Unit 8 The Judicial System in the United States

TextⅠ Separation of Powers

-To learn about the operation of separation of powers in the US government

Text Ⅱ The US Judicial System

- To learn the court structure in the US

Text Ⅲ Case Reading (Nixon vs. Administrator of General Services)

-To read one case related to violation of separation of powers

TextⅠ Separation of Powers

Words: dispersed, decentralized, curb, scenario, impeach, treason, bribery, misdemeanor /cf. felony, veto, pardon, override, duke / earl / viscount / baron, approve of cf. approve, overturn, dissolve

Phrases: shield away from, be independent of, ballot box, call…into session, be akin to, be analogous with, de facto (adj. & adv.), originate with cf. in / from, preside over, be likened to, at sb’s behest, be limited to (prep.), spell out

Terms: majority party, emergency power, pardon, rubber stamp

proper names: (France) National Assembly, (France) Constitutional Council

Outline of Text I

Ⅰ. (para. 1) Introduction to separation of powers: its purpose, underlying belief and conceived effect

Ⅱ. (para. 2-7) The operation of separation of powers: constitutional basis, relevant precedents and respective powers and checks of the 3 branches

Ⅲ. (para. 8-12) The contrasts with the systems in Britain and France

Terms majority party 执政党

A two-party system is a form of party system where two major political parties dominate voting in nearly all elections, at every level. As a result, all, or nearly all, elected offices end up being held by candidates endorsed by one of the two major parties. Coalition governments occur only rarely in two-party systems.

Under a two-party system, one of the two parties typically holds a majority in the legislature (or a legislative house in a bicameral system), and is referred to as the majority party. The other party is referred to as the minority party.

emergency power 非常时期的权力

pardon 赦免-exemption of a convicted person from the penalties of

an offense or a crime by the power of the executor of the laws

rubber stamp vt. & n. 盖橡皮图章 ; [ 口 ] 不加思考就赞同 [ 批准 ]( 某一计划、建议、文件、政策等 )

(when used as an idiom) A person or organization that automatically approves or endorses a policy without assessing its merit; also, such an approval or endorsement. For example, The nominating committee is merely a rubber stamp; they approve anyone the chairman names, or The dean gave his rubber stamp to the recommendations of the tenure committee. This metaphoric term alludes to the rubber printing device used to imprint the same words over and over. [Early 1900s]

Proper names

(France) National Assembly 国民议会

-French parliamentary body. The name was used first during the French Revolution to designate the revolutionary assembly formed by representatives of the Third Estate (1789) and then as a short form for the National Constituent Assembly (1789 – 91). It was used again when the National Assembly of 1871 – 75 drafted a new constitution. In the Third Republic (1875 – 1940), the name designated the two houses of parliament, the Senate and the Chamber of Deputies. In the Fourth Republic (1946 – 58) and Fifth Republic (from 1958), the name was applied only to the lower house (the former Chamber of Deputies). The National Assembly consists of 577 deputies, elected in single-seat constituencies for five-year terms.

(France) Constitutional Council 宪法委员会

-The Constitutional Council was established by the Constitution of the Fifth Republic on 4 October 1958. It is the highest constitutional authority in France. Its duty is to ensure that the principles and rules of the constitution are upheld. It considers conformity with the Constitution, and, since 1971, conformity with two texts referred to by the preamble of that constitution: the Declaration of the Rights of the Man and of the Citizen and the preamble of the constitution of the Fourth Republic, which are considered to be general principles of constitutional law.

Background information of Text I

Marbury v. Madison （美）马伯里诉麦迪逊案－该案裁定最高法院不得签发执行职务令。它因此开创了联邦最高法院有权审查国会立法是否违宪的先河，成为美国违宪审查制度的渊源。

(1803) First decision of the Supreme Court of the United States to declare an act of Congress unconstitutional, thus establishing the doctrine of judicial review. In 1801 newly elected Pres. Thomas Jefferson ordered Secretary of State James Madison to withhold from William Marbury the commission of his appointment by former Pres. John Adams as justice of the peace in the District of Columbia. Marbury then requested that the Supreme Court compel Madison to deliver his commission. In denying his request, the court held that it lacked jurisdiction because the section of the Judiciary Act passed by Congress in 1789 that authorized the Court to issue such a writ was unconstitutional and thus invalid. Chief Justice John Marshall, writing for the Court, declared that the Constitution must always take precedence in any conflict between it and a law passed by Congress.

