English Common Law Precedents Background: Our federal and most state judiciaries have deep roots in English common law. The law is viewed as the means to remedy wrongs and injustices. The courts cannot initiate cases; they can only act on cases properly brought before them. Judicial independence from the political branches of government emerges as early as the 12 th century. However, as parliamentary supremacy became firmly established in England through the Glorious Revolution of 1688, the courts in that country could not overturn parliamentary laws through the exercise of judicial review.
COMMENTARIES ON THE LAWS OF ENGLAND 1765, William Blackstone The Rights of All Englishmen ♦ every Englishman [has the right] of applying to the courts of justice for redress of injuries. ♦ Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein
Magna Carta ♦ The emphatical words of magna carta, spoken in the person of the king, who in judgment of law (says sir Edward Coke) is ever present and repeating them in all his courts, are these; ♦ “nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam [We neither sell nor deny, nor delay, to any person, equity or justice]
Sir Edward Coke Lord Chief Justice of England ♦every subject for injury done to him in bonis [goods or property], in terries [land], vel persona [character], by any other subject, be he ecclesiastical or temporal without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay
The Law of the Land ♦ It were endless to enumerate all the affirmative acts of parliament wherein justice is directed to be done according to the law of the land: ♦ and what that law is, every subject knows; or may know if he pleases: for it depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament.
Parliament Can Not Alter Due Process of Law ♦Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: ♦for if once those outworks were demolished, there would be no inlet to all manner of innovation in the body of the law itself.
Nor Can the King Disregard the Due Course of the Law ♦The king, it is true, may erect new courts of justice; ♦but then they must proceed according to the old established forms of the common law.
Federalist 78 (A. Hamilton) ♦One of the lessens to learn from the Articles of Confederation is the necessity of a federal judicature ♦Judges must be appointed in the same manner as other officers of the Union ♦Judges are to hold office during good behavior –In a monarchy, this is an excellent barrier to the despotism of the prince –In a republic, it is an excellent barrier to the encroachments and oppressions of Congress –This is a device to secure a steady, upright, and impartial administration of the law ♦The judicial has neither force nor will, merely judgment –It depends on the executive branch for the efficacious exercise of this faculty
Federalist 78 (A. Hamilton) ♦The judicial branch is the weakest of the three branches ♦Every provision must be taken to prevent the other two branches from encroaching on it ♦There is no liberty if the power of judging is not separated from the other two branches ♦The duty of the courts of justice is to declare void all acts contrary to the Constitution ♦The courts were designed to serve as mediators between the people and Congress ♦The interpretation of the laws is the peculiar province of the courts
Federalist 78 (A. Hamilton) ♦The Constitution ought to be preferred to the statute ♦The power of the people is superior to any branch of government ♦Permanent tenure of judicial officers guarantees the independent spirit of the judges ♦Permanent tenure guarantees nothing would be consulted but the Constitution and the laws ♦Judges should be bound down to strict rules and precedents to prevent arbitrary discretion in the courts
Marbury v. Madison (1803) Background: The Constitution does not explicitly establish the power of judicial review. The power of the Supreme Court to invalidate an act of Congress was stated in Marbury v. Madison. President John Adams appointed a number of justices during the last days of his administration. Most of his appointments were delivered, but not all. When Jefferson took office, he ordered his secretary of state not to deliver the remaining appointments. Marbury had been appointed as justice of the peace and his appointment had been one of those not delivered. He filed a suit with the Supreme Court requesting a writ of mandamus.
Marbury v. Madison (1803) ♦The authority of the Supreme Court to issue writs of mandamus to public officers appears not to be warranted by the Constitution ♦The powers of the legislature are defined and limited ♦The Constitution is a superior paramount law, unchangeable by ordinary means ♦The Constitution controls any legislative act repugnant to it ♦If two laws conflict with each other, the courts must decide on the operation of each ♦A written constitution is the greatest improvement on political institutions ♦The judicial power is limited to cases arising under the Constitution
Judicial Self-Restraint (J.P. Roche) ♦The people must be protected from themselves and the judiciary is well fitted for this role ♦The courts have the right to review legislative and executive action and to nullify those that go against the spirit of the Constitution ♦The Supreme Court has the power to review both national and state legislatures ♦The courts have enormous policymaking functions ♦Each of the branches of government has a role that has given the Constitution its survival power ♦Judges have the right to substitute their views for those of past generations and even those of a contemporary president and Congress
Judicial Self-Restraint (J.P. Roche) ♦Self-restraint is the most significant form of judicial limitation –Avoid significant but controversial problems –Issue decisions on its own terms –Procrastinate the acceptance of jurisdiction ♦Sometimes self-restraint is applied to abdicate national powers to the states ♦A disciplined majority would be necessary to clip the judicial wings ♦When monolithic majorities do exist on issues, the Court is likely to resort to judicial self-restraint ♦Political pluralism undermines the ability of political majorities to form
WHY COURTS CANNOT FAIRLY DECIDE POLITICAL QUESTIONS Luther v. Borden (1849)
Background ♦ The case arose out of the Dorr Rebellion in Rhode Island in Rhode Island, at the time of the separation from England, had not adopted a new constitution but had continued, in its existence as an independent State, under its original royal Charter, with certain statutory alterations.
