Chapter 9 The Judiciary Copyright 2012 Pearson

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The Judiciary English Common Law Precedents • William Blackstone, Commentaries on the Laws of England 1765 Constitutional Background: Judicial Independence and Judicial Review • Alexander Hamilton, Federalist 78 • Marbury v. Madison, 1 Cranch 137 (1803) • John P. Roche, Judicial Self-Restraint The Political Question Doctrine • Daniel Webster - Counsel for Defendant Borden in Luther v. Borden (1849), Why Courts Cannot Fairly Decide Political Questions • Luther v. Borden, 48 U. S. 1 (1849) Judicial Decision Making Copyright © 2012 Pearson Education, Inc. • William J. Brennan, Jr. , How the Supreme Court Arrives at Decisions

The Judiciary The Importance of Precedent. Stare Decisis A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? The Decision Copyright © 2012 Pearson Education, Inc. • Sandra Day O’Connor, The Obligation to Follow Precedent • In Re Slaughter-House Cases, 83 U. S. 36 (1873) • Oral Argument Before the Supreme Court: Mc. Donald v. Chicago (2010) • Mc. Donald v. Chicago, United States Supreme Court (2010)

English Common Law Precedents Topic Overview • With regard to our federal judiciary, we are truly all Englishmen. • Our federal judiciary and most state judiciaries have deep English roots in English common law, and judicial powers in common law and equity are English in origin. • Law is about remedies for wrongs and injustices to individuals from the acts of persons acting in a private capacity, and from government actions. Copyright © 2012 Pearson Education, Inc.

English Common Law Precedents Theme • The right of every Englishman is that of applying to the courts of justice for redress of injuries. • Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein. Copyright © 2012 Pearson Education, Inc.

English Common Law Precedents Conclusion • William Blackstone in Commentaries on the Laws of England (1765) states that (1) we are governed by law, a government of law and not of men as the old saying goes, (2) the courts stand front and center to render justice in all its forms, (3) those who govern and the governed abide by the law of the land, which includes due process of law. Copyright © 2012 Pearson Education, Inc.

