Teacher Workshop March 15, 2012

1. Teacher Workshop March 15, 2012

2. Supreme Court, Constitution, Citizenship & Juries

3. 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.

4. 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.”

5. 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.

6. Defining Citizenship • Attributes? • Original intent? • Who are “the people?” • The people = citizens?

7. 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.

8. 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

9. “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?

10. 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

11. 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?

12. From Subject to Citizen • Emergence of nation states • Increased immigration • Rise of individual rights • Naturalization laws

13. 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

14. Women in early AmericaFree & 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…”

15. “The Paradox of Women’s Citizenship” • 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)

16. 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?

17. Legal cases as source in writing history • What is the relationship between legal cases, social values and practices?

18. 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

19. “…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.”

20. 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?

21. Dred and Harriet Scott

22. 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

23. Dred Scott & family still owned by John F.A. Sanford • No person of African descent – free or enslaved – was a U.S. citizen • Missouri Compromise of 1820 unconstitutional

25. 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

26. 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

27. George W. Bush on Dred Scott decision, Oct. 8, 20042nd 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."

28. Code for Roe v Wade? • Activist judges • Constitutional Amendment to overturn decision • no one can disagree?

29. Ruben Flores Villar • McCarran-Walter Act, 1952

30. Juriesorigins not clearOld French “jurer” – to sweartool for king: juries gave evidence to King upon his request

31. 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

32. 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

33. Long history of discrimination • Jury of peers: “a fairy tale?” or • Ideal - like all constitutional principles?

34. Strauderv 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."

35. 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

36. Hernandez v Texas 1954

37. Edna, TX

38. 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

40. 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)

41. Ending? • Released on parole 1960 • Died sometime in 1970s

42. Thurgood Marshall (1908-1993) • First African American Supreme Court Justice • 1967-1991

43. 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

44. 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?

45. Credulity, Superstition and Fanaticism, 1762, William Hogarth

46. The March to Finchley, 1750-51, William Hogarth

47. Mrs. Ezekiel Goldthwait, 1771, John Singleton Copley

48. Mrs. Isaac Smith, 1762, John Singleton Copley

49. Samuels Family, 1788, Johann Eckstein

50. Washington Family, 1789, Edward Savage