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Choose just ONE of the questions below and answer it in essay form

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Choose just ONE of the questions below and answer it in essay form. At the beginning of your essay, please include the question that you have chosen to answer for this. This essay should cover at least 1 single- spaced typewritten page with a 12 point, Times New Roman font. Essays that are just summaries of the course material will not do well. I want an organized, well-written, and clearly expressed essay led by your thesis position, made by your arguments, and supported by course content as evidence. (no other references except for course content).

ESSAY QUESTIONS

4) In Griswold v. Connecticut, the Supreme Court affirmed that a right to privacy exists in the Constitution. Do you a) think that privacy rights deserve to be protected by the Constitution, and b) think that Court was correct in how it established privacy rights?

5) Do you think that the Ninth Amendment can legitimately be used by the Judiciary to recognize and provide legal protection for a specific unenumerated right or do you think the Constitution or Congressional legislation need to be amended to include recognition of that specific right before it can be legitimately protected by the Judiciary? For this question, it may help you to discuss a specific unenumerated right as an example.

6) Do you think that a state law which is considered by the Supreme Court to be a valid exercise of State Police Power could ever be used legitimately to limit an express Constitutional right? Provide a hypothetical state law purpose and an example of a current express Constitutional right as part of your analysis for this question.

7) In Jacobson v. Massachusetts, the Supreme Court required that a state law claiming to regulate public health and safety must be necessary and reasonable for it to survive a valid citizen claim that the law affected their Constitutional rights. However, not every Court uses those two limitations. When a Court does not use them, does it allow the concept of State Police Power to extend the reach of the Tenth Amendment too far?

8) Do you agree with Justice Peckham’s opinion in Lochner v. New York that the New York Bakeshop Act was an illegitimate exercise of State Police Power?

9) In his dissent to Lochner v. New York, Justice Holmes said that “a constitution is not intended to embody a particular economic theory.” Should a Judge be allowed to use an economic or political theory to help them understand and apply a vague term from the Constitution when they are deciding if a legislative law conflicts with that term?

10) Three issues facing the future of the Supreme Court are: a) the number of Justices that can serve on the Supreme Court at once, b) the term length that a Justice serves on the Supreme Court, c) the people who have the power to place a Justice on the Supreme Court. Explain if you would keep or change the existing rules governing each issue.

11) In Kelo v. City of New London, the court said that “public purpose” can satisfy the “public use” requirement of the 5th Amendment “Takings” clause. Do you think this broad interpretation of “public use” gives too much power to legislatures declaring “eminent domain” to take private property from private citizens to give to others?

12) Do the “Exclusionary Rule” and the “Fruit of the Poisonous Tree” doctrines that the Judiciary created strike the correct balance to you between protecting the 4th Amendment rights of the accused and granting government the power to protect others in society?

1. Would you consider the creation of the doctrines of “Incorporation” and “Reverse Incorporation” to be Constitutionally valid actions by the Judiciary? For this question, you can discuss the creation of either one of those doctrines or both of them. 3) Choose 1 right that is currently protected under “Due Process” or choose 1 group classification that is currently protected under “Equal Protection” that you think should be moved to a different level of scrutiny or removed from the protection of the 14th Amendment entirely. Explain why the right or group classification that you have chosen is not appropriate under the legal standard and the burden of proof of its current level

