Class 20: Due Process Clause II: “Personal” Liberty in the Progressive Era
3:29PM Oct 28, 2020
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in your notes.
My beloved Comcast. A people are doing work my neighbor today, and my connection drop before so if my connection drops. It's because I am on my hotspot, so I apologize in advance. Um, it gets even cooler, you can actually jump to cific point and play the audio from that point for whatever you're looking at. So it's really, really, really cool. I'm pretty sure I'm the first person in building to use this I've been looking into this now for some time I finally got it working yesterday, I did it myself I paid it myself, so no one else will has this yet but I'm going to recommend this. The upshot of this is, you don't need to sit there taking verbatim notes which is never a good thing to do. I think people are wasting their time when they type everything verbatim right just it's not a good use of your resources. Um, but what this will allow you to do is pay attention more closely. And you can always supplement your notes later. Um. Now, I don't know how to do this, but I'm going to try. I'm not making a promise but I'm going to try to somehow. Do this for your first 19 classes. I don't know how I think I can figure out how to do it, but I'm going to try to transcribe the other ones. So, in theory, at least in theory, at least, you'll be able to have your entire semester transcribed. I can't promise I think I can do it. But I'm going to try and that's as best I can do. If you want to see what this looks like. Let me copy the link for my property chat, they just finished this is for my property Class A minute ago. And what you actually have is the entire class transcribe with different speakers so you can tell when I'm speaking versus when a student speaking. And you can jump to a specific point in time to play that. Yeah, I know I know I know I this, this is not gonna be popped with everyone. No, I'm gonna make my colleagues mad at me. This is usually do. But I'm very excited about this because I don't want you sitting here typing everything verbatim. Alright. So, The, you can access the. I figured the best way of doing this I'm not quite sure yet, but you can access this one by clicking the otter live notes link and I'll bring it up right away. And also what I'll do is I'll put it in the in the class chat for today. That way you can easily find it. I'm still tinkering with this I don't I don't quite know the best way of doing this but it's pretty, pretty game changing for notes. I know some professors have a thing where they let one student transcribe the entire class as like a says like a transcriber. Well this is the computer's doing it for you so it's all transcribed and so it's not perfect someone said court reporters we put out a business. Not quite. A, it's like maybe 90% accurate which is, I think, pretty good, but it's not not 100% so. Alright, let's get started. Whoops, who says that mean we turn on the live stream. Yes, that is you. Oh you're hearing me for my other class I see what's happening. All right. Well, I was playing myself this was a little trippy. Okay. All right. Um, alright so any questions not about the, the transcript about the actual class. No. All right, the attendance should be running, and hopefully you have that. And let's begin by recapping from our last class. We've introduced this new topic about the due process clause right we previously studied the privileges or immunities clause and slaughterhouse. And we previously studied the protection clause in cases like Plessy, and the iquote. But our next topic is on the due process clause, and this is a topic that was been a lot of time on, I mean just just weeks, the rest of the semester, basically.
And I want to do a few questions to begin. And the first is I want to distinguish between two different kinds of due process cases one which will study at great length and one, I'll probably never mentioned again. But I want you to at least understand it. Let's start with a with a short answer question. I want you all to do your best define in a sentence substantive due process. This is not easy. Professors could spend an entire book on this question they want to see if you can drill it down to a single rule statement just just one sentence see how you guys fair.
Say you do.
This one's a little harder I know.
By the way, with the, with the American Disabilities Act, not to be too harsh. I think schools actually required to have live captions i think i think we're just completely out of compliance with the law I don't need because even a close call for students with disabilities, this is actually I think required by law.
Some schools. I know will not let you have an online class Let's read the caption. And historically This was so expensive it couldn't be done, but now you know it's done automatically on the fly. It's a perfect. I think it's you know it's it's pretty pretty pretty good. I'll email the dean later just to flag this. I'm going to try to transcribe the rest of the semester I can't promise it because it's I don't feel work but I'm gonna at least I'll make an effort to research it doesn't doesn't look easy but I think I can upload all the old YouTube videos which might take a while because he took four gigs Easter huge and Comcast will kill me but I'll try. Okay. All right. Who's next in the list, who's a first. That should be me Professor This is Sam speaking too much. All right. So Sam, let's just, let's let's start just with with very basics right.
what do I mean when I say substantive This is a question, someone asked me last class no that was a good question. I want to make sure I just make sure you understand is what the substantive mean in this context forget to process just substantive. I believe you were mentioning that it's the content, the content the procedure. The content of what. So, the right that's being protected, that it's trying to explain that, like you're saying it's a little difficult to split from procedure and in substance but it's a person person's personal rights that are so protected under the Bill of Rights. Okay, okay that's good to appreciate let's, let's just pause here I'll go to. Who's next I'll go to unit whoever's next that's looking at my roster. It's a student list to it in a minute. But that's good thanks Samuel. So when we talk about the due process clause. Right. We talked about the due process clause. We're talking about two different concepts. Right, and look at the text of the due process clause right it says,
nor shall any person.
