RoR: Forum

Post 0

Tuesday, October 7 - 10:21pm

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Some Landmark Supreme Court Cases
[personal thoughts after viewing "landmarkcases.org" & "www.constitution.org/ussc/usscdeci.htm"]

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1
Georgia v. Brailsford, 3 U.S. 1 (Dall.) (1794) — Jury has power to judge law in bringing general verdict.

My thought:
Jury nullification! Yes!!!
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2
Calder v. Bull, 3 U.S. 386 (Dall.) (1798) — Supreme Court has jurisdiction to overrule unconstitutional state legislation, such as ex post facto laws.

My thought:
States don't have the power to be unconstitutional! Yes!!!
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3
Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803) — Courts must not sustain unconstitutional acts of government.
Marbury v. Madison (1803)
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."
— Chief Justice John Marshall
My thought:
Government doesn't have the power to be unconstitutional! Yes!!!
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4
McCulloch v. Maryland, 17 U.S. 316 (1819) — National Bank was tax-exempt federal agency.
McCulloch v. Maryland (1819)
". . . Although, among the enumerated powers of government, we do not find the word "bank" or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies . . . But it may with great reason be contended, that a government, entrusted with such ample powers . . . must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. . . . "

— Chief Justice John Marshall

My thought:
A "Federal" bank? Nooooooooooooooooooooooooooooo!!!
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5
Gibbons v. Ogden (1824)
". . . Few things were better known, than the immediate causes which led to the adoption of the present constitution . . . that the prevailing motive was to regulate commerce; to rescue it from the embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law."

— Chief Justice John Marshall

My thought:
Prevailing motive to regulate commerce??? John Marshall should have been shot on the spot.
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6
Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833) — Federal courts do not have jurisdiction in cases in which a citizen sues his state for violation of any of the Bill of Rights.

My thought:
So, if you sue the state for violating your rights, then ... the state decides if it's guilty or not??? What a crock!
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7
Games v. Stiles ex dem Dunn, 39 U.S. 322 (1840) — If the bench and jury disagree on a point of law, the opinion of the bench prevails.

My thought:
But what about jury nullification??? Can the judge lay blame & guilt, but the jury still set penalty?
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8
Dred Scott v. Sandford (1857)
". . . . . . We think they [people of African ancestry] are . . . not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. . . ."

— Chief Justice Roger B. Taney,
speaking for the majority

My thought:
This decision sounds racist.
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9
Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868) — Congress may remove jurisdiction from the Supreme Court.

My thought:
Congress nullification???
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10
Hurtado v. California, 110 U.S. 516 (1884) — States not required to indict by grand jury.

My thought:
But what about a jury of peers (i.e., one not so grand)?
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11
Logan v. U.S., 144 U.S. 263 (1892) — Congress may prohibit injury or death of persons in custody of U.S. officials, caused by any person, enforceable by deprivation of life or liberty.

My thought:
So, Congress has the final word on torture then?
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12
Sparf & Hansen v. United States, 156 U.S. 51, 64 (1895) — Jurors do not need to be informed of their power to judge the law in bringing a general verdict.

My thought:
So, mum's-the-word on jury nullification?!
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13
Plessy v. Ferguson (1896)
"The object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either."
—Justice Henry Billings Brown,
speaking for the majority

My thought:
So, segregation's legal?
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14
Twining v. New Jersey, 211 U.S. 78 (1908) — State not required to protect right against self-incrimination.

My thought:
New Jersey precursor to federal Miranda rights?
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15
Palko v. Connecticut, 302 U.S. 319 (1937) — State not required to protect right against double jeopardy.

My thought:
So, you CAN be tried twice for the same crime???
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16
Korematsu v. United States (1944)
"As long as my record stands in federal court, any American citizen can be held in prison or concentration camps without trial or hearing.I would like to see the government admit they were wrong and do something about it, so this will never happen again to any American citizen of any race, creed, or color."
—Fred Korematsu (1983), on his decision to again
challenge his conviction 40 years later

My thought:
Precursor to Guantanamo?
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17
Adamson v. California, 332 U.S. 46 (1947) — Decision of an accused not to testify may be used against him in a state criminal trial.