How to write an argumentative essay This advice will help you write better essays for the Midterm and Final Exams in my classes. I do not know if this advice will help you with other Professors. The first important thing for my essays is to realize that you have to answer the specific question and not just the overall topic. Focus on the actual question and answer every part of the question if there are multiple parts. Take the time to patiently figure out which parts of my question are asking you to write something. If you only answer part of my question, you aren’t going to get a high score no matter how good your essay is for that one part. Read the questions carefully before you start writing or preparing. You need to follow directions and know exactly what you are answering. Do not just write an essay from your prepared notes on the topic that you wanted to talk about. My questions, exactly how I have written them, have to be your focus for you to do well on my exams. The essay should not be a summary of the outside material we studied (or my notes) nor should a large summary be provided of the materials we studied. Do not treat this as a literature review or a review of the material. Any “outside” information (information that is not your own viewpoint) should be treated as evidence and only used to support your arguments after you actually introduce and fully make your arguments. Outside information is only helpful in essays for my class when it is used selectively and tied specifically to your argument. You should not have more quotes/summary of other sources than your own arguments. The essay should not be a summary of the outside material we studied (or my notes) nor should a large summary be provided of the materials we studied. Do not treat this as a literature review or a review of the material. Any “outside” information (information that is not your own viewpoint) should be treated as evidence and only used to support your arguments after you actually introduce and fully make your arguments. Outside information is only helpful in essays for my class when it is used selectively and tied specifically to your argument. You should not have more quotes/summary of other sources than your own arguments. Give me your viewpoint in the form of a thesis statement that directly answers the question that I am asking. Then give me 2-4 main reasons why you believe in your viewpoint in the form of 2-4 arguments with each argument being a paragraph. Then you can introduce evidence to support the already made arguments. If you have a question with multiple parts, you don’t need 2-4 reasons for each part. Some of the parts may not require more than 1-2 reasons for the way that you feel. You know how deep you have to go with argument based on the approximate page limit and how many parts of the question you have. If I ask a question that has 3 parts to it, you know that you don’t need to go more than 1 page for each part to if I am asking you to write a total of 2-3 pages for the entire essay. If there is only 1 part to a question, then you would want 2-4 reasons supporting your thesis. For the midterm and the final exam, you have to have a strong structure for your essay that acknowledges a central thesis position from the start of the essay and provides arguments and evidence to focus on and support that thesis position. That thesis position should be your answer to the question. Do not end your first paragraph without giving your thesis position as it should be the focal point of the essay. You can’t focus on something if you haven’t introduced it. It is also appropriate in the thesis paragraph to “forecast” your arguments after you give your thesis position. “Forecasting” means to give your thesis position first and then immediately provide very brief statements of your arguments afterward. EXAMPLE: This prompt is from an optional Writing Assignment from a previous course: “In a 2 to 3-page essay, answer this question: Does the power of the Judiciary to override decisions of popularly-elected representatives from other branches of government strengthen or weaken the Constitutional rights of the citizenry? Why?” Here is an example of a thesis statement that has forecasting. “The power of the Judiciary to override decisions of popularly-elected representatives from other branches of government definitely strengthens the Constitutional rights of the citizenry. The reasons I feel that way is because factions have taken control of our representative government, the Judiciary is able to best defend against tyranny of the majority, and Judicial Review was originally intended by the framers to be the key power of the Judiciary to protect our rights.” What I did there was briefly summarize the 3 arguments that I plan to use throughout the essay to support my thesis position. With those 2 sentences ending my thesis paragraph, I now have forecast/previewed to the reader what my main supporting reasons are for why I feel the way I do about my thesis position. It is my responsibility to follow-up on them all, but I have already done the first important thing in writing an academic essay: communicating my intentions to the reader. I have also done the first important thing as a writer: prepare my structure. With that task done, it is VERY easy to structure all of my essay paragraphs: Thesis Paragraph: Brief introduction, Thesis statement, Argument forecasting. Also, it is fine to have a 1-2 sentences to start your thesis paragraph that introduce the topic in general but do not spend too much time discussing the overall topic. Discussing the overall topic will not get you points on my exam. Get right into answering the actual question and you do that by giving your thesis position and then getting into your arguments. Forecasting is a way to get points but it’s more importantly a way to get you to focus on the way that you write your essay. Body Paragraph 1: Argument 1. The “factions have taken control of our representative government” phrase will now be turned into a full argument. I will give 2-3 sentences laying out my points with my own opinion and reasoning since this is my argument