Whether Article III of the US Constitution Is out of Date - Assignment Example

1) According to Article III of the US Constitution, which was ratified 222 years ago, federal judges can only be removed from office by the impeachment procedure. Is this provision out of date? Discuss. Impeachment of federal judges or any other person similarly placed like the president and others, can only be done through a constitutional procedure. Impeachment will not by itself remove the impeached person from his post he is holding. It is a prelude to the trial prompted by it and the person can come out unscathed if he is not guilty. Impeachment for removal of a judge depends on three premises. Firstly, the express provision in the constitution precludes any alternatives. Secondly, the judges are absolutely independent from the Congress, the Executive and even their fellow judges. And thirdly, judges are given the privilege of holding their offices during their ‘good behavior’ (Berger, 1974, p 128). That they can continue during good behavior means they can remain in their office for life or up to the time they elect to relinquish office. Impeachment is indictment by the House of Representatives followed by conviction by the Senate. The impeachment may be initiated for ‘treason, bribery or high crimes and misdemonors’. An impeached judge has to face trial at the Senate and at least two-thirds of its members present must vote for his conviction (Outline of the U.S. Legal System, 2004, p 152). Since the commencement of the Constitution until 2004 for more than 200 years, only 13 judges have been proposed for impeachment by the House of Representatives. But the fact remains, about thirteen judges voluntarily stepped down before any impeachment proceedings had been initiated. And out of thirteen judges against whom action was taken, only seven were convicted and removed from their office. There had been no serious criminality involved but theirs was misconduct that lay between acceptable and impeachable behavior. For example, a jurist may have conflict of interest and displays biased approach in the court hall while hearing a case. Such instances have been only treated with some reprimands by the fellow jurists. In the recent past, there have been some cases of disciplinary action against the judges pursuant to enactment of a new act called Judicial Councils Reform and Judicial Conduct and Disability Act in 1980. While this act can be invoked for removal of judges other than Article III judges, it can only be used against the such Federal judges for only being privately or publicly reprimanded, given disability certificate, persuaded to resign voluntarily or prohibited to handle further case assignments. Hence, if they have to be removed, impeachment is the only process available. If the council considers that impeachment is warranted, it should notify the Judicial conference who will forward to the House of Representatives for further action (Outline of the U.S. Legal System, 2004, p 153). More difficult is to remove a Federal Judge who is too senile to carry out his judicial responsibilities in an effective manner than a judge who is charged with misconduct. Congress did attempt to attract them to retire by offering more financial benefits of retirement. Under a rule 80, they are allowed to retire with full pay and benefits when their age and length of service add up to 80. Instead of retiring, they can also be elevated to a senior status if so they desire. They are also given the choice of reduced case load and allowed to retain their office and staff so that they are proud of being active judges with self respect. Federal judges also choose to resign when it is possible to be replaced by judges of the same political and judicial orientation they are wedded to. A 1990 study says that since 1954, judges have resigned only when there can be continuity of their judicial and political ideologies as they sincerely think that their appointment is a part of the policy connect between the people, appointment process and the style of decisions prompted by their ideologies (Outline of the U.S. Legal System, 2004, p 154). About the acquittal of Justice Samuel Chase, there are divided opinions. On the one hand, it represents triumph of justice over political partisanship and on the other, it is a miscarriage of justice as the Justice had flagrantly violated the standards and his removal would have served as a reminder that there was no place in the bench for a prejudiced judge (Berger,1974,p234). Judge Walter Nixon who was impeached had faced charges of making false statements to a grand jury and for that act he was sentenced to prison. In his case, the senate created a committee and had it conduct hearing instead of all of its members hearing as if in a trial. The committee made its recommendations to the senate whose members present voted by two/thirds majority and thereby removed the judge Nixon from office. The Supreme Court refused to set aside the conviction and held it was at least non-justiciable (Lundmark, 2008 p67). Conclusion The above account would show that the Federal Judges also called Article III judges enjoy certain immunity and the fact that the House of Representatives impeach and