Dred Scott decisionDred Scott decision （美）德雷德（美）德雷德 .. 斯科特案判决斯科特案判决

－美国最高法院－美国最高法院 18571857 年对德雷德年对德雷德 .. 斯科特案所作的斯科特案所作的判决。该判决推翻了判决。该判决推翻了 18201820 年密苏里折中案（年密苏里折中案（ Missouri Missouri CompromiseCompromise ），并宣称奴隶是私有财产，不享有公），并宣称奴隶是私有财产，不享有公民权。该判决是促成美国南北战争的重要原因之一。民权。该判决是促成美国南北战争的重要原因之一。

(more info. on the next slide) (more info. on the next slide)

1857 ruling of the Supreme Court of the United States that 1857 ruling of the Supreme Court of the United States that made slavery legal in all U.S. territories. Scott was a slave made slavery legal in all U.S. territories. Scott was a slave whose master had taken him in 1834 from a slave state whose master had taken him in 1834 from a slave state (Missouri) to a free state and a free territory, then back to (Missouri) to a free state and a free territory, then back to Missouri. Scott sued for his freedom in Missouri in 1846, Missouri. Scott sued for his freedom in Missouri in 1846, claiming his residence in a free state and a free territory claiming his residence in a free state and a free territory made him free. The opinion of Chief Justice Roger B. Taney made him free. The opinion of Chief Justice Roger B. Taney declared that Scott was not entitled to rights as a U.S. citizen declared that Scott was not entitled to rights as a U.S. citizen and, in fact, had "no rights which any white man was bound and, in fact, had "no rights which any white man was bound to respect". Taney and six other justices struck down the to respect". Taney and six other justices struck down the Missouri Compromise as unconstitutional, maintaining that Missouri Compromise as unconstitutional, maintaining that Congress had no power to prohibit slavery in the territories. Congress had no power to prohibit slavery in the territories. The decision, a clear victory for the South, increased The decision, a clear victory for the South, increased Northern antislavery sentiment, strengthened the new Northern antislavery sentiment, strengthened the new Republican Party, and fed the sectional strife that led to war Republican Party, and fed the sectional strife that led to war in 1861.in 1861.

Missouri Compromise 1820 年密苏里折中案

-The first great legislative compromise designed to quiet and settle the slavery issue was the Missouri Compromise, which drew a line on the map that slavery was not to spread across. Having acquired the vast territory of the Louisiana Purchase in 1803, the United States faced the question of whether slave owners could take slaves into the new territories. In 1818, when Missouri asked to join the Union, Northern members of Congress supported an amendment requiring emancipation of any slaves in Missouri. Slave owners, however, objected to any limit on their right to own slaves. At the time, the Senate was evenly divided between slaveholding and non-slaveholding states. Neither the North nor the South wanted to become the minority. After dramatic and heated debates, Congress agreed to admit Missouri as a slaveholding state and Maine, at the same time, as a free state, preserving the balance of political power between the sections in the Senate. Congress also set the 36th parallel as the boundary above which slavery could not spread.

Treaty of VersaillesTreaty of Versailles （（ 19191919 年巴黎和会上订立的处理第年巴黎和会上订立的处理第一次世界大战后事宜的）凡尔赛条约一次世界大战后事宜的）凡尔赛条约