Rhode Island Charter Government ♦This frame of government provided no means for amendment of the fundamental law; the right of suffrage was to be prescribed by legislation, which limited it to freeholders.
Objections to Limited Suffrage ♦In the 1830's, largely because of the growth of towns in which there developed a propertied class whose means were not represented by freehold estates, dissatisfaction arose with the suffrage qualifications of the charter government.
Agitation for Electoral Reform ♦In addition, population shifts had caused a dated apportionment of seats in the lower house to yield substantial numerical inequality of political influence, even among qualified voters. ♦The towns felt themselves underrepresented, and agitation began for electoral reform
New Popular Constitution Drafted ♦When the charter government failed to respond, popular meetings of those who favored the broader suffrage were held and delegates elected to a convention which met and drafted a state constitution. ♦This constitution provided for universal manhood suffrage (with certain qualifications); and it was to be adopted by vote of the people at elections at which a similarly expansive franchise obtained.
Popular Ratification ♦ This new scheme of government was ratified at the polls and declared effective by the convention, but the government elected and organized under it, with Dorr at its head, never came to power. ♦ The charter government denied the validity of the convention, the constitution and its government and, after an insignificant skirmish, routed Dorr and his followers. It meanwhile provided for the calling of its own convention, which drafted a constitution that went peacefully into effect in 1843.
Action Leading to Court Case ♦ Borden, an official of the Charter government, on orders of superiors, proceeded to arrest Luther, a Dorr supporter, and in the process broke into and searched Luther's house, damaging his property. ♦ Luther sued Borden for trespass in a United States Circuit Court to recover damages for the breaking and entering of his house.
Claim and Counter-Claim ♦ The defendants [Borden et al, agents of the charter government] justified [their trespass action] under military orders pursuant to martial law declared by the charter government, and plaintiff, by his reply, joined issue on the legality of the charter government subsequent to the adoption of the Dorr constitution.
Evidence in Lower Court ♦Evidence offered by the plaintiff [Luther] tending to establish that the Dorr government was the rightful government of Rhode Island was rejected by the Circuit Court;
Luther v. Borden Circuit Court Trial ♦The court charged the jury that the charter government was lawful; and on a verdict for defendants, plaintiff brought a writ of error to this [the United States Supreme Court].
Circuit Court Trial ♦Luther offers evidence that the Charter government no longer represents the people of Rhode Island; therefore the Dorr government, elected by a majority of the people, is the legitimate government. ♦On this basis Luther argues that Borden trespassed because he acted without legitimate authority.
Circuit Court Rejects Evidence ♦The Circuit Court rejected this evidence, and instructed the jury that the charter government and laws under which the defendants acted were, at the time the trespass is alleged to have been committed, in full force and effect as the form of government and paramount law of the State, and constituted a justification of the acts of the defendants as set forth in their pleas.
Luther Appeal ♦Luther appeals the Circuit Court decision to the United States Supreme Court on a writ of error. ♦Daniel Webster is counsel for Borden
Daniel Webster Counsel for Defendant Borden in Luther v. Borden (1849)
Webster Opens His Argument ♦The [primary principle of our government] is, that the people are the source of all political power. ♦Every one believes this. Where else is there any power? There is no hereditary legislature, no large property, no throne, no primogeniture. Everybody may buy and sell. There is an equality of rights.
What do the Constitution and laws of the United States say upon this point? ♦The Constitution recognizes the existence of States, and guarantees to each a republican form of government, and to protect them against domestic violence. The thing which is to be protected is the existing State government.
Article IV Sec. 4-The Guaranty Clause ♦Section 4. ♦The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Act of Congress of 1795 ♦In case of an insurrection against a State, or the government thereof, the President is to interfere. ♦The Constitution proceeds upon the idea, that each State will take care to establish its own government upon proper principles, and does not contemplate these extraneous and irregular alterations of existing governments.
Can this court, or could the court below, take cognizance of the questions which are raised in the record? ♦The question which the court was called upon to decide was one of sovereignty. Two legislatures were in existence at the same time. Both could not be legitimate.
Which Government Had Legal Power? ♦If legal power had not passed away from the charter government, it could not have got into Dorr’s. ♦The position taken on the other [Dorr] side is that it had so passed away, and it is attempted to be proved by votes and proceedings of meetings, &c., out of doors.
Presidential Action ♦ The President, acted under the Constitution and the 1795 congressional law delegating to him the authority to enforce the guaranty clause. ♦ The President recognized the Charter government as the legitimate one. ♦ The courts are bound by the President’s decision.
Proof Offered in Court the Dorr Constitution Adopted By A Popular Majority ♦ The proof offered below, and rejected by the court, would have led to a different result. Its object was to show that the Dorr constitution was adopted by a majority of the people.
Judicial Process Can Not Decide Political Legitimacy ♦ But how could a court judge of this? Can it know how many persons were present, how many of them qualified voters, and all this to be proved by testimony? ♦Can [a court] order to be brought before it the minutes and registers of unauthorized officers, and have them proved by [oral testimony]?
