Anglais Juridique L1 S1

PARTIEL DE FIN DE SEMESTRE : QCM de 45 minutes coefficient 4
Introductory lecture: Defending basic rights

1. History of Magna Carta
a) 800 years of liberties
b) Why is it still popular today?
c) The influence of Magna Carta
2. Background to the English Bill of Rights
a) Protestants and Catholics
b) Limits on the power of the crown
c) John Locke
3. The English Bill of Rights
4. The American Declaration of Independence
5. The American Bill of Rights and some other Amendments to the U.S. Constitution
Lecture 4: Separate but equal
Plessy v. Ferguson 163 U.S. 537 (1896)

http://www.oyez.org/cases/1851-1900/1895/1895_210
Lecture 5: Equal protection of the law
Brown v. Board of Education of Topeka 347 U.S. 483 (1954)

http://www.oyez.org/cases/1950-1959/1952/1952_1/
Lecture 6: the right to free speech
Texas v. Johnson 491 U.S. 397 (1989)

http://www.oyez.org/cases/1980-1989/1988/1988_88_155
Lecture 7: the right to bear arms
McDonald v. Chicago 561 U.S. ___ (2010)

Lecture 8: the right to marriage
Obergefell v. Hodges 576 U.S. ___ (2015)

Lecture 9: the right to counsel
Gideon v. Wainwright 372 U.S. 335 (1963)

http://www.oyez.org/cases/1960-1969/1962/1962_155
Lecture 10: the right to be protected against against cruel or unusual punishment
Glossip v. Gloss 2015

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INRTRODUCTORY LECTURE : DEFENDING BASIC RIGHTS

1. History of Magna Carta
Magna Carta Libertatum (Latin for "the Great Charter of the Liberties"), is a charter which will later be
considered as the base of the human rights.
a) The myth of 800 years of liberties

Which was not true
The rule of Law = un Etat de droit
b) Why is it still popular today?

the Magna Carta was signed by the king after the population made him do it in 1215 because he had
violated the rights. This document lists out what will later be called the human rights. Its considered as
one of the most important judicial documents of modern democracy since it marks a huge twist in the
fight to ensure liberties.
No freeman shall be taken or imprisoned or outlawed or exiled or in anyway destroyed, except by the
lawful judgement of his peers or by the law of the land. To no one will we sell, to no one will we deny or
delay right or justice.
Its still popular today because a myth was created about the origin of individual rights in
England
c) The influence of Magna Carta

This document influenced
the English revolutionaries in the XVIIth century
and the American revolutionaries in the XVIIIth century.
2. Background to the English Bill of Rights (=dclara de droit)

a) Protestants and Catholics
List the different Kings and Queens presented during the lecture and for each one, tell if he/she was
Protestant or Catholic.
Name of the King or Queen
Religion
Henry VIII ( the eighth )
Catholic at first, then

Protestant
Edward VI (Henrys son) who died after 6 years
Protestant
Mary I (Edwards sister)
Catholic
Elizabeth I (Marys sister)
Protestant
James I
Protestant
Charles I (Jamess son)
Protestant but liked catholicism
Charles II ( the second) (Charless son)
Protestant
James II (the second) he takes over because James II dies
Catholic
The Parliament then takes over and calls up Mary II (sister of

James II) jointly with her husband William III of Orange; they
took the throne after the Glorious revolution of 1689; in
conjunction with the documentation of the Bill of Rights of
Protestant
1689
b) limits of the power of the crown
Glorious Revolution (1688-1689) = from then on, they decided that it was the Parliament who
was now going to decide whether the king/queen was going to be a catholic or a protestant
For Protestants, the Roman Catholic Church meant hierarchy and authoritarianism,
which they mistrusted. This is the root of democratic practice.
The Protestant Parliament in England applied the same logic to royal power, which they
also mistrusted.
They wrote the Bill of Rights as a kind of contract between
o The parliament and the citizens, on the one hand;
o And the king on the other.
It was a guarantee that certain individuals liberties could not be taken away
b) John Locke
Extracts from 2nd Treatise:
There [is] nothing more evident than that creatures of the same species and rank, [...] born all to the same
advantages of nature and the use of the same faculties, should also be equal [...] without subordination or
subjection. ( 4)
it seems obvious that all human beings shall all be equal to one another.
But people leave the state of nature and form societies to preserve their lives, liberties and fortunes, and by
stated rules of right and property to secure their peace and quiet. (137)
people organize themselves in different societies to preserve their rights and possessions.
If a long train of abuses, prevarications (= excuses found to turn away from a task), and artifices, all
tending the same way, make the design visible to the people, and they [...] feel what they lie under and
whither (=where) they are going, it is not to be wondered that they should then rouse (=awaken) themselves
and endeavor (=attempt) to put the rule into such hands which may secure to them the ends for which
government was first erected. (225)
if the people realize that their gvt does not properly fulfill its role, they can/will try their best
at transferring the power the government has to a more reliable source who will better fulfill
the governments role.
When the government becomes oppressive and does not protect the peoples rights, they
have the right to rebel and make a new government
3. The English Bill of Rights

WIKIPEDIAS DEFINITION OF THE BILL OF RIGHTS OF 1689 :
The Bill of Rights is an Act of the Parliament of England that deals with constitutional matters
and lays out certain basic civil rights. Passed on 16 December 1689, it is a restatement
in statutory form of the Declaration of Right presented by the Convention
Parliament to William and Mary in February 1689, inviting them to become joint sovereigns
of England. The Bill of Rights lays down limits on the powers of the monarch and sets out the
rights of Parliament, including the requirement for regular parliaments, free elections, and
freedom of speech in Parliament. It sets out certain rights of individuals including the
prohibition of cruel and unusual punishment and reestablished the liberty of Protestants to
have arms for their defense within the rule of law. Furthermore, the Bill of Rights described
and condemned several misdeeds of James II of England.[2]
These ideas reflected those of the political thinker John Locke and they quickly became
popular in England.[3] It also sets outor, in the view of its drafters, restatescertain
constitutional requirements of the Crown to seek the consent of the people, as represented in
Parliament.
TEXT A: THE ENGLISH BILL OF RIGHTS [1689]

An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown
It begins with a list of abuses committed by King James II :
He
He
He
He
He
He
He
took away their rights

tried to remove the protestant religion
made laws without asking the parliament
used the army as a threat against the people
disarmed the people
took away the peoples right to vote, to elect the parliament
made the justice unfair (excessive bail and excessive fines; cruel punishments..)
So they decided to establish a list of freedom rights which cannot be taken away:
right to have a representative parliament

right to complain against the governments policy or ask for its help
right not to be harassed by the army
right to bear arms
The right to vote
Freedom of speech
Fair trials
4. The American Declaration of Independence

Why did the American colonist have a revolution?
Taxes were imposed on the Am colonists by the government in London, but because they were
colonists, the Am were not allowed to elect representatives to defend them in parliament. Their
slogan was no taxation without representation!
So they decided to get together in protest but after the protest the British parliaments made
laws that were more severs and they had confrontations this got worst and worst, back and forth
between protest and more laws. In the end they decided to do what Locke said: declare
independence and make a new government
Thomas Jefferson was asked to write a declaration on independence, he based a lot of his
ideas on the thoughts of john Locke
TEXT B: THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED STATES OF