－－ International agreement, signed in 1919 at the PInternational agreement, signed in 1919 at the Palace of Versailles, that concluded World War I. It was nealace of Versailles, that concluded World War I. It was negotiated primarily by the U.S., Britain, and France, without gotiated primarily by the U.S., Britain, and France, without participation by the war's losers. Germany was forced to participation by the war's losers. Germany was forced to accept blame for Allied losses and to pay major reparatioaccept blame for Allied losses and to pay major reparations. Its European territory was reduced by about 10%, its ns. Its European territory was reduced by about 10%, its overseas possessions were confiscated, and its military eoverseas possessions were confiscated, and its military establishment was reduced. Although some of the treaty's tstablishment was reduced. Although some of the treaty's terms were eased in the 1920s, the bitterness it created herms were eased in the 1920s, the bitterness it created helped to foster an environment that led to the growth of faelped to foster an environment that led to the growth of fascism in Italy and the rise of the Nazi Party in Germany. Tscism in Italy and the rise of the Nazi Party in Germany. The treaty also established the League of Nations, the Interhe treaty also established the League of Nations, the International Labour Organization, and the Permanent Court onational Labour Organization, and the Permanent Court of International Justice (later the International Court of Justf International Justice (later the International Court of Justice).ice).

Civil WarCivil War 1.1. the war in the United States between the Union anthe war in the United States between the Union an

d the Confederacy from 1861 to 1865, also called d the Confederacy from 1861 to 1865, also called War Between the StatesWar Between the States 美国内战，美国南北战争美国内战，美国南北战争18611861 年至年至 18651865 年美国北方联邦与南部联盟之间的年美国北方联邦与南部联盟之间的战争战争

2. the war in England between the Parliamentarians 2. the war in England between the Parliamentarians and the Royalists from 1642 to 1648 and the Royalists from 1642 to 1648 英国内战英国内战 , 16, 164242 年至年至 16481648 年英国议会党人与保皇党人之间的战年英国议会党人与保皇党人之间的战争争

Ranks of nobility

duke [ ] 公爵a nobleman with the highest hereditary rank, especially a man of the highest grade of the peerage in Great Britain

earl [] 伯爵a British nobleman next in rank above a viscount and below a marquis, corresponding to a count in continental Europe

viscount [] 子爵a nobleman ranking below an earl or a count and above a baron

baron [] 男爵 a British nobleman of the lowest rank

Language points

charge with

charge sb. with murder 指控某人谋杀

He was charged with an important mission. 他承担了一项重要使命。

originate 开始；使开始

All theories originate from / in practice and in turn serve practice." 任何理论都来源于实践 , 反过来又为实践服务。 "

The film originated in / from a short story. 这部电影取材于一篇短篇小说。

The use of steam originated many other reforms. 蒸汽的使用引起了许多其他改革。

The optic theory originated with Einstein. 光学理论是爱因斯坦首创的。

analogous [] adj 相似的；类似的☻This proposal was analogous to/with the one we discus

sed at the last meeting.

liken vt. 把 ...比喻成 (to); 使象☻ Life is often likened to a dream.

at sb’s behest 在 ... 的命令 / 要求下 ; 受某人的委托☻ I called the office at the behest of my secretary.

spell out 使十分清楚明白☻ When you’re dealing with government departments it’s usua

lly necessary to spell out every detail.

Exercises Partial translation

1. Each branch serves as a check on potential excesses of the others

2. recommended impeachment, the President resigned before a House vote was taken

3. Drug dealers are subject to federal law

4. must be republican in form, with final authority resting in the people

5. and treaties signed by the president on behalf of the nation and approved by the Senate

Sentence translation

• 立法权被分给两院，这在很大程度上是因为该权利是最令人担忧的，而且据认为那两院之间的嫉妒心理会促使它们互相制约。

• “ 三权分立”可能被视为不仅作为控制 --- 有人会说是桎梏 --- 政府以防滥用权利那可怕趋向的一种政治理论，而且作为公民个人交往中的一种公平原则。

• “我们合众国的人民，为了组建一个更为完善的联邦；树立公正；保障国内安宁；建立共同的国防；增进一般福利；以及为我们自己和我们的后代确保自由的赐福；特为美利坚制定并确立本宪法。”

4. This idea concerns the separation of the judicial power from the executive and legislative powers, rather than executive and legislative from each other (and the judicial).

5. Article II provides that the President is to appoint the heads of any Department the Congress may create and that he may call on them for written opinions about matters within their responsibility.

