Law, Justice, and Society: A Sociolegal Introduction Chapter 3 Making Law

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

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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

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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.)

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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.)

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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.)

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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”


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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


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A court may also distinguish one case from another precedent setting case on grounds that the details may be slightly different


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Judge-made law (common law)Legislative law

ConstitutionStatutesOrdinancesAdministrative regulations

Other sources of appropriate conductReligion and ethics

Sources of Law

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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)

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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

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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.)

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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.)

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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

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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

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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.)

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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)


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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


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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


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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

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Intended to protect private citizens and groups of citizens (militias) to protect themselves from oppression by the federal government

Second Amendment (cont.)

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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

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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

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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.)

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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


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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


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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


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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


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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


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Due Process of Law

State must follow certain procedures

Designed to protect individual rights

Whenever the deprivation of liberty or property is in question


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The “Taking Clause”

Eminent domain – the seizing of private property for public use

Kelo v. City of New London (2005)


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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


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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


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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


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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


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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

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

Eighth Amendment

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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.)

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Cruel and Unusual Punishment

Prohibits torture

Prohibits punishment disproportionate to the offense

Does not prohibit death penalty

Eighth Amendment (cont.)

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

Ninth Amendment

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Codifies the concept of natural law/rights

Includes such things at the right to privacy (Griswold v. Connecticut 1965)

Ninth Amendment (cont.)

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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

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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

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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

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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.)

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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

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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.)

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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.)

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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

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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.)

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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)

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Intermediate Scrutiny Test: Is the law substantially related to an important government purpose? Burden on government

Quasi-Suspect Class Involved (gender, legitimacy)

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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

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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)

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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.)

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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

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The entire Bill of Rights is applicable to state governments

Not very popular position

*Justice Hugo Black

Total Incorporation

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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

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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

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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

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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

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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

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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

Documents

Law, Justice, and Society: A Sociolegal Introduction Chapter 3 Making Law