English Common Law Precedents Significance • Blackstone stressed in his Commentaries on the Laws of England (1765) the right of all Englishmen to apply to the courts for justice. • Blackstone states that (1) every subject knows the law of the land, (2) laws cannot be suspended without the consent of parliament, and (3) the king can create new courts of justice. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Topic Overview • The readings in this section complement each other in that John Marshall’s doctrine of judicial review announced in Marbury v. Madison was, according to Alexander Hamilton in Federalist 78, an inherent judicial power. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Topic Overview • The power of judicial review possessed by the courts in combination with their independence from control by Congress or the president, although they are checked by each in various ways (e. g. , presidential appointments to the Supreme Court requiring the approval of the Senate), implies judicial supremacy in the interpretation of constitutional and statutory law, and now as well in the field of administrative law. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Topic Overview • Judicial review combined with the supremacy of the Constitution and national government gives The Court extraordinary power over the states. • Early Federalist control of the government guaranteed a Federalist judiciary, and the early conflict between the Federalist judiciary and the Jeffersonian Republicans was a precursor of many later struggles between elected politicians, and judges not directly subject to political controls. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Theme • While the Constitution itself does not explicitly declare the power of judicial review, Alexander Hamilton in Federalist 78 unequivocally fills in the apparent gap by announcing that the judiciary has the power to declare legislative acts contrary to the Constitution void. • Judicial review extends to executive actions, over which Hamilton did not care to extend judicial power. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Theme • Judicial review of executive action has roots in English history, and before the Glorious Revolution of 1688 and the Settlement Act of 1700, British jurisprudence also contained seeds of the principle of judicial review over parliamentary actions. • But within the Anglo American legal tradition, the continuance of judicial power to overturn laws passed by the supreme legislative body remains uniquely American. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Relative impotence of the judiciary • Hamilton knew very well the judiciary would have significant power. • In Federalist 78 he states that the judiciary would have the power of judicial review to declare acts of Congress unconstitutional. • He probably states that the judiciary would be relatively weak just to persuade state ratifying conventions to accept the constitutional provisions establishing an independent national judiciary. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Judiciary declares legislative acts contrary to the Constitution void. • Hamilton states that the interpretation of the laws is the proper and peculiar province of the courts. • He states that a constitution is, in fact, and must be, regarded by the judges as a fundamental law. • It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Independence of the judiciary is a vital component of constitutional government. • Hamilton states that the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments. • This consideration will afford a strong argument for the permanent tenure of judicial officers, since nothing will contribute more to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Independence of the judiciary is a vital component of constitutional government. • Hamilton states that an independent judiciary helps to guarantee fair and impartial judgments, freed from the political passions of the community. • In other words, it is important to maintain judicial independence not only from the legislature but also from immediate popular demands. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Establishing permanency of judicial offices • Permanency creates independence, and judges are to hold their offices during good behavior. • Hamilton argues against periodic appointments, because if the power of making them was committed either to the executive or legislature, there would be danger of an improper compliance to the branch that possessed it. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Establishing permanency of judicial offices • Hamilton argues that there will inevitably be a very small pool of persons who possess the requisite knowledge and integrity to be judges. • Periodic appointment would drain this pool rapidly, forcing the appointment of unqualified persons. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Significance • In Federalist 78, Alexander Hamilton stated that the complete independence of the courts of justice is essential in a limited constitution. • In Federalist 78, Alexander Hamilton declared that the courts should have the power to overturn unconstitutional acts of Congress. • In Federalist 78, Alexander Hamilton stated that the interpretation of laws is the proper and peculiar province of the courts. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Ruling • Chief Justice Marshall’s dictum in Marbury v. Madison (1803) unequivocally proclaimed the authority of the Supreme Court to declare acts of Congress unconstitutional. • Marshall’s assertion of the principle as obiter dictum was the clearest declaration of this power up to that time. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Ruling • Neither Marshall’s obiter dictum announcing the power of judicial review in Marbury v. Madison nor his overturning a section of the 1789 Judiciary Act that gave the Supreme Court the authority to issue writs of mandamus to public officers in original jurisdiction caused any reaction at the time. • Judicial review was an accepted principle, and the Court’s refusal to issue the writ of mandamus removed it from a difficult political situation. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Ruling • Marshall’s lengthy discussion of the rights of the defendants to their commissions, and discourse on the responsibility of the executive to deliver them, caused a storm of criticism from Jefferson and the Republicans and praise from the Federalists. • Jefferson felt that he did not need to be told his duty by the chief justice of the Supreme Court, and Jefferson’s indignation over Marshall’s audacity lasted for the remainder of his life. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review The Constitution is superior to any ordinary act of the legislature, according to Marshall. • Because the Constitution is the fundamental and paramount law of the nation • It is the highest expression of the sovereignty of the people and is not an ordinary act. • Constitutional government means government is limited according to the Constitution and that any legislative act to be subject to constitutional limits or the Constitution means nothing. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Significance • In Marbury v. Madison (1803), Chief Justice John Marshall proclaimed the Supreme Court’s power to exercise judicial review over congressional laws. • Chief Justice John Marshall stated in Marbury v. Madison (1803) that (1) a legislative act contrary to the Constitution is not law, (2) those who have framed written constitutions contemplate them as forming the fundamental law of the nation, and (3) an act of the legislature, repugnant to the Constitution, is void. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Significance • Chief Justice John Marshall stated in Marbury v. Madison (1803) that the Constitution is the superior and paramount law of the land. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Theme • In Judicial Self-Restraint (1955), Roche presents thesis that it is the fragmentation of political power in our system that has enabled the Court to step in and fill the power vacuum, making key decisions shaping public policy. • Roche argues that where the Court senses national majorities backing particular public policies, it will not render decisions contradicting these majorities. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Theme • During the New Deal, for example, the Supreme Court did go against the fairly clear mandate of Franklin D. Roosevelt in overruling much of his New Deal legislation, but it was too soon to retreat, and after 1937 it did not embroil itself in affecting substantive law in the area of economic regulation. • There is a widespread belief that the busing decisions of the Supreme Court and lower courts have improperly intruded upon the political arena. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review It’s naive to assert that the Supreme Court is limited by the Constitution. • Roche states that in theory, judges are limited by the Constitution and the jurisdiction it confers, but in practice it would be a clumsy judge who could not adapt the Constitution to a necessary end. • Judges have policymaking power, and interpretation of the Constitution is subjective, therefore judges in fact do say what the law is. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review The judiciary has been limited by political demands to curb judicial discretion. • Although the judiciary has been attacked at numerous times in our history, rarely have these attacks resulted in a significant curb on judicial authority. • Congress can control the appellate jurisdiction of the Supreme Court, and of course it controls the entire jurisdiction and organization of the lower federal judiciary. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review The judiciary has been limited by political demands to curb judicial discretion. • However, Congress has rarely used its political power as a weapon against the judiciary because the judges themselves have exercised judicial selfrestraint, refusing to involve the courts in unequal combat with the legislature or the executive. • Without this self-restraint, throughout our history more political action against the judiciary would undoubtedly have occurred. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Two major techniques of judicial self-restraint • Examples of procedural self-restraint are refusing to accept jurisdiction, limiting the scope of a writ of certiorari, and delay. • The purpose of procedural self-restraint is to prevent the case from reaching the Court on the merits. • That is, preventing the justices from having to consider the substantive issues of the case Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Two major techniques of judicial self-restraint • Examples of substantive self-restraint are the doctrine of political questions, the operation of judicial parsimony, and theory of judicial inexpertise. • The doctrine of political questions and judicial inexpertise is fairly clear. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Two major techniques of judicial self-restraint • Judicial parsimony involves the Court refusing to apply any more principles to the settlement of a case than are absolutely necessary, thereby avoiding the necessity of facing the need to interpret constitutional or statutory clauses. • If a case can be settled by statutory construction, the Court will refuse to raise constitutional issues. • Judiciary Act of 1925 grants the right to turn down applications for writs of certiorari and to give no reason for the denial of the application. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Supreme Court exercises broad-ranging policymaking powers in the political system. • The power of the Supreme Court to invade the decision-making arena is a consequence of that fragmentation of political power that is normal in the United States. • No cohesive majority would permit a politically irresponsible judiciary to usurp decision-making functions, but there are few issues in the United States on which cohesive majorities exist. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Significance • John P. Roche argues that judicial self-restraint has been used by the judiciary to avoid unequal political combat. • Roche states that the power of the Supreme Court to invade the political decision-making arena is the result of the lack of cohesive political majorities on many issues of public policy. Copyright © 2012 Pearson Education, Inc.

