JLS After Midterms (5) PDF

AREA OF EMPHASIS: ARTS & HUMANITIES Arts and Humanities Arts “I don’t care about art” (Not fine art) Liberal Arts English Literature, History, Philosophy, Politics, Religious Studies Humanities Great Books – not because they are old Great because they are permanent...

AREA OF EMPHASIS: ARTS & HUMANITIES Arts and Humanities Arts “I don’t care about art” (Not fine art) Liberal Arts English Literature, History, Philosophy, Politics, Religious Studies Humanities Great Books – not because they are old Great because they are permanent Address perennial questions Read Shakespeare because he describes love, jealously, revenge, and empathy better than anyone else Antigone Who is Sophocles? Sophocles (496 – 405 BC) Celebrated Greek playwright and philosopher Wrote most enduring Greek tragedies Antigone is one of his final and best known works Tragedies Three Theban Plays Oedipus Rex, Oedipus at Colonus, and Antigone Each play is based in Thebes Myth, gods, prophecies Characters trying to do what’s right, often with tragic results Why Tragedy? Dramatic, but not drama Reveal the nature of political life  Outline of Play The play in straightforward: Antigone, a daughter of Oedipus, has buried her brother Polynices, a traitor to Thebes, against the express orders of the king, Creon. Antigone disobeys Creon’s edict in the name of the sacred ancestral law of family with its ties of blood and kinship. Creon in turn orders Antigone to be buried alive as punishment for her disobedience. But before the order is carried out Antigone kills herself, and Haemon, Creon’s son, takes his own life in protest against his father’s cruelty. Finally, Creon’s wife commits suicide when she learns of the death of her son. Antigone and Justice Themes: family, loyalty, authority, and obligation The play is about conflict in political life, it plays out in different levels: between the household, men and women, nature and convention The Law is cited frequently by both sides: Two laws… Authority of the political community vs. Nature/laws of the Gods (Creon, the King) (Antigone) JLS*1000(01) Introduction to Justice and Law University of Guelph Prof. Mark Harding Today Complete Antigone Key passages Themes and significance Seminar: Protest vs. obedience to the law Outline of Play  Opening of the Play [Civil war has just ended. The sons of the previous king are dead by each other’s hand. Their uncle (Creon) is now king. Antigone enters to address her sister] Antigone tells Ismene of the emergency decree issued by the King Antigone: Why not? Our own brothers' burial! Hasn't Creon graced one with all the rites, disgraced the other? Eteocles, they say, has been given full military honors, rightly so—Creon has laid him in the earth and he goes with glory down among the dead. But the body of Polynices, who died miserably— why, a city-wide proclamation, rumor has it, forbids anyone to bury him, even mourn him. He's to be left unwept, unburied, a lovely treasure for birds that scan the field and feast to their heart's content. Such, I hear, is the martial law our good Creon  Opening of the Play Antigone asks Ismene if she will help with burial Ismene What? You'd bury him— when a law forbids the city? Antigone: Yes! He is my brother and—deny it as you will— your brother too. No one will ever convict me for a traitor. Ismene: Now look at the two of us, left so alone... think what a death we'll die, the worst of all if we violate the laws and override the fixed decree of the throne, its power—we must be sensible...I'm forced, I have no choice—I must obey the ones who stand in power. Why rush to extremes? It's madness, madness. Opening of the Play Creon’s Explains Decree Antigone Defence 510 Creon on Authority Consequences Haemon – Creon’s son - tries to persuade his father to reconsider his decision to execute Antigone, disowns his father and leaves Tiresias – seer – tells Creon the gods are upset with city because of the public degree (“And it is you— your high resolve that sets this plague on Thebes” 1125) Tiresias’s Prophecy Tragic Conclusion Creon orders Polyneices buried… too late Antigone kills herself Haemon take his own life And Creon’s wife commits suicide when she learns of the death of her son Themes and Significance Competing moralities Creon’s morality – state and the politics of friendship Antigone’s morality – the family and honoring the gods Tragic ending Contemporary applications Not Good and Evil Rookie mistake: reduce the Play to good vs. evil Misses Sophocles’s sense of the nature of tragic conflict Two competing (legitimate) accounts of the good: It is a clash between two valid yet conflicting sets of social morality, each of which is equally binding. The power of Antigone to move us even today is not because it sets right against wrong but because it pits one morally justified set of claims against another..  Creon’s Morality Can’t reduce Creon to a tyrant…he would not be worthy of Antigone’s challenge, nor would his defeat represent a tragic spectacle. Creon represents the voice of public legal authority. He voices the state, of public life, and its claim to supremacy over all matters affecting public behavior. His is the mind devoted exclusively to civic safety and well-being. For Creon, the welfare of the city is the highest ethical obligation. Antigone’s Morality For Antigone, the family and the household are foundational She grounds her action in ”unwritten law” Not man-made law of reason but by a higher law the origins of which she admits are unknown Antigone: feminist or conservative? She frames herself as daughter, a sister, family member with ethical obligations to her dead kin Creon stands for order; Antigone for the family 1. Theories of Law (Topic 1) Legal Positivism: ‘law is what gov’t say it is’ 1. Body of rules 2. Enacted and applied by public officials 3. Formulated by legitimate means 4. Backed by state force Problem? Can allow for ‘amoral’ legal systems  Theories of Law (Topic 1) Natural Law: To be valid, law must be morally permissible St. Augustine and Martin Luther King: Unjust law is no law at all Problem? Where does morality come from? MLK: Human personality Clash of Perspectives Both views are exclusionary Creon: The state and maintaining loyalty -- more important than kinship and family Antigone denies the power of public law over obligations to the family Creon (rational) can’t recognize Antigone’s appeal to higher commitments (nature) Tragic Ending Two views paralyze each: At the end of the play Creon belatedly admits, “It’s best to hold the laws of old tradition to the end of life” (1113). Concedes to Antigone, but too late Keeps classic tragedy structure: tragic situation as brought by excessive pride or hubris Creon’s desire to exert control over nature and the family at the expense of the higher law. Contemporary Applicability Seminar Reading: Modern day Antigone? “Just before she was sentenced, Davidson said that she believed she was acting in accordance with natural law and her beliefs, an argument used in court as she lobbied for minimal