3. Improvement of the process
In my opinion the process could be improved.
Firstly, it could be improved through combination selection systems. A merit selection has to be guaranteed. It would thereby mean to allowing elected officials, citizens, and judicial applicants to evaluate their roles in such a system and the quality of judges produced by such systems.
Secondly, it could be improved through judicial performance evaluation. Such programs serve to improve the quality of the judiciary by encouraging self-examination and improvement. Evaluation criteria could be legal ability, communication skills or administrative capacity.
Thirdly, it could be improved through voter guides. Voter guides provide voters with information about judicial candidates. It could be attempts to persuade voters based on political viewpoints or legal philosophy, but to offer the opportunity to include biographical information and a short statement to voters.
Fourthly, it could be improved through campaign conduct committees. These committees have to encourage ethical and appropriate campaigning by judicial candidates.
Fifthly, it could be improved through a campaign finance reform. This reform could include more stringent disclosure requirements, better recusal standards for judges whose contributors later appear before them in cases, stricter limits on campaign contributions, and public financing of judicial campaigns.
Overall through this proposals accountability and transparency of the electing process of judges would be given.
Question 2: Briefly list or describe the subject-matter areas in which the Congress has legislative jurisdiction. Should Congress's jurisdiction be narrowed, broadened, or left as is? Please explain your answer
The United States is a federalist system, meaning that legislative authority is dispersed between two tiers of government, federal and state. The Congress maintains legislative jurisdiction in a vast range of subject-matters specified in the US Constitution.
1. Enumerated Powers
Article I, Section 8 of the Constitution grants Congress enumerated powers. This section grants Congress authority over financial and budgetary matters, through the enumerated power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States. The Constitution also grants Congress exclusively the power to appropriate funds. Other powers granted to Congress include the authority to borrow money on the credit of the United States, regulate commerce with foreign nations and among the states, and coin money. The Constitution also gives Congress an important role in national defence (power to declare war, maintain the armed forces and to make rules for the military). Congress also has the power to establish post offices and post roads, issue patents and copyrights, fix standards of weights and measures.
2. Necessary and Proper Clause – Commerce Clause
In addition to the very specific powers given to Congress by the Constitution, it also includes a more general or open provision, namely the Necessary and Proper Clause. It states that Congress shall have the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof”.
The Commerce Clause is perhaps Congress´s most important power. The Commerce Clause grants Congress to “regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes”.
3. Constitutional Amendments
The legislative jurisdiction of Congress have been further granted by Constitutional Amendments. The thirteenth, fourteenth and fifteenth Amendments broadened Congressional authority to enact legislation enforcing the rights of African Americans, such as voting rights and equal (political/legal) protection. The Sixteenth Amendment extended power of taxation to include income taxes.
4. Others
In Article IV of the U.S. Constitution Congress also has the power to admit new states to the Union.
5. Congress's jurisdiction - narrowed, broadened, or left as is
The United States Congress is a bicameral legislature of the federal government of the United States of America. It consists of two chambers: the House of Representatives (“lower house”) and the Senate (“upper house”). The U.S. Constitution has a great impact on the U.S. law. It gives the Congress the power to enact federal law on certain subjects. Article I of the U.S. Constitution vests all legislative power in the Congress. In this manner the House and the Senate are equal partners in the legislative process.
According to the Constitution, all powers not delegated to Congress are reserved to the states. In other words states can pass laws on matters in which the Constitution does not grant jurisdiction to the federal government. In view of this it is necessary to examine the U.S. Constitution to explain the legislative power of Congress. In Article I, Section 8 includes numerous explicit powers (“Enumerated Powers”). Congress also has implied powers derived from the “Necessary and Proper” Clause or the “Commerce Clause” of the Constitution. Furthermore “Constitutional Amendments” have granted more power for Congress.
