The US Legislation as a Mirror of Culture - Assignment Example

Journal Assignment: American Law, Culture & Society Q1Law as Culture The book Law as Culture: An Invitation by Lawrence Rosen proposes the idea that the law is closely intertwined with culture so that the law itself is an expression of culture. Rosen’s most persuasive argument is the notion of the impermanence of the law, which is underpinned by the uncertainty of its basic concepts. This uncertainty stems from Rosen’s theory that the law is but a mere expression or perception of how society of what constitutes facts, so that when that perception changes, facts also changes. This point-of-view is given credence by the movies 12 Angry Men and Runaway Jury, where the decision of a case depends on the jury in the respective films. In 12 Angry Men, the jury is in the process of deliberating the decision of the case and it shows how perception of facts are influenced by a jury’s personal experience in life. For example, the juror played by George Scott was ready to give his verdict of guilty against the boy accused of killing his father although he was not so sure of it because he is experiencing strained relations with his own son, while another juror played by Edward Olmos nurtures a conviction that justice exists in America and it must be done so he implores his fellow jurors to get to the bottom of the evidence presented to make a fair and just decision. On the other hand, in the Runaway Jury, justice is being manipulated from two competing sides that have nothing to do with the merit of the case at all: one, by jury consultant wizard who likes to arm-twist the law for gain and to assert his superiority, and on the other hand, by a couple who had an ax to grind against arm manufacturers in general. However, Rosen’s strongest argument also represents his weakest. The idea that the law is impermanent and is a mere byproduct of culture is difficult to prove and Rosen’s argument is so complex that it tends to be perplexing to an ordinary reader. Q2 Plessy v Ferguson 163 US 537 (1896) Facts of the Case: The case happened sometime in the 1890s when segregation was still in effect in Louisiana. Plessy was 1/8th black and 7/8th white but under the Louisiana law he was classified as black. He boarded a train bound and sat in the car meant for white people and refused to transfer to the car for blacks when accosted. His action was actually intentionally planned by an civil organization to test the segregation law of Louisiana. As expected Plessy was arrested and imprisoned. In the trial court, Plessy invoked the 13th and 14th Amendment, which abolished slavery and set out the rights of a US citizen, respectively. The trial court, presided by Judge Fergusson decided in favor of Louisiana on the ground that it had the right to regulate railroad companies within its jurisdiction. Issues: Whether or not the Louisiana’s Separate Car Act, which segregated black from white passengers, violated the 13th and 14th Amendments of the US Constitution. Appropriate Court Decision: The Court should have stricken the Separate Car Act of Louisiana as unconstitutional because it violated the 13th and 14th Amendments of the Constitution. Reasons: The 14th Amendment states that the state cannot enact or enforce laws that reduce the rights, privileges or immunities of its citizens. Plessy was a US citizen and a freeman since under the 13th Amendment. Louisiana may have the right to regulate the use the railroad but such regulation should not be arbitrary and must be for reasons allowed by law such as public order, public good or public welfare. Error in SC Decision: Public policy cannot override the express provisions of the Constitution. As a matter of fact, public policy should be extracted from the essence of the Constitution and segregation is certainly not within the ambit of the equal protection intent of the Constitution. Q3 Mississippi Burning Ward, being the neophyte FBI agent, does things by the book but Anderson, being an old hand, does not confine himself to what is considered proper and in accordance to protocol. He is a maverick, something that the law frowns upon. Legally speaking, Ward’s approach is legally correct and Anderson’s is not sanctioned by law. Anderson’s approach uses coercion, physical violence, artifices and other forms of subterfuge just to make people confess and obtain evidence that will hold up in court. He employs all kinds of means to obtain the end he thinks should be attained. He uses illegal means to compel the happening of the legal end. The film, being a film, does not really reflect reality and it is dangerous to think that it does. Although it is loosely based on the FBI investigation of an actual event, it is a certainty that many of the scenes were exaggerated or even concocted to