Constitutional Background: Judicial Independence and Judicial Review Significance • The Supreme Court exercises judicial selfrestraint by (1) applying the doctrine of political questions, (2) proclaiming its in-expertise in certain matters concerning administrative action, and (3) limiting its jurisdiction. Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Topic Overview • In the jurisprudence of political questions, the seminal case is Luther v. Borden (1849). • Daniel Webster presents a brilliant argument before the Supreme Court for the defendant in Luther v. Borden (1849). Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Reading • Daniel Webster - Counsel for Defendant Borden in Luther v. Borden (1849), Why Courts Cannot Fairly Decide Political Questions Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Theme • Courts apply law to the facts of individual cases to make fair judgments. • The judicial process requires evidence and proof to function properly. • Courts cannot make political judgments because evidence and proof are lacking. • Political decisions are within the discretion of the legislature or executive branches. Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Arguments by Daniel Webster • The facts of the case are given in the text. Luther, a member of the Dorr rebellion, sued Borden, an agent of the Charter government of Rhode Island, for trespass after Borden broke into Luther’s house on orders of his superior. • To find a trespass, the federal Circuit of Appeals, acting as a trial court, would have to determine if Borden’s act was under legitimate governmental authority. Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Arguments by Daniel Webster • In effect, the court would have to determine which government of the state was the legitimate one, the Charter government or the government of the Dorr faction. • Elections had been held that supported the Dorr faction, but as Webster argued, how could a court, through testimony and evidence, judge if the elections represented the choice of the people? Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Arguments by Daniel Webster • Webster stated that the president, acting under a 1795 law, had determined that the Charter government was a republican government and was the legitimate government of the state. • Webster stated that deciding what is a republican government is a political, not judicial, decision. • Webster states that the Constitution does not define a republican government, and in effect there is no clear law for the courts to apply. Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Significance • Daniel Webster argues in Luther v. Borden (1849) that the judicial process cannot decide which of two competing governments in a state is republican and, therefore, to be guaranteed by the federal government. • Webster argued in Luther v. Borden (1849) that the Dorr government never really existed in fact. Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Ruling • Courts cannot decide guaranty clause cases, which require a determination of what a republican form of government is. • The Constitution delegates this power to the political branches, Congress, and the president. Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Opinion of Chief Justice Taney • Charter government of Rhode Island adopted a new constitution in 1843 after the Dorr rebellion to expand suffrage, and this weakened the rebellion’s argument that the former restricted suffrage was undemocratic, making the Charter government illegitimate because of the restricted suffrage. • Taney notes in his opinion that under the 1843 state constitution, the courts of Rhode Island determined at the trial of Dorr that the established Charter government was the legitimate one. Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Opinion of Chief Justice Taney • Taney states that the federal courts are bound to accept the judgment of state courts on state law. • This opinion is in addition to Taney’s acceptance of Webster’s position that courts cannot decide political question of this sort. • Taney writes that under Art. 4, sec. 4 (guaranty clause) of the Constitution, it rests with Congress to decide what government is the established one in a State. Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Opinion of Chief Justice Taney • Taney states in his opinion that it rested with Congress to determine upon the means proper to be adopted to fulfill this constitutional guarantee of a republican form of government to the states. • Taney concludes that Congress chose to delegate this power to the president in the 1795 legislation enforcing the guaranty clause. Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Significance • Luther v. Borden (1849) held that federal courts should not decide guaranty clause cases as they are political questions. • Luther v. Borden (1849) held that political questions arise under the guaranty clause. Copyright © 2012 Pearson Education, Inc.