In order to the listed legislative jurisdiction power above, the U.S. Congress is a very powerful institution. On the one hand it may be argued that the power of Congress is to strong because of the “Commerce Clause” or the “Necessary and Proper” Clause. Broad interpretations of this clauses have effectively widened the scope of Congress' legislative authority far beyond that prescribed in Article I, Section 8 U.S. Constitution. On the other hand it can be argued that in a federal country, like the United States (with its fifty states and its own constitutions) need a strong and powerful federal jurisdiction to rule the country. Further, this ruling can only be guaranteed by a strong and powerful Congress.
On the contrary all federal and all state laws in the United States have to comply with the U.S. Constitution. And while state constitutions may expand rights granted to citizens, they cannot take away rights granted by the federal Constitution. Federal statutory consists of laws passed by the U.S. Congress under the rules by the U.S. Constitution. This statute can be blocked from passage by a veto from the President (Article II Section 2 U.S. Constitution). A federal statute is also subject for review by the federal courts and may be declared unconstitutional. These are important elements of the separation of powers and the system of checks and balances under the U.S. Constitution.
In the following example the U.S. Supreme Court issued a decision that narrowed and defined the scope of Congress’ authority to regulate under its commerce powers.
In United States v. Lopez the U.S. Supreme Court restricted the extent of Congress’ Commerce Clause powers by setting forth three broad categories of activity that it may regulate. The court reasoned that if it were to allow Congress to regulate activities far removed from commerce, then there would be no limits on its powers under the Commerce Clause. Since the Constitution clearly creates a Congress with “Enumerated Powers” such regulation is not allowed.
In my opinion the Congress jurisdiction should be left as it is. It is fundamental in a liberal democracy to have legislative authority dispersed between two tiers of government, namely the federal and state governments, and then further separated through three different arms of government, namely the legislature, the executive and the judiciary. The current framework, which allows Congress to legislate on matters of national importance and leaves all other matters in the jurisdiction of the more localised state governments strikes this balance well.
Question 3: Should morbidly obese people be recognized as a "suspect class" for purposes of equal protection analysis? Why or why not?
Morbidly obese people could be recognized as a “suspect class” consider to equal protection.
1. Equality Protection
Before deliberating on whether morbidly obese people should be recognized as a “suspect class” one must first gain an understanding of the origins of the term and the reasons behind its usage. Basically the Equal Protection Clause guarantee the fairness of laws. In the 14th Amendment is stated: “No State shall deny to any person within its jurisdiction the equal protection of the Laws.” Under equal protection the individual claims rights as a member of a group (“group disadvantaging principle”). The Clause in essence guarantees that people who are similarly situated will be treated similarly. In order to this is also guarantees that people who are not similarly situated will not be treated similarly.
The Supreme Court employs strict scrutiny when the government discriminates against a “suspect class”. Therefore strict scrutiny is applied for any classifications that involves a “suspect class”. It is a status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny. The Supreme Court has seemed unwilling to extend full “suspect class” status to groups other than racial minorities, national origin and for some purpose alienage. Therefore strict scrutiny will only be applied where the differential treatment of the class is intentional on the part of the government and it must be invidious.
2. Analysis
On the one hand may be argue that morbidly obese people represents a group of people with a disability in a wide sense. In my opinion fat acceptance and disabled rights have significant areas of overlap. Both groups have a special position in society. Furthermore both have to fight for acceptance in society. In the end, both movements are about the idea that there is no one correct form that all human beings are obliged to fit into, or to work to become; and that all human beings, regardless of how their bodies differ from the average, are deserving of equal dignity and equal rights. Thus morbidly obese people deserve a greater judicial scrutiny and should be recognized as a “suspect class” for equal protection.
