which is too strong for them to resist; but it is easy to find indications of what they would do if they were free to act. The Americans, who have made so many innovations in their political laws, have introduced very sparing alterations in their civil laws, and that with great difficulty, although many of these laws are repugnant to their social condition. The reason for this is that in matters of civil law the majority are obliged to defer to the authority of the legal profession, and the American lawyers are disinclined to innovate when they are left to their own choice.
* * *
The influence of legal habits extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habit to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate. The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time and accommodates itself without resistance to all the movements of the social body. But this party extends over the whole community and penetrates into all the classes which compose it; it acts upon the country imperceptibly, but finally fashions it to suit its own purposes.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
Tuesday, February 7, 2012
Lecture #4--Law & Social Policy 2-6-12: The Power of the President
2-6-12
Lecture # 4: Law & Social Policy: (1) The Power of the Presidency & (2) Governance Issues Raised by Tocqueville
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, September 25, 2001.
____________________________________________
Assignments for Class #4:
1. The Federalist Papers No. 69 (Hamilton) “The Real Character of the Executive” pp.—414-421.
2. Tocqueville Chapter 8 “The Federal Constitution: The Executive Power” pp.-141-161.
3. Tocqueville commentary on: (1) fear of legislative power (181, 288, 304-305), (2) tyranny of the majority (68, 71, 181, 223-224, 287-305, 603,747), (3) war (755-757), (4) the law of property and inheritance (60-64, 840-841), (5) a free press (213, 222, 811-812), (6) judicial power (122, 314, 812), (7) love of money (41,64, 616-618, 627-28, 713, 721-722, 788), (8) how a new aristocracy may emerge in America (645-648), (9) lawyers (…lawyers form the only enlightened class not distrusted by the people. 314, 307-315), (10) wages (675-677) and work (639), (11) women (687, 692, 696, 700), (12) main objective of legislation and legislator (49, 817), (13) the source of laws (49, 57, 58, 71, 319, 335, 357, 362), (14) freedom and equality (583-587), (15) individualism (583-586-91, 683, 780), (16) religion (54-56, 336-352, 636), (17) public education American style (53-54, 65 [job preparation], 352-357, 537), (18) the social theory of the United States (42-47), (19) voluntary associations [compare with The Federalist Papers No. 10 (Madison on Factions] (219-227, 595-609, 700-702), (20) race (398-426); (21) manners (705).
The love of comfort has become the dominant taste of the nation. Tocqueville 618.
I have already said enough to put Anglo-American civilization in its true light. It is the product of two perfectly distinct elements which elsewhere have often been at war with one another but which in America it was somehow possible to incorporate into each other, forming a marvelous combination. I mean the spirit of religion and the spirit of freedom. . . . Far from harming each other, these two apparently opposed tendencies work in harmony and seem to lend mutual support. –Tocqueville 55-56.
O tempora, o mores! /O, the times, O, the customs! –Cicero
1. Reading 5 minutes
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, September 25, 2001.
RE-ELECTION OF THE PRESIDENT
When the head of the executive power comes up for reelection it is the state itself which becomes locked into intrigue and corruption—Desire to be reelected dominates all the thoughts of a President of the United States---Re-election of the President fosters this weakness. Page 159-161.
2. Summary of Lecture #3: The Power of the Legislature (in 250 Words or Less): 10 minutes
It is to a legislature … that almost all the authority of the government has been entrusted. Tocqueville Ch. XV
The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period. Tocqueville quoting Thomas Jefferson Ch. XV
In the first class we examined the Power of the People; in the second, the Power of the Judiciary; the third treated the Power of the Legislature and in this, our fourth class, we look at the Power of the Executive Branch. To guides us, we rely upon Tocqueville, The Federalist Papers and Professor Chemerinsky’s text, “Constitutional Law.” The title of our lecture tonight is The Power of the Presidency and Governance Issues Raised by Tocqueville. Next class, the fifth, we will treat Tocqueville’s discussion of social issues.
Summary of Class #3
Tocqueville identifies two main threats to democracy: the subservience of the legislature to the will of the people and the concentration of all other powers in the legislature (p.181). (Book 1, Chapter 8).
The commerce clause is to the legislative branch what the power to declare laws unconstitutional is to the judiciary: a means to exercise, enlarge and extend the breadth and the scope of its reach to meet contemporary requirements of the constitution.