The Political Question Doctrine Significance • Chief Justice Taney in Luther v. Borden (1849) held that (1) federal courts should not overturn state court rulings on questions of state law, (2) Rhode Island state courts have ruled on and upheld the legitimacy of the Charter government and their decisions should stand, and (3) the guaranty clause gives Congress the exclusive authority to decide the process of enforcement. Copyright © 2012 Pearson Education, Inc.

Judicial Decision Making Topic Overview • This section contains a fascinating inside account of the Supreme Court at work, written by Justice William J. Brennan, Jr. • The reading reveals a wide range of political, social, psychological, personal, and technical considerations that bear upon Supreme Court decision making. Copyright © 2012 Pearson Education, Inc.

Judicial Decision Making Theme • Brennan is writing at the height of the Warren Court era and disclaims any responsibility for the Supreme Court to make social, political, economic, or philosophical decisions. • Brennan states that the Court is not a council of Platonic guardians for deciding our most difficult and emotional questions according to the justices’ own notions of what is just or wise or politic, but that it is the function of the people’s elected representatives. Copyright © 2012 Pearson Education, Inc.

Judicial Decision Making Theme • Brennan states that the Court decides according to the law, on the basis of the record before it, and that justices may and do consult history and other disciplines as aides to constitutional decisions; the text of the Constitution and relevant precedents dealing with that text are their primary tools. • He states that the cases coming before the Supreme Court often involve intense political conflict, and whatever decision the Court makes will embroil it in controversy. Copyright © 2012 Pearson Education, Inc.

Judicial Decision Making Theme • Brennan states that the internal procedures of the Supreme Court guarantee the full consideration of each case by every justice. • Brennan hopes that better public understanding of the internal workings of the Court will lead to greater appreciation and tolerance for what the Court does. Copyright © 2012 Pearson Education, Inc.