Sorry, nor shall any state
deprive any person of life, liberty or process without due process of law. Right. When we think of the word substantive due process what we're really thinking about is what does this word Liberty mean right what is the meaning of word liberty. What is the content of the word Liberty that's what rights fall in that word. What is the substance of liberty What does Liberty include the right of contract.
The right to direct the upbringing of your children.
The right to send your kids to school.
The right to marry.
The right to access an abortion. The right to access contraception, the right to engage in sexual relations. Right What are, what is the substance of the word liberty. That is the question of substantive due process fight to sort of distill it down to a single sentence right substantive due process asking you know what is the substance or the meaning of this guarantee of liberty. And once you know what that liberty is, then the courts can assess if the state converting that liberty. Right, just because you have a right, doesn't mean it's absolute right, this is a thing that students have difficulty getting just because for some Liberty interest doesn't mean it's hundred percent in all cases prevails. In some cases, a state may have a strong enough interest to burden it. Maybe yes, maybe no what the courts do in substantive due process cases is they asked first, is there some sort of liberty interest at stake. Is there some Liberty interest that's protected. And second, does the state have a good enough reason to violate it. If the state has a really good reason, they can do it. If the state doesn't that I can think of Korematsu as an example it's not a perfect example but it's an example there the government was locking people up in camps. Actually they were excluding people to be precise. In Korematsu. And the courts had never good enough reason to exclude people, even though they're the rights are being deprived. Okay, that's, that's substantive due process. The second branch which I won't even return to is procedural due process, which has kind of a redundant procedural due process asks, what are the various processes given before right can be taken away. So let's say you have,
you know, some license from the government.
I don't see as an example you're familiar with a law license right let's say you're barred by the state of Texas with a law license. And let's say the state wants to deprive you of that license they want to take away your law license. Hopefully it never happens to any of you but it happens every year. In order for the state to deprive you of your law license they need to give you certain processes for example,
they give you a notice, right.
Why are we taking your license that the if you're an opportunity to be heard, right it's a public hearing that can't be done in secret, they can't you know quietly take away your license. That's some kind of appeal that if you don't like the initial ruling you can appeal it right there are different facets of due process that apply to any sort of case where the government's taking away your property rights. I don't have time to teach you about procedural due process, entire air the law will be focused on the substantive component but just know that these two elements exist. Does that clear up, maybe a little bit. The different standards for different kinds of due process. Yeah.
Any questions on this.
Okay. Let's review of lockner, which is the case we did last week or last class. Question number two, which opinion in Lochner
placed the burden of proof.
On the government.
This one's for Stuart in about 10 seconds.
All right, Stuart here. Yeah, I'm here. Alright Stuart. What is your answer my friend. I'm gonna say justice Peckham okay why DC justice Peckham kind of process elimination justice Harlan was saying that that's actually fair it's if it's a fair thing to process elimination, explain explain your reasoning. Well, just as Harlan he was saying that people who bring forth arguments that something's unconstitutional bear the burden of proof for that analogy Stuart let's take a step back. What do I mean by burden of proof what is a burden of proof, what does that phrase mean it's a, I can't use it but what does that mean you get to show you know beyond a reasonable doubt that something.
I hate when I get this question.
You thought to show that something was beyond a reasonable doubt that. For example, so it's unconstitutional, to show beyond reasonable doubt it's unconstitutional. He's saying, beyond a reasonable doubt. We're getting the standard from beyond a reasonable doubt.
Versus standard. Have you heard that before
trial cases, kind of trial cases, you know,
criminal cases is the standard in a civil case proof beyond a reasonable doubt.
I guess it could be, depending on the case.
There's not enough quiet Tori here.
Hey, I'm here. Tori wherever you want to hear this phrase proof beyond a reasonable doubt before.
Yeah, it's in criminal trials.
Is that is that the standard for civil trials also
know for civil trials it's preponderance of the evidence. Yeah
preponderance of the evidence but Tory more basic standard What does burden of proof mean just just more and more generally.
burden of proof is you are the one that has to bring forth the evidence to prove your case I understand that's like on both sides so that's pretty general but, um,
right so. So in a criminal case, who has a burden of proof at all at all at all points.
does the defendant have any burden at all.
Not no not necessarily
have a defendant walk into court and say, Your Honor, I have no case, I rest can I do that. Uh huh. Is it fair enough to testify on his own behalf or put any witnesses and others on behalf. Nope. Okay. You're right, in a criminal case, the defendant can just sit there and say nothing and that's perfectly fine It's all in the government, they have the burden of proof to show beyond a reasonable doubt that the defendant convicted the crime. So Tory in a civil case, who has a burden of proof.
The party, bringing the case, the plaintiff.
And does the defendant have any burden of proof in the, in a civil case. No, not the burden belongs to the plaintiff. And you said you said the standard what's the standard call for civil jury trials usually
components of the evidence.