Senate alone can remove them by convicting them shows that their appointments themselves reflect the political ideologies of their time and as they are in effect political appointments, their political masters alone could decide their fate. It can also be argued that political majority in the Senate should reflect the will of the people and thus people alone have the power to remove them. As their appointments are obviously to perpetuate political ideologies of the ruling party, the Senate alone has the last word on their removal, though framers of the constitution would not have had this design. It has become a convenient way for the Senate to retain a judge at their will. As such this provision in Article III for impeachment is still valid and will never become out of date. 2) Most US law schools only admit students who have already completed a bachelor's degree of four years' duration. Do you agree with this requirement? Why or why not? The four years bachelor’s degree requirement to enter a law school in the U.S. has a long history which needs to be examined to decide on the pros and cons of the said requirement. In order to become a lawyer, a student has to undergo seven years of study in university spending four years for bachelor degree and then three years in a law school for the law degree. Just as a medical student spends seven years for graduation form a medical school in order to be conferred with title ‘doctor’, law student has to spend seven years at the university to earn ‘doctor’ degree Juris Doctor (JD) for which purpose, the U.S. changed the title LLB to JD during 1960s. The JD program is largely attributed to Christopher Columbus Langdell. He had been the dean of Harvard Law School from 1870 to 1895 and literally dedicated his life towards legal education reform in the U.S. According to the historian Robert Stevens, Langdell’s aim was to make the legal education a university educated instead of being an undergraduate study. He wanted the three year legal education to be undertaken as a post graduate study. He managed to make other law schools to follow this pattern as they had been drawing their faculty from Harvard qualified persons. Harvard itself had gradually converted its 18 months LL.B. program to two years in 1871 and later into three years in 1899. Harvard Law School officially made it mandatory to possess an undergraduate degree for entry into its law school in 1909. Other law schools at Columbia, Pennsylvania, Case Western Reserve, Stanford and Yale followed suit by the year 1921. The degree program was being called LL.B even though the entry-level was made a graduate program (Mwenda, 2007, P 14). University of Chicago on its commencement was the first to make it a J.D from Bachelor of Laws. Some other schools awarded J.D as a Latin honor for those who secured high grades. Gradually all the schools changed this discrimination into a regular J.D for all the students. Yale Law school was the last to convert its LL.B.in 1972 into J.D. (Mwenda, 2007, p14). Though the U.S., Canada, U.K. are all common law countries, the U.K. has no such requirement of university education as a prerequisite to pursue legal education though they have two systems of working as a solicitor and barrister whereas the U.S. ahs the fused system. (Mwenda, 2007, p15). Though the U.S degree is called J.D., it is truly not a doctorate degree. It is not a master degree either. Pappas states that JD is not doctorate and in fact after the J.D, the master degree taken in the U.S. is known as LL.M. And the actual doctorate degree after the LL.M is known as SJD offered by some law schools. JD and LL.B have the same syllabus and it is quite ironic that most of the JD graduates from ABA law schools have had no exposure to the Jurisprudence as a paper or subject of study. A doctorate degree cannot be justified merely by a number of years spent in the university educational system. The bench mark is standard and quality of course work. JD can only be considered as a post graduate degree and not as a doctorate one. Substance over form principle should be considered. Similar view was voiced by Cromwell also. According to him the notion of law degree as a post graduate degree has been of recent origin. There had been debates amongst the state bar association as early as in 1920s on the need for an undergraduate college background for a law degree. Cromwell adds that some states require only two years which he considers as absurd. According to him, undergraduate degree of four years or post graduate degree of two or three years have no relevance as long as the degree holder is able to pass the bar exam. Even those who have no degree or have distance education or online education degrees, can qualify as long as he is able pass the bar examination. Cromwell further adds that many clerical workers of high school background in Washington had been attending National Law College for LL.B and LL.M programs. Later when the National Law College was taken over by George Washington University School of Law, all their LL.B degrees were changed as J.Ds thus making JDs as graduates of an ABA approved aw school over night. Why JD should not be equated to a doctorate degree is because the term ‘doctor’ means