A transformation in the power of Congress occurred after 1937 when the Supreme Court recognized broad congressional authority to adopt laws under the commerce clause, its general spending power and the Reconstruction Amendments (13, 14, 15). This legal change was based on ‘ a perceived need for a strong national government to deal with the problems of the twentieth century….” Chemerinsky, page 238.
But in the last 15 years, the Supreme Court has reversed direction and has begun limiting the scope of federal powers under the commerce clause, the 14th Amendment and the Tenth Amendment. 235 words.
3. Lecture: The Power of the Presidency & Social Issues Raised by Tocqueville. DV: 1467 words. 15 minutes
Article II of the constitution provides that the executive Power shall be vested in a president. The Article then enumerates specific powers of the presidency. Early debate centered on the question as to whether the president was granted certain inherent powers beyond those enumerated. Article I, in contrast, says that “All legislative powers herein granted…’ shall be vested in congress. Article II does not contain the ‘herein granted’ limitation and as a result it was Hamilton’s position that the president has inherent powers and Madison’s position that he does not. It is probably fair to say the judicial decisions have followed Hamilton and Madison—that’s right, they’re on both sides of the issue with no definitive pronouncement one way or another due to the judicial policy of deciding cases on the most narrow grounds available. The landmark case on this issue was Youngstown Sheet & Tube v. Sawyer, when the president in 1952 seized the steel mills to avert a nationwide strike by the steel workers on the grounds it would adversely impact prosecution of the Korean War. Congress took no action. In a 6-3 decision, the Supreme Court rejected Truman’s action. There are 4 different approaches in the opinion to the issue of inherent power. In recent years, there have been broad claims for presidential power to protect national security and fight terrorism. For example, the Bush administration argued it has inherent power to conduct warrantless eavesdropping even though it was in violation of the Foreign Intelligence Security Act. (See page 349 Chemerinsky, footnote 27 for citation to John Yoo approach).
We experienced the same issue when we considered judicial power and learned that certain unexpressed rights and duties could or must be implied in the constitution, including the important judicial right to declare laws and acts and omissions unconstitutional. We learned in the last lecture that the commerce clause of the U.S. constitution was the primary—but not the only—vehicle for exercising expanded congressional powers.
So, let me make an overarching generalization: social policy comes into decisions and actions of the judiciary, the presidency and congress through the commerce clause (and the general spending power and the 14th Amendment), through judicial review based on the constitution (and the evolving standard of decency test of the 8th Amendment) and through the inherent powers of the presidency that are formed and forged in the seething cauldron of social, political and economic change.
Now we turn to the executive branch or, to say more directly what we’re talking about: The Presidency. Hamilton’s first point about the power of the executive branch in Federalist Paper No. 69 is that it will be vested in a single magistrate: one person. Conceivably, executive power could have resided in a council or committee or tribunal. While the decision to vest the office in one person raises the specter of kingship, Hamilton shows the fundamental differences between the presidency and a king, using the king of England as a point of contrast and comparison: The first difference is the tenure both its nature and its duration. The president is elected for 4 years and may be reelected indefinitely (later limited by constitutional amendment). Moreover, the president is subject to impeachment AND prosecution after the term is over under the ordinary course of law. The president has a qualified veto of legislative acts as compared to the absolute veto of a monarch. The president is the commander-in-chief of the army and navy and the militia when federalized but lacks power to raise an army, to declare war and cannot finance and regulate the fleets without congressional authorization. The foregoing are three very substantial impediments to presidential power when compared to the king’s military power.
The president has substantial pardon power EXCEPT impeachment (and this is a fundamental and very important political limitation) but he can pardon treason AFTER conviction. Also, the president has very limited power to adjourn the national legislature, only in the cases of a disagreement about the time of adjournment. The president can make treaties but only with consent of 2/3rds of the senate. Hamilton’s summary of the differences between a king and a president are instructive:
Federalist 69: The president is an officer of the people for four years; the king is a perpetual and hereditary prince. The president is amenable to personal punishment and disgrace while the king is sacred, immune and inviolable. The president has a qualified negative upon legislative acts, the king has and absolute negative. The president has the right to command the military and naval forces but the king has the additional rights to declare war and raise and regulate armies and fleets by his own authority. The king possesses the right to make treaties without concurrence by any other authority; the president has a concurrent power to do so. The king can confer personal and commercial privileges the president cannot. The king can coin money and regulate commerce, declare embargoes, regulate weights and measures, and prohibit circulation of foreign coin. The president has NO spiritual jurisdiction; the king is head of the church. 151 words.