Exactly. Thanks so much Tori Yeah, I don't want to give a number because it's wrong, the preponderance is more than 50% that's to show you set like 51% it's not a perfect standard but it's more than that, beyond a reasonable doubt. You know, I won't say 99% because I'm not supposed to say that but it's very high right you have to be very very damn sure that the defendant committed the crime right, it's a much harder burden of proof. But you don't think about burdens of proof and constitutional law, but they're really important in constitutional law. Generally, whoever has the burden of proof is going to lose. If you're the government and you have the burden to defend your law, you're probably gonna lose. If you are the plaintiff and you have the burden of proof. you're probably going to lose. The most important thing the most but one of the most important questions in constitutional law is who gets the burden. How does the court allocate the burden. In some cases the challenger the plaintiff has the burden of proof. And in some cases the defendant. The government has a burden of proof. Now, how do you decide who has a burden of proof. The Constitution silence the system
class has it just me or did he freeze.
I think he froze it See,
face that he's making right now. I know
it's a take a picture and save it for later but.
Dude, where's my live streamed on YouTube anyways
yeah that's what makes it.
I'm on my hotspot now.
Any feel to hear. Can you hear me now. You're good. Okay. All right, I apologize. I told you, Comcast is outside doing their thing. So, all right, is it closed captioning still running, but like before. Okay, good. Thank you. Um. Now the good thing about the transcript is I can see exactly where I left off. Good. The three opinions in the Lochner case illustrate three different ways of allocating the burden of proof. And these are very important. Again Lochner is not law, but yes understand each of the three different approaches. Okay.
I apologize for the Comcast truck plot this morning and it's just like the symbol just dread. Another way doing craps my internet. The three opinions in Lochner illustrate the three approaches to judging. The first approach. They want to talk about is justice Peckham has majority opinion. Okay. The Justice pack the majority opinion, puts the burden of proof on the government, and works like this. The government is burdening the rights of Joseph Lochner. It's not Joseph lochness job to attack the law.
It's New York job to defend the law.
Why does this burden matter because New York must put forward evidence to show that their law is reasonable. Right. Is it is it the law makes sense. It's very hard to defend most laws because most laws are not very logical, they're they're passed because of Coalition's and politics and things that aren't always reducible to a court proceeding. Okay. So the court proceedings, very much favor Joseph Lochner under the Peck the majority approach, precisely because it's hard to show
why you have a law.
The Harlan dissent the second approach is very different.
Justice Harlan will put the burden
on the plaintiff, which follows the usual model civil litigation. Right. If you're the plaintiff. It's your burden to show the laws void.
That's the plaintiffs burden.
Therefore the plaintiff must put forward evidence to show
that the laws irrational.
If the plaintiff can show to rational then the government has to, you know, put forward some evidence to show why it's okay but the burden belongs to the plaintiff and then the defendant, the government can basically rebut it, they can say no no no here's why we have this law. The third approach by Justice, Oliver Wendell Holmes, just hearing about luxurious homes this week. This is like the anti Holmes week I think in class. Justice Holmes says, This is ridiculous. The mere fact that the law is passed to the legislative process means it's reasonable. We don't need to assess evidence we don't need to assess any sorts of balancing right when we're dealing with the due process clause, let's assume the laws are constitutional. It's really there is no burden. Right. The government has no burden they can just walk into court say, Your Honor. We passed this law.
We think it's rational.
You know we don't really have a reason for it we think it's a good law. Give reason if you like we can make one up, that's fine. We don't really have one. Okay. We rest. Imagine that you go to court so Your Honor, may please the Court we rest. And you still win the case. That's Beachwood Holden suggesting, even the government watch the court and says nothing. They'd say, you know, your honor. Thank you very much, we think our laws rational it can serve some purpose we don't really know what it is but probably one. That's good. litigating. On behalf of the government can be hard in justice tech world litigating on behalf of the government can be really easy in justice Holmes's world right if you're a government litigator you love Holmes, oh man, he's your boy right he's your guy, that, that, that's your key. If you're a plaintiff challenging and Economic Regulation you love justice Peckham that that's your. That's your home sweet home.
How you allocate the burden matters.
And in all the cases we study for the rest of the semester. We'll be talking about
who gets the burden and what that burden is.
I can actually see what you guys were saying when I was out of the class. This is actually fun. Yeah, no, I turned the YouTube livestream off, I can't stream it I'll upload the video later I apologize I'm recording it locally. Seriously, I saw the Comcast record, not now, not now. Okay, go ahead.
Um, so would you say that, Holmes really just cares about the procedure and not so much a substance.
Oh, absolutely say that.
