civil liberties (cont’d) june 4th, 2003. security and civil liberties – an altered balance...

Civil LibertiesCivil Liberties(cont’d)(cont’d)

June 4th, 2003June 4th, 2003

Security and Civil Liberties – An Security and Civil Liberties – An Altered Balance Post-9/11Altered Balance Post-9/11

• order/security vs. individual libertyorder/security vs. individual liberty

• immediate government reaction to 9/11immediate government reaction to 9/11• detention of non-citizens without laying chargesdetention of non-citizens without laying charges

• order that solicitor-client privilege would not be order that solicitor-client privilege would not be honored by Justice Departmenthonored by Justice Department

• refusing to provide name, location of detention or refusing to provide name, location of detention or numbers of those arrestednumbers of those arrested

– overwhelming public supportoverwhelming public support• 86% viewing govt’s action as appropriate (Newsweek)86% viewing govt’s action as appropriate (Newsweek)


• USA PATRIOT ActUSA PATRIOT Act– Uniting and Strengthening America by Uniting and Strengthening America by

Providing Appropriate Tools Required to Providing Appropriate Tools Required to Intercept and Obstruct TerrorismIntercept and Obstruct Terrorism


• USA PATRIOT ActUSA PATRIOT Act– ratification of Ashcroft responseratification of Ashcroft response

• broadened government ability to implement broadened government ability to implement wiretappingwiretapping

• surveillance of emails and computerssurveillance of emails and computers• power to detain and deport foreignerspower to detain and deport foreigners• increased power to detect money launderingincreased power to detect money laundering

– received overwhelming support in both received overwhelming support in both House and SenateHouse and Senate

The Constitution of the United The Constitution of the United States of America (1787)States of America (1787)

““We the peopleWe the people of the United States, in Order of the United States, in Order to form a more perfect Union, establish to form a more perfect Union, establish Justice, insure domestic tranquility, provide Justice, insure domestic tranquility, provide for the common defence, promote the for the common defence, promote the general welfare, and secure the Blessings of general welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the ordain and establish this Constitution for the United States of America.”United States of America.”

Main Point!Main Point!

• there is a strong tension between there is a strong tension between individual rights and collective well-individual rights and collective well-being in the American political systembeing in the American political system

• overall trend has been for Americans to overall trend has been for Americans to increasingly view themselves as rights-increasingly view themselves as rights-bearing individuals and to resolve bearing individuals and to resolve political disputes in this mannerpolitical disputes in this manner

June 4June 4thth, 2003, 2003

THE UNITED STATES THE UNITED STATES SUPREME COURTSUPREME COURT

Supreme Court:Supreme Court:FunctionsFunctions

• final “Court of Appeal”final “Court of Appeal”

• adjudicates disputes between government adjudicates disputes between government branchesbranches

• adjudicate between orders of governmentadjudicate between orders of government

• adjudicate between governments (both adjudicate between governments (both state and federal) and citizensstate and federal) and citizens– the Bill of Rightsthe Bill of Rights

Declare Laws Declare Laws UnconstitutionalUnconstitutional

Declare Acts Declare Acts UnconstitutionalUnconstitutional

OVERVIEW: FORMAL CHECKS AND BALANCES

Checking the Other BranchesChecking the Other Branches

• Supreme Court and CongressSupreme Court and Congress– what happens when the two disagreewhat happens when the two disagree

• Congress accepts Supreme Court decisionCongress accepts Supreme Court decision• constitutional amendment (rare)constitutional amendment (rare)• pass slightly revised lawpass slightly revised law

– often at Supreme Court’s suggestionoften at Supreme Court’s suggestion

• mainly depends on the political popularity of mainly depends on the political popularity of what Congress is doing!what Congress is doing!