Tocqueville is not so much worried about the presidency devolving into kingship (although he is worried about a future presidential tyranny) as he is worried about the politicization of the office due to the president’s ability to seek reelection. His critique reads like a current lament about presidential politics. The extended reading with which our class began (from pages 158-161, Tocqueville “Re-election of the President’) praises the founders of the country for drafting a constitution that balances the power of the executive branch but then makes a jarring condemnation:
“But when they introduced the principal of re-election, they in part destroyed their work’ (p. 161). “Once the president can stand for re-election…he is but a docile tool in the hands of the majority.’ (P.161).
Tocqueville felt it is impossible for a president to observe the normal course of affairs when his own re-election dominates his thoughts and official actions and policies. When his election is at stake, his private interests transcend the public interest. And while the founders intended that the president guide the people and the legislature, he instead follows them.
Tocqueville, comparing the presidency to the French king, noted certain limitations imposed on the president by circumstance, certain practical limitations on the power of the presidency due to external conditions. These interest us today because the limitations he noted no longer exist. They all deal with the president’s war powers and foreign policy prerogatives. For example, while the president is commander in chief, the army had only 6000 men at the time Tocqueville wrote and the navy had only a few vessels. The United States had no neighbors and was protected by the vast ocean; it had no enemies; this shows, Tocqueville wrote, “…that the practice of government must not be judged by theory.” (P 147). He noted that the president enjoyed almost ‘royal prerogatives which he has no chance of exercising.” (P.147). “The laws enable him to be strong; circumstances keep him weak” (P. 147).
The presidency has changed dramatically since Tocqueville first described it. Today, the president wields great power across a wide spectrum including the ability to set a national agenda, to appoint members to executive agencies and to courts, to conduct a wide range of foreign policy actions, and to control the extensive military resources of the United States.
In each of these areas there has been a transfer of power from the legislative branch to the executive. “Many cultural demands have contributed to this—the president’s power of charismatic leadership, the growth of mass communication with its focus on a single speaker, the growth in international American power, and the deference of the other branches to the executive.
In 1960, Richard Neustadt suggested that students of the executive branch should maintain the difference between the president’s power of personal influence and the powers of the office. This difference is important in understanding the growth of executive power. During the twentieth century, the terms of executive power have not changed very much by the terms of the Constitution—in fact, one of the major changes would be an apparent reduction in the constitutional power of the president by the limiting of the number of terms of office the president can serve. The power of the president has, however, vastly increased in all the areas mentioned above. Presidents are in charge of ever larger institutions of administrative power, more than ever they are expected to be the pilot of national policy, and, moreover, the president is now widely conceived to posses the sole power in foreign affairs, including the ability to make decisions of war and peace. <“http://www.learner.org/courses/democracyinamerica/support/dia_7_readings.pdf> .
The John Yoo memorandum to the President on preemptive war is a modern illustration as are issues surrounding signing statements, recess appointments, refusal to defend selected congressional enactments ( for example, the defense of marriage act).
4. Class Assignments: Federalist Papers, Tocqueville
1) 20. Chris Robert: LEGISLATIVE POWER, fear of: 181, 288, 304-305.(“Justice is the end of government. It is the end of civil society. ”Federalist 51.
2) 1.Brad Corbin: TYRRANY OF MAJORITY 68, 71, 181, 223-224, 287-305, 603, 747.
MOLLY: What moderates the tyranny of the majority? P 305-322, Chapter 8, Part 2.
3) 11. Nicole Maddox: DEMOCRACY 181 (main threats to), 294 (main complaint against), MAJORITY RULE 297 (effect on opinions), 290, 292 299 (no freedom of thought), 747 (public approval).
***The foregoing all interrelated and may be duplicated*****
4) 23. Lu Jessee. MAIN OBJECTIVE OF LEGISLATION 49, 817.