teacher or instructor originating from ancient Romans who held public lectures on philosophical topics. The term doctor was not associated with great men of learning during the middle ages. Doctor was made the academic title for the first time by the University of Bologna as allowed by the emperor to appoint doctors legum (doctor of laws). University of Paris followed suit in the year 1145. Later, Popes permitted universities to appoint ‘doctors canonum et decretalium’ (teachers of the cannon law) and when the civil law was combined with the study of cannon law, it was changed to ‘doctor utriusque juris’ (teacher of both laws). Thus the doctor title for law was designed after the faculties of theology and medicine. The doctorate is awarded after the bachelor degree and several years of advanced study, submission of thesis or dissertation and written and oral examinations. Yet the American Bar Association (ABA) argues that JD is a PhD degree in an effort to elevate the image of JD degree as the JD degree is a sufficient requirement to practice or teach law in the U.S. The ABA statement says that whereas JD requires 84 to 90 semester hours of post bachelors study, the Doctor of philosophy requires only 60 semester hours of post bachelors degree along with a dissertation. Hence both the degrees are eligible for educational employment purposes. However the U.S department of education distinguishes between the fist professional degrees and research Doctorates. It says that the first professional degrees are first degrees and not graduate research degrees. (Mwenda, 2007, p16-22). Conclusion The above account would show that four years bachelors degree education as a prerequisite for law degree is not necessary as long as one is able to pass the bar exam. Essentially, the question is whether law degree should be a post graduate degree. Undoubtedly, the law degree is a professional degree. To earn a similar professional degree in medicine, one has to spend seven years of university education. Applying the same standard, it follows that a law professional also should have seven years of college education. Thus four years of undergraduate education before pursuing a core law education seems to be reasonable. The argument that if one passes the bar exam, it is immaterial whether one has undergone any formal education or not, is not correct. Even in the case of medicine, there may be qualifying exams for employment purposes after spending seven years of formal university education. It may be amusing to learn that a high profile constitutional lawyer Kathleen Sullivan who had been also the dean of Stanford Law School failed in her California Bar exam when she tried to move to Los Angeles from New York where she was practicing. As reported in Wall Street Journal, of 2005. It only shows that she had not refreshed herself after long years of academic environment. Probably as a specialist in constitutional law, she was much sought after lawyer in that field. It does not mean the she lacked in academic knowledge but excelled in practice. It is not there is a disconnect between academic background and professional standard. Each profession has the prescribed standard and the history seen above shows that fours of university education prior to entry into law school became a requirement only in the early 20th century. Where there were not many lawyers around, rigorous requirement could not be insisted upon when the profession was in its infancy. Many legal luminaries of 19th century propounded legal principles without any doctorate degrees. But it does not mean, formal four years of university education is not necessary. Basically the four years college education entails learning pure sciences or humanities which lay the foundation for further professional pursuit. Hence it must be admitted that in the present evolved environment, four years of university education is a pre-requisite for legal education both for the upholding of standards of profession as well as to have basic foundation in humanities or sciences for the entrants to legal education. Law is not an end in itself but a means to an end. 3. Should there be a national bar association in the United States, rather than the system of state bar associations, so that lawyers might practice nationally? Discuss. Though all the states of the U.S. have similarity in criminal and civil laws , differences exists such as in gambling which is legal in some states and illegal in some others. Civil laws are more dissimilar among states in respect of taxation, environment, and other subjects. Since each state is unique, it not practicable for lawyers to practice in more than one state. Further, as each state has control over licensing of its lawyers, the lawyers of the U.S. cannot practice law all over the country. They have to fulfill the licensing requirement of each state. Attorneys from outside the state are allowed to practice in other jurisdictions on case to case basis provided they have working arrangement with the attorneys of the outside jurisdiction (Smith, 2003, p 8 ) Although States have autonomy over the regulation of the profession, they engage in parallel activities through the auspices of American Bar Association which is a