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Wednesday, April 9 th Citizenship timecard due in labs April 10/11 Citizenship timecard due in labs April 10/11 The Final will be offered April 18 th -19.

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Presentation on theme: "Wednesday, April 9 th Citizenship timecard due in labs April 10/11 Citizenship timecard due in labs April 10/11 The Final will be offered April 18 th -19."— Presentation transcript:

1 Wednesday, April 9 th Citizenship timecard due in labs April 10/11 Citizenship timecard due in labs April 10/11 The Final will be offered April 18 th -19 th, 21 st -22 nd The Final will be offered April 18 th -19 th, 21 st -22 nd PLEASE NOTE THAT THE EXAM IS NOT OFFERED THE LAST DAY OF FINALS. 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. 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 The Review Room will be closed during Finals Week

2 Rule of law demands playing by the rules Today: Finish 60s, when some rules were challenged or violated Today: Finish 60s, when some rules were challenged or violated Look at judicial role in making those rules Look at judicial role in making those rules

3 Richard Nixon Elected twice Elected twice 1968 when Johnson decides not to run 1968 when Johnson decides not to run 1972 by a landslide (first election in which 18-year- olds could vote) 1972 by a landslide (first election in which 18-year- olds could vote) Opened diplomatic relations with China Opened diplomatic relations with China Initiated détente with Soviet Union Initiated détente with Soviet Union Ended war in Vietnam Ended war in Vietnam But then…Watergate But then…Watergate He lacked integrity and left office in shame He lacked integrity and left office in shame

4 Watergate clip

5 Watergate Nixon covered up break-in to Democratic HQ Nixon covered up break-in to Democratic HQ Threatened with certain impeachment Threatened with certain impeachment Only one president impeached before: Andrew Johnson Only one president impeached before: Andrew Johnson Resigned in 1974 Resigned in 1974 A victory for the rule of law and constitutional government, but… A victory for the rule of law and constitutional government, but… Reveals the vulnerability of the highest office to corruption Reveals the vulnerability of the highest office to corruption We could never ever take the presidency quite as seriously again We could never ever take the presidency quite as seriously again

6 Do the 1960s represent a reflection of or a defection from the vision of Americas Founders? Do the 1960s represent a reflection of or a defection from the vision of Americas Founders? After Vietnam and Watergate, what is left of the founding legacy? After Vietnam and Watergate, what is left of the founding legacy? What has changed? What has changed? What, if anything, has been lost? What, if anything, has been lost?

7 The 1960s Legacy Pro Civil rights for minorities Civil rights for minorities Greater equality for women Greater equality for women Youthful idealism for peaceful solutions and service Youthful idealism for peaceful solutions and service Constitution survives great tests Constitution survives great testsCon Great civil unrest Great civil unrest American foreign legacy tarnished American foreign legacy tarnished Shift in national morals Shift in national morals (Drug use and sexual immorality play havoc on health care and family life) (Drug use and sexual immorality play havoc on health care and family life) Presidency tarnished Presidency tarnished

8 Summary: Characterizing a Decade The Sixties contained a promise, an augury of possibilities, an eruption of confident energy. Richard Goodwin 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. The belief that American society could match the loftiness of its ideals. Most take the founding seriously. Most take the founding seriously. Push the idea of rights and liberties to a more extensive meaning of human development and freedom. Push the idea of rights and liberties to a more extensive meaning of human development and freedom. Not freedom from but freedom to Not freedom from but freedom to The idea of freedom as human flourishing. 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. 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. Reshapes again our understanding of what government is designed to encourage and achieve.

9 Justice: Dilemmas of Loyalty A. Apologies and reparations A. Apologies and reparations a. American Indians (Native Americans) a. American Indians (Native Americans) b. Slavery b. Slavery c. Japanese-American internments c. Japanese-American internments d. My Lai d. My Lai B. the Right vs. the Good B. the Right vs. the Good C. Egalitarian vs. Libertarian view C. Egalitarian vs. Libertarian view When is a man or woman really free? When is a man or woman really free? D. Story telling beings? D. Story telling beings?

10 Dilemmas of Loyalty (continued) Three categories of moral responsibility Three categories of moral responsibility 1. natural duties 1. natural duties 2. voluntary obligations 2. voluntary obligations 3. obligations of solidarity 3. obligations of solidarity Family (rescue your child or another? Take care of your parents or of other elderly people?) 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) Community (French resistance pilot refuses to bomb home village; Robert E. Lee; Mormon) Country (Israel rescues Ethiopian Jews over others) Country (Israel rescues Ethiopian Jews over others) What about Kosovo over Sierra Leone? What about Kosovo over Sierra Leone? Ethnicity or religion Ethnicity or religion

11 Dilemmas of Loyalty (continued) Duties to immigrants: which side of the Rio Grande? Duties to immigrants: which side of the Rio Grande? Pros and Cons of open immigration? Pros and Cons of open immigration? Variations on the theme? Variations on the theme? Duty to buy American or Chinese or Albanian? Duty to buy American or Chinese or Albanian?

12 Dilemmas of Loyalty (continued) Is solidarity a prejudice for our own kind? Is solidarity a prejudice for our own kind? How do we resolve the dilemma of serving our own over serving all? How do we resolve the dilemma of serving our own over serving all?