5. Discussion of Reading: Yoo Memorandum and election of the president.
The Following Assignments for Class # 5
2. Sara Thompson: INDIVIDUALISM 683 (isolation), 589
3. Zac Richards: ASSOCIATIONS 219-227, 223, 595-609, 700-702 811
4. Nathan Batey: MATERIALISM 627-628 (read this aloud in class).
5. Natalie Humphrey: FREE PRESS 213, 222, 811-812
6. Darick Crumbly: LAWYERS 307-315, 308, 309, 314
7. Jonathan Raymond: PUBLIC EDUCATION
8. Brandi Melvin: WAR 755-756, 768, 260 (the draft)
9. Jacob Giesecke: NEW SOLUTIONS for NEW DISORDER 816-817 (main idea of the book, main purpose of legislation)
10. Brittany HAMPTON KINDNESS 653 (Death Penalty)
12. Chris Moncrief: DEPOTISM OF THE FUTURE 805-806
13. Stephanie Carr: FEAR OF DISORDER, LOVE OF COMFORT 788
14. Paige Hamby: LOVE OF MONEY 41, 64, 616-618, 627-628, 713, 721, 722, 788 and comfort, 618.
15. Cathy Barnes: WOMEN 687, 692, 696, 700
16. Jillian Smith: UPWARD MOBILITY 637
17. Cassle Kennedy: EQUALITY & FREEDOM: The Puritans established America's democratic social state of equality. They arrived equals in education and were all middle class. 67
18. John Brown: RELIGION & LIBERTY: In addition, Tocqueville observes that they contributed a synthesis of religion and political liberty in America that was uncommon in Europe. 55-56
19. Nicolas Laughlin: MANNERS, SOCIAL CONDITION: 319, 357, 328, 705 Tocqueville believed that the Puritans established the principle of sovereignty of the people in the Fundamental Orders of Connecticut. The American Revolution then popularized this principle, followed by the Constitutional Convention of 1787, which developed institutions to manage popular will. While Tocqueville speaks highly of the America's Constitution, he believes that the mores, or "habits of mind" of the American people play a more prominent role in the protection of freedom.
21.Lauren Reynolds: JUDICIAL POWER 122, 314, 315 812
22. Jasmine Hardin, NEW ARISTOCRACY 645-648
24. Jenn Siewersen, SOURCE OF LAWS 49, 57, 58, 71, 319, 335, 357, 362.
25. Josh Porter: RACE 398-426
26. Molly: MAIN IDEA OF BOOK: 335, 816
Molly: TWO MOST IMPORTANT POWERS: Judicial and Free Press, 812.
They conceived that a certain authority above the body of the people was necessary, which should enjoy a degree of independence in its sphere without being entirely beyond the popular control; an authority which would be forced to comply with the permanent determinations of the majority, but which would be able to resist its caprices and refuse its most dangerous demands. To this end they centered the whole executive power of the nation in a single arm; they granted extensive prerogatives to the President and armed him with the veto to resist the encroachments of the legislature.
But by introducing the principle of re-election they partly destroyed their work; they conferred on the President a great power, but made him little inclined to use it.
Page 159:
“WERE the legislators of the United States right or wrong in allowing the re-election of the President? At first sight is seems contrary to all reason to prevent the head of the executive power from being elected a second time. The influence that the talents and the character of a single individual may exercise upon the fate of a whole people, especially in critical circumstances or arduous times, is well known. A law preventing the re-election of the chief magistrate would deprive the citizens of their best means of ensuring the prosperity and the security of the com-monwealth; and by a singular inconsistency, a man would be excluded from the government at the very time when he had proved his ability to govern well.
But if these arguments are strong, perhaps still more powerful reasons may be advanced against them. Intrigue and corruption are the natural vices of elective government; but when the head of the state can be re-elected, these evils rise to a great height and compromise the very existence of the country. When a simple candidate seeks to rise by intrigue, his maneuvers must be limited to a very narrow sphere; but when the chief magistrate enters the lists, he borrows the strength of the government for his own purposes. In the former case the feeble resources of an individual are in action; in the latter the state itself, with its immense influence, is busied in the work of corruption and cabal. The private citizen who employs culpable practices to acquire power can act in a manner only indirectly prejudicial to the public prosperity. But if the representative of the executive descends into the combat, the cares of government dwindle for him into second-rate importance, and the success of his elec- tion is his first concern. All public negotiations, as well as all laws, are to him nothing more than electioneering schemes; places become the reward of services rendered, not to the nation, but to its chief; and the influence of the government, if not injurious to the country, is at least no longer beneficial to the community for which it was created.” Vol 1, Chapter 8.