as to why I feel the way I do about my thesis position. Then I will give some outside evidence while specifically tying the evidence to my arguments. I do not leave it to the reader to make the connection. I make it for them. That is the job of a writer in an academic essay. I also do not include quotes in my paragraph without first introducing them and then connecting them to my points. I will also only choose outside evidence that supports my argument. And I will not use more outside evidence than I need. Just because a quoted sentence comes from a paragraph doesn’t mean I have to use that entire paragraph. Also, do not use the source to make your argument for you. The source just supports your argument by giving some outside credibility/approval/evidence of your points. Body Paragraph 2: Argument 2: “the Judiciary is able to best defend against tyranny of the majority” I do the same to create an argument as I did with the first. Body Paragraph 3: Argument 3: “Judicial Review was originally intended by the framers to be the key power of the Judiciary to protect our rights” ” I do the same to create a full argument as I did with the first and second arguments. Brief Conclusion: You don’t really need a conclusion in one of my timed exams, but you are welcome to provide one. Just don’t bring up a new argument in your conclusion paragraph that you didn’t already bring up and fully make before. Use the conclusion paragraph for any extra insight as to the overall situation. If you use the above structure and provide deep enough arguments with useful evidence and analysis, you’ll have enough of an essay to cover 2-3 page. Session 18 – Thursday, April 15 Topic: Tenth Amendment, Supremacy Clause, State Police Power Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This is like the Ninth Amendment in some ways, specifically the last part. Just as we may have rights not discussed in the Bill of Rights, we also get powers that aren't specifically given to us provided they aren't specifically given to the Federal or State governments. However, this is more about states then the people. For one, citizens are almost never referred to as having "powers". Rather, in the terminology of political science, the government has powers, and the citizens have rights. That language alone hints that the "or to the people" part is an afterthought just put in to make the citizens feel better. How would “powers not delegated to the United States by the Constitution or prohibited by it to the states” mean something different than the Ninth Amendment protection for unenumerated rights? Is a non-delegated power different than an unenumerated right? Discussion Question: Do you think that the Tenth Amendment grants us any specific powers which weren’t delegated to the national government that are different than the unenumerated rights that we have under the Ninth Amendment? Discussion Question: Are there any other powers or abilities that citizens should get from the Tenth Amendment that we do not already get from the Ninth Amendment? I prefer the term “state power” or “state sovereignty” because states don’t have rights: only the citizens of those states have rights. The Tenth Amendment is mainly focused on state government power rather than the rights of the citizens within. The main reason we know that this is about the states is because of the debates that led to this Amendment. This is the Amendment that was put in to respect the concept of federalism and provide a balance between State and National power. Opponents to the original Constitution did not want to see an overly powerful national government which is exactly what they accused the Federalists of wanting. We look at the Tenth amendment specifically as Constitutional protection for State Power. There was a similar clause in the old Articles of Confederation: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." The word "expressly" is important here. An express power is a clear, given power. The Articles were careful not to give Congress, or any other branch, any "implied" powers that were not spelled out. That's what express vs. implied means. The Articles said that unless they specifically and clearly gave a power, it could not be said to exist. But our current Constitution replaced the Articles of Confederation in 1789. And our Constitution is completely full of "implied" powers for the National government that aren't spelled out but are granted. We discussed “necessary and proper” as one example of an express grant of an implied power to Congress. To make things even more confusing, those implied powers have been expanded by the Judiciary. (One can even make the argument that Judicial Review is itself an implied power). The Anti-Federalists correctly predicted that this expansion of government power through the usage of implied powers was going to happen. So, like the 9th Amendment, the Tenth Amendment was a compromise between the two sides so that the AntiFederalists would be comfortable enough with the Constitution to ratify it. However, the Anti-Federalists clearly lost this battle over time as the national government got stronger. The Tenth Amendment does not get as much attention as the other Amendments even though that is starting to change over the past few years. The COVID-19 pandemic is causing people to re-evaluate the Tenth Amendment in regard to what powers the state should have in comparison to the national government. I am not aware of the teaching habits of people in the 1800's but I do get the impression that the Tenth Amendment and the overall concept of state power lost credibility once people used the “state’s rights” concept to try to justify slavery. It poisoned the idea of states having power that could be used to help citizens. However, state power isn’t inherently good or bad when you look at it through the lens of political science and law rather than just history. Furthermore, if you look at modern times, is not even indicative of a specific political ideology to support state power. Someone who supports giving the state more power is not necessarily a Democrat or a Republican. After all, the Democrats and