Wednesday, April 9th

Citizenship timecard due in labs April 10/11 • The Final will be offered April 18th-19th, 21st-22nd

PLEASE NOTE THAT THE EXAM IS NOT OFFERED THE LAST DAY OF FINALS.

Exam administered by the Testing Center. Typically the Testing Center proctors the American Heritage final in the JSB. Lines can be long during the exam period. So be sure to go with enough time before the testing center closes.

The Review Room will be closed during Finals Week

Rule of law demands playing by the rules

Today: Finish 60’s, when some rules were challenged or violated

Look at judicial role in making those rules

Richard Nixon Elected twice

1968 when Johnson decides not to run 1972 by a landslide (first election in

which 18-year-olds could vote) Opened diplomatic relations with

China Initiated détente with Soviet Union Ended war in Vietnam But then…Watergate

He lacked integrity and left office in shame

Watergate clip

Watergate Nixon covered up break-in to

Democratic HQ Threatened with certain

impeachment Only one president impeached before:

Andrew Johnson Resigned in 1974 A victory for the rule of law and

constitutional government, but… Reveals the vulnerability of the

highest office to corruption “We could never ever take the

presidency quite as seriously again”

Do the 1960’s represent a reflection of or a defection from the vision of America’s Founders?

After Vietnam and Watergate, what is left of the founding legacy?

What has changed?What, if anything, has been

lost?

The 1960’s LegacyPro

Civil rights for minorities

Greater equality for women

Youthful idealism for peaceful solutions and service

Constitution survives great tests

Con Great civil unrest American foreign

legacy tarnished Shift in national

morals (Drug use and sexual immorality play havoc on health care and family life) Presidency

tarnished

Summary: Characterizing a Decade

The Sixties “contained a promise, an augury of possibilities, an eruption of confident energy.” Richard Goodwin

The belief that American society could match the loftiness of its ideals. Most take the founding seriously. Push the idea of rights and liberties to a more

extensive meaning of human development and freedom.

Not freedom “from” but freedom “to” The idea of freedom as “human flourishing.”

Disappointment and resentment developed when it could not meet those goals and reformulate them immediately for a new age.

Reshapes again our understanding of what government is designed to encourage and achieve.

Justice: Dilemmas of Loyalty

A. Apologies and reparations a. American Indians (Native Americans) b. Slavery c. Japanese-American internments d. My Lai

B. the Right vs. the Good C. Egalitarian vs. Libertarian view

When is a man or woman really free? D. Story telling beings?

Dilemmas of Loyalty (continued)

Three categories of moral responsibility 1. natural duties 2. voluntary obligations 3. obligations of solidarity

Family (rescue your child or another? Take care of your parents or of other elderly people?)

Community (French resistance pilot refuses to bomb home village; Robert E. Lee; Mormon)

Country (Israel rescues Ethiopian Jews over others)

What about Kosovo over Sierra Leone? Ethnicity or religion

Dilemmas of Loyalty (continued)

Duties to immigrants: which side of the Rio Grande? Pros and Cons of open immigration?

Variations on the theme?

Duty to buy American or Chinese or Albanian?

Dilemmas of Loyalty (continued)

Is solidarity a prejudice for our own kind?

How do we resolve the dilemma of serving our own over serving all?

Sandel: Justice and the Common

Good

Government: neutrality or moral engagement

Structure and Virtue

“In our opinion: Boston Marathon tragedy shouldn't destroy our freedoms”

“Sixty-nine more West Valley cases dismissed in ‘criminal justice nightmare’”

“Nudity, profanity and broadcast TV: The future hangs in the balance right now”

“Sensational abortion murder trial largely ignored by major media”

“Religion’s Place in Marriage Debate”

iClickerWhich of the following government branches do you think has the most power to constrain or expand your liberty?A. ExecutiveB. LegislativeC. JudicialD. The Bureaucracy

iClickerWhich of the following government branches do you think should have the most power to constrain or expand your liberty?A. ExecutiveB. LegislativeC. JudicialD. The Bureaucracy

17Judicial Activism

Clip: Pledge of Allegiance

Judicial Review: Two Broad Schools of Thought

Judicial restraint Policy making rests primarily with legislative

and executive branches, and in that order Adjudicate the law according to the “original

intent” of the Constitutional framers Lincoln: “the intention of the law-giver is the law”

Judicial activism Public policy significantly shaped through

court decisions Adjudicate the law according to moral/social

ideals of current society (as perceived by sitting judges) (“living Constitution”).

