Amanda Labrado

PLSC 210
Prof. Miller Lee
2/29/10
Homework #5

The Legal Framework

1. (a) Is common law or civil law the more commonly used legal system? Explain why.
Civil law is the more commonly used legal system because it has been around since its creation
in 527 under the Roman Emp. Justinian. And it is the base of the legal system in Latin America,
Europe, and the European Union. (Hague 260)
(b) Describe the mechanism that is supposed to make judges apply the law consistently in
different cases.
In common law, Stare Decisis allows judges to create precedents and use those to create a
framework that contributes to nation building. (Hague 260)
In Civil law, “judges reach decisions by applying extensive written codes rather than by
comparing cases” (Hague 260)
(c) In which system are judges more powerful? Explain.
In Civil law judges are more powerful because they direct investigations before applying
relevant sections of code, they are the mouths of the law, sort of similar to police. (Hague 260)
2. (a) What is a constitution?
It is “a statement of individual rights”, in consequence, imposing limitations on the power of the
government and providing for the framework by which the government runs. Basically,a Power
map. (Hague 260)
(b) Explain the difference between codified and uncodified constitutions.
One is made up of a single document and “set out in detail”, while the other is “spread among a
range of documents and is influenced by tradition and practice.” (Hague 260)
(c) In practical terms, is the distinction made between codified and uncodified constitutions
exaggerated? Explain.
I wouldn’t say so, if it is uncodified it means that it is more flexible because if comes from many
different sources and they may change, and if it isn’t, then it is unflexible like America.
3. Explain how the constitution is amended in the following countries:
U.S.A.: Proposed by two-thirds vote in house of congress then ratified by 3/4ths of states.
Australia: Amendment must be approved by referendum + must have majority in both houses of
fed. Parliament, and must have approval by majority of electors and majority of states.
Canada: “Amendments can only be passed by the Canadian House of Commons, the Senate, and
a two-thirds majority of the provincial legislative assemblies representing at least 50% of the
national population (the 7/50formula).” There are 5 amendment formulas.
(http://en.wikipedia.org/wiki/Amendments_to_the_Constitution_of_Canada)
Germany: “Any amendment to the Basic Law must receive the support of at least two-thirds of
the members in both federal legislative chambers--the Bundestag (Federal Diet or lower house)
and the Bundesrat (Federal Council or upper house).”
(http://www.germanculture.com.ua/library/facts/bl_constitution.htm)
Spain: “ the approval of any constitutional amendment affecting the Preliminary Title, or Section
I of Chapter II of Title I (on Fundamental Rights and Public Liberties) or Title II (on the Crown)
—the so-called "protected provisions"—are subject to a special process that requires (1) that
two-thirds of each House approve the amendment, (2) that elections are called immediately
thereafter, (3) that two-thirds of each new House approves the amendment, and (4) that the
amendment is approved by the people in a referendum.” A regular amendment would require
3/5ths of each house: The congress of deputies and the senate.
http://en.wikipedia.org/wiki/Spanish_Constitution_of_1978

Sweden: 5/6ths must agree in the Chamber of the Parliament to pass an amendment and can only
be amended if the Riksdag passes resolutions on two diff. occasions separated by an election.
http://www.sweden.gov.se/sb/d/2707/a/15187

Britain: “standing committees debate and consider amendments at the committee stage; a new set
of members Is appointed to them to consider each bill. Each has btwn 16 and 50 members with a
party balance reflecting as far as possible that in the House as a whole.”
http://www.servat.unibe.ch/icl/uk00000_.html

If you had the power to do so, in what way would you change the procedures for amending the
U.S. constitution? Why?

I would give the president a say in the constitutional amendment being made by the Congress.
The president might listen to the people a bit more than Congress would, allowing for
amendments to be good ones, unlike the 18th amendment that prohibited something everyone
wanted.