Republicans switch every 4 or 8 years as to whether they support individual states (like California or Texas) against the National Government depending on who the President is. The connection there is politics rather than structural principle. To many it’s not about the merit of state power: it’s about who is using it. But that approach gives us no idea of whether state power is useful or not. Whether you support one side or the other, it is important to understand that there are things that state governments do better than the national government, and vice versa. For example, states governments are able to be more receptive to their citizens since they have a smaller population than the entire national government represents. Furthermore, there is an advantage in having a state government make laws for specific geographical challenges which that state faces as compared to a national government which could not make law responsive to that state without having it apply to a state that doesn’t have those same challenges. One can go a step further and see the value in county and city governments too. The United States is a geographically diverse country in regard to national features like water access. Even New York is geographically diverse. The needs that upstate NY citizens have are different than those in Manhattan. The point here is that governments more local have the ability to respond to the specific needs of their people better than the national government does sometimes. That is why some people support state power regardless of ideology. They may just have a view of power dynamics in the way that Madison had a view of power dynamics. It's about how their states use their power to better represent the people while protecting their rights. You can see a snapshot of how state power is used at any given time: like slavery in the 1800's or COVID regulations now. But the state power vs. national power debate is a broader question than any one issue or any one party. How you see the issue of state vs. national power will influence your view of the Tenth Amendment. *Discussion Question: Do you have any preference as to the balance between National and State/Local governments? Do you think it is better to have a stronger national government or stronger state/local governments? For the purposes of this question, ignore political parties and which ideological movements have been in and out of power over the past 8-12 years. Answer this from the perspective of political science rather than that of partisan politics. This is a question of power dynamics rather than parties or platforms. Limitations of the Tenth Amendment: Supremacy Clause Remember that the Tenth Amendment only discusses powers not already expressly granted to the National government. Whenever you have a situation where the State is trying to claim a power that the National government expressly has, the answer is here: Supremacy Clause – Article VI, Clause 2 of the Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” An express power delegated to the branches of the national government by the Constitution always supersedes State government power. Unless the Supreme Court is claiming that the express national power itself is unconstitutional for other reasons (like violating a right in the Amendments or a power of another branch), the express power will always win against a claimed state power that conflicts with it. Although the Tenth Amendment does not come up very often in cases on its own, here are a few to read if you are interested. You can use these pages to link to cases: https://www.law.cornell.edu/supct/cases/topics/tog_tenth_amendment.html Reno v. Condon is particularly interesting (and easier to understand), Missouri v. Holland is mercifully short for a Supreme Court case but is also a landmark decision in regard to Justice Holmes’ views of Federalism and limitations of Judicial Review. In a case called Crosby v. National Foreign Trade Council, the court found that: “Even without an express preemption provision, state law must yield to a congressional Act if Congress intends to occupy the field, California v. ARC America Corp., 490 U. S. 93, 100, or to the extent of any conflict with a federal statute, Hines v. Davidowitz, 312 U. S. 52, 66-67. This Court will find preemption where it is impossible for a private party to comply with both state and federal law and where the state law is an obstacle to the accomplishment and execution of Congress's full purposes and objectives. What is a sufficient obstacle is determined by examining the federal statute and identifying its purpose and intended effects. Here, the state Act is such an obstacle, for it undermines the intended purpose and natural effect of at least three federal Act provisions.” We have a clear restatement of the Supremacy Clause there. Constitutional Law is clear when an express power of the National government is considered to have supremacy over an express power of a State government. However, Constitutional Law in this field becomes very interesting when either: 1) The states claim power to regulate behavior that a branch of the National government claims they have the implied power to regulate. 2) The states claim power to regulate behavior that a citizen claims they have the right to do without any state interference. Those conflicts bring me to our next topic: State Police Power. We will be talking about this later in the semester when we discuss the case of Lochner v. New York. But the discussion of state police power is very relevant to the Tenth Amendment since it is the way for the states to use the power they were reserved by that Amendment. STATE POLICE POWER The first thing I want to do is make a crucial distinction: “State Police Power” isn’t the same as the power of the state police. “State Police Powers” aren’t powers of law enforcement or the police under the executive branch. We’re not talking about the power of the state police. And we’re not talking about what the local or state police specifically can do to enforce the law. That is a question that we will discuss later in the semester when we cover the Fourth Amendment. State