AMERICA [July 4, 1776]
(1) When, in the course of human events, it becomes necessary for one people to dissolve the political
bands which have connected them with another, and to assume among the powers of the earth, the
separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect
to the opinions of mankind requires that they should declare the causes which impel (=pushed) them
to the separation.
The colonist have no choice they must become independent and they have to declare why
(2) We hold these truths to be self-evident, that all men are created equal, that they are
endowed(=dou) by their Creator with certain unalienable rights, that among these are life, liberty
and the pursuit of happiness. That to secure these rights, governments are instituted among men,
deriving their just powers from the consent of the governed. That whenever any form of
government becomes destructive to these ends, it is the right of the people to alter or to abolish it,
and to institute new government, laying its foundation on such principles and organizing its
powers in such form, as to them shall seem most likely to affect their safety and happiness.
Prudence, indeed, will dictate that governments long established should not be changed for light
and transient causes; and accordingly all experience hath shown that mankind are more disposed
to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they
are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same
object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to
throw off such government, and to provide new guards for their future security. Such has been the
patient sufferance of these colonies; and such is now the necessity which constrains them to alter their
former systems of government. The history of the present King of Great Britain is a history of repeated
injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these
states. To prove this, let facts be submitted to a candid world.
This paragraph says why theyre having a revolution
There are 4 truths (which are self-evident truths, this means that everybody knows they exist and
what they are) :
All men are equal
All men have rights, but not any kind of rights; they are unalienable rights; this mean you cant
take them away. Among ( people have 3rights minimum) these are :
o Life
o Liberty
o The pursuit of happiness
Men make government to protect their rights
When a government doesnt protect the peoples rights, the people can destroy it and make a
new one (Right to revolution)
Where does the government get its power from?
When it is a just government it gets it power from the people
The agreement is : it is the people that are governed who give the power the to government
Unjust government have powers but these powers dont come from the people who are being
governed
When the people make a new government, must it be a democracy?
No laying its founding
You can do whatever you want as long as the people agree
There is no necessity to be democratic
How do you know when its time to change government?
Prudence, indeed, will dictate (its the same words as in John Lockes text by the way)
If the government works approximately we can leave it but when the government becomes oppressive
and does not protect the peoples rights, they have the right and the duty to rebel and make a new
government.
Its both a right and a duty to change the government when its oppressive.
Is it an obligation or an option to change the government?
Yes we must, we are obliged to change the government because its our duty
There is then a list of complains which all involve that the colonist where not represented.
These complains all involve the idea that the colonist where not consulted before important decisions
were made. It is modeled on the English bill of rights.
5. The American Bill of Rights and some other Amendments to the U.S. Constitution
TEXT C: THE FIRST TEN AMENDMENTS (15th of December 1791) TO THE AMERICAN
CONSTITUTION (1787/1789), COMMONLY KNOWN AS THE AMERICAN BILL OF RIGHTS.
There are 2 kinds of amendments:
The ones which impose a right
The ones which say how a right is applied
But amendment 14 for example does both
Amendment 1 (12/15/1791)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
Amendment 1 guarantees:
Freedom of religion, no state religion, the government cannot stop you from practicing your
religion
Freedom of speech
Freedom of the press which is pulled to the extent in the US (socialist newspaper, California
Catholic newspaper and even Nazi newspaper)
Freedom to assemble
Freedom to criticize the government : you have the right to tell the government something
is wrong and they need to change it.
Amendment 2 - 12/15/1791.
A well regulated Militia (=milice), being necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.
Amendment 2 secures the right to bear arms in a well-guarded militia
The right to bear arms doesnt make any sense today anymore
Amendment 4 - 12/15/1791.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants (=mandats) shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
Amendment 4 secures the right not to be searched without a warrant. A policeman cannot ask
you for your papers if a judge has not written a warrant, you are not obliged to give them your
paper unless its a probable (= reasonable) cause
Amendment 5 - 12/15/1791.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury (Grand Jury = group of 9 people who judge if the accusation is fair or
not before you get judged), except in cases arising in the land or naval forces, or in the Militia, when
in actual service in time of War or public danger; nor shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.
Amendment 5 provides no double jeopardy (1 act = 1 accusation) This means the government
has 1 try to put you in prison, if it fail, there cannot do it ever again this is to protect people
from trial intimidation.
Amendment 6 - 12/15/1791.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defence.
Amendment 6 guarantees the rights to:
Fast and public trial by impartial jury
Know what the accusation is
Know who is testifying (tmoigner) against you
Call witness to testify for you
Have a lawyer help you
Amendment 7 - 12/15/1791.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law.
Amendment 8 - 12/15/1791.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.
excessive bail or fine that is too high to pay and no cruel or unusual punishment
Amendment 9 - 12/15/1791.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.
Amendment 10 - 12/15/1791.
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.
OTHER AMENDMENTS TO THE U.S. C PERTAINING TO INDIVIDUAL RIGHTS (date changes)
Amendment 13 - 12/6/1865.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have
been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
No more slavery, the slaves are freed
Amendment 14 - 7/9/1868.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
Slaves become citizens. How are the rights applied? With due process of law
Amendment 15 - 2/3/1870.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by
any State on account of race, color, or previous condition of servitude.
Slaves have the right to vote
Amendment 19 - 8/18/1920.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by
any State on account of sex.
Women can vote
Amendment 23 - 3/29/1961.
The District constituting the seat of Government of the United States shall appoint in such manner as the
Congress may direct: A number of electors of President and Vice President equal to the whole number of
Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no
event more than the least populous State; they shall be in addition to those appointed by the States, but they
shall be considered, for the purposes of the election of President and Vice President, to be electors
appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth
article of amendment.
People who live in Washington DC have the right to vote for president
Amendment 24 - 1/23/1964.
The right of citizens of the United States to vote in any primary or other election for President or Vice
President, for electors for President or Vice President, or for Senator or Representative in Congress, shall
not be denied or abridged by the United States or any State by reason of failure to pay any poll (=urnes) tax
or other tax.
You cant vote if you dont pay, it was a way to exclude people from voting
Amendment 26 - 7/1/1971.
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied
or abridged by the United States or by any State on account of age.
Everyone who is 18 years old can vote
PS : The incorporation of the Bill of Rights (or incorporation for short) is the process by
which American courts have applied portions of the U.S. Bill of Rights to the states when it
was held only to apply to the federal government. It comes with the 14th amendment (9th of
july 1968)
LECTURE 4: Plessy v. Ferguson (1896)

During Reconstruction, the federal government expanded the vote to blacks in the South, and provided some equal protection to black citizens.
As Reconstruction failed, however, white supremacists began to use violence and intimidation to oppress blacks. When whites re-gained control
of Southern states governments, they began to enact laws that oppressed blacks through segregation and disenfranchisement.
Though the 1875 Civil Rights Act had stated that all races were entitled to equal treatment in public accommodations, an 1883 Supreme Court
decision clarified that the law did not apply to private persons or corporations. Confusion about the legality of segregation continued until it was
challenged by Homer Plessy.
In 1892, in a planned act of civil disobedience, Plessy boarded a train in New Orleans and sat in the car reserved for whites only. Plessy, a man
who was one-eighth black, but classified as black by Louisiana law, refused to leave in order to trigger a case about the legality of segregation. In
1896, after years of trials appeals, the Supreme Court ruled that separate but equal was fair, and was not a violation of the Fourteenth
Amendment requiring equal protection to all. This ruling signaled the federal governments and Norths unwillingness to challenge segregation
or the oppression of blacks in the South.
After the 1896 Plessy v. Ferguson decision, segregation became even more ensconced through a battery of Southern laws and social customs
known as Jim Crow. Schools, theaters, restaurants, and transportation cars were segregated. Poll taxes, literacy requirements, and grandfather
clauses not only prevented blacks from voting, but also made them ineligible to serve on jury pools or run for office. Separate but equal and
Jim Crow remained unchallenged until Brown v. Board of Education in 1954 and the Civil Rights Act of 1964.
Facts of the case
The state of Louisiana enacted a law that required separate railway cars for blacks and whites. In 1892,
Homer Adolph Plessy--who was only seven-eighths Caucasian--took a seat in a "whites only" car of a
Louisiana train. He refused to move to the car reserved for blacks and was arrested.
Question
Is Louisiana's law mandating racial segregation on its trains an unconstitutional infringement on both the
privileges and immunities and the equal protection clauses of the Fourteenth Amendment?
Conclusion
Equal but separate accommodations for whites and blacks imposed by Louisiana do not violate the the Equal
Protection Clause of the Fourteenth Amendment
No, the state law is within constitutional boundaries. The majority, in an opinion authored by Justice Henry
Billings Brown, upheld state-imposed racial segregation. The justices based their decision on the separatebut-equal doctrine, that separate facilities for blacks and whites satisfied the Fourteenth Amendment so long
as they were equal. (The phrase, "separate but equal" was not part of the opinion.) Justice Brown conceded
that the 14th amendment intended to establish absolute equality for the races before the law. But Brown
noted that "in the nature of things it could not have been intended to abolish distinctions based upon color, or
to enforce social, as distinguished from political equality, or a commingling of the two races unsatisfactory
to either." In short, segregation does not in itself constitute unlawful discrimination.
History of slavery
Dred Scott Case
He was a slave, then becomes free because he moves places, then his master came back so he became a
slave again.
He goes to court because he believes that if he was once free, he will always be
The judge says (the most racist decision of the American history)
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M.Scott is not a citizen so ha cant come to court

He is black so he is someones property
Three points to remember about the historical context of this case.

1) The history of race relations in America was more than 300 years long when this case was argued
2) In the southern states of the U.S., a series of laws, called Jim crow laws, were passed to enforce segregation
3) Because of this long and violent history the situation laws extremely volatile and many people were afraid of
an social change that might result in confrontation
So all are now equal but they dont have to stay together, equal but separate
How the case moved through the court system
Supreme Court of the United States
____
__Plessy_
_ v. _____Ferguson__ (1896)
Louisiana State Supreme Court
_______________ the constitutionality of

the Separate Car Act
Ex parte Plessy (1892)
____________ ____________ Court

for the Parish of Orleans
______________________ v. Plessy (1892)
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Plessy lost the trial
Extract from the majority opinion

1) We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the
enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is
not by reason of anything found in the act, but solely because the colored race chooses to put that
construction upon it. The argument necessarily assumes that if, as has been more than once the case, and
is not unlikely to be so again, the colored race should become the dominant power in the state legislature,
and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior
position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument
also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be
secured to the negro except by an enforced commingling (=amalgame) of the two races. We cannot
accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of
natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals[...]
Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical
differences, and the attempt to do so can only result in accentuating the difficulties of the present
situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly
or politically. If one race be inferior to the other socially, the constitution of the United States cannot put
them upon the same plane.
According to the judge separating two races does not necessarily mean that one is superior and one is
inferior. If black people feel that separate means inferior, the problem is in their heads, not in the law.
This is the majoritys opinion
This is a fiction because when you look at the cars of the whites and the blacks, they are not in the same
state, the whites obviously have advantages
This part is not very logical
2) It is true that the question of the proportion of colored blood necessary to constitute a colored person, as
distinguished from a white person, is one upon which there is a difference of opinion in the different
states... But these are questions to be determined under the laws of each state, and are not properly put in
issue in this case. Under the allegations of his petition, it may undoubtedly become a question of
importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.
The people who are against segregation who are against segregation think that laws can eliminate racism
We (the majority= the 9 judges) think that you cant make people like each other by forcing them to be
together
3) The judgment of the court below is therefore affirmed (confirmed).
4) JUSTICE HARLAN dissenting. I deny that any legislative body or judicial tribunal may have regard to
the race of citizens when the civil rights of those citizens are involved. [...]
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JUSTICE HARLAN is a white man who should be racist but wasnt.

