DOC 2 Final Study Guide.docx

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Dimensions of Culture
Robert Horwitz

Dimensions of Culture 2 – Justice Professor Robert Horwitz Study Guide for Final Exam Problem in Racial Justice and Free Speech Related Reading: Minersville School District v. Gobitis, Opinion of the Court Background of Flag salute: - 5 states before WWI had it, after WWI, a lot more states adopted it as compulsory to instill patriotism Background Information about the Case: - Jehovah Witness: Flag salute is a worship of false God - School district: If a student in public school does not salute to the flag, he/she will be expelled Argument: - Authority over school is a state power over health, public safety, and education given by the Constitution as a form of police power - What's the allegation? The due process has been violated because the state cannot deprive citizens of their life and liberty without the due process of law - Judge Maris from Federal District Court: Refusal of the children to salute to the flag does not harm the other children (Mill’s argument) - Liberty vs. Authority  Whether authority of the government can overrule the liberty of the individuals to exercise their religious freedom Supreme Court decision: - Reverses in 8-1 in favor of the school board whether it undermine the authority of the government Opinion of the Court delivered by Judge Frankfurter: - Pledge of Allegiance is a symbol of national unity and patriotism - Exclusion from the flag pledge might cast doubts in other children about patriotism to America - Courts should not decide education policy. There should be a judicial restraint, rule purely on Constitutional ground, we're not supposed to substitute our values to the legislature (not to be a Super-Legislature) - This law itself is not religious therefore does not violate the establishment clause of the 1st Amendment. Related Reading: West Virginia State Board of Education v. Barnette Background: - A very similar situation as the Gobitis case Supreme Court decision: - Rules in favor of the children by a 5-4 decision - Overturned precedence set in the Gobitis case Opinion of the Court delivered by Justice Jackson: - This is a case of Liberty vs. Authority - Argument: Is there a zone of liberty to be protected with the children refusal to pledge the flags? - No evidence that it interferes other children to do so since the children who refused to salute to the flag did not disrupt the flag pledge - 1st Amendment forbids government to censor to abridge freedom of speech or press  This is a compulsion of state to force the children to say something  There is no Clear and Present Danger that makes the children to speak so there's no ground to force children to say something - Preferred freedoms (one’s right to life, liberty, and property, to free speech, a free press and freedom of worship and assembly) cannot be subjected to majority rule; it should be taken off from the electoral.  Court should establish a counter-majoriantaranism to protect individual liberties against electoral majority - Judicial Restraint should still hold, but it should have a rational basis  The Court’s intervention of laws that undermine preferred freedom is not a violation judicial restraint - Maintaining national unity is a state power but it should not establish laws that violates a free society - Belief vs. Action  The action and belief are inseparable in a pledge of allegiance - The pledge of allegiance teaches the wrong lesson of patriotism because it only teaches them majoritarian coercion. The belief of those fundamental founding principles of the U.S. is not coming from their hearts. Tension created by the Barnett decision: - In what degree can the judicial branch interfere with the legislative process and when can it overturn the legislative? Related Reading: Dred Scott v. Sandford Related terms: - 3/5th Rule  3/5 of slaves who are called persons will be counted in the census for representation  Constitution did not address the slavery issue because if it did it would not be ratified - Whig Party  The basic component of the Democratic Party  Modern on the question of slavery  Fell apart because the northerners want to become a party of anti-slavery and it became the Republican Party  Tend to be more national in economic orientation - Democratic Party  Jackson is pro-slavery  Tend to focus more on the economic issues  Tend to be about the local - Missouri Compromise (1820)  When a free state came into a Union, a slave state will come into a Union - Compromise of 1850  California petitioned to come into the Union as a free state but there was no slave state to come in  Other states that are not yet ready to come into the Union could come in as slave states if they want to Background of the case: - Dred Scott sued for his freedom saying that he has been in New York and is a citizen of the New York, so he should not be somebody else's property anymore - Won in local court, lost in Missouri Supreme Court Opinion of the Court delivered by Judge Taney: - Slaves have no freedom because they are properties - They are not citizens according to the language of the Constitution so they have no right to sue Related Reading: The Lincoln-Douglas Debate Related terms: - Popular sovereignty  Judge Douglas’s belief that States have rights whether they should be slave or free according to popular sovereignty (people’s will) - Moral Equality  