The 1960 s: Conclusion

The 1960 s: Conclusion

Elected twice Richard Nixon 1968 when Johnson decides not to run 1972 by a landslide (first election in which 18-yearolds could vote) Opened diplomatic relations with China Initiated détente with Soviet Union Ended war in Vietnam But then Watergate He lacked integrity and left office in shame

Watergate Nixon covered up break-in to Democratic National Committee HQ He was threatened with certain impeachment Only one president impeached before: Andrew Johnson Resigned in 1974 A victory for the rule of law and constitutional government, but Reveals the vulnerability of the highest office to corruption

The 1960 s Legacy Pro Civil rights for minorities Greater equality for women Youthful idealism for peaceful solutions and service Constitution survives great tests Con Great civil unrest American foreign legacy tarnished Shift in national morals (Drug use and sexual immorality play havoc on health care and family life) Presidency tarnished

Do the 1960 s represent a reflection of or a defection from the vision of America s Founders? After Vietnam and Watergate, what is left of the founding legacy? What has changed? What, if anything, has been lost?

Common Misconceptions The Decade is defined by its most dramatic events: the War, the Civil Rights movement, the assassinations and protests However, throughout the decade, most voters supported the war in Vietnam. Most voters considered themselves at least somewhat conservative. Only a small fraction of the youth participated in riots, protests, or could be considered Hippies.

Summary: Characterizing a Decade The Sixties contained a promise, an augury of possibilities, an eruption of confident energy. Richard Goodwin The belief that American society could match the loftiness of its ideals. Most take the founding seriously. Push the idea of rights and liberties to a more extensive meaning of human development and freedom. Not freedom from but freedom to The idea of freedom as human flourishing. Disappointment and resentment developed when it could not meet those goals and reformulate them immediately for a new age. Reshapes again our understanding of what government is designed to encourage and achieve.

Judicial Review: Two Broad Schools of Judicial restraint Thought Policy making rests primarily with legislative and executive branches, and in that order Adjudicate the law according to the original intent of the Constitutional framers Lincoln: the intention of the law-giver is the law Judicial activism Public policy significantly shaped through court decisions Adjudicate the law according to moral/social ideals of current society (as perceived by sitting judges) ( living Constitution ). William Brennan (former SC justice): the Constitution is the lodestar for our aspirations

Chief Justice Earl Warren The Warren Court (1953-69) Advances in liberty during the 50 s and 60 s Brown v. Board of Education Segregation violates individual rights Miranda v. Arizona Rights against self-incrimination Engle v. Vitale Mandatory state prayer violation of the establishment clause in the 1 st Amendment.

Tensions: When Liberty meets Public Policy Tensions Brown v. Board of Education: Leads to forced busing of students from one school to another in some states. Miranda v. Arizona: criminals may be increasingly protected at the expense of the law abiding. Arrests invalidated if police officer fails to read the Miranda rights. Engle v. Vitale: concerns about establishment of one religion may impinge on the free exercise of that religion.

WHEN IS IT ACCEPTABLE FOR THE COURTS TO OVERRULE THE VOICE OF THE MAJORITY?

Protecting Inalienable Rights The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote. They depend on the outcome of no elections. Supreme Court Justice Robert Jackson, 1943

Preserving the Voice of the People I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court.... At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Abraham Lincoln, First Inaugural Address

Morality of Freedom Truth: All men are created equal Individual rights to life, liberty and pursuit of happiness are to be enjoyed and perpetuated for all others State has a duty to Protect life at every stage of life See that young life is reared to a state of responsible agency Education, the heterosexual family, minimal welfare needs

Newly Claimed Rights Right to fair wage Patients rights Right to die Right to privacy (HEPA, FERPA) Right to not be discriminated against on the basis of race, religion, gender, sexual orientation, etc. Right to clean air (antismoking) Right to choose (abortion) Right to gay marriage Right to education Right to adequate housing Right to health care

Majority Rule Con The greatest danger [to liberty is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority. James Madison Pro The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left. Abraham Lincoln

Constitutional Interpretation Conservative Strict (narrow) construction Judicial restraint Original intent Liberal Loose (broad) construction Judicial activism (judicial legislation) The living Constitution

Warren Court (1953-69) Griswold v. Connecticut, 1963 Is the right to privacy in the marital relationship protected by the Constitution despite the absence of specific language recognizing it?

Griswold v. Connecticut, 1963 Majority: Yes Douglas: The right of association (am.1), prohibitions against quartering troops (am. 3) and unreasonable searches (am. 4), the self-incrimination clause (am. 5), and the reservation to the people of unenumerated rights (am. 9) suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees in the Bill of Rights create penumbras, or zones, of privacy

Griswold v. Connecticut, 1963 Concurring opinions: Harlan: Yes, but instead of focusing on Bill of Rights, should have relied on due process clause of the 14 th am., finding this law violative of basic values implicit in the concept of ordered liberty.