Checking the Other BranchesChecking the Other Branches• Supreme Court and PresidentSupreme Court and President

– few major rulings curbing presidential powerfew major rulings curbing presidential power• constitutional language re: powers of the constitutional language re: powers of the

president is vaguepresident is vague• aura of presidencyaura of presidency

– Court has upheld sweeping presidential Court has upheld sweeping presidential powers in foreign and military affairspowers in foreign and military affairs

– shield of joint actionshield of joint action• president strongest against judicial challenge president strongest against judicial challenge

when acting in conjunction with Congresswhen acting in conjunction with Congress

Power of the CourtPower of the Court

““The Court’s only effective power is the The Court’s only effective power is the power to persuade.” Henry J. Abraham, power to persuade.” Henry J. Abraham, 1968.1968.

confer legitimacyconfer legitimacy where does the legitimacy of the court rest?where does the legitimacy of the court rest?

– impartialityimpartiality– decisivenessdecisiveness– fit with broader political cultural consensusfit with broader political cultural consensus

Impartiality and the Practice of Impartiality and the Practice of Decision-MakingDecision-Making

• Control over DocketControl over Docket– limited to cases put to the Supreme Courtlimited to cases put to the Supreme Court

• Judicial ReasoningJudicial Reasoning

• Rules of RestraintRules of Restraint

Styles of Decision-MakingStyles of Decision-Making

• judicial restraint vs. judicial activismjudicial restraint vs. judicial activism

• strict constructionism vs. non-strict constructionism vs. non-constructionismconstructionism

Constraints on the CourtsConstraints on the Courts

• decision-making rulesdecision-making rules

• composition/appointmentcomposition/appointment– independence from Presidentindependence from President

• nomination must be ratified by Senatenomination must be ratified by Senate• once appointed, President cannot removeonce appointed, President cannot remove

– tenure -- lifetenure -- life

• President only has limited opportunities to President only has limited opportunities to appointappoint

Confirms Nominations, Impeach

Nominates Judges

OVERVIEW: FORMAL CHECKS AND BALANCES

Constraints on the CourtsConstraints on the Courts

• decision-making rulesdecision-making rules

• composition/appointmentcomposition/appointment– independence from Presidentindependence from President

• nomination must be ratified by Senatenomination must be ratified by Senate• once appointed, President cannot removeonce appointed, President cannot remove

– tenure -- lifetenure -- life

• President only has limited opportunities to President only has limited opportunities to appointappoint

• concern with legitimacyconcern with legitimacy

Composition of the US Supreme CourtComposition of the US Supreme Court

Liberal/ModerateLiberal/Moderate

Swing VotesSwing Votes

ConservativeConservative

J.P. Stevens J.P. Stevens Republican 1975 (Ford) Retire 2001

D. Souter D. Souter Republican 1990 (Bush) Retire 2020

R. Bader Ginsburg R. Bader Ginsburg Democrat 1993 (Clinton) Retire 2009

S. Day O’Connor S. Day O’Connor Republican 1981 (Reagan). Retire 2011

S. Breyer S. Breyer Democrat 1994 (Clinton). Retire 2019

A. Kennedy A. Kennedy Republican 1988 (Reagan) Retire 2017

C. Thomas C. Thomas Republican 1991 (Bush) Retire 2029

A. Scalia A. Scalia Republican 1986 (Reagan) Retire 2017

W.H. Rehnquist W.H. Rehnquist (Chief (Chief

Justice)Justice) Republican 1975 (Ford) Retire 2005

Main Point!Main Point!

• the Supreme Court is the Supreme Court is politicalpolitical

• however,however, it is politics by other means it is politics by other means– must conform to rules of judicial reasoningmust conform to rules of judicial reasoning

– decisions and behaviour of the courts are decisions and behaviour of the courts are constrained by the need to maintain constrained by the need to maintain legitimacylegitimacy

civil liberties (cont’d) june 4th, 2003. security and civil liberties – an altered balance...

Documents

balances slide

senate slide

terrorism slide

manner slide

bill of rights slide

appropriate newsweek

individual rights

branches supreme court