The President of the United States of America. The Leader of the Free World. This person conjures up an image of the most powerful person in the world, steering the direction of the United States. But how powerful is the President? At various points in history there have arisen times where the Supreme Court has scrutinized his actions, trying to determine the constitutionality of them. The two topics that seemed to come up the most are based on two different subjects. The first is the presidential power of immunity. The President being who he is, at some points it would seem necessary that he be protected from the judicial system so that the separations of powers might not be tipped to one side. The Supreme Court argues against this, saying that the President, while important, does not get special privileges that other citizens do not have. The other issue has been focused around the president’s power to withdraw the writ of habeas corpus. At some points in history it has seemed that the president has withdrawn the right of a fair trail by jury from people he has demeaned enemy combatants, or people who has directly fought against the United States. It is important that the issue be resolved as to who is allowed to fall under this definition and how they will be handled. Over the course of history these questions have arisen and been dealt with by a series of Supreme Court decisions, mainly through five key trials.
The first question that will be examined is the extent of the President’s immunity. The first trial where this was presented was the presented during the Watergate Scandal of 1972. In this incident 7 burglars broke into the Watergate hotel to steal confidential documents from the Democratic Party. It was not until 1974 that this case was brought up against the President of the United States at the time, which was President Richard Nixon. On March 1, 1974 a grand jury charged various persons with a litany of offenses, including conspiracy to defraud the United States and to obstruct justice. It was at this grand jury where President Nixon was named as an unindicted coconspirator. A subpoena was issued that required the production of a number of tapes, memos, transcripts, papers, and other writings that related to the incident. The President then handed the edited versions of the transcripts over to the courts. This would not suffice and an unedited version of the transcripts was demanded. The President then tried to expunge the grand juries decision that he was a coconspirator, using the argument that the
Court lacked jurisdiction to issue the subpoena, due to the matter being an inter-branch dispute between a subordinate and superior officer of the Executive Branch and not subject to judicial resolution and that the federal courts should not intruding into areas committed to other branches of government. The Court was able to deny this on the bases that the jusiticiability of the claim “does not depend on such a surface inquiry….”
The President then tried to use the ideal of a “formal claim of privilege” and that it would be both dangerous and unnecessary to reveal the confidentiality of his communications. It was stressed that it was extremely important that the conversations between the President and the people that advises him be confidential as to protect national security. The Courts thought differently, deciding that neither of these reasons were enough to give the President absolute privilege from immunity from the judicial process. It was the Court’s unanimous decision that the tapes that President Nixon was protecting under the claims of a executive privilege were imperative to the case at hand and that by him not turning them over that it would prevent the due process of law and “gravely impair the basic function of the courts”. The Supreme Court held that no person, from the average citizen to the President of the United States, is above the law and cannot use special privileges, such as executive privileges, to try to rise themselves above it. Not even the President is allowed to bypass the system in which he is employed to protect.
The second trial where the issue of Presidential immunity arose was in 1997 in William Jefferson Clinton v. Paula Corbin Jones. In this case, Jones was working in Little Rock, Arkansas for the Governor Clinton. The Governor was giving a speech at the Excelsior Hotel as Jones manned the reception desk. At that point Danny Ferguson, a former Arkansas State Police officer, persuaded her to leave the desk and go up to the Governor’s suite, where he made “abhorrent” sexual advances at her, which she refused. After the incident she was treated in a “hostile and rude manner” for her rejecting the Governor’s advances. Later, after Clinton was elected President, Ferguson stated that she accepted the advances, while the President called her a liar, saying that she made up the incident.
Jones was suing the President on four counts. The first is that the Governor deprived her of her Constitutional rights; secondly, he and Ferguson violated her federal rights. The third count is based on emotional distress, while the last is based upon defamation for the President calling her a liar.
One thing to draw from this case is that the President conducted these actions before he was elected.
In the District Court the President used the claim that he should “file a motion to dismiss on grounds of Presidential immunity, requested the court to defer all other pleadings and motions until the immunity issue was resoled.” The questions that were being resolved were based on the issue of whether the President is granted temporary immunity for action committed before he was elected. The President argued for this, stating that a trial would defer him from his presidential responsibilities and that it could tip the separation of powers.
The Court recognized this but stated “he is otherwise subject to the laws for his purely private acts.” This means that while the President is immune to judicial trail because of action he committed in the line of duty, unofficial actions that he commits are to be held accountable to the law. For the issue on whether it will impede his ability to do his job and that is will cause a rift in the separation of powers, the Supreme Court states that these will not be problems. So far in the over 200 years of this nations history Presidents have been tried only 3 times. The likelihood of this happening again is slim, at most. And it would be extremely hard for anyone to present a case to assault the Executive branch via the Judicial Branch, because those cases would be eliminated in the lower courts.
The other issue of Presidential power is whether or not he has the right to suspend habeas corpus for citizens of the United States. The first example of this is the case of Ex Parte Milligan. Union forces captured Milligan in an attempt to set POWs free held inside a Union camp and fight Union forces in the area. He was a resident of Indian for 22 years, and was never in the military. Upon his capture he was tired by military tribune and sentenced to be hanged. He appealed this decision under that claim that he was not giving a trail by jury that his rights guarantee him. The overall issue that the Supreme Court was resolving was whether a military tribunal could try a civilian when the civilian courts are open and functioning.
Because Milligan was not a combatant, did not live in a rebel state, nor was a POW himself, it is up to debate whether he should be tried as if he were part of the military or as a civilian.
The Supreme Court eventually decided that Milligan could not be tried by military tribunal in a state that had an active and functioning court in place.
The second case where this issue was brought forth occurred in 1942 with Ex Parte Quirin, in which 8 German spies landed on the East Coast (New York and Florida) with the mission to destroy war facilities. They were apprehended by the FBI, and tried by military tribunal. The prisoners stated that the President hand no constitutional right to try them via military tribunal because they were civilians, not soldiers, of Germany (one was an American citizen, the rest were German citizens). This did not fly because the men were acting for an enemy government with intent to commit hostile actions against the United States. This made them enemy combatants, even if they were civilians. The overall court decision was that, even if you were an American citizen, if you were acting in a way hostile to the government in power and committing actions to harm it, you are designated an enemy combatant.
The third and final case (so far) concerning this issue was between Yaser Esam Hamdi v. Donald H. Rumsfeld. The petitioner, Hamdi, was an American citizen who moved from his home in Louisiana to Saudi Arabia as a child. In 2001 he was captured by Northern Alliance forces in Afghanistan and the turned over to American forces. Hamdi was captured while engaging Northern Alliance soldiers along with other Taliban fighters. Because he was captured and being held as an enemy combatant it would be customary for him to remain POW till the end of the war. This is to stop the released soldiers to return to the battlefield and continue fighting. But the unconventional nature of the Global War on Terror means that the war might not be over for a few generation. There seems to be no way to ensure that terror can be defeated the same way as a nation can. So, this calls into question as to whether the United States can hold an enemy combatant that was also a citizen of the United States. In the end, the Supreme Court ruled that the executive did not have the power to detain a citizen with out due process of the law. Dissent for this ruling was based on the thought that the AUMF would allow the Executive to hold enemy combatants indefinitely. The “Authorization for Use of Military Force” (AUMF) authority allowed the President to use “All necessary and appropriate force” to defend the nation from those involved with the 9/11 attacks, but whether or not it could be used against a citizen of the US was the question. This has since been clarified, meaning that U.S. citizens that were identified as enemy combatants have the right to due process.
The President of the United States of America is seen as the most powerful man in the world, but in reality it seems that he is subject to the same laws that the rest of citizens of this country are subject to. It is his job to serve the people and protect the Constitution of the United States. This, however, does not mean that he is above the law. If he were above the law in which he were elected to protect and administer, then what is the point of having a President at all?
Friday, March 27, 2009
Wednesday, March 11, 2009
Subversion in the US government
Through out the history of the United States, at times of war there has always been the question of how citizens’ rights should be regulated. Should citizens at times of war have the same rights as in times of peace, or should the government control the ways in which citizens receive their rights? Through the Espionage and Sedition Acts the government decided to regulate the rights which citizens’ receive in seemingly extreme ways. How can it be constitutional to arrest and imprison a person who voiced their opinion about the war? These issues were very prominent during World War I when many Americans began to voice their opinion in new ways.
Charles Schenck was the general secretary of the Socialist Party of America. He participated in many antiwar activities which violated the Espionage Act of 1917, which set penalties for anyone who uttered or circulated incorrect statements intended to interfere with the war efforts. The most noticeable violation Schenck committed was when he sent out 15,000 leaflets urging draftees and soldiers to resist the draft in 1917. He was arrested, convicted, and sentenced to prison for violating the Espionage Act, by trying to cause disobedience in the military. He then appealed his case to the United States Supreme Court. In Schenck v United States (1919), the questions that were presented to the Supreme Court, were Schenck’s political statements protected by the First Amendment which says that “Congress shall make no law…abridging the freedom of speech”. What does that statement mean and are there different standards for protecting freedom of speech at times of war and at times of peace? Was the Espionage Act of 1917 constitutional?
Schenck, the petitioner, said that the First Amendment was there to protect citizens’ rights from “tyranny from majority”, also saying that it was unconstitutional for Congress to decide when citizens’ rights were to be upheld. The respondent, the United States, said that a nation at war can take necessary steps to insure the success of the nation’s war efforts. They said it was not a First Amendment issue but rather congressional draft policy. The actions and words of Schenck and the Socialist Party endangered the nation at a time of war.
The Supreme Court upheld Schenck’s conviction in a unanimous 9-0 decision saying that the Espionage Act of 1917 was a reasonable limitation of speech at a time of war. Justice Holmes delivered the opinion of the court, he said, “the question in every case is whether the words used are used in such circumstances …that they will bring about the substantive evils that Congress has a right to prevent”. However, how can a leaflet cause the entire United States army and draftees to resist the war? This is where the unanimous decision seems absurd, thinking that Schenck’s actions could have caused such an uproar in the United States during World War I.
The Supreme Court also heard another case in 1919 dealing with the First Amendment and the Espionage and Sedition Acts. In Debs v United States, the petitioner, Eugene Debs was an American labor and political leader, and a member of the Socialist Party. On June 16, 1918 Debs made an antiwar speech in Canton, Ohio protesting the United States involvement in World War I. He was then arrested under the Sedition Act of 1918, which forbade Americans from using abusive language about the United States government during war. Debs was convicted and sentenced to 10 years in prison.
The constitutional questions raised by this case were, is the statute (Sedition Act of 1918) unconstitutional as it interferes with freedom of speech?
The Supreme Court decided 9-0 in favor with the opinion of the lower courts, “for obstructing and attempting to obstruct the recruiting service of the United States”, and that the verdict must be sustained. As seen in Schenck v United States the Supreme Court used the clear and present danger test to determine that the speech Debs made wad intended to cause danger to the nation at a time of war by trying to obstruct the draft through his speech. Justice Holmes who gave the opinion of the court said that this case was very similar to Schenck v United States where the court upheld a similar decision.
In Abrams v United States (1919), petitioner, Jacob Abrams was a Russian immigrant and an anarchist. On August 23, 1918 Abrams along with other companions were arrested in New York City for writing, printing, and distributing two leaflets. The first of the two leaflets titled, “The Hypocrisy of the United States and her allies”, denounced President Wilson for sending troops to Russia. The second leaflet was in Yiddish and it was titled, “Workers—Wake Up”. “The purpose of this obviously was to persuade the person…to turn a deaf ear…and to cease to render it assistance in the prosecution of the war.” Abrams along with the others were convicted under the Sedition Act; they were tired in October 1918 before a federal district court judge Henry Clayton Jr. and were found guilty and sentenced to 15-20 years in prison. They then appealed the decision to the Supreme Court.
The questions that were posed in this case were, does the Espionage Act and Sedition Acts violate the freedom of speech clause of the First Amendment? The court found 7-2 that no the Espionage Act did not violate the First Amendment. Justice Clark gave the opinion of the court saying that the Espionage Act was not a violation of the freedom of speech clause of the First Amendment. Clark believed that these leaflets had the ability to encourage war resistance, which was a threat to the current state of the nation at war. Justice Holmes gave the dissenting; he said that “I believe the defendants had as much right to publish as the Government had to publish the Constitution of the United States now vainly invoked by them”. He believed that the “silly leaflets” posed no threat to the government and the governments’ involvement in the war.
Justice Holmes delivered the court opinion for both Schenck v United States and Debs v United States, in both of these cases Holmes had a stricter verdict about the constitutionality of the Espionage Act, however, in Abrams v United States he gave the dissenting, saying that the courts opinion about threat of the leaflets was absurd. This shows how much the current state of the nation and the world can change a Justices view in the span of one year.
In Gitlow v People of New York (1925), Benjamin Gitlow was a member of the Communist Labor Party. He participated in writing and distributing 16,000 pamphlets called Left Wing Manifesto, they encouraged citizens to overthrow the government and bring about a communist revolution. He was arrested in New York in 1920 for violating the New York Criminal Anarchy Law of 1902. That law stated that anything that advocated the overthrow of the government is guilty of a felony and punishable by imprisonment or fine. The Court of Appeals held that the Manifesto advocated an overthrow of the government and they held that the statute was constitutional. So Gitlow then appealed his case to the Supreme Court.