national body. (Abel, 1991, p11) The profession does not allow outside state attorneys with an intention to overcome competition. An attorney can appear in individual matter pro hac vice without being formally admitted into the relevant jurisdiction but this privilege is being denied. An admission to federal court must automatically enable admission to any state bar but new barriers are imposed. As the states regulate their own laws of for law practice, the lawyers need to be admitted to the state where the attorneys regularly practice. Interstate mobility in legal occupation has not been easy. The licensed lawyers in one jurisdiction have to take additional bar examination in other jurisdictions they wish to practice. Even if they come forward to take up additional examination, the investment involved for the preparation is prohibitive for those seeking to have part time practice in the new jurisdiction. As far back as in 1930-31, only five out of forty nine states had the requirement of passing their respective state’s bar examination for outside the state attorneys. The rest of the states had been admitting the other state lawyers with a minimum of practice in their own states, on motion on reciprocal basis. And every applicant had the admission. When the states made their rules stringent for enrolling their own lawyers, they restricted the interstate mobility also. California had been a favorite state for the migrating lawyers. But when it imposed in character test, separate attorney examination, and a fee of $ 100, admission from outside states reduced drastically. Pass rates for lawyers seeking admission in other jurisdictions were 49.5 % in Florida, 21.6 % in Nevada, 65.5 % in New Jersey, 57 % in Washington and 61 % in New York. The National Conference of Bar Examination also began conducting character tests for the migrating lawyers as insisted by the admitting states. Out of 1000 attorneys who appeared for examination, 104 were denied admission during 1950s. Many states increased the period of minimum practice for the migrating lawyers in their own states. By 1952, thirteen states had stipulated three years, twenty two states, five years and two states, ten years. Protectionism only increased after the war. The number of states requiring examination increased from twelve to twenty five by 1982. At this juncture, all fifty states adopted the 200-question multiple-choice Multi State Bar Examination adopted in 1972. District of Columbia introduced it 1988. In 1986, only twenty five states admitted outside attorneys on motion having a practice of not less than five years. Florida prohibited retiring outside the state lawyers from setting up practice in Florida. Another barrier or interstate practice is the residence requirement. This entailed lawyers establishing residence in their aspiring state for quite some time and had to abandon their existing practice involving financial sacrifice. However, the U.S. Supreme court nullified this requirement as unconstitutional (Abel, 1991, p 116-118). There had been debates in 1972 for the establishment of a United States Bar with sufficient power to admit and discipline the lawyers to practice in all the courts of the U.S. This would result in establishment of high and uniform standards for the attorneys. In the long run, the litigant public would be benefited. Lack of discipline among the attorneys is a major area of concern as voiced by the Chief Justice of the United States while addressing the American Law Institute in May 1971. He deplored the ways of lawyers showing their smartness in disrupting the proceedings or in speaking at the courts in high pitched voice amounting to shouting. He added that the lawyers did not hesitate to insult even the judges. He said that disruptive practice had become a novelty in American legal History. While the District Judge Harold Medina managed to survive harassment by the lawyers in 1949 Communist Party Leader’s trial, Justice Eicher of the United States District of Columbia died of heart attack after continuous court room disruptions for seven months by the defendants and their attorneys (Wilkey, 1972, p355). Chief justice Warren Burger stated in 1974 that the licensing and admission power for enrolment of lawyers lying with fifty state jurisdictions, ninety three federal district and eleven circuits had led to hodgepodge of standards and that the practice needed a careful re-examination. (Brakel and Loh, 1974-1975, p 699) Conclusion Thus, the nature of independent sovereignty of the States as guaranteed by the tenth amendment to the constitution, encourages them to bar outside lawyers from setting up practice not so easily with an intention to enhance the prestige of the profession in their respective state and this has become a convenient and disguised form of protectionism. Although the American Bar Association is a national body, its aim is to only regulate the profession as a whole in terms of efficiency and discipline and it does not have licensing powers. There has been a wide spread concern among the judicial circles that lawyers need to be codified nationally so that not only the professionals will be more disciplined but also the litigant public can bring their chosen lawyers to defend them without the state bar’s restriction. What seems to be more practical is to have national apex body regulating and imposing uniform standards for the State Bar Associations bringing the lawyers under the control the national body so that the lawyers erring in one state cannot migrate to another state for practice. Apart from this, lawyers will be benefited by spending more time in conducting cases than spending time to get enrolled in every other state, once they are out of law school. Lawyers licensing at the national level enabling them to practice wherever they want seems to be an ideal proposition. 