My thought:
So, Miranda rights aren't necessarily for a suspect's benefit?
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18
Brown v. Board of Education (1954)
"We conclude that the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."
—Chief Justice Earl Warren

My thought:
So, segregation ISN'T legal, then?
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19
Reid v. Covert, 354 U.S. 1 (1957) — Treaties do not confer powers not authorized by Constitution, and in particular, over civilians outside U.S. territory.

My thought:
So, the government can't make treaties not already authorized or enumerated by the Constitution?
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20
Mapp v. Ohio (1961)
" . . . our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and common sense."

—Justice Clark, speaking for the majority

My thought:
So, "sobriety check-points" are unconstitutional?
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21
Gideon v. Wainwright, 372 U.S. 335 (1963) — State required to provide defense counsel to accused unable to hire his own.

My thought:
But I heard of a Florida case where they ruled against this!
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22
Miranda v. Arizona (1966)
". . . the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination."

—Chief Justice Earl Warren,
speaking for the majority

My thought:
So, if you don't have council (one of the law's "procedural safeguards"), then nothing you say can incriminate you?
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23
Tinker v. Des Moines (1969)
". . . In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."

— Justice Fortas, speaking for the majority

My thought:
So, the Berkeley students could perform sit-ins and block traffic?
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24
Roe v. Wade (1973)
"We … acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires." -
- Justice Blackmun (1973),
majority opinion in Roe v. Wade

My thought:
This decision could have been handed-down with much more objectively-justified force than that.
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25
United States v. Nixon (1974)
". . . Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the . . . [absolute] confidentiality of presidential communications."

— Chief Justice Warren Burger

My thought:
So we have a right to see the emails and the minutes to meetings like energy sector meetings with presidents and vice presidents?
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26
Buckley v. Valeo, 424 U.S. 1 (1976) — Campaign spending may not be limited, but contributions may be, and the identity of contributors may be required to be disclosed, and anonymous contributors prohibited.

My thought:
But what if you are a harassed-though-fundamentally-unethical socialist party?
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27
Regents of the University of California v. Bakke (1978)
" . . . Race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats."

— Justice Powell, Speaking for the Court

My thought:
So, being black really IS cool, then (I knew it!)?
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28
Brown v. Socialist Workers', 459 U.S. 87 (1982) — Minor party which has historically been harassed is exempt from campaign disclosure requirements.

My thought:
Aha! So it's true, then, that if you're so immoral that you're harassed, then the law doesn't apply to you?!
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29
New Jersey v. T.L.O. (1985)
". . . The warrant requirement, in particular, is unsuited to the school environment . . . . [T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search . . . Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. "

—Justice Byron White, speaking for the majority

My thought:
I think I agree with this decision.
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30
Hazelwood v. Kuhlmeier (1988)
" . . . educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."

—Justice White,
speaking for the majority

My thought:
So, teachers can dress students up in brown shirts and have them recite Obama chants?
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31
Texas v. Johnson (1989)
"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . ."

—Justice William Brennan,
speaking for the majority

My thought:
So, does this mean that conservative talk radio can never be taken off of the air?
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32
Hafer v. Melo, 502 U.S. 21 (1991) — State officers may be held personally liable for damages based upon actions taken in their official capacities.

My thought:
So, if you're a cop in a cop-chase and you cause some damage then ...
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33
Soldal v. Cook County, 506 U.S. 56 (1992) — State or local officials who stand by or protect an unlawful eviction or seizure are liable for damages under 42 USC 1983.

My thought:
So if a supreme court ruled the wrong way as in Kelo, then do we get to take the supreme court judges' homes?
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34
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) — Advocacy publication may be anonymous, and is exempt from campaign disclosure statute.

My thought:
I think I agree with this decision -- but I'm not sure.
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35
Bennis v. Michigan, 517 U.S. 1163 (1996) — Property used in a crime may be forfeited even though partly or wholly owned by an innocent third party.

My thought:
So, the moral of the story is to never loan your luxury car to crooked "friend", or it may be "forfeited." I don't like this decision.
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36
Caron v. United States, 524 U.S. 308 (1998) — Even if a State permitted an offender to have the guns he possessed, federal law may use the State’s determination that the offender is more dangerous than law-abiding citizens to impose its own felony conviction.

