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Law, Justice, and Society:A Sociolegal Introduction
Chapter 3
Making Law
Making Law
Code of HammurabiFirst known written legal code
Eye for an eye philosophy
Roman LawInfluenced by Babylonian legal principles
The Twelve Tables (450 BCE) First entirely secular written legal code
Criminal law began to change focus from just resolving disputes to seeing offenses as against society as a whole
Making Law
Norman conquest of England (1066) brought feudal law to England – basis for common law
By Henry II (1154-1189) a body of law was developed and applied “commonly” through England
Common law system well developed in England by Thirteenth century
The Common Law
Making Law
Ranulf de Glanvill: Wrote Treatise on the Laws and Customs of the Realm of England- detailed transition to adherence to formal legal rules
Henry de Bracton: On the Laws and Customs of England- Furthered the “commonality” of common law
The Common Law (cont.)
Making Law
William Blackstone: Laws were creations of God, waiting to be discovered by reason
Commentaries on the Laws of England: had influence on philosophy of Founding Fathers and Declaration of Independence
The Common Law (Cont.)
Making Law
Judge-made law
Judges justified decision by referencing Custom
Tradition
History
Prior judicial decisions
Developed concepts of stare decisis and precedent
The Common Law (cont.)
Making Law
Under common law, every final decision by a court creates a precedent
Precedent governs the court issuing the decision a well as any lower courts
This system was brought from England to colonial America
In the United States, precedent is binding only on those courts within the jurisdiction of the court issuing the opinion
Precedent and Stare Decisis
Making Law
Stare decisis means “let the decision stand” (Black 2001)
If there is a prior decision on a legal issue germane to a current case the court will be guided by that prior decision
This is the principle behind establishing precedent
Assures predictability for similar cases
Precedent and Stare Decisis (cont.)
Making Law
Not every decision a court makes becomes precedent
Ratio decidendi are legal pronouncements from courts that become precedent
Rationale used by courts to arrive at their decisions
“the reason for the decision”
Obiter dicta are nonlegal statements or arguments used to support ratio decidendi; do not become precedent
“things said by the way”
Precedent and Stare Decisis (cont.)
Making Law
Precedent is not necessarily unchangeable
Judge-made law may be overruled by an act of the legislature
The precedent issuing court may overrule its prior decision
A higher court may reverse a lower court’s decision
Precedent and Stare Decisis (cont.)
Making Law
A court may also distinguish one case from another precedent setting case on grounds that the details may be slightly different
Precedent and Stare Decisis (cont.)
Making Law
Judge-made law (common law)Legislative law
ConstitutionStatutesOrdinancesAdministrative regulations
Other sources of appropriate conductReligion and ethics
Sources of Law
Making Law
Legislative enactments (bills) are statutesCollections of statutes are codesIncludes both civil and criminal law
Criminal law referred to as the penal code
Administrative regulations Have the force of lawIssued by agencies of the executive branch or created through legislatively delegated powers
Legislative Law
Making Law
Statutes are frequently written broadly
Administrative agencies are given the task of filling in the blanks. Why written so ambiguously?
1. Difficult to define something involving human conduct
2. Political implications and the need for compromise
Legislative Law (cont.)
Making LawThe Sources and Types of Law
Constitution(Constitutional Law)
Legislative Statutes(Statutory Law)
Executive Agency Rules
and Decisions(Administrative Law)
Judicial Cases(Common Law)
Making Law
Those rights which are possessed by the individual and which protect him or her from others as well as from the federal government
Federal and state constitutions
Case law
Court rules
Legislation
Sources of Individual Rights
Making Law
Articles of Confederation formed in 1871
Federal government powerless
Lacked authority to tax
Lacked authority to raise an army
Lacked authority to force states to comply with any mandates
12 of 13 states met in Philadelphia in 1787 to replace the Articles of Confederation
Sources of Individual Rights–Constitution
Making Law
Result was formation of the U.S. Constitution
Created a strong central government
Because of this, the Constitution was mostly concerned with establishing the federal government’s powers and limitations
Protection from very few individual rights:Habeas corpus
Bills of attainder
Ex post facto laws
Sources of Individual Rights—Constitution (cont.)
