Teacher Workshop
March 15, 2012
Supreme Court, Constitution,
Citizenship & Juries
Supreme Court
Article. III.
Section. 1. The judicial Power of the United States shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and
establish. The Judges, both of the supreme and inferior Courts, shall hold their
Offices during good Behaviour, and shall, at stated Times, receive for their Services a
Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be
made, under their Authority; — to all Cases affecting Ambassadors, other public
Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to
Controversies to which the United States shall be a Party; — to Controversies between
two or more States; — between a State and Citizens of another State — between Citizens of
different States; — between Citizens of the same State claiming Lands under Grants of
different States, and between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which
a State shall be Party, the supreme Court shall have original Jurisdiction. In all the
other Cases before mentioned, the supreme Court shall have appellate Jurisdiction,
both as to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.
Federalist #78
“It proves incontestably, that the judiciary is beyond
comparison the weakest of the three departments of
power; that it can never attack with success either of
the other two; and that all possible care is requisite to
enable it to defend itself against their attacks.”
“…the courts were designed to be an intermediate body
between the people and the legislature, in order,
among other things, to keep the latter within the limits
assigned to their authority. The interpretation of the
laws is the proper and peculiar province of the courts.”
Lifetime appointments
“…the courts of justice are to be considered as the
bulwarks of a limited Constitution against legislative
encroachments, this consideration will afford a strong
argument for the permanent tenure of judicial offices,
since nothing will contribute so much as this to that
independent spirit in the judges which must be
essential to the faithful performance of so arduous a
duty.
Defining Citizenship
Attributes?
Original intent?
Who are “the people?”
The people = citizens?
Constitution on Citizenship
Article I
Section 8: “The Congress shall have the Power…To
establish an uniform Rule of Naturalization…”
Article IV
Section 2: The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several
States.
Naturalization Act of 1790 (1 Stat. 103). The act provided…
“that any alien, being a free white person, who shall have resided within the
limits and under the jurisdiction of the United States for the term of two
years, may be admitted to become a citizen thereof, on application to any
common law court of record, in any one of the States wherein he shall have
resided for the term of one year at least, and making proof to the satisfaction
of such court, that he is a person of good character, and taking the oath or
affirmation prescribed by law, to support the Constitution of the United
States....”
Naturalization Act of 1795: residence requirement increased from two to five
years.
Naturalization Act of 1798: residence requirement increased from five to
fourteen years.
Repealed 1802
1855: alien wives of U.S. citizens automatically become U.S. citizens upon
marriage
14th Amendment 1868
“A status bestowed on those who are full members of a
community” (T.H. Marshall) British Sociologist, 1950
Includes: civil, political and social rights and obligations
Community = state?
Community ≠ state?
Aristotle: Citizens vs. other inhabitants (resident aliens,
slaves, women, children, seniors, most ordinary
workers)
right to attend the assembly, the council, sit on juries
Liberal Definition:
all citizens are the same
class, ethnicity, gender etc. irrelevant
Active vs passive
Depoliticization of citizenship?
From tax-financed benefits & services to private charity
& voluntary service?
Obligations and Rights
Voting? Jury?
Defending & dying
Role of the physical body
U.S.: professional military – not citizen’s duty?
From Subject to Citizen
Emergence of nation states
Increased immigration
Rise of individual rights
Naturalization laws
Documents
1. Martin v. Massachusetts, 1801 summary
2. & 2.1 Dred Scott v. John Sandford, 1857, Taney opinion
3. Dred Scott v. John Sandford, 1857, Curtis dissent
4. Ruben Flores-Villar case, LA Times, November 2010
5. Hernandez v. Texas, 1954
6. Thurgood Marshall speech, 1987
Women in early America
Free & of European descent
Deemed inferior – sanctified by law & tradition
origin?
Feme covert
Blackstone on coverture
“By marriage, the husband and wife are one person in law:
that is, the very being or legal existence of the woman is
suspended during the marriage, or at least is
incorporated and consolidated into that of the
husband…”
“The Paradox of Women’s Citizenship”
1. How do the case and the arguments it raises affect the
idea that is is “unfair and ahistorical to expect of the
revolutionary generation that it initiate radically new
conceptualizations of female citizenship?” (359)
Why did women who married foreigners lose their
U.S. citizenship?
What does it mean for an American woman to marry a
foreigner?
What is a woman’s relationship with the nation and the
state? Is it different from a man’s?
Legal cases as source in writing history
What is the relationship between legal cases, social
values and practices?
Women & Juries
“…the fair cross-section requirement is violated by the
systematic exclusion of women, who, in the judicial
district involved here, amounted to 53% of the citizens
eligible for jury service. This conclusion necessarily
entails the judgment that women are sufficiently
numerous and distinct from men, and that, if they are
systematically eliminated from jury panels, the Sixth
Amendment's fair cross-section requirement cannot be
satisfied.”
Taylor v Louisiana, 1975
“…Taylor was not a member of the excluded class, but
there is no rule that claims such as Taylor presents may
be made only by those defendants who are members of
the group excluded from jury service.”
Roger B. Taney (79)
Chief justice since 1836
Justices: five southerners, four
northerners
Decision pushed US to civil
war
One of the most intensely
studied SC decisions
Abuse of judicial power?
Unfortunate mistake?
Inevitable decision because
of constitutional ambiguity
regarding slavery?