jail time and community service.” Next Week Read Martin Luther King’s “Letter from Birmingham Jail” (URL-CL) Quiz #3 next week (Friday) JLS*1000(01) Introduction to Justice and Law University of Guelph Prof. Mark Harding Housekeeping Quiz #3 opens Wednesday Great Case Summary assignment Due Nov. 7 Office hours with Seminar leaders See contract info on CL. This Week MLK’s Letter from Birmingham Jail Today and Wednesday Comparison to Antigone Seminar: Justifying civil disobedience? Course Schedule (Topic 1) ⚫ JLS Program Majors pick one of five “areas of emphasis” ⚫ Course content intros those areas: Canadian Politics and Governance (Wks 3-4) Business and Management (Wks 5-6) Arts and Humanities (Wks 7-8) Global Relations and Governance (Wks 9-10) Gender and Sexuality (Wks 11-12) Theories of Law (Topic 1) Natural Law: To be valid, law must be morally permissible St. Augustine and Martin Luther King: Unjust law is no law at all Problem? Where does morality come from? MLK: Human personality Context: Civil Rights in US Slavery; Civil War; Emancipation and 13th Amendment(end slavery) Reconstruction & Jim Crow, Segregation Jim crow law: bathroom Segregation, harder on them meaning wights got easier Civil Rights Movement Rev. Martin Luther King (born. 1929 – 1968) Prominent civil rights leader Engaged in non-violent protest the treatment and disenfranchisement of African Americans, esp. in the South King arrested in Birmingham, A Writes famous letter (1963) Assassinated for his activism MLK (Washington, 1963)  Letter from Birmingham Jail Vid link Comparison to Antigone A play, written by Sophocles Has a poetic structure and logic MLK’s - just a letter Addressed to one audience – religious leaders in South… …but it reads more like a public or open letter Addressed to allies rather than opponents Defense protests and civil disobedience(meaning to break law) Letter’s Themes King’s appeal to Christianity, patriotism, and universalism Shared sense of justice US to live by its principles Reference to time (“Why can’t you wait?”) Necessity of civil disobedience Account of natural law (1) Why We Are Here – in Birmingham Opening passage: Religious leaders calling protests “untimely” and “unwise” “since I feel that you are men of genuine good will and your criticisms are sincerely set forth, I would like to answer your statement in what I hope will be patient and reasonable terms.” (p. 1) Accused of being an outsider, he’s isn’t, his organization has chapters in all Southern states (p. 1) “Beyond this, I am in Birmingham because injustice is here.” (p. 1) Just Apostle Paul spread the word and went to place to place so is MLK (p. 1) (2) Why We Are Here – in Birmingham “Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider.” (p.1) (1) Why We Were Protesting Misunderstand cause/effects – no democratic means “You deplore the demonstrations that are presently taking place in Birmingham. But I am sorry that your statement did not express a similar concern for the conditions that brought the demonstrations into being. I am sure that each of you would want to go beyond the superficial social analyst who looks merely at effects and does not grapple with underlying causes. I would not hesitate to say that it is unfortunate that so-called demonstrations are taking place in Birmingham at this time, but I would say in more emphatic terms that it is even more unfortunate that the white power structure of this city left the Negro community with no other alternative.” (p. 1) (2) Why Protest? What Alternative? In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices are alive, negotiation, self-purification, and direct action.” (p. 1) We’ve gone through the first 3 Birmingham is the most segregated city in the US Lists brutality against blacks City leaders wouldn’t engage in negotiation Only took direct action of protest after other For Wednesday Finish MLK’s “Letter from Birmingham Jail” Start your assignment! JLS*1000(01) Introduction to Justice and Law University of Guelph Prof. Mark Letter’s Themes (Last class) King’s appeal to Christianity, patriotism, and universalism Shared sense of justice US to live by its principles Reference to time (“Why can’t you wait?”) Necessity of civil disobedience Account of natural law Justice and Time “Why can’t you wait?” Need to fight, rights won’t be given to us We must come to see with the distinguished jurist of yesterday that “justice too long delayed is justice denied” (p.2) Not good enough to have the right in an abstract sense Civil rights and Dignity “I guess it is easy for those who have never felt the stinging darts of segregation to say ‘wait.’… (p. 2)…I hope, sirs, you can understand our legitimate and unavoidable impatience.” (p. 2) Civil Disobedience: Defining (1) “YOU express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws… …One may well ask, ‘How can you advocate breaking some laws and obeying others?’ The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that "An unjust law is no law at all." (p. 3) Theories of Law (Topic 1) Natural Law: To be valid, law must be morally permissible St. Augustine and Martin Luther King: Unjust law is no law at all Problem? Where does morality come from? MLK: Human personality Civil Disobedience: Method (2) “Now, what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law… …To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. …So I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.” (p. 3) Segregation Laws and the Rule of Law “Let us turn to a more concrete example of just and unjust laws. An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand, a just law is a code that a majority compels a minority to follow, and that it is willing to follow itself. This is sameness made legal. (p. 3) Rule of Law embodies “equality before the law” (Topic 2) Equality before the law –everyone, regardless of whether he or she is a ruler, government official or an regular citizen, is subject to the same law that is enforced by normal courts. Segregation Laws and the Rule of Law “Let us turn to a more concrete example of just and unjust laws. An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand, a just law is a code that a majority compels a minority to follow, and that it is willing to follow itself. This is sameness made legal. (p. 3) “An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because it did not have the unhampered right to vote.” (p. 3) Examples: Majority black voting districts Marching without a permit MLK – Extreme Moderate? Separates himself from black nationalists Between two extremists – given up/have some security and extremists who given up on America and pursue black nationalism (p. 4) (Some) Extremism if necessary MLK willing to be identified with a degree of extremism, “Will we be extremists for the preservation of injustice, or will we be extremists for the cause of justice?” (p. 4) America and Living Up to its Own Ideals “We will reach the goal of freedom in Birmingham and all over the nation, because the goal of America is freedom. Abused and scorned though we may be, our destiny is tied up with the destiny of America. …We will win our freedom because the sacred heritage of our nation and the eternal will of God are embodied in our echoing demands” (p. 5) US Declaration of Independence We hold these truths to be self- evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. Canadian Charter (Last week)  Our Souls and Living Well “One day the South will recognize its real heroes. …They will be old, oppressed, battered Negro women, symbolized in a seventy-two-year-old woman of Montgomery, Alabama, who rose up with a sense of dignity and with her people decided not to ride the segregated buses, and responded to one who inquired about her tiredness with ungrammatical profundity, "My feets is tired, but my soul is rested." Antigone: Living by Principle Antigone: I won't insist, no, even if you should have a change of heart, I'd never welcome you in the labor, not with me. So, do as you like, whatever suits you best— I will bury him myself. 