The questions that were addressed in this case were, could the due process clause of the Fourteenth Amendment be used to extend First Amendment rights to freedom of speech and press. Did New York’s Criminal Anarchy Law deprive Gitlow of his constitutional rights to freedom of expression? Is it possible that the Fourteenth Amendments due process clause could be used to hold state governments to the free press and speech standards of the First Amendment?
The Court decided 7-2 to uphold Gitlow’s conviction, however, the Court agreed with Gitlow’s argument that states need to be required to comply with the First Amendment, since the protections are set forth through the due process clause of the Fourteenth Amendment. Justice Holmes gave the dissenting in which he though the judgment needed to be reversed, saying that in order to prosecute the government must show that the speech presented a clear danger to the nation in order to be punishable. This dissenting is contradicting to both Schenck v United States and to Debs v United States since in those two decisions Holmes said that the speeches presented a clear and present danger to the nation.
Through these four cases dealing with subversion the Supreme Court has decided in all the cases that the government has the right to choose when to control citizens’ rights, at times of war and at peace since it is for the good of the nation. With these decisions it would seem that the Supreme Court is for regulating rights when there is a “clear and present danger”.
-Harbhajan
Charles Schenck was the general secretary of the Socialist Party of America. He participated in many antiwar activities which violated the Espionage Act of 1917, which set penalties for anyone who uttered or circulated incorrect statements intended to interfere with the war efforts. The most noticeable violation Schenck committed was when he sent out 15,000 leaflets urging draftees and soldiers to resist the draft in 1917. He was arrested, convicted, and sentenced to prison for violating the Espionage Act, by trying to cause disobedience in the military. He then appealed his case to the United States Supreme Court. In Schenck v United States (1919), the questions that were presented to the Supreme Court, were Schenck’s political statements protected by the First Amendment which says that “Congress shall make no law…abridging the freedom of speech”. What does that statement mean and are there different standards for protecting freedom of speech at times of war and at times of peace? Was the Espionage Act of 1917 constitutional?
Schenck, the petitioner, said that the First Amendment was there to protect citizens’ rights from “tyranny from majority”, also saying that it was unconstitutional for Congress to decide when citizens’ rights were to be upheld. The respondent, the United States, said that a nation at war can take necessary steps to insure the success of the nation’s war efforts. They said it was not a First Amendment issue but rather congressional draft policy. The actions and words of Schenck and the Socialist Party endangered the nation at a time of war.
The Supreme Court upheld Schenck’s conviction in a unanimous 9-0 decision saying that the Espionage Act of 1917 was a reasonable limitation of speech at a time of war. Justice Holmes delivered the opinion of the court, he said, “the question in every case is whether the words used are used in such circumstances …that they will bring about the substantive evils that Congress has a right to prevent”. However, how can a leaflet cause the entire United States army and draftees to resist the war? This is where the unanimous decision seems absurd, thinking that Schenck’s actions could have caused such an uproar in the United States during World War I.
The Supreme Court also heard another case in 1919 dealing with the First Amendment and the Espionage and Sedition Acts. In Debs v United States, the petitioner, Eugene Debs was an American labor and political leader, and a member of the Socialist Party. On June 16, 1918 Debs made an antiwar speech in Canton, Ohio protesting the United States involvement in World War I. He was then arrested under the Sedition Act of 1918, which forbade Americans from using abusive language about the United States government during war. Debs was convicted and sentenced to 10 years in prison.
The constitutional questions raised by this case were, is the statute (Sedition Act of 1918) unconstitutional as it interferes with freedom of speech?
The Supreme Court decided 9-0 in favor with the opinion of the lower courts, “for obstructing and attempting to obstruct the recruiting service of the United States”, and that the verdict must be sustained. As seen in Schenck v United States the Supreme Court used the clear and present danger test to determine that the speech Debs made wad intended to cause danger to the nation at a time of war by trying to obstruct the draft through his speech. Justice Holmes who gave the opinion of the court said that this case was very similar to Schenck v United States where the court upheld a similar decision.
In Abrams v United States (1919), petitioner, Jacob Abrams was a Russian immigrant and an anarchist. On August 23, 1918 Abrams along with other companions were arrested in New York City for writing, printing, and distributing two leaflets. The first of the two leaflets titled, “The Hypocrisy of the United States and her allies”, denounced President Wilson for sending troops to Russia. The second leaflet was in Yiddish and it was titled, “Workers—Wake Up”. “The purpose of this obviously was to persuade the person…to turn a deaf ear…and to cease to render it assistance in the prosecution of the war.” Abrams along with the others were convicted under the Sedition Act; they were tired in October 1918 before a federal district court judge Henry Clayton Jr. and were found guilty and sentenced to 15-20 years in prison. They then appealed the decision to the Supreme Court.
The questions that were posed in this case were, does the Espionage Act and Sedition Acts violate the freedom of speech clause of the First Amendment? The court found 7-2 that no the Espionage Act did not violate the First Amendment. Justice Clark gave the opinion of the court saying that the Espionage Act was not a violation of the freedom of speech clause of the First Amendment. Clark believed that these leaflets had the ability to encourage war resistance, which was a threat to the current state of the nation at war. Justice Holmes gave the dissenting; he said that “I believe the defendants had as much right to publish as the Government had to publish the Constitution of the United States now vainly invoked by them”. He believed that the “silly leaflets” posed no threat to the government and the governments’ involvement in the war.
Justice Holmes delivered the court opinion for both Schenck v United States and Debs v United States, in both of these cases Holmes had a stricter verdict about the constitutionality of the Espionage Act, however, in Abrams v United States he gave the dissenting, saying that the courts opinion about threat of the leaflets was absurd. This shows how much the current state of the nation and the world can change a Justices view in the span of one year.
In Gitlow v People of New York (1925), Benjamin Gitlow was a member of the Communist Labor Party. He participated in writing and distributing 16,000 pamphlets called Left Wing Manifesto, they encouraged citizens to overthrow the government and bring about a communist revolution. He was arrested in New York in 1920 for violating the New York Criminal Anarchy Law of 1902. That law stated that anything that advocated the overthrow of the government is guilty of a felony and punishable by imprisonment or fine. The Court of Appeals held that the Manifesto advocated an overthrow of the government and they held that the statute was constitutional. So Gitlow then appealed his case to the Supreme Court.
The questions that were addressed in this case were, could the due process clause of the Fourteenth Amendment be used to extend First Amendment rights to freedom of speech and press. Did New York’s Criminal Anarchy Law deprive Gitlow of his constitutional rights to freedom of expression? Is it possible that the Fourteenth Amendments due process clause could be used to hold state governments to the free press and speech standards of the First Amendment?
The Court decided 7-2 to uphold Gitlow’s conviction, however, the Court agreed with Gitlow’s argument that states need to be required to comply with the First Amendment, since the protections are set forth through the due process clause of the Fourteenth Amendment. Justice Holmes gave the dissenting in which he though the judgment needed to be reversed, saying that in order to prosecute the government must show that the speech presented a clear danger to the nation in order to be punishable. This dissenting is contradicting to both Schenck v United States and to Debs v United States since in those two decisions Holmes said that the speeches presented a clear and present danger to the nation.
Through these four cases dealing with subversion the Supreme Court has decided in all the cases that the government has the right to choose when to control citizens’ rights, at times of war and at peace since it is for the good of the nation. With these decisions it would seem that the Supreme Court is for regulating rights when there is a “clear and present danger”.
-Harbhajan
Tuesday, March 10, 2009
Discrimination and the Supreme Court
Since the establishment of the Fourteenth Amendment to the Constitution which, in succession to the abolition of slavery, guarantees “all persons born or naturalized in the United States” will not be denied “equal protection of the laws,” society has had to struggle in every atmosphere to resolve racial conflict and to determine whose laws are constitutional when referring to race. Initially, the court was tentative to rule strongly for the minority; however, as time continues the Supreme Court, and other underlying courts, play a major role in the movement towards anti-discrimination. It becomes the leading advocate for minority’s rights and protection of their continued pursuit of happiness, which eventually means absolute equality.
The first case the Supreme Court accepted in response to the Civil War Amendments and to their subsequent reactions such as Jim Crow laws and segregation was Plessy v. Ferguson in 1896. The petitioner of the case, and eventual plaintiff in error, was Plessy¬¬––a resident of Louisiana who was one-eighth African. Although he purchased a first-class ticket on the East Louisiana Railway from New Orleans to Covington and was assigned to sit in the all-black train coach, Plessy sat in the white coach. An act from the General Assembly of the State of Louisiana enacts that “[n]o person, or persons, shall be admitted to occupy seats in coaches, other than, the ones, assigned, to them on account of the race they belong to.” Therefore, by Louisiana state law, the conductor was required to eject him from the train from which he was taken to the parish jail of New Orleans. After being committed for trial for violation of the above act, the petitioner filed against Hon. John H. Ferguson, judge of the criminal District Court for the parish in New Orleans, in the Supreme Court under Plessy’s Thirteenth and Fourteenth Amendment rights.
The Constitutional question became whether or not segregation is a violation of a citizen’s Fourteenth Amendment rights, because it was immediately ruled that the train car did not intend to put non-whites into servitude and did not apply to the Thirteenth Amendment. Taking into consideration the implications and purposes of segregation, the Supreme Court ruled that it is “within the police power of the state” to separate utilities by race as long as the spaces are equal. Arguing that segregation does not imply that the black race is inferior, the Court’s decision coined the term “separate but equal.” Because the Court was able to consider a similar case in Boston, an abolitionist state, where in Roberts v. City of Boston segregation in schools was considered necessary for the “promotion of the public good,” the doctrine that segregation “deprived of no rights” was established. The plaintiff’s counter-argument that this would justify the state legislature to enact laws that “require separate cars to be provided for people whose hair is of a certain color…or requiring white men’s houses to be painted white, and colored men’s black.” In response to this, the Court responded that the exercise of police power must be reasonable, meaning “with a view to the promotion of [people’s] comfort, and the preservation of the public peace and good order.” The plaintiff also argued that segregation stamps the black race with a “badge of inferiority.” Denying this to be true, the final decision ruled that because “[l]egislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences,” segregation was constitutional, and the judgment of the Louisiana court was affirmed. Also, the Court left it up to individual states what percentage blood indicates whether or not an individual is white.
As racial tensions grew to new heights and caused further discrimination, endangering opportunity for black children, this decision needed to be readdressed. It was therefore overthrown in 1954 in the Supreme Court case Brown v. Board of Education of Topeka. As the plaintiff, the “negro children of elementary school age residing in Topeka” faced the Topeka Board of Education. Some black children wanted to transfer to and attend an all-white school, which was legally segregated by a Kansas statute, which permitted cities of more than 15,000 in population to “maintain separate school facilities for Negro and white students.” Seeking to obtain admission to the public schools of their communities through integration, the children filed suit to the District Court of Kansas, which found segregation to have “a detrimental effect upon Negro children,” but denied relief because the schools were substantially tangibly equal. The petitioner, therefore, appealed based upon a violation of the children’s Fourteenth Amendment rights.
The Supreme Court heard the argument, although the issue of segregation’s constitutionality had already been addressed in Plessy v. Ferguson, based upon four reasons: public education was nonexistent when the Fourteenth Amendment was established, public education needed to be newly acknowledged for its “full development and its present place in American life throughout the Nation,” Plessy v. Ferguson did not involve educations but transportation, and the decision would not be based upon tangible factors between different-race schools, but upon “the effect of segregation itself on public education.” In the Supreme Court’s decision, the right to education was established as an equality and pursuit of happiness: “it is a right which must be made available to all on equal terms.” Also, the negative effects of segregation on education were based, again, on the argument of implied inferiority. The Court confirmed that segregation generates a feeling of inferiority for black people, that it is detrimental to children’s growth, that it affects a child’s motivation, and it deprives them of certain benefits which they would otherwise receive. The final decision officially overturns Plessy v. Ferguson and confirms that the doctrine “separate but equal” becomes inherently unequal, so segregation deprives the plaintiffs and others similarly situated of the laws guaranteed by the Fourteenth Amendment rights.
Again in April of 1955 the Supreme Court was forced to readdress Brown v. Board of Education in order to enforce and require that all public schools follow the Court’s decision and integrate public schools; however, the schools are given “necessary time” as long as they work to change their systems “with deliberation.”
After Brown v. Board’s strong ruling that established the extent to which the Fourteenth Amendment would thereafter extend, educational and employment programs began to offer minority groups benefits in their systems. Those not receiving such benefits, the white majority, feared for their equal opportunity. In reaction sprung Regents of the University of California v. Bakke.
The Medical School of the University of California at Davis denied Allan Bakke, a white male, admission to the school when four spots for admission were still available. These spots were reserved for “minority group” applicants. Bakke’s “benchmark” scores, a combination of standardized tests, grade point averages and recommendations, were significantly higher than the average of that of the sixteen students admitted for the school’s “minority group” quota. The medical school only admitted 100 students per year, and sixteen of those spots were unattainable for advantaged white students. Therefore, Bakke competed for 84 spots while others could compete for 100. Upon his second rejection of admission, Bakke filed suit in the Superior Court of California, arguing exclusion from school on the basis of race and that it was a direct violation of the 14th Amendment. The California Court, by validity of the Special admissions program under the Equal Protections clause, says it to be unconstitutional.