Federalist 69:
…In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature…..”
Lecture # 4: Law & Social Policy: (1) The Power of the Presidency & (2) Governance Issues Raised by Tocqueville
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, September 25, 2001.
____________________________________________
Assignments for Class #4:
1. The Federalist Papers No. 69 (Hamilton) “The Real Character of the Executive” pp.—414-421.
2. Tocqueville Chapter 8 “The Federal Constitution: The Executive Power” pp.-141-161.
3. Tocqueville commentary on: (1) fear of legislative power (181, 288, 304-305), (2) tyranny of the majority (68, 71, 181, 223-224, 287-305, 603,747), (3) war (755-757), (4) the law of property and inheritance (60-64, 840-841), (5) a free press (213, 222, 811-812), (6) judicial power (122, 314, 812), (7) love of money (41,64, 616-618, 627-28, 713, 721-722, 788), (8) how a new aristocracy may emerge in America (645-648), (9) lawyers (…lawyers form the only enlightened class not distrusted by the people. 314, 307-315), (10) wages (675-677) and work (639), (11) women (687, 692, 696, 700), (12) main objective of legislation and legislator (49, 817), (13) the source of laws (49, 57, 58, 71, 319, 335, 357, 362), (14) freedom and equality (583-587), (15) individualism (583-586-91, 683, 780), (16) religion (54-56, 336-352, 636), (17) public education American style (53-54, 65 [job preparation], 352-357, 537), (18) the social theory of the United States (42-47), (19) voluntary associations [compare with The Federalist Papers No. 10 (Madison on Factions] (219-227, 595-609, 700-702), (20) race (398-426); (21) manners (705).
The love of comfort has become the dominant taste of the nation. Tocqueville 618.
I have already said enough to put Anglo-American civilization in its true light. It is the product of two perfectly distinct elements which elsewhere have often been at war with one another but which in America it was somehow possible to incorporate into each other, forming a marvelous combination. I mean the spirit of religion and the spirit of freedom. . . . Far from harming each other, these two apparently opposed tendencies work in harmony and seem to lend mutual support. –Tocqueville 55-56.
O tempora, o mores! /O, the times, O, the customs! –Cicero
1. Reading 5 minutes
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, September 25, 2001.
RE-ELECTION OF THE PRESIDENT
When the head of the executive power comes up for reelection it is the state itself which becomes locked into intrigue and corruption—Desire to be reelected dominates all the thoughts of a President of the United States---Re-election of the President fosters this weakness. Page 159-161.
2. Summary of Lecture #3: The Power of the Legislature (in 250 Words or Less): 10 minutes
It is to a legislature … that almost all the authority of the government has been entrusted. Tocqueville Ch. XV
The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period. Tocqueville quoting Thomas Jefferson Ch. XV
In the first class we examined the Power of the People; in the second, the Power of the Judiciary; the third treated the Power of the Legislature and in this, our fourth class, we look at the Power of the Executive Branch. To guides us, we rely upon Tocqueville, The Federalist Papers and Professor Chemerinsky’s text, “Constitutional Law.” The title of our lecture tonight is The Power of the Presidency and Governance Issues Raised by Tocqueville. Next class, the fifth, we will treat Tocqueville’s discussion of social issues.
Summary of Class #3
Tocqueville identifies two main threats to democracy: the subservience of the legislature to the will of the people and the concentration of all other powers in the legislature (p.181). (Book 1, Chapter 8).
The commerce clause is to the legislative branch what the power to declare laws unconstitutional is to the judiciary: a means to exercise, enlarge and extend the breadth and the scope of its reach to meet contemporary requirements of the constitution.
A transformation in the power of Congress occurred after 1937 when the Supreme Court recognized broad congressional authority to adopt laws under the commerce clause, its general spending power and the Reconstruction Amendments (13, 14, 15). This legal change was based on ‘ a perceived need for a strong national government to deal with the problems of the twentieth century….” Chemerinsky, page 238.