5) It was said in argument that the statute of Louisiana does not discriminate against either race, but
prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the
difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to
exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches
occupied by or assigned to white persons.
6) The white race deems itself to be the dominant race in this country. And so it is... But in view of the
constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.
There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among
citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the
most powerful. The law regards man as man, and takes no account of his surroundings or of his color
when his civil rights as guarantied by the supreme law of the land are involved. It is therefore to be
regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the
conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely
upon the basis of race.
JUSTICE HARLAN says that in reality there are differences but for the law, all are citizens
He says its not about race, its about social classes
He says that the Supreme Court is doing a huge mistake making that decision
The Supreme Court has a duty to enforce the idea of equality before the law
It should not avoid that issue by saying its for individual states to decide
7) In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the
decision made by this tribunal in the Dred Scott Case.
JUSTICE HARLAN says you remember how stupid Dred scotts decision was? This decision is going to ba as
bad as that one.
The court is making a big mistake, as big as Dred Scott v. Sanford.
Questions about the case

What injustice does the plaintiff seek to rectify?
He was arrested for refusing to moving to a blak peopls car
Plessy is 3 fifths black, he is a mix of lot of nationalities, he looks black
He sits in a whit cars people and says he isnt black
What is the main legal principle involved in this case?

equal protection of the laws of the fourteenth amendment
Dissention
separate but equal
states rights
What was the decision?

it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
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What are the consequences of this decision?

Segregation was legal
This policy would continue for 60 years
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LECTURE 5: Brown v. Board of Education (= rectorat) (1954)
Facts of the case
Black children were denied admission to public schools attended by white children under laws requiring or permitting
segregation according to the races. The white and black schools approached equality in terms of buildings, curricula,
qualifications, and teacher salaries. This case was decided together with Briggs v. Elliott and Davis v. County School
Board of Prince Edward County.
Question
Does the segregation of children in public schools solely on the basis of race deprive the minority children of the equal
protection of the laws guaranteed by the 14th Amendment?
Conclusion
UNANIMO US DECISION FOR BROW N ET AL.

Separate but equal educational facilities for racial minorities is inherently unequal violating the Equal Protection
Clause of the Fourteenth Amendment
Yes. Despite the equalization of the schools by "objective" factors, intangible issues foster and maintain inequality.
Racial segregation in public education has a detrimental effect on minority children because it is interpreted as a sign
of inferiority. The long-held doctrine that separate facilities were permissible provided they were equal was rejected.
Separate but equal is inherently unequal in the context of public education. The unanimous opinion sounded the deathknell for all forms of state-maintained racial separation.
Notes taken from the oral PowerPoint presentation :

Earl Warren (1891-1974)
Born in California before the frontier was closed
Served in WW1
Nominated Chief Justice of US Supreme court by Eisenhower
Served from 1953 to 1969
Background to the case :
Everything is separated in towns and cities for white people and black people
Even the army was segregated until President Truman stopped it.
The Mason-Dickson line use to separate the north of the US from the south.
The schools are segregated too, since the white schools and white high schools are in much better
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conditions, they have electricity, nice buildings, whereas black schools are in very poor conditions, they are
crowded and dirty.
The separated but equal policy is absolutely not true.
In the 50s
Black people refused to sit in the colored section of the bus to force the city to de-segregate the south
A famous example of that is Rosa Park who was fined for refusing to obey bus drivers order to give up her
seat in the colored section to a white passenger.
White people as well started to get sick of this system.

1. Separate but equal was the official policy in most countries of the southern state
2. The system was clearly separate but not equal
3. Black people started refusing to conform to the system through civil disobedience.
Supreme Court of the United States (1954)
Segregated schools are "inherently unequal" and violate the Fourteenth
Amendment.
Brown case is combined

with others from Virginia,
South Carolina, and Delaware
and bypasses the circuit court.
U.S. District Court for the District of Kansas (1951)

The court found that segregation has a negative effect on black
children, but it decided that segregated schools did not violate the
Fourteenth Amendment because facilities, transportation, teachers, and
other factors were equal.
Oral explanation of the case:

Thurgood Marshall was the general counsel for the NAACP. He was born in 1908; he was rejected from the
15
university law school because he was black. So he went to Howard University (which was established for
black students). He was nominated and became a lawyer. He is Mr. Browns lawyer.
Linda Brown cant go to the white school next to her house she needs to go to the much further away blacks
school.
Her name is added to a list of names of people who have the same problem. She goes to court.
Marshall says that segregating violates the 14th amendment. He said that educating is a privilege and that
segregation abbreviates this privilege and therefore segregation is unconstitutional.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are
premised on different facts and different local conditions, but a common legal question justifies their
consideration together in this consolidated opinion.
Mr. CHIEF JUSTICE WARREN delivered the opinion of the court. These cases are numerous; he says that
we should make a global law for non-segregation and not a special case.
In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the
courts in obtaining admission to the public schools of their community on a nonsegregated basis. In
each instance, they had been denied admission to schools attended by white children under laws
requiring or permitting segregation according to race. This segregation was alleged to deprive the
plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases
other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the
so-called "separate but equal" doctrine announced by this Court in Plessy v. Fergson, 163 U.S. 537.
Under that doctrine, equality of treatment is accorded when the races are provided substantially equal
facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of
Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools
because of their superiority to the Negro schools.
All these cases deal with segregation on schools

These 3 FEDERAL district court are correct, they have to apply the segregation but equal policy because
they cant change the law, and only the Supreme Court has the right to do it. The segregated but equal
schools should be equal but they are not, indeed the black and white pupils do not have the same facilities,
they are way better for the white people.
The plaintiffs contend (=assume) that segregated public schools are not "equal" and cannot be made
"equal," and that hence they are deprived of the equal protection of the laws. []
The plaintiffs think thats segregated public schools cannot be made equal and that segregation deprived
them of equal educational rights.
In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was
adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education
in the light of its full development and its present place in American life throughout the Nation. Only
in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal
protection of the laws. Today, education is perhaps the most important function of state and local
governments. Compulsory school attendance laws and the great expenditures for education both
demonstrate our recognition of the importance of education to our democratic society. It is required
in the performance of our most basic public responsibilities, even service in the armed forces. It is
16
the very foundation of good citizenship. Today it is a principal instrument in awakening the child to
cultural values, in preparing him for later professional training, and in helping him to adjust normally
to his environment. In these days, it is doubtful that any child may reasonably be expected to
succeed in life if he is denied the opportunity of an education.
Warren underlines the importance of education
We come then to the question presented: Does segregation of children in public schools solely on the
basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive
the children of the minority group of equal educational opportunities? We believe that it does.
Segregation as it is applied, that is to say unequally, results is black children not having the same education
therefore not the same professional opportunities.
Warren does not want to address the question of equality of conditions. He does not want states to say
they will simply improve the conditions of black schools.
On paper the schools and programs are the same but the actual psychological conditions are different.
[] Segregation of white and colored children in public schools has a detrimental effect upon the
colored children. The impact is greater when it has the sanction of the law, for the policy of
separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of
inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore,
has a tendency to [retard] the educational and mental development of negro children and to deprive
them of some of the benefits they would receive in a racial[ly] integrated school system.
He says separation even with equal conditions is bad for childrens psychological well-being.
(Here, he is taking the role of a psychologist even if it is a judge and this is not his duty.
The result in practice is that it makes the minority group feel that they are inferior.
The previous judge said that if they feel inferior its the minoritys problem but this judge is saying that it is
the judges problem, that on fact it concerns them as well.
This effect is worse when the policy is supported by the law.
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson,
this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to
this finding is rejected.
We conclude that, in the field of public education, the doctrine of "separate but equal" has no place.
Separate educational facilities are inherently unequal.
Technically, this justice just applies to schools but in reality it creates a precedent to desegregation in all
areas of society (bars, pools, parks)

The plaintiff, Oliver Brown, wants the right to enrol his daughter in a all-white school because its closer to
where he lives than the black school
He also wants to destroy segregation
17

Activism: this means that the court interprets the 14 th amendment widely and seks to understand the real
goal of the law, not just what it says. One of warrens favourite questions was is it fair?
Brown won
Segregation was declared illegal in schools and by extension it was declared illegal everywhere.
IMPORTANT
Segregation in schools isnt constitutional according to the courts
Many school in the south refused to desegregate. Since the court has no physical power, the army was sent
down; the kids were guided by soldiers who were protecting the African-American kids to help them to walk
to school. On the photo there was 5 children and 20 soldiers around them. In the amphitheatres there were
armed soldiers sitting around with loaded arms?
President Eisenhower was obliged against his will to send the army to southern states to desegregate
schools by force
After that, all sectors were desegregated
This case shows the power of the Supreme Court and who sometimes presidents are rejected.
18
LECTURE 6 : JOHNSON V. TEXAS (1984)
Facts of the case
In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against
Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He
was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the
conviction, the case went to the Supreme Court.
Question
Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First
Amendment?
Conclusion
In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First
Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a
distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found,
does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate
symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle
underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable."
Lets look at the 1st amendment again