Judicial Decision Making Cases get docketed with the Supreme Court. • Brennan writes that a huge volume of cases are petitioned to the Supreme Court and that the Court has the authority to screen them and select for argument and decision only those that in the judgments of the justices guided by pertinent criteria raise the most important and far-reaching questions. • Brennan states that by this device the Supreme Court annually selects around 6 percent for decision. Copyright © 2012 Pearson Education, Inc.

Judicial Decision Making Cases get docketed with the Supreme Court. • Brennan states that although it is true that the Supreme Court has the authority to turn down appeals for writs of certiorari under the Judiciary Act of 1925, the Court must hear some cases from certain courts as a matter of right. • He states that these cases involve decisions by the highest state courts, federal courts of appeals, and federal district courts on the constitutionality of federal and state laws. Copyright © 2012 Pearson Education, Inc.

Judicial Decision Making Significance • Justice William J. Brennan, Jr. states that limits upon an imperial judiciary include the case and controversy rule, public opinion, and lack of judicial enforcement power. • Justice William J. Brennan, Jr. goes to great lengths to emphasize that the Supreme Court does not have the responsibility to make social, political, and economic decisions. Copyright © 2012 Pearson Education, Inc.

Judicial Decision Making Significance • According to Justice William J. Brennan, Jr. , an important limitation upon the Supreme Court is its inability to initiate action and the requirement that it base its decision upon a record made by the parties to a case. Copyright © 2012 Pearson Education, Inc.

The Importance of Precedent – Stare Decisis Topic Overview • Sandra Day O’Connor, from her opinion in Planned Parenthood of Pennsylvania v. Casey (1992), analyzes in the following reading how the Supreme Court has used precedent in its decision making when Planned Parenthood challenged a Pennsylvania law that regulated abortion. • Justice O’Connor addresses the question of whether or not the precedent of Roe v. Wade (1973) should be overruled. Copyright © 2012 Pearson Education, Inc.

The Importance of Precedent – Stare Decisis Theme • Retired justice Sandra Day O’Connor says the Supreme Court should generally follow its prior rulings so the public has confidence that laws do not change just because justices come and go. • O’Connor was a swing vote in favor of abortion rights and affirmative action. Copyright © 2012 Pearson Education, Inc.

The Importance of Precedent – Stare Decisis The Obligation to Follow Precedent • Sandra Day O’Connor states that the obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. • No judicial system could do society’s work if it eyed each issue afresh in every case that raised it. • Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. Copyright © 2012 Pearson Education, Inc.

The Importance of Precedent – Stare Decisis The Obligation to Follow Precedent • At the other extreme, states Sandra Day O’Connor, is that a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed. Copyright © 2012 Pearson Education, Inc.

The Importance of Precedent – Stare Decisis The Obligation to Follow Precedent • Sandra Day O’Connor writes that as the decisions were thus comprehensible they were also defensible, not merely as the victories of one doctrinal school over another by dint of numbers (victories though they were), but as applications of constitutional principle to facts as they had not been seen by the Court before. Copyright © 2012 Pearson Education, Inc.

The Importance of Precedent – Stare Decisis The Obligation to Follow Precedent • Sandra Day O’Connor states that in constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the nation could accept each decision to overrule a prior case as a response to the Court’s constitutional duty. Copyright © 2012 Pearson Education, Inc.

The Importance of Precedent – Stare Decisis The Obligation to Follow Precedent • Sandra Day O’Connor writes that our Constitution is a covenant running from the first generation of Americans to us and then to future generations. • It is a coherent succession. • Each generation must learn anew that the Constitution’s written terms embody ideas and aspirations that must survive more ages than one. Copyright © 2012 Pearson Education, Inc.