Making Law
Several states demanded more individual rights protection before ratifying Constitution
Result was the Bill of Rights (James Madison)
Ratified in 1791
Sources of Individual Rights—Constitution (cont.)
Making Law
First 8 amendments set out 23 individual rights
Protections against government action
Only in the twentieth century were these rights applied to state governments
Sources of Individual Rights—Bill of Rights
Making Law
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.
First Amendment
Making Law
Freedom of Religion1. Government shall not establish a religion
2. Government shall not interfere with individuals’ religious practices
Essentially: government can neither promote nor destroy religion
First Amendment (cont.)
Making Law
Freedom of Religion (cont.)Establishment Clause: “wall of separation between church and state” (Everson v. Board of Education 1974)Government can be involved in religion if:
1. Statute must have secular purpose2. Primary purpose of the statute must be neither pro nor anti
religion3. The statute must not foster excessive government entanglement
with religion (Lemon v. Kurtzman 1971)
First Amendment (cont.)
Making Law
Freedom of Speech
Right to say things which anger others (including hate speech)
Includes verbal, written, and certain physical acts (a.k.a. symbolic speech or expressive conduct)
Signs
Picketing
Burning of the American flag
First Amendment (cont.)
Making Law
Freedom of Speech (cont.)
Government can regulate obscenity
Government can regulate speech likely to provoke violence
Commercial speech may be regulated more than “political” speech
First Amendment (cont.)
Making Law
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.
Second Amendment
Making Law
Intended to protect private citizens and groups of citizens (militias) to protect themselves from oppression by the federal government
Second Amendment (cont.)
Making Law
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.
Third Amendment
Making Law
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.
Fourth Amendment
Making Law
Stands most directly between the individual and the police
In response to British practice of “general warrants”
Fourth Amendment was an effort to limit the ability of police to interfere in private citizens’ lives
Required a reasonable amount of evidence (probable cause)
Does not preclude all searches and seizures, only those which are unreasonable:
Begs the question: what is reasonable?
Fourth Amendment (cont.)
Making Law
No person shall be held to answer for a capital, or otherwise infamous crime,unless 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.
Fifth Amendment
Making Law
Rights associated with criminal trials, includes:
Indictment by grand jury
Freedom from double jeopardy
Right to due process and just compensation
Privilege against self-incrimination
Fifth Amendment (cont.)
Making Law
Grand jury
A group of citizens who listen to a case presented by a prosecutor
This is done in order to determine whether there is sufficient evidence to try the defendant
Used to protect individuals from being tried without some proof of guilt
Fifth Amendment (cont.)
Making Law
Grand Jury (cont.)
Issue indictmentsA document formally charging a defendant with a crime
This right does not apply to state trials Hurtado v. California (1884)
May use a prosecutorial “Information”
Several states require Grand Jury indictments
Fifth Amendment (cont.)
Making Law
Double Jeopardy
Means that a jurisdiction may not:1. Prosecute someone again for the same crime after the
person has been acquitted
2. Prosecute someone again for the same crime after the person has been convicted
3. Punish someone twice for the same offense
Fifth Amendment (cont.)
Making Law
Double Jeopardy (cont.)
Does not mean that:1. A state may not try someone again if the first trial
ends in a mistrial or a hung jury
2. A state cannot retry someone if their conviction was overturned on appeal
3. A person cannot be tried under the doctrine of dual sovereignty
Fifth Amendment (cont.)
Making Law
Self-incrimination (protection from compelled testimonial communications)A defendant can refuse to speak to police about charged crimeCan refuse to speak at trialProsecution cannot comment on defendant’s refusal to speak (Griffin v. California 1965)Does not include
Blood samples, fingerprints, or line-up presence
Fifth Amendment (cont.)
Making Law
Due Process of Law
State must follow certain procedures
Designed to protect individual rights
Whenever the deprivation of liberty or property is in question
Fifth Amendment (cont.)