Griswold v. Connecticut, 1963 Minority: No Black Dissenting Opinion: While the law is offensive, neither the Bill of Rights or Due Process Clause of the 14 th am. invalidates it. Both lead the court into imposing its own notions as to what are wise or unwise laws. What constitutes fundamental values this court is incapable of determining. Keeping the Constitution in tune with the times is accomplished only through the amendment process. Similarly, the due process clause is too imprecise and lends itself to subjective interpretation.

Tensions Griswold v. Connecticut: This decision sets the stage for Roe v. Wade The establishment of a right to privacy provides grounds to overturn anti-abortion laws in the states. These laws had made it a crime to procure an abortion except by medical advice to save the life of the mother.

Current Judicial Controversies Abortion Rights Gay Marriage

Roe v Wade (1973) This case seems to have caused the most political controversy in recent decades. Abortion rights Tension between individual rights and state interest. Tension between individual beliefs and beliefs of a majority.

Roe v. Wade Among the most divisive Supreme Court decisions in American history Raises major questions on judicial vs. legislative roles state vs. federal roles public vs. private morality

Roe v. Wade In view of a recent decision of the United States Supreme Court, we feel it necessary to restate the position of the Church on abortion in order that there be no misunderstanding of our attitude. The Church opposes abortion and counsels its members not to submit to or perform an abortion except in the rare cases where, in the opinion of competent medical counsel, the life or good health of the mother is seriously endangered or where the pregnancy was caused by rape and produces serious emotional trauma in the mother First Presidency, April 1973 December 11, 2006 26 Judicial Activism

What interests does the Court seek to balance in these kinds of cases? State Interests (Justice Blackmun) The state has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient. State has an interest in protecting prenatal life in assessing the state s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the state may assert interest beyond the protection of the pregnant woman alone.

The balancing act continued Individual interests (Justice Blackmun) The right to privacy is fundamental and is incorporated as part of the liberty protected by the 14 th amendment due process clause, which provides life, liberty, or property without due process of law. This right of privacy is broad enough to encompass a woman s decision whether or not to terminate her pregnancy. The detriment that the state would impose upon the pregnant woman by denying this choice altogether is apparent.

The balancing act defined Because the right to privacy is fundamental, regulation of it may be justified only by a compelling state interest and legislative enactments [regulating abortion] must be narrowly drawn to express only the legitimate state interests at stake.

The dissent: Justice Rehnquist It was a stretch of the imagination and legal interpretation to argue that a liberty referred to in the due process clause of the 14 th amendment included a right to privacy that supported abortion even if only during the first trimester of pregnancy. The Court necessarily has had to find within the scope of the 14 th amendment a right that was apparently completely unknown to the drafters of the amendment.

Ten Radical Changes Brought to American Law and Life by Roe v. Wade (Courtesy Lynn Wardle, BYU Law School)

1. Roe dramatically changed the substance of American abortion law a. Had been criminally prohibited for 200 years in America and 600 years before in England b. All states had restricted abortions before Roe c. Roe forces ALL states to legalize abortion on demand

Before Roe, the reason for the abortion, the woman s circumstances, and the condition of the fetus were critically important. Under Roe those considerations became almost entirely irrelevant. It is a woman s private choice period! Before Roe most abortions were illegal; after Roe most abortions were legal. Before Roe abortion for centuries had been fundamentally wrong; after Roe abortion became a fundamental right. The Roe doctrine was, and still is, the most radical in the world. (Wardle)

2. Roe resurrected and revived old judicial doctrine of substantive due process Suggests that majority made law is not law because of fundamental rights violations.

3. Roe altered American federalism Roe shifted regulatory power from the states to the federal government.

4. Roe shifted balance of power between legislative and judicial branches Again, raises questions of separation of powers and fundamentals of democracy

5. Roe undermined respect for the rule of law Roe suggests that the Supreme Court can overturn anything, has very few limits on power.

6. Roe distorted parent rights Roe progeny restricts parents rights to consultation or notification in abortion cases. Almost all state cases which allow judicial hearings to the minor child allow the abortion without parental notification

7. Roe distorted marriage and spousal interests Husbands and father s are not permitted to prevent the abortion of their child

8. Roe isolates pregnant women in their privacy Suggests men don t have an interest in procreation and its consequences Suggests society at large has no interest in whether children are born or not

9. Roe distorts free speech and freedom of conscience Restrictions on abortion protesters are often more severe than other protests, which courts have upheld

10. Roe changed the numbers, rates, rations and practices of abortion Abortions increased dramatically after Roe (but have tapered off slightly in very recent years)

Abortion Rates, pre/post Roe 1,600,000 1,400,000 1,200,000 1,000,000 800,000 600,000 400,000 200,000 0 '72, '80, '90 1972 1980 1990 Statistics from the Centers for Disease Control