But in the last 15 years, the Supreme Court has reversed direction and has begun limiting the scope of federal powers under the commerce clause, the 14th Amendment and the Tenth Amendment. 235 words.
3. Lecture: The Power of the Presidency & Social Issues Raised by Tocqueville. DV: 1467 words. 15 minutes
Article II of the constitution provides that the executive Power shall be vested in a president. The Article then enumerates specific powers of the presidency. Early debate centered on the question as to whether the president was granted certain inherent powers beyond those enumerated. Article I, in contrast, says that “All legislative powers herein granted…’ shall be vested in congress. Article II does not contain the ‘herein granted’ limitation and as a result it was Hamilton’s position that the president has inherent powers and Madison’s position that he does not. It is probably fair to say the judicial decisions have followed Hamilton and Madison—that’s right, they’re on both sides of the issue with no definitive pronouncement one way or another due to the judicial policy of deciding cases on the most narrow grounds available. The landmark case on this issue was Youngstown Sheet & Tube v. Sawyer, when the president in 1952 seized the steel mills to avert a nationwide strike by the steel workers on the grounds it would adversely impact prosecution of the Korean War. Congress took no action. In a 6-3 decision, the Supreme Court rejected Truman’s action. There are 4 different approaches in the opinion to the issue of inherent power. In recent years, there have been broad claims for presidential power to protect national security and fight terrorism. For example, the Bush administration argued it has inherent power to conduct warrantless eavesdropping even though it was in violation of the Foreign Intelligence Security Act. (See page 349 Chemerinsky, footnote 27 for citation to John Yoo approach).
We experienced the same issue when we considered judicial power and learned that certain unexpressed rights and duties could or must be implied in the constitution, including the important judicial right to declare laws and acts and omissions unconstitutional. We learned in the last lecture that the commerce clause of the U.S. constitution was the primary—but not the only—vehicle for exercising expanded congressional powers.
So, let me make an overarching generalization: social policy comes into decisions and actions of the judiciary, the presidency and congress through the commerce clause (and the general spending power and the 14th Amendment), through judicial review based on the constitution (and the evolving standard of decency test of the 8th Amendment) and through the inherent powers of the presidency that are formed and forged in the seething cauldron of social, political and economic change.
Now we turn to the executive branch or, to say more directly what we’re talking about: The Presidency. Hamilton’s first point about the power of the executive branch in Federalist Paper No. 69 is that it will be vested in a single magistrate: one person. Conceivably, executive power could have resided in a council or committee or tribunal. While the decision to vest the office in one person raises the specter of kingship, Hamilton shows the fundamental differences between the presidency and a king, using the king of England as a point of contrast and comparison: The first difference is the tenure both its nature and its duration. The president is elected for 4 years and may be reelected indefinitely (later limited by constitutional amendment). Moreover, the president is subject to impeachment AND prosecution after the term is over under the ordinary course of law. The president has a qualified veto of legislative acts as compared to the absolute veto of a monarch. The president is the commander-in-chief of the army and navy and the militia when federalized but lacks power to raise an army, to declare war and cannot finance and regulate the fleets without congressional authorization. The foregoing are three very substantial impediments to presidential power when compared to the king’s military power.
The president has substantial pardon power EXCEPT impeachment (and this is a fundamental and very important political limitation) but he can pardon treason AFTER conviction. Also, the president has very limited power to adjourn the national legislature, only in the cases of a disagreement about the time of adjournment. The president can make treaties but only with consent of 2/3rds of the senate. Hamilton’s summary of the differences between a king and a president are instructive:
Federalist 69: The president is an officer of the people for four years; the king is a perpetual and hereditary prince. The president is amenable to personal punishment and disgrace while the king is sacred, immune and inviolable. The president has a qualified negative upon legislative acts, the king has and absolute negative. The president has the right to command the military and naval forces but the king has the additional rights to declare war and raise and regulate armies and fleets by his own authority. The king possesses the right to make treaties without concurrence by any other authority; the president has a concurrent power to do so. The king can confer personal and commercial privileges the president cannot. The king can coin money and regulate commerce, declare embargoes, regulate weights and measures, and prohibit circulation of foreign coin. The president has NO spiritual jurisdiction; the king is head of the church. 151 words.