My thought:
So, gun possession is ultimately a federal issue -- no matter what state laws that may exist?
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37
United States v. Morrison, Docket 99-5 (Decided May 15, 2000) — Congress lacked authority to enact a law which provides a federal civil remedy for the victims of gender-motivated violence.

My thought:
What's a "federal civil remedy" for wife-beating (assuming spousal battery is the subject)?
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Ed

Post 1

Tuesday, October 7 - 10:30pm

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I just realized that decision 37 above might have been about hate-crimes against gays. If so, my question of what a "federal civil remedy" is still stands.

Ed

Post 2

Wednesday, October 8 - 11:58am

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Hi Ed,

Amusing run-down. I'm surprised Chevron and Eerie aren't on there. Two very important cases.

Most of your questions seemed rhetorical, but I think you want that last one answered, so. . . Congress needs a constitutional basis for making law. Congress tried to use the Commerce Clause as basis for their law on violence against women. It didn't work. The Court said violence against women is too attenuated from commerce for Congress to use the Commerce Clause as a basis for their violence against women law. This was one of the first cases after several decades to limit the breadth of the Commerce Clause.

Jordan

Post 3

Wednesday, October 8 - 12:42pm

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State officers may be held personally liable for damages based upon actions taken in their official capacities.

Good - that means that if my sect 8 inspector dislikes all the books and shelves in my place, deeming them a 'fire hazard', and flunks the inspection - I can sue the shit out of him for the revoking?...

Post 4

Wednesday, October 8 - 4:43pm

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Thanks, Jordan!

I was actually "fishing" for comments on all of them -- but I realize few would care to take all of that bait. Besides commenting on anything you feel like, would you say a couple more sentences about Chevron and Erie?

I'm getting interested in law now.

Ed

Post 5

Thursday, October 9 - 12:55pm

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Cool. Law is fascinating! Erie and Chevron are well worth appreciating, the latter being much more interesting for Objectivists, I dare say.

Erie v. Tompkins (1938). This was one of the biggest "choice of law" cases. What law do we apply and when? It's very hard to whittle the Erie decision down into a few soundbytes, but here's the story. This guy Tompkins is a Pennsylvania citizen. He's walking along a railroad when SMACK -- something protruding from the side of a passing train gives him a good whack. He sues the railroad. The thing is, the railroad is incorporated in New York. Tompkins sues the railroad in New York federal court rather than in Pennsylvania. Why? Because Pennsylvania common law favored the railroad, saying the railroad is off the hook so long as its negligence toward Tomkins isn't "wanton or willful." New York law on the other hand would favor Tompkins since New York common law didn't require gross negligence in order for Tompkins to win.

Now I'll skip the Supreme Court's ruling. It curbed "forum-shopping" -- the act of shopping around for the forum whose laws are most favorable to your case. It did this by requiring federal courts to apply state common law ("judge-made" law) to any substantive issue where no federal statute was on point. But the federal courts would apply federal law (if any) on any procedural issue. This can be very confusing! And I'll spare you the details of how we are supposed to sort it out. Suffice it to say that the forum in which you file your case really matters! You have to pay careful attention to which procedural laws and which substantive laws work best for you. Talk about competing governments! You'd think we were in anarchist state!

So how did Tompkins end up? I believe the case was remanded to the federal court in New York, and the procedural rules of that court at that time instructed the court to apply the substantive law of the place where the accident occurred. The accident occurred in Pennsylvania, so Tompkins' case was chucked.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984). This was one of the biggest cases on how to deal with government agency regulations. Courts can review acts of Congress, but can they review acts of agencies? Here's the story: The Clean Air Act told the Environmental Protection Agency (EPA) to make regulations on "sources" that pollute the air. Under Carter, the EPA defined "sources" one way. Under Reagan, the EPA about-faced and defined "sources" another way. The Natural Resources Defense Council (NRDC) challenged the EPA's re-definition. Chevron jumped into the fray because it was affected by the outcome; it could pollute more under the new EPA definition.