85 And even if I die in the act, that death will be a glory. I will lie with the one I love and loved by him— an outrage sacred to the gods! I have longer to please the dead than please the living here: in the kingdom down below I'll lie forever. 90 Do as you like, dishonor the laws the gods hold in honor. Conclusion “If I have said anything in this letter that is an understatement of the truth and is indicative of an unreasonable impatience, I beg you to forgive me. If I have said anything in this letter that is an overstatement of the truth and is indicative of my having a patience that makes me patient with anything less than brotherhood, I beg God to forgive me” (p. 6) JLS*1000(01) Introduction to Justice and Law University of Guelph Prof. Mark Harding JLS – Political Science Two traditional subfields of POLS: International relations How states relate to one another Comparative politics States beyond one’s borders and domestic context Social and political phenomena across borders No Laws in a Vacuum (Topic 1) Law only exists where there is authority Can’t consider law without first, considering the state (key concept in political science) 3 factors: (1) population (2) territory and (3) sovereignty A state exists when a sovereign power effectively rules over a population residing within the boundaries of a fixed territory Before we consider law, we need to consider politics 2. Categories of Law(Topic 1) International Law Relationships / disputes between states, or people in more than one state Treaties (Trade agreements, NATO) Dispute resolutions (WTO(world trade organization), ICC) Growing importance… Esp. post-WW2 ◦ Topic 8: Global Relations and Governance 🞄 “Laws of Nations and War at Nuremberg” International Relations in a Nutshell States - most significant actors in IR Sovereignty means ‘I do what I want in my borders’ International system = anarchy No overarching authority What does that mean? There are No world gov’t, police, and courts to make states do something States do what they want, cooperate by choice, seek influence and dominate one another War - one state violates sovereignty of another  International Law Differs from domestic law: 1.No international sovereign – no world gov’t or world police 2.No global legislature (therefore not responsive) 3.Based on consent, no real method of enforcement (no courts with teeth) End of World War II Most destructive war of all time Europe was smashed Highest death toll of combatants and civilians Countless atrocities Motto of “Never again” Need to reform int’l system prevent similar conflicts Why Now? (Slide 74 Motto of “Never again”) WW1 was also destructive Treaty of Versailles was punitive to Germany; singled it out US isolationism = avoid involvement in European affairs Let Europe worry about Europe In retrospect, these were mistakes! Helped Hitler’s rise After WWII United States takes central role in post- 1945 international order US made the Marshall Plan to rebuild Europe Encourage international institutions to facilitate peace and cooperation United Nations NATO Universal Declaration on Human Rights Geneva Conventions International Criminal Court International Military Tribunal Video URL Robert H. Jackson (1892-1954) American lawyer Distinguished legal career US Solicitor General and Attorney General Justice on the United States Supreme Court Took leave from Supreme to Court participate at IMT(International Military Tribunal) Served as Prosecutor for US Jackson’s Remarks at IMT If read closely, speech contains numerous political and legal tensions Not simply: “Allies good, Nazis bad” Jackson trying to balance optics and legality Can’t avoid “prosecution and judgment must be by victor nations over vanquished foes.” Optics West doesn’t do show trials Shouldn’t be viewed as victor’s justice( as in must give Nazis fair trial in court) Legality IMT and charges created after conflict Jackson acting as prosecutor of crimes not committed against US or people Jackson’s Opening Remarks “The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance(we can just kill them but we are not) and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason” (p.1) JLS*1000(01) Introduction to Justice and Law University of Guelph Prof. Mark Harding Seminar: Putin guilty of a war of aggression in Ukraine? Based on the concepts covered on Monday, what are the barriers to prosecuting President Putin/Russia with war crimes? Jackson’s Remarks at IMT (Monday) If read closely, speech contains numerous political and legal tensions Not simply: “Allies good, Nazis bad” Jackson trying to balance optics and legality Can’t avoid “prosecution and judgment must be by victor nations over vanquished foes.” Optics West doesn’t do show trials Shouldn’t be viewed as victor’s justice Legality IMT and charges created after conflict Jackson acting as prosecutor of crimes not committed against US or people Jackson’s Remarks at IMT Remarks are both practical (criminal trial) and philosophical (defense of int’l law) 1. Goals of IMT 2. International law 3. Constraints of circumstances 1. Goals (1) Make criminal case stick Use Nazi records as evidence – own records, films, photos, & documentaries of what they did Guilty mind: this was planned, not spontaneous Accused were gov’t officials; could only achieve aims through war and domination of other people Describes them as “criminal” throughout “Following orders” not acceptable defence war crimes Positivism vs. natural law?( they had to follow orders (pos)) ((nat) they say it's not a good defence))  1. Goals (2) German people/Nazi leadership distinction Convict 20 Nazi officials (practical); condemn what they represent (symbolism) “They are living symbols of racial hatreds, of terrorism and violence… symbols of fierce nationalisms and of militarism” The accused “created in Germany under…a National Socialist despotism… They took from the German people all those dignities and freedoms that we hold natural and inalienable rights in every human being." 