Tocqueville is not so much worried about the presidency devolving into kingship (although he is worried about a future presidential tyranny) as he is worried about the politicization of the office due to the president’s ability to seek reelection. His critique reads like a current lament about presidential politics. The extended reading with which our class began (from pages 158-161, Tocqueville “Re-election of the President’) praises the founders of the country for drafting a constitution that balances the power of the executive branch but then makes a jarring condemnation:
“But when they introduced the principal of re-election, they in part destroyed their work’ (p. 161). “Once the president can stand for re-election…he is but a docile tool in the hands of the majority.’ (P.161).
Tocqueville felt it is impossible for a president to observe the normal course of affairs when his own re-election dominates his thoughts and official actions and policies. When his election is at stake, his private interests transcend the public interest. And while the founders intended that the president guide the people and the legislature, he instead follows them.
Tocqueville, comparing the presidency to the French king, noted certain limitations imposed on the president by circumstance, certain practical limitations on the power of the presidency due to external conditions. These interest us today because the limitations he noted no longer exist. They all deal with the president’s war powers and foreign policy prerogatives. For example, while the president is commander in chief, the army had only 6000 men at the time Tocqueville wrote and the navy had only a few vessels. The United States had no neighbors and was protected by the vast ocean; it had no enemies; this shows, Tocqueville wrote, “…that the practice of government must not be judged by theory.” (P 147). He noted that the president enjoyed almost ‘royal prerogatives which he has no chance of exercising.” (P.147). “The laws enable him to be strong; circumstances keep him weak” (P. 147).
The presidency has changed dramatically since Tocqueville first described it. Today, the president wields great power across a wide spectrum including the ability to set a national agenda, to appoint members to executive agencies and to courts, to conduct a wide range of foreign policy actions, and to control the extensive military resources of the United States.
In each of these areas there has been a transfer of power from the legislative branch to the executive. “Many cultural demands have contributed to this—the president’s power of charismatic leadership, the growth of mass communication with its focus on a single speaker, the growth in international American power, and the deference of the other branches to the executive.
In 1960, Richard Neustadt suggested that students of the executive branch should maintain the difference between the president’s power of personal influence and the powers of the office. This difference is important in understanding the growth of executive power. During the twentieth century, the terms of executive power have not changed very much by the terms of the Constitution—in fact, one of the major changes would be an apparent reduction in the constitutional power of the president by the limiting of the number of terms of office the president can serve. The power of the president has, however, vastly increased in all the areas mentioned above. Presidents are in charge of ever larger institutions of administrative power, more than ever they are expected to be the pilot of national policy, and, moreover, the president is now widely conceived to posses the sole power in foreign affairs, including the ability to make decisions of war and peace. <“http://www.learner.org/courses/democracyinamerica/support/dia_7_readings.pdf> .
The John Yoo memorandum to the President on preemptive war is a modern illustration as are issues surrounding signing statements, recess appointments, refusal to defend selected congressional enactments ( for example, the defense of marriage act).
4. Class Assignments: Federalist Papers, Tocqueville
1) 20. Chris Robert: LEGISLATIVE POWER, fear of: 181, 288, 304-305.(“Justice is the end of government. It is the end of civil society. ”Federalist 51.
2) 1.Brad Corbin: TYRRANY OF MAJORITY 68, 71, 181, 223-224, 287-305, 603, 747.
MOLLY: What moderates the tyranny of the majority? P 305-322, Chapter 8, Part 2.
3) 11. Nicole Maddox: DEMOCRACY 181 (main threats to), 294 (main complaint against), MAJORITY RULE 297 (effect on opinions), 290, 292 299 (no freedom of thought), 747 (public approval).
***The foregoing all interrelated and may be duplicated*****
4) 23. Lu Jessee. MAIN OBJECTIVE OF LEGISLATION 49, 817.