To look at this in another way, adiposity is responsible for 2.6 million fatalities worldwide per year and at least 2.3 percent of all health costs. This could be regarded for morbid obese people to belong to a “special class”. Moreover that this “special class” needs a special protection and has to be classified as a “suspect class” for equal protection. For many years it has been a common theory that obese people tend to have hypertension and therefore have a higher risk to sustain a myocardial infarction compared to “normal people”. But according to a survey done by the University of Michigan from 1999 to 2004 many obese people show rather normal blood test results. The results seem to depend on things like smoking, the amount of movement, and the age much more then on pure body mass index. So a high body mass is not equivalent to an increased health risk, as long as it is moved adequately. The risk of cardiovascular diseases increase for older people, smokers, and people being inactive concerning sports. Thus all these groups would have to be “special classes” and deserves a special protection as well. In this manner morbid obese people would be not concern to a “suspect class” of equal protection.
On the contrary to strict scrutiny and a “suspect class” stands the “Mere Rationality” Test and a “non suspect class”. Within the U.S. a “suspect class” can be defined as a group of people recognisable by immutable traits, such as race or national origin for example, who are more likely to be the subject of a history of discrimination. They are therefore entitled to equal protection through judicial scrutiny of any laws that unconstitutionally discriminates against or negatively affects the group. There are various levels of protection under the term “suspect class” with numerous groups such as the mentally and psychically disabled and homosexuals only receiving an “intermediate” level of scrutiny. The groups receiving the most protections are racial and religious groups who have the long history of discriminatory laws and face numerous disadvantages. In order to that have morbidly obese people not such a long history of discriminatory laws.
An alternative may be the fact of immutability. The characteristics of race is a determinative feature of personality. The un-changeability of race is one reason for the classification as “suspect class”. Moreover immutability is the key for the suspect ness of the classification. In contrary morbidly obese people do not have such a immutability feature. In order to that it is not possible to treated them similarly to a “suspect class” based on race.
3. Conclusion
Morbidly obese people can not be recognized as a "suspect class" for purposes of equal protection. On the basis of sharing an overt characteristic and certain physical disadvantages, which means that specifying them into class could prove difficult. Although much unjustified hate and derogatory comments are directed towards the morbidly obese, can not justify their recognition as a “suspect class”. The U.S. courts are unlikely as they have been in the past to include a group that is based on neither religious, nor racial grounds into the protection of the 14th Amendment and I concur that their inclusion would not be justified.
Question 4: The U.S. Constitution has been interpreted by the courts to allow members of the public to say rude, vulgar, and profane things to public officials. Do you think this is necessary or desirable in a democracy? Why or why not?
The right of public members to say rude, vulgar, and profane things to public officials could be necessary in a democracy.
1. Freedom of Expression – Freedom of Speech
Freedom of expression and especially freedom of speech are key features of a democratic society. The Freedom of Expression is guaranteed by the First Amendment. It provides the freedom of speech, freedom of the press, the right to assemble and the right to petition. On the basic of this principles it guarantees the power to give voice to discontents and has helped to define both, the people who have been able to speak out and those who have primarily listened. Moreover it forms one of the boundary lines between relatively open and closed societies, between liberal democracies and different types of authoritarian states like China, Iran, North Korea or Zimbabwe.
In particular freedom of speech is the liberty to express opinions and ideas without hindrance, and especially without fear of punishment. Moreover it is necessary for self-governance and promotes individual autonomy. Despite the constitutional guarantee of free speech in the United States, legal systems have not treated freedom of speech as absolute. Although speech is freer in the United States than in many societies, federal and state laws do restrict some kinds of expression. For instance, speech are restricted by law because they are regarded as damaging to society as a whole. The liberal tradition has generally defended freedom of the sort of speech which does not violate others' rights or lead to predictable and avoidable harm, but it has been fierce in that defence because a free interchange of ideas is seen as an essential ingredient of democracy and resistance to tyranny, and as an important agent of improvement.
Basically it is to distinguish whether a expression falls within a category that is protected by the First Amendment or not. Unprotected categories are obscenity, fraudulent misrepresentation, defamation and fighting words. In the contrary protected categories consider a 3-part test.