The Importance of Precedent – Stare Decisis The Obligation to Follow Precedent • Sandra Day O’Connor writes that we (justices) accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. • We (justices) invoke it once again to define the freedom guaranteed by the Constitution’s own promise, the promise of liberty. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Topic Overview • Justice Miller’s opinion in the Slaughter-House Cases (1873) became an enduring precedent in constitutional law. • The opinion drained any substantive meaning from the Fourteenth Amendment’s privileges and immunities clause. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Topic Overview • Essentially, the case struck the clause from the Fourteenth Amendment, requiring future Fourteenth Amendment challenges to state action to rely on the due process and equal protection clauses. • Miller addressed the meaning of the due process and equal protection clauses in his Slaughter. House opinion. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Topic Overview • Miller said due process has a long history in common law, and judges know what it is and will use it when the facts of a case raise due process issues. • Equal protection was to protect the newly freed slave class from state action that presumably would deny African Americans their political rights. • Justice Miller did not clarify the equal protection clause other than to say that it gave legal equality to “the newly freed slave class. ” Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Theme • The Slaughter-House Cases (1873) were the first United States Supreme Court interpretation of the relatively new Fourteenth Amendment to the Constitution. • It’s a pivotal case in early civil rights law, reading the Fourteenth Amendment as protecting the “privileges or immunities” conferred by virtue of the federal U. S. citizenship to all individuals of all states within it, but not those privileges or immunities incident to citizenship of a state. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Background • New Orleans in the mid-nineteenth century was plagued by “intestines and portions of putrefied animal matter lodged around the drinking pipes” coming from local slaughterhouses whenever the tide from the Mississippi river was low. • A mile and a half upstream from the city, a thousand butchers gutted over 300, 000 animals per year. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Background • Animal entrails (known as offal), dung, blood, and urine were a part of New Orleans’ drinking water. • Offal bred cholera to the general population, and between 1832 and 1869, the city of New Orleans suffered 11 cholera outbreaks. • In response, a New Orleans grand jury decided that the slaughterhouses should be moved south, but since many of the slaughterhouses were outside city limits, the grand jury's decision carried no weight. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Background • The city then appealed to the state legislature, and as a result, in 1869, the Louisiana legislature passed “An Act to Protect the Health of the City of New Orleans, to Locate the Stock Landings and Slaughter Houses, and to incorporate the Crescent City Livestock Landing and Slaughter-House Company, ” a law that allowed the city of New Orleans to create a corporation that centralized all slaughterhouse operations in the city. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Background • Over four hundred members of the Butchers’ Benevolent Association joined together to sue to stop the Crescent City’s takeover of the slaughterhouse industry. • The statute denies the butchers of the city the right to exercise their trade, the business to which they have been trained and on which they depend for the support of themselves and their families. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Decision • In a five-four decision issued on April 14, 1873, by Justice Samuel Freeman Miller, the Court held to a narrow interpretation of the amendment and ruled that it did not restrict the police powers of the state. • The Court held that the Fourteenth Amendment’s privileges or immunities clause affected only rights of United States citizenship and not state citizenship. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Decision • Therefore, the butchers’ Fourteenth Amendment rights had not been violated. • At the time, the Court viewed due process in a procedural light rather than substantively. • The Court further held that the amendment was primarily intended to protect former slaves and so could not be broadly applied. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Dissent of Four Justices • Justice Stephen Field wrote that Miller’s opinion effectively rendered the Fourteenth Amendment a vain and idle enactment. • Field, joined by three other justices, wrote an influential dissent in which he stated that the Fourteenth Amendment embraced the common law presumption in favor of an individual right to pursue a legitimate occupation. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? The Slaughter-House Precedent Should Be Overruled. • Harvard law professor Laurence Tribe writes that the Slaughter-House Cases incorrectly gutted the privileges or immunities clause. • Similarly, Yale law professor Akhil Amar has written that virtually no serious modern scholar (left, right, and center) thinks that Slaughter-House is a plausible reading of the Fourteenth Amendment. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Readings • Oral Argument Before the Supreme Court: Mc. Donald v. Chicago (2010) Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Theme • The oral argument in Mc. Donald v. Chicago (2010) notes the exchanges among the justices on the appropriate role of courts versus legislatures in addressing gun control policy. • Justice Scalia in particular points out that while legislatures appropriately take into account statistical data in making public policies, courts should focus only on constitutional or legal principles. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Oral Argument • The Mc. Donald case argued that the Second Amendment, in addition to applying to federal jurisdictions, should also be applied against state and local governments, using a judicial process called selective incorporation. • Selective incorporation involves convincing the court that a right is fundamental by being implicit in the concept of ordered liberty or deeply rooted in our nation’s history and traditions. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Oral Argument • In addition to claiming the Second Amendment should be incorporated through the selective incorporation process, Mc. Donald asked the court to overturn the Slaughter-House Cases (1873). • Slaughter-House determined that the Fourteenth Amendment’s privileges or immunities clause did not apply the Bill of Rights to the actions of states and by extension, local governments. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Oral Argument • If it had been overturned, the selective incorporation process may have become unnecessary, since the entire Bill of Rights, including the Second Amendment, would arguably be applied against the states. • In attempting to overturn Slaughter-House, this case garnered the attention and support of both conservative and liberal legal scholars interested in its potential application in areas outside of firearms law. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Oral Argument • Their interest was that if Slaughter-House had been overturned, it would have been possible that constitutional guarantees such as the right to a jury in civil cases, right to a grand jury in felony cases, and other parts of the Bill of Rights, as well as future court rulings and existing federal precedent, not universally guaranteed in actions by the states, would have been applied against the states automatically. Copyright © 2012 Pearson Education, Inc.

