American Law and the United States Constitution - Assignment Example

Running Head: INTRODUCTION TO AMERICAN LAW Introduction to American Law Name Course Institution Date Introduction to American Law Question 1 Article three of the United States constitution gives several provisions that revolve around the judicial wing of the federal government. This section of the constitution provides that judges can hold their offices during good behavior unless they were appointed in the course of the Senate recess. “Good behavior” in this case implies that judges can be in office for the rest of their lives unless they wish to voluntarily retire or resign. This section of the constitution also provides that judges can be removed from office through impeachment and congressional conviction vote thus the term, “good behavior”. The provisions in Article three of the constitution were ratified 222 years. The impeachment procedure has only occurred fourteen times in the history of America, in most cases judges prefer to resign rather than to go through the process of impeachment. Consequently, we are caused to question whether this provision of Article three in the American constitution is out dated or presently relevant. Impeachment can be termed as a formal procedure in which an elected member of the judiciary is indicted of unlawful conduct which may lead to their removal from office. Impeachment may not necessarily lead to the removal of an official from office, it is basically a legal statement of charges. Prior to conviction, an official under impeachment faces a second vote by the legislative board, the second vote determines the conviction of the alleged official. It is worth noting that impeachment is not a criminal trail rather the only subject under investigation is substantial evidence for the removal of an official from office or substantial evidence to prevent the removal of an individual from office. In the United States, impeachment power is vested upon the legislature since it allows formal charge against an officer for abusing their office through unlawful conducts such as bribery, treason and misdemeanors among many other crimes (Farnsworth, 2003). Personally, I consider impeachment as a presently relevant procedure despite the fact that this procedure can be costly and time consuming. Nevertheless, impeachment is imperative and relevant as far as maintaining judicial integrity is concerned. The provision on impeachment is not out dated since the parties that wish to invalidate an official in office are given a platform whereby they can defend their allegations before a court. Furthermore, there is a platform to lodge for an appeal in case the court rules in contrast to the expected. Impeachment proceedings also allow for the scrutiny of patent in a number of ways either for motives linked to intrinsic faults in application or on the grounds of prior act (Sutherland, 2008). The impeachment procedure is hardly outdated since it addresses issues in regard to the abuse of office. In the course of writing section four of Article two, George Mason supported impeachment for incompetence or maladministration. On the other hand, James Gibson favored impeachment for criminal behavior such as bribery, treason and other misdemeanors. Scholars in the likes of Kevin Gutzam argue that impeachment is inherently a valid and relevant procedure since it offers a model that address issues in regard to the abuse of office by dismissing culpable officers from work(Lundmark, 2008). The constitutional device of impeachment is not outdated since it has overtime been used as a tool of holding federal judges accountable. More than ten judges have over the course of time been removed from office through impeachment due to misconduct. Impeachment leaves no room for biasness since decision is reached on vote consensus amongst the involved members of a legislative body. Contrast to the stated perceptions, it has been argued that impeachment threatens the autonomy of the judiciary. The judiciary has been perceived as the weakest wing of the federal government since federal judges are often threatened by congressman with impeachment if they perform in contrast to their individual expectations. Specific judges have been targeted with impeachment rows because the decisions they rendered decisions that some members of the congress disapproved. In his book, “Impeachment” David Barton claims that impeachment is an appropriate tool from restraining the judiciary fro being overacting since in some cases the congress abuses its power by unfairly removing judges from office. Impeachment has been used for partisan purposes, however Barton illustrates instead of impeding on the autonomy of the judiciary impeachment makes the judiciary an accountable wing of the federal government. Through impeachment federal judges are caused to be responsible for the decisions they make and as a result judges are prevented from usurping, abusing or misusing power. In most cases, impeachment is advocated for under suitable constitutional criteria (Sutherland, 2008). The removal of convicted judges from office who were found guilty through impeachment by the majority vote by the House of Representatives is apparent. In the history of United States, at least ten judges have been removed through impeachment. For example, 1949 saw Judge Samuel Kent impeached and removed from office when he acknowledged he had acted unethically in the course of his work. It is therefore evident that the process of impeachment is not out dated since it has overtime been used as a tool of holding federal judges accountable. Question 2 In the United States, law is not offered as an undergraduate degree program. Students must complete a four-year bachelor's degree before applying and being admitted to any degree law schools. Some programs offer a wide selection of courses that participants can choose among according to their interests. Others focus on a general introduction to U.S. law, on English for legal purposes, or on other subjects such as intellectual property law or environmental law. This enables the students to have a wide view on the issues affecting the world. During the undergraduate level, students who intend to do law may major in any subject. In some institutions pre-law concentrations exists but majority of students who manage to go to law schools must have earned a degree in areas like behavioral science, humanities and social sciences . U.S. law school requires critical and analytical thinking, writing skills than preexisting knowledge of law (Lowell, 2004). Personally, I do not agree with the requirement that laws