4. Should morbidly obese people be recognized as a "quasi-suspect class" (deserving intermediate scrutiny) for purposes of equal protection analysis? Why or why not? A suspect classification involves grouping of people likely to be under discrimination warranting closer scrutiny of courts in the event of a law of being alleged as unconstitutional denying equal protection. The regulation or law concerned must be subjected strict scrutiny. As per the U.S. Supreme court’s criteria, a group of people may qualify to be a suspect classification. Some of the criteria are, the group must have been under discrimination, prejudice, hostility and/or stigma, the group is a minority, that the people of the group has immutable and / or apparently visible trait, and the group is unable to protect themselves through political process. The Supreme court has prescribed strict scrutiny for cases involving national origin and religion as a suspect class and intermediate scrutiny for cases of government sponsored discrimination involving sex or legitimacy as quasi-suspect class. While strict scrutiny would result in a law being declared unconstitutional, intermediate scrutiny would result in the court upholding of the discriminatory law Obese people are the subject of ridicule and discrimination in the matter of employment and social settings. One health club put up a billboard stating when the aliens come, they would the fat ones first. Protests that followed made the health club remove the bill board. (Kelly, 2006, p 142-147). A 16-year-old girl complained of ego-bruising comments on her size by a nursing practitioner. Some obese people have been denied insurance. Sondra Solvay, author, working for the U.S Department of Housing found there was weight discrimination in housing. She complained of some landlord avoiding eye contact with her because of her size. The fat activists say that fat is immutable and diets are of no value except that they are money making schemes. A Danish study of 1986 has found that heredity is attributed to 80 percent of the body weight. Wann who represented these facts to San Francisco Board o Supervisor, it made discrimination in employment, hosing, public accommodation, business and social activities as unlawful. The board was convinced that such discrimination amounted to serious threat to health, safety and general welfare of the community. Ann says that medical establishment’s propaganda against fat is not warranted and because of the propaganda, they lost their jobs or were refused jobs not due to their inability but due to their size. Since 1950s, the American anti-discrimination laws protect individuals from unfair social or economic treatment based on personal characteristics over which they have no control. Such discrimination must be proved or based on immutable circumstances. Genetic studies have shown that heredity accounts for 30 percent of variability. Many felt that such protection would create a legal monster and on implementation, it would affect the private sector businesses besides damaging the public health. San Francisco’s ordinance protecting obese people facilitated many complaints from obese people. One eight year old Fredrika Keefer and her mother Krissy informed the San Francisco Human Rights Commission that a ballet school required students to have a slender and well proportioned body with feet of penguins so that they could arch and turnout like penguins. The school had to take the girl for the ballet class in spite of her obesity. (Kelly, 2006, p 142-147). In English v Philadelphia Electric Company (1981), Joyce English who was found unfit by the company’s medical doctor because of her weight was given relief by the Pennsylvania Human Rights Commission which said that morbid obesity was a handicap or disability within the meaning of Pennsylvania Human Relations Act and that the company should pay her $ 20,000 as compensation and offer her next available job. In Pan American Airways (1989), the company was ordered to pay $ 2.35 million to 116 female flight attendants for having been discriminated by denying them promotion, making them resign or firing them because of their obesity. In another instance, airlines charged morbidly obese people for two seats. Insurance companies accept aids or cancer but refuse obese people. But there are also scientific claims that obesity is avoidable or curable. Civil Rights Act of 1964 is the basics federal law protecting against employment discrimination but it does not show the morbidly obese is a protected characteristic. Americans with Disabilities Act (ADA) 1991 was enacted to ensure that