2. Analysis
Is it really necessary in a democracy to allow members of the public to say rude, vulgar, and profane things to public officials?
On the one hand one may argue that “offensive” and “dangerous” speech as a part of larger commitment to promoting a diversity of individual viewpoints and encouraging the free flow of ideas needs to be protected in a democratic state. Regarding to this it would be more than desirable, and in this manner not against the law, to say rude, vulgar and profane things to public officials. On the other hand the public officials are representatives of a state and have a “special” position in the society. They usually working for the government, courts, the police or a public facility in general. At least they serves through their work the public society and conduct through their work in a “special” responsibility. Therefore they may need a special protection in society. Regarding to this point of view it would be not necessary to say rude, vulgar and profane things to public officials.
To look at this in a historical way. The Bill of Rights was written in 1789 as amendments to the US Constitution. By granting the right to criticise the actions of government, the Framers ensured the colonists’ freedom from ‘tyrannical’ governments such as their former rulers, the British Monarchy. The right to direct rude, vulgar and profane language towards public officials is simply the extension of this concept; it reaffirms the notion that those in government are not to be treated as ‘above’ their constituents – their power and privilege comes only from the consent of those who elected them. As Abraham Lincoln pointed out that “Democracy is the government of the people, by the people, for the people”. In other words, the public officials are member of the society and part of a democratic state. Resulting from this it would be necessary to allow members of the public to use rude, vulgar and profane language against public officials.
Alternatively it may be argued that rude, vulgar, and profane language towards officials can be summarized as “fighting words”. Basically these are words which are likely to make the person to whom they are addressed commit an act of violence, probably against the speaker. In this context it would be not protected by the freedom of expression. It could be flatly banned or punished by the state. In Lewis v. City of New Orleans were “fighting words” define as anything abusive and insulting, under face-to-face circumstances likely to provoke an immediate violent response. So it would be not necessary to allow members of the public to use rude, vulgar and profane language against public officials if this is summarized as “fighting words”.
Lastly it may be argued that by allowing members of the public to say rude, vulgar, and profane things to public officials it come to a broader possibility of criticism. Moreover to an offensive speech and expressive conduct. At least to an “un-safety” form of public criticism. However, the necessity to use such a language would also mean that offers a “more” of freedom and a bigger liberty. Writing in 1756, even Benjamin Franklin agued that “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety”. That implies that allowing members of the public to use rude, vulgar and profane language against public officials would be necessary.
3. Conclusion
In my conclusion the interpretation of the U.S. Constitution by the courts to allow members of the public to say rude, vulgar, and profane things to public officials is necessary in a democracy. Democracies are currently the most progressive system of government on Earth. Democracy is seen as superior to other forms of government precisely because of the freedoms it offers to those who live within it. People are free to use language however they like, just as they are free to wear whichever clothes they like and, more importantly, vote for whomever they like. As one of the three branches of power, courts are expected to interpret the words of statutes and the constitution in the manner intended by their authors. Quite rightly, courts have made very broad and general interpretations in order to allow for the maximum amount of personal freedom. Indeed, the overall purpose of the Bill Of Rights is to limit the scope of government interference into peoples’ lives, thereby promoting private freedom as a right held by all American citizens. In addition is the right to criticise the actions of those elected to lead our society, at the core of our values system. The system of responsible government (a government that can be held accountable for its actions by the people) is partly enforced by the first amendment of the Bill Of Rights, which guarantees that the government cannot make any law which impedes freedom of speech.
Question 5: Your client, a travel agency, is negotiating with the US National Park Service to offer holiday travel packages to Yellowstone National Parks in the United States. Your client intends to market the travel packages to select to gay couples who are of Asian extraction. Do you see any potential violations of federal constitutional rights that your client should know about? Please summarise your advice.
The travel agency could violate constitutional rights in relation to equality. They intend to market travel packages exclusively to gay couples, of Asian extraction, which could breach discrimination based on race and sexual orientation.