schools in the United States should only admit students who have a completed a bachelor’s degree in any field for duration of four years. There are several factors that the law schools should focus in while admitting their students other than having a bachelor’s degree in any other field. For example, it should be made compulsory for the students to get excellent scores on the Law School Admission Test as a precondition for admission. Such tests are sufficient to assess the students if they are fit to study law among many other evaluations methods like assessment of the students by using the essays, short questions whereby the students would be required to give answers, clear scrutiny of application materials and also the students can be requested to bring honorable recommendation letters for them to get admitted if they pass all other tests (Lowell, 2004). Given the fact that law schools in the United States are very expensive, individuals hoping to major in the field of law will be forced to spend a lot of money since after paying for the under graduate degree most of them would not be in a position to pay more money in another degree. The requirement put across by law schools in the United States evidently poses financial constraints especially for students coming from poor backgrounds. Perhaps instead of the students first studying any degree the law schools could make the students to first learn the general law and then make them specify in the law lines they would wish to pursue. There are several areas the law students could be covering before specialization, which could take place during their second year in the law school. The areas that the students can first generalize in include moot court, legal writing classes, legal clinics, law review and summer clerkships and many more others(Lowell, 2004).Additionally, if these schools admitted students without their first degree, there still many areas whereby the students get tested before they are granted permission to practice. For instance, students can get tested in LSAT – law school aptitude test and GPA – grade point average. Moreover, law schools in the United States can focus on fundamental personal factors before admitting the students since these factors are very important. The law schools ought to actively look for the applicants who come from outside the traditional pool as this will help in the boosting racial, economic and practical diversity within the law school. The personal factors are very important since the law school students are in future going to become the lawyers, judges, attorneys and legal professionals who will be serving others and thus they should have strong personalities as they will be involved in promoting justice. The law schools should aim at targeting the students who would be devoted both to the aims of serving others honestly, proficiently, and dutifully, and to the objectives of improving justice and the value of justice within the legal system. Therefore, the law schools should set out to admit the students with some notable experience since this may illustrate such people are likely to dedicate considerable effort to assisting others. Furthermore, law schools in United States should also concentrate more on students who display a lot of diversity in constitutional matters since this shows that such students are entirely interested in the law issues. In addition, law schools in United States could also consider making their students to study for more semesters instead of undertaking a first degree in any other field. This would be of great assistance because if students spend most of their studies in law schools are better since they end up becoming more refined instead of first doing a bachelor’s degree and then spending a short time in law schools. Lastly, it is unfair making it a requirement for the students to first study a bachelor degree to the young people who want to study law since some of them study the fields they have no passion in and as a result end up failing and hence they get to have their dreams of studying law dwindled just because they did not immediately go to law schools where they have their field of interests (Lowell, 2004). Question 3 Bar associations in the United States are voluntary associations of lawyers, these associations are not necessarily limited to a specific jurisdiction. Key functions of these associations include, modeling ethical codes in the legal practice and setting an academic criteria for law schools. Evidently, there is need for a national bar association in the United States instead of the state system of bar associations in order for lawyers to practice nationally. The establishment of a national bar association is necessary since there is an insatiable need to make use of or exploit the collective talent and tact brought about by lawyers in the various legal practices and jurisdictions. Unlike a system of state bar association, a national bar of association will aid all American citizens despite of their creed or race to secure their rights and privileges as guaranteed in the American constitution. A national bar can adequately advance the jurisprudence science and improve the administration of justice nationally. The establishment of a national bar of association rather than a state association garners more strength that can aid to maintain the independence of the judiciary. Moreover, a lawyer’s bar of association established nationally is bound to beckon lawyers to work towards equal representation of racial groups nationally. Given the fact that a national bar of association beckons more strength as compared to a states system, a national bar is bound to promote legislations that could improve the living conditions of all citizens in the United States despite their race or jurisdiction (Farnsworth, 2003). Practicing lawyers are normally in the state bar association and as a result a lawyer practices within the state he or she is a member. Usually, there is a lawyer’s association within each state and each is supervised by highest court. Given the fact that a practicing lawyer must be a member of the bar association, all lawyers are required to have state-bar membership and thus a lawyer applies to a specific jurisdiction and upon the application going through the lawyer gets membership to the specific state association. The lawyers who can enter in the state membership include lawyers in private organization and the voluntary lawyers as well. The state association does not have the authority to confer the right to practice or right of 'audience' and there is no disciplinary authority within the