be cinematically appealable. But even assuming that it does not, it cannot be made a model for how lawful authorities, or the Supreme Court, should approach their job because although Anderson is a rough-and-tumble agent, he has honorable intentions, which might not be the case with other legal authorities. In the real world, cops should abide by the law and the legal process while being tough and incorruptible at the same time. Abiding by the legal process ensures that no citizen’s right is infringed as well as guarantees that no law enforcer abuses his authority. This might make it tougher for law enforcers but it is only right that citizens, who are powerless in the face of the government’s overwhelming influence, are not run over in the process. The film, assuming that it narrates the events faithfully, cannot be used to criticize the Supreme Court’s adherence to the law. The SC, being the bastion of justice, is expected to conduct itself in accordance to what it preaches, otherwise it will lose credibility. Such a scenario will endanger society because people have no longer trust in its justice system. Thus, the SC must be beyond reproach. Q4 Brown v Board of Education 347 US 483 (1954) Facts of the Case: Under Kansas law, the Topeka Board of Education maintained a segregation system between blacks and whites in the elementary levels, which entailed separate facilities for the races. The case was instituted by 13 parents for their children who were refused enrolment in white schools, which were much nearer to their homes that the nearest schools for the blacks. Although it was acknowledged that segregation had a harmful effect on black children the Court nevertheless, found in favor of the Board of Education on the ground that such segregation did not violate the separate but equal policy. Issues: Whether or not the segregation of schoolchildren on the basis of race violated the equal protection clause of the 14th Amendment. Appropriate Court Decision: The Board of Topeka practice of segregating school facilities for black and white elementary schoolchildren is unconstitutional and therefore must be ordered unlawful. The schoolchildren must be admitted to the schools where they attempted to enroll first because these schools are the most practical to go to because of their distance. Reasons: The Court should have ruled such segregation as a breach of the equal protection clause of the 14th Amendment because segregation on the basis of race is arbitrary and therefore discriminatory. Equal protection means that persons of the same class and situation should be treated in the same manner. Error in SC Decision: The SC decided correctly in this case unlike in the Plessy v Ferguson case where the separate but equal policy was upheld as a part of the public policy. Q5 Texas v Johnson 491 US 397 (1989) Facts of the Case: Johnson attended and participated in a demonstration against the Reagan government’s policies. Then demonstrators marched and chanted in the street of Dallas and upon reaching the City Hall, Johnson took hold of an American flag and burned it, after which more chants condemning the government followed. He was thereafter arrested and charged on the basis of a Texan law that makes unlawful the desecration of the flag. The trial court convicted him; the Texas Criminal Appeal reversed the decision and acquitted Johnson on the ground of First Amendment protecting an individual’s freedom of speech. The case was further appealed by the Texan government to the US Supreme Court. Issues: Whether or not Johnson’s act of flag-burning is protected by the First Amendment. Appropriate Court Decision: The Court should sustain the Appeal court’s decision and acquit Johnson. Reasons: The First Amendment guarantees a person’s right to express himself especially against the government. The act of burning the flag was part of and the culmination of the group’s demonstration and protest against the Reagan government and not a separate act by itself. The marching, chanting and flag-burning constituted one continuous expression of protest against the government and therefore lends the last act “sufficient communicative element’ that places it within the ambit of the First Amendment. Error in SC Decision: There was no error in the court decision because the highest court of the land decided it in favor of Johnson on the ground that the act of flag-burning was sufficiently imbued with “speech” element because it was a form of expressing the group’s disgust against the government’s policy. Q6 Barnes v Glen Theater 501 US 560 (1991) Facts of the Case: An Indiana statute was enacted which prohibited complete nudity in public and provided that the most that could be allowed in that department are pasties and g-strings to cover a person’s body. Two entertainment establishments