Amendment 1 - 12/15/1791.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
The American text says freedom of speech
The European says freedom of expression
The American text does not express limits about freedom of speech. Their interpretation is much wider than
the European one.
But what is speech: singing? Holding up signs?
What is the actual legal difference with a sigh from gay pride and a sign for a nazi party?
Its the content!
Those people who whistled during the national anthem singing in France were sentenced to 6months is
prison and assessed with a 7500 fine which is a pretty heavy punishment.
19
In the protests that happen in the US during Reagans mandate, one of the Protestants steals a flag from a
public building and gives it to Johnson who decides to put kerosene on it and set it on fire. People are deeply
offended by that act even if nobody is hurt or injured.
In texas there is a law about this in the penal code.
Is burning a flag expression?
Is burning a flag okay? Non because its a nation symbol
For many people, its very serious, for the people who had friends going to Iraq or to Vietnam for the war,
the flag stands for their remembrance
For some the flag symbolized peace!
THE BALANCING ACT
TEXAS :
The states responsibility to protect national anthems
To ensure security to society
Collective standards
JOHNSON :
A citizens right to express ideas
In a particular way
Individual freedom

1. There were political protests and demonstrations criticizing the Reagan administration
Its not anti flag, its anti Reagan; the flag is a way to express their criticism
2. Johnson burdened an American flag to express his disagreement with the governments policies. No one
was hurt; the only thing damaged was the flag, which was taken from a public building
3. there was a law in TEXAS the penal code which outlaws the desegregation of a venerated object such
as the American flag in an effort to preserve public peace and order, so Johnson was sentenced to 1 year in
prison (very long time for burning a flag) and a 2000$ fine (much less severe financially than the French but
more severe in time in jail)
The Court granted M. Johnson and held 5 to 4 that the conviction could not stand because the
Texas statute was ________________.
Texas v. Johnson (1989)
Texas Court of Criminal Appeals

The Court of Criminal Appeals _______ that Johnson's rights under the First Amendment were
__________ and reversed his conviction.
20
Johnson v. State (1988)
Court of Appeals for the Fifth District of Texas

The Court of Appeals for the fifth district _________his conviction.
Gregory Lee Johnson v. State (1986)
County Criminal Court Number Eight in Dallas County, Texas

Gregory Lee Johnson was ___________ of ________ a Texas statute prohibiting desecration of
the flag. He was sentenced to one year in prison, and assessed $2,000.
State v. Gregory Lee Johnson (1984)

What injustice does the original plaintiff seek to rectify?
He wants to be freely able to express his point of view freedom of speech
The injustice is the law which says we cant burn flags because it goes against his freedom of speech
He claims the Texas law banning flag-burning violates his right to free speech.
Justice BRENNAN delivered the opinion of the Court.

This is the decision of the court
1) The First Amendment literally forbids the abridgment only of "speech", but we have long recognized
that its protection does not end at the spoken or written word. While we have rejected "the view that
an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in
the conduct intends thereby to express an idea," [...] we have acknowledged that conduct may be
"sufficiently imbued with elements of communication to fall within the scope of the First and
Fourteenth Amendments," [...]
Speech represents forms of representation. Forms of communication are really wide.
The 1st amendment guarantees different forms of speech: its obviously text, words but also forms of protest
or communication including expressive conduct.
Freedom of speech is basically any Expressive conduct
21
2) It remains to consider whether the State's interest in preserving the flag as a symbol of nationhood
and national unity justifies Johnson's conviction. [...] Johnson was not, we add, prosecuted for the
expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies
of this country, expression situated at the core of our First Amendment values. [...] If there is a
bedrock principle underlying the First Amendment, it is that the government may not prohibit
the expression of an idea simply because society finds the idea itself offensive or disagreeable .
[...]
The fact that the audience takes offends at some expression does not prohibit freedom of speech
Texas says its mainly a question of security flag burnings dangerous but in this case there was no danger
3) We are tempted to say .[...] that the flag's deservedly cherished place in our community will be
strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of
freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of
criticism such as Johnson's is a sign and source of our strength. [...] The way to preserve the flag's
special role is not to punish those who feel differently about these matters. It is to persuade them that
they are wrong . . . We can imagine no more appropriate response to burning a flag than waving one's
own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer
means of preserving the dignity even of the flag that burned than by -as one witness here didaccording its remains a respectful burial. We do not consecrate the flag by punishing its desecration,
for in doing so we dilute the freedom that this cherished emblem represents.
The argument for TEXAS is that some ideas are so offensive that they cause violent reactions
But the Supreme Court thinks that confrontations of different ideas are good for society.
Is somebody is offended, that might create a security issue.
We want conflict because it creates debate which is good
Different philosophy between the continental law (Germany and France) and the common law (The US and
Great Britain)
Fr wants solidarity, peace
US wants debat, confrontation of different ideas
4) Johnson was convicted (=tre reconnu coupable) for engaging in expressive conduct. The State's
interest in preventing breaches of the peace does not support his conviction because Johnson's
conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a
symbol of nationhood and national unity justify his criminal conviction for engaging in political
expression. The judgment of the Texas Court of Criminal Appeals is therefore affirmed (=
jugement confirm).
More questions about the case
The 1st amendment which guarantees freedom of expression and more particularly freedom of speech
An expression of free speech cannot be prohibited on the basis that society finds it offensive. Its not nice
but its legal.
22

Mr. Johnson was not convicted because they considered that he had the right to burn that flag sinice its a
form of freedom of expression and this right is guaranteed by the 1st amendment.
Johnsons conviction for flag desecration is inconsistent with the 1st amendment
US citizens have the right to burn flags to express their political view; flag burning is considered a form of
political speech.
23
LECTURE 7 : MCDONALD V. CHICAGO (2010)

THE RIGHT TO BEAR ARMS
This case is complicated and hard to deal with; it doesnt really fit in the subject
For once, this is not a fight.
Its not really about the right to bear arms.
The real question is: can we apply federal laws to states?
We must distinguish federal jurisdictions from state jurisdictions
To provide security, in the US in the 18th century, they didnt have an army but militias
The people have the right to own and use guns so that they can be part of militias.
We have the right to have arms according to the 2 nd amendment but this right is limited
When Heller asked for a gun, they said NO. this is not limiting, its suppressing the right to bear arms.
The 5 to 4 decisions (= they really dont agree together) they said it only applies to federal enclaves, not to
states such as WASHINGTON;
Facts of the case
The decision of a previous case (District of Colombia vs. Heller) influenced the decision of the case Mc
Donald vs. Chicago.
District of Colombia (in Washington) VS Heller (=he is a retired policeman, he knows the law)
It is not a state (normally the state signs the constitutions), its a district.
There were a lot of crimes there. The problem is the little tiny shootings: people who shoot because theyre drunk,
because they argue with their girlfriend or just because they accidentally pulled the trigger. 9000 people a year die
from stupid shootings
To prevent that from happening, they made a law: a license is now required to bear an arm.
It was mandated that all firearms must be kept unloaded, disassembled or trigger locked.
IS THIS LAW TOO RESTRICTIVE?
Yes, according to the Supreme Court which held that the Second Amendment (=right to bear arms in a well guarded
militia) had been violated. There, the Court reasoned that the law made by the District of Colombia which held that a
license was required to bear arms, and that all firearms must be was enacted (=promulgated) under the authority of
the federal government and, thus, the Second Amendment was applicable. Here, plaintiffs argued that the Second
Amendment should also apply to the states. The district court dismissed the suits (= rejected the pursuits which means
it didnt agree with the plaintiff). On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed (=confirmed).
After this decision, several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans.
Question
Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment's Privileges
and Immunities or Due Process clauses and thereby made applicable to the states?
Conclusion
The Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second
24
Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice
Samuel A. Alito writing for the majority, the Court reasoned that rights that are "fundamental to the Nation's
scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately
applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense
was one such "fundamental" and "deeply rooted" right. The Court reasoned that because of its holding in Heller, the
Second Amendment applied to the states. Here, the Court remanded the case to the Seventh Circuit to determine
whether Chicago's handgun ban violated an individual's right to keep and bear arms for self-defense.
Justice Alito, writing in the plurality, specified that the Due Process Clause of the Fourteenth Amendment incorporates
the Second Amendment right recognized in Heller. He rejected Justice Clarence Thomas's separate claim that the
Privileges or Immunities Clause of the Fourteenth Amendment more appropriately incorporates the Second
Amendment against the states. Alito stated that the Court's decision in the Slaughterhouse Cases -- rejecting the use of
the Privileges or Immunities Clause for the purpose of incorporation -- was long since decided and the appropriate
avenue for incorporating rights was through the Due Process Clause.
Justice Antonin Scalia concurred. He agreed with the Court's opinion, but wrote separately to disagree with Justice
John Paul Stevens' dissent. Justice Clarence Thomas concurred and concurred in the judgment. He agreed that the
Fourteenth Amendment incorporates the Second Amendment against the states, but disagreed that the Due
Process Clause was the appropriate mechanism. Instead, Justice Thomas advocated that the Privileges or
Immunities Clause was the more appropriate avenue for rights incorporation. Justice John Paul Stevens dissented. He
disagreed that the Fourteenth Amendment incorporates the Second Amendment against the states. He argued that
owning a personal firearm was not a "liberty" interest protected by the Due Process Clause. Justice Stephen G.
Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, also dissented. He argued that there is nothing
in the Second Amendment's "text, history, or underlying rationale" that characterizes it as a "fundamental right"
warranting (=guarantees) incorporation through the Fourteenth Amendment.