Upon this finding, the Supreme Court requests supplemental briefing on the appealed case. The case had become a “battle over the scope of judicial review,” meaning the methods in which admissions decisions were made. The petitioner, the Medical School, preferred to view it as a “goal” of minority representation, while the respondent, Bakke, labeled it a “racial quota.” Ignoring perspective, the Court had to address that “the special admissions program is undeniably a classification based on race and ethnic background.” So the constitutional question became whether or not affirmative admissions programs of any kind were constitutional.
Having established that both minority and majority groups can face discrimination and inequality before the law, the Court looked at the possible repercussions of not addressing such a suit: “individuals may be asked to suffer otherwise impermissible burdens in order to advance societal standing,” “preferential programs may only reinforce stereotypes,” and innocent members of a certain race would unfairly be forced to bear the “burdens of redressing grievances not of their own making.” On the other hand, the court also considered the positive reasons for the justification of such a program: reducing the “historical deficit” of “traditionally disfavored minorities” in medicine, “countering the effects of social discrimination,” increasing the number of physicians who will practice medicine in “communities currently undeserved,” and benefiting from and “ethnically diverse student body.” Deciding that these specific reasons do not hold up against the Constitution, the Supreme Court thought the Medical school’s program to be unconstitutional. However, a question still remained: whether the “programs racial classification is necessary to promote [University] interests.” In this discussion, the Court addressed “Four essential freedoms of a University,” including the right to decide who may be admitted to study. The court’s decision on this topic was a compromise. It concluded that the race of an applicant could not be criteria for a certain spot; however, it could “tip the balance” just like any other different quality. Like a unique geographical origin, race could be deemed a “plus,” as long as each applicant was treated equally as an individual. Therefore, the Supreme Court, in suggesting new reformed methods of constitutional affirmative admission, affirmed the California Court’s original decision ruling in favor of Bakke.
However, after the entire judgment, it is revealed that “Mr. Justice Powell agrees that some uses of race in university admissions are permissible and, therefore…reversing the judgment below insofar as it prohibits the University from establishing race-conscious programs in the future…” With this notion, the final decision becomes fragmented. Although the program was deemed unconstitutional, this suggests that in the future, other means of constitutional affirmative admissions will be possible.
The ruling in a similar case following this one better clarifies the meaning for the future of affirmative admissions programs as they apply to public schools. In Barbara Grutter v. Lee Bollinger, the petitioner, Grutter, applied in 1997 to the University of Michigan Law School. Because of the school’s focus on admitting students diverse in all aspects, Grutter filed suit in the US District Court for the Eastern District of Michigan upon rejection of admission. She argued for the violation of her Fourteenth Amendment rights.
As an opportunity to reaffirm the disjointed and slightly convoluted decision of the Bakke decision, the Supreme Court accepted the case. The Law school’s policy for admissions was upheld on the basis of Bakke by the decision of the Court. In addition, the optimism for racial equality in the Court is reflected through a specific rule in keeping admissions policies constitutional. There is a requirement that all race-conscious admissions programs have a termination pointed that “assures all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.” It is the striving for equality that brightens this case.
The same issue of the minorities’ specific interests and programs with comparison to those of the majority is also reflected outside of the school setting, but in the work-force setting with relation to minority “set-aside” programs. Again, the white majority questions the constitutionality of these special benefits provided by the government. In Adarand Constructors v. Pena in 1995, Petition Adarand Constructors, Inc. filed suit against the Subcontracting Compensation Clause program, arguing that it violated the owners’ Fifth Amendment rights of equal due process of law.
In 1989 the Central Federal Lands Highway Division administered a highway construction project in Colorado to Mountain Gravel & Construction Company. Both Adarand and Gonzales Construction Company placed bids, and Adarand’s bid was lower. However, Mountain Gravel hired Gonzales Construction Company because of additional compensation for hiring “socially and economically disadvantaged individuals.” As the petitioner, Adarand filed suit in the Court of Colorado in Croson. Again the constitutional question is whether or not social and racial minorities receiving extra benefits from the government is constitutional.
The unconstitutionality that this District Court determined was the presumption that the qualifications for “disadvantaged individuals” was directly related to race. The Court ruled that qualifications for receiving benefits should be regulated with “strict scrutiny.” However, in another case, Metro Broadcasting, Inc. v. FCC” (1990) ruled that the same decisions when subject to “benign preference” should only undergo “intermediate scrutiny.” The Supreme Court took the appeal in order to set matters straight among inconsistencies. The Court’s decision was that all racial classification should undergo strict scrutiny by a reviewing court: “such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Therefore, the Supreme Court overruled the Metro Broadcasting decision and determined, again, that advantage is constitutional when in moderation and necessary for government interests.
The dissenting opinion in this case mentions, again, the badge of inferiority. Stating government sponsored discrimination based upon “benign prejudice” is “racial discrimination, plain and simple.” Although the tables have turned and instead of preventing a black man to enter a white train car the government is paying him double it would pay a white man to build it, the badge of inferiority returns. The Supreme Court decisions, after Plessy v. Ferguson, all support minorities’ rights in order to compensate for past grievances; however, it is quite possible that the inability of the Court to let go of minority “set-aside” programs in order to protect from discrimination is the very thing preventing its disappearance. Just like in Plessy v. Ferguson the Court would not let go of segregation for fear of the repercussions, but in Brown v. Board when it finally did, integration found its way into schools across the country, in the same way the Court holds on to minority advantage programs for fear of disproportionateness in opportunity; however, maybe the abandonment of such training wheels would allow society to find equality naturally.
The first case the Supreme Court accepted in response to the Civil War Amendments and to their subsequent reactions such as Jim Crow laws and segregation was Plessy v. Ferguson in 1896. The petitioner of the case, and eventual plaintiff in error, was Plessy¬¬––a resident of Louisiana who was one-eighth African. Although he purchased a first-class ticket on the East Louisiana Railway from New Orleans to Covington and was assigned to sit in the all-black train coach, Plessy sat in the white coach. An act from the General Assembly of the State of Louisiana enacts that “[n]o person, or persons, shall be admitted to occupy seats in coaches, other than, the ones, assigned, to them on account of the race they belong to.” Therefore, by Louisiana state law, the conductor was required to eject him from the train from which he was taken to the parish jail of New Orleans. After being committed for trial for violation of the above act, the petitioner filed against Hon. John H. Ferguson, judge of the criminal District Court for the parish in New Orleans, in the Supreme Court under Plessy’s Thirteenth and Fourteenth Amendment rights.
The Constitutional question became whether or not segregation is a violation of a citizen’s Fourteenth Amendment rights, because it was immediately ruled that the train car did not intend to put non-whites into servitude and did not apply to the Thirteenth Amendment. Taking into consideration the implications and purposes of segregation, the Supreme Court ruled that it is “within the police power of the state” to separate utilities by race as long as the spaces are equal. Arguing that segregation does not imply that the black race is inferior, the Court’s decision coined the term “separate but equal.” Because the Court was able to consider a similar case in Boston, an abolitionist state, where in Roberts v. City of Boston segregation in schools was considered necessary for the “promotion of the public good,” the doctrine that segregation “deprived of no rights” was established. The plaintiff’s counter-argument that this would justify the state legislature to enact laws that “require separate cars to be provided for people whose hair is of a certain color…or requiring white men’s houses to be painted white, and colored men’s black.” In response to this, the Court responded that the exercise of police power must be reasonable, meaning “with a view to the promotion of [people’s] comfort, and the preservation of the public peace and good order.” The plaintiff also argued that segregation stamps the black race with a “badge of inferiority.” Denying this to be true, the final decision ruled that because “[l]egislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences,” segregation was constitutional, and the judgment of the Louisiana court was affirmed. Also, the Court left it up to individual states what percentage blood indicates whether or not an individual is white.
As racial tensions grew to new heights and caused further discrimination, endangering opportunity for black children, this decision needed to be readdressed. It was therefore overthrown in 1954 in the Supreme Court case Brown v. Board of Education of Topeka. As the plaintiff, the “negro children of elementary school age residing in Topeka” faced the Topeka Board of Education. Some black children wanted to transfer to and attend an all-white school, which was legally segregated by a Kansas statute, which permitted cities of more than 15,000 in population to “maintain separate school facilities for Negro and white students.” Seeking to obtain admission to the public schools of their communities through integration, the children filed suit to the District Court of Kansas, which found segregation to have “a detrimental effect upon Negro children,” but denied relief because the schools were substantially tangibly equal. The petitioner, therefore, appealed based upon a violation of the children’s Fourteenth Amendment rights.
The Supreme Court heard the argument, although the issue of segregation’s constitutionality had already been addressed in Plessy v. Ferguson, based upon four reasons: public education was nonexistent when the Fourteenth Amendment was established, public education needed to be newly acknowledged for its “full development and its present place in American life throughout the Nation,” Plessy v. Ferguson did not involve educations but transportation, and the decision would not be based upon tangible factors between different-race schools, but upon “the effect of segregation itself on public education.” In the Supreme Court’s decision, the right to education was established as an equality and pursuit of happiness: “it is a right which must be made available to all on equal terms.” Also, the negative effects of segregation on education were based, again, on the argument of implied inferiority. The Court confirmed that segregation generates a feeling of inferiority for black people, that it is detrimental to children’s growth, that it affects a child’s motivation, and it deprives them of certain benefits which they would otherwise receive. The final decision officially overturns Plessy v. Ferguson and confirms that the doctrine “separate but equal” becomes inherently unequal, so segregation deprives the plaintiffs and others similarly situated of the laws guaranteed by the Fourteenth Amendment rights.
Again in April of 1955 the Supreme Court was forced to readdress Brown v. Board of Education in order to enforce and require that all public schools follow the Court’s decision and integrate public schools; however, the schools are given “necessary time” as long as they work to change their systems “with deliberation.”
After Brown v. Board’s strong ruling that established the extent to which the Fourteenth Amendment would thereafter extend, educational and employment programs began to offer minority groups benefits in their systems. Those not receiving such benefits, the white majority, feared for their equal opportunity. In reaction sprung Regents of the University of California v. Bakke.
The Medical School of the University of California at Davis denied Allan Bakke, a white male, admission to the school when four spots for admission were still available. These spots were reserved for “minority group” applicants. Bakke’s “benchmark” scores, a combination of standardized tests, grade point averages and recommendations, were significantly higher than the average of that of the sixteen students admitted for the school’s “minority group” quota. The medical school only admitted 100 students per year, and sixteen of those spots were unattainable for advantaged white students. Therefore, Bakke competed for 84 spots while others could compete for 100. Upon his second rejection of admission, Bakke filed suit in the Superior Court of California, arguing exclusion from school on the basis of race and that it was a direct violation of the 14th Amendment. The California Court, by validity of the Special admissions program under the Equal Protections clause, says it to be unconstitutional.
Upon this finding, the Supreme Court requests supplemental briefing on the appealed case. The case had become a “battle over the scope of judicial review,” meaning the methods in which admissions decisions were made. The petitioner, the Medical School, preferred to view it as a “goal” of minority representation, while the respondent, Bakke, labeled it a “racial quota.” Ignoring perspective, the Court had to address that “the special admissions program is undeniably a classification based on race and ethnic background.” So the constitutional question became whether or not affirmative admissions programs of any kind were constitutional.
Having established that both minority and majority groups can face discrimination and inequality before the law, the Court looked at the possible repercussions of not addressing such a suit: “individuals may be asked to suffer otherwise impermissible burdens in order to advance societal standing,” “preferential programs may only reinforce stereotypes,” and innocent members of a certain race would unfairly be forced to bear the “burdens of redressing grievances not of their own making.” On the other hand, the court also considered the positive reasons for the justification of such a program: reducing the “historical deficit” of “traditionally disfavored minorities” in medicine, “countering the effects of social discrimination,” increasing the number of physicians who will practice medicine in “communities currently undeserved,” and benefiting from and “ethnically diverse student body.” Deciding that these specific reasons do not hold up against the Constitution, the Supreme Court thought the Medical school’s program to be unconstitutional. However, a question still remained: whether the “programs racial classification is necessary to promote [University] interests.” In this discussion, the Court addressed “Four essential freedoms of a University,” including the right to decide who may be admitted to study. The court’s decision on this topic was a compromise. It concluded that the race of an applicant could not be criteria for a certain spot; however, it could “tip the balance” just like any other different quality. Like a unique geographical origin, race could be deemed a “plus,” as long as each applicant was treated equally as an individual. Therefore, the Supreme Court, in suggesting new reformed methods of constitutional affirmative admission, affirmed the California Court’s original decision ruling in favor of Bakke.
However, after the entire judgment, it is revealed that “Mr. Justice Powell agrees that some uses of race in university admissions are permissible and, therefore…reversing the judgment below insofar as it prohibits the University from establishing race-conscious programs in the future…” With this notion, the final decision becomes fragmented. Although the program was deemed unconstitutional, this suggests that in the future, other means of constitutional affirmative admissions will be possible.
The ruling in a similar case following this one better clarifies the meaning for the future of affirmative admissions programs as they apply to public schools. In Barbara Grutter v. Lee Bollinger, the petitioner, Grutter, applied in 1997 to the University of Michigan Law School. Because of the school’s focus on admitting students diverse in all aspects, Grutter filed suit in the US District Court for the Eastern District of Michigan upon rejection of admission. She argued for the violation of her Fourteenth Amendment rights.