association. Nevertheless, state bar certify law schools within the given state. The main limitation with the system of state bar association is that it does give the lawyers a chance to practice nationally while if there was national bar association in the United States the lawyers would be in a position to practice nationally. A national bar as compared to a states system could promote socio-economic and political intercourse among its members from different jurisdiction thus promoting development in the various socio-economic circles. The establishment of a national bar rather than a state system is bound to effectively protect political and civil rights of citizens and residents in the various jurisdictions in the United States. It is therefore evident that the integration of the American bar is imperative and can be more effective as compared to a state system of bars. The integration of a national bar will enable lawyers to access information through the National Bar Association magazine which always keeps the members abreast on information regarding new developments within the areas that are related to their legal practice. Furthermore, the magazine would act as means of internal communications among the members. The integration of a national bar would give lawyers an opportunity to get insurance this is mainly because in the National Bar Association members are all entitled to the “NBA Lawyers Professional Liability Insurance and Risk Management Program with certain underwriters at Lloyd's of London." Liability insurance for lawyers is vital particularly in protecting them from incurring incredible losses thus minimizing the lawyers’ career risks (Hall, 2004). In addition, a national bar would provide lawyers widespread since it comprises of a network of many lawyers, legal professionals, juries, faculty, administrators and law students. As a result, an avenue for sharing and broadcasting ideals and hence cultivation solid in addition to strong professional ties is created. Moreover, a national bar would give lawyers who are in state bar associations to get in the National Directory of African-American Attorneys. This is because the lawyers who are in national bar association get registered inside the certified National Bar Association Membership Directory automatically. Furthermore, this would give the American lawyers a chance to get an all set reference for locating lawyers and more so the black lawyer specialists nationwide. The lawyers would also get a chance to get continuing legal education and enlightenment as well. This is because National Bar association is a certified sponsor in each and every American sate with compulsory long term legal education requirements. The National Bar Association offers more than 45 continuing legal education coursed each year (Lundmark, 2008). Question 4 Morbidly obese persons have over the course of time been subjected to intense stigma and discrimination especially in the western countries. This is mainly due to the excess accumulated body fat that adversely affects their mental and physical stature. In order to curb the on going discrimination against morbidly obese persons a number of suggestions have been put into play, it has been suggested that morbidly obsess persons should be considered as a “quasi-suspect class” thereby deserving intermediate scrutiny with the aim of establishing equal protection. Personally, I agree with the suggestion that morbidly obese persons should be considered as a “quasi-suspect class” thus deserving intermediate scrutiny so as to establish equal protection. This is mainly due to the fact that morbidly obese people fit the criteria that a class requires so as to be incorporated into quasi suspect class. For instance, according to the evolutionary analysis obese people are subject to loath and pity. Prejudice against discrete and insular minorities which tends to curtail the operation of those political processes ordinarily to be relied upon to protect minorities” U.S. v. Carolene Products Co. (1938). Evidently, this group of people falls under the minority and is constantly discriminated against by their thinner counterparts particularly in work places and other socio-economic institutions. In some instances, morbidly obese persons have been regarded as unequal members of society, they have been viewed as docile, lazy and unproductive. Consequently, morbidly obese persons are prejudiced when it comes to taking some responsibilities and positions within settings of society. The issue of equal protection within the state and federal constitution entails the homogeneous treatment of individuals as per the governmental action. Basically, the government can enact laws that tend to protect individual who have been marginalized or prejudiced by society. In order to come up with such enactments courts normally come up with an analysis that is founded on classifications of particular groups of people. These classes include, suspect class, quasi-suspect in addition to non suspect class. Individuals falling under suspect or quasi suspect class are at likely to get more constitutional protection and hence the state ought to have a more compelling purpose for the limitation, and the courts will evaluate the laws under higher scrutiny. The United States Supreme Court has outlined three such classifications which include the race, alienage and the origin of an individual nationally (Lundmark, 2008). Morbidly obese people can be classed under the quasi suspect class. According to the law, everyone has the right of being treated equally irregardless of their disabilities or the way they look. It is worth noting that the United States constitution provides that morbidly obese people have equal rights and privileges and can therefore be offered the same obligation as well as the same responsibilities. The court should hold that under certain circumstances, equal protection needs to be rendered to the morbidly obese people since they fall under the vulnerable groups of people. The case of morbidly obese people compared to cases of same sex marriage whereby the courts have ruled the gays and lesbians as belonging to the quasi suspect class since they face constant discrimination within the society and belong to a minority group since many people opt for opposite sex marriage and view the gays as lacking and hence discriminate them. Similarly, morbidly obese people face such discriminations and they are a minority group. Therefore, they should be recognized as a "quasi-suspect class". In determining if the morbidly obese people can be classified as quasi suspect class and thus require stricter