1. Discrimination – Equality Protection
Equality in a literal sense is not articulated in the original Constitution nor in the Bill of Rights. However, one of the main ideas in the U.S. Constitution is that “all men are created equal”. Moreover, the equal protection clause (14th Amendment) guarantees the fairness of laws. In order preserve this equality protection it requires the absence of illegal discrimination.
Thus, discrimination is not allowed.
As we could see, Constitutional rights have sometimes different levels of protection. In relation to sexual orientation and race two different levels of scrutiny exist. Race is qualified under “strict scrutiny” and therefore groups are considered a “suspect class”. On the contrary, sexual orientation is not qualified under this level of scrutiny. So one has to distinguish between these classes.
- Race
Race and national origin are classified as “suspect classes” and are highly protected. In the following case the travel agency would breach federal constitutional rights by offering travel packages only for people of Asian extraction.
- Sexual Orientation
Sexual orientation is generally defined by the Wisconsin Fair Employment Law as having a preference for heterosexuality, homosexuality or bisexuality, having a history of such a preference or being identified with such a preference. Basically it is not classified as a “suspect class”. We can see this in the example of same sex marriages in the United States. They are not accepted on federal level and no federal marriage amendment exists. However, on state level, like in Massachusetts, same sex marriages are protected. Also, sexual orientation is not protected by federal constitutional rights. Thus discrimination against sexual orientation, like offering travel packages only for gay couples would not breach federal constitutional rights.
In conclusion, only racial discrimination is protected by federal constitutional rights. A discrimination against sexual orientation would not breach federal constitutional rights.
2. Equality Protection in Private Matters
Resulting from this it is questionable whether constitutional rights are applicable in private matters or not.
Firstly, constitutional rights are explicitly protected by the U.S. Constitution. Basically the Amendments to the Constitution are rights to protect private persons before unjustified state power. Here a travel agency intends to offer travel packages. In this matter the agency is not covered by state action. Thus, constitutional rights would not be applicable.
Furthermore, it may be argued that in business relations constitutional rights are not important. The most important factor may be “the freedom of the market”. In other words, if a travel agency offers journeys targeted to specific groups - for children or adults, for blind people or only for married couples or for gay couples of Asian extraction, there is no difference. In a liberal market everybody can offer what he wants. Thus, constitutional rights would not be applicable either.
On the contrary it would be very suspicious if such fundamental civil rights like equality protection are not applicable in private matters. At least since Rosa Parks we could see that constitutional rights are also important in private matters. Moreover the Constitution should be seen as a catalogue of “precious” rights which means to protect them in any situation. Even in the Civil Rights act of 1875 was stated that everyone, regardless of race, colour, or previous condition of servitude, was subjected to the same treatment. Furthermore the Civil Rights act of 1964 was a milestone of legislation in the United States that outlawed, for example, racial segregation.
Above all constitutional rights are important for social relations in a state. Therefore these rights are applicable in private matters.
3. Discrimination through the Travel Agency
The travel agency could explicitly or implicitly discriminate through their intention to market the travel packages exclusively to gay couples who are of Asian extraction. A explicit discrimination means that the action specifically disadvantages a racial or other protected group. A implicit discrimination means that an action on its face is neutral, but the enactment is motivated by illegal discrimination.
Here the travel agency obviously wants to offer the travel packages. Thus, the travel agency would explicit discriminate by offering travel packages exclusively to gay couples of Asian extraction.
4. Conclusion – Legal Advise
I would advise the travel agency not to offer the travel packages. It would obviously violate racial equality. In my opinion I would recommend the travel agency to offer their service for all the public equally and specialize in their marketing or promotion. So this way everybody gets the same chances, no equal rights would be violated, and the free market would regulate that gay couples of Asian extraction book these travel packages at this travel agency as it acts as a specialist for this demographic.
State Alaska, <> at 10. August 2009.