A Case Study in the Use of Precedent: Should the Slaughter-House Precedent Be Overruled? Oral Argument • In his concurring opinion, Justice Thomas alone supported overturning the Slaughter-House decision, proposing that the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s privileges or immunities clause. Copyright © 2012 Pearson Education, Inc.

The Decision Topic Overview • After oral argument in Mc. Donald v. Chicago, the Court stated its decision in the following opinion. • The Court did not overrule Slaughter-House and ruled that (1) the Fourteenth Amendment’s privileges and immunities clause did not incorporate the Bill of Rights, and (2) a substantive interpretation of the due process clause incorporated fundamental liberties and rights of which the Second Amendment is one (the Second Amendment therefore applied to the states and their municipalities). Copyright © 2012 Pearson Education, Inc.

The Decision Background • The Court of Appeals upheld a Chicago ordinance banning the possession of handguns and gun regulations affecting rifles and shotguns. • The petition for certiorari was filed by Alan Gura, the attorney who had successfully argued Heller. • The Second Amendment Foundation and the Illinois State Rifle Association sponsored the litigation on behalf of several Chicago residents, including retiree Otis Mc. Donald. Copyright © 2012 Pearson Education, Inc.

The Decision • Mc. Donald v. Chicago (2010) was a landmark decision of the United States Supreme Court that determined whether the Second Amendment applies to the individual states. • The Court held that the right of an individual to keep and bear arms protected by the Second Amendment is incorporated by the due process clause of the Fourteenth Amendment and applies to the states. Copyright © 2012 Pearson Education, Inc.

The Decision • The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states. • On June 28, 2010, the Supreme Court reversed the Court of Appeals for the Seventh Circuit’s decision in Mc. Donald v. Chicago and remanded it back to Seventh Circuit to resolve conflicts between certain Chicago gun restrictions and the Second Amendment. Copyright © 2012 Pearson Education, Inc.

The Decision Opinions of Justices Alito and Thomas • Justice Alito, in a plurality decision, concluded that the due process clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. • Justice Thomas, writing a separate opinion, reached the incorporation issue on different grounds, using instead the privileges or immunities clause of the Fourteenth Amendment to reach the same result of incorporation. Copyright © 2012 Pearson Education, Inc.

The Decision Opinions of Justices Alito and Thomas • The opinion also reaffirmed that certain firearms restrictions mentioned in District of Columbia v. Heller, such as those prohibiting the possession of firearms by felons or the mentally ill, as well as laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms, are assumed permissible and not directly dealt with in this case. Copyright © 2012 Pearson Education, Inc.