13 Sandel: Justice and the Common Good Government: neutrality or moral engagement Government: neutrality or moral engagement

14 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 Religions Place in Marriage Debate

15 iClicker Which of the following government branches do you think has the most power to constrain or expand your liberty? A. Executive B. Legislative C. Judicial D. The Bureaucracy

16 iClicker Which of the following government branches do you think should have the most power to constrain or expand your liberty? A. Executive B. Legislative C. Judicial D. The Bureaucracy

17 Judicial Activism17 Clip: Pledge of Allegiance

18 Judicial Review: Two Broad Schools of Thought Judicial restraint Judicial restraint Policy making rests primarily with legislative and executive branches, and in that order 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 Adjudicate the law according to the original intent of the Constitutional framers Lincoln: the intention of the law-giver is the law Lincoln: the intention of the law-giver is the law Judicial activism Judicial activism Public policy significantly shaped through court decisions 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). 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 William Brennan (former SC justice): the Constitution is the lodestar for our aspirations

19 Chief Justice Earl Warren The Warren Court (1953-69) Advances in liberty during the 50s and 60s Advances in liberty during the 50s and 60s Brown v. Board of EducationSegregation violates individual rights Brown v. Board of EducationSegregation violates individual rights Miranda v. ArizonaRights against self-incrimination Miranda v. ArizonaRights against self-incrimination Engle v. VitaleMandatory state prayer violation of the establishment clause in the 1 st Amendment. Engle v. VitaleMandatory state prayer violation of the establishment clause in the 1 st Amendment.

20 Tensions: When Liberty meets Public Policy Tensions Tensions Brown v. Board of Education: Leads to forced busing of students from one school to another in some states. 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. 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. Engle v. Vitale: concerns about establishment of one religion may impinge on the free exercise of that religion.

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

22 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. Ones 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. 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. Ones 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 Supreme Court Justice Robert Jackson, 1943

23 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 Abraham Lincoln, First Inaugural Address

24 Morality of Freedom Truth: All men are created equal Truth: All men are created equal Individual rights to life, liberty and pursuit of happiness are to be enjoyed and perpetuated for all others Individual rights to life, liberty and pursuit of happiness are to be enjoyed and perpetuated for all others State has a duty to State has a duty to Protect life at every stage of life Protect life at every stage of life See that young life is reared to a state of responsible agency See that young life is reared to a state of responsible agency Education, the heterosexual family, minimal welfare needs Education, the heterosexual family, minimal welfare needs

25 Newly Claimed Rights Right to fair wage Right to fair wage Patients rights Patients rights Right to die Right to die Right to privacy (HEPA, FERPA) Right to privacy (HEPA, FERPA) Right to not be discriminated against on the basis of race, religion, gender, sexual orientation, etc. 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

26 ConPro 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

27 ConservativeLiberal Strict (narrow) construction Judicial restraint Original intent Loose (broad) construction Judicial activism (judicial legislation) The living Constitution Constitutional Interpretation

28 Current Judicial Controversies Abortion Rights Abortion Rights Gay Marriage Gay Marriage Religious Freedom Religious Freedom

29 Roe v Wade (1973) This case seems to have caused the most political controversy in recent decades. This case seems to have caused the most political controversy in recent decades. Abortion rights Abortion rights Tension between individual rights and state interest. Tension between individual rights and state interest. Tension between individual beliefs and beliefs of a majority. Tension between individual beliefs and beliefs of a majority.

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

31 Roe v. Wade Among the most divisive Supreme Court decisions in American history Among the most divisive Supreme Court decisions in American history Raises major questions on Raises major questions on judicial vs. legislative roles judicial vs. legislative roles state vs. federal roles state vs. federal roles public vs. private morality public vs. private morality

32 December 11, 2006 Judicial Activism32 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

33 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 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.) 2. Roe resurrected and revived old judicial doctrine of substantive due process (Courts over majority rule.) 3. Roe altered American federalism 3. Roe altered American federalism 4. Roe shifted balance of power between legislative and judicial branches 4. Roe shifted balance of power between legislative and judicial branches 5. Roe undermined respect for the rule of law (S. Ct. unlimited power) 5. Roe undermined respect for the rule of law (S. Ct. unlimited power) 6. Roe distorted parent rights (Roe progeny restricts consultation) 6. Roe distorted parent rights (Roe progeny restricts consultation) 7. Roe distorted marriage and spousal interests (No husband approval) 7. Roe distorted marriage and spousal interests (No husband approval) 8. Roe isolates pregnant women in their privacy (No men/no society) 8. Roe isolates pregnant women in their privacy (No men/no society) 9. Roe distorts free speech and freedom of conscience (protests ltd.) 9. Roe distorts free speech and freedom of conscience (protests ltd.) 10. Roe changed the numbers, rates, rations and practices of abortion. 10. Roe changed the numbers, rates, rations and practices of abortion.

34

35 The Next Front? Considerations in Discussing Same-Sex Marriage

36 Should the people decide the same-sex marriage questions through democratic processes? Should the people decide the same-sex marriage questions through democratic processes? Should the Courts make the decision? Should the Courts make the decision? If not, how does this differ from Brown v. Board of Education and Roe v. Wade? If not, how does this differ from Brown v. Board of Education and Roe v. Wade?

37 Supreme Court nominations have become highly politicized. Supreme Court nominations have become highly politicized. It has altered the way presidents make selections for nominees. It has altered the way presidents make selections for nominees. Possibly led to the selection of more moderate justices, at least for now. Possibly led to the selection of more moderate justices, at least for now.

38 The Politicization of the Supreme Court

39 Does the Constitution really give the Courts this much power?

40 Conclusions (cont.) Original Intent: Original Intent: Necessary starting point but sometimes insufficient Necessary starting point but sometimes insufficient Living Constitution: Living Constitution: To some degree essential, but anti-democratic, sometimes dangerously so 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 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. Where it is not clear, it should be interpreted in light of the morality of freedom on which the Founding was based. Why? Why? That was the Founders intention. That was the Founders intention. It is a morality grounded in truth. It is a morality grounded in truth.


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