5. Discussion of Reading: Yoo Memorandum and election of the president.
The Following Assignments for Class # 5
2. Sara Thompson: INDIVIDUALISM 683 (isolation), 589
3. Zac Richards: ASSOCIATIONS 219-227, 223, 595-609, 700-702 811
4. Nathan Batey: MATERIALISM 627-628 (read this aloud in class).
5. Natalie Humphrey: FREE PRESS 213, 222, 811-812
6. Darick Crumbly: LAWYERS 307-315, 308, 309, 314
7. Jonathan Raymond: PUBLIC EDUCATION
8. Brandi Melvin: WAR 755-756, 768, 260 (the draft)
9. Jacob Giesecke: NEW SOLUTIONS for NEW DISORDER 816-817 (main idea of the book, main purpose of legislation)
10. Brittany HAMPTON KINDNESS 653 (Death Penalty)
12. Chris Moncrief: DEPOTISM OF THE FUTURE 805-806
13. Stephanie Carr: FEAR OF DISORDER, LOVE OF COMFORT 788
14. Paige Hamby: LOVE OF MONEY 41, 64, 616-618, 627-628, 713, 721, 722, 788 and comfort, 618.
15. Cathy Barnes: WOMEN 687, 692, 696, 700
16. Jillian Smith: UPWARD MOBILITY 637
17. Cassle Kennedy: EQUALITY & FREEDOM: The Puritans established America's democratic social state of equality. They arrived equals in education and were all middle class. 67
18. John Brown: RELIGION & LIBERTY: In addition, Tocqueville observes that they contributed a synthesis of religion and political liberty in America that was uncommon in Europe. 55-56
19. Nicolas Laughlin: MANNERS, SOCIAL CONDITION: 319, 357, 328, 705 Tocqueville believed that the Puritans established the principle of sovereignty of the people in the Fundamental Orders of Connecticut. The American Revolution then popularized this principle, followed by the Constitutional Convention of 1787, which developed institutions to manage popular will. While Tocqueville speaks highly of the America's Constitution, he believes that the mores, or "habits of mind" of the American people play a more prominent role in the protection of freedom.
21.Lauren Reynolds: JUDICIAL POWER 122, 314, 315 812
22. Jasmine Hardin, NEW ARISTOCRACY 645-648
24. Jenn Siewersen, SOURCE OF LAWS 49, 57, 58, 71, 319, 335, 357, 362.
25. Josh Porter: RACE 398-426
26. Molly: MAIN IDEA OF BOOK: 335, 816
Molly: TWO MOST IMPORTANT POWERS: Judicial and Free Press, 812.
They conceived that a certain authority above the body of the people was necessary, which should enjoy a degree of independence in its sphere without being entirely beyond the popular control; an authority which would be forced to comply with the permanent determinations of the majority, but which would be able to resist its caprices and refuse its most dangerous demands. To this end they centered the whole executive power of the nation in a single arm; they granted extensive prerogatives to the President and armed him with the veto to resist the encroachments of the legislature.
But by introducing the principle of re-election they partly destroyed their work; they conferred on the President a great power, but made him little inclined to use it.
Page 159:
“WERE the legislators of the United States right or wrong in allowing the re-election of the President? At first sight is seems contrary to all reason to prevent the head of the executive power from being elected a second time. The influence that the talents and the character of a single individual may exercise upon the fate of a whole people, especially in critical circumstances or arduous times, is well known. A law preventing the re-election of the chief magistrate would deprive the citizens of their best means of ensuring the prosperity and the security of the com-monwealth; and by a singular inconsistency, a man would be excluded from the government at the very time when he had proved his ability to govern well.
But if these arguments are strong, perhaps still more powerful reasons may be advanced against them. Intrigue and corruption are the natural vices of elective government; but when the head of the state can be re-elected, these evils rise to a great height and compromise the very existence of the country. When a simple candidate seeks to rise by intrigue, his maneuvers must be limited to a very narrow sphere; but when the chief magistrate enters the lists, he borrows the strength of the government for his own purposes. In the former case the feeble resources of an individual are in action; in the latter the state itself, with its immense influence, is busied in the work of corruption and cabal. The private citizen who employs culpable practices to acquire power can act in a manner only indirectly prejudicial to the public prosperity. But if the representative of the executive descends into the combat, the cares of government dwindle for him into second-rate importance, and the success of his elec- tion is his first concern. All public negotiations, as well as all laws, are to him nothing more than electioneering schemes; places become the reward of services rendered, not to the nation, but to its chief; and the influence of the government, if not injurious to the country, is at least no longer beneficial to the community for which it was created.” Vol 1, Chapter 8.
Federalist 69:
…In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature…..”
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