POLSCI FINAL Flashcards
LEGAL FORMALISM
the widespread belief that law constitutes a collection of
rules, issued from a lawmaker, which are widely obeyed by citizens or subjects (JUDGES = REFS, NOT POLICY MAKERS)
HAMILTON
Judiciary has no force or will, only judgement; least dangerous branch;
LIBERALISM
everyone was to be treated equally
under the law, including lawmakers themselves, who were to issue laws while themselves being
checked by the division of powers and obedience to constitutional norms; In principle at least no one was supposed to be “above” the law-including the sovereign
lawmakers themselves
DWORKIN
- Liberal
- offers the most sustained defense of the Warren
Court from a liberal perspective - Defended the importance of Judges who advanced liberal decisions, while arguing this was
not activism per se since they were giving the most objectively right interpretation of the law’s
guiding principles - “Taking Rights Seriously” 1977
- Thought highly of judges integrity
- “One right answer” to legal questions
CRITIQUES:
- unrealistic, biased
- courts didn’t end segregation
CHEMERINSKY
“Presumed Guilty”
-Draconian nature of American criminal justice policy
WARREN COURT
The Warren Court is largely seen to have operated between 1953-1969 (and perhaps slightly
beyond) and issued a large number of liberal decisions on issues ranging from race to contraception to prisoners rights
The most notable of these are of course Brown v Board of Topeka and Miranda v Arizona in
1966
PRINCIPLES VS POLICY
Dworkin Argument!!
- Policy = used by legislature, cost-benefit analysis for best decisions, no argument of principles
- Principles = used by judges, basic standards governing a
society which are to be applied to everyone without prejudice
TAKING RIGHTS SERIOUSLY
- Dworkin
- Argues that the rights in the US constitution are
intended as “trumps” which inhibit what a majority may do to any citizen - policy can be deliberated upon, but rights are protected as a matter of principle
- Democracy is a partnership of equals
BROWN V BOARD OF TOPEKA
the SCOTUS overturned 60 years of precedent and rejected
the strict “original” intention of the drafters of the 14th Amendment to argue that a more
principled understanding of equality required racial integration…insisting that segregation is inherently unequal
since it is intended to stamp millions with the badge of inferiority
PLESSY V FERGUSON
PRE-BROWN: SCOTUS had ruled that “equal protection”
wasn’t incompatible with the idea of “separate but equal”
In 1890 the state of Louisiana passed a restrictive law requiring whites and blacks to sit in separate railway cars
Homer Plessy, a civil rights activist, deliberately challenged the law by purchasing a first class ticket and sitting in the whites only area
SILENT MAJORITY
Nixon tactic that presented the conservative movement less as a
victimized band of outsiders and more as speaking for what he later called a “silent majority”
of Americans who were discontented with the changes taking place
(law & order)
CONSERVATIVE LEGAL MOVEMENT
1950s onward: Nixon-Ford and Reagan administrations pushed for “Strict Constitutionalism”, claiming the need for a more “neutral” judiciary not biased in liberals favor
STRICT CONSTITUTIONALISM
Nixon et al’s references to “strict” constitutionalism were mainly rhetorical devices
intended to convey that Justice Warren and the liberal court were not interpreting the law but
making policy
ORIGINALISM
Originalists hold that Judges should not apply their own moral or political judgements when interpreting the law, but instead interpret it according to the “original meaning” of the law when it was enacted; Judges are not supposed to make policy decisions for the American people directly, but instead simply adjudicate whether a given policy or law
aligns with the text of the constitution or not; If it does not align with the text of the constitution a policy or law cannot stand
INTENTIONALISM
JUSTICE ROBERT BORK
Bork argued that rather that the goal of a judge should be to interpret a text according to it original meaning, which could be found in the “intentions” of the lawmakers
This was especially important when interpreting the Constitution, and Bork held Judges needed to be especially respectful of the intentions of the founders
TEXTUALISM
JUSTICE ANTONIN SCALIA
the “original meaning” of the law lay in the text itself. A Judge was to read the
language of the law to coincide with the plain meaning it would have had at the time of its
enactment; This meant not interpreting the language in a way acceptable to modern people, but instead
drawing on sources like history or even dictionaries to ascertain what “arms” or “equality” would have meant in the 18th and 19th centuries
“DEAD, DEAD DOC”
LEGAL REALISM
For legal realists the formalist had largely misunderstood the nature of law, and consequently
what it was that judges and legal officials do
For realists, Judges are more like senior government officials tasked with resolving a wide range of social problems. To do so they very much need to engage in the kind of consequentialist reasoning Dworkin and Scalia would reject in unison
PRAGMATISM
the idea that “truth” was less a matter of accurately
explaining reality and more different ways of describing it that happened to be useful to fulfilling human objectives
O.W. HOLMES
REALISM
In The Common Law Holmes rejects the idea that law can be conceived as a “deductive”
science, where there are a few simple rules whose application flows logically from their
axioms; Instead law was eminently created to serve human purposes, and is stamped by the
experiences of a given society over its history and development; One can see this in particular throughout the common law, which consists of Judges making
decisions and setting precedents largely motivated by their sense of what was important, acceptable, or required at any given time
THE PATH OF LAW
At the end of the day what really motivates a Judge to make the decision they do is an eyes to consequences.
They make a judgement based upon what they think will produce the most good for society, and then effectively encase this consequentialist judgement in language that sounds objective and axiomatic even though it isn’t in fact
Being an effective legal actor means having a good sense of how Judges think as
individuals, and what kinds of social outcomes they believe it is important to promote. This will of course be different depending on the Judge, which shows how little law has to do
with strict objectivity
Judges should be educated on social science!
LOCHNER V NY
In 1899 a German baker was charged with violating New York’s Bakeshop Act of 1895,
which imposed limits on the working day for bakers
Was intended to incentivize bakeries to pay living wages to workers while not compelling them to work for long hours. Lochner argued this violated rights to freedom of contract under
due process law guaranteed by the Fifth and Fourteenth Amendment
In a 5-4 decision a majority on the Supreme Court ruled in favor of Mr. Lochner, and
removed restrictions on the length of the working day
O.W Holmes memorably dissented
BUCK V BELL
In September 1924 Dr. Albert Priddy filed a petition to sterilize Carrie Buck, an 18 year old woman whom he claimed had the mental intelligence of a 9 year old. Later taken up by the
new superintendent John Bell
Upheld Virginia’s forced sterilization laws, which had been implemented to try and inhibit reproduction by undesirable groups for eugenic purposes; Holmes observed that Carrie Buck came from a long line of unintelligent family members, many of whom had struggled to become productive members of society; Held that it was in the interest of society to inhibit such individuals from breeding, even if that
entailed violating their rights to bodily autonomy
ROBERTS COURT
2005-ONWARD
Appointed by Bush, oversaw a series of transformative conservative decisions
KIMBERLE CRENSHAW
track-race thory: 200 yeards difference in starting points