In fact, you have a buck v bell in your reading for today. Any Holmes makes that point very very well in. In Buffy Belle. Holmes is not interested in this substantive approach that Friesen exists but he's not interested in saying what rights protected. His mind, the 14th amendment should not be read to protect all these newfound, you know, funny rights. Right, courts are not the business of second guessing the legislature. Holmes was at base, what you call a model judicial restraint, trying to use that phrase it's a loaded phrase but that that was his approach. Holmes once wrote a famous letter to a colleague and he wrote something like, if my fellow citizens want to go to hell, I will help them get there. I'm paraphrasing if my fellow citizens want to go to hell. I will help them get there. His goal was to help the legislative process go where it was, go where it wants to go. He didn't want to stop them, and later in his career he had sort of different views on free speech that became very famous but this time in his career in the early 1900s Holmes was let's just do whatever the government says this is not for us to intervene. As long as you're following the process of giving a jury trial they're giving you no proceeding, you're locked in hadn't had a judge, you know, everything was fine. We're good guys answer your question.
Yes, thank you.
Yeah Tory Go ahead.
Just real quick I have in my notes that the Holmes does say it like that view of the burden of proof and whatnot, is the current lens that a lot of supreme court justices use these days is that correct,
We'll go into this more next week. But the Holmes opinion is the test for certain economic cases, other rights or not, for example, abortion and intimate relations are not reviewed by the just home standard, but in cases in due process cases involving property rights and contract rights today. Homes is the word. They don't cite homes but its Homes is another case that cites homes they cite that case but it's basically homes. I mean he he's influential I you know most justices in the early 1900s are pretty insignificant, you know who the hell knows who justice Rufus Peckham is right. Um, you know, Harlan is well known but the Holmes opinion still has juice.
Okay Mesa Go ahead.
So if we were going to talk about the home's opinion for like present day would you want us to cite homes in Lochner or would you want us to wait and cite the other case that we haven't gotten to yet.
A asked me asked me next week you'll see which case you're supposed to say, it's just your local, just a little premature we'll get there, I promise. Thank you. I don't want to go too far ahead to lose people. Someone asked if Justice Kagan, took the Holmes approach in the CFPB Casey law. I think we should just be careful here right when we're talking about homeless we're talking about the due process clause. Right, that's the second half of the semester. The first half of the semester on the structural cases different, but if your question is more broad, if we're talking about deferring to the democratic process and absolutely Holmes, and Kagan were on the same page. In fact, in Myers First United States, this was the postmaster case justice Holmes dissented. And he said if Congress wants to limit the presence removal power they should be allowed to do it. So even, even to this question Holmes did have also a narrow view of the separation of powers he said let's let Congress what it wants. If they want to constrain the presence, so be a good way to decide
questions a lot, they're
very important case again most law professors will teach you that locker is most evil thing in the world. I will teach you that I don't think it is. You can agree with the majority of the dissent I don't really care, but it's an important case to teach you the different ways of which courts approach to processing class cases.
All right, let's move on to today's material.
Um. Last class we were talking about economic cases, you know, how many hours can a baker work. How many hours can a woman work in a laundromat what wages can be paid to, you know, women workers, you know. Can people restrict the sale of property based on race, or these were all economic cases. Today the courts, draw a sharp distinction between due process case involving economic rights, and due process cases concerning personal rights. This was actually Macy's question for a minute ago, sort of hinting at it right. Today, economic liberty cases case involving economic and property rights are so governed by Justice.
Holmes his approach.
But due process cases based on so called Personal Liberty.
Don't follow the Holmes approach.
Due Process cases, concerning personal liberty approach close to the harlyn model or in some cases even the Pekka model, go back before, we'll discuss those two. Now, you may ask, what's the difference Josh between economic liberty and personal liberty well the Constitution says nothing It just says Liberty you don't know what the hell it is. But in the modern era economic rights considered not very important personal rights aren't considered important we have cases involving gay marriage in case of having an abortion case involving you know entire list of things and it can be accepted personal, right. During the early 20th century. There was no difference though. There was no difference between economic
and personal rights.
There was no difference.
The court approached you know the right that contract law, improves the right to check the upbringing of children and monitors
the quarter approach, you know the right to,
you know, sell your property. The same way they purchased, you know, the rights to, you know, send your kids to a private school for example, the courts did not draw a distinction between economic and personal liberty, you should, because it matters much more after the 1940s, it makes a huge difference. But at least in the earliest 20th century made no difference. And that's my transition to the three cases today. Myers against Nebraska axis Myers single, and Miami Nebraska. Pierce versus Society of the sisters, and perhaps one of the most infamous cases of the semester is Buffy Belle. I told you guys we have some rough cases this semester. You know they're, they don't get easier they get pretty good pretty bad. These cases are not involving economic rights a contract can be hours of work what your wages are right you're not negotiating over labor contracts. These were the state restricting
And in each case, I want you to keep a question in mind. What is the state's interest here, right. Why is the state restricting this right what what is their goal, what are they trying to achieve right why is the state doing this. And once you know why the state's doing it best. Second question. How are they doing it right. In other words, what means are selected to accomplish a certain ends right. What are the ends what is government trying to achieve. And what are the means selected to achieve that goal. Okay, first try the first case, go to question number three
is a short answer so I want you guys to think a little bit.