As an opportunity to reaffirm the disjointed and slightly convoluted decision of the Bakke decision, the Supreme Court accepted the case. The Law school’s policy for admissions was upheld on the basis of Bakke by the decision of the Court. In addition, the optimism for racial equality in the Court is reflected through a specific rule in keeping admissions policies constitutional. There is a requirement that all race-conscious admissions programs have a termination pointed that “assures all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.” It is the striving for equality that brightens this case.
The same issue of the minorities’ specific interests and programs with comparison to those of the majority is also reflected outside of the school setting, but in the work-force setting with relation to minority “set-aside” programs. Again, the white majority questions the constitutionality of these special benefits provided by the government. In Adarand Constructors v. Pena in 1995, Petition Adarand Constructors, Inc. filed suit against the Subcontracting Compensation Clause program, arguing that it violated the owners’ Fifth Amendment rights of equal due process of law.
In 1989 the Central Federal Lands Highway Division administered a highway construction project in Colorado to Mountain Gravel & Construction Company. Both Adarand and Gonzales Construction Company placed bids, and Adarand’s bid was lower. However, Mountain Gravel hired Gonzales Construction Company because of additional compensation for hiring “socially and economically disadvantaged individuals.” As the petitioner, Adarand filed suit in the Court of Colorado in Croson. Again the constitutional question is whether or not social and racial minorities receiving extra benefits from the government is constitutional.
The unconstitutionality that this District Court determined was the presumption that the qualifications for “disadvantaged individuals” was directly related to race. The Court ruled that qualifications for receiving benefits should be regulated with “strict scrutiny.” However, in another case, Metro Broadcasting, Inc. v. FCC” (1990) ruled that the same decisions when subject to “benign preference” should only undergo “intermediate scrutiny.” The Supreme Court took the appeal in order to set matters straight among inconsistencies. The Court’s decision was that all racial classification should undergo strict scrutiny by a reviewing court: “such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Therefore, the Supreme Court overruled the Metro Broadcasting decision and determined, again, that advantage is constitutional when in moderation and necessary for government interests.
The dissenting opinion in this case mentions, again, the badge of inferiority. Stating government sponsored discrimination based upon “benign prejudice” is “racial discrimination, plain and simple.” Although the tables have turned and instead of preventing a black man to enter a white train car the government is paying him double it would pay a white man to build it, the badge of inferiority returns. The Supreme Court decisions, after Plessy v. Ferguson, all support minorities’ rights in order to compensate for past grievances; however, it is quite possible that the inability of the Court to let go of minority “set-aside” programs in order to protect from discrimination is the very thing preventing its disappearance. Just like in Plessy v. Ferguson the Court would not let go of segregation for fear of the repercussions, but in Brown v. Board when it finally did, integration found its way into schools across the country, in the same way the Court holds on to minority advantage programs for fear of disproportionateness in opportunity; however, maybe the abandonment of such training wheels would allow society to find equality naturally.
Sunday, March 8, 2009
Emma's Blog on Gay Rights
As history unfolds before one’s eyes, humans appear to be gradually becoming more complex overtime. However, when reviewing this history closer, it begins to become obvious that it is not humans who are changing, it is in fact society. Thus, as this history moves forward, society in America, at least within the last 100 years, has become more diverse, and while open to new opportunities and ideas, may not always be accepting.
While human rights have possibly been the greatest focus of our country, gay rights only recently has entered into the media as a major issue. With this new contemporary issue come the questions that surround it. Does the American Constitution protect homosexual conduct? Or more simply, does it protect the rights of those are openly homosexual? From the 1950’s until the present, this issue has gained greater media coverage, become more of a central focus within present society, and, similar to racism, has also been as issue that reflects back further into society than most people realize.
In 1982, the issue of gay rights was brought into the public more than ever in the United States Supreme Court case, Bowers v. Hardwick. Respondent, Michael Hardwick had been found by a police officer in the act of sodomy with another male in Hardwick’s bedroom. The police officer had originally come into the house, let in by someone who had been living with Hardwick at the time, to speak with Hardwick about throwing a beer bottle out the window. Hardwick was then charged with violating the Georgia statute which stated that “a person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” The case was thus brought to the District Court for the Northern District of Georgia, where it was dismissed, with the court ruling in favor of Attorney General Bowers. Hardwick then appealed, bringing the case to the Court of Appeals who reversed the lower court, finding that the Georgia sodomy statute was in fact an infringement upon Hardwick’s Constitutional rights. Again, this case, as every other, focuses primarily on the Constitutional rights that do or do not cover those of a different sexual orientation. Therefore, because of the continuing disagreement as the state of Georgia appealed, the case was brought to the United States Supreme Court. By the end in 1986, the decision went in favor for Bowers with a vote of 5-4, with the emphasis on the historical negative attitudes towards homosexual sex, as well as the belief that these acts are not protected under the Due Process clauses. Those who dissented placed less emphasis on the act of homosexual sex and more on the right to privacy, “the most comprehensive of rights and the right most valued by civilized men.” These Justices, including Justice Brennan, Marshall, Stevens, and Blackmun, used the Fourth Amendment frequently, again stressing the fact that Hardwick was found in his home. Later, one of the Justices who was in support of the Supreme Court’s decision, Justice Powell, described his vote as a mistake, therefore agreeing with the argument made by Justice Brennan, Marshall, Stevens, and Blackmun. Interestingly, in 1999, the state of Georgia struck down the original statute from this case as violation of the Georgia Constitution.
Approximately 10 years later in 1996, the Supreme Court again faced the issue of gay rights. However, the question moved from a concern of the sexual acts of homosexuals to the basic, necessary rights of those who are openly gay within the Constitution. 4 years prior, the state of Colorado created an amendment to the state constitution which banned discrimination in many transactions and activities. What made this amendment so controversial however, was the fact that it prohibited all legislative, executive, or judicial action within the state designed to protect those who are openly gay. The amendment plainly states, “No protected status based on homosexual, lesbian or bisexual orientation. Neither the state of Colorado, through any of its branched or departments…..shall enact….ordinance or policy whereby homosexual, lesbian or bisexual orientation….shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.” Soon after the amendment passed, the issue was taken to the District Court for the City and County of Denver, where the court ordered in favor of the amendment, claiming that it put gays and lesbians in the same position as all other persons. Colorado then appealed to the state court, who then affirmed the district court’s decision. Finally, the case, called Romer v Evans was brought to the United States Supreme Court, who by a vote of 6-3 found that the amendment lacked rational basis, violating the equal protection rights of homosexuals. The respondent in this case was Evans, while the petitioner was Romer, the governor of Colorado. Those who supported the final decision included Justices Stevens, O’Connor, Spouter, Ginsberg, Breyer, and Kennedy who stated, “It is not within our constitutional right to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seeks its assistance.”
In 2000, the issue was again brought up in the Supreme Court, however in this case, it brought up the notion of influence of an openly gay/lesbian/bisexual individual on society. A model member of the Boy Scouts, James Dale entered the club in 1978, became a boy scout in 1981, and in 1988 achieved the rank of Eagle Scout. A year later, Dale became an adult member of the Boy Scouts, becoming the scoutmaster of Troop 73. During the same time, Dale left home to attend Rutgers University, where he began to speak publicly about being gay, becoming the copresident of the Rutgers University Lesbian/Gay Alliance. A month after being interviewed in a newspaper about his advocacy of homosexual teenagers’ need for a gay role model, Dale received a letter from the Boy Scout Council Executive of his area revoking his adult membership. Dale responded asking why he had been revoked, and soon received a response stating that the Boy Scouts “specifically forbid membership to homosexuals.” In 1992, Dale filed a complaint to the New Jersey Superior Court against the Boy Scouts, however the court ordered in favor of the Boy Scouts stating that while New Jersey’s public accommodation statute forbids discrimination on the basis of sexual orientation, the Boy Scouts was not a place of public accommodation, but is instead a private group. Contrastingly, the New Jersey Superior Court’s Appellate Division rejected the Boy Scouts’ federal constitutional claims. The New Jersey Supreme affirmed this judgment, and thus the Boy Scouts appealed to the United States Supreme Court, where the First Amendment’s right to express oneself became the centerfold of the case. Similar to the “Don’t ask, don’t tell” policy within the military, does one have the right to express oneself in terms of their sexual orientation, as respondent Dale did? The decision of the court instead favored the respondent, Boy Scouts of America. In simplest terms, the court reversed the argument of the First Amendment, stating that the Boy Scouts of America have a right to express their beliefs as well, the beliefs that discriminate those who express themselves openly. As contradictory as this argument may sound, what is more unbelievable is that this decision had taken place within the current decade.
In 2003, the same issue brought up in Bowers v. Hardwick was brought to the court and reopened. In the case of Lawrence v. Texas, the scenario remained entirely the same in which officers (this time in Texas) entered a private residence due to another possible crime (reported weapons disturbance) and walked in on two men (John Lawrence and Tyron Garner) engaged in a sexual act, again violating a state statute against sodomy. The two men were then arrested and charged for a crime of “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” When the petitioners, Lawrence and Garner, were brought to the County court, they argued that the statue was a violation of the Equal Rights Protection Clause in the Fourteenth Amendment. The court then voted in favor of the respondent, the state of Texas, and fined both Lawrence and Garner $200. The case was then brought to the Texas Court of Appeals , in which the petitioners presented on both equal rights protection and right to privacy grounds, in which the court voted in favor for them on the basis of the violation of the Equal Rights Amendment in the Texas Constitution. The case was finally brought to the U.S. Supreme Court in 2003, in which the court ordered in favor of Lawrence and Garner. As opposed to the Bowers v. Hardwick case, the majority of the court, while emphasizing the violation of privacy, stressed greatly the violation of the Fourteenth Amendment, the equal rights amendment. Ultimately, the case overruled the decision of the Bowers v. Hardwick case, stating, “The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons…”
Now, only six years later, it is hard to believe that cases such as these have occurred within the past 25 years, and continue to be brought up daily. Therefore, while many believe that as a society, America has come far in its fight against discrimination, there is still much more fighting that is left undone. As Justice Blackmun explained in his speech arguing against the Court decision of Bowers v. Hardwick, “In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.”
-Emma
While human rights have possibly been the greatest focus of our country, gay rights only recently has entered into the media as a major issue. With this new contemporary issue come the questions that surround it. Does the American Constitution protect homosexual conduct? Or more simply, does it protect the rights of those are openly homosexual? From the 1950’s until the present, this issue has gained greater media coverage, become more of a central focus within present society, and, similar to racism, has also been as issue that reflects back further into society than most people realize.
In 1982, the issue of gay rights was brought into the public more than ever in the United States Supreme Court case, Bowers v. Hardwick. Respondent, Michael Hardwick had been found by a police officer in the act of sodomy with another male in Hardwick’s bedroom. The police officer had originally come into the house, let in by someone who had been living with Hardwick at the time, to speak with Hardwick about throwing a beer bottle out the window. Hardwick was then charged with violating the Georgia statute which stated that “a person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” The case was thus brought to the District Court for the Northern District of Georgia, where it was dismissed, with the court ruling in favor of Attorney General Bowers. Hardwick then appealed, bringing the case to the Court of Appeals who reversed the lower court, finding that the Georgia sodomy statute was in fact an infringement upon Hardwick’s Constitutional rights. Again, this case, as every other, focuses primarily on the Constitutional rights that do or do not cover those of a different sexual orientation. Therefore, because of the continuing disagreement as the state of Georgia appealed, the case was brought to the United States Supreme Court. By the end in 1986, the decision went in favor for Bowers with a vote of 5-4, with the emphasis on the historical negative attitudes towards homosexual sex, as well as the belief that these acts are not protected under the Due Process clauses. Those who dissented placed less emphasis on the act of homosexual sex and more on the right to privacy, “the most comprehensive of rights and the right most valued by civilized men.” These Justices, including Justice Brennan, Marshall, Stevens, and Blackmun, used the Fourth Amendment frequently, again stressing the fact that Hardwick was found in his home. Later, one of the Justices who was in support of the Supreme Court’s decision, Justice Powell, described his vote as a mistake, therefore agreeing with the argument made by Justice Brennan, Marshall, Stevens, and Blackmun. Interestingly, in 1999, the state of Georgia struck down the original statute from this case as violation of the Georgia Constitution.
Approximately 10 years later in 1996, the Supreme Court again faced the issue of gay rights. However, the question moved from a concern of the sexual acts of homosexuals to the basic, necessary rights of those who are openly gay within the Constitution. 4 years prior, the state of Colorado created an amendment to the state constitution which banned discrimination in many transactions and activities. What made this amendment so controversial however, was the fact that it prohibited all legislative, executive, or judicial action within the state designed to protect those who are openly gay. The amendment plainly states, “No protected status based on homosexual, lesbian or bisexual orientation. Neither the state of Colorado, through any of its branched or departments…..shall enact….ordinance or policy whereby homosexual, lesbian or bisexual orientation….shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.” Soon after the amendment passed, the issue was taken to the District Court for the City and County of Denver, where the court ordered in favor of the amendment, claiming that it put gays and lesbians in the same position as all other persons. Colorado then appealed to the state court, who then affirmed the district court’s decision. Finally, the case, called Romer v Evans was brought to the United States Supreme Court, who by a vote of 6-3 found that the amendment lacked rational basis, violating the equal protection rights of homosexuals. The respondent in this case was Evans, while the petitioner was Romer, the governor of Colorado. Those who supported the final decision included Justices Stevens, O’Connor, Spouter, Ginsberg, Breyer, and Kennedy who stated, “It is not within our constitutional right to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seeks its assistance.”
