1. Issues & Policies in US Politics Module 8.1: Theories of Justice

2. The Natural Rights Argument From the Declaration of Independence Fundamental Human Equality Endowment with “Certain Inalienable Rights” –Life –Liberty –Pursuit of Happiness Rights neither created nor destroyed by human beings Purpose of government: secure rights Measure of justice: the degree to which government secures rights

3. John Rawls Author of A Theory of Justice (1971) Two factors inform the substance of justice –The Veil of Ignorance in human choices (The liberty principle) –Natural human equality and societal inequality (the difference principle) Rawlsian Justice: –All societal benefits must be equally distributed UNLESS –An unequal distribution is to the advantage of the Least Favored in society Justice = Fairness

4. Robert Nozick Author of Anarchy, State, and Utopia (1974) Two factors inform the substance of justice –Freedom of action –Coercive power of government Nozickean Justice –All individuals in society must remain free to pursue societal benefits without coercion UNLESS –Such pursuit constitutes a willful injury to another Justice = Freedom

5. So what? Nozickean justice –Emphasizes liberty –Prescribes a reactive government limited to resolving claims of willful injury –May be blind to persistent inequality of unfairly marginalized individuals and groups Rawlsian justice –Emphasizes equality –Prescribes active redistribution to benefit “least favored” –May conflict with property rights and individual “pursuit of happiness”

6. Civil Rights Natural Rights connection –Civil Rights are extensions of Natural Rights into civil society –Civil Rights are societal benefits but –Civil Rights are not created by government –Civil Rights may, however, be recognized by government Rawls connection –Civil Rights are therefore to be distributed equally, unless unequal distribution benefits least favored in society Nozick connection –Civil Rights may be pursued by individuals, unless doing so willfully injures someone else

7. Through the Lens of Equality Rights of participation –Voting –Legal standing –Jury participation –Speech, press, assembly and petition Equal protection of the laws –Due Process rights Security against unreasonable searches and seizures Defensive silence Security against bearing witness against oneself Habeas corpus Legal counsel Speedy & public trial Jury trial Security against double jeopardy of life or limb No excessive bails or fines; no cruel and unusual punishments

8. Criminal Due Process Major Stages 1.Search & Seizure 2.Investigation & Indictment 3.Trial & Verdict 4.Sentence & Execution Limits: Stage 1 Security against unreasonable searches and seizures –Probable cause –Exclusionary rule Defensive silence Security against bearing witness against oneself Security against excessive bail Limits: Stage 2 Security against unreasonable searches and seizures Defensive silence Security against bearing witness against oneself Legal counsel Indictment by Grand Jury –Grand Jury must specify the crime committed according to the applicable Penal Code –Grand Jury must decide if sufficient evidence exists to demonstrate guilt of the defendant Limits: Stage 3 Defensive silence Security against bearing witness against oneself Habeas corpus Legal counsel Speedy & public trial Jury trial Security against double jeopardy of life or limb Limits: Stage 4 Legal counsel Security against double jeopardy of life or limb Security against excessive fines Security against cruel and unusual punishment Limits: Arraignment Legal counsel Habeas corpus Defensive silence Plea –Guilty –Not guilty –Nolo contendere (not available in felony cases) Plea bargaining

9. Through the Lens of Equality Equal protection of the laws –Rights against discrimination Race Religion Ethnos Sex Handicap Class? Age?

10. Civil Liberties Natural Rights connection –Civil Liberties are extensions of Natural Rights into civil society –Civil Liberties are societal benefits but –Civil Liberties are not created by government –Civil Liberties must, however, be recognized by government –Civil Liberties restrain government action against individuals Rawls connection –Civil Liberties are therefore to be equally respected by government, unless unequal respect benefits least favored in society Nozick connection –Civil Liberties may be enjoyed by individuals without interference from government, unless doing so willfully injures someone else

11. Through the Lens of Liberty Freedoms of expression –Religion No establishment Free exercise Religious practices unprotected if –Practice requires legal injury –Practice contradicts ‘overriding gov’t interest’ in public safety or health –Peaceable Assembly & Petition Protected Assembly –Public demonstration –Organized Interest Groups –Lobbying Unprotected Assembly –Riot –Collusion –Conspiracy –Racketeering –Press Protected press –No prior restraint »by Federal & state governments »Tribal governments may censor press under their jurisdiction »Private sector may censor itself –Partisan press –Investigative journalism Limits on press –“clear & present danger” (to national security) –Equal time (eliminated in 1984) –Defamation »Libel »Slander –Speech Political expression Limits on speech –“clear & present danger” –“fighting words” –Incitement –Commercial speech

12. Through the Lens of Liberty Private property rights –Against takings without “just compensation” Eminent domain –Security against unreasonable searches and seizures –Security against deprivation of life, liberty or property without due process Due Process restraints –Defensive silence –Security against bearing witness against oneself –Habeas corpus –Legal counsel –Speedy & public trial –Jury trial –Security against double jeopardy of life or limb –No excessive bails or fines; no cruel and unusual punishments