2. International Law (1) Indictments 1. Plotting war against peace 2. War of aggression 3. War crimes 1. France, 4. Crimes against humanity 2. the Soviet Union, Codified by Allied powers at London 3. the United Kingdom, Conference in 1945 4. United States 2. International Law (2) International trial is necessary; local trials wouldn’t due Accused fortunate to have a trial German Constitution required compliance with international law International law isn’t merely abstract principles but commitments that states make to one another Jackson lists countries invaded, the attack on peace is crime against the international society o Aggressive war the world has renounced after WW1, violated treaties 3. Constraints & Limitations (1) Unique situation; individuals commit crimes; not states Prosecution focused on individuals, but for public/state actions War of aggression and war crimes = new Created in post-war conference by Allies IMT-Tribunal was created after the fact Violates principle of retroactivity (after the fact law made) Procedural Fairness (Topic 1) Concerned with integrity of legal proceedings Fair trials without bias The Rule of Law Like treated alike Equality before the law Government officials not immune Promulgated, not retroactive Applied by fair, impartial judges Flaw? All these are contestable Sets the bar low, procedural fairness “getting your day in court” is not the same as justice 3. Constraints & Limitations (2) “I must remind you of certain difficulties which may leave their mark on this case. Never before in legal history has an effort been made to bring within the scope of a single litigation the developments of a decade, covering a whole continent, and involving a score of nations, countless individuals, and innumerable events… “…the case may well suffer …not be the example of professional work which any of the prosecuting nations would normally wish to sponsor. It is, however, a completely adequate case to the judgment we shall ask you to render, and its full development we shall…leave to historians.” “This tribunal…novel and experimental, is not …created to vindicate legalistic theories.” Combining systems of law 3. Systems of Law (Topic 1) - Common Law UK, Canada, US, former British colonies Constitution Act, 1867 “…will have a Constitution similar in principle to that of the United Kingdom” - Civil Law Continental Europe, Asia, Scotland (partly) Quebec Discussion Questions Overall, how successful do you think Jackson was at balancing the goals and limitations of the IMT? Which accounts of justice are most fitting for thinking about the International Military Tribunal? IMT’s Legacy Closing passage: “Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions, and most of all its sanctions, on the side of peace so that men and women of good-will in all countries may have ‘leave to live by no man’s leave, underneath the law.’” Influenced processes for prosecuting war crimes War crime prosecutions the former-Yugoslavia (1990s) Rwandan genocide (1994) Creation of International Criminal Court (2002) Irony of the legacy of International Military Tribunal Criticized for flaws, yet still the template and most impactful adjudication of war crimes JLS*1000(01) Introduction to Justice and Law University of Guelph Prof. Mark Harding JLS – Political Science (Topic 8) Two traditional subfields of POLS: International relations How states relate to one another Comparative politics Countries beyond one’s own Social and political phenomena across borders Today: role of courts in two constitutional democracies Canadian Political System In force laws Make laws Solve fights American Political System United States Supreme Court Made up of 9 Judges Lifetime appointment They are Selected by the President And have to get Approved by Senate Judicial review Invalidate laws inconsistent with Constitution “We are not final because we are infallible, but we are infallible only because we are final.” Levels of Law (Topic 1) Constitutional Law Product of sovereign people Statutory Created by legislatures Law Created by judges Common Law Supreme Court of Canada 9 Judges Term limit (75 yrs old) Selected by Prime Minister Judicial review Invalidate laws inconsistent with Constitution SCC is ‘not quite supreme’ Parliament can get final say…(how?) (Vid link) Brown v Board of Education 1. What were the facts? 2. What was the legal dispute? 3. Who won? 4. What were the Court’s reasons? Context: Civil Rights in US (Topic 7) Slavery; Civil War; Emancipation and 13th Amendment Reconstruction & Jim Crow, Segregation Civil Rights Movement Civil Disobedience (1) (Topic 7) MLK: “YOU express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask, ‘How can you advocate breaking some laws and obeying others?’ The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that "An unjust law is no law at all." (p. 3) Case Facts ∙ Topeka, Kansas – segregated city ∙ Linda Brown wanted to go to public school ∙ Not admitted because she was black ∙ NAACP agrees to help the Browns; challenge segregation law ∙ School board says USSC precedent permits segregation( nothing they can do) Segregation Laws and the Rule of Law (Topic 7) “Let us turn to a more concrete example of just and unjust laws. An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand, a just law is a code that a majority compels a minority to follow, and that it is willing to follow itself. This is sameness made legal. (p. 3) “An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because it did not have the unhampered right to vote.” (p. 3) Examples: Majority black voting districts Marching without a permit Key Precedent: Plessy v Ferguson One of the most infamous decisions by USSC Legalized segregation Case concerned segregated trains in Louisiana This is against the 14th amendment that guarantees “equal protection under the law” Court upholds law via “separate, but equal” doctrine ( the 2 races can have separate trains as long as they are equal) NACCP engages in decades long litigation strategy to undermine SBE See details on Wednesday! Reasoning in Brown v Board ∙ Unanimous USSC (9-0) overturns state laws permitting segregation in public schools ∙ Unanimous decision by the Court for unity ∙ Short by USSC standards ∙ Use of social science evidence and scholarly material rather than legal evidence  Reasoning in Brown v Board “Separate, but equal” facilities would no longer pass constitutional muster Abandons precedent o Difficult to square outcome with the Court’s own precedent in Plessey v Ferguson Legal Reasoning (Topic 1) Precedent: stare decisis (standing by a decision) Central to common law legal reasoning Only part of the process… Like cases treated alike Courts bound to follow… …but not absolute  Constitutional Interpretation Hutchinson’s 2 schools of thought: “past-ists” vs. “present-ists” “Originalism” – judges should apply constitution based on original meaning Respects precedent( fixed) “Living constitution” – judges keep constitution in tune with the times Flexible to precedent Trade-offs?  