We skip again to the Supreme Court ruling. It upheld the EPA's about-face. The Court said that if a congressional statute's meaning is clear, then an agency cannot diverge from that meaning. But if the statute's meaning is unclear or ambiguous, then the agency is allowed to interpret it so long as the agency's interpretation is reasonable or permissible. And if the agency's interpretation is reasonable or permission, the court must defer to it. So "source" was ambiguous, and the EPA would define it one way one year, then switch to define it another way, so long as the switch was reasonable.

This gave agencies tons of power and greatly curbed the power of the courts. I have to say, most congressional statutes can be construed as ambiguous, and there is great flexibility in what counts as a "reasonable" interpretation of an ambiguous statute. In my view, this allows agencies to get away with all sorts of mischief. Agencies have no constitutional basis, yet come off as the biggest and most powerful branch of government we have!

So there you go!
Jordan

Post 6

Thursday, October 9 - 2:49pm

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On the Chevron v. Natural Resources Defense Council, it is too bad the Supremes didn't hold that lower courts were obliged to knock down any regulation that was so unclear as to allow differing, yet reasonable interpretations. They could have done so on the the grounds of unequal protection - forcing law makers and regulators to be precise.

Elements of contract law reaching back into English common law require a meeting of the minds before one can have a contract. Not merely offer and acceptance, but that sufficient clarity exists in the terms that a common understanding is possible.

The same principle would be a fine way to view all laws and regulations. If a law can't be clearly understood, it isn't serving a primary purpose of law as such and should be tossed out. It is the basic injustice of holding a person responsible without any way of knowing what is entailed in being responsible.

Post 7

Thursday, October 9 - 4:08pm

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Hi Steve,

It's trivia, but the law in Old England actually rejected the need for minds to meet -- and for reasons of (bizarre) objectivity, nonetheless! Parties were bound to a contract, regardless of whether either intended to be bounded by it, if the terms of the contract objectively bound them. That is, courts would not investigate the parties' intent when gleaning the meaning of contested contract terms. Thankfully, modern courts are, bit by bit, shifting toward a more truthful requirement of the meeting of the minds.

And let's be fair now. Our courts are around to resolve ambiguities in the law. That's the beauty of our common law system. But the Chevron case screwed with the balance by taking away the courts' ability to resolve those ambiguities where agencies have already spoken. Given Chevron, we must modify Justice Marshall's famous quote from Marbury v. Madison: It is emphatically the province and duty of the judicial department to say what the law is. . .unless some piddley little agency says what it is first!

Jordan

Post 8

Thursday, October 9 - 6:48pm

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Jordan,

I'm no expert in law. I could easily be wrong about the history of 'meeting of the mind' and common law. My understanding was that 'offer' and 'acceptance' were the key elements of 'meeting of the mind' - that they constituted 'agreement' - and agreement is 'meeting of the minds' and that goes back to common law, early in England. I wasn't speaking to 'intent' or being 'bound.'

And I thought that one of implications of fair law is that it be without ambiguity too great to be reliably resolved.

We are in agreement... I think - a court's purpose is resolve ambiguities - but only if the law or regulation isn't so badly written as to make that impossible.

Post 9

Thursday, October 9 - 10:44pm

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Hi Steve,

Offer and acceptance are necessary (though not sufficient) for a *contract*, not necessarily for a "meeting of the minds." "Meeting of the minds" refers to mutual understanding of the contract's terms. Perhaps counter-intuitively, mutual understanding of a contract's terms usually was not, and often is not, necessary!

Steve says: "And I thought that one of implications of fair law is that it be without ambiguity too great to be reliably resolved."

The only time (that I know of) that the court kills an ambiguous statute is when a constitutional matter is at play. Otherwise, the courts have loads of clever methods for resolving virtually every other ambiguity under the sun!

Jordan

Post 10

Thursday, October 9 - 11:04pm

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Jordan,

I said I wasn't an expert in law, and I'm not. And I'm feeling frustrated. I talked about a 'meeting of the minds' and you come back with old English law holding people as bound to a contract even if wasn't there that intention. I reply that I was discussing offer and acceptance - because they constitute the agreement and that is what meeting of the minds applied to. And you reply that meeting of mind is about mutual understanding of the terms - yes, agreement, offer and acceptance. I gave a layman's opinion about the philosophy of law, about fairness requiring a lack of serious ambiguity and you came back with what the Supreme court will or won't hear. We aren't having a meeting of the minds.