1. At the origin, the right to bear arms was protected by the 2nd amendment in a view to allow people to
participate in state-regulated militias
2. The district of Columbia has laws to regulate the registrations and ownerships of guns, forbidding
residents to have handguns at home unless their guns were kept unloaded and disassembled or trigger
locked. (very dumb law because you cant use the gun straight away, its not effective for defending
yourself) (There was a case about this pb)
3. in district of Columbia v. Heller, the supreme court struck down the D.C. laws. It affirmed the individual
right to possess a firearms for self-defense with no relation to service in a militia. But the ruling applied only
to the federal enclaves such as Washington.
The state of Washington had a total ban of bearing arms, so they took the case to Chicago
Mr McDonald and 3 other people say the prohibition to purchase a handgun for personal defense was
considered a violation of their second amendment right to bear arms
The Court granted (a accord)_______________ and _____________ 5 to 4 that
an individual's right to keep and bear arms is _______________ and applicable
to the states through the 14th Amendment's _______________________.
McDonalds v. Chicago
25
________ Court of Appeals, _________ Circuit

The Court of Appeals for the Seventh Circuit ______________
the city's ordinance
US District Court for the ___________ District of ____________

The court ______________ a suit ___________ by Otis McDonald and 3 other
plaintiffs against Chicago claiming that the city ordinance banning handguns was
a violation of their Second Amendment's right to ______________
INCORPORATION.
4 members of the majority said that the 2 nd amendment and the right to bear arms laws were incorporated
through the 14th amendments guarantee which says that the states must not deprive any person of life,
liberty, or property, with ought due process of law.
Mc Donald won.
The US court reversed the decision os the 7th circuit.
They held that the 2nd amendment protects the right to bear arms from infringement (atteinte) by local
government.
Mc Do vs Chicago clarified the scope of gun rights in regard to the states.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court
1. Two years ago, in District of Columbia v. Heller, 554 U. S. ___ (2008), we held that the Second
Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down
a District of Columbia law that banned the possession of handguns in the home. Chicago and Oak Park
argue that their laws are constitutional because the Second Amendment has no application to the States.
In the previous decision the court said
everybody has the right to have a gun to defend themselves
DC maws banning the possession of handguns at home were unconstitutional
26
The respondent argues that the Chicagos ordinance should stand (not be stopped) because the Heller decision
only applies to federal jurisdictions, not states.
2. [...] we now turn directly to the question whether the Second Amendment right to keep and bear arms is
incorporated in the concept of due process. In answering that question, as just explained, we must decide
whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U.
S., at 149, or as we have said in a related context, whether this right is deeply rooted in this Nations
history and tradition, Washington v. Glucksberg, 521 U. S. 702, 721 (1997).
The question is whether the second amendment right is subject to the due process clause of the 14 th amendment
(BIG PROBLEM, THIS IS WHERE IT GETS REALLY COMPLICATED)
14th amendment says: Everybody has to have the same rights, no difference
Originally, states government was not required to abrid by the provisions of the bill of rights.
Only the federal government was.
Amendment 14 - 7/9/1868.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.
WE ARE ASKING THE QUESTION OF CORPORATION

3. Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by
many legal systems from ancient times to the present day, and in Heller, we held that individual selfdefense is the central component of the Second Amendment right. Explaining that the need for
defense of self, family, and property is most acute in the home, we found that this right applies to
handguns because they are the most preferred firearm in the nation to keep and use for protection of
ones home and family. In sum, "It is clear that the Framers and ratifiers of the Fourteenth Amendment
counted the right to keep and bear arms among those fundamental rights necessary to our system of
ordered liberty."
Is the right to bear arms
fundamental (you cant take it away)
Or
Historical (it does not apply anymore) ?
The right to defend yourself is a central part of the rights secured by the second amendment. Handguns are the
most popular form of self defense for Americans who want to bear arms
The right to keep and bear arms is clearly included within the fundamental rights secured in amendment 14 (Due
Process Clause)
4. It is important to keep in mind that Heller, while striking down a law that prohibited the possession of
handguns in the home, recognized that the right to keep and bear arms is not a right to keep and carry
any weapon whatsoever in any manner whatsoever and for whatever purpose. We made it clear in Heller
that our holding did not cast doubt on such longstanding regulatory measures as prohibitions on the
possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms. We repeat those assurances here. Despite municipal
respondents doomsday proclamations, incorporation does not imperil every law regulating firearms.
27
Even if the 2nd amendment right to bear arms has been incorporated, it does not mean that states or cities are
prevented from regulating fireman.
EX: prohibitions for criminal, lunatics or in schools and towns halls are still legal.
5. In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for
the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the
Bill of Rights that protects a right that is fundamental from an American perspective applies equally to
the Federal Government and the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that
the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right
recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for
further proceedings.
28
LECTURE 8: Obergefell v Hodges (june 2015)

Do we have the right to marry a person of the same-sex?.
Look up the map of the sate of gay marriage in the US
In this case : two man were married and moved to a state where same sex marriage is illegal. One of the man
got ill, his husband was not allowed to go visit him because he was not in his family, they sayd he was not
married in this state.
The different states are taking very strong positions in this subject
The courts rola very often is to unify policies across the whole counrty
A few things to remember about the historical context of this case.
1.there was a variety of situations across the country in the USA
> Some states had legalized same-sex marriage unions while
> Others had banned sam-sex unions by law or by referendum
The result is a gigantic inequality
2. The case started against the backdrop of fast-moving changes in public opinion, with polls indicating that
most Americans now approve of this union
3. the case occurred after years of litigation and previous US Supreme Court cases
> laws making gay sex a crime were struck down (2003)
> a federal law denying benefits to married same-sex couples was also struck down
Facts of the case
Plaintiffs: 7 same-sex couples from 4 different states sued their relevant state agencies
Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to
challenge the constitutionality of those states' bans on same-sex marriage or refusal to recognize legal same-sex
marriages that occurred in jurisdictions that provided for such marriages. The plaintiffs in each case argued that the
states' statutes violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, and one
group of plaintiffs also brought claims under the Civil Rights Act. In all the cases, the trial court found in favor of the
plaintiffs. The U.S. Court of Appeals for the Sixth Circuit reversed and held that the states' bans on same-sex marriage
and refusal to recognize marriages performed in other states did not violate the couples' Fourteenth Amendment rights
to equal protection and due process.
Question
(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that
was legally licensed and performed in another state?
29
Conclusiony
54 DECISION FOR OBERGEFELL