What is the state's interest to permit the teaching of certain foreign languages. This is the buyer. Right. What is the state's interests per the teaching of certain foreign languages. Okay. All right. Another 20 seconds. And I think a next thinker who says next admit 15 seconds. Okay. All right, let's not help us out here. What is the state's interest to prevent the Teaching of Foreign Languages over certain foreign law now that not all foreign language really certain foreign languages.
Can you hear me.
Yeah loud and clear. Thank you. I can hear you and I can see your words written on the screens, it's amazing.
Okay, so I was saying, um, basically the state was doing this to promote the public interest, like make children. Like, I know this sounds weird but like make them American at heart. So like they do. So basically it was so that they grow into the English language, it becomes a part of them, because they consider that if they learn a foreign language, those specific ones, like they would be more connected to their native land.
Okay, so let me ask you the follow up question. Why is C trying to make these children, more connected to America and less connected to their home country.
citizens. So they want. Like, I think, I believe it was saying that there's a lot of fear of like children like being connected to a foreign nations like
why why are they afraid of that What's so bad about that.
Oh, like, maybe it's a stretch but like, if there's war or like things like that like I'm thinking of like Korematsu and stuff like that like implications. Yeah,
yeah, yeah it's kind of ugly right. Yeah, yeah, yeah thank you thank you so I appreciate the answer. So let me give you guys some background right. This case might be Nebraska Rose was the 1924 demo for your 23 close, um, you know, what was going on in the world in 19 2013, while we just finished World War One. Right, a couple years earlier. Very what wasn't called World War One is called the Great War, but I know that because there's no World War Two. It was called the Great War The Great War had just finished. And you know the United States had engaged in this bloody bloody awful battle
in Germany and France on the continent.
And as often happens during war
hostility forums against the country are fighting. It happens. Anytime there's any conflict.
And we were fighting Germany,
and unsurprisingly, there was a lot of hostility towards Germans.
You know, this may sound shocking but
people did not want Americans speaking German because they thought they'd be spies right they thought they would have a loyalty to the homeland, I think who's to mention the Komatsu case think it's a very good analogy. The same sort of issue say the same but a similar type of hostility towards Germans existed, that existed later towards the Japanese people. So, this was a law designed to perhaps promote assimilation and prevent people having foreign ties, because they weren't banning all languages right, some languages were okay. You know, for example the so called ancient languages like Latin, Greek and Hebrew. Find. But what they call aliens speech, German, French, Spanish, Italian, etc. are prohibited and you know, to be frank, these were predominately immigrant tongues right that the, the entire community will speak these languages. Okay. So, the state's interest was to promote assimilation and promote you know a common tongue. The word tongue is a synonym for language it's like a weird word but nice language. Alright, now try the second question. That's the first one, what is the state's interest, the interest of promoting simulation. The second question is also very important. Right. How does the promotion of prohibition of teaching the foreign language, a public accomplish that state interest.
Okay, and this one is going to be for Benjamin in about 20 seconds.
Or maybe got Nick 30 seconds.
Okay. Anybody in here. Okay, Jeffrey.
Yeah, sorry, I know who you are.
We hung out this past weekend.
Let me ask you this question.
Languages accomplished the state's interest.
Well, short answer, I would say that it doesn't.
But they were okay.
The state's position is that they would be focusing more on learning the English language and being coming out better. American than you know assembly, America. It doesn't let's just focus the first thing that please. You said it doesn't why. Well, if you ban the Teaching of Foreign Languages does that mean they'll not learn these foreign tongues, how does the policy not accomplished states interest will because they're still able to learn other languages therefore they're not investing any necessarily they're not investing any more time in the learning of English, like they're not. Yeah, but there's no no nation state that speaks Latin right there's no like enemy nation that speaking Greek. There's no enemy that speak Hebrew. I don't really think that matters, though, if you're if your focus is not on one particular thing, whatever it is, it's drawing your focus away from it is irrelevant it's not being focused on what the one thing that they feel like you need to be improving on. Hmm. So you're saying, even on its own terms the government's not accomplishing what says it's going to accomplish this. And you know that because it's only been in some languages not others that they were really interested in running a simulation that all languages. So, using a better statute just bent all foreign languages that would be better. Would that be okay. I wouldn't say be okay but that would accomplish their goal. Okay, very good. that's good bedri Let's try next on the list is Lewis here. Yes. Yeah, it was in your mind does the prohibition actually accomplish a taste interest. Um, I don't think it accomplishes the state's interest. Okay, why not. Cuz I believe in the case it mentioned somewhere that, if these children were speaking the languages at home, just speaking English in class isn't going to help them assimilate because their home language, they're still being spoken to in German, Italian, so maybe, maybe the state should have mandated speak English at home only, they do that, well, that'd be better. Now, why not just put a man that you can't speak foreign language in the state anywhere if you have to wear a mask you know you have to you have to speak English everywhere. Well, what's wrong with that. I mean they don't have, they don't have the power to extend sure they did inspectors child inspectors every home. English. Why not, why not if the state has an interest from assimilation Why can't they i mean i think that's that's a pretty overarching interest if they're trying to control, you said, Look, if speaking a foreign language is so dangerous we fail to inspect it if if parents are abusing their children, why can't we send child inspection teams to the home school I'm just speaking.