You ARE a lawyer... I get that now.

Post 11

Friday, October 10 - 10:16am

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I'm sorry, Steve. I get carried away with exacting the legal minutiae sometimes. "Meeting of the minds" is not offer and acceptance. But if I step back from the legalese, I think I take your point. And I do like your bit about nixing uber-unclear laws.

-Jordan

Post 12

Saturday, October 11 - 8:41pm

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Hi Ed,

Ok. I'll play around in here some more.

Jury nullification. Juries do have the power to acquit defendants despite the law against them. See Georgia v. Brailsford. This was nice back in the day where juries refused to sentence defendants who would have otherwise probably been found guilty of violating the Fugitive Slave Act. And I think Games v. Stiles got it right when it said judges can override juries on points of law. I think that's fair because (1) as Marshall says, the judges are supposed to say what the law is, and in contrast, (2) jurors are just supposed to find and weigh facts. Other cases have undermined jury nullification far worse than the Games case. Sparf v. U.S. said that the court has no duty to inform the jury of its power, and U.S. v. Moylan went one step further and said courts can refuse jury instructions that mention jury nullification. In practice, if potential jurors give off the slightest hint during voir dire that they will not uphold the law, then they'll be kicked swiftly out of the pool.

Jordan

Post 13

Saturday, October 11 - 9:01pm

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Ok - now double jeopardy.

Ed, I think you plucked the wrong nugget from Palko v. Connecticut. That case is important because it was Justice Cardozo's first crack at "selective incorporation." That is, he carved out the idea that the due process clause of the 14th Amendment should incorporate the rights in bill of rights that are essential to our "scheme of ordered liberty" when those rights are being adjudicated. He concluded that the federal right against double jeopardy wasn't essential to our scheme. But rest assured, Benton v. Maryland overruled Palko and incorporated the 5th Amendment's protection against double jeopardy. You cannot be tried twice for the same crime, be it federal or state.

Jordan

(Edited by Jordan on 10/11, 9:03pm)

Post 14

Saturday, October 11 - 9:45pm

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Now onto Treaties. Regarding Reid v. Covert, your take was:

So, the government can't make treaties not already authorized or enumerated by the Constitution?

Reid v. Covert says (a) treaties don't trump the Constitution; (2) U.S. civilians are not be tried by military courts; and (3) U.S. citizens abroad retain their protections under the bill of rights; the Constitution travels with you!

If it helps, Article II, Section 2 gives the president the power to make treaties, with advice and consent and 2/3rds approval by the Senate. Article I section 8 says states are not allowed to make treaties. And Article VI says treaties are the supreme law of the land, which is interpreted to mean that they carry the same weight as federal statutes.

I should also mention that presidential executive agreements have been treated as having similar status to treaties, except that treaties can trump conflicting, previously enacted federal statutes, whilst executive agreements cannot. The president has no explicit constitutional authority to make such agreements but has instead found the authority tucked away in the president's "executive powers" to execute U.S. law under Article II, sections 1 and 3, respectively.

I'll stop there.
Jordan

Post 15

Sunday, October 12 - 5:25am

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Jordan,

This was nice back in the day where juries refused to sentence defendants who would have otherwise probably been found guilty of violating the Fugitive Slave Act.

Indeed!

And I think Games v. Stiles got it right when it said judges can override juries on points of law. I think that's fair because (1) as Marshall says, the judges are supposed to say what the law is, and in contrast, (2) jurors are just supposed to find and weigh facts.

Wait a second, to me it sounds like a judge overriding a joint on a point of law is semantics -- even if a judge proclaims that someone violated law, the jury can still acquit. It's my understanding that the original jury nullification was where a jury can both decide the law and decide the punishment, and that the new jury nullification is where the judge decides the law -- but the jury still decides whether and how much it applies (in the form of punishment). The judge decides your criminal record, the jury decides your jail time.

Is that right?