Text II The US Judicial System

Words: interpersonal, immediate, precedential, mandate (vt.), interlocutory, arbiter, spark (v.), nomenclature, infraction, minutes (pl.), verbatim, probate

Phrases: in a sense, emanate from

Terms: court of last resort, court of record, District Court, 11 Circuits, tax court, certiorari, Chief Justice, Associate Justice, en banc, administrative court, small-claims court, general jurisdiction

Proper names: Securities and Exchange Commission, Labor Relations Board

Outline of Text II

Ⅰ. (para. 1-4) Introduction to the US judicial system: its function and two court systems

Ⅱ. (para. 5-10) Organization of the Federal court system

Ⅲ. (para. 11-18) Organization of the State court System

Questions based on Part I

1. What is the major function of the judiciary?

2. What is the value of a court judgment?

3. How many court systems are there in the U.S.?

Questions based on Part II and III

1. What are the 3 tiers of the Federal court system? How many tiers have the state court systems got? What are these tiers?

2. How are the United States Courts of Appeal further structured?

3. Paraphrase the sentence starting from Line 5 of Para. 7.

4. Paraphrase the sentence starting from Line 4 of Para. 8.

Terms

court of last resort 终审法院

court of record 记录法院（指将诉讼活动记录并永久保存下来的一种法院。这类法院有权对藐视法院者实行罚款或监禁，以区别无上述权力的非记录法院）

District Court < 美 >( 美国每个地区的 ) 联邦地方法院

circuits 法庭巡回区划定的地区或区域，特指在由法官裁决的周期性开庭的地区- the area or district thus covered, especially a territory under the jurisdiction of a judge in which periodic court sessions are held

tax court （美）税务法院

certiorari [ ] 诉讼文件移送命令 , 调审令，调取案卷令状上级法院为了复审而向下级法院提出的调取案卷命令-a writ from a higher court to a lower one requesting a transcript of the proceedings of a case for review

Chief Justice 审判长 , 首席法官 , 法院院长 Associate Justice （美）（联邦最高法院的）首席法官以外的法官

en banc 全体出庭法官听审

administrative court 行政法院

small-claims court 小额索偿法院 general jurisdiction 一般审判权、一般管

辖权

Proper names

Securities and Exchange Commission（美）证券交易委员会

Labor Relations Board劳资关系委员会

Text Ⅲ Case Reading

Words: depository, reproduction, abrogate, archivist / archival, invoke, promulgate, screening, disruption / be disruptive of, bar (v.), unblemished, moot, chill, outweigh, speculative

Phrases: with respect to, take custody of, inter alia, without merit, on its face, in the person of, a host of

Terms: Bill of Attainder, declaratory cf. injunctive relief

Proper names: General Services Administration (GSA), Solicitor General

Questions based on the case

1. What is the background which sets this case?

2. What is the depository agreement between President Nixon and the Administrator of General Services about?

3. How do you understand subject to…invoke? (para.2)

4. What are the constraints on the regulations the Administrator of General Services is directed to promulgate?

5. What does the act (para. 3 line 1) refer to?

6. What are the claims of President Nixon in the complaint filed with District Court?

7. What is the holding of the District Court?

8. What does it (P188) refer to?

Terms

Bill of Attainder （美）剥夺公民权法案

declaratory relief 宣告性（或确认法律关系）的法律救济方法

injunctive relief 强制性的救济，例如停止侵害等

Terms

Interlocutory decisions 中间判决，非终局性判决（通常指在诉讼过程中对与案件有关的某些事项或法律问题做出的决定，而非对整个案件做出最终的处理）

Infraction 违约，违反地方法规或规章的行为（通常指处以监禁以下处罚的违法行为）

Proper names

General Services Administration (GSA)( 美 ) 全国总务行政管理署（指管理政府财产、案卷记录的联邦机关，它并可对建筑物的建筑、施工、提供条件、通讯系统等进行监督）

Solicitor General （英）副检察长；（美）副司法部长；（美国若干无检察长的州的）首席检察官

Background of the case

Related American presidential history

37th 1969-1974 Richard M. Nixon 38th 1974-1977 Gerald R. Ford

尼克松 1974 年 8月 9日辞职，由副总统福特继任

Watergate

-In United States v. Nixon, President Nixon was charged with bribing indirectly the burglars who broke into the Democratic Party national headquarters in the Watergate complex of offices and apartments seeking to steal campaign secrets in order to give their employers an added advantage in the presidential campaign held in 1972.

the tapes

-There was evidence which indicated that President Nixon had known about the bribes from the start. Therefore, the conversations in the president’s office became most important to the investigations when one witness before a congressional committee disclosed that President Nixon secretly had tape recorded all of his White House meetings.