in South Bend objected to the law because they were involved in adult entertainment such as women dancing in the nude. The two entertainment establishments went to court to have the law declared unconstitutional on the ground of breach of the First Amendment, which provides, inter alia, freedom of speech. It was argued that the law was too broad to be constitutional. An Indiana District Court decided in favor of the two establishments and issued an injunction against the statute, which the Court of Appeals and remanded for the plaintiffs to argue against the statute using grounds other than constitutional over breadth. Issues: Whether the Indiana statute violates the freedom of expression guaranteed under the First Amendment. Court Decision: The Court should have declared the Indiana statute a breach of the First Amendment. Reasons: The Indiana statute is too sweeping and includes all kinds of public nudity, even nudity on the beach. If erotic dancing is lawful and is deemed within the ambit of the First Amendment, there is no reason why dancing in the nude in an adult entertainment club is any different. Error in SC Decision: The SC decision states, as a ground for its upholding the Indiana law, that the evil sought to be avoided is public nudity. However, the statute is too broad that it includes nudity in public establishments for adults that pay to enter and watch the exotic dancing. There must be a distinction made between the nudity in such establishments and nudity elsewhere. Q7 Atkins v Virginia 536 US 304 (2002) Facts of the Case: Atkins and another man robbed an airman near Langley Air Force Base in Virginia but the latter had only a small amount of money in his wallet. Dissatisfied with what they got, Atkins and his companion forced the airman to his car and drove him to an ATM machine so he could withdraw more money. Thereafter, they took the airman to an isolated area and shot him. The crime was uncovered using the ATM’s camera, which recorded the process of money withdrawal. Atkins was charged with murder on the strength of the testimony of his companion, who made a deal with the government to turn state witness, which the authorities found to be more coherent. Atkins was convicted and was sentenced to the death penalty, which was objected to by the defense on the ground that Atkins was a mental retardate with an IQ of 59. Issues: Whether execution of a mental retardate sentenced with death penalty constitute cruel and unusual punishment under the 8th Amendment. Court Decision: The Court should reverse its earlier ruling upholding the death penalty sentence on Atkins on the ground that executing a mental retardate constitute cruel and unusual punishment and violates the 8th Amendment. Reasons: A mental retardate has a sub-normal mental processing and does not have the same grasp of things and ideas as persons with normal IQs. He does not learn from experience nor is able to communicate effectively like normal people although he can distinguish between right and wrong. Thus, although he is not excused from his acts, he does not merit an execution either. Error in SC Decision: The Court made the right decision in commuting the death penalty to life imprisonment. Q8 Life of David Gale The main characters’ arguments against the death penalty is that the system trying the accused is often a flawed system, which means that it is prone to mistake and could lead to the execution of an innocent man. To drive home that point, Kevin Spacey, Laura Linney and Matt Craven, who all played Deathwatch advocates, conspired to implicate Spacey in the rape and murder of Linney. In truth, however, she actually committed suicide because of a terminal illness. Spacey, who played David Gale, was subsequently found guilty of the crime, as the three had planned and used Kate Winslet’s character to uncover Spacey’s innocence and show to the world that the system is flawed. The death penalty as a punishment is objectionable but the argument that this is because the system is flawed does not justify this. If society accepts this logic then no one should be punished at all, by the death penalty or any other punishment, because there is a chance that the person being punished is not guilty. Any punishment inflicted on an innocent person is unfair, whether that punishment is death penalty or not. The argument of the characters against death penalty is actually an argument against the entire criminal system and is fallacious because it is a generalization. The existence of one or more erroneous judgment does not make the entire system flawed. The criminal system is inherently fair because it seeks to punish the guilty and clear the innocent from false accusation and plays an important role in protecting society and keeps the orderly and peaceful conduct of everyday