To be eligible for appointment to the supreme court and the court of appeals, a person must be a citizen of the United States and a resident of Alaska for five years prior to appointment. A justice must be licensed to practice law in Alaska at the time of appointment and must have engaged in the active practice of law for eight years.
NYT, <> at 10 August 2009.
American Bar Association, Judicial Selection: The Process of Choosing Judges (2008), American Bar Association, American Judicature Society, June 2008, 1-23 (9).
Fighting for social justice and development of individual rights.
Courts should rarely intervene to upset a legislative judgement.
Voterguide, <http://www.voterguide.com> at 10 August 2009.
E. Allan Farnsworth, An Introduction to the Legal System of the United States (3rd ed, 1999) 3.
American Bar Association, above n 6, 13.
American Bar Association, above n 6, 13.
On the other hand are the improvement proposals questionable. Instead of improving the electing process I would recommend to change to a professional judge system like in Germany. The judge get appointed to the judicial office by issuing of an official document. The education (First State Examination, followed by practical training i.e. articles - and Second State Examination) is, to a large extent, orientated towards the requirements of the profession of a judge. And candidates starting at the bottom of the judicial ladder (beginning with little cases and trials at low courts, for example district courts) and work their way up to positions on higher courts and more responsibility. In my opinion that is a great advantage of the German legal system compare to the American.
United States v. Lopez, 514 U.S. 549 (1995).
These broad categories were later refined in United States v. Morrison, 529 U.S. 598 (2000), and Gonzales v. Raich, 545 U.S. 1 (2005).
The court reasoned that the Gun-Free School Zones Act of 1990 was unconstitutional because the activity it regulated (possession of a firearm in a school zone) was too far removed from interstate commerce to affect the economy on a massive scale.
The Harvard Law Review, The Constitutional Status of Sexual Orientation: Homosexuality As a Suspect Classification (1985), Vol. 98, No. 6, 1285-1309.
Thomas Lundmark, Introduction to American Law – GBL, Slides 10 (4).
There are three levels of review governmental action. Basically one distinction between “rational relations”, “intermediate” and “strict scrutiny”.
Spiegel Online, <> at 08 August 2009.
Lawyers Research, <> at 09 August 2009.
Kermit L. Hall, By and For the People – Constitutional Rights in American History (1st ed, 1991) 43.
Henry Steiner, Philip Alston, Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd ed, 2008) 639.
Thomas Lundmark, Introduction to American Law – GBL, Slides 9 (6).
For instance, in Brandenburg v. Ohio, 395 U.S. 444 (1969) a conviction of a Ku Klux Klan member was overturned because of protected political speech.
First, the regulation must serve a significant governmental interest; Second, the regulation must be narrowly tailored; Third, the state must leave open alternative channels for communicating the information.
Quotations, Abraham Lincoln <> at 05 August 2009.
For instance, in Chaplinsky v. State of New Hampshire, 315 U.S.568 (1942) were a Jehovah’s Witness called a city marshal a “God-damned racketeer” and were arrested and convicted under state law.
Lewis v. City of New Orleans, 415 U.S.130 (1974).
For instance, in Hustler Magazine, Inc. v. Falwell 485 U.S. 46 (1988) were the “Hustler” published a satire about a protestant minister.
Quotations, Benjamin Franklin <> at 05 August 2009.
Thomas Lundmark, Power & Rights in US Constitutional Law (2nd ed, 2008) 169.
Thomas Lundmark, Introduction to American Law – GBL, Slide 10 (25).
Wisconsin, <> at 12 August 2009.
Thomas Lundmark, Introduction to American Law – GBL, Slide 10 (10).
Thomas Lundmark, Introduction to American Law – GBL, Slide 10 (12).
Thomas Lundmark, Introduction to American Law – GBL, Slide 9 (3).
Thomas Lundmark, Introduction to American Law – GBL, Slide 8 (4).
Thomas Lundmark, Introduction to American Law – GBL, Slide 8 (11).