4. (a)Identify the 4 main differences between a supreme court and a constitutional court.
Supreme has more concrete reviews because makes precedents, While a const.court is more
abstract. (Hague 266) Supreme is the highest court of appeal, while the const. court deals with
only “constitutional issue”. (Hague 266) Supreme court officials require legal expertise and
political approval, while the const. court ones need to fulfill more political criteria. (Hague 266)
Supreme court judges can work til they desire, while those in the const. courts, can work for only
up to nine years. (Hague 266)
(b) Australia, Canada, India. have supreme courts.
Austria, Germany, and Russia, all have constitutional courts.
5. (a) what is the power of judicial review?
It protects the constitution by using supreme courts. “Judicial review has the power to override
the decisions and laws produces by democratic governments”. “Review stabilizes and limits
democracy and is only partially limited by the constitution.” (Hague 263)
(b) Is this power listed in the U.S. Constitution, or did it come from somewhere else?
It came from another place, The power of Judicial Review was determined by Marbury Vs.
Madison.
6. (a) Identify the 5 methods for selecting judges.
Popular election, Election by the assembly, Appointment by the government, appointment by the
independent panel, co-option.
(b) Assess the benefits and drawbacks of each regarding responsiveness to the public vs. political
impartiality.
Pop. Election: By selecting judges using popular elections, America would receive more of their
desired responses to issues presented to the judiciary branch; however, the politics of the matter
would be more biased, possibly resulting in unfair trials.
Election by Assembly: Would be more inclined toward the beliefs of the assembly members.
Semi-Impartial, Less responsive to public.
Appt.by Gov’t: Appointed by pres. Is mostly fair because doesn’t have same interest, simply
qualifies for position.
Appt. By Indpt. Panel: May be biased according to beliefs of panel. Un responsive to public, not
impartial.
Co-option: elected by committee may also create bias but be somewhat responsive to public
desires.

7. Do you think the U.S. Supreme Court should interpret the U.S. Constitution based on the
original intent of the Founders or on contemporary conceptions of justice? Explain the arguments
in favor of each approach to constitutional interpretation, providing examples.

The U.S. Supreme Court should interpret the U.S. constitution based on contemporary
conceptions of justice because then room for change is allowed for the benefit of society, for
instance, if we didn’t have Brown V. The Board of Education, African-Americans might still
face prejudices in schools; However, they do not because we have not interpreted the
Constitution on the basis of the Founder’s main intent.

8.(a)Give the names and subjects of at least four cases representing conservative judicial
activism by the U.S. Supreme Court.

Dred Scott vs. Sandford – forbidding slavery violated the laws of property

Plessy vs. Ferguson – separate but equal accommodations for black / white are constitutional.

Santa Clara County vs. Southern Pacific Railroad – corporations are legal persons but slaves
aren’t.

Lochner vs. New York – “Right of contract” limited states’ ability to regulate business.

(b) Give the names and subjects of at least four cases representing liberal judicial activism by the
U.S. Supreme Court.

Hudson P.74 :

Brown vs. Board of Education – expanded civil rights for Black Americans

Gideon vs. Wainwright – protected rights or criminal defendants

Engel vs. Vitale – restricted prayer in schools

Baker vs. Carr – ensured equal electoral representation

(c) The two circumstances under which judicial activism should be permitted are when “a
particular majority [might] at a given pt. in time try to freeze representative institutions to
prevent new majorities from forming” and when “an electoral majority may deny to minority
groups the fundamental rights of participation”. (Hudson p. 89)
(d) Do you agree or disagree with Ely? Explain.

I disagree, I believe Judicial activism should not be allowed at all because it is unfair to
whomever the judge does not support. Unless all judges are good, then i might agree but
depending on their political position they might not help the minority group as Ely proposed.

9. During which periods did republican appointees constitute a majority on the court, and during
which periods did democratic appointees constitute a majority?

Republicans: 1870 to 1937

Democrats: 1836-1866, 1939-1956, 1962-1975

Civil Liberties

10. List at least 15 of the rights guaranteed in the bill of rights (Constitutional amendments 1-10)

1. Right to Freedom of religion

2. Right to Freedom of speech
3. Right to freedom of the press
4. Right to Bear arms
5. Right to Due process
6. Cruel and unusual punishments shall not be inflicted
7. Right to speedy and public trial
8. Cannot be a witness against yourself
9. Cannot be deprived of life liberty or property without due process of law
10. Right to privacy
11. Right to Assemble
12. Right to Petition
13. Excessive fines will not be imposed
14. Our rights are not limited to only those in the bill of rights
15. Must be informed of nature / cause of accusations made against us.

11. The 1st amendment protects the right to political dissent. List at least 6 examples of
government attempts to repress political dissent, despite this amendment.