Race and the US Constitution The constitutional significance of Brown itself has been reinterpreted to align with changing values ○ “For example, it has been a frequent tool of those who argue that the Constitution is color-blind, particularly to oppose affirmative action programs as well as race-conscious efforts to integrate public schools” (p. 109). JLS*1000(01) Introduction to Justice and Law University of Guelph Prof. Mark Harding Plessy v. Ferguson (1896) Louisiana racial segregation laws 14th Amendment guaranteed “equal protection of the laws.” Plessy held that “separate but equal” laws satisfied the “equal protection” standard. NAACP v. Separate But Equal National Association for the Advancement of Colored People (NAACP) waged an extended campaign of systematic litigation against the “separate but equal” doctrine that has become a model for later groups (e.g., Canada’s LEAF) The NAACP Systematic Strategy( the 3 stps) 1. Direct Sponsor - Find others that are a vicdom to this law to get the judges to change the law - Became the major player in race litigation 2. Case Selection - Picking the right case - Get sympathetic victims so they feel like they need to change the law - Favorable fact situations 3. Sequencing - Change Constitutional rules slowly - “Easy” cases first - You build your case with small cases to show the law is bad Applying the NAACP Strategy We are not going to immediately challenge the “separate but equal” law We will insend by Begin to show that separate facilities ARE NOT equal and it doesn't follow this law Easy cases first Favourable fact situations Applying the NAACP strategy to Education Start with graduate and professional education, NOT primary schools. WHY? EVERYONE has a VERY FEW have a stake in primary stake in graduate & schools professional schools Cases they used to win Missouri ex rel Gaines (1938) Missouri ex rel. Gaines v. Canada USSC held that Missouri could (1938) was a landmark U.S. Supreme Court case where the Court ruled that not satisfy ‘SBE’ simply by Missouri must provide graduate reimbursing the tuition fees education to African Americans or allow them to attend out-of-state schools. paid by African-American The case involved Lloyd Gaines, an students who attended law African American man who was denied school in neighbouring states admission to the University of Missouri Law School because of his race. Missouri offered to pay for him to attend a law school in another state, but If the State provided legal Gaines argued this was not equal. The education to white students, it Court agreed, ruling that the state's actions violated the Equal Protection had to provide equal facilities for Clause of the 14th Amendment by failing to provide equal educational African-American students. opportunities. Missouri was ordered to either admit Gaines or create a separate but equal law school for Black students.  Sweatt v. Painter (1950) Court ruled that segregated facilities IN THE SAME STATE had to be qualitatively equal to those available to white students - Sequencing: build on success with easier case (Gaines) - Put jurisprudence in place for even bigger issues – i.e., Sweatt still didn’t directly challenge ‘SBE’ Sweatt v. Painter (1950) was a landmark U.S. Supreme Court case in which the Court ruled that the University of Texas Law School's segregation of Black students violated the Equal Protection Clause of the 14th Amendment. The case arose when Heman Sweatt, an African American, was denied admission to the all-white law school and instead was offered admission to a separate, inferior facility. Sweatt challenged the "separate but equal" doctrine, arguing that the separate facilities were not equal in quality. The Supreme Court agreed, ruling that the "equal" education offered to Sweatt was not truly equal and that racial segregation in higher education was unconstitutional, marking a significant step toward desegregation. Next Steps Physically separate law schools in the same state cannot be equal because effective legal education depends not only on book learning but on intangibles such as the reputation and mentoring of faculty. At this point, SBE is hollowed out, ready to be blown away The stage has been set for … Brown v. Board of Education (1954) NAACP sponsored the case of Linda Brown, a public school student USSC ruled that separate education could not be equal segregation denotes inferiority of African- Americans, thus reducing their motivation to learn; this lack of motivation impedes intellectual development perpetuating inequality Plessy v. Ferguson had effectively been overruled. The Aftermath… Did Brown v. Board of Ed end public segregation? Constitutionally (Yes), in Society (NO) WHY? USSC did not provide a remedy for segregated education, only telling the states to proceed “with all deliberate speed,” leaving the implementation to the lower courts Cartoon by Jon Kennedy, Little Rock Arkansas Democrat, May 17, 1954 Hutchinson on aftermath ∙ Cases like Brown are considered great once they are ultimately accepted and embraced by society and remain great so long as this acceptance is sustained (p. 108). Hutchinson argues that Brown demonstrates that there is no underlying universal formula that displays a decision’s correctness. “This does not mean that there are no rational grounds for constitutional law; it simply means that there are no grounds that are final or determinative by the sheer force or rightness of their legal argumentation” (p. 110). Discussion Question Does the Brown decision showcase limits to what court can do? [Hint: think back to our discussion about the 3 branches of gov’t on Monday] Strategic Litigation in Canada Canada has its own sequences like NAACP LEAF and Egale Canada used similar legal strategies for women and LBGT rights-issues Race and the US Constitution (Monday) The constitutional significance of Brown itself has been reinterpreted to align with changing values ○ “For example, it has been a frequent tool of those who argue that the Constitution is color-blind, particularly to oppose affirmative action programs as well as race-conscious efforts to integrate public schools” (p. 109). US Constitution – Two Views of Equal Protection Clause “Although the original purpose of [equal protection clause] was to protect blacks from discrimination, the broad wording has led the USSC to hold that all racial discrimination (including against whites, Hispanics, Asians, and Native Americans) is constitutionally suspect. These holdings have led to an ongoing debate …over whether it is unconstitutional for governments to consider race…as a positive factor in university admissions, employment, and government contracting” The debate…: 1. Does “equal protection” mean color-blindness OR… 2. Race is a positive factor and should be considered to address past discrimination? Example: Racial preferences in university admissions JLS*1000(01) Introduction to Justice and Law University of Guelph Prof. Mark Harding Gender and Sexuality Sex vs. Gender Gender studies Concerns the effects of gender, identity, and representation play in society, politics, and the world Examples: Do women have voting preferences that differ from men? If identity