merit and not bias must be used for judging the people with disabilities. Disability has been defined as physical or mental impairment that limit substantially one’s major life activities. There must be a history of impairment. It must be regarded by the community as an impairment. The equal protection clauses of the constitution through article IV and amendment XVI and similar clauses in the state constitutions protect obese people from discrimination (Kelly, 2006, p 142-147). Conclusion Thus the morbidly obese people certainly deserve to be treated as quasi suspect class for equal protection analysis. Obesity is a proven disability and as long as it does not interfere with the proper carrying out of duties in a job or rather it would not prevent the obese person to carry out the give job, he should not be denied employment. Such a class people are quasi-suspect class and are eligible for intermediate scrutiny for equal protection analysis when ever laws are challenged as discriminatory. 5. Which method of statutory construction, if any, makes the most sense in today's world? Should Congress and the legislatures of the states pass a law mandating that the courts apply one particular method of statutory construction? Why or why not? Courts are empowered to set aside an agency’s action if it is found that the agency has exceeded its authority or violated the limitations imposed by a federal statute. The court must give deference to the agency’s statutory interpretation before a decision is taken. The interpretation is provided in the “Chevron’s” two part test. The Administrative Procedure Act (APA) envisages that a reviewing court should decide all questions of law and interpret the statutory interpretation. In this connection, the U.S.Supreme Court has laid down the principles in its decision in Chevron U.S.A. Inc V. Natural Resources Defense Council (1984). The decision has prescribed a two step test what is now called Chevron test. Step one involves the reviewing court to determine the statutory meaning of the précis issue before it, is clear enough and not ambiguous. The step one does not dictate court to use a particular method of statutory interpretation. But the court is expected to use the traditional tools of statutory construction. so as to determine whether the meaning of the statutory wordings are clear enough in respect of the issue before it. Tools available for judges are examination of the textual meaning of the statute, dictionary meanings, rules of construction, statutory structure, intent of the legislation and history of legislation ( Duffy and Herz, 2005 ,p57-58) Statutory language is the main source of meaning for interpretation through the definitions of key words especially when they are different from ordinary meaning. In Gustafson V. Alloyd Co., Inc., (1995), the court looked into the definition of prospectus in order find out the meaning of the term in a provision stating a right of rescission against sellers making material misrepresentations “by means of a prospectus”. Dictionary meanings are taken in the absence of a different intention of the congress for using the particular word. Since the Chevron decision dictionaries have become popular tools for interpretation. (Duffy and Herz, 2005 ,p58)s The traditional rules of constructions have not become irrelevant after the chevron test (Duffy and Herz, 2005, p79). Conclusion There is no single method of interpretation as seen above. Congress can neither pass laws to adopt any one method only. Such a law would be dangerous in justifying a wrong interpretation as correct merely because it is statutory. The statutory construction itself has been retained as a residual means of interpretation of statutes. If no such residuary method is retained, the scope of law will stop being dynamic and become static leaving no room for correcting a wrong. Thus law will loose its credibility and it will only assist advancement of a will of the rulers and not will of the people. Some times, it may even boomerang on the rulers unwittingly. Works cited Abel Richard L, American Lawyers, Oxford University Press, US, 1991 Berger Raoul, Impeachment: the constitutional problems, 2nd ed, Harvard University Press Brakel Samuel J and Loh Wallace D, Regulating the Multistate Practice of Law, Washington Law Review, 1974-1975, p 699 Chevron U.S.A. Inc V. Natural Resources Defense Council 467 U.S. 837 (1984) Duffy John Fitzgerald and Herz Michael E, A guide to judicial and political review of federal agencies, American Bar Association, 2005 Gustafson V. Alloyd Co., Inc., 513 U.S. 561 (1995)  Kelly Evelyn B, Obesity, Greenwood Publishing Group, 2006 Lundmark Thomas, Power & Rights in US Constitutional Law, Oxford University Press US, 2008 Mwenda Kenneth Kaoma, Comparing American and British legal education systems: lessons for Commonwealth African law schools, Cambria Press, 2007. Outline of the U.S. Legal System, Bureau of International Information Programs United States Department of State http://usinfo.state.gov 2004 Smith Christopher E, Courts and trials: a reference hand book, Santa Barbara, CA, ABC-CLIO, 2003. Wilkey Malcolm Richard, Proposal for a “United Sates Bar”, American Bar Association Journal, 1972, p 355 Read More