Intro to law and justice ch 3 ppt

CHAPTER 3MAKING LAW

LAW, JUSTICE, AND SOCIETY:

A SOCIOLEGAL INTRODUCTION

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• Code of Hammurabi• First known written legal code• Eye-for-an-eye philosophy

• Roman law• Influenced 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 the thirteenth century

The Common Law

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Ranulf de Glanvill–Treatise on the Laws and Customs of the Realm of England, 1188• Details transition from substantive/irrational decision

making of pre-Norman England to adherence to formal legal rules

Magna Carta, 1215• Trial by jury, proportional punishment, self-incrimination

Henry de Bracton–On the Laws and Customs of England, 1250–1260• Discussed the “common law” and “judge-made law”

aspects of English law

The Common Law (cont.)

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• Judge-made law• Judges justified decision by referencing • Custom, tradition• History• Prior judicial decisions

•William Blackstone: Commentaries on the Laws of England, 1765–1769 (procedural law, substantive criminal law, torts, and contract law)• Laws were creations of God waiting to be discovered via use

of reason.• Organized common law into four parts:• Procedural law• Substantive criminal law• Tort law• Law of contracts

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

as 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

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• 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.• Ensures predictability for similar cases

Precedent and Stare Decisis (cont.)

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• 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 non-legal 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.• 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• Constitution• Statutes• Ordinances• Administrative regulations

• Other sources of appropriate conduct• Religion and ethics

Sources of Law

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Sources of Law (cont.)

Constitution (Constitutional Law)

Legislative Statutes (Statutory Law)

Executive Agency Rules and Decisions(Administrative Law)

Judicial Cases (Common Law)

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• Legislative enactments (bills) are statutes.• Collections of statutes are codes.• Includes both civil and criminal law• Criminal law referred to as the penal code

• Administrative regulations • Have the force of law• Issued by agencies of the executive branch or

created through legislatively delegated powers

Legislative Law

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• 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.)

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• Those rights that are possessed by the individual and that 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 1781• Federal government powerless• Lacked authority to tax• Lacked authority to raise an army• Lacked authority to force states to comply with any

mandates

• Twelve of thirteen states met in Philadelphia in 1787 to replace the Articles of Confederation.

• Result was formation of the U.S. Constitution.

Sources of Individual Rights–Constitution

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• Created a strong central government• 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

• 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 eight amendments set out twenty-three 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, 1947)

• 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 that anger others (including

hate speech)• Includes verbal, written, and certain physical

acts (aka 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

• District of Columbia v. Heller (2008)• Second Amendment protects rights of

individual gun owners.• Militias are merely one of the reasons for the need of

the protection.• Regulations and restrictions still applicable

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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• Product of its times• Makes the practice of housing soldiers in

private homes of individuals unconstitutional

Third Amendment (cont.)

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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 that are unreasonable• Begs the question: what is reasonable?

Fourth Amendment (cont.)

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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

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• 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 whose members

listen to a case presented by a prosecutor

• This is done 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 indictments

• A 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 the 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 crime.

• Can refuse to speak at trial• Prosecution 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 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

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• 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.)

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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 one hundred 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 defendants 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 stage• Preliminary hearing• Arraignment• Trial• Appeal

• Indigent persons must be provided a lawyer at state’s expense (possible incarceration six months or more).

• 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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• Provides for right to a trial by jury in federal civil trials

• Applies only to federal trials• Has not been incorporated into Fourteenth

Amendment

Seventh Amendment (cont.)

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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 as the right to privacy (Griswold v. Connecticut, 1965)

• Roe v. Wade (1973)• Lawrence v. Texas (2003)

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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• Been largely ignored by Supreme Court

• States the principle of federalism and constitutionalism

• Federal government has no authority unless granted so by the Constitution.

• Where it has no authority, states and individual citizens retain such authority.

Tenth Amendment (cont.)

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Reconstruction Amendments• Passed shortly after Civil War• Intended to protect the recently freed

slaves from abuse• Thirteenth, Fourteenth, and Fifteenth

Amendments• Now used to protect all citizens from

state actions that 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, shall exist 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.• Three clauses:• 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• Privileges and immunities clause

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”

discrimination 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 a state may not enact laws that

abridge a fundamental right unless:1. It has a compelling interest in

doing so2. The law is “narrowly tailored” so

that the right is not abridged more than necessary

• Looks at the purpose and effect of the law rather than merely accepting legislative claims of validity

Standard of Review (cont.)

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• Intermediate Scrutiny• Used when laws involve quasi-suspect

classifications• Gender and legitimacy

• Law must be substantially related to an important government purpose.

• Rational basis test• Used when no fundamental right or suspect

classification is in question• It states that laws that affect a right or class

can be passed so long as there is rationale behind doing so.

Standard of Review (cont.)

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• Barron v. Baltimore, 1833, stated that the Bill of Rights applies 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 individuals 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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• Total Incorporation• The entire Bill of Rights is applicable to

state governments.• Not a very popular position• Justice Hugo Black

• Total Incorporation Plus• The entire Bill of Rights and unspecified

rights are all applicable to state governments.

• The Bill of Rights, when examined, creates other individual rights.

• Justice William Douglas

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• Fundamental Rights/Ordered Liberty• No necessary relationship between due process clause

and Bill of Rights• Due process clause has independent meaning that

prohibits states from violating rights.• Justices must consider “totality of circumstances” to

determine what rights are fundamental. • Justice Felix Frankfurter

• Selective Incorporation• Most prominent in the courts• Combines aspects of total incorporation and fundamental

rights• Favors piecemeal, gradual, and selective incorporation• 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

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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:• Two thirds of both houses must pass a resolution

calling for an amendment, and then this amendment must be ratified by three-fourths of all states within seven years.

• Two thirds of the states must call for a convention at which an amendment is proposed.

• All twenty-seven amendments have been passed via the first process.

The Process of Amending the Constitution