In 2000, the issue was again brought up in the Supreme Court, however in this case, it brought up the notion of influence of an openly gay/lesbian/bisexual individual on society. A model member of the Boy Scouts, James Dale entered the club in 1978, became a boy scout in 1981, and in 1988 achieved the rank of Eagle Scout. A year later, Dale became an adult member of the Boy Scouts, becoming the scoutmaster of Troop 73. During the same time, Dale left home to attend Rutgers University, where he began to speak publicly about being gay, becoming the copresident of the Rutgers University Lesbian/Gay Alliance. A month after being interviewed in a newspaper about his advocacy of homosexual teenagers’ need for a gay role model, Dale received a letter from the Boy Scout Council Executive of his area revoking his adult membership. Dale responded asking why he had been revoked, and soon received a response stating that the Boy Scouts “specifically forbid membership to homosexuals.” In 1992, Dale filed a complaint to the New Jersey Superior Court against the Boy Scouts, however the court ordered in favor of the Boy Scouts stating that while New Jersey’s public accommodation statute forbids discrimination on the basis of sexual orientation, the Boy Scouts was not a place of public accommodation, but is instead a private group. Contrastingly, the New Jersey Superior Court’s Appellate Division rejected the Boy Scouts’ federal constitutional claims. The New Jersey Supreme affirmed this judgment, and thus the Boy Scouts appealed to the United States Supreme Court, where the First Amendment’s right to express oneself became the centerfold of the case. Similar to the “Don’t ask, don’t tell” policy within the military, does one have the right to express oneself in terms of their sexual orientation, as respondent Dale did? The decision of the court instead favored the respondent, Boy Scouts of America. In simplest terms, the court reversed the argument of the First Amendment, stating that the Boy Scouts of America have a right to express their beliefs as well, the beliefs that discriminate those who express themselves openly. As contradictory as this argument may sound, what is more unbelievable is that this decision had taken place within the current decade.
In 2003, the same issue brought up in Bowers v. Hardwick was brought to the court and reopened. In the case of Lawrence v. Texas, the scenario remained entirely the same in which officers (this time in Texas) entered a private residence due to another possible crime (reported weapons disturbance) and walked in on two men (John Lawrence and Tyron Garner) engaged in a sexual act, again violating a state statute against sodomy. The two men were then arrested and charged for a crime of “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” When the petitioners, Lawrence and Garner, were brought to the County court, they argued that the statue was a violation of the Equal Rights Protection Clause in the Fourteenth Amendment. The court then voted in favor of the respondent, the state of Texas, and fined both Lawrence and Garner $200. The case was then brought to the Texas Court of Appeals , in which the petitioners presented on both equal rights protection and right to privacy grounds, in which the court voted in favor for them on the basis of the violation of the Equal Rights Amendment in the Texas Constitution. The case was finally brought to the U.S. Supreme Court in 2003, in which the court ordered in favor of Lawrence and Garner. As opposed to the Bowers v. Hardwick case, the majority of the court, while emphasizing the violation of privacy, stressed greatly the violation of the Fourteenth Amendment, the equal rights amendment. Ultimately, the case overruled the decision of the Bowers v. Hardwick case, stating, “The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons…”
Now, only six years later, it is hard to believe that cases such as these have occurred within the past 25 years, and continue to be brought up daily. Therefore, while many believe that as a society, America has come far in its fight against discrimination, there is still much more fighting that is left undone. As Justice Blackmun explained in his speech arguing against the Court decision of Bowers v. Hardwick, “In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.”
-Emma
Friday, March 6, 2009
Right to Privacy
The “Right to Privacy,” while not specifically enumerated in the Constitution, is more or less implied through various amendments. The most often cited one is the 14th Amendment which states that, “No state ... shall deprive any person of life, liberty or property without due process of law.” However, is there a point where personal privacy can actually interfere with and endanger society as a whole? The Supreme Court has struggled with this question in its search to define how private privacy actually is.
One of the earliest cases referring to privacy was Meyer vs. Nebraska. On May, 25, 1920 an instructor at Zion Parochial School in Hamilton, Nebraska was charged with illegally teaching ten year old Raymond Parpart how to read German. In doing so, the instructor had violated a 1919 Nebraska law banning the instruction of a foreign language to anyone not having successfully passed the eighth grade. Classical languages (Latin, Greek, and Hebrew) were exempt from the law. This law was most likely a reaction to World War I which had pitted the U.S. against the German Empire and had ended only a year before the law’s passing. The law’s intent was to create a more homogeneous population in a state with a rather large percentage of foreign born people. Many of those immigrants were of German origin whose loyalties were often questioned during the war. The Nebraska Supreme Court consequently upheld the decision, and the case was appealed to the Supreme Court of the United States over a question of violation of the 14th Amendment.
The Supreme Court overturned the ruling of the lower courts in a 7-2 decision. The Court ruled that the Nebraska law overstepped the authority the state had to regulate schools. Furthermore, the Supreme Court pointed out that it would be to a child’s benefit to begin language study as early as possible in development, and a ten year old who could read German would hardly be a threat to national security.
The rights granted under the 14th Amendment were again called into question is the case of Stanley vs. Georgia (1969). Investigators had obtained a search warrant to enter and search the house of Mr. Stanley to look for evidence of bookmaking activities (meaning betting paraphernalia). Instead, they found several reels of tape which, when put into a projector, turned out to be porn. Declaring the material “obscene,” Stanley was taken to court and convicted under a Georgia Law forbidding the possession of such material. The Supreme Court of Georgia upheld the decision.
The case was appealed to the U.S. Supreme Court under the logic that possession of obscene material cannot be made a crime. It was thought that reference back to the Roth decision would uphold the Georgia Laws. However, as Roth referred to the public distribution of obscene material, it was not suitably applicable to the present case. The Supreme Court overturned the decisions of the lower courts declaring that the 1st and 14th Amendment prohibited making the private possession of “obscene” material a crime.
Does the Right to Privacy, however, even extend to those in uniform? This exact issue was called into question in the 1976 Supreme Court case Kelly vs. Johnson. The police department of Suffolk County, New York put in place regulations regarding hair styles that were to be adhered to by all members of the force. These regulations outlined proper hairdos as well a proper facial hair and sideburns. These regulations were then brought to court on the pretext of violating the 1st Amendment right to “freedom of expression” and 14th Amendment rights to “due process” and “equal protection.” Both the Court of Appeals and the District Court declared the regulations unconstitutional because the police force was not “para-military” and uniformity only existed for the sake of uniformity.
Upon arrival at the Supreme Court, the before rulings were overturned. The Court declared that police officers are legally restricted in other ways (like being required to wear a uniform), so regulation of hair styles would merely be added to the accepted 1st Amendment violations police officers were required to tolerate. Furthermore, uniformity was needed to foster a genuine “espirit du corps” and to make police officers readily identifiable to the public.
The question over right to privacy has also brought up in much more grave situations. One such situation was the Supreme Court case of Cruzan v. Missouri Dep't. of Health (1990). On the night of January 11, 1983 Nancy Cruzan crashed along the side of a road in Jasper County, Missouri. Paramedics were able to restore her breathing and heartbeat, but not before she had suffered serious brain injuries. Taken to the hospital, Nancy was able to continue living in a vegetative state. When it was discovered that she would most likely never regain any cognitive abilities, her parents asked to discontinue life support. The hospital said it could only do so with court permission. A lower court in Missouri ruled that based on conversations Nancy had had with a housemate, she would probably have opted for the discontinuation of life support. This case was appealed to the Missouri Supreme Court which then denied Nancy’s parents permission to shut off life support because Nancy’s conversations were an unreliable context for discontinuing medical treatment.
The case was appealed again to the Supreme Court. In question was whether the 14th Amendment’s “right to life” implied the right to refuse medical care in this case. The Court confirmed the ruling of the Missouri Supreme Court declaring that because of a lack of evidence to support the discontinuing of life-support, the Missouri Supreme Court had committed no breach of the Constitution.
As for the right to sexual privacy, such a case, Lawrence vs. Texas, came before the Supreme Court in 2003. In Houston, Texas police officers were sent to a private residence where a weapons disturbance had been reported. Instead of weapons, the police officers found two men engaged in butt-sex. The men were arrested, taken to court, and convicted under a Texas Law banning homosexual sodomy. This case was appealed to the Supreme Court as the defendants believed the Texas law to be in violation of 14th Amendment rights.
Upon arrival at the Supreme Court, supporters of the Texas law argued that the law was a protection of ancient Judeo-Christian morals much in the same way as laws against murder and adultery. The Supreme Court, however, declared that because the sexual conduct was consensual between non-minors, it was a clear infringement of Constitutional freedoms. The decision of the Texas Courts was overturned.
The decisions of the Supreme Court have been, in general, quite consistent in affirming the citizens’ right to personal privacy. Over the last hundred years, these five Supreme Court decisions have set the precedent in declaring a person’s private business outside the control of the state. Even the Cruzan decision confirmed the right to discontinue medical care, but only with sufficient evidence. Though the Constitution does not specifically declare one to have a “right to privacy,” the five Supreme Court decisions discussed here show that the 1st and 14th Amendment are widely interpreted to imply that such a right exists. The “right to privacy” is one of those rights, along with freedom of speech, that have made the United States the uniquely free-spirited nation that it is today.
One of the earliest cases referring to privacy was Meyer vs. Nebraska. On May, 25, 1920 an instructor at Zion Parochial School in Hamilton, Nebraska was charged with illegally teaching ten year old Raymond Parpart how to read German. In doing so, the instructor had violated a 1919 Nebraska law banning the instruction of a foreign language to anyone not having successfully passed the eighth grade. Classical languages (Latin, Greek, and Hebrew) were exempt from the law. This law was most likely a reaction to World War I which had pitted the U.S. against the German Empire and had ended only a year before the law’s passing. The law’s intent was to create a more homogeneous population in a state with a rather large percentage of foreign born people. Many of those immigrants were of German origin whose loyalties were often questioned during the war. The Nebraska Supreme Court consequently upheld the decision, and the case was appealed to the Supreme Court of the United States over a question of violation of the 14th Amendment.
The Supreme Court overturned the ruling of the lower courts in a 7-2 decision. The Court ruled that the Nebraska law overstepped the authority the state had to regulate schools. Furthermore, the Supreme Court pointed out that it would be to a child’s benefit to begin language study as early as possible in development, and a ten year old who could read German would hardly be a threat to national security.
The rights granted under the 14th Amendment were again called into question is the case of Stanley vs. Georgia (1969). Investigators had obtained a search warrant to enter and search the house of Mr. Stanley to look for evidence of bookmaking activities (meaning betting paraphernalia). Instead, they found several reels of tape which, when put into a projector, turned out to be porn. Declaring the material “obscene,” Stanley was taken to court and convicted under a Georgia Law forbidding the possession of such material. The Supreme Court of Georgia upheld the decision.
The case was appealed to the U.S. Supreme Court under the logic that possession of obscene material cannot be made a crime. It was thought that reference back to the Roth decision would uphold the Georgia Laws. However, as Roth referred to the public distribution of obscene material, it was not suitably applicable to the present case. The Supreme Court overturned the decisions of the lower courts declaring that the 1st and 14th Amendment prohibited making the private possession of “obscene” material a crime.
Does the Right to Privacy, however, even extend to those in uniform? This exact issue was called into question in the 1976 Supreme Court case Kelly vs. Johnson. The police department of Suffolk County, New York put in place regulations regarding hair styles that were to be adhered to by all members of the force. These regulations outlined proper hairdos as well a proper facial hair and sideburns. These regulations were then brought to court on the pretext of violating the 1st Amendment right to “freedom of expression” and 14th Amendment rights to “due process” and “equal protection.” Both the Court of Appeals and the District Court declared the regulations unconstitutional because the police force was not “para-military” and uniformity only existed for the sake of uniformity.
Upon arrival at the Supreme Court, the before rulings were overturned. The Court declared that police officers are legally restricted in other ways (like being required to wear a uniform), so regulation of hair styles would merely be added to the accepted 1st Amendment violations police officers were required to tolerate. Furthermore, uniformity was needed to foster a genuine “espirit du corps” and to make police officers readily identifiable to the public.
The question over right to privacy has also brought up in much more grave situations. One such situation was the Supreme Court case of Cruzan v. Missouri Dep't. of Health (1990). On the night of January 11, 1983 Nancy Cruzan crashed along the side of a road in Jasper County, Missouri. Paramedics were able to restore her breathing and heartbeat, but not before she had suffered serious brain injuries. Taken to the hospital, Nancy was able to continue living in a vegetative state. When it was discovered that she would most likely never regain any cognitive abilities, her parents asked to discontinue life support. The hospital said it could only do so with court permission. A lower court in Missouri ruled that based on conversations Nancy had had with a housemate, she would probably have opted for the discontinuation of life support. This case was appealed to the Missouri Supreme Court which then denied Nancy’s parents permission to shut off life support because Nancy’s conversations were an unreliable context for discontinuing medical treatment.