The belief that Blacks should be able to enjoy the rights to life, liberty, and pursuit of happiness that are protected by the Constitution - Scrutiny  Judges examine the law closely to see if the law violates preferred freedom Summary of the Debate: - Douglas: popular sovereignty, citizens in each state get to vote for what they want  Other states should not assert what they want on other states  Popular sovereignty is the basis of the social contract, and that is how the Union is kept together - Lincoln: It violates even higher level of justice which is moral equality  Blames Douglas for not admitting that slavery is evil Eventually the “persons” described in the 3/5 Rule become citizens   However, he's not a abolitionist in that doesn't believe in actual equality (political and social equality) between blacks and whites  Draws from Locke's theory that each man has to enjoy the fruit of his own labor, the ethical likeness between white and blacks  He believes that blacks have the blacks deserve moral equality  Willing to risk a Civil War for moral equality between blacks and whites Related Reading: Plessy v. Ferguson Related Terms: - Public Accommodations  Bathrooms, transportations, etc. - Police Power  States have the power to enact laws to protect the public for safety - Poll Tax  One of the way to prevent blacks from voting  Another way is by literacy test - Lynching  A way to threaten the Blacks when they try to register to vote  The body will be left hanging for days so the lesson can be absorbed  People would go to lynching and sell it as a postcard  People were having a good time watching the lynching  By terrifying blacks, the white majority creates a permanent faction of white supremacy  Courts become the key strategy of Blacks to gain civil rights Historical Context: - Era of Reconstruction - 13th Amendment was passed, 1968 passed the 14th Amendment because the wording of the abolition of slavery wasn't enough to ensure that free Black slaves will be treated equality before the laws especially in the Southern states Background: - Plessy, 1/8 Black, was asked to remove himself from the section that is reserved for the whites on a Louisiana train Supreme Court’s decision: - The 13th Amendment is about slavery and it doesn't apply to this court case - The 14th Amendment doesn't apply either. Trains are public accommodations and so they are opened to more legislative control - States can enact regulations that the railroad companies have to provide two separate cabins for whites and colored Louisiana law: If race are mixed, nervousness, violence will happen and the state should  use its police power on public accommodations to protect against the possibility of violence - Separate but equal doesn't violate the 14th Amendment because 14th Amendment guarantees political equality but doesn't necessarily guarantees social equality Recognizes Jim Crow Laws  - Procedural Justice(the 13th and 14th Amendment) vs. Substantive Justice(poll taxes, literacy tests, terrorism) Dissent by Justice Harlan: - Is there a reasonable stop of police power? Why only separate based on race but not religions if government claims there's unrest? - Constitution is supposed to be color-blind - The segregation by law creates a badge of servitude, a sense of inferiority and creates race hate Related Reading: Brown v. Board of Education Related Terms around Civil Rights Movement: - NAACP  Uses both legal strategy and protest strategy  A different experience in WWII opened the Black people's eyes and stopped being subservient  After WWII a lot of Black people migrated to the north where there are less white supremacy  Legislative strategy is blocked because representatives in Congress tend to be white Democrats they will simply stop proposals that deal with civil rights  Starting from 1930 they started to find small cases that takes small incremental movements that will lead the Court to eventually overturn the precedent of Plessy v. Ferguson  Thurgood Marshall: the Legal strategist of the NAACP - Protest strategies: Mobilizing vs. Organizing   Black Nationalism - Black Nationalism A social and political movement advocating the separation of blacks from whites and  self-government for black people - Malcolm X  Get his political education in prison  Began reading books written by African anti-colonists  MLK: In granting rights to black people, America becomes true to its essence  Malcolm X: It's about power, became a leader in the Black Panther Party  Gain freedom and civil rights by any means necessary, including violence - SNCC (Student Non-violating Coordinating Committee)  Provided young blacks with a place in the civil rights movement  Grew into a more radical organization later  Started doing things like "Freedom Rides" by going in and riding on the trains in the white section  Moves into Black Nationalism because they feel blacks can be leaders also - Segregation  De facto (North) vs. de jure (South, Jim Crow Laws)  Judges are being labeled as activists if they are for desegregation  Individual rights to group rights of the Blacks, forbidden by the Constitution - Liberal Consensus  Sense came out from WWII, US is the most important nation  Economic policy has solved class problems  U.S. is the leader of the free world  The common goal of Americans to fight against Communism Supreme Court decision: - In the Brown v. Board, Justice Earl Warren was desperate to have an