police power refer to broader powers of the state. It’s the power of the state to make laws that govern behavior which affects public health and safety. These are almost always legislative or administrative/regulatory powers. The constitutions of each state can also mention certain powers which are granted to the legislature for the purpose of state police power. Those laws regulate behavior of citizens or may clash with implied powers of the national government. That is why it is so important to understand the concept of state police power and what the limits of it are. Both the definition and the limits have evolved over the past hundred years and are important to understand now State Police Power is actually one of the principles that the United States adopted from English common law. Despite the fact we rebelled against the rule of England, we still adopted a lot of the judge made law and traditions that dated back centuries. There are a number of cases in the United States that set up the concept of state police power. Justice Marshall alludes to it in Gibbons v. Ogden in 1824 and mentions it outright in a case called Brown v. Maryland in 1827. “the power to direct the removal of gunpowder is a branch of the police power, which unquestionably remains and ought to remain with the states.” A case that stands out in its treatment is the 1851 case of Massachusetts v. Alger. This wasn’t a Supreme Court case but, rather, was in the state court system of Massachusetts. “The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinance, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.” There is no question that state police powers are legitimate under the Tenth Amendment. The question is what their purpose are, what do they regulate, and what are their limits. In 1905, two crucial cases involving state police power were decided: Jacobson v. Massachusetts was first and then Lochner v. New York came afterward. We’ll cover Lochner later in the semester, but I want to talk about Jacobson now. State Police Power vs. Citizen’s rights Jacobson v. Massachusetts was about whether a state law mandating vaccinations against smallpox was Constitutional. (It may be a case used by the Supreme Court if they have to decide if states have the legitimate powers to require COVID-19 vaccines.) In Jacobson, a citizen claimed that they should have a 14th Amendment right (claimed under the “liberty” part of the due process clause) to refuse the vaccine and not be punished. Certainly, one can understand how state police power is related to vaccination laws. Justice Harlan wrote the majority opinion for the Jacobson case. In his opinion, he attempted to define what state police powers are since Massachusetts was claiming that their state police power to require vaccines overpowered any right to refuse a vaccine. “The authority of the state to enact this statute is to be referred to what is commonly called the police power. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and 'health laws of every description. indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” That is a definition that has been largely consistent. Just as a point of comparison, the Supreme Court in Lochner v. New York defined police powers like this: “There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public.” But back to Jacobson vs. Massachusetts. After Justice Harlan explained police powers, he said what the scope of those police powers are. “According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” “Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case… We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.” Harlan established that for a law to be a valid exercise of police power, it must be necessary and reasonable. By reasonable, Harlan meant “not arbitrary”. Harlan said these laws must have a “real or substantial relation” to the purpose of the law. Going back to the discussion of Congress’ implied powers, we said that the term “necessary” is not clear. The term “reasonable” is also not clear. They are both vague terms which people can have different definitions of. That means that laws you think are “necessary” for something may not be what someone else considers to be “necessary.” Therefore, the Jacobson rule discussing the legitimacy of state police power is open enough to interpretation that different people can see their desired results in the rule. The ultimate question in this case is whether a court can use judicial review to strike down a law that the state claims is made under state police power when a citizen claims the law infringes on their Constitutional rights. To this, the court gives the answer: “If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” What Harlan is saying is that the courts are only justified in using judicial review to strike down a law under state police power if that law has no necessary or reasonable connection with the state’s interest to protect the public health, morals, or public safety. This means that state police power can legitimately allow a state to pass a law which does infringe on the Constitutional rights of citizens if that law is necessary and reasonable to protect the public health, public safety, or morality. Of course, morality is very vague. Discussion Question: Should a state have any ability to pass laws in favor of protecting the morality of the public? How would they determine what morality is? Discussion Question: Even if a law is considered to be reasonable and necessary to protect the public health, should it be allowed to infringe Constitutional rights? What type of circumstances would you consider this to be a legitimate principle? The Jacobson case ended with the Massachusetts statute being upheld. The Lochner case acknowledges this precedent, including the necessary and reasonable requirements. However, Lochner ended with the NY state statute being held to violate rights. So even when the same rules are used, the courts will apply them differently to the facts. However, future cases did not all bring along the necessary and reasonable requirements with them. As a result, those courts give the states more power under