Decision

- In United States v. Nixon, the Supreme Court balanced the interest of the President in keeping important government conversations secret through his executive privilege and the interest of the American people in determining whether or not the President had been involved in a crime. Executive privilege inherent in the presidential powers did not permit the President to withhold the tapes from the judicial branch.

Impact

-President Nixon was forced to resign due to the Watergate affair.

During the sixteenth and seventeenth centuries the British Parliament often employed enactments called bills of attainder to inflict the death penalty on persons deemed guilty of seditious acts, such as attempting to overthrow the government. In addition to the death sentence, a bill of attainder usually carried with it a “corruption of blood,” which meant that the attainted party's property could not pass to his heirs. If the bill imposed a punishment short of death, such as banishment, confiscation of goods, or loss of the right to vote, it was called a bill of pains and penalties. These two kinds of bills were not restricted to England. During the American Revolution, the legislatures of many states enacted bills of attainder or bills of pains and penalties against persons deemed guilty of disloyalty to the American cause.

Article I, section 9, clause 3 of the U.S. Constitution forbids the federal government from passing bills of attainder. The same prohibition is imposed on the states by Article I, section 10, clause 1. The U.S. Supreme Court decided at an early time, without argument, that these two clauses covered bills of pains and penalties as well as bills of attainder proper. Although this conclusion is not compelled by the language of the Constitution, it becomes entirely persuasive when the purpose of the prohibition is considered. Both bills of attainder and bills of pains and penalties are legislative acts that inflict punishment without a judicial trial. Regardless of whether the punishment decreed is death or something less than death, such enactments violate principles deeply embedded in the constitutional structure. The Constitution separates the judicial power from the legislative power (see Separation of Powers). Legislative bodies are supposed to enact general rules, applicable to all persons or certain classes of people, which grant rights to them or impose duties, prohibitions, or disabilities on them. It is the function of the judicial branch to decide, under structured procedures containing safeguards against error and abuse of power, whether a specific person is entitled to a right, or subject to a duty, prohibition, or disability established by the legislatures. Bills of attainder and bills of pains and penalties are thoroughly at odds with these principles. They inflict punitive sanctions in disregard of judicial methods of proof designed to insure fairness in fact‐finding. The history of bills of attainder has also shown that their passage was often induced by popular passion or motivated by unproved suspicions.

In the context of the bill of attainder clauses of the Constitution, the concept of punishment has not been restricted by the courts to the typical sanctions employed by the system of criminal justice, such as capital punishment, imprisonment, punitive fines, and confiscation of property. The bill of attainder clauses have been broadly construed to include deprivations of rights, civil or political, disqualification from office, and legislative bars to participation in specific employments or professions. Essential to a finding of attainder is a determination by the court that it was the legislature's intent to punish rather than to regulate for a legitimate political purpose.

Traditionally, most bills of attainder designated the persons subjected to punishment by name. In some cases, however, legislatures imposed punishment on groups whose individual members could be ascertained without much difficulty. For example, a federal statute made it a crime for members of the Communist party to serve as officers of a labor union. The purpose of the statute was to protect the national economy by minimizing the danger of political strikes. The Court in United States v. Brown (1965) invalidated the statute as a bill of attainder. Since not all members of the Communist party were likely to incite political strikes, and since noncommunist agitators might also engage in such conduct, the decision whether the activities of a particular person presented the danger to be guarded against should have been left to the judicial branch. The Supreme Court suggested that Congress could validly enact a general rule barring persons expected to initiate political strikes from union office instead of imputing the undesirable trait to specific persons, namely members of the Communist party (see Communism and Cold War).

Bibliography