Study Guide_ American Civil Liberties Outline

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Oct 30, 2023

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Study Guide: American Civil Liberties Outline I. Understanding Civil Liberties A. The Nature of Rights & Liberties 1. Historical evolution of the concept of rights and liberties. 2. Comprehension of "constitutional rights" as an integral social practice. 3. Rights as "substantive" entities: a. Viewed as possessive assertions. b. Solicitation to the state for safeguarding. c. Inherently contentious in nature. 4. Notion of the autonomous individual preceding societal rights, particularly in U.S. context. B. Hohfeld’s Forms of Rights (1919) 1. Power: - Derived from a specific authority or provision. - Examples: Government's right to prosecute; police's right to conduct searches. 2. Claims: - Established expectations among individuals or institutions. - Commonly referred to as "rights." - Powers underpin constitutional claims. 3. Immunity: - Exceptions to powers. - Example: 4th Amendment’s protection against unreasonable searches and seizures. 4. Liberties: - Rights maintained against authorities. - Focused on non-interference in protected activities. - Example: 1st Amendment's protection of free speech derived from non-interference C. Types of Constitutional Rights & Liberties (Gillman, Graber & Whittington, 2021) 1. Individual rights: - Limit governmental regulation of personal behavior. - Example: Article 1, Section 10's protection of contractual freedoms. 2. Political rights: - Grant individuals the ability to influence public policy. - Example: 1st Amendment's freedom of speech, association, and assembly. 3. Equality rights: - Assure equal governmental benefits/burdens for all qualifying persons. - Example: 15th Amendment's non-discrimination of voting rights based on race. 4. Procedural rights: - Guarantee a fair hearing before state intervention in individual, political, and equality. - Example: Due process clause in the 5th and 14th Amendments.

Key Concepts to Remember: 1. The dichotomy between individual autonomy and social precedence in the context of rights. 2. Hohfeld’s framework for understanding the different forms of rights and their practical implications. Section II: Insights into Judicial Decision-Making and Procedures A. Decision-Making in the Judiciary: - Importance: Understanding how decisions are made within the judicial system. - Action Item: Review “Harvard Law Review, Nov 2016.pdf” to analyze and interpret data regarding judicial decision-making processes. - Considerations: How do justices reason? What factors influence their decisions? B. Jurisdiction of the Supreme Court: - Definition: The authority of a court to hear certain cases. - Types: a. Constitutional Court - Based on Article III. b. Legislative Court - Established through the Judiciary Act of 1789. - SCOTUS Specifics: a. Original jurisdiction - Cases the court hears first, either as a mandatory or discretionary measure. b. Appellate jurisdiction - Cases the court hears on appeal from lower courts. C. The Concept of Justiciability: - Definition: Issues appropriate for judicial resolution. - Impact: Limits judicial power, ensuring courts don't overstep their constitutional boundaries. - Influences: a. Internal - Stare decisis (precedent) and other institutional norms. b. External - Constitutional amendments, presidential appointments, and congressional decisions over jurisdiction. D. Appellate Litigation and Judicial Agendas: - Key Players: Government entities, often with significant deference to the U.S. Solicitor General. - Litigation Types: a. Ordinary - Pursues personal or organizational interests. b. Political - Seeks to shape public policy. - Consideration: The role of Supreme Court Justices in defining the scope of justiciability, such as decisions on “standing.” E. Evolution in Legal Advocacy: - Development: The rise of specialized SCOTUS advocacy since the 1980s.

- Attorney Types: a. Repeat players - Regular participants in litigation, often with an extensive background in specific legal areas. b. One-shotters - Occasional participants, usually with personal or one-time interests at stake. - Significance: Understanding the dynamics between different types of advocates can illuminate broader trends and strategies in litigation. Key Takeaways: 1. Judicial decision-making is a complex process influenced by multiple factors, both internal and external to the court. 2. Jurisdiction dictates the types of cases courts can hear, directly impacting the legal landscape. 3. Justiciability ensures courts maintain their constitutional boundaries. 4. The motives behind litigation can vary significantly, influencing judicial agendas. 5. The field of SCOTUS advocacy has evolved, with a notable distinction between repeat players and one-shotters. Review Questions: 1. What are the different types of jurisdiction, and how do they affect the cases the Supreme Court hears? 2. How does justiciability limit judicial power? 3. What distinguishes ordinary litigation from political litigation? 4. Why has specialized SCOTUS advocacy risen since the 1980s, and what impact do repeat players have on this trend? _____________________________________________________________________________ A. Doctrinal Theory : This refers to the framework of legal reasoning and interpretation used by lawyers, judges, and justices, especially in the context of constitutional law. This theory is assembled through various sources, such as the plain meaning of the text, the intent of the framers, and judicial precedent. - Schenck v. US (1919) - “Clear and present danger” - Violation of the 13th amendment - Reason being word used by Schenck created a clear and present danger - Gitlow v. NY (1925) - “Danger of substantive evil”, “Clear and present danger” - Due process clause, ruling “incorporates” the 1st amendment. - Established Police powers in cases of substantive evil in the case of immediate act of violence or unlawfulness B. Interpretative Legal Methods : Various methods are used in constitutional interpretation: - *Originalism* argues that the meaning of the Constitution remains as it was understood at the time of writing/ratification. - *Textualism* focuses on the specific language of the Constitution. - *Doctrinalism* relies on previous interpretations and precedents. - *Structuralism* considers the overarching principles and structure of government.