Making Law
The “Taking Clause”
Eminent domain – the seizing of private property for public use
Kelo v. City of New London (2005)
Fifth Amendment (cont.)
Making Law
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.
Sixth Amendment
Making Law
Associated with criminal trial, and includes:
Right to a speedy trial
Right to a public trial
Right to a trial by an impartial jury
Right to a notice of charges against oneself
Right to representation by counsel
Right to confront witnesses against oneself
Sixth Amendment (cont.)
Making Law
Right to a Speedy Trial
Defendant must be brought to trial without “unnecessary delay” (Barker v. Wingo 1972)
“Speedy” is determined on “an ad hoc balancing basis, in which the conduct of the prosecution and that of the defendant are weighed”
Speedy Trial Act of 1974 set the time limit at 100 days for federal cases, with significant wiggle room
Sixth Amendment (cont.)
Making Law
Right to a public trial and right to a notice of charges
Originated in traditional Anglo-Saxon mistrust of government secrecy
Right to a public trial means that defendants can have public attend the trial if they wish
The right to notice of charges means that prosecution must tell the defendant prior to trial what they are accused of so they can prepare defense
Sixth Amendment (cont.)
Making Law
Right to trial by an impartial jury
The jury must be selected from the community in which the crime occurred
Among individuals who are not predisposed as to the guilt or innocence of the defendant
Sixth Amendment (cont.)
Making Law
Assistance of Counsel
At any proceeding deemed to be a critical stagepreliminary hearing
arraignment
trial
appeal
Indigent persons must be provided a lawyer at state’s expense (possible incarceration 6mos+)
Includes the right to effective counsel
Sixth Amendment (cont.)
Making Law
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.
Seventh Amendment
Making Law
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Eighth Amendment
Making Law
Excessive bail
No right to bail
Bail must not be set higher than necessary to ensure the presence of the defendant at trial (Stack v. Boyle 1951)
Persons considered a threat to society can be denied bail (United States v. Salerno 1987)
Eighth Amendment (cont.)
Making Law
Cruel and Unusual Punishment
Prohibits torture
Prohibits punishment disproportionate to the offense
Does not prohibit death penalty
Eighth Amendment (cont.)
Making Law
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Ninth Amendment
Making Law
Codifies the concept of natural law/rights
Includes such things at the right to privacy (Griswold v. Connecticut 1965)
Ninth Amendment (cont.)
Making Law
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.
Tenth Amendment
Making Law
Reconstruction Amendments
Passed shortly after Civil War
intended to protect the recently freed slaves from abuse
Thirteenth, Fourteenth, and Fifteenth Amendents
Now used to protect all citizens from state actions which impinge on constitutional rights
Other Amendments
Making Law
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shallbexist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.
Thirteenth Amendment
Making Law
Prohibits slavery
Used since to uphold civil rights legislation
Outlaws “badges of slavery” or practices intended to keep blacks at lower social and economic levels than whites
Thirteenth Amendment (cont.)
Making Law
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Fourteenth Amendment
Making Law
Forbids states from mistreating citizens
States cannot deny citizens due process of law or equal protection
Due process clause: incorporates many of the provisions of the Bill of Rights, making them applicable to states
Equal protection clause: bans states from making arbitrary and unreasonable distinctions between people
Fourteenth Amendment (cont.)
Making Law
Suspect Classification
Based sans reason or on race or gender
Race and gender are suspect classifications
Age is not a suspect classification if:
state can demonstrate an interest in the health and safety of minors
and there is no history of “invidious” discrimiation against minors
Fourteenth Amendment (cont.)
Making Law
Not all rights enjoy equal privilege
Fundamental rights are “essential to the concept of ordered liberty” (Palko v. Connecticut 1937)
Depending on whether or not a suspect classification or fundamental right is involved, rights are also treated differently
Only race and religion are consistently considered suspect classifications (Tribe 1988)
Standard of Review
Making Law
Strict scrutiny review means that states may not enact laws that abridge a fundamental right unless:
1. It has a compelling interest in doing so
2. The law is “narrowly tailored” so that the right is not abridged more than necessary
Strict scrutiny looks at the purpose and effect of the law rather than merely accepting legislative claims of validity
Standard of Review (cont.)