unanimous opinion to establish precedent - Separate was inherently unequal - Distinction between Brown and Plessy: Plessy was about public accommodations but not about schools   In the 1890s there were few state-run schools but by the 1950s schools are compulsory  In Brown v. Board, schools are more important and thus allows the Court to make a distinction - Message given by school segregation:  Badge of inferiority (the notion that Blacks are inferior)  Stigmatic injury (psychological injury that cannot be healed for a long time) - Supports with a dimension in foreign policy: Cold War and Anti-Communism  Logic that NAACP brought in: How are we supposed to help those Asian countries when we look just like a colonial oppressor to the Blacks? - Orders that the desegregation of schools should happen in a "all deliberate speed", fast in implementation but be careful Related Reading: Clark Kerr Related terms: - Affirmative Action  Acknowledgement to have a color-blind society when one group has been oppressed for so long  When government contracts with private companies they have to show genuine efforts to hire black workers  Goal: To create an Equality of Opportunity  President Johnson: You can’t have equality opportunity when people are starting on different places  Affecting things like state universities, Blacks are given extra points in admission  Resulted in a backlash in white people where they argue that the Constitution is a color- blind document and affirmative action is a reverse racism - Counterculture  Individualistic and against hierarchy(Anti - hierarchy) and those in power  Desire to be freer, assertion of one's identity  Rejection of cultural orthodoxies expressed through sex, drugs and rock and roll in the 60s  The 60s opens up new justice claim of equality in women, sexual difference, and environment  Leads to reassertions of traditional hierarchy in the 70s and election of Ronald Reagan - Civil Rights Act (1964)  Prohibits discrimination of all kinds based on race, color, religion, sex, or national origin - Voting Rights Act (1965)  Literacy tests, poll taxes, and other such requirements that were used to restrict black voting are made illegal - War on Poverty  Civil Rights movement highlights that there are people(the Blacks)who are excluded in the economic prosperity - Great Society  Johnson's program to fight poverty and racial injustice Tensions that cause the free speech movement in UC Berkeley: - A class that's rather privileged came together and saw themselves as oppressed - Students feel the university as a corporation and a knowledge factory - Discontent about the Vietnam War and the draft, feel that the Vietnam War is not much different from their situations at home  Sense of the Vietnam War as a colonial operation - Support of the Civil Rights Movement - Faculty’s discontent of the loyalty oath - Contradiction in university: All the money goes to the lab in weapon research - Fundamental disappointment: Hollowness of post-war prosperity  Underlying dread of nuclear war  Contributes to the raise of counter-culture Context: - Anybody who shows on the HUAC list are barred from speaking in UCs Related Reading: United States v. O’Brien Related Terms: - Military Industrial Complex  Formulated by President Eisenhower when he sees that to challenge Communism is by military spending  Companies persuades Congressmen to vote to pass a larger and larger budget on defense because it secures jobs  Malcolm X is against the U.S. involvement in Vietnam because he sees it as an engagement in colonialism - Selective Service Board  Male have to register with the Selective Service Board to get a classification(to determine if you are eligible for draft) - Symbolic Speech  Conduct that is expressive  Burning draft card is considered a form of symbolic speech - Speech/Conduct  There's no clear cut between speech and conduct because your speech expresses your belief  Conduct: Non-speech element  Court: When speech and conduct converges, Congress has the right to rule the non- speech element - Substantial Interest  Government's substantial interest is raising an army and the draft card helps government in getting that Background: - Opposed the draft and announced that he's going to burn his draft card - 1965 Amendment that says you cannot destroy the draft card because that's destroying the government's property - Debate whether that is considered as part of free speech (a violation of 1st Amendment) but that's an action - Courts have to determine the line of Speech/Conduct - Sets up difficult rules/test that anti-war protestors began to use Opinion of the Court: Related Reading: Cohen v. California Background: - 1st Amendment case - Rebellion mood in the 1960s shows up in their offensive speech - Cohen wore his jacket that says "Fuck the draft" in front of the L.A. County Courthouse - Police says that he cannot disturb the public with his action, therefore arrested him Opinion of the Court: - There are circumstances where the government can get involved, for example, obscenity is not protected under the 1st Amendment because it's a prurient interest (sexual arousing) - Court eliminate obscenity, fighting words, and incitement  Incitement has to be a specific call for people to do something illegal  His jacket is a general political statement and it's not fighting words and incitement  You have to actually start carrying the action out to be considered as incitement  The word has an emotional punch. We cannot exclude certain words because we are in a democratic society. People have different opinion about different words.  