The Fourteenth Amendment requires both marriage licensing and recognition for same-sex couples.
Alito
Yes, yes. Justice Anthony M. Kennedy delivered the opinion for the 5-4 majority. The Court held that the Due Process
Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and
that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples. Judicial precedent has
held that the right to marry is a fundamental liberty because it is inherent to the concept of individual autonomy, it
protects the most intimate association between two people, it safeguards children and families by according legal
recognition to building a home and raising children, and it has historically been recognized as the keystone of social
order. Because there are no differences between a same-sex union and an opposite-sex union with respect to these
principles, the exclusion of same-sex couples from the right to marry violates the Due Process Clause of the
Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment also guarantees the right of samesex couples to marry as the denial of that right would deny same-sex couples equal protection under the law. Marriage
rights have traditionally been addressed through both parts of the Fourteenth Amendment, and the same interrelated
principles of liberty and equality apply with equal force to these cases; therefore, the Constitution protects the
fundamental right of same-sex couples to marry. The Court also held that the First Amendment protects the rights of
religious organizations to adhere to their principles, but it does not allow states to deny same-sex couples the right to
marry on the same terms as those for opposite-sex couples.
Chief Justice John G. Roberts, Jr. wrote a dissent in which he argued that, while same-sex marriage might be good and
fair policy, the Constitution does not address it, and therefore it is beyond the purview of the Court to decide whether
states have to recognize or license such unions. Instead, this issue should be decided by individual state legislatures
based on the will of their electorates. The Constitution and judicial precedent clearly protect a right to marry and
require states to apply laws regarding marriage equally, but the Court cannot overstep its bounds and engage in
judicial policymaking. The precedents regarding the right to marry only strike down unconstitutional limitations on
marriage as it has been traditionally defined and government intrusions, and therefore there is no precedential support
for making a state alter its definition of marriage. Chief Justice Roberts also argued that the majority opinion relied on
an overly expansive reading of the Due Process and Equal Protection Clauses of the Fourteenth Amendment without
engaging with the judicial analysis traditionally applied to such claims and while disregarding the proper role of the
courts in the democratic process. Justice Antonin Scalia and Justice Clarence Thomas joined in the dissent. In his
separate dissent, Justice Scalia wrote that the majority opinion overstepped the bounds of the Courts authority both by
exercising the legislative, rather than judicial, power and by doing so in a realm that the Constitution reserves for the
states. Justice Scalia argued that the question of whether same-sex marriage should be recognized is one for the state
legislatures, and that for the issue to be decided by unelected judges goes against one of the most basic precepts of the
Constitution: that political change should occur through the votes of elected representatives. In taking on this
policymaking role, the majority opinion departed from established Fourteenth Amendment jurisprudence to create a
right where none exists in the Constitution. Justice Thomas joined in the dissent. Justice Thomas also wrote a separate
dissent in which he argued that the majority opinion stretched the doctrine of substantive due process rights found in
the Fourteenth Amendment too far and in doing so distorted the democratic process by taking power from the
legislature and putting it in the hands of the judiciary. Additionally, the legislative history of the Due Process Clause in
both the Fifth and Fourteenth Amendments indicates that they were meant to protect people from physical restraint
and from government intervention, but they do not grant them rights to government entitlements. Justice Thomas also
argued that the majority opinion impermissibly infringed on religious freedom by legislating from the bench rather
than allowing the state legislature to determine how best to address the competing rights and interests at stake. Justice
Scalia joined in the dissent. In his separate dissent, Justice Samuel A. Alito, Jr. wrote that the Constitution does not
address the right of same-sex couples to marry, and therefore the issue is reserved to the states to decide whether to
depart from the traditional definition of marriage. By allowing a majority of the Court to create a new right, the
30
majority opinion dangerously strayed from the democratic process and greatly expanded the power of the judiciary
beyond what the Constitution allows. Justice Scalia and Justice Thomas joined in the dissent.
What happened :
All states courts found in favour of the plaintiffs (is it fair?)
The US Court of Appeals for the Sixth Circuit rversed. (whats the law?)
The couples appeal to the US Suprem Court (is the law unconstitutional?)
_____________________________ (court)
Decision:
____________________________________________________
_____________________________ (court)
Decision:
____________________________________________________
____________________________________ (court)
Decision:
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*****
SUPREME COURT OF THE UNITED STATES
Obergefell v. Hodges (2015)
THE OPINION: Justice Anthony M. Kennedy delivered the opinion for the 5-4 majority.
31
1. (p.8) From their beginning to their most recent page, the annals of human history reveal the
transcendent importance of marriage. The lifelong union of a man and a woman always has promised
nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those
who live by their religions and offers unique fulfillment to those who find meaning in the secular
realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage
becomes greater than just the two persons. Rising from the most basic human needs, marriage is
essential to our most profound hopes and aspirations.
Marriage is very important. If youre poor, right, it doesnt matter, you still can get marriage, because it has
to do with dignity. Whether or not youre religious, marriage is important. Marriage is necessary to do
things.
Many men and women religious and not religious think that marriage puts dignity upon their relationship
2. (p.15) The fundamental liberties protected by the Due Process Clause of the rights enumerated in the
Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147149 (1968). In addition these liberties
extend to certain personal choices central to individual dignity and autonomy, including intimate
choices that define personal identity and beliefs.
There are liberties that are in the bill of rights but there are other liberties
The 14th am obliges the states to incorporate the basic rights enumerated the Bill of Rights into state law
But other rights, which are not explicitly written out are also protected bu this amendment such as the
liberty to have a private life for example.
3. (p.16) The nature of injustice is that we may not always see it in our own times. (Ex : slavery wasnt
seen as a bad thing at the time) The generations that wrote and ratified the Bill of Rights and the
Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and
so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as
we learn its meaning. When new insight reveals discord between the Constitutions central
protections and a received legal stricture, a claim to liberty must be addressed.
When we think theres an injustice we didnt see B4 we have to take it to court
The founders wrote the Bill of Rights but the list was not meant to be exclusive.
But they didnt give any rule for deciding what other rights may be included in the future.
Consequently, it is up to each generation to decide how the list of those writs will evolve.
This is known as the living and breathing constitution
4. (p.29) Of course, the Constitution contemplates that democracy is the appropriate process for change,
so long as that process does not abridge fundamental rights. The dynamic of our constitutional
system is that individuals need not await legislative action before asserting a fundamental right. The
Nations courts are open to injured individuals who come to them to vindicate their own direct,
personal stake in our basic charter. An individual can invoke a right to constitutional protection when
he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.
The idea of the Constitution was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials and to establish them as legal
principles to be applied by the courts.
Sometimes the referendum results are not correct according to this judge.
32
Certain ideas are not debatable. There cant be democracy everywhere.

Normally such questions are left to the legislative branch
But citizens have the right to ask the courts to intervene directly if they feel their basic rights have been
violated.
5. (p.33) No union is more profound than marriage, for it embodies the highest ideals of love, fidelity,
devotion, sacrifice, and family. In forming a marital union, two people become something greater
than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love
that may endure even past death. It would misunderstand these men and women to say they
disrespect the idea of marriage.
A lot of these referendum were saying that marriage is traditional and therefore we should respectif
Bu tits not a question of disrespect according to the judge
Same-sex couples respect marriage and ask for equal dignity
Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for
themselves. Their hope is not to be condemned to live in loneliness, excluded from one of
civilizations oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution
grants them that right.
The c grants everyone the rigjt to be trated with dignity and equality
Denying homosexual access to the institution of marriage deprives them of this right
DISSENTING (= The one who does not agree) Justice Roberts
6. (p. 41) But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no
concern to us. Under the Constitution, judges have power to say what the law is, not what it should
be. The people who ratified the Constitution authorized courts to exercise neither force nor will but
merely judgment. The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization
altered).
Ha says we dont decide about dignity, we just apply the law.
He is accusing the other judges to be activist.
The issue should have been left to the states, not decided by the Supreme Court
PS : Justice Roberts is not anti-homosexual, he is anti court-activism
Because of the ctional principle of separation of powers
The legislative branc passes laws
The executive branck enforces them
The judicial branch says wat the law is
7. (p.42) The majoritys decision is an act of will, not legal judgment. The right it announces has no
basis in the Constitution or this Courts precedent. The majority expressly disclaims judicial
33
caution and omits even a pretense of humility, openly relying on its desire to remake society
according to its own new insight into the nature of injustice. Ante, at 11,
Roberts (who disagrees with justice Kennedy) says there is nothing on the c which gives same-sex couples
to marry, he is right. He is saying the judges just want to change society, instead of simply applying the law.
23. As a result, the Court invalidates the marriage laws of more than half the States and orders the
transformation of a social institution that has formed the basis of human society for millennia, for the
Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we
are?
The court is wrong for stinking down state laws that stand for traditional approach to marriage
8.
(p.49) The majority purports to identify four principles and traditions in this Courts due process
precedents that support a fundamental right for same-sex couples to marry. Ante, at 12. In reality,
however, the majoritys approach has no basis in principle or tradition, except for the unprincipled
tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New
York, 198 U. S. 45. Stripped of its shiny rhetorical gloss, the majoritys argument is that the Due
Process Clause gives same-sex couples a fundamental right to marry because it will be good for them
and for society. If I were a legislator, I would certainly consider that view as a matter of social policy.
But as a judge, I find the majoritys position indefensible as a matter of constitutional law.

The leading plaintiff (appellant) : James Obergefell
He appealed to the US Supreme Court
Injustice : violation of the Equal Protection Clause and Due Process Clause of the Fourteenth
Amendment

Due process clause (14th amendment) do we force states to incorporate
Divering ways of interpreting the constitution :
o Originalism
o Constitution as a living document
Obergafelle and the others won states must respect marriage even if its between 2 people of the
same sex
A 5 to 4 decision
The due due pricess clause of the 14th amendment guarantees the right to marry as a fundamental
liberty (fundamental = we cant change it)
Fundamental liberties apply to all citizens regardless of their sexual orientation
34

The decision makes same-sex marriage a reality in all 50states + in Washington D.C.
35
LECTURE 9: Gideon v. Wainwright (1963)

The right to a fair trial
> Background
Extract from Miranda v. Arizona (1966)
Our holding [] is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination.
As for the procedural safeguards to be employed [] the following measures are required.
Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a right to the presence of an attorney.
[T]his warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary
system -- that he is not in the presence of persons acting solely in his interest.
Example of questioning technique from a police manual cited in the courts opinion
Joe, you have a right to remain silent. That's your privilege, and I'm the last person in the world who'll try to take it
away from you. If that's the way you want to leave this, O. K. But let me ask you this. Suppose you were in my shoes,
and I were in yours, and you called me in to ask me about this, and I told you, "I don't want to answer any of your
questions." You'd think I had something to hide, and you'd probably be right in thinking that. That's exactly what I'll
have to think about you, and so will everybody else. So let's sit here and talk this whole thing over.
The police asked him questions and told him that he can get a lawyer but if he didnt answer now, without
his lawyer, he would look suspicious and that it would mean that he is guilty.
Amendment 5 - 12/15/1791.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury except in cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property
be taken for public use, without just compensation.
Amendment 6 - 12/15/1791.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.
The right to have a lawyer.
Miranda VS Arizona (1966)

36
Ernesto was arrested after a crime victim recognized him

He was charged with rape and kidnapping
Custody = garde vue
The police officers who questioned him did not inform him of what we now call his Miranda Rights :
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You
have the right to an attorney. If you cannot afford an attorney, one will be provided for you.
http://www.mirandawarning.org/whatareyourmirandarights.html
The police made him sign a confession which said that
He committed the crimes
he knew his rights about self incrimination
So he was sentenced to 30 years for each case so 60 in total and he was already old so we can assume that
its finished for him, indeed, he has great chances of spending the rest of his days in prison.
He is guilty; there is no doubt about that
Ernestos lawyer said that the confession he signed could not have been used against him because he didnt
know about his rights, and when they interrogated him he didnt have an attorney (lawyer)
The police claims that he had been arrested before already so he already knows his rights
The Supreme Court was going to free the rapist unless the police can prove he knew about his rights and an
attorney was present
> Gideon v. Wainwright
Facts of the case
Clarence Earl Gideon was charged in Florida state court with a felony: having broken into and entered a poolroom
with the intent to commit a misdemeanor offense (=stealing alcohol). When he appeared in court without a lawyer,
Gideon requested that the court appoint one for him. According to Florida state law, however, an attorney (=lawyer)
may only be appointed to an indigent defendant in capital cases, so the trial court did not appoint one. Gideon
represented himself in trial, as best as he could but he was found guilty and sentenced to five years in prison.
in prison he therefore has the time to reeds law books

