American Government Lecture Five

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American Government
Fifth Lecture – Bill of Rights and Review of the Judiciary

In this class we return to the judiciary, with a special focus on the Bill of Rights. When the U.S. Constitution was ratified in 1788, there was concern by many Americans that the document did not have enough protections against ever-growing government power. These concerns were well-placed, and many today on both sides of the political spectrum complain about how powerful and overbearing government has become.

The original Constitution established the basic structure of the federal government, but included very few protections for individual rights. Advocates of the Constitution, including Alexander Hamilton and James Madison, insisted that special safeguards for individuals against government power was unnecessary, because the Constitution granted only limited powers to the new federal (national) government. This new "United States" government could not infringe on individual rights because the Constitution did not give it the power to so infringe. But as the ratification debate ensued in various states, particularly the then=large states of Virginia, New York, and Massachusetts, supporters of the Constitution had to promise they would quickly amend the Constitution with a "Bill of Rights" to prevent the new United States government from growing too powerful.

The first Congress after ratification of the Constitution, and after the election of George Washington as the first President, convened in New York City. (Washington, D.C., did not exist yet.) One of its first official acts, on March 4, 1789, was to pass ten amendments as a "Bill of Rights" and then send it to the states for ratification, so that it could become part of the U.S. Constitution. Here is what this Act was:

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

It took about 2.5 years for these amendments to be ratified by three-quarters of the states in order to become part of the Constitution, on December 15, 1791.

The Ratification Process

The Bill of Rights were ratified the same way that any other amendment to the Constitution is ratified: pursuant to the procedures set forth in Article V of the Constitution:

“

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress

”

In simple terms, the primary method is that two-thirds majority of Congress must first pass the amendment, and then three-quarters of the State legislatures must approve it, in order for it to become part of the Constitution. There are other ways to amend the Constitution, such as two-thirds of the States calling for a constitutional convention (like the original constitutional convention), but that has never been done. Many oppose ever calling a Constitutional Convention (Con Con), because it would likely do what the original Constitutional Convention did: rewrite the entire Constitution. There are not any more George Washingtons to preside over it, or Alexander Hamiltons to guide it.

So the Bill of Rights was passed by at least a two-thirds vote of the House of Representatives, and then at least a two-thirds vote of the U.S. Senate, and by the end of 1791 (more than two years later) it was ratified by at least three-quarters of the States.

Some amendments passed by more than two-thirds of both chambers of Congress were unsuccessful in obtaining approval by three-quarters of the States (38 States is three quarters of 50 States today).

The most famous example of a proposed amendment that was never ratified was the so-called "Equal Rights Amendment" (ERA), which was supported by the leaders of both political parties, by all of the media, and passed Congress by almost unanimous votes. The ERA stated:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

After it swiftly passed legislatures in about 32 states, Phyllis Schlafly organized grassroots opposition to under the name "Stop ERA." The implications of ERA, particularly when applied by liberal courts, were to prohibit allowing sensible differences between men and women. If men were drafted into war, then women must be drafted into war. Abortion, even taxpayer-funded abortion, would become law in order to ensure that women could end pregnancies and be just like men. Marriage could no longer be limited to one man and one woman. And so on.

In one of the most stunning political upsets in American history. ratification of ERA was halted at 35 States, 3 short of the 38 States needed to become part of the Constitution. Congress even extended the deadline for ratification from 1979 to 1982, but no additional States passed it, and a few States even rescinded their prior passage of it. On June 30, 1982, the last day of the ratification period set by Congress, Stop ERA group held a victory party in D.C. - which your instructor attended.

Federal Cases

You may recall that there are two general types of cases in federal court: "diversity" cases (between citizens of different states, with the amount in dispute more than $75,000) and cases that arise under federal law (e.g., criminal and civil rights cases). Here is 2011 data about specific types of cases filed in federal court (U.S. District Court):

General Type of Case	Specific Type of Case	Number of Filings 2011
diversity cases	tort actions	78,175
diversity cases	personal injury actions	73,749
cases arising under federal law	prisoner petitions	53,611
cases arising under federal law	civil rights actions	37,020
diversity cases	contract actions	32,306
cases arising under federal law	bankruptcy actions	2,829
Total Number of Filings		289,252

In addition, a far greater number of cases are filed in state court each year.

In personal injury cases, plaintiffs often prefer to be in state rather than federal court. Can you think of why? (Answer: damage awards in state court tend to be higher). In criminal cases, defendants typically prefer to be in state court too. Do you know why? (Answer: federal courts tend to favor prosecutors more than state courts do; acquittal rates are much higher in state court, and sentencing is often more reasonable).

Suppose you are in federal district court, and you lose. Do you have any further recourse? Yes, you can appeal the decision to a federal court of appeals. In New York, the Court of Appeals is the “Second Circuit”. In New Jersey, appeals are taken to the “Third Circuit,” which covers New Jersey, Pennsylvania, Delaware and the Virgin Islands. In Texas, federal appeals are to the “Fifth Circuit.” The largest federal Court of Appeals is the Ninth Circuit, which covers California, Oregon, Washington, Arizona and other western states. Congress has considered splitting it into two circuits.