The case was appealed again to the Supreme Court. In question was whether the 14th Amendment’s “right to life” implied the right to refuse medical care in this case. The Court confirmed the ruling of the Missouri Supreme Court declaring that because of a lack of evidence to support the discontinuing of life-support, the Missouri Supreme Court had committed no breach of the Constitution.
As for the right to sexual privacy, such a case, Lawrence vs. Texas, came before the Supreme Court in 2003. In Houston, Texas police officers were sent to a private residence where a weapons disturbance had been reported. Instead of weapons, the police officers found two men engaged in butt-sex. The men were arrested, taken to court, and convicted under a Texas Law banning homosexual sodomy. This case was appealed to the Supreme Court as the defendants believed the Texas law to be in violation of 14th Amendment rights.
Upon arrival at the Supreme Court, supporters of the Texas law argued that the law was a protection of ancient Judeo-Christian morals much in the same way as laws against murder and adultery. The Supreme Court, however, declared that because the sexual conduct was consensual between non-minors, it was a clear infringement of Constitutional freedoms. The decision of the Texas Courts was overturned.
The decisions of the Supreme Court have been, in general, quite consistent in affirming the citizens’ right to personal privacy. Over the last hundred years, these five Supreme Court decisions have set the precedent in declaring a person’s private business outside the control of the state. Even the Cruzan decision confirmed the right to discontinue medical care, but only with sufficient evidence. Though the Constitution does not specifically declare one to have a “right to privacy,” the five Supreme Court decisions discussed here show that the 1st and 14th Amendment are widely interpreted to imply that such a right exists. The “right to privacy” is one of those rights, along with freedom of speech, that have made the United States the uniquely free-spirited nation that it is today.
Thursday, March 5, 2009
Term Limits and Electoral College
Term Limits
The rules for eligibility for Congressional office are set forth in the Constitution, but there are no rules that determine term limits for these offices. The case U.S. Term Limits Inc. V. Thornton argues the constitutionality of States determining such limits themselves. Arkansas adopted Amendment 73 to their state Constitution in 1993, which limited Arkansas Representatives to three terms of office and Arkansas Senators to two terms. Supporters of the Amendment argued that the determination of term limits fell under the reserved powers in the Tenth Amendment of the U.S. Constitution and the States’ power to regulate the “Times, Places and Manner of Holding Elections”. However, in the Opinion of the Court, delivered by Justice Stevens, it was pointed out that term limitation does not fall under the reserved powers of the Tenth Amendment because these powers were not held by the States before the Federal Government was created and the Constitution was ratified. The States could not claim this power was “reserved” for them because no representatives were ever formally needed before the centralization of government and therefore no rules existed regarding such representatives. Justice Stevens also argued that even though the States’ do reserve the right to determine the “Times, Places and Manner of Holding Elections”, they cannot decide rules on elections if it goes against the Constitution.
In the previous case of Powell V. McCormack, the Court decided against term limits because the powers to determine eligibility for election are enumerated in the Constitution and should not be further determined. Justice Stevens cited the difference between Powell and U.S. Term Limits was that Powell dealt with nation wide term limits whereas U.S. Term Limits dealt with state-by-state term limits. The case of U.S. Term Limits is more severe because differing term limits for Federal elections in each State threatens the unity of the Federal Government, “Finally, state-imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose representatives belongs not to the States, but to the people.... Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure. Such a patchwork would also sever the direct link that the Framers found so critical between the National Government and the people of the United States.....” Essentially, allowing individual states to determine term limits threatens the unity of the Federal Government. If the rules governing the government are not uniform, how can we expect them to govern effectively as one entity? Stevens argued that such dissention was unconstitutional because, even though term limits might allow for the influx of fresh ideas and change, it could effectively alter the rules of the government without going through the Amendment process.
In 1996, Arkansas did try to get Congressional Term Limits passed as an Amendment, by passing Article VIII of their state constitution. The case of Cook v. Gralike brought the constitutionally of Article VIII into question. The Article was intended to coerce Arkansas Representatives and Senators to pass a term limiting constitutional Amendment by providing those who did not support such an Amendment “an unfavorable ballot designation” by printing statements like “Disregarded Voters’ Instruction on Term Limits” or “Declined to Pledge Support Term Limits” next to the candidates names on the ballot. Ultimately the Court decided that a state could not use congressional election ballots to pressure representatives into following the principles of the state government effectively hindering their 1st Amendment right to free speech.
Each of these cases demonstrates the Court’s opinion that term limits are not constitutional.
Electoral College
The rules concerning the Electoral College are hazy and the controversy over the 2000 election showed that to the American public. It started because George W. Bush won the election in Florida by a margin of 1,784 votes, which was less than .5 % of the total votes cast and so an automatic machine recount was ordered. This first recount resulted in a smaller margin of victory for Bush so his opponent Al Gore used his right to request a manual recount in Volusia, Palm Beach, Broward, and Miami-Dade counties. The Florida District Court ruled that a 7 day deadline would be put in place, Volusia county could amend its numbers at a later date, and that the Secretary of State of Florida “after ‘considering all attendant facts and circumstances,’ could exercise her discretion in deciding whether to include the late amended returns in the statewide certification.” The Secretary later asked the counties to submit requests to permit late filing of these recounts but she deemed that none of the four counties’ requests were valid. Gore immediately filed an emergency motion in the state court, arguing that the Secretary acted subjectively, but the court denied the motion. Gore appealed to the First District Court of Appeal and then the case passed on to the Florida State Supreme Court, which ordered that the Secretary would halt declaring a winner of the election until further notice from the court. The court ruled on two issues in the court, stating that a difference in sample manual recount and (or a recount only involving a few counties out of the whole state) and a machine count due to the manner in which a ballot was punched was sufficient reason to request a full manual recount, and that because of the Florida Election code which stated that the Secretary “may” ignore late ballot counts it would not rewrite that code but instead extend the deadline for submission on November 26th 2000 and order the Secretary to accept any manual recounts submitted prior to that deadline (effectively extending the original 7 day deadline by 12 days). In the case of Bush V. Palm Beach County Canvassing Board, which was the first of the two major court cases regarding the election, the Supreme Court overturned the decision made by the Florida State Supreme Court and subsequently requested clarifications on the decision, stating that, “It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action. Intelligent exercise of our appellate powers compels us to ask for the elimination of the obscurities and ambiguities.
However, Gore did not give up his quest to obtain Florida recounts, which resulted in the case of Bush V. Gore. On November 26th 2000 the results of the election were declared and George W. Bush was the winner of Florida’s 25 electoral votes. The following day Gore filed suit under Section 102.168 of the Florida State Constitution, which states that receiving illegal votes or rejection of legal votes in order to change the results of an election is reason for challenge of the election results. Though the Circuit Court ruled there was insufficient evidence to support Gore’s claim, he soon appealed to the First District Court of Appeals and the case moved on to the Florida Supreme Court and then the Supreme Court. The ruling was that Gore did not have sufficient evidence that 3,300 ballots were supposedly not legal, but that he did have sufficient evidence that 9,000 ballots failed to count the votes for president when counted by the machine. As a result of the recount 383 votes were added to Gore’s total count. The recount ordered by the Florida Supreme Court because the ruling violated the Florida Election Code by remedying a violation of the safe-harbor provision, which allows the states to choose their own electors by a specified deadline without Congressional interference.
These two cases caused a lot of controversy over the 2000 election, especially because they delayed the declaration of a winner and showed the problems with punch hole ballots.
-Christie
The rules for eligibility for Congressional office are set forth in the Constitution, but there are no rules that determine term limits for these offices. The case U.S. Term Limits Inc. V. Thornton argues the constitutionality of States determining such limits themselves. Arkansas adopted Amendment 73 to their state Constitution in 1993, which limited Arkansas Representatives to three terms of office and Arkansas Senators to two terms. Supporters of the Amendment argued that the determination of term limits fell under the reserved powers in the Tenth Amendment of the U.S. Constitution and the States’ power to regulate the “Times, Places and Manner of Holding Elections”. However, in the Opinion of the Court, delivered by Justice Stevens, it was pointed out that term limitation does not fall under the reserved powers of the Tenth Amendment because these powers were not held by the States before the Federal Government was created and the Constitution was ratified. The States could not claim this power was “reserved” for them because no representatives were ever formally needed before the centralization of government and therefore no rules existed regarding such representatives. Justice Stevens also argued that even though the States’ do reserve the right to determine the “Times, Places and Manner of Holding Elections”, they cannot decide rules on elections if it goes against the Constitution.
In the previous case of Powell V. McCormack, the Court decided against term limits because the powers to determine eligibility for election are enumerated in the Constitution and should not be further determined. Justice Stevens cited the difference between Powell and U.S. Term Limits was that Powell dealt with nation wide term limits whereas U.S. Term Limits dealt with state-by-state term limits. The case of U.S. Term Limits is more severe because differing term limits for Federal elections in each State threatens the unity of the Federal Government, “Finally, state-imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose representatives belongs not to the States, but to the people.... Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure. Such a patchwork would also sever the direct link that the Framers found so critical between the National Government and the people of the United States.....” Essentially, allowing individual states to determine term limits threatens the unity of the Federal Government. If the rules governing the government are not uniform, how can we expect them to govern effectively as one entity? Stevens argued that such dissention was unconstitutional because, even though term limits might allow for the influx of fresh ideas and change, it could effectively alter the rules of the government without going through the Amendment process.
In 1996, Arkansas did try to get Congressional Term Limits passed as an Amendment, by passing Article VIII of their state constitution. The case of Cook v. Gralike brought the constitutionally of Article VIII into question. The Article was intended to coerce Arkansas Representatives and Senators to pass a term limiting constitutional Amendment by providing those who did not support such an Amendment “an unfavorable ballot designation” by printing statements like “Disregarded Voters’ Instruction on Term Limits” or “Declined to Pledge Support Term Limits” next to the candidates names on the ballot. Ultimately the Court decided that a state could not use congressional election ballots to pressure representatives into following the principles of the state government effectively hindering their 1st Amendment right to free speech.
Each of these cases demonstrates the Court’s opinion that term limits are not constitutional.
Electoral College
The rules concerning the Electoral College are hazy and the controversy over the 2000 election showed that to the American public. It started because George W. Bush won the election in Florida by a margin of 1,784 votes, which was less than .5 % of the total votes cast and so an automatic machine recount was ordered. This first recount resulted in a smaller margin of victory for Bush so his opponent Al Gore used his right to request a manual recount in Volusia, Palm Beach, Broward, and Miami-Dade counties. The Florida District Court ruled that a 7 day deadline would be put in place, Volusia county could amend its numbers at a later date, and that the Secretary of State of Florida “after ‘considering all attendant facts and circumstances,’ could exercise her discretion in deciding whether to include the late amended returns in the statewide certification.” The Secretary later asked the counties to submit requests to permit late filing of these recounts but she deemed that none of the four counties’ requests were valid. Gore immediately filed an emergency motion in the state court, arguing that the Secretary acted subjectively, but the court denied the motion. Gore appealed to the First District Court of Appeal and then the case passed on to the Florida State Supreme Court, which ordered that the Secretary would halt declaring a winner of the election until further notice from the court. The court ruled on two issues in the court, stating that a difference in sample manual recount and (or a recount only involving a few counties out of the whole state) and a machine count due to the manner in which a ballot was punched was sufficient reason to request a full manual recount, and that because of the Florida Election code which stated that the Secretary “may” ignore late ballot counts it would not rewrite that code but instead extend the deadline for submission on November 26th 2000 and order the Secretary to accept any manual recounts submitted prior to that deadline (effectively extending the original 7 day deadline by 12 days). In the case of Bush V. Palm Beach County Canvassing Board, which was the first of the two major court cases regarding the election, the Supreme Court overturned the decision made by the Florida State Supreme Court and subsequently requested clarifications on the decision, stating that, “It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action. Intelligent exercise of our appellate powers compels us to ask for the elimination of the obscurities and ambiguities.
However, Gore did not give up his quest to obtain Florida recounts, which resulted in the case of Bush V. Gore. On November 26th 2000 the results of the election were declared and George W. Bush was the winner of Florida’s 25 electoral votes. The following day Gore filed suit under Section 102.168 of the Florida State Constitution, which states that receiving illegal votes or rejection of legal votes in order to change the results of an election is reason for challenge of the election results. Though the Circuit Court ruled there was insufficient evidence to support Gore’s claim, he soon appealed to the First District Court of Appeals and the case moved on to the Florida Supreme Court and then the Supreme Court. The ruling was that Gore did not have sufficient evidence that 3,300 ballots were supposedly not legal, but that he did have sufficient evidence that 9,000 ballots failed to count the votes for president when counted by the machine. As a result of the recount 383 votes were added to Gore’s total count. The recount ordered by the Florida Supreme Court because the ruling violated the Florida Election Code by remedying a violation of the safe-harbor provision, which allows the states to choose their own electors by a specified deadline without Congressional interference.
These two cases caused a lot of controversy over the 2000 election, especially because they delayed the declaration of a winner and showed the problems with punch hole ballots.