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- *Prudentialism* weighs the wisdom and outcomes of legal decisions. - *Aspirationalism* interprets the Constitution in light of broader principles of justice. C. Constitutional Decision Making & Judicial Behavior: This area looks at how judges and justices make decisions, influenced by their individual policy preferences (attitudinal model), strategic behavior, historical contexts, text, and precedent (legal model), as well as broader sociolegal theories. - Majority opinion D. Ideology of Justices and their Clerks: The ideologies of justices and their clerks from 1961-2017 can influence their judicial behavior, with terms like "judicial restraint" and "judicial activism" describing varying willingness to engage in or refrain from judicial intervention. E. Normative and Empirical Approaches: These approaches consider both what should be (normative) and what is (empirical), often involving ideological considerations and historical-institutional interpretations. An example is Keck's analysis, which employs a "law and American political development" (LAPD) approach. F. Constitutional Orders and Ideological Eras: Different eras, such as Judicial Liberalism (1933-1968), Liberalism Divided (1969-1980), and Modern Judicial Conservatism (2005-present), are defined by the predominant judicial philosophies and the justices who embodied them. G. Politics in Courts: The interaction between rights and politics is complex, with justices emphasizing a sense of fidelity to the law, yet sometimes reflecting personal or idiosyncratic political preferences. Terms like "strict constructionist" or "originalism" are often used to imply an apolitical stance, though this can be contentious. D. Prior Restraint Important Notes - The excerpt raises important questions about the objectivity and neutrality of judicial decision-making. While justices may claim fidelity to the law, their decisions are often influenced by personal ideologies, historical contexts, and strategic considerations. - The variety of interpretative methods underscores the flexibility and, sometimes, the ambiguity inherent in constitutional interpretation. No single method is definitive, and justices may choose approaches that align with their reasoning or desired outcomes. - The concept of "judicial restraint" as a founding myth suggests a tension in the judiciary's role: while it's positioned as a neutral arbiter, it inevitably engages in shaping law and policy. - The historical overview of different judicial eras highlights how the court's composition, influenced by presidential appointments, can significantly impact its ideological orientation and, by extension, its rulings. This historical perspective is crucial in understanding the evolving nature of judicial interpretation and the lasting impact of these ideological shifts.

Section III: Evolution of State vs Federal Interpretation of Constitution Bill of Rights (1787) -> Marbury vs. Madison (1803) -> Barron v. Baltimore (1833) -> Slaughter-House Case (1873) -> Twining v. New Jersey (1908) -> Shenck v. US (1919) -> Gitlow v. New York (1925) -> Near v. Minnesota (1931) - > Dennis v. United States (1951) A. Bill of Rights (Individual rights in relations to government) a. Political authority is “the people”, “life, liberty, and property” b. Political decisions made by elected representatives or persons appointed by the people’s elected representatives. B. Marbury vs. Madison (1803) a. Principle of Judicial review, deemed “prior restraint unconstitutional b. Define the boundary between Constitutionally separate executive and judicial branches C. Barron v. Baltimore (1833) a. Principle of due process, claims Baltimore violated 5th amendment (taking clause) b. Clarified that it was not about due process, rather it concerned the applicability of the Bill of Rights to the states c. 5th Amendment was intended solely to limit the powers of the federal government and, therefore, did not apply to the states; action D. Slaughter- House Case (1873) a. SC interpretation of the recently ratified 14th amendment b. Distinction between national and state citizenship c. Limited the protection of the Privileges or Immunities Clause for citizens E. Twining v. New Jersey (1908) a. Background: Two guys convicted of fraud by NJ court claimed violation of the 5th amendment (self-incrimination) as they were not allowed to testify b. SC interpretation of 14th amendment, specifically due process clause and the application of the Bill of Rights to the states (incorporation) c. Introduces the concept of “fundamental fairness”, the principle that only those rights that are “implicit in the concept of ordered liberty” are protected against state infringement by the Due process clause. F. Schenck v. US (1919) a. Landmark case in interpretation of 1st amendment (freespeech) in the context of speech that is seen as posing a threat to national security b. Principle of “clear and present danger” -> limitation of free speech G. Gitlow v. New York (1925) a. Principles set leads to greater scrutiny of any government attempt to restrict speech. b. Allowed greater federal court oversight of state actions when it comes to rights that are protected under the Bill of Rights