On appeal, you will find yourself before a three-judge panel. A vote of the majority of the three judges will decide your case. It takes about nine months to submit legal memoranda on why you think the federal district court was wrong and hold “oral argument” before the three-judge panel. Don’t be surprised if the judges are inattentive at oral argument, or even dosing off to catch up on some sleep! Also, don’t be surprised if their questions seem to favor your side, but a few weeks later issue a written decision against you. You usually have to wait weeks or a month or two for a decision. In controversial or difficult cases, it can be a year before you receive a decision.

If you lose before the federal court of appeals, then your last chance is to appeal it to the United States Supreme Court.

III. The United States Supreme Court

The United States Supreme Court is the final authority on the law. It accepts fewer than 100 cases a year out of 7500 or so. The overall odds of having the Supreme Court hear your case are barely more than 1%. Generally one side must petition the Supreme Court for a writ of certiorari (Latin meaning “to be informed of”). Informally, this is simply known as seeking “cert.” In the few cases that the Supreme Court agrees to hear, it “grants cert.” to review the case.

The main criterion for “granting cert.” is whether there is a disagreement between two or more federal courts of appeals on a legal issue. For example, the Seventh Circuit (in Chicago) held that the phrase “under God” in the Pledge of Allegiance does not violate the First Amendment, while the Ninth Circuit (in San Francisco) recently held that it does. This creates a sharp conflict between different areas of the country, which only the Supreme Court can resolve. We filed a brief in support of cert. in this case, and expect a ruling very soon, perhaps even this week.

Another factor determining whether the Supreme Court will hear a case is its importance. An example would be a case directly involving the president. If the president is not involved, however, a case must be tremendously important to trigger review solely on this basis.

When the Department of Justice requests that the Supreme Court accept a case, then that carries extra weight (too much extra weight, in the eyes of some). The federal government has a special office assigned to argue cases before the Supreme Court, known as the Solicitor General’s office. Ted Olson is our current Solicitor General in the Bush Administration. Officially, he works for Attorney General John Ashcroft in the Department of Justice; unofficially, he often seems to do what he wants.

The nine Justices on the current Supreme Court were appointed as follows:

by President Reagan: Justices Scalia and Kennedy by the first President Bush: Justices Souter and Thomas by President Clinton: Justices Ginsburg and Breyer by President George W. Bush: Chief Justice John Roberts and Justice Sam Alito by President Barack Hussein Obama: Justices Sotomayor and Kagan

Politically, the Court has 4 conservatives (Roberts, Scalia, Thomas and Alito), 4 liberals (Breyer, Ginsburg, Sotomayor, and Kagan) and 1 “moderate” (Kennedy).

The Court has forged an enduring majority on issues of federalism (returning power to states), free speech (expanding free speech protections) and school vouchers. The Court has also recently reduced intolerance towards religion, allowing prayer groups as after-school activities.

The Supreme Court held in favor of President George W. Bush to resolve the disputed election in 2000. That was a narrow 5-4 margin, even though Republican-appointed justices hold a 7-2 majority. In fact, many important decisions are decided on only a 5-4 basis. The decision allowing school vouchers, whereby parents could receive vouchers from public schools to attend private schools, was by a 5-4 vote. Polarization on the Court seems to favor razor-thin margins in decisions.

The Chief Justice’s vote is not worth more than any other Justice on the Court. However, he does have the advantage of deciding who writes the opinion for his side in a case. Whichever side he is on (majority or dissent), he picks the person to write the decision of his side. In important cases, he picks himself to write it. The most senior justice on the other side picks who writes the opinion for that side.

The infamous Roe v. Wade decision promoting abortion was by a 7-2 vote. Court folklore is that Chief Justice Warren Burger was himself against abortion, but voted with the majority in order to be able to select the author of the opinion. He picked Justice Blackmun, a longtime friend of his. However, Justice Blackmun then wrote a dreadful opinion.

Each State also has its own Supreme Court to oversee the state court system. However, its name is not always “Supreme Court.” In New York, oddly enough, the “Supreme Court” is the lowest level, where trials are held. The highest appellate court is the “New York Court of Appeals.”

NOTE: The book misspelled current Supreme Court Justice Ruth Bader Ginsburg’s name.

IV. One’s “Day in Court”.

I have personally litigated numerous cases over the past ten years. Before long, it became painfully clear to me that both sides in litigation are typically worse off at its end of litigation than at the beginning. In other words, litigation is usually a lose-lose proposition for both sides. So why are so many lawsuits filed?

Criminal cases are, of course, viewed as necessary to punish wrongdoing and deter crime. This is certainly true in state court, where crimes like murder are prosecuted. In federal court it is less clear. Since 9/11, we have been told that federal agents are looking for and catching terrorists. Yet not a single person has been convicted of any crime in connection with 9/11.