Dred and Harriet Scott
Probably born in 1800, Virginia
Peter Blow – VA planter
Moved to Alabama
1830 – moved to Missouri as 1 of 6 slaves in Blow
family
1833: sold to physician John Emerson as body servant
to Illinois fort as assistant army surgeon
1. Dred Scott & family still owned by John F.A. Sanford
2. No person of African descent – free or enslaved – was a
U.S. citizen
3. Missouri Compromise of 1820 unconstitutional
Human aftermath
Dred Scott died September 17, 1858 of tuberculosis in
St. Louis – free man, after son of original owner freed
him
Harriet died short time later
Legal aftermath
MA, ME, VT, NH, RI - allowed African American
men to vote before 1843 and some earlier
CT, IA, WI, PA – allowed African American men to
vote after the Dred Scott decision
Paul Finkelman
George W. Bush on Dred Scott decision, Oct. 8, 2004
2nd Bush/Kerry debate
"I would pick somebody who would not allow their personal opinion to get in the way of
the law. I would pick somebody who would strictly interpret the Constitution of the
United States." "Let me give you a couple of examples, I guess, of the kind of person I
wouldn't pick.
I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a
school because it had the words "under God" in it. I think that's an example of a judge
allowing personal opinion to enter into the decision-making process as opposed to a
strict interpretation of the Constitution."
"Another example would be the Dred Scott case, which is where judges, years ago, said
that the Constitution allowed slavery because of personal property rights."
"That's a personal opinion. That's not what the Constitution says. The Constitution of
the United States says we're all -- you know, it doesn't say that. It doesn't speak to the
equality of America."
"And so, I would pick people that would be strict constructionists. We've got plenty of
lawmakers in Washington, D.C. Legislators make law; judges interpret the
Constitution."
Code for Roe v Wade?
Activist judges
Constitutional Amendment to overturn decision
no one can disagree?
Ruben Flores Villar
McCarran-Walter Act, 1952
Juries
origins not clear
Old French “jurer” – to swear
tool for king: juries gave evidence to King upon his request
Magna Carta, 1215
“No freeman is to be taken or imprisoned or disseised of his free
tenement or of his liberties or free customs, or outlawed or exiled
or in any way ruined, nor will we go against such a man or send
against him save by lawful judgement of his peers or by the law of
the land.”
“For a trivial offence, a free man shall be fined only in proportion
to the degree of his offence, and for a serious offence
correspondingly, but not so heavily as to deprive him of his
livelihood. In the same way, a merchant shall be spared his
merchandise, and a husbandman the implements of his
husbandry, if they fall upon the mercy of a royal court. None of
these fines shall be imposed except by the assessment on oath of
reputable men of the neighbourhood.”
Juries: findings of fact – not law
Historians
Chris Waldrep (Professor of History at San Francisco State
University) Jury Discrimination (University of Georgia Press, 2011)
Jury service represents rights – political & civil
Form of democratic participation – akin to voting
Exercise of responsible citizenship
Historians: mostly interested in voting as measure of participation
and racial discrimination
White America: often guarded jury participation more than ballot
Few votes cast do not make huge difference
individual jurors define crime & determine guilt or innocence
Long history of discrimination
Jury of peers: “a fairy tale?” or
Ideal - like all constitutional principles?
Strauder v West Virginia (1880)
black man convicted of murder by all-white jury; violated
rights of defendant
BUT: court did not say anything about rights of potential
jurors or stop states from excluding women or other groups:
a state "may confine the selection to males, to freeholders, to
citizens, to persons within certain ages, or to persons having
educational qualifications. We do not believe the
Fourteenth Amendment was ever intended to prohibit this.
... Its aim was against discrimination because of race or
color."
Norris v Alabama
Nine black youths convicted of raping two white women –
“Scottsboro Boys”
SC: overturned convictions: blacks systematically excluded
from grand jury – violation of 14th Amendment
Alabama: retried five; one sentenced to 75 years
One woman recanted her testimony
Escaped jail 1948 – Michigan
Convicted of killing black man in 1950
Hernandez v Texas
1954
Edna, TX
Pete Hernandez
Pete Hernandez, ca. 1954
Born 1926 in Jackson Co. TX
Mexican-born father; American-born mother
Sixth of eight children – only two literate
Several odd jobs
Drinker but not alcoholic
Slight limp; nice dresser
August 7, 1951
Went drinking with friend
Local tavern: gathering place for farm laborers & families
Espinoza: 41-year old tenant farmer there to hire workers
dispute
Hernandez retrieved gun from home – returned & shot
Espinoza
Ignacio Garcia, White But Not Equal (University of Arizona,
2009)
Ending?
Released on parole 1960
Died sometime in 1970s
Thurgood Marshall (1908-1993)
First African American
Supreme Court Justice
1967-1991
Popular thoughts about the
Constitution
Product of divine inspiration
Constitution as bible of civic religion
Super human wisdom
Over our heads, out of our reach
Untouchable & cannot be changed by us mere mortals
BUT: few Americans actually know what’s in it
Constitution is everywhere
Politicians claim to be true to Constitution
Office holders swear to preserve, protect & defend it
Daily lives: often in the news
Marshall 1987?
Credulity, Superstition and Fanaticism, 1762, William Hogarth
The March to Finchley, 1750-51, William Hogarth
Mrs. Ezekiel
Goldthwait, 1771, John
Singleton Copley
Mrs. Isaac Smith, 1762,
John Singleton Copley
Samuels Family, 1788, Johann Eckstein
Washington Family, 1789, Edward Savage
The Artist and his family, 1795, James Peale