Sparf v. U.S. said that the court has no duty to inform the jury of its power, and U.S. v. Moylan went one step further and said courts can refuse jury instructions that mention jury nullification. In practice, if potential jurors give off the slightest hint during voir dire that they will not uphold the law, then they'll be kicked swiftly out of the pool.

Aaaaaaaagh! I think that this hurts American law. It's like those income tax cases you hear about -- where one person out of a thousand successfully makes the case that there's no law forcing them to pay income taxes (but those rare successes a kept quiet).

Ed

(Edited by Ed Thompson on 10/12, 5:26am)

Post 16

Sunday, October 12 - 5:36am

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Jordan,

That case is important because it was Justice Cardozo's first crack at "selective incorporation." That is, he carved out the idea that the due process clause of the 14th Amendment should incorporate the rights in bill of rights that are essential to our "scheme of ordered liberty" when those rights are being adjudicated. He concluded that the federal right against double jeopardy wasn't essential to our scheme. But rest assured, Benton v. Maryland overruled Palko and incorporated the 5th Amendment's protection against double jeopardy.

I'm confused.

:-/

Ed

Post 17

Sunday, October 12 - 5:40am

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Jordan,

Reid v. Covert says (a) treaties don't trump the Constitution; (2) U.S. civilians are not be tried by military courts; and (3) U.S. citizens abroad retain their protections under the bill of rights; the Constitution travels with you!
The Constitution travels with you? What a wonderful thing!

The president has no explicit constitutional authority to make such agreements but has instead found the authority tucked away in the president's "executive powers" to execute U.S. law under Article II, sections 1 and 3, respectively.

Leave a crack and the water will find it, huh?

;-)

Ed

Post 18

Sunday, October 12 - 10:02am

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Hello Ed,

Wait a second, to me it sounds like a judge overriding a [jury] on a point of law is semantics -- even if a judge proclaims that someone violated law, the jury can still acquit. It's my understanding that the original jury nullification was where a jury can both decide the law and decide the punishment, and that the new jury nullification is where the judge decides the law -- but the jury still decides whether and how much it applies (in the form of punishment). The judge decides your criminal record, the jury decides your jail time.

Is that right?

I suspect you're pretty much right although I'm not entirely sure how early jury nullifcation worked. I think it simply allowed juries to acquit defendants when the law and evidence at play disfavored those defendants, and juries were not allowed to invent a defendant's crime or punishment in disregard of the law. I'm not sure whether early juries decided questions of law. But the difference between questions of law and fact is significant. In any event, nowadays, the judge does decide the law, and the jury does decide whether and how much it applies, but not just in punishment but in culpability as well. The thing is, if the jury decides punishment and culpability in disregard of the law (which isn't necessarily jury nullification), then the judge can set the juries' decision aside.

I'm on the fence with regard to Sparf and Moylan. On the one hand, I think it'd be nice for the jury to have at least the possibility of being told it can nullify the law. On the other, I want juries to play by the law and not take matters into their own hands. This give us a more predictable and equitable justice system.

***

Now about Benton and Palko. "Selective incorporation" is very important. If you read the Bill of Rights (first nine or ten amendments), you'll see that they protect citizens from the federal government, not automatically from state governments. So for example, the First Amendment originally protected your free speech rights from federal interference but not from state interference. This was "federalism" plain and simple.

Meanwhile, courts were developing jurisprudence over the 14th Amendment, which says that no State shall "deprive any person of life, liberty, or property, without due process of law." (Underlines added.) The questions were: what liberties are we talking about here; what process is due? The courts answered: the liberties due are at least those essential liberties as laid out in the Bill of Rights. So the courts began to apply the Bill of Rights to the states, not just to the fed, by saying that the essential liberties under the Bill of Rights were the same liberties that were intended to be granted under the Due Process Clause of the 14th Amendment. In other words, the courts incorporated (i.e., included or folded) the Bill of Rights into the liberties mentioned in the 14th Amendment. Any help?

Leave a crack and the water will find it, huh?

Ha! Well put.

Jordan

Post 19

Sunday, October 12 - 12:16pm

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Thanks, Jordan. That was very helpful.

Ed

A layman's look at law ...