If this is abuse we should stop it.
Well, so they're their big claim of assimilating is based on like public safety, because of, I guess, previous rewards. Yeah. So, we can't have good speaking truth. I don't know it talks about the means were prohibited so their, their way of going about it is not is not like constitutional they can't they can't go about it by just outline. All other languages, and I don't know, I, Chris Christie here.
Oh boy you hear.
Yeah, it's really good you are best so Chris Let me ask this. Okay. What, why can't the government, you know, try to accomplish its goal with a less than perfect solution. In other words, maybe maybe management's right maybe this is not a perfect solution, why is it going to be professional, can't they just address part of the problem and maybe do the rest of it later. Why can't they do this.
I think that would kind of own well.
You have to ask why government exists right like it's to offer solutions to essential problems that come with living in a collective, right, and so if there is a more optimal solution, then you could argue that they are obligated to follow that optimal solution. Now, why is the government obligated to make a perfect solution maybe they say okay well. This statue will regulate schools, and then tomorrow pass other statutes regulate homes right and then maybe next time we'll have a statute regulating Greek and Latin right. Why can't the state move in an incremental fashion to address part of the problem a little bit at a time why they have to have a statute that addresses every facet of the issue right away. Well that's really the problem that, again, you can't address increments but not at the expense of other or at a substantial expense right like if you were to limit the language of a particular household, you, I guess on its face, kind of put a bandaid on it but then you have at the expense. Children who aren't educated in multiple languages which which are proven to be an advantage in every situation. Now the status degree of CTS no advantage. Are you seeing the states wrong, that I get deference, are we required to listen to experts over the state.
Well, we aren't required to necessarily agree with the state right. And I think that there should be more deference placed upon experts in the subject rather than politicians, but the question here is the question here is the question posed in the state, the question question before, right, does this prohibition accomplish the state interest. And a lot of you Thanks Chris I'll move on, a lot of you're saying things like, well it's not good enough, right, if it was really trying to prove a simulation would do this and this and this, so it also banned greek latin and other saying, you know, it's too broad right the state should be able to do this, but how precise Do we have to be right. Why can't the state address the problem in a, you know, less than perfect way, you know not not perfect right it's not perfect, but why can't the state say you know what we think simulations are very important interest, and this is a reasonable way of accomplishing that goal.
Just Holmes seems to think that right.
Justice Holmes seems to think that
this is reasonable.
It's reasonable for the state to promote a common language, it's reasonable to prohibit teaching foreign languages as students are exposed to English and speak only English at school, right maybe the state can't control what happens at home. That's not for the states to decide, they can decide to tackle. Part of the problem.
And maybe address the rest of it later.
Home says this is not arbitrary.
He says this, this is an issue that people might disagree on it's reasonable. Why can't the state experiment home says. Right. Why can't the state conduct this experiment to decide that this might be what if it doesn't work they repeal the statute right This proves to be a disastrous policy they can repeal it. Right, Dina, why is foams wrong care. You're really wrong maybe Holmes's Right, right.
What what are the shortcomings in homes here.
I think our mute enough sorry, I don't hear you. It might be your ear pods going to take them out. This happens very often.
The switch your mic.
There is no.
Yep. Okay. Yeah, very often guys, your pods don't work for for for audit for speaking so just whenever I see little things to get people's ears I know what to do.
You know, his whole drive is home is wrong.
I do not think Holmes is right i think that the court was right when they said that the law violated the liberty of the teacher the student and his parents.
The white campus to try this experiment if, If a state has an interest in promoting assimilation and having a common tongue. Why can't they choose this method to accomplish it.
There's no reasonable relation to what they're trying to accomplish. I mean, they,
why not why to no reason why relation, I think they're His goal is to speak more English and the means is how to speak English at school. That seems a pretty tight fit for me. Pretty good connection,
speaking a foreign language is not so clearly harmful is to justify that deprivation of rights.
Yeah, but the state thought it was. Why can't we defer to that,
who we just say, right, we're not elected for a bunch of judges sitting in Washington DC maybe in Iowa the problems will different.
It's hard, isn't it, Harrison you hear
your your hours in the morning. Yes.
Who are we to say this is not reasonable. What's leaving me. Well, why can't, Iowa, try this out and see if it works or doesn't work repeal the statute. What, why should the court come in and stop it from this prosecution. But say that the rights of the individual Trump any objective of the state, even to even say that desirable, and cannot be promoted by prohibited means, and it's a violation of individual liberty.