In fact, a federal judge recently ruled against the government in its prosecution of the alleged 20th terrorist, Zacarias Moussaoui. He says he is a member of al-Qaeda but knew nothing about the attacks. He seeks to prove his innocence by having his attorney question several key al-Qaeda prisoners. When the government refused to allow this, the judge recently decided that he cannot be prosecuted for being involved in 9/11.

The government is not prosecuting any other citizens for the 9/11 attack itself. Instead, the vast majority of federal prosecutions concern immigration and drugs. High publicity cases include the prosecution of executives like Martha Stewart. Sometimes congressmen are prosecuted, like the former Chairman of the powerful Ways and Means Committee, Dan Rostenkowski. He was convicted but President Clinton later pardoned him.

Most cases in federal court are “civil” disputes, whereby the government or a private party brings non-criminal charges against a defendant. Commercial disputes and claims of personal injury are the vast majority of these cases. [I highly doubt this is true; I would say (although I don't have any evidence) that debt collection claims, eviction controversies, and other small claims would be far more frequent, which explains why there are special small claims courts for handling these types of cases. In addition, I think family law, bankruptcy, and employment discrimination cases make up a substantial portion of the courts' caseload. GregG 00:02, 13 October 2012 (EDT)] Often they require many years and much legal fees before resolution. Rarely do the parties recover more than they spent in attorneys fees. However, although the general American rule is that parties are responsible for their own attorney's fees, certain laws (such as civil rights laws) allow for a prevailing party to recover attorneys fees from the opponent.

Americans do this because they like their “day in court.” In the old days, someone who felt he was wronged would challenge his opponent to a duel. Within days they would meet at dawn somewhere and try to kill each other, often leaving one dead. That practice was stopped by prosecuting the person who survived for murder. Now this type of dispute is resolved by one person suing the other. Win or lose, at the end they feel received their “day in court” to vent their grievance.

It should be noted that in federal court, fewer than 1% of cases reach a trial.[1] Cases are often settled or disposed of without a trial.

VI. Appellate Judges

Appellate judges have a very different job from trial judges. The appellate judges must establish rules that render justice in the case before them, and in all other cases having similar facts. They need to look beyond the dispute at hand and anticipate justice in future disputes also.

A classic problem is the “slippery slope.” That is what happens when someone steps onto a very slippery incline: they slide all the way down to the undesired bottom. An example in life is when someone takes illegal drugs for the first time. They are stepping on a slippery slope that will ruin their lives. Addiction results from the first use, and they soon slide to the bottom of society.

In the law, the slippery slope is when a court makes an exception that invites many more exceptions like it. Or when a court creates a new constitutional right that invites many more new rights like it.

An example is when “free speech” protection was extended to obscenities. In one case, a Vietnam protester wore a jacket in a courtroom that had an obscene word written on it, in reference to the draft. He was convicted for disturbing the peace and he appealed his case all the way to the U.S. Supreme Court. He ultimately won on free speech grounds. But once one protects obscenity as free speech, it became a slippery slope. Once one obscenity is protected, then other obscenities inevitably follow?

This can also be seen in the Establishment Clause cases, such as the Ten Commandments case. Some feel that Judge Roy Moore should have removed the Ten Commandments from the Alabama Supreme Court. Though supportive of religion, they feel that a few citizens might have been offended by the display. But that argument becomes a slippery slope. Where does the purging of religion from public life stop? Its logic requires purging all religious references from public life: “In God We Trust” from our coins, and “under God” from our pledge of allegiance. Before long, society slides down to the bottom of the hill, and hostility to religion has triumphed.

It’s best to stay off the slippery slope.

VII. “Stare Decisis”

“Stare decisis” means “to stand by that which was decided.” For judges, it means they should decide similar cases in a similar manner. When a precedent is established, “stare decisis” means courts should abide by it. For the Supreme Court, “stare decisis” means it should adhere to its prior rulings.

In fact, the Supreme Court often changes its mind. In 1940, it held that a Jehovah’s Witness can be forced to say the Pledge of Allegiance against his religion. Two years later, in 1943, the Supreme Court reversed itself and said no one should be forced to violate their own religious beliefs like that. In other cases, the Supreme Court has even reversed itself within a year.

In 1992, the Supreme Court had an opportunity to overturn its Roe v. Wade decision, which earlier declared a new constitutional right to abortion. But Justice Kennedy cast the deciding fifth vote against overturning it, saying that stare decisis compelled him to be consistent with Roe v. Wade. However, last June, Justice Kennedy wrote a decision in favor of gay rights that expressly overturned a decision in 1986.

Do you think stare decisis should prevent the Court from overturning Roe v. Wade?

VIII. Issues

1. Recently a student wore a T-shirt to public school that depicted President Bush as a terrorist. The school authorities told him he could not wear that shirt. He went to court asserting his free speech rights. Who should win?

2. Do you think the alleged “20th hijacker,” Zacarias Moussaoui, should be able to question key al-Qaeda members to prove his innocence concerning the 9/11 attack?

3. Do you think “stare decisis” should prevent the Court from overturning Roe v. Wade?

4. Do you think that people should be required to obey court orders that are unconstitutional?