shapes politics, should there be quotas in institutions to reflect those experiences? Gender, Sexuality and the Law Feminist & LGBT activism have used legal system to facilitate social change How? 1. Law affects women as a group differently than men 1. Example? - aborshin 2. Law is a tool for egalitarian social change 1. How? 4. Levels of Law (Topic 1) Constitutional Law Product of sovereign people Statutory Created by legislatures Law Created by judges Common Law Levels of Law (Topic 1) Constitutional Judges will Law need to interpret Statutory these Law different legal rules Common Some “law making” Law is inevitable in our system Levels of Courts Judicial policymaking Supreme Court power becomes more prominent as one climbs the judicial Appeal Courts hierarchy Trial Courts SCC is especially prominent Constitutional Policymaking Judicial policymaking at the constitutional level increases… 1. as entrenched constitutional law expands 2. and as judges base decisions on sources beyond constitutional law Expanding Constitutional Law Expanding Constitutional Law Judicial policymaking power addition of Charter in 1982 also grows as one climbs the hierarchy Statute Law of laws. Constitutional policy making is especially Common Law important Constitutional Law (Topic 1) Supreme law of the land Stipulates ‘rules of the game’ Defines relationship between citizens and the state Canadian Charter of Rights and Freedoms Divides power between federal and provincial governments (Also: unwritten components) Most Prominent Policymaking Constitutional Law Supreme Court Appeal Courts Statute Law Trial Courts Common Law M v. H 1. What were the facts? 2. What was the legal dispute? 3. Who won? 4. What were the Court’s reasons? M v. H : Facts of the Case Same-sex couple living together for several years, ran a business together Incurred substantial debts; relationship deteriorated in 1992 M sought division of property and spousal support under Ontario’s Family Law Act (FLA) Denied given the definition of “spouse” under FLA: Cuz they need to be opposite sex couple meaning no benefit M challenges FLA as violating Charter Equality rights Legal Issues Family Law Act defines marriage & spouse = opposite sex couples s. 1(1):“spouse” means either of a man and woman who (a) are married to each other, or (b)have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act. s. 29: “spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of a man and woman who are not married to each other and have cohabited, (a) continuously for a period of not less than three years, or (b)in a relationship of some permanence, if they are the natural or adoptive parents of a child. Equality Rights: Section 15(1) of the Charter 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. What’s missing? Sidebar: Egan v. Canada SCC said “Sexual Orientation is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s. 15 protection as being analogous to the enumerated grounds” Section 15(1) of the Charter 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Sexual orientation now analogous grounds for discrimination Constitutional Policymaking Judicial policymaking at the constitutional level increases… 1. as entrenched constitutional law expands 2. and as judges base decisions on sources beyond constitutional law Discussion Question Why might it controversial for judges to add language to the constitution that isn’t there?- if you keep adding the change what the point of it being there What is the alternative to adding to the text by interpretation? Amending formula Reasoning in M v H( side with M) 8-1: legislation violates Charter’s s. 15(1), not saved by s. 1 (not a reasonable limit) Majority still included 3 sets of reasons Reasoning in M v H Majority: Violated ‘human dignity’ of same-sex couples, perpetuating their disadvantage Promotes view that same-sex couples are ‘less worthy of recognition’ ‘Defies logic’ to suggest gender-neutral support system ‘rationally connected to goal of improving economic circumstances of heterosexual women’ Why M v H Matters Aftermath Ontario gov’t amends 67 statutes to recognize “same-sex partners” Federal govt changes to legislation effecting “common law partners” Opposite-sex definition of marriage legally vulnerable Steppingstone to same-sex marriage Ref re Same-Sex Marriage (2004) Have we seen analogous examples of this? Law and Social Change One individual litigant can challenge the law Use Charter to trump a statute When SCC hears a case and makes a decision… Changes law for litigant and everyone else For Wednesday R v Oakes – CL How Canadian courts determine when a right is infringed (Final!) Seminar: read two short news articles on the extreme intoxication defence and gender Fine (2022-CL) and Connelly (2022-CL) JLS*1000(01) Introduction to Justice and Law University of Guelph Prof. Mark Harding Today’s lecture Rights protection in Canada How the Charter changed how rights are protected How Canadian courts decide if rights have been infringed “Oakes test” (R v. Oakes 1986) M v H as example Seminar topic primer Gender, Sexuality and the Law (Monday) Feminist & LGBT activism have used legal system to facilitate social change How? 1. Law affects women as a group differently than men 1. Example? 2. Law is a tool for egalitarian social change 1. How? Discussion Question Why might the extreme intoxication defense be an issue relevant to gender? Canadian Rights Protection “Canadians got rights in 1982 because of the Charter” This is FALSE Before 1982 Parliaments protect rights Debate them and define limits in legislation After 1982 Charter facilitates judicial rights protection (courts & judges) Tradeoffs between two approaches? This is better cuz we pick who work in parliament so they can be biased Constitutional Law (Topic 1) Supreme law of the land Stipulates ‘rules of the game’ Defines relationship between citizens and the state Canadian Charter of Rights and Freedoms Divides power between federal and provincial governments (Also: unwritten components) Rights Cannot be Absolute The Canadian Charter of Rights and Freedoms “guarantees” protection from government Creates expectations in how the gov’t treats citizens Impractical if rights could be exercised without limits An absolute “right to liberty” would be freedom from law and constraint Which Rights? What do we think of when we hear “rights violation” by a gov’t? Core vs. periphery of rights Section 2 (b) of the Charter says everyone has a right to freedom of expression Hate speech law? (political speech) Section 12’s protection against “cruel and usual punishment” Solitary confinement? Most rights-issues are about reasonable disagreement With the Charter – Courts Often Define Rights Section 8 “right against unreasonable search and seizure” When is a police search “unreasonable”? Courts tells if a right has been infringed Section 1: Guarantees & Constraints “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Reasoning in M v H (Last Class) 8-1: legislation violates Charter’s s. 15(1), not saved by s. 1 (not a reasonable limit) Majority still