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.

I’m working on a political science discussion question and need an explanation to help me understand better.

 

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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

    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

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?

 

UNFORMATTED ATTACHMENT PREVIEW

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 19 – Tuesday, April 20 Topic: Lochner Era 1: State Police Power Lochner v. New York (1905) https://www.law.cornell.edu/supremecourt/text/198/45#writing-USSC_CR_0198_0045_ZO Lochner is one of my favorite cases to analyze and teach in Constitutional Law. I get something new out of it every time. Since the case can be approached from alternative perspectives depending on what you are specifically studying, you can focus on different aspects of the case every time you read it. I’ve taught this case in different courses with perspectives ranging from “the effect of economic ideology on Constitutional law” (POL 420) to “whether judges should exercise judicial restraint in invalidating legislatures (POL 235). I taught it earlier this semester in my POL 305 course as a prelude to the question of whether citizens have the right to state mandated COVID-19 vaccines. However, for this course I am focusing on Lochner from the perspective of Judicial power competing with state police power and as a prelude to the question of court packing. Lochner isn’t just a case, it’s also a nickname of 30 years of cases decided by the Supreme Court in the early 20th century. This group is called the “Lochner Era” and these are cases where the Judiciary overturned state and federal legislative statutes that were said to have interfered with the liberties of the citizens. The liberties in question were of the economic variety. During the era, the Court struck down these statutes using the Due Process clause of the 14th Amendment. The Lochner case deals with the “due process” clause of the 14th Amendment which we covered last week. The text of that specific clause reads: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” One of the issues in this case is whether liberty of contract can be counted as one of the specific liberties to be protected in that clause. Since the clause just says “liberty”, it is an open-ended question as to what types of liberties are protected. I am mentioning this now as a transition from last week. Let’s get into the case. Here is the factual background for the Lochner case: New York State passed a law called the “Bakeshop Act” regulating sanitary conditions in bakeries and setting requirements for the maximum number of hours that bakery employees could work. That limit was 10 hours per day and 60 hours per week. In considering what the intentions of the NY State Legislature were, and whether or not you think the Judiciary should give deference to them, it is important to consider all of the theories considered as to what the State was trying to do. NY claimed that the Bakeshop Act was to protect worker safety. The main analysis of this case by Peckham (and us) will take that claim as largely truthful. But it was believed by some that the State wanted to protect American workers against foreign workers who had recently immigrated and were willing to work longer hours. This era saw a large wave of immigration into NY and many were concerned about that. That context is important in considering whether the actual State purpose for this law was legitimate in interfering with the liberty to contract, and whether the Judiciary was actually needed to protect both a liberty and the rights of a class of citizens against a State that may have been trying to target them. Discussion Question: In determining the Constitutionality of a law, should a Court consider a rumored motivation unstated by a legislature if the plaintiff in a case challenging that law didn’t make the argument that motivation exists? In other words, do you think the court in Lochner should have directly considered the theory that New York was just trying to protect the competitiveness of domestic workers as its main intention rather than protecting the health/safety of workers? If the plaintiff (Lochner) didn’t make that claim The NY Bakeshop Act became the law and bakers had to follow it. Joseph Lochner, the owner of a bakery was indicted as a criminal under this law. It’s important to note the allegations here. He wasn’t alleged to have forced an employee to work more than 60 hours. Rather, he was alleged (and admitted) to allowing an employee to do so. There was no claim or evidence of coercion. One can definitely note the power imbalance between an employer and an employee and use it to speculate about coercion. One can say the employee felt pressured to take extra hours. However, that was not the claim made by the State. Lochner paid the first fine but appealed the second fine, which he lost. He argued that the 14th Amendment should be understood and interpreted as containing the liberty of contract among the Constitutional liberties contained in due process. He did not make the argument that the 14th Amendment expressly mentions anything about the liberty to contract with a third party as that is not the case. Again, the 14th Amendment provision being referred to here is: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” There is no question that the 14th Amendment is broad in its language and that it does not contain an enumerated contractual liberty. You would need a form of loose legal construction to connect broad concepts like “liberty and property” with a specific liberty of contract. The effect of the words on the page would have to be altered by some external economic-philosophy theory to read liberty of contract as being covered by the language of “life” or “and property” of the Constitution. The NY Courts did not buy that argument as legitimate. Lochner fought the law unsuccessfully in NY up until the U.S. Supreme Court heard the case. Ironically, Lochner’s attorney had been a big supporter of the Bakeshop Act before this case. Here is the very brief procedural history of the case: First NY Appellate Court: “The law setting maximum hours on bakery employees does not violate the Fourteenth Amendment.” NY Court of Appeals: “The provision on maximum hours is not an unconstitutional limitation on the freedom to contract.” When the U.S. Supreme Court heard the case, they agreed with Lochner. Justice Peckham wrote for the majority of the Supreme Court in siding with Lochner. “The statute necessarily interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. Under that provision, no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right.” By “necessarily” Peckham isn’t saying that the statute was needed here. Rather, he is saying that it unavoidably interferes as if there is no way it could not. He is making a “therefore” statement saying the interference is bad rather than needed. Therefore, the Bakeshop Act was clearly seen to factually violate the liberty of contract that Peckham read into the due process clause of the 14th Amendment. However, there is a crucial exception given at the end of that paragraph which is important. He says this right is limited when circumstances exist. The main issue in this case is whether those circumstances are actually present here. Peckham called them “police powers” – which they are referred to in past cases as well. “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.” State Police Power Before going further into the case, let’s discuss the concept of State Police power. This is crucial: “State Police Powers” aren’t powers of law enforcement or the police under the executive branch but the powers of the state overall. We’re not talking about what the police specifically can do to enforce the law. This isn’t a question about what the police can do under the 4th Amendment. We’re talking about the power of the state to make certain laws and govern certain behavior. These are almost always legislative or administrative/regulatory powers. The idea of State Police power was actually created by the Judiciary. 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. A case that stands out in its treatment is the 1851 state case of Massachusetts v. Alger. “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.” Those courts originally created the idea of State Police power because they saw it as a legitimate application of the 10th Amendment. As a reminder, that says: “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.” The Lochner case did not establish State Police power. It didn’t even re-define it. We’ll talk later about the effect that Lochner had on it. But let’s get back to the point of the case we were at. “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.” Justice Peckham next defines what his view of State Police Power is: “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. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers, and with such conditions the Fourteenth Amendment was not designed to interfere.” He says that the “liberty” and “property” parts of the due process clause of the 14th Amendment should not interfere with a valid exercise of State Police Power. Peckham then goes into further detail about how these police powers related to general welfare affect economic liberties, particularly those of contract. “The State therefore has power to prevent the individual from making certain kinds of contracts, and, in regard to them, the Federal Constitution offers no protection. If the contract be one which the State, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the Fourteenth Amendment. Contracts in violation of a statute, either of the Federal or state government, or a contract to let one’s property for immoral purposes, or to do any other unlawful act, could obtain no protection from the Federal Constitution as coming under the liberty of person or of free contract.” The question here is when can state police power out-prioritize the 14th Amendment or other rights, liberties, or even powers granted in the Constitution? Peckham says some contracts don’t get Constitutional protection. The contract is illegal if it interferes with legislation made through legitimate state police power. By saying “legitimate”, Peckham is saying that not all powers claimed as state police powers can override Constitutional law, but some legitimately can. Next, Peckham makes a statement of the broader issue in the case. This case has many smaller issues such as “is libert …
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