c. Lay the groundwork for a broad application of constitutional protection for individual rights across U.S H. Near v. Minnesota (1931) a. Recognized freedom of the press by rejecting prior restraints on publication, principle applies to both state and federal actions b. First time the court ruled that a state law was unconstitutional, saying the government cannot censor or prohibit a publication in advance. I. Dennis v. United States (1951) a. Tested the limits of the 1st amendment’s guarantee of freedom of speech and assembly during the early Cold War (high anti-communist sentiment) b. Interpretation of “Clear and present danger”, ruled defendant’s actions were a step in a direct chain of events leading to a danger the government had the authority to prevent c. Expanded the scope of prohibited actions under the clear and present danger test (refer to Schenck vs US) ***Critical Themes*** A. Due Process: Concept of due process is about fairness and ensuring that individuals have their rights protected against arbitrary government. Barron v Baltimore highlights BOR’s limitations initially applied only to federal government, not the states. However Twining v. New Jersey introduced notion of “fundamental fairness” under Due Process clause, suggesting certain rights are so important that they are implicit in the concept of ordered liberty and thus applicable to the states. B. Prior Restraint : Refers to the government actions that prohibit speech or other expression before it can take place. Near v. Minnesota ruled state law that imposed prior restraint on publications is generally unconstitutional. Marbury v. Madison set a precedent concerning the judiciary’s role in reviewing laws and executive actions potentially infringing on freedoms, which includes freedom of the press C. Bill of Rights: Barron v.Baltimore, the BOR was held not to apply to the states. This stance began to shift, especially with the interpretation of the 14th amendment’s Due Process clause referring to Twining v. New Jersey, and reaching a pivotal point in Gitlow V. New York, which suggested 1st Amendment protections apply to states, laying groundwork for broader application of the BOR to state government. D. Federal Oversight: Assertion in Gitlow v. New York that states must respect certain fundamental rights, this theme of increased federal oversight is part of a broader trend towards the incorporation of the BOR into state law, ensuring state government respect those rights E. Freedom of Speech: Schenck v. US and Dennis v. United States both deal with the limitations on freedom of speech, particularly in contexts where national security is at stake. Both cases introduced and expanded the “clear and present danger” test. (WW1 and early Cold War, where court was particularly sensitive to national security issue) F. Judicial Review and Separation of Power: Marbury v. Madison is foundational for establishing the principle of judicial review, affirming the judiciary’s role in interpreting the constitution and

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reviewing the constitutionality of laws and actions undertaken by the executive and legislative branches. This case set the stage for the judicial branch to be an arbiter of constitutional interpretation, pivotal to all the discussion we have in class. G. National vs. State Citizenship: Slaughter-House cases addressed the distinction between national and state citizenship, significantly limiting the scope of the privileges or immunities clause of the 14th amendment. This decision marked a narrow interpretation of the rights protected from state infringement. This protection is later expanded in Gitlow v. New York. _____________________________________________________________________________________ ***Courts*** A. Marshall Court (Adams, Jefferson, Madison, Monroe, Adams 2.0, Jackson Presidency) a. The Supreme Court was still in its formative years, and its role powers were not as clearly defined or as expansive as they would become in later years. b. Marbury v. Madison established the principle of judicial review, meaning the Court could declare laws unconstitutional. B. Stone Court (FDR Presidency) a. Context: FDR’s presidency was marked by the Great Depression and the enactment of the New Deal, a series of programs and policies intended to promote economic recovery and social reform. b. Early years was known for its conservative stance, often striking down New Deal legislation as unconstitutional, which led to a tension between the judiciary and executive branch. C. Warran Court(Eisenhower Presidency) a. Time of significant economic growth, the early stages of Cold War, and the beginning of Civil Rights movement b. Appointments include Early Warren and William Brennan. c. Brown v. Board of Education overturned “separate but equal” shown in Plessy v. Ferguson”. Monumental Step for the Civil Rights movement and indicated the Court’s willingness to challenge public policy and social norms for the sake of justice and equality. D. Continuation of Warren Court (Kennedy presidency) a. Continued the Civil Rights movement trend under Warren Court, a court known for its liberal decisions and judicial activism.