Gideon filed a habeas corpus petition in the Florida Supreme Court and argued that the trial court's decision violated
his constitutional right to be represented by counsel. The Florida Supreme Court denied habeas corpus relief.
Gideon claims that the trial judges refusal to appoint counsel violated his Habeas Corpus right.
They cant put him to jail until hes actually able to get a lawyer.
37
Question
Does the Sixth Amendment's right to counsel in criminal cases extend to felony defendants in state courts?
Conclusion
Goldberg
Yes. Justice Hugo L. Black delivered the opinion of the 9-0 majority. The Supreme Court held that the framers of the
Constitution placed a high value on the right of the accused to have the means to put up a proper defense, and the state
as well as federal courts must respect that right. The Court held that it was consistent with the Constitution to require
state courts to appoint attorneys for defendants who could not afford to retain counsel on their own.
Justice William O. Douglas wrote a concurring opinion in which he argued that the Fourteenth Amendment does not
apply a watered-down version of the Bill of Rights to the states. Since constitutional questions are always open for
consideration by the Supreme Court, there is no need to assert a rule about the relationship between the Fourteenth
Amendment and the Bill of Rights. In his separate opinion concurring in judgment, Justice Tom C. Clark wrote that
the Constitution guarantees the right to counsel as a protection of due process, and there is no reason to apply that
protection in certain cases but not others. Justice John M. Harlan wrote a separate concurring opinion in which he
argued that the majority's decision represented an extension of earlier precedent that established the existence of a
serious criminal charge to be a "special circumstance" that requires the appointment of counsel. He also argued that
the majority's opinion recognized a right to be valid in state courts as well as federal ones; it did not apply a vast body
of federal law to the states.
In jail, Gideon asks the guard jail to give him a piece of paper, he writes a letter and sends it to the supreme
court who reeds it and says he is right!
In the previous decision, the court says everyone has the right to a fair trial but that does not mean we
always have the right to a lawyer
This court disagrees with earlier decision

1.
2.
3.
____________________________________ (court)
Question asked:
_______________________________________________
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_____________________________ (court)
Decision:
____________________________________________________
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Decision:
____________________________________________________
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Extract from the opinion of the Court

MR. JUSTICE BLACK delivered the opinion of the Court.
1. Since 1942, when Betts v. Brady, 316 U.S. 455, was decided by a divided Court, the problem of a
defendant's federal constitutional right to counsel in a state court has been a continuing source of
controversy and litigation in both state and federal courts.
2. Treating due process as "a concept less rigid and more fluid than those envisaged in other specific
and particular provisions of the Bill of Rights," the Court held that refusal to appoint counsel under
the particular facts and circumstances in the Betts case was not so "offensive to the common and
fundamental ideas of fairness" as to amount to a denial of due process.
3. We accept Betts v. Brady's assumption, based as it was on our prior cases, that a provision of the Bill
of Rights which is "fundamental and essential to a fair trial" is made obligatory upon the States by
the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the
Sixth Amendment's guarantee of counsel is not one of these fundamental rights.
4. the Court in Betts v. Brady made an abrupt break with its own well considered precedents. In
returning to these old precedents, sounder, we believe, than the new, we but restore constitutional
principles established to achieve a fair system of justice. Not only these precedents, but also reason
and reflection, require us to recognize that, in our adversary system of criminal justice, any
person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless
counsel is provided for him. This seems to us to be an obvious truth.
The right to have a lawyer is the essential for a trial to be fair
5. Governments, both state and federal, quite properly spend vast sums of money to establish
machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed
essential to protect the public's interest in an orderly society. Similarly, there are few defendants
charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present
their defenses.
6. That government hires lawyers to prosecute and defendants who have the money hire lawyers to
defend are the strongest indications of the widespread belief that lawyers in criminal courts are
necessities, not luxuries.
7. A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice
Sutherland in Powell v. Alabama: "The right to be heard would be, in many cases, of little avail if it
did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has
small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally,
of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and
convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.
He lacks both the skill and knowledge adequately to prepare his defense, even though he have a
perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of conviction because he does not know how
to establish his innocence."
Whats wrong with the system?

States dont have enough money to pay for public defense lawyers
In some places lawyers have to do it for free
In other places that states gives it to the people who makes the lowest offer
40
The states dont have any interest to help people get lawyers because if they pay for peoples lawers they
loose money since the person is still going to go to jail.
How does it work?
It works in a way called meet them and plead them
People who cant afford lawyers meet with a public defender for a couple of minutes and decide to plead
guilty because they know they cant win

41
LECTURE 10: Glossip v. Gross (2015)

This case refers to the 8th amendment
Amendment 8 - 12/15/1791.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.
What does cruel and unusual means?
When we have a criminal crime, its the jurors who decide is we get the death penalty
In 1972 Furman vs Georgia : existing death penalty laws were struck down as unconstitutional
In 1976 Gregg vs Georgia : the death penalty was not per se (en soi) unconstitutional
At this point the question is not is the death penalty okay, but who do we execute people.
Baze vs Rees : death penalty with 3 drugs : the first one puts you in a coma, the 2 last ones kill you but you
dont fell the pain because of the 1st drug
The people that make the 1st drug didnt want to kill people so they stop making the drug. They got it from
danemak, biut they stopped too. They then tried another drug which doesnt work: midazolam
Facts of the case
On April 29, 2014, Oklahoma executed Clayton Lockett using a three-drug lethal injection procedure. The procedure
went poorly; Lockett awoke after the injection of the drugs that were supposed to render him unconscious and did not
die until about 40 minutes later. Oklahoma suspended all subsequent executions until the incident could be
investigated and subsequently adopted a new protocol that placed a higher emphasis on making sure the injection was
done properly. The new protocol also allowed for four alternative drug combinations, one of which used midazolam as
the initial drug, as did the protocol used in the Lockett execution.
Charles Warner and 20 other death row inmates sued various state officials and argued that the use of midazolam as
the initial drug in the execution protocol violated the Eighth Amendment's prohibition against cruel and unusual
punishment. Warner and three other plaintiffs also moved for a preliminary injunction to prevent Oklahoma from
moving forward with their executions. A federal district court denied the injunction and held that the plaintiffs had not
provided sufficient evidence that they would prevail on the merits of their claims and that they had failed to identify a
"known and available" alternative to the drug in question. The U.S. Court of Appeals for the Tenth Circuit affirmed.
On January 15, 2015, the Supreme Court declined to grant the petition for a writ of certiorari, and Charles Warner was
subsequently executed. Richard E. Glossip and the other two death row inmates petitioned the Court again.
Question
Does Oklahoma's use of midazolam as the initial drug in the execution protocol, the same initial drug used in Charles
42
Lockett's execution, violate the Eighth Amendment's prohibition against cruel and unusual punishment?
Conclusion
The use of midazolam in lethal injections does not violate the Eighth Amendment.
No. Justice Samuel A. Alito, Jr. delivered the opinion of the 5-4 majority. The Court held that there was insufficient
evidence that the use of midazolam as the initial drug in the execution protocol entailed a substantial risk of severe
pain, compared to known and available alternatives, in violation of the Eighth Amendment. Because capital
punishment has been held to be constitutional and some risk of pain is inherent in execution, the Eighth Amendment
does not require that a constitutional method of execution be free of any risk of pain. Instead, a successful Eighth
Amendment method-of-execution claim must identify a reasonable alternative that presents a significantly lower risk
of pain, which the petitioners in this case were unable to do. Because the district court is entitled to a high degree of
deference in its determination, the petitioners would have to prove that the district courts factual findings were clearly
erroneous in order for the Court to overturn the ruling. In this case, the medical testimony supports the district courts
determination that the use of midazolam did not create a substantial risk of severe pain, particularly in light of the
safeguards the state imposed on the process.
In his concurring opinion, Justice Antonin Scalia wrote that the Constitution expressly contemplates the death penalty
when it considers the possibility that someone may be deprived of life, and therefore capital punishment cannot be
unconstitutional. The arguments that it is arbitrary and unreliable, and therefore cruel, deal with the concerns about
conviction, not the punishment itself, and are dangers inherent in the jury trial process. The decision of whether to
impose the death penalty encompasses the type of moral calculus that should remain in the hands of the jury, as the
Constitution provides. Justice Clarence Thomas joined in the concurrence. Justice Thomas also wrote a separate
concurrence in which he argued that the studies cited in support of the arbitrariness of the imposition of the death
penalty are themselves unreliable because they require that the moral reasons to execute someone be reduced to a
metric by academics who were not present at trial. Justice Scalia joined in the concurring opinion.
Justice Stephen G. Breyer wrote a dissent in which he argued that the constitutionality of a punishment must be
evaluated based on currently prevailing social and legal standards; therefore, the death penalty is no longer
constitutional. Justice Breyer pointed to studies that show that the exoneration rate is disproportionately high with
capital crimes, which reflects both cases in which the defendant was actually innocent and cases in which there was
procedural error; therefore, the death penalty is not reliably applied to cases in which the defendant has been properly
convicted of crimes that society harshly condemns. Additionally, studies have shown that factors other than the
egregiousness of the crimesuch as the races and genders of the defendant and the victim, the location of the crime,
and political pressuresinfluence the imposition of the death penalty, and such arbitrariness results in the punishment
being unconstitutionally cruel. Because the imposition of the death penalty requires additional procedural safeguards,
there are often long delays between sentencing and execution, if the execution happens at all, which is cruel in and of
itself and also divorces the punishment from its punitive purposes of deterrence and retribution. Justice Breyer also
argued that the nation has consistently been moving away from the use of the death penalty, to the point that it is used
so rarely as to be considered unusual for the purpose of the Eighth Amendment. Justice Ruth Bader Ginsburg joined
in the dissent. In her separate dissent, Justice Sonia Sotomayor wrote that the district court erred in holding that the
use of midazolam did not create a substantial risk of severe pain. Instead, the scientific evidence supports the view
that, while midazolam can induce unconsciousness, it is not sufficient to maintain unconsciousness through the effects
of the rest of the execution cocktail. Because the petitioners sufficiently demonstrated that the risk of severe pain was
substantial and that the states safeguards do not appropriately mitigate that risk, the use of midazolam violates the
Eighth Amendments prohibition against cruel and unusual punishment. Justice Sotomayor also argued that there is no
requirement that petitioners for relief under the Eighth Amendment provide a reasonable alternative, because a cruel
method of execution does not become constitutional simply due to a lack of alternatives. Justice Breyer, Justice
43
Ginsburg, and Justice Elena Kagan joined in the dissent.