-Christie
Monday, March 2, 2009
Student Searches
The constitutionality of student searches in public schools has been hotly contested since at least 1985, when the US Supreme Court adopted an “unclear, unprecedented, and unnecessary departure from generally applicable Fourth Amendment standards” in response to the case of New Jersey v T. L. O. As Justice Brennan warned, this did indeed seem to “portend a dangerous weakening of the purpose of the Fourth Amendment to protect the privacy and security of our citizens.” Subsequent cases, those of Vernonia School District v Wayne Acton of 1995 and Board of Education of Pottawatomie County v Lindsay Earls et Al. of 2002, showed that this was indeed correct, in that the interpretation of the T. L. O. case became gradually more lenient, allowing for greater restriction of students’ right to privacy.
New Jersey v T. L. O concerned the search of a student’s purse. T. L. O. had been discovered smoking in the bathroom and denied not only that she had been smoking but also claimed she did not smoke at all to the Assistant Vice Principal Theodore Choplick. In response, Mr. Choplick proceeded to search her bag. He found cigarettes and removed them, despite the fact that possession of cigarettes was not against school rules, merely smoking. When he took out the cigarettes, he saw wrapping papers in T. L. O.’s purse, and expecting to find marijuana, searched her purse in greater detail, including a zippered pocket. Mr. Choplick found not only marijuana but also evidence that she was selling it to other students, and this evidence was turned over to her mother and the police. When she was prosecuted in juvenile court, T. L. O. moved to suppress the evidence, which she said “was tainted by the allegedly unlawful search” under the Fourth Amendment. The New Jersey Supreme Court upheld that Mr. Choplick’s search of T. L. O.’s purse was indeed a violation of her Fourth Amendment, and moved to suppress the evidence.
While the Supreme Court ruled that “the Fourteenth Amendment protects the rights of students against encroachment by public school officials,” it also created a new test to judge the “reasonableness” of a search, which it said “depends on the context within which a search takes place.” This test of reasonableness entirely discarded the previous precedents of the necessity to either obtain a warrant for the search or to prove “probable cause to believe that a violation of the law has occurred.” This reasonableness test required only that the test was based on a suspicion that the test would turn up evidence that the student was violating either school rules or laws, and that the test was not “excessively intrusive.” By this test, the Supreme Court stated that the initial search for cigarettes in T. L. O.’s purse was reasonable, and that upon committing the “natural reaction to finding them”–that of picking them up–his suspicion that the rolling papers had to do with marijuana was enough to justify the second search. Thus the Court overturned New Jersey’s previous decision. The dissent argued that this new “reasonableness” test was too vague for officials to interpret, that the right to privacy was not given sufficient weight in the decision, and the subsequent search of T. L. O.’s purse for marijuana was unconstitutional.
In Veronia School District v Wayne Acton, the policy under discussion was that of the athletics programs. All students that wished to participate in school athletics were required to undergo urine testing for drugs before they started, at random times during their participation, and under suspicion of drug-related behavior. Any student that refused was not allowed to play, as in the case of Wayne Acton, a seventh grader at the time. The administration testified that “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion.” Thus, the problem was widespread and demonstrated “a compelling need for the program.”
The Supreme Court found that “special needs made the warrant and probable-cause requirement impracticable.” Since students participating in athletics already experienced a lessening of privacy, especially in the locker room, the addition of a urine-testing program was “negligible.” Also, T. L. O. emphasized that school officials acted, in essence, as the children’s parents, “permitting a degree of supervision and control that could not be exercised over free adults.” They found that the “risk of immediate physical harm” to a drug-user playing sports was “particularly high,” as were the harmful “physical, psychological, and addictive effects” of drug use during school years. As children’s safety was one of the school officials’ responsibilities, any policy that could curb the use of drugs would be at least partially justified. The Court did take care to include the caveat that suspicionless drug testing would “pass constitutional muster in other contexts.” They remanded the case to the Court of Appeals for “further proceedings consistent with this opinion.”
The dissent made sure to point out that blanket searches, “because they can involve ‘thousands or millions’ of searches, ‘pose a greater threat to liberty’ than do suspicion-based ones.” Justice O’Connor states that since a suspicion-based search would not necessarily be ineffectual, the Court has no right to declare blanket searches as a viable alternative. Only once suspicion-based searches were declared unviable could other alternatives be approved. The dissent also feels that the concern for abuse with such a program has been overblown, seeing that “schools already have adversarial, disciplinary schemes to investigate student wrongdoing.” Justice O’Connor also points out that most of the evidence used to demonstrate the need for a drug-testing program would seem to give rise to “reasonable suspicion” that could then be used as reason to test specific students for drug use. While the suspicion-based scheme “may not be as effective,” “there is nothing new in the realization that Fourth Amendment protections come with a price.” Finally, the dissent would overturn the decision against Acton, especially seeing as there was “virtually no evidence” of a drug problem in the grade school Acton attended, only within the district high schools.
The most recent case, decided in 2002, was that of Board of Education of Independent School District No. 92 of Pottawatomie County et al. v Lindsay Earls et al. This case was similar to that of Vernonia, except that the mandatory testing was extended to all participants of extracurricular activities, not just sports. Also, it was argued that there was no “special need for testing students” because the “drug testing policy neither addressed a proven problem nor promised to bring any benefit.”
Applying “the principles of Vernonia to the somewhat different facts of this case,” the Supreme Court concluded that “Tecumseh’s policy is also constitutional.” Students supposedly were subject to rules under their extracurricular activities that were different from those of the regular school, and so had “a limited expectation of privacy.” Also, the collection of urine was again deemed to be a “negligible intrusion” upon students’ privacy. Finally, the Court “had not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing.” In this vein, the policy of Tecumseh “effectively serves the School District’s interest in protecting the health and safety of its students.”
This creates a dangerous precedent. By this justification, practically any search could be justified as “protecting the health and safety of students,” even if the privacy of those students is unequivocally compromised. The dissent stated this well: “many children, like many adults engage in dangerous activities on their own time; that the children are enrolled in school scarcely allows government to monitor all such activities.” While they uphold the Vernonia decision, they state that the voluntary nature of athletics, combined with the increased danger of drug-use related injuries, were the only things that created “risks that schools have a duty to mitigate.” Finally, if there was “no concrete danger, evidence of a particular problem, or increased risk,” the need revealed was not “special.”
Beginning with the creation of the test of “reasonableness,” the individual rights of students to privacy deteriorated over time. Gradually, the need for the safety of the students gained increased precedence over the right to privacy. This interpreted reading of the Fourth Amendment did away entirely for the need for a warrant or “probable cause” before a search. Students were left with very little, except that the cases still only apply to mandatory testing for voluntary programs. It is not difficult, however, to see how the growing precedent could be applied favorably towards mandatory blanket testing for all public school students.
-Ellen
New Jersey v T. L. O concerned the search of a student’s purse. T. L. O. had been discovered smoking in the bathroom and denied not only that she had been smoking but also claimed she did not smoke at all to the Assistant Vice Principal Theodore Choplick. In response, Mr. Choplick proceeded to search her bag. He found cigarettes and removed them, despite the fact that possession of cigarettes was not against school rules, merely smoking. When he took out the cigarettes, he saw wrapping papers in T. L. O.’s purse, and expecting to find marijuana, searched her purse in greater detail, including a zippered pocket. Mr. Choplick found not only marijuana but also evidence that she was selling it to other students, and this evidence was turned over to her mother and the police. When she was prosecuted in juvenile court, T. L. O. moved to suppress the evidence, which she said “was tainted by the allegedly unlawful search” under the Fourth Amendment. The New Jersey Supreme Court upheld that Mr. Choplick’s search of T. L. O.’s purse was indeed a violation of her Fourth Amendment, and moved to suppress the evidence.
While the Supreme Court ruled that “the Fourteenth Amendment protects the rights of students against encroachment by public school officials,” it also created a new test to judge the “reasonableness” of a search, which it said “depends on the context within which a search takes place.” This test of reasonableness entirely discarded the previous precedents of the necessity to either obtain a warrant for the search or to prove “probable cause to believe that a violation of the law has occurred.” This reasonableness test required only that the test was based on a suspicion that the test would turn up evidence that the student was violating either school rules or laws, and that the test was not “excessively intrusive.” By this test, the Supreme Court stated that the initial search for cigarettes in T. L. O.’s purse was reasonable, and that upon committing the “natural reaction to finding them”–that of picking them up–his suspicion that the rolling papers had to do with marijuana was enough to justify the second search. Thus the Court overturned New Jersey’s previous decision. The dissent argued that this new “reasonableness” test was too vague for officials to interpret, that the right to privacy was not given sufficient weight in the decision, and the subsequent search of T. L. O.’s purse for marijuana was unconstitutional.
In Veronia School District v Wayne Acton, the policy under discussion was that of the athletics programs. All students that wished to participate in school athletics were required to undergo urine testing for drugs before they started, at random times during their participation, and under suspicion of drug-related behavior. Any student that refused was not allowed to play, as in the case of Wayne Acton, a seventh grader at the time. The administration testified that “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion.” Thus, the problem was widespread and demonstrated “a compelling need for the program.”
The Supreme Court found that “special needs made the warrant and probable-cause requirement impracticable.” Since students participating in athletics already experienced a lessening of privacy, especially in the locker room, the addition of a urine-testing program was “negligible.” Also, T. L. O. emphasized that school officials acted, in essence, as the children’s parents, “permitting a degree of supervision and control that could not be exercised over free adults.” They found that the “risk of immediate physical harm” to a drug-user playing sports was “particularly high,” as were the harmful “physical, psychological, and addictive effects” of drug use during school years. As children’s safety was one of the school officials’ responsibilities, any policy that could curb the use of drugs would be at least partially justified. The Court did take care to include the caveat that suspicionless drug testing would “pass constitutional muster in other contexts.” They remanded the case to the Court of Appeals for “further proceedings consistent with this opinion.”
The dissent made sure to point out that blanket searches, “because they can involve ‘thousands or millions’ of searches, ‘pose a greater threat to liberty’ than do suspicion-based ones.” Justice O’Connor states that since a suspicion-based search would not necessarily be ineffectual, the Court has no right to declare blanket searches as a viable alternative. Only once suspicion-based searches were declared unviable could other alternatives be approved. The dissent also feels that the concern for abuse with such a program has been overblown, seeing that “schools already have adversarial, disciplinary schemes to investigate student wrongdoing.” Justice O’Connor also points out that most of the evidence used to demonstrate the need for a drug-testing program would seem to give rise to “reasonable suspicion” that could then be used as reason to test specific students for drug use. While the suspicion-based scheme “may not be as effective,” “there is nothing new in the realization that Fourth Amendment protections come with a price.” Finally, the dissent would overturn the decision against Acton, especially seeing as there was “virtually no evidence” of a drug problem in the grade school Acton attended, only within the district high schools.
The most recent case, decided in 2002, was that of Board of Education of Independent School District No. 92 of Pottawatomie County et al. v Lindsay Earls et al. This case was similar to that of Vernonia, except that the mandatory testing was extended to all participants of extracurricular activities, not just sports. Also, it was argued that there was no “special need for testing students” because the “drug testing policy neither addressed a proven problem nor promised to bring any benefit.”
Applying “the principles of Vernonia to the somewhat different facts of this case,” the Supreme Court concluded that “Tecumseh’s policy is also constitutional.” Students supposedly were subject to rules under their extracurricular activities that were different from those of the regular school, and so had “a limited expectation of privacy.” Also, the collection of urine was again deemed to be a “negligible intrusion” upon students’ privacy. Finally, the Court “had not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing.” In this vein, the policy of Tecumseh “effectively serves the School District’s interest in protecting the health and safety of its students.”
This creates a dangerous precedent. By this justification, practically any search could be justified as “protecting the health and safety of students,” even if the privacy of those students is unequivocally compromised. The dissent stated this well: “many children, like many adults engage in dangerous activities on their own time; that the children are enrolled in school scarcely allows government to monitor all such activities.” While they uphold the Vernonia decision, they state that the voluntary nature of athletics, combined with the increased danger of drug-use related injuries, were the only things that created “risks that schools have a duty to mitigate.” Finally, if there was “no concrete danger, evidence of a particular problem, or increased risk,” the need revealed was not “special.”
Beginning with the creation of the test of “reasonableness,” the individual rights of students to privacy deteriorated over time. Gradually, the need for the safety of the students gained increased precedence over the right to privacy. This interpreted reading of the Fourth Amendment did away entirely for the need for a warrant or “probable cause” before a search. Students were left with very little, except that the cases still only apply to mandatory testing for voluntary programs. It is not difficult, however, to see how the growing precedent could be applied favorably towards mandatory blanket testing for all public school students.
-Ellen
If you don't get pregnant you won't have to worry about this:abortion
Privacy has always been an important right that Americans have enjoyed since the formation of this country, and the ratification of the constitution. While not stated in the constitution as a full fledge right like freedom of speech or right to bear arms, many of the amendments of the Bill of Rights have created “ Zones of Privacy”. In addition to that the 14th Amendment’s Due Process Clause says, “that no State shall deprive any persons of life, liberty, or property, without due process of law”. So it is no surprise when there have been many cases in the Supreme Court that have said that certain laws have violate their right to privacy, especially on the issues of contraceptives and abortion. While this country has prided itself as a democracy allowing people to choose what they do, for a time in the 19th century there were a of statues that forbade people from doing certain things.