state police power to govern behavior without using necessary and reasonable to limit them. Without those limiting terms, the states have a lot more power. If a law doesn’t have to be necessary or reasonable for the public health, it’s easier for a law to exist without being struck down. Courts that don’t apply those two standards give more power to the states. However, it’s unclear whether or not “necessary” and “reasonable” count as part of the rule in the Jacobson case or is just the way that Justice Harlan applied the overall rule of state police power. Courts have the ability to interpret precedent their own way. Discussion Question: Should “necessary” and “reasonable” be part of the test for a court to determine if a law made under state police power is able to limit a Constitutional right? As of 2020, the doctrine of state police power is very much still in effect. However, it is unclear whether a court today will give a state broad discretion to create laws to protect public health and safety or limit them to create laws that are necessary or reasonable. One thing is for sure – this was not a question that was asked to any of the recent Supreme Court nominees. And yet it is a question of profound importance for federalism, especially in an era where states are creating laws related to COVID-19. How likely a court is to strike down a state law is tied to their understanding of the limits of state police power. The less they feel it is limited, the more likely a state law will survive against a citizen claiming that their constitutional rights were infringed by that law. Remember that state police power gets its power from the Tenth Amendment. Should the Tenth Amendment ever give the states enough power to limit our rights under the other Amendments? Was that the purpose or legitimate usage of the Tenth Amendment? State Police Power vs. power of the National government However, it is not just citizen rights that can be infringed by state police power. What about the powers of the national government? What if state police power potentially infringes on the Constitutional rights of citizens protected by the National government? Is State Police Power ever a potential infringement of the Supremacy Clause? Possibly. The 14th Amendment has multiple parts to it. Specifically, it has a section at the end of it which relates to government power and resembles a “necessary and proper” clause. “Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” In other words, Congress will have the power to create certain laws when it is necessary to uphold the citizen’s rights in the 14th Amendment. This provides us with a crucial follow-up question: What happens when the court finds that a law which legitimately counts as state police power clashes with Congressional law created under Section 5 of the 14th Amendment? The Jacobson (or Lochner) case did not involve any Congressional law passed to enforce liberty in the 14th Amendment. This wasn’t at issue. However, what if Congress had created a law to enforce “liberty” or even “privacy” in avoiding vaccinations? One could say the “liberty” to avoid mandated vaccinations could be considered a type of privacy. Would this be a violation of the Supremacy Clause? Once again, here is the text: Supremacy Clause – Article VI, Clause 2 of the Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” If the Tenth Amendment isn’t supposed to interfere with the express powers of the National Government, what happens if a Court finds that state police power allows a state to infringe on a right protected under the 14th Amendment protected by Congress? We have a hypothetical clash between an express power of Congress and state police power. This is a clash between the 10th Amendment and the 14th Amendment (which came much later). Even if that state police power law was made to regulate health in a necessary and reasonable way, the Supremacy Clause says that Congressional power should win out if Congress passed a law protecting a right under the 14th Amendment. Discussion Question: Should Congressional law passed under Section 5 of the 14th Amendment, that enforces a citizen’s right, ever be defeated by a state law challenging a that right if that state law is seen as valid police power? In other words, do you think the state should be granted a valid exception to the Supremacy Clause of the Constitution when State Police Power is invoked to create law that involves “the safety, health, morals and general welfare of the public?” Should Congressional legislation be impeded by State Police Power legislation? The challenge here is one we’ll further discuss in a few weeks. Like the 9th Amendment, The 14th Amendment doesn’t name any specific rights protected under it. The Legislature and the Judiciary have the ability to decide what rights can be protected. However, if the Legislature believes one has a right to privacy under the 14th Amendment and creates a law (Under Section 5) enforcing that privacy, the Judiciary may not agree that privacy should be protected by the 14th Amendment. As a result, state police power would prevail since it would not actually be violating any Constitutional rights according to the court. If this seems complex, it should be. This is the type of debate that reflect the higher levels of disputes within Constitutional law. Once you factor in Legislative and Judicial interpretation of unenumerated rights into the 14th Amendment, it complicates the question of whether those rights should be protected against state police power if you also have a Congressional statute made under Section 5 that is protecting those rights. Not only do you have national power vs. state power, but both affect our Constitutional rights. The choice of the Judiciary as to what rights to interpret into the Constitution has a direct effect on whether state laws made under state police power can infringe them. Reading Assignment for Session 19: - Inside Constitutional Law – Chapter 7: Pages 187-191, 202-206. - Lochner v. New York: https://supreme.justia.com/cases/federal/us/198/45/case.html - Read Session 19 notes. 