included 3 sets of reasons Defining “Reasonable Limits” R v. Oakes (1986) Reverse onus provision of the Narcotic Control Act Possession = Trafficking Violation of Charter’s s. 11(d) (Presumption of Innocence) Court creates “Oakes test” to determine reasonable limit Defining“Reasonable Limit” Pressing and Substantial Is the Government’s objective in limiting the Charter protected right a pressing and substantial objective according to the values of a free and democratic society? Yes/No? Defining “Reasonable Limit” Proportionality Test: 3 parts Rational Connection Is the legislation’s limitation of the Charter a rational connection to Parliament’s objective. The means used must be carefully designed to achieve the objective. They must not be arbitrary, unfair or based on irrational considerations Yes/No? Reasoning in M v H (Last Class) Majority: Violated ‘human dignity’ of same-sex couples, perpetuating their disadvantage Promotes view that same-sex couples are ‘less worthy of recognition’ ‘Defies logic’ to suggest gender-neutral support system ‘rationally connected to goal of improving economic circumstances of heterosexual women’ Defining a “Reasonable Limit” Minimal Impairment Does the legislative means to achieve the objective impair the Charter protected right in question as minimally as possible? Are there alternative modes of furthering Parliament’s objective that infringe the right to a lesser extent? Yes/No? Defining “Reasonable Limit” Cost-Benefit Does the benefit to be derived from the legislation outweigh the seriousness of the infringement? Yes/No? Section 1 Analysis: “Pressing & Substantial Purpose” X Proportionality Test I. II. “Rational Connection” “Minimal Impairment” ✔ X III. “Cost-Benefit” Section 1 Analysis: M v H “The first stage of the justification test under s. 1 of the Charter, as outlined in Oakes, asks whether the legislation limiting a Charter right furthers a pressing and substantial objective… Providing for the equitable resolution of economic disputes when intimate relationships between financially interdependent individuals break down, and alleviating the burden on the public purse to provide for dependent spouses, are pressing and substantial objectives.” Section 1 Analysis: M v H “Nor is the exclusion of same-sex couples from s. 29 of the FLA rationally connected to the dual objectives of the spousal support provisions of providing for the equitable resolution of economic disputes that arise upon the breakdown of financially interdependent relationships and reducing the burden on the public purse. ” “The appellant’s case also fails the minimal impairment branch of the second stage of the Oakes test. The argument that the exclusion of same-sex couples from s. 29 of the FLA minimally impairs M.’s s. 15 rights since reasonable alternative remedies are available where economic dependence does occur in such relationships cannot be accepted. ” “The impugned legislation also fails to survive the final branch of the s. 1 analysis. Where, as here, the impugned measures actually undermine the objectives of the legislation it cannot be said that the deleterious effects of the measures are outweighed by the promotion of any laudable legislative goals, or by the salutary effects of those measures.” Discussion Question What is your impression of the Oakes test for considering rights in Charter cases? Conclusion Democratic societies need a mechanism to limit rights After 1982/Charter: courts have the upper hand Oakes/s.1 is main mechanism courts use to consider rights Policy by other means? Next Week Final Topic: “Reproductive Rights in Roe v. Wade” Read Posted ch. by Hutchinson, “Wading into controversy” (CL) Marietta “A Revolutionary Ruling” (URL-CL) Quiz #5 opens Weds, closes Friday JLS*1000(01) Introduction to Justice and Law University of Guelph Prof. Mark Harding Why Abortion is Politically Divisive Abortion = “two-sided morality policy” Symbolic, zero-sum rights-issues hard to compromise on (death penalty, prisoner voting, flag burning bans, assisted suicide, same-sex marriage) Of the “culture war” issues, abortion is most significant Values: gender, sex, life & death, religion, feminism, choice in healthcare… Liberty vs. equality Privacy & autonomy vs. the centrality of individual life Both are core to liberal democracy Roe v Wade as a “Great Case" “…because of its notoriety, Roe v Wade is accepted as one of the common law’s greatest cases. It demonstrates a whole host of insights about the dynamics of the common law, especially in the constitutional cauldron of common law decision making - that, while law rules society, law itself is a product of that society and it will only be as effective in ruling society as society allows; that the most obscure litigants can become accidental activists in the development of the law; that judges can often be unlikely revolutionaries in pushing the law forward; and that nothing is final in the world of constitutional law. The background, decision, and aftermath of Roe are the stuff of common law legend” Most Prominent Policymaking (Topic 10) Constitutional Law Supreme Court Appeal Courts Statute Law Trial Courts Common Law Background: Roe v Wade State Gov’ts set criminal law Some States restricted abortion; access varied by means and geography Sarah Weddington 1965, Texas law student, got pregnant, $400 abortion in Mexico Married, finished law school and wanted to do more to help women who couldn’t pay or travel Weddington part of network to help women access to abortion services Roe v Wade 1. What were the facts? 2. What was the legal dispute? 3. Who won? 4. What were the Court’s reasons? Facts: Roe v Wade 7-2 Texas law restricted abortion unless the mother’s life at risk Some states (WA, NY) had liberalized abortion restrictions Constitutional challenges being filed in several states Weddington & team need plaintiff Norma Lea McCorvey is “Jane Roe” Sidebar: Griswold v. Connecticut Challenge to an 1879 state law prohibiting contraceptives What constitutional right does the law violate? Right to “marital privacy” Where do we find this right? Not in the text… The US Bill of Rights’ “penumbras” create zone of privacy Constitutional Policymaking (Topic 10) Judicial policymaking at the constitutional level increases… 1. as entrenched constitutional law expands 2. and as judges base decisions on sources beyond constitutional law Constitutional Law (Topic 1) Supreme law of the land Stipulates ‘rules of the game’ Defines relationship between citizens and the state Canadian Charter of Rights and Freedoms Divides power between federal and provincial governments (Also: unwritten components) Court’s Reasoning in Roe (1) 2:Texas law violates 14th amendment of US Bill of Rights “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Plessy v. Ferguson (Topic 9) Louisiana racial segregation laws 14th Amendment guaranteed “equal protection of the laws.” Plessy held that “separate but equal” laws satisfied the “equal protection” standard. Reasoning in Roe v. Wade (2) Majority (Justice Blackmun) US Constitution has “right