How do we know that
the 14th amendment. I've read the 14th but many times, it just as the state shall deprive a person of life liberty or property without due process of law.
How do we know
have you know any of this.
Where does a court get this from. It's not like free speech where it says you have the right to free speech or free exercise of religion where there's some text, all we have here is where to liberty. How the heck are judges supposed to know how to decide whether laws reasonable not with the laws arbitrary and how are we supposed to know why can't we define, like, Look, I don't even want to hit on holes, but I'll defend him just for argument's sake. Why can't we simply say, we'll defer to the state they know better they have expertise we were just judges.
it in this opinion, it says that the court hasn't attended to define that and I mean I guess it's not written specifically in the find that, what's that to find the liberties guaranteed to the individual. Okay, so they have this list of liberties right that the majority comes up with. They do. What in the opinion in the majority opinion.
Right. Sorry you broke up for a second when you say,
Can you hear me.
You're frozen again professor.
I'm sorry Harrison, the question was, could you just give me those liberties are listed. Sure. It's without a doubt it denotes, not merely freedom from bodily restraint but also the right of the individual to contract to engage, any of the common occupations of life, to acquire useful knowledge, and that was kind of the one that stuck out to me but to marry establish a home bring up children to worship God according to the dictates of his own conscience, and generally do enjoy those privileges long recognized. Okay, thanks. All right, so, just as MC Reynolds worth majority comes up with this list of you know seven items herself. Um, I think Morgan uh you next Morgan. Here
I am, I'm here.
Morgan Where does he come up with this list from, where's where's he get this from.
We accept the word liberty. Where on earth to just pick Reynolds get this list from. How the hell does he know this. to lovely list of things I like is engaged in knowledge marry all these good things. How on earth does you know any of us.
Well some of it
comes from the Bill of Rights but also I think some of it comes from enumerated like unenumerated rights that are just so important to humans that you just can't mess with them, I guess I'm inexperienced
How did you know that, how do you know that how do you know any of this.
Just from our human experience in our book.
You can check I'm
sorry I can't hear you. What did you say
is your a book or some sort of statute I can check how am i is the judge supposed to know what this list of seven rights is where is this written down.
Well the due process clause.
You can't deprive person of life justice liberty.
So that was a substance.
it's hard, isn't it.
Yeah, I guess if you can kind of balance. If you take this Liberty that's being questioned and if, like what you're saying earlier, the state has a higher interest in it then like your own personal interest.
I don't know I. Oh I know a Christmas your hands up, is it you want to have a question.
Chris hands. Yeah. Yeah.
Could you possibly make a freedom of speech argument, like, Well, I'm not going to because at this time the free speech clause didn't get applied to the states. So, if you notice they're not relying the Bill of Rights, or so. So the 1920s. Yeah, yeah. I was just wondering, thank you.
Okay, who's next Jose here.
Was it weird is just a quick look at this list from this list of seven lovely writes, as opposed to the seven deadly sins I suppose what were the seven things from, um, I'd like to kind of agree with Morgan that their unenumerated rights, and I think that's just, that's what the court is still trying to figure out today well to add or take away with it. Why isn't just home dressing listen what how do we judge is supposed to know maybe the answer is there just are no rights that are enumerated that all if it's not written down we'll just move on with our lives and just look at it, but the people I would decide what to do, why, why should the courts get so aggressive or do with rights that are really I don't say made up but just you know they're they're not written down anywhere,
I think, to summarize what
was it justice Meyer said, it's kind of fundamental rights that wonder what this fundamental need that's a word that I love using but just fundamentally,
a lot of nautic. What he loves.
I love, I okay Jose put you on the spot enough. Look, I love this exercise, in this case because it's fairly consequential, and I don't mean that. But like, you know, it's so abstract for you to think about banning teaching of German, who cares but imagine the same question pose heading over rights fundamental with the case actually matters evolving you know abortion or gay marriage or sodomy or whatever else you want is contraception. Right. How is a judge supposed to know what rights are protected by the word liberty. And if they're not certain that the rights protected How can they tell this, the democratic process is that you're wrong. These are not easy questions, and the Supreme Court would spend. I don't last 70 years or so fighting over this question, with the Justice vigorously disagree if he thought the Scalia descendants were angry in the first half of semester. Just you wait. Just you wait. They're livid. They're incensed on this issue of substantive due process, real discussion. Let me try to summarize that a tortured by 15 people on the roll, I apologize. It's like a firing squad when right down the list. When you have these substantive due process cases, you should be asking yourself, two primary questions right. The first question is what is the government trying to achieve, right, what's their goal or what's their end. And the second question you ask yourself is what are the means or the methods they're using to get there right what are the means where the ends. You've heard the expression of the ends justify the means. That's what we're talking about here right, is what they're doing important enough to justify the law, right, is the interest in assimilation important enough to justify the banning of the teaching of the foreign languages. Here justice Holmes is nothing else consistent, he's following is locked their dissent and he says look this is insane right why are we.