life. What make the criminal system reasonably acceptable are the provisions of due process granting the accused all opportunities to adduce evidence on their behalf and other safeguards built into the system to ensure that an innocent person is not falsely convicted and punished. This is not to say however, that the death penalty is compatible with a society that purports itself to be civilized. Q9 Roe v Wade 410 US 113 (1973) Facts of the Case: This case occurred in 1969 and involves abortion. Roe, an alias, and a mother of two, was pregnant with her third child and wanted to abort it but under Texas law, abortion was unlawful unless rape or incest is alleged. An attempt to resort to illegal abortion did not prosper also as abortion clinics were shut down by the authorities. Roe went to court to ask for an injunction of the Texas anti-abortion law but the district court rejected the petition on the ground of the 9th Amendment, which provides that the rights and freedoms granted by the Constitution extends to others not enumerated by it, implying that the right not to be deprived of life extends to the unborn as well. Issues: Whether the anti-abortion law of Texas could be justified by the 9th Amendment of the US Constitution. Appropriate Court Decision: Texas has the right to prohibit abortion to protect the life of the unborn and should have been sustained by the Court. Reasons: The state of Texas, acting as parens patriae, was justified to enact a law prohibiting abortion under the 9th Amendment or under the 14th Amendment or the right not to be deprived of life without due process. Error in SC Decision: The SC subsequently ruled that abortion, up to a certain period in a woman’s pregnancy, is lawful on the basis of the 14th Amendment. The SC based its ruling on the right of a woman to determine for herself what to do with her body under the right of privacy, which is part of the 14th Amendment. Yet, a person’s right cannot be used to justify depriving another person’s right, the right of the unborn. To justify this ruling, the argument is now shifted as to when life in the womb actually begins. Q10 Brokeback Mountain Homosexual conduct should not be made separate and distinct from ordinary conduct. There is no reason why a particular law should be enacted dealing with homosexual conduct, unless such conduct constitutes a crime. If it does, then it should be decided not in the context of conduct made by homosexuals but of average, ordinary persons, where the principles of right and wrong apply without taking into account personalities. Unlike in Atkins, homosexuality is not a form of mental inadequacy and cannot be made a ground to justify or exempt one from the consequences of one’s act. On the other hand, Roe is about the right of a woman to determine for herself what to do with her body and since abortion prevents her from exactly doing that, the case was elevated to the court to petition for an injunctive relief from the implementation of the anti-abortion law and hence, the same is inapplicable to homosexuality. Lawrence Rosen’s position that the law is a mere expression of culture and as such is constantly changing, as to the present has no bearing on homosexual conduct, because unless such conduct is unlawful the law has nothing to do with it. The law should not act to restrict or be excessively protective of homosexual conduct to the extent of enacting a law that particularly encourages it. Sexual orientation is a matter of choice and while people should be free to embrace their sexual preferences, a parallel liberty must also be given to others to reject it so long as the same does not infringe on the rights of homosexuals. At present, the tendency of society is to adopt a broad perspective of homosexuality and there is no need for the law to arm-twist every person to accept it because in time people will learn to accept it. Cited Works 12 Angry Men. Dir. William Friedkin. Perf. Jack Lemmon, George Scott, Tony Danza and Edward Olmos. MGM, 1997. Atkins v Virginia 536 US 304 (2002). Barnes v Glen Theater 501 US 560 (1991) Brokeback Mountain. Dir. Ang Lee. Perf. Heath Ledger, Jack Gyllenhaal, Michelle Williams and Anne Hathaway. Paramount Pictures, 2005. Brown v Board of Education 347 US 483 (1954) Life of David Gale. Dir. Alan Parker. Perf. Kevin Spacey, Kate Winslet and Laura Linney. Universal Pictures, 2003. Mississippi Burning. Dir. Alan Parker. Perf. Gene Hackman, Willem DaFoe and Frances McDormand. Orion Pictures, 1988. Plessy v Ferguson 163 US 537 (1896). Roe v Wade 410 US 113 (1973). Rosen, Lawrence. Law as Culture: An Invitation. Princeton University Press, 2006. Runaway Jury. Dir. Gary Fleder. Perf. John Cusack, Gene Hackman, Rachel Weisz, Dustin Hoffman. 20th Century Fox, 2003. Texas v Johnson 491 US 397 (1989). US Bill of Rights. Read More