For the longest time in Connecticut, people were not allowed to use contraceptives. General Statutes of Connecticut (1958 rev) 53-32 said “ Any person who uses any drug, medicinal article or instrument for the propose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days not more than on year or both fined and imprisoned”. To go along with that statue 54-196 said, “Any person who assists, abets, counsels, hires, or commands another to commit any offense may be prosecuted and punished as if he were the principal offender”. Griswold v. Connecticut (1965) involves the state, and Appellant Griswold (the Executive Director of Planned Parenthood League of Connecticut) and Appellant Buxton (a license physician and a professor at Yale Medical School). Both of these people were arrested because they gave information, instruction, and medical advice to married persons on how to prevent conception violating the statues of the state. When this case was taken to the Supreme Court a number of justifications were used to prove that these statues were not constitutional.
Things such as association of people, and the right to educated a child in a school of the parents choice, although not in The Constitution was argued to be construed by the First Amendment. By using the pervious cases such as Meyer v Nebraska or NAACP v. Alabama, the first amendment is said to have a Penumbra that “privacy is protective from government intrusion” The Fourth and Fifth Amendment are protection against the government invasions of a man’s home and private life. With all these amendments claiming privacy as one of things that come bundled, arresting these people for wanting, and teaching ways to prevent contraceptives becomes unconstitutional because it violates the private relationship that they have. Eventually, the court said that what goes on in marriage is between the two in the relationship, and it would repulsive to allow police to search marital bedrooms”. All of these penumbras that were found in the Amendments that formed the “zones of privacy” created this new right that before was never outline in the Constitution. Griswold v. Connecticut as result became the bases for which Roe v. Wade made its argument.
Roe Vs Wade takes this notion of privacy to another level because it deals with a woman’s right to do to her body behind close doors. In Texas during the time there were State Penal Codes numbered 1191-1194 and 1196 Jane Roe, whom was a single pregnant woman (who used this name as a pseudo name) living in Dallas County, Texas was denied legal abortion because she her life was not in danger if she continued the pregnancy. Because of this, Roe claimed that the Texas statues were unconstitutionally vague and they like in the case of Griswold v. Connecticut abridge her right of personal privacy, protected by the First, Fourth, Fifth, Ninth and Fourteen Amendments (which is includes the Due Process Clause). Two other groups of people also involved minorly in this case: Dr. James Hubert Hallford and John and Mary Doe. Dr. Hallford stated that he felt that is allegations that he violated the Texas Abortion Statues were unfair because he felt that the statues of Texas were too vague for him to determine if they were in or outside the terms stated by Article 1196. As a result Hallford claimed that his privacy in the doctor patient relationship and his own right to practice medicine were violated that were what he claimed protected by the same Amendments as Roe claimed she got violated. The Does on the other hand had the same issues with the Texas abortion laws as Roe. However the main focus in the case was still on Roe and her claim that the right to have an abortion is in the concept of personal “Liberty” in the Fourteen Amendment’s Due Process clause, and the personal martial, familial, and sexual privacy said to be protected by the Bill or Right, and its penumbras.
In addition to having these rights, it was claimed that the laws that were in place, were not “ancient or common law” but instead the latter half of the 19th century. Common law according to the court was said to believe that abortion before the animation of the fetus in the utero was not a bad offense, and before that time the embryo was part of the mother. It was not until the mid to late 19th century that when the time of animation could not been determine was there a law made that no abortion was to be performed unless it was to save the life of the mother. However, an interesting point was made, that at the time of the adoption of The Constitution abortions were okay, and that a person was not defined in the constitution, making it seem that the founding fathers made it seem okay that it was okay to get an abortion. In the end, the court said that pregnancy was not really private as martial issues and involves the interest of the state, but it is ultimately the woman’s decision to make the decision whether or not to have an abortion, and would deem it okay for a woman in any state to have one with in the 1st trimester with out any state regulation. In the 2nd trimester the states can regulate abortions as long as the it is seen "in ways that are reasonably related to maternal health" but ultimately giving the decisions to the mothers in states that chose not to regulate, and that in the 3rd trimester abortions can only be gotten if it affects the mothers health.
Many years later, the Supreme Court listened to the case Planned Parent hood of Southeastern Pennsylvania v. Robert P. Casey, which is a direct issue of Roe V. Wade.This case was spurred when the Pennsylvania Abortion Control Act(1989) was found to go against the clauses in Roe v.Wade. This act made abortions harder to get because of 5 of its provisions: informed consent, which required doctors to give information about the health risks and complications that could occur with getting an abortion, spousal consent, which required the woman to give their husband notice before having an abortion, parental consent, which required minors to ask permission from their parents before having the abortion, a 24 waiting period for a women to think about getting an abortion, and the placement of a certain reporting requirements on places that provide abortion services. Five abortion clinics and one doctor brought this up to the court because they saw that this piece of legislation was unconstitutional.
This was seen as an attempt to keep the interest of the potential life at hand. All provisions but the spousal consent was deem constitutional because it not violate the 14th Amendment’s Due Process Clause because all of the other provisions still allowed the woman to get an abortion. In addition to this the court said that it had to “draw the line at viability” for a woman to decide to terminate her pregnancy rather than using the trimester system because of stare decisis, and that like in Roe, there is a time after viability that the unborn child can live outside the womb, and that makes it “the object of the states protection that now overrides the rights of the woman”.
While it does give the woman to have an abortion before the unborn child has reach viability, which would be considered the 1st trimester because the state“ important and legitimate interest” in potential life. But in this current state of the United States’ Economy how sincere is the state in its interest in potential life when a potential human being is known to have a mental disease and suppose the mother did not know she was pregnant until it was too late, and would have to go on state programs in order to survive? It is easy for the state to say they have an interest in potential life, but at this current time states such as Arizona do not have interest in educating human life that is already born.
In a time where there is genetic testing for diseases, and mental diseases it seems that it would be in the states best interest to insure the productivity of the state, to tide down the potential liabilities that can occur with children whom are know to be disable. All abortions seem to be okay throughout all this cases if it protects the health of the mother, but one thing that seems to be overlooked is the health of the child. While there are test now, that can tell if the child is going to have a deficiency, how about if the mother does not make up her mind about the abortion until after the point of viability? Is it fair to bring a child into this world, who may not get the benefit of a normal life? And back to the health of the mother, does having a child whom has a problem protect the mental health of the mother? This of course is not limited to health problems, but social economic problems as well. If there are a lot of kids born into poverty, and has a slim chance of getting out, is that in that kids and the states interest? There are all these things that are overlooked by ideology about protecting life, but it is not worth it if the life already living. Ultimately, it is important to let the women have the privacy to make the decision to have an abortion because only she knows what kind of environment that child will be raised in.
—Angelo
For the longest time in Connecticut, people were not allowed to use contraceptives. General Statutes of Connecticut (1958 rev) 53-32 said “ Any person who uses any drug, medicinal article or instrument for the propose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days not more than on year or both fined and imprisoned”. To go along with that statue 54-196 said, “Any person who assists, abets, counsels, hires, or commands another to commit any offense may be prosecuted and punished as if he were the principal offender”. Griswold v. Connecticut (1965) involves the state, and Appellant Griswold (the Executive Director of Planned Parenthood League of Connecticut) and Appellant Buxton (a license physician and a professor at Yale Medical School). Both of these people were arrested because they gave information, instruction, and medical advice to married persons on how to prevent conception violating the statues of the state. When this case was taken to the Supreme Court a number of justifications were used to prove that these statues were not constitutional.
Things such as association of people, and the right to educated a child in a school of the parents choice, although not in The Constitution was argued to be construed by the First Amendment. By using the pervious cases such as Meyer v Nebraska or NAACP v. Alabama, the first amendment is said to have a Penumbra that “privacy is protective from government intrusion” The Fourth and Fifth Amendment are protection against the government invasions of a man’s home and private life. With all these amendments claiming privacy as one of things that come bundled, arresting these people for wanting, and teaching ways to prevent contraceptives becomes unconstitutional because it violates the private relationship that they have. Eventually, the court said that what goes on in marriage is between the two in the relationship, and it would repulsive to allow police to search marital bedrooms”. All of these penumbras that were found in the Amendments that formed the “zones of privacy” created this new right that before was never outline in the Constitution. Griswold v. Connecticut as result became the bases for which Roe v. Wade made its argument.
Roe Vs Wade takes this notion of privacy to another level because it deals with a woman’s right to do to her body behind close doors. In Texas during the time there were State Penal Codes numbered 1191-1194 and 1196 Jane Roe, whom was a single pregnant woman (who used this name as a pseudo name) living in Dallas County, Texas was denied legal abortion because she her life was not in danger if she continued the pregnancy. Because of this, Roe claimed that the Texas statues were unconstitutionally vague and they like in the case of Griswold v. Connecticut abridge her right of personal privacy, protected by the First, Fourth, Fifth, Ninth and Fourteen Amendments (which is includes the Due Process Clause). Two other groups of people also involved minorly in this case: Dr. James Hubert Hallford and John and Mary Doe. Dr. Hallford stated that he felt that is allegations that he violated the Texas Abortion Statues were unfair because he felt that the statues of Texas were too vague for him to determine if they were in or outside the terms stated by Article 1196. As a result Hallford claimed that his privacy in the doctor patient relationship and his own right to practice medicine were violated that were what he claimed protected by the same Amendments as Roe claimed she got violated. The Does on the other hand had the same issues with the Texas abortion laws as Roe. However the main focus in the case was still on Roe and her claim that the right to have an abortion is in the concept of personal “Liberty” in the Fourteen Amendment’s Due Process clause, and the personal martial, familial, and sexual privacy said to be protected by the Bill or Right, and its penumbras.
In addition to having these rights, it was claimed that the laws that were in place, were not “ancient or common law” but instead the latter half of the 19th century. Common law according to the court was said to believe that abortion before the animation of the fetus in the utero was not a bad offense, and before that time the embryo was part of the mother. It was not until the mid to late 19th century that when the time of animation could not been determine was there a law made that no abortion was to be performed unless it was to save the life of the mother. However, an interesting point was made, that at the time of the adoption of The Constitution abortions were okay, and that a person was not defined in the constitution, making it seem that the founding fathers made it seem okay that it was okay to get an abortion. In the end, the court said that pregnancy was not really private as martial issues and involves the interest of the state, but it is ultimately the woman’s decision to make the decision whether or not to have an abortion, and would deem it okay for a woman in any state to have one with in the 1st trimester with out any state regulation. In the 2nd trimester the states can regulate abortions as long as the it is seen "in ways that are reasonably related to maternal health" but ultimately giving the decisions to the mothers in states that chose not to regulate, and that in the 3rd trimester abortions can only be gotten if it affects the mothers health.
Many years later, the Supreme Court listened to the case Planned Parent hood of Southeastern Pennsylvania v. Robert P. Casey, which is a direct issue of Roe V. Wade.This case was spurred when the Pennsylvania Abortion Control Act(1989) was found to go against the clauses in Roe v.Wade. This act made abortions harder to get because of 5 of its provisions: informed consent, which required doctors to give information about the health risks and complications that could occur with getting an abortion, spousal consent, which required the woman to give their husband notice before having an abortion, parental consent, which required minors to ask permission from their parents before having the abortion, a 24 waiting period for a women to think about getting an abortion, and the placement of a certain reporting requirements on places that provide abortion services. Five abortion clinics and one doctor brought this up to the court because they saw that this piece of legislation was unconstitutional.
This was seen as an attempt to keep the interest of the potential life at hand. All provisions but the spousal consent was deem constitutional because it not violate the 14th Amendment’s Due Process Clause because all of the other provisions still allowed the woman to get an abortion. In addition to this the court said that it had to “draw the line at viability” for a woman to decide to terminate her pregnancy rather than using the trimester system because of stare decisis, and that like in Roe, there is a time after viability that the unborn child can live outside the womb, and that makes it “the object of the states protection that now overrides the rights of the woman”.
While it does give the woman to have an abortion before the unborn child has reach viability, which would be considered the 1st trimester because the state“ important and legitimate interest” in potential life. But in this current state of the United States’ Economy how sincere is the state in its interest in potential life when a potential human being is known to have a mental disease and suppose the mother did not know she was pregnant until it was too late, and would have to go on state programs in order to survive? It is easy for the state to say they have an interest in potential life, but at this current time states such as Arizona do not have interest in educating human life that is already born.
In a time where there is genetic testing for diseases, and mental diseases it seems that it would be in the states best interest to insure the productivity of the state, to tide down the potential liabilities that can occur with children whom are know to be disable. All abortions seem to be okay throughout all this cases if it protects the health of the mother, but one thing that seems to be overlooked is the health of the child. While there are test now, that can tell if the child is going to have a deficiency, how about if the mother does not make up her mind about the abortion until after the point of viability? Is it fair to bring a child into this world, who may not get the benefit of a normal life? And back to the health of the mother, does having a child whom has a problem protect the mental health of the mother? This of course is not limited to health problems, but social economic problems as well. If there are a lot of kids born into poverty, and has a slim chance of getting out, is that in that kids and the states interest? There are all these things that are overlooked by ideology about protecting life, but it is not worth it if the life already living. Ultimately, it is important to let the women have the privacy to make the decision to have an abortion because only she knows what kind of environment that child will be raised in.
—Angelo
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