1. the 8th amendment to the US constitution provides a protection against cruel and unusual punishment
2. there have been several decision of the US Supreme Court affirming the constitutionality of the death
penalty as well as the constitutionality of the states methods of execution
3. some states substituted the 1st drug by the Midazolam. But there was a problem, in several cases of
botched executions in which the prisoner initially appeared to lose consciousness, but then they woke up
and suffered a lot because the 1st drug didnt put them to sleep, they felt the effects of the 2nd and 3rd
drugs
facts of the case : people against death penalty said this method violates the 8th amendment

3 plaintiffs : 3 deat-row inmates
Injustice ; the execution methodis a violation of hter 8 th amendment protection against cruel and
unusual punishment
The district court says guilty, the second court said no to the appeal, the circuit court said no and it went to
the Supreme Court
____________________________________ (court)
Question asked:
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Decision:
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Four inmates filed a motion for a preliminary injunction.
Decision:
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8th amendments prohibition against cruel and usual punishment
JUSTICE ALITO, writing for the majority, announced the judgment of the Court [] PRO DEATH PENALTY
44
1) Our first ground for affirmance is based on petitioners failure to satisfy their burden of establishing that any risk of
harm was substantial when compared to a known and available alternative method of execution. [T]he record
shows that Oklahoma has been unable to procure [alternative] drugs despite a good-faith effort to do so. Petitioners
do not seriously contest this factual finding, and they have not identified any available drug or drugs that could be
used in place of those that Oklahoma is now unable to obtain. If States cannot return to any of the more
primitive methods used in the past [like the gas chamber or the electric chair] and if no drug that meets with the
principal dissents approval is available for use in carrying out a death sentence, the logical conclusion is clear.
While most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth
Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty
altogether. But we have time and again reaffirmed that capital punishment is not per se unconstitutional. We
decline to effectively overrule these decisions. p. 17-20.
People die all the time so why do these horrible people get to die with no pain?
The plaintiffs failed to identify an alternative, better means of execution that causes less pain
And rejecting every available means/ways of the death penalty would amount to sticking it down even though it is
constitutional.
The judge Alito said this is just a political strategy to eliminate the death penalty and thats not the question we are supposed
to answer today
(4 to 5 decision)
2) Based on the evidence that the parties presented to the District Court, we must affirm. Testimony from both sides
supports the District Courts conclusion that midazolam can render a person insensate to pain. p. 20.
It can make you painless
JUSTICE SCALIA's concurring opinion

3) Time and again, the People have voted to exact the death penalty as punishment for the most serious of crimes.
Time and again, this Court has upheld that decision. And time and again, a vocal minority of this Court has insisted
that things have changed radically, post, at 2, and has sought to replace the judgments of the People with their
own standards of decency. Capital punishment presents moral questions that philosophers, theologians, and
statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For
that reason, they handled it the same way they handled many other controversial issues: they left it to the People to
decide. p. 40.
Some people say no or say to the death penalty.
The founding fathers recognize the death penalty as a legitimate form of punishment
But the constitution allows juries (the people) to decide if capital punishment is appropriate for each case.
So its to the court to decide
JUSTICE SOTOMAYOR dissenting
4) The Court appears to rely on a flawed syllogism. If the death penalty is constitutional, the Court reasons, then there
must be a means of accomplishing it, and thus some available method of execution must be constitutional.
Just because a method of execution is the best choise available at the time does not mean is not cruel
If a State wishes to carry out an execution, it must do so subject to the constraints that our Constitution imposes on it,
including the obligation to ensure that its chosen method is not cruel and unusual.
While the death penalty is legal, cruel execution is not
Certainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death. For these
reasons, the Courts available-alternative requirement leads to patently absurd consequences. Petitioners contend that
Oklahomas current protocol is a barbarous method of punishment the chemical equivalent of being burned alive. But
under the Courts new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners
45
drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the
availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated. The
Eighth Amendment cannot possibly countenance such a result. p.123-124.
According t the majority logic, since the best method is not available, states now have the right to ignore the ban on cruel
and unusual punishment. She (SOTOMAYOR) is saying that is the painkilling drug is not available, you cant execute
people
5) By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government
to respect the dignity of all persons. Roper v. Simmons, 543 U. S. 551, 560 (2005). Today, however, the Court
absolves the State of Oklahoma of this duty. It does so by misconstruing and ignoring the record evidence regarding
the constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail, and by imposing
a wholly unprecedented obligation on the condemned inmate to identify an available means for his or her own
execution. The contortions necessary to save this particular lethal injection protocol are not worth the price. I
dissent. p. 127.
JUSTICE BREYER concurring to the dissent (minority as well)
6) The answer is that the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and
irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are
quintessentially judicial matters. They concern the infliction indeed the unfair, cruel, and unusual infliction of
a serious punishment upon an individual. I recognize that in 1972 this Court, in a sense, turned to Congress and the
state legislatures in its search for standards that would increase the fairness and reliability of imposing a death
penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those
responses have not worked. Thus we are left with a judicial responsibility. The Eighth Amendment sets forth the
relevant law, and we must interpret that law. For the reasons I have set forth in this opinion , I believe it highly
likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing
on the basic question. p.90-91.
Brayer is more radical than the girl judge above; according to him the death penalty itself violates the 8 th amendment. He is
saying death is necessarily cruel and unusual.
More questions about the case

The inmates lost
5 to 4 decision
It upheld the sedative used in Oklahomas lethal injection cocktail
The court says if you excep death you have to except pain, death come with pain, there is no guarantee of no
pain.
The execution in Oklahoma and all other states may go forward
Death is usually painful. Si if the death penalty is legal, there cannot be a constitutional requirement for not
pain at all
Some states are considering changing to gas for example (but it causes a problem because of the Nazi
chambers during WW2)
46

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PARTIEL DE FIN DE SEMESTRE : QCM de 45 minutes coefficient 4

Introductory lecture: Defending basic rights

Lecture 4: Separate but equal

Plessy v. Ferguson 163 U.S. 537 (1896)

Lecture 5: Equal protection of the law

Brown v. Board of Education of Topeka 347 U.S. 483 (1954)

Lecture 6: the right to free speech

Texas v. Johnson 491 U.S. 397 (1989)

Lecture 7: the right to bear arms

McDonald v. Chicago 561 U.S. ___ (2010)

Lecture 8: the right to marriage

Obergefell v. Hodges 576 U.S. ___ (2015)

Lecture 9: the right to counsel

Gideon v. Wainwright 372 U.S. 335 (1963)

Glossip v. Gloss 2015

INRTRODUCTORY LECTURE : DEFENDING BASIC RIGHTS

a) The myth of 800 years of liberties

b) Why is it still popular today?

c) The influence of Magna Carta

2. Background to the English Bill of Rights (=dclara de droit)

Henry VIII ( the eighth )

Catholic at first, then

Edward VI (Henrys son) who died after 6 years

Mary I (Edwards sister)

Elizabeth I (Marys sister)

Charles I (Jamess son)

Protestant but liked catholicism

Charles II ( the second) (Charless son)

James II (the second) he takes over because James II dies

The Parliament then takes over and calls up Mary II (sister of

b) limits of the power of the crown

3. The English Bill of Rights

TEXT A: THE ENGLISH BILL OF RIGHTS [1689]

took away their rights

right to have a representative parliament

4. The American Declaration of Independence

TEXT B: THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED STATES OF

LECTURE 4: Plessy v. Ferguson (1896)

Facts of the case

M.Scott is not a citizen so ha cant come to court

Three points to remember about the historical context of this case.

How the case moved through the court system

Supreme Court of the United States

Louisiana State Supreme Court

_______________ the constitutionality of

Ex parte Plessy (1892)

____________ ____________ Court

______________________ v. Plessy (1892)

Plessy lost the trial

Extract from the majority opinion

JUSTICE HARLAN is a white man who should be racist but wasnt.

Questions about the case

What is the main legal principle involved in this case?

What was the decision?

What are the consequences of this decision?

LECTURE 5: Brown v. Board of Education (= rectorat) (1954)

Facts of the case

UNANIMO US DECISION FOR BROW N ET AL.

Notes taken from the oral PowerPoint presentation :

Three points to remember about the historical context of this case.

Brown case is combined

U.S. District Court for the District of Kansas (1951)

Oral explanation of the case:

All these cases deal with segregation on schools

Court

Court of Appeals, _ Circuit

US District Court for the _ District of __