to privacy” (Griswold) Right protects woman's liberty to choose to have an abortion, but not absolute… Balanced between govt's interests in protecting women's health & prenatal life Texas law making it a crime to procure an abortion violated this right Balance? Trimester system – State has less interest early on; then interests becomes more compelling in later stages of pregnancy Reasoning in Roe v Wade (3) Dissenting (Justice White) ‘extravagant exercise of the power of judicial review’ Might even agree with the trimester system, but it is for the people and the state legislatures to decide; judges have no business Channelling judicial restraint (rather than activism) Dissenting (Justice Rehnquist) Majority engages in “judicial legislation” Majority creates new standard with no basis in the “intent” of the drafters of the 14 amendment Plants early seeds of debate over “originalism” Constitutional Interpretation (Topic 9) Hutchinson’s 2 schools of thought: “past-ists” vs. “present-ists” “Originalism” – judges should apply constitution based on original meaning Respects precedent “Living constitution” – judges keep constitution in tune with the times Flexible to precedent Trade-offs? Gender, Sexuality and the Law (Topic 10) Sex vs. Gender Biological categories vs. Expression & performance Feminist & LGBT activism have used legal system to facilitate social change How? 1. Law affects women as a group differently than men 1. Example? 2. Law is a tool for egalitarian social change Why Roe Matters Policy: Roe v Wade invalidates dozens of State bans on abortion across US Hailed as important victory for women’s rights Institutions: Poster Child of “judicial activism” Courts dictating policy to elected governments Template for legal activism for decades to come Politics: Major contributor to polarization in US politics and the sorting of Democratic and Republican Parties (see Weds) Sidebar: Does Canada have its own Roe? Charter of Rights and Freedoms does not address abortion Despite efforts activists during drafting Morgentaler v The Queen SCC struck down laws restricting access to abortion services for infringing Charter (not be saved by s.1) But SCC didn’t say there was absolute right This particular law violates Charter, invited Parliament to make better law Parliament tried to pass a new compromise law Bill failed to pass a tied vote in the Senate Legal vacuum – only major democracy with no law on abortion For Wednesday Read Marietta, “A Revolutionary Ruling” (CL) Quiz #5 opens JLS*1000(01) Introduction to Justice and Law University of Guelph Prof. Mark Harding  Today How Roe v Wade changed and continues to shape US politics Parties Judicial politics Post-Roe case law – Casey and Dobbs American Political System (Topic 9) United States Supreme Court (Topic 9) 9 Judges Lifetime appointment Selected by President Approved by Senate Judicial review Invalidate laws inconsistent with Constitution “We are not final because we are infallible, but we are infallible only because we are final.” Polarization and US Politics Before Roe v Wade, abortion - not a partisan issue Post-Roe: Polarization increases over time Compromise harder under these conditions Parties sort voters on abortion, guns, taxes Reasoning in Roe v Wade (Monday) Dissenting (Justice White) ‘extravagant exercise of the power of judicial review’ Might even agree with the trimester system, but it is for the people and the state legislatures to decide; judges have no business Channelling judicial restraint (rather than activism) Dissenting (Justice Rehnquist) Majority engages in “judicial legislation” Majority creates new standard with no basis in the “intent” of the drafters of the 14 amendment Plants early seeds of debate over “originalism” US Politics after Roe Rise of the “religious right” Support candidates who will overturn Roe Creation of the Federalist Society Law school debate society Advocates originalism and judicial restraint Identify judges to app’t to challenge Roe Case law post-Roe Roe didn’t end debate on regulation of abortion Some state gov’ts pass restrictions( on abortion) Wait periods Parental consent forms for minors Reporting functions for clinics Planned Parenthood v Casey 5-4 USSC reaffirms right in Roe Majority replaces trimester system w/ “undue burden standard” Dissent: Roe wrongly decided; abortion not a constitutional right USSC divided along predictable ideological lines Democrats in majority; Republicans in dissent  Politics of Judicial Selection Historically, vacancy on USSC, President picks a nominee, Senate votes to confirm Starting in 1980s (after Roe) confirmation became contentious political fights, media circuses Nominees' personal lives, past statements scrutinized Politics of Judicial Selection Donald Trump wins Republican Party primary; 2016 election Appoints 3/9 justices to the USSC (2016, 2018, 2020) 2020 - USSC has 6/9 justices adopted by Republican presidents Hostile to Roe States start passing laws to test Roe State of Mississippi Mississippi passes law banning abortions after 15 weeks Direct challenge to Roe v. Wade Contradicts Roe & Casey precedents - woman has the right to choose up to 22-24 weeks Dobbs v. Jackson Women's Health Organization 1. What were the facts? 1. Miss. state bans abortion after 15 wks 2. What was the legal dispute? 1. Contradicts Roe’s right / Casey’s 22wks viability 3. Who won? 1. Miss. state 4. What were the Court’s reasons? 1. (6-3) US Constitution does not contain right to abortion (Roe and Casey overturned). Regulation of abortion returned to State legislatures to decide What Does Dobbs Mean? Returned to States to decide Abortion varies by state.. Blue states will retain liberal access Red states have moved to restrict Roe v Wade as a “Great Case” (Monday) “…because of its notoriety, Roe v Wade is accepted as one of the common law’s greatest cases. It demonstrates a whole host of insights about the dynamics of the common law, especially in the constitutional cauldron of common law decision making - that, while law rules society, law itself is a product of that society and it will only be as effective in ruling society as society allows; that the most obscure litigants can become accidental activists in the development of the law; that judges can often be unlikely revolutionaries in pushing the law forward; and that nothing is final in the world of constitutional law. The background, decision, and aftermath of Roe are the stuff of common law legend” The Clash Persists… The abortion issue is the most difficult and attracts persuasive advocates on both sides: Justice Ruth Bader Ginsburg, USSC (1994-2020) "The decision whether or not to bear a child is central to a woman's life, to her well-being and dignity... When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.” Roe – (McCorvey) went through a religious conversion, became pro-life activist “abortion wasn’t about contraception…it was about children killed in their mother’s womb. All those years I was wrong.” What’s Next? Quiz #5 closes Friday (noon) See You at the Exam! (Have a good break)