2 Untitled document File Edit View Insert 100% 1 Tools Normal text 1 Add-ons Help Times New… 2 Last edit was seconds ago 12 3 4 5 6 1 2 Format Share 5 4 3 2 1 If the court does not use it, the concept of State Police Power is not necessary to reach the Tenth Amendment too far because there are things we must consider, especially the public health and safety. In today's time when the world is facing a severe health crisis caused by COVID 19, we need to think about what to do and we need to prepare for what may happen in the future, welfare and safety must be considered. Like Jacobson v. Massachusetts issue, there is also a part of the world that is debating on whether everyone should be vaccinated or not. There are things we need to consider, first, the condition and health of the elderly, we know that they are weak and they may not be able to cope with the effect of the vaccine on their body because they already feel unwell. Second, those with severe diseases they might get worse. Third, children may not be able to cope the impact of the vaccine. There are just a few of the reasons to look at today, maybe there are other things that can help to prevent and avoid getting the virus. State Police have power to enforce the laws mandated by the constitution but they must respect human rights. There's no need for violence or coercion to do what we want to happen in society. We just need to unite, respect each other and make it clear why something like vaccinated needs to be done. Let's not force it, that's part of every person's right, to refuse especially if it knows it has a negative effect on other vaccinators. Even though the government has said the imporatnce of the vaccine and what it can do to the body and since not everyone want likes to have it, what the police can do with their power is to monitor whether the health protocol is being followed and being strict with every boarders of the state. 7 8 Surname 1 Student Surname Instructor’s Name Course Date Constitutional Powers The debate on courts' declaration of legislative decisions as unlawful has been in the public domain for many years. Such questions raise legitimacy concerns regarding issues about democracy. Similarly, the legitimacy of the judicial review of legislation is based on the constitution, which the elected representatives ratified. Therefore, the courts' power to examine the actions of the legislative, executive, and administrative arms of government alongside the determination of constitutionality is not legitimate. I feel that way because it is incoherent with the idea of democracy as a representation of the ultimate principle that underlies legitimate Lawmaking; it violates the fundamental democratic principle of equal consideration of everyone's interest, and that judges are not electorally accountable to the people. Judicial review violates the fundamental democratic principle of equal consideration of everyone's interests. I think that the courts' decision to overrule legislative laws based on the constitution appears to be a firm conception of democracy. Democracy appeals for the people's common interest and laws are primarily argued for social welfare that promotes every individual's good. The premise of people's interest should not only be considered but also addressed by the government decisions. Hence, an approach to democracy in terms of equal rights, freedom, and equal political participation renders decisions by courts to overrule legislative laws as undemocratic. Most importantly, I think it questions the constitutional legitimacy of judicial review since it does not represent the people's views. Similarly, judicial review is incoherent with the idea of democracy as a representation of the ultimate principle that underlies legitimate Lawmaking. The reasoning in the case of Marbury v. Madison, in which the Chief Justice argues that people have the right to establish for their future government, I consider it to be a contradiction of the power of the judiciary to overrule this decision. People and their representatives have the right to rule over their society and make laws that they consider essential for every individual's common good. Also, it is a case of popular sovereignty, and it requires the continuity of democracy. Therefore, it is my deduction that, courts should always uphold laws representing the will of the actual people and their representatives. Consequently, the judiciary's power to make such decisions should not be legitimized since it contradicts the basis of democracy outlined in the same constitution it seeks legitimacy. Furthermore, the judiciary is made up of judges who are not electorally accountable to the people. As it is in the public domain, judges do not represent the people's will in they do not undergo the electoral process where people get to elect them as they do with their representatives. Representatives bear the views and interests of the people they represent. Hence, I consider the lack of powers by judges to personify the citizenry questions their accountability to the people. Constitutionally, appointments of federal judges are done by the executive, are for long-term purposes. Also, their positions are generally political as the powerful seek to dictate its functionality. In sum, the exercise of power by the judicial review constraints the citizens' equal rights in exercising democracy by taking part in the influence of government decision-making processes that directly influence their lives. Surname 2 Overall, I consider the legitimacy of the power of the judiciary to be questionable as it raises democratic concerns. Judicial review is incoherent with the idea of democracy, meant to offer a representation of the ultimate principle that underlies legitimate Lawmaking. Lawmaking is a democratic process that incorporates the will of the people; hence, it questions the judicial power's legitimacy. Also, I think it violates the fundamental democratic principle of equal consideration of everyone's interest and that judges are not electorally accountable to the people. The people's rights are engraved in the constitution, and giving power to the judiciary to overrule laws is a contradiction of its mandate.