Courts Can Not Decide Political Questions ♦ The decisions of the Rhode Island courts acting on their authority under the Rhode Island Charter must stand. ♦ Courts are not the proper venue to decide political questions. The Constitution gives Congress and the President the power to enforce the Guaranty Clause.
Chief Justice Taney delivers opinion of the court Luther v. Borden (1849)
Chief Justice Taney: Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not.
Congress Alone Determines Guaranty Clause Procedures ♦Article 4 of the Constitution provides that "the United States shall guarantee to every State in this Union a Republican Form of Government." ♦Congress and the President enforce this clause and courts can not review their decisions.
Circuit Court Properly Decided Issue ♦ In determining this issue non-justiciable, the [lower] Court properly avoided judicial intervention into the very structure of government.
Judicial Process Unsuited to Decision ♦[The Federal Circuit Court acknowledged] that tradition had long entrusted questions of this [political] nature to non-judicial processes, and that judicial processes were unsuited to their decision
No Law to Apply ♦No law defines a republican form of government. ♦Only a political process can decide what is a republican form of government. ♦Courts apply law, not politics.
How the Supreme Court arrives at Decisions (W. Brennan, Jr.) ♦The justices are charged with deciding according to the law ♦Judges speak with the mouths of others ♦The Founders established in the Constitution enduring principles rather than petty details ♦Supreme Court cases are one of three kinds –Original action –Review of decisions of a federal Court of Appeals –State court cases coming from their highest court, if the judgment rests on a federal question ♦Order of Seating –Chief Justice sits at the south end –Senior Associate Justice sits at the north end
How the Supreme Court arrives at Decisions (W. Brennan, Jr.) ♦Upon entering the conference room, each of us shakes hands ♦The Chief Justice begins the discussion and yields down the line in order of seniority ♦Voting goes the other way, beginning with the most junior member ♦When any case received four votes for review, the case is transferred to the oral argument list ♦Each party is usually granted an hour, but recently oral arguments have been limited to a half-hour ♦The counsel submit their briefs and record. Each justice gets a copy.
How the Supreme Court arrives at Decisions (W. Brennan, Jr.) ♦Discussion may spread over two or more conferences ♦The writing of an opinion always takes weeks and sometimes months ♦The Court does not function by committees, panels, or sections ♦Judging is not delegated ♦Americans demand of the Supreme Court a written opinion ♦Opinions are the exposition to our whole society ♦Independence and integrity, not popularity, must be the Court’s standards
Interpreting the Constitution Background: Every fundamental change in domestic social policy has been brought about by the Court’s decree. Conservatives, clearly unhappy with the trend, have promised to take action to reverse the Supreme Court’s alleged liberalism by appointing conservative justices. Ironically, presidents have no control over their appointees once they are on the Court.
Constitutional Liberty and the Right to Abortion (S.D. O’Connor) ♦Liberty finds no refuge in a jurisprudence of doubt ♦19 years after Roe v. Wade, the definition of liberty is still questioned ♦The Pennsylvania Abortion Act of 1982 requires the following: –The woman must give her informed consent prior to the procedure –A minor must obtain the informed consent of one of her parents or a judicial bypass, provided the minor does not wish to or cannot obtain a parent’s consent –A married women must sign a statement indicating that she has notified her husband of her intent
Constitutional Liberty and the Right to Abortion (S.D. O’Connor) ♦Essential holding of Roe v. Wade should be retained and reaffirmed –It is a recognition of the right of a woman to choose to have an abortion before viability –It is a confirmation of the state’s power to restrict abortions after fetal viability if the law contains exceptions for when the woman’s life is in danger –The state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus ♦Protection for the woman’s decision is found within the due process clause of the 14 th Amendment ♦Liberties protected by the 14 th Amendment are those recognized by the Bill of Rights against the states
Constitutional Liberty and the Right to Abortion (S.D. O’Connor) ♦There is a realm of personal liberty which the government may not enter ♦The Court’s obligation is to define the liberty of all, not to mandate its own moral code ♦In constitutional adjudication, changed circumstances may impose new obligations
Liberty, Privacy, and the Right to Abortion (W.H. Rehnquist) ♦We have recognized that the meaning of liberty extends beyond freedom from physical restraint ♦In Roe v. Wade, the Court recognized a guarantee of personal privacy ♦Unlike marriage, procreation, and contraception, abortion involves the purposeful termination of a potential life –Abortion should be considered sui generis ♦The right to terminate one’s pregnancy is not a fundamental right ♦In 1973 an overwhelming majority of the states prohibited abortion unless to preserve the life or health of the mother
Liberty and Abortion: A Strict Constructionist’s View (A. Scalia) ♦Laws against bigamy intrude upon men’s and women’s liberty to marry and live with one another –Bigamy happens not to be a liberty protected by the Constitution ♦I am sure the right of a woman to abort is not protected by the Constitution –The Constitution says nothing about it –There is a long-standing tradition in American society to proscribe it ♦The Court’s decision was a value judgment that conceals a political choice