William Brennan (former SC justice): the “Constitution is the lodestar for our aspirations”

Chief Justice Earl Warren

The Warren Court (1953-69) Advances in liberty during the 50’s and

60’s Brown v. Board of Education—Segregation

violates individual rights Miranda v. Arizona—Rights against self-

incrimination Engle v. Vitale—Mandatory state prayer

violation of the establishment clause in the 1st Amendment.

Tensions: When Liberty meets Public Policy

Tensions Brown v. Board of Education:

Leads to forced busing of students from one school to another in some states.

Miranda v. Arizona: criminals may be increasingly protected at the expense of the law abiding. Arrests invalidated if police officer fails to read the Miranda rights.

Engle v. Vitale: concerns about “establishment” of one religion may impinge on the “free exercise” of that religion.

WHEN IS IT ACCEPTABLE FOR THE COURTS TO OVERRULE THE VOICE OF THE MAJORITY?

Protecting Inalienable Rights

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote. They depend on the outcome of no elections.” Supreme Court Justice Robert Jackson,

1943

Preserving the Voice of the People

“I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court. . . . At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Abraham Lincoln, First Inaugural Address

Morality of Freedom

Truth: All men are created equal Individual rights to life, liberty and pursuit of

happiness are to be enjoyed and perpetuated for all others

State has a duty to Protect life at every stage of life See that young life is reared to a state of

responsible agency Education, the heterosexual family, minimal welfare

needs

Newly Claimed Rights Right to fair wage Patients’ rights Right to die Right to privacy (HEPA, FERPA) Right to not be discriminated against on the

basis of race, religion, gender, sexual orientation, etc.

Right to clean air (anti-smoking) Right to choose (abortion) Right to gay marriage Right to education Right to adequate housing Right to health care

Con Pro “The greatest danger

[to liberty is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.” James Madison

“The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.” Abraham Lincoln

Majority Rule

Conservative Liberal Strict (narrow)

construction Judicial restraint Original intent

Loose (broad) construction

Judicial activism (judicial legislation)

The “living Constitution”

Constitutional Interpretation

Current Judicial Controversies

Abortion Rights Gay Marriage Religious Freedom

Roe v Wade (1973)

This case seems to have caused the most political controversy in recent decades.

Abortion rights Tension between individual rights and

state interest. Tension between individual beliefs and

beliefs of a majority.

Clip on Roe v. Wade

Few cases in American history show the tension between the judiciary and the public like the case Roe v. Wade

Roe v. Wade

Among the most divisive Supreme Court decisions in American history

Raises major questions on judicial vs. legislative roles state vs. federal roles public vs. private morality

32Judicial ActivismDecember 11, 2006

Roe v. Wade

“In view of a recent decision of the United States Supreme Court, we feel it necessary to restate the position of the Church on abortion in order that there be no misunderstanding of our attitude. The Church opposes abortion and counsels its members not to submit to or perform an abortion except in the rare cases where, in the opinion of competent medical counsel, the life or good health of the mother is seriously endangered or where the pregnancy was caused by rape and produces serious emotional trauma in the mother…”

First Presidency, April 1973

Ten Radical Changes Brought to American Law and Life by Roe v. Wade

(Courtesy Lynn Wardle, BYU Law School)

1. Roe dramatically changed the substance of American abortion law

2. Roe resurrected and revived old judicial doctrine of “substantive due process” (Courts over majority rule.)

3. Roe altered American federalism 4. Roe shifted balance of power between legislative

and judicial branches 5. Roe undermined respect for the rule of law (S. Ct.

unlimited power) 6. Roe distorted parent rights (Roe progeny restricts

consultation) 7. Roe distorted marriage and spousal interests (No

husband approval) 8. Roe isolates pregnant women in their privacy (No

men/no society) 9. Roe distorts free speech and freedom of

conscience (protests ltd.) 10. Roe changed the numbers, rates, rations and

practices of abortion.

The Next Front? Considerations in

Discussing Same-Sex Marriage

Should the people decide the same-sex marriage questions through democratic processes?

Should the Courts make the decision? If not, how does this differ from Brown

v. Board of Education and Roe v. Wade?

Supreme Court nominations have become highly politicized.

It has altered the way presidents make selections for nominees.

Possibly led to the selection of more moderate justices, at least for now.

The Politicization of the Supreme Court

Does the Constitution really give the Courts

this much power?

Conclusions (cont.) Original Intent:

Necessary starting point but sometimes insufficient

Living Constitution: To some degree essential, but anti-

democratic, sometimes dangerously so Where the original intent of a specific

clause or passage is clear it must prevail, or be duly changed legislatively

Where it is not clear, it should be interpreted in light of the morality of freedom on which the Founding was based. Why?

That was the Founders’ intention.It is a morality grounded in truth.