protection, it is worth noting that morbidly obese people have been subjected to and stigmatized by a long history of persistent and impossible discrimination. The feature that describes the members belonging to this group- morbidly obese- has no rational relationship to their capacity to perform within society, either in family relations or else as productive citizens. Given the fact that body orientation is such a fundamental constituent of personhood, even if there is some possibility that an individual’s body preference can be changed, it would be totally objectionable for the state to call for anyone to do so. Therefore, morbidly obese persons should be considered as a “quasi-suspect class” thus deserving intermediate scrutiny so as to establish equal protection (Lundmark, 2008). Question 5 Statutory construction generally involves the process of creating, interpreting and applying legislations that can be termed as vague or ambiguous. Methods of statutory construction determine how statues are interpreted through the use of the normal meaning of the language. Basically, the law should be read word for word and is not supposed to avert from its true meaning. In order, to avoid doubt, legislatures take into account the "definitions" sections found in a statute, which clearly define the most vital terms that are used within a particular statute. Nevertheless, some statutes fail to define a particular terms or leave out the definition of some sections. There are several methods of statutory construction that are widely used. Key among these methods includes the plain meaning rule and the elementary rule among many others (Founding Fathers & Applewood Books, 1998) The plain meaning rule method of statutory of construction attempts to direct the courts particularly during litigations that turns on the meaning of a term not defined by the statute, or on that of a word found in a definition itself. This method conveys that the meaning of a statue should be within the language that the statue is framed. In this case the single role of the court is to implement its ruling according to the stipulated terms. In instances whereby the language of a statute is clear and plain, the Court does not require further interpretation. From the plain meaning rule, missing a converse definition in the statute, words ought to be given their plain, normal and literal meaning. If the words are understandable, they should be applied, even if the intent of the legislator could have been different or the result is objectionable. The literal rule in this method is essentially what the law says instead of the meaning of the law (Hall, 2004). The elementary rule of statutory construction conveys that each part of a statute should have some effect, and therefore a statue should not be regarded as meaningless unless it is utterly crucial. The elementary rule of statutory construction accentuates on the fact that in assessing statutory language, except if words have gained an uncharacteristic meaning, by high merit of statutory definition or judicial construction, they are to be interpreted according to their common usage (Lundmark, 2008).The court does not ask what the legislation might be intended to say, just what it actually says. The main question is; what is the literal and ordinary meaning of the words used? The elementary rule of statutory construction is commonly preferred and widely used due to the fact that it prevents the court from inclining towards political and legislative issues. Furthermore, this method is preferred since lawyers and most people do not have a wide access to secondary sources that could aid in statutory construction. This method particularly favored in probate law due to the fact that inmost cases the testator is absent and can therefore not identify the suitable interpretation. Consequently, there are claims that extrinsic evidence should not be necessitated in such a way that it contrasts with the meaning or the words of the testator. Nevertheless, this method can aid in ascertaining the validity of a particular interpretation. Moreover, the elementary rule of statutory construction is preferred and widely used since most judges prefer to stick on the literal words as stipulated in the law (Segal & Benesh, 2005). Evidently, it would be necessary for congress and legislature to pass a law that requires the application of a particular method of statutory construction. The key responsibility of judges lies in ensuring integrity particularly in constitutional processes by ensuring that the set guidelines are followed to the latter(Lundmark, 2008).Moreover, judges have the task of holding themselves and officials in the public judicial domain to the set standards. This can be actualized if the courts make use and follow one particular method of statutory construction in all their case. One method of statutory construction should be implemented regardless of the terms of the constitution, the interpretation of the statue or the preferences of an individual. The use of a uniformed method of statutory construction is bound to eliminate biasness and uphold certainty in the interpretation of the law. An imperative feature in the rule of law revolves around stability rather than a change in the methods and an overturn in the set standards of practice. An adherence to a particular method of statutory construction is likely to ensure the execution of justice compared to the use of various methods in statutory construction. Justice is bound to prevail when an appropriate method of statutory construction is uniformly and consistently observed (Segal & Benesh, 2005). References Farnsworth, E. (2003). An introduction to the legal system of the United States. California: Oceana Publications. Founding Fathers & Applewood Books. (1998). The Constitution of the United States of America. New York: Applewood Books. Hall, T. (2004).The U.S. Legal System: Acquittal – jurisdiction. Volume 1. New York: Salem Press. Lowell, M. (2004). The law schools of the United States: a statistical and analytical report based on 136 completed questionnaires and on inspections of 160 law schools. New York: Lord Baltimore Press. Lundmark, T. (2008).Power & Rights in US Constitutional Law. UK: Oxford University Press. Segal, J & Benesh, S. (2005). The Supreme Court in the American legal system. New York: Cambridge University Press. Sutherland, G. (2008). Statutes and Statutory Construction, Volume 2. New York: BiblioBazaar Press. . 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? . References Irons, P. (1999). A People's History of the Supreme Court. New York: Penguin Publishers. Read More