Dissent: It's a valueless word and it's just designed to offend other people - The only time this kind of speech that is prohibited if there's a captive audience(audience cannot escape from seeing/hearing the offensive word) Is the right to privacy a form of judicial activism, and does it ultimately protects minority interests and upholds justice? Related Reading: Griswold v. Connecticut Background: - Griswold challenges the Connecticut law that says married couple cannot use contraceptive devices in their private homes - Argument: Whether state has the right to interfere their sexual preference (use of birth control pill as immoral) - This Connecticut law is based on the idea that sex is for procreation - Argued that enumerated Right is rested on implied right of privacy in the Constitution (A fundamental right) Opinion of the Court: - Used the 9th Amendment to justify that they can interpret the implied rights from the Constitution that way - The penumbras(shadows) of the 1 , 4 , 5 , and 9 Amendments create zones of privacy that are protected from the government in a personal way Dissenting opinion: - Majority is making the implied right fundamental - If they don't like the law, the people can talk to their state representatives/vote them out because that's how the system of separation of power is set up - Majority is voting as a super legislature - 9th Amendment does not mean to used by the majority of the Court to justify their interpretation of the implied rights in the Constitution Related Reading: Roe v. Wade Related Terms: - Levels of Scrutiny  How hard do the Courts look at the states interests  States can only violate the fundamental right when it has a compelling interest, and the Court's level of scrutiny is "strict" - Eisenstadt v. Baird (1972)  They are not married but argued that the right to privacy should apply to unmarried couples too  Leads to the question in Roe v. Wade which questions the right of the state interfere with the right of a woman to end the pregnancy if she does not want to bear the child Background: - Before Roe v. Wade, legal abortion was only available under the condition that the mother's life is in danger - Roe: The statute is vague. Does danger in mother's life mean physical danger or mental danger? Abridge of right to privacy - Question: Are woman full individuals and have control over their bodies? Opinion of the Court: - Quickening(when the baby moves) that's when a baby is considered a person - Does the protection of the growing fetus meet the compelling state interest? 2 compelling state interest: Interest in the fetus, Health of the mother - Roe v. Wade recognizes the nature of pregnancy in trimesters. Fetus is viable outside of the womb at the end of the 2nd trimester. State's interest is not compelling until the end of the 2nd trimester. Dissent: - Similar to the argument in the Griswold case, it's a jurisdiction issue. - The proper channel to outlaw a state law is to let the people vote but not in the Court's  It becomes judicial activism, asserting the judges' opinion onto the people and tweaks the system of checks and balances  Tension: However, women were not allowed to vote yet, if Courts do not uphold their rights, who would? Related Reading: Lochner v. New York Background: - New York legislature exercises police power in limiting the total work hours in a week to 60 hours of workers in bakeries Opinion of the court: - This state law interferes with the liberties of the workers to make decisions whether they should work more than 60 hours in the bakery An argument of a "nanny state"  - The New York statute is against the ideology of Laissez-Faire  Legislature should not intervene in industrial activities - Individuals’ “right to contract” is a fundamental liberty that is protected by the 14 Amendment Significance: - Began the Lochner Era: 1870s - 1930s  Issues come up in the courts and courts make a determination of what liberty is in reflective of the dominant economic ideology of the U.S. in that era  A conservative form of judicial activism  Judicial activism in the Lochner era provides a systematic advantage so privileged groups can maintain their power  Corporation are recognized as person by the Court (under 14th Amendment) – Uphold contracts  The power of negotiation is unequal here. The owner has the most bargaining power and the workers has little place of negotiation with the owners. - Began Substantive due process: The practice of interprthing what the “substance” of the “due process” is, determines what liberty means in the 14 Amendment  Liberty has to have specifications to it - Limit to liberty  Mill's definition: One’s liberty should be limited when it harms the liberty of somebody else  14th Amendment protects states from depriving liberty, life and property but the liberty guaranteed by the 14th Amendment is unspecified - Result of substantive due process:  Courts' decision pressed a tyranny of the majority(Mill) in areas of religious beliefs, personhood and sexuality (as seen in Gobitis and Bowers) Judicial Activism: Democratic elected legislators made laws that protects the health or  interests of the people, but routinely being struck down by the Court as an intervention
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