Making Law
Intermediate scrutiny: Quasi-suspect classifications such as gender and legitimacy
Rational basis test: used when there is no fundamental right or suspect classification in question
It states that laws can be passed that impact a right or class so long as there is rationale behind doing so
Standard of Review (cont.)
Making Law
Strict Scrutiny Test: Is the law necessary to achieve compelling governmental purpose? Burden on government
Fundamental Right Involved (privacy, travel, voting, First Amendment)
Suspect Class Involved (race, religion, national origin)
Making Law
Intermediate Scrutiny Test: Is the law substantially related to an important government purpose? Burden on government
Quasi-Suspect Class Involved (gender, legitimacy)
Making Law
Rational Basis Test: Is the law rationally related to a legitimate government purpose? Burden on law’s challenger
No Suspect or Quasi-Suspect Class and no Fundamental Right Involved
Making Law
Barron v. Baltimore 1833 stated that the Bill of Rights applied only to federal government
1868, passage of Fourteenth Amendment to protect recently freed slaves from Southern abuse
privileges and immunities, due process, and equal protection clauses protected inviduals from state governments
originally applied only to freed slaves
Incorporation of the Bill of Rights (Fourteenth)
Making Law
During latter half of nineteenth century, courts used incorporation to preclude state economic regulation
During the twentieth century, courts began using the fourteenth amendment to protect individuals
Incorporation of the Bill of Rights (Fourteenth) (cont.)
Making Law
Incorporation refers to the interpretation of the due process clause of the Fourteenth Amendment in such a way as to prohibit states from abridging certain civil rights
Four schools of thought:total incorporation
total incorporation plus
Fundamental rights/ordered liberty
selective incorporation
Incorporation
Making Law
The entire Bill of Rights is applicable to state governments
Not very popular position
*Justice Hugo Black
Total Incorporation
Making Law
The entire Bill of Rights and unspecified rights are all applicable to state governments
The Bill of Rights, when examined together, create other individual rights
*Justice William Douglas
Total Incorporation Plus
Making Law
No necessary relationship between the due process clause of fourteenth amendment and the Bill of Rights
Due process clause has an independent meaning which prohibits states from violating rights
Justices must consider the “totality of circumstances” in each case in order to determine what rights are fundamental
*Justice Felix Frankfurter
Fundamental Rights/Ordered Liberty
Making Law
Most prominent in the courtsCombines aspects of total incorporation and fundamental rightsFavors a peacemeal, gradual, and selective method of incorporationHas led to virtually every right in the Bill of Rights being incorporated into the due process clause except the rights to grand jury indictments and protection of excessive bail*Justice William Brennan
Selective Incorporation
Making LawSummary of Incorporation Theories
Total Incorporation Total Incorporation Plus Selective Incorporation
Intent: To make all provisions of the Bill of Rights applicable to the states
Justification: Due process clause of the 14th Amendment
Intent: To protect rights enumerated in the Bill of Rights plus certain unenumerated rights
Justification: The totality of the rights in the Bill of Rights created a penumbra over the law
Intent: To incorporate provisions of the Bill of Rights in a careful and discriminative way
Justification: Only fundamental rights should be incorporated; non-fundamental rights should be a state concern
Making Law
The power of the court to examine a law and determine its constitutionality
Not specifically mentioned in the Constitution
It is judge-made law - the result of Marbury v. Madison (1803)
Judicial Review
Making Law
Only way to change the constitution or overrule a Supreme Court decision
Two ways:
2/3 of both houses must pass a resolution calling for an amendment, and then this amendment must be ratified by 3/4 of all states within seven years
2/3 of the states must call for a convention at which an amendment is proposed
All 27 amendments have been passed via the first process
The Process of Amending the Constitution
Making Law
Eleventh Amendment—In response to Chisholm v. Georgia (1793)—the Supreme Court’s first constitutional decision
At issue was whether or not the State of Georgia was subject to the jurisdiction of the United States Supreme Court
The Process of Amending the Constitution
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