Why are we
in the business of making up this right to education to direct the upbringing of your children's education. And second guessing if they wanted them to slip the ballot. And the majority says no, no, there are certain rights for fundamental, this is what Jose used a minute ago right there's certain fundamental rights to certain fundamental rights that are so important that they're the only tool written down right these are rights long recognize a common law. These rights are essential to the orderly pursuit of happiness by freemen. Oh beautiful prose right it's essential to the orderly pursuit on merit, it's essential to the orderly pursuit of happiness by freemen. All right. What does that mean I think Morgan was hinting at this a minute ago she I think she was she got pretty close. It's these sorts of rights that people could not exist without that if he didn't have these rights we couldn't function in society.
Where's he get these rights from.
He kind of looks at history and says well these are things that are really important. You know, for example, the right to marry the right to establish your home bring up children. Why is that right so important. Well, this is an obvious reason that may not be so obvious to you, if people can't marry and raise children and the species dies. Right. Imagine the state passed a law that made it a crime to produce meat eating it's insane but like China has limitations on who can reproduce, you have to be kids you know they not anymore but you know they basically make it a crime to multiple children in some cases. So it's not insane, insane. So Harlan says if you don't have these rights our society can't exist. You have some rights that resemble the Bill of Rights think some image that also the organs of that as well. The right to worship God right well that sounds like free exercise of religion. I think Chris mentioned free speech. That sounds good. But the time the First Amendment didn't really restrict the state power. So this is all in the 14th amendment. Then you have the more kind of odd outlines you have the right to pursue a contract or the right to engage in a common occupation that's to negotiate your labor contracts, is that as important as marriage for worshiping God. Some may say yes, some may say no. But this list of seven rights is, you know, made up right i mean it's a good list. It's very pretty sounds nice but where do we get this from.
So here, the Court recognized you have these two rights and says, The means that the government chose here were prohibited.
There's nothing really harmful about speaking foreign languages. Therefore the law says, sir. The court says in laws arbitrary right there's no relationship between promoting assimilation and banning the teaching languages. I don't know if that's correct. I think if you ban teaching foreign languages you do help assimilation. But I think what the court saying is he needs to do better. So you know, maybe instead of banning the teaching of German you require the teaching of English, I think, Moses mentioned this in the notes a few minutes ago. What if you have a test on English proficiency right and everyone's required to pass English proficiency test to graduate, you know, there are different things you could probably do to ensure proficiency in English, short of banning of teaching of German. Indeed, in this case the German was actually it was a Bible story was a Lutheran Bible story. So it wasn't even like there's like a second language.
But the majority here was
what was really acting in the model of Lochner, the lock the majority. And they said the state has to demonstrate why, why, why they're doing this right Why do you have this law in the first place. And this they fail to meet that burden, they couldn't show that this was a legitimate law. The reason is always very light, it's very fluffy, like we think it's unreasonable it's arbitrary right What does arbitrary mean. Hmm. Right, easy to kind of get a little creative. Holmes, if nothing else is always consistent it's like, no, this is not for us to decide let the government decide.
Okay, questions on Myers against Nebraska.
Getting Myers Meyer singular I'm sorry, this is.
Any question on Myers, timothe it again Meyer.
The reason why is you have United States gets Myers, which is the Myers against United States which was the postmaster case with removal power. That's why I keep confusing it. Alright, let's try the next question number five. Let's try the same game again.
Sure short answer.
This is for Pierce, What is the state's interest permit private schools.
And I think, next up is, I think, Moses you're up next,
or 10 seconds.
All righty. All right, Moses let's try this out, what is the state's interest here with the banning of the private schools. Okay, well my by my, my clicker problems right now so you're live, yet the eighth floor. No. Excellent. Oh, yeah, know we need a uniform standard way of making sure that all of our kids are educated in society we don't want nobody to have any differences we want. We want to make sure that it's, it's perfect and the only way that is perfect, is if we send everybody to public school. Okay good and. Go ahead. I'm sorry I didn't mean. Alright, now let me ask the follow up question then. Right. The state's interest is having. Let me just, let me just tweak your answer a little bit right. My question is what is the state's interest. And I think you gave me actually both both the interest in the means I just wanted to separate them out right. So you said the interest was to ensure that you have students who have a certain base of knowledge, right, that was the end. And what was the means to get there, how are they going to accomplish that. Everybody has to go to public school at this point. Okay, this way to stay in regular public school. Right. Okay, good. Right, so I just want everyone to see. What I just did there and I think it's important. Um, students often merge the means the ends, right, they sort of combined them. And Moses did I think he did, you know, he gave me a very good answer but I want you to separate them. Right. And the reason why is you can't look at unconstitutional laws of searches did this sort of glob everything comes together in your head trying to separate. What is the government trying to achieve. And what are the means using to get there so in this case in Pierce it's the trying to create a, you know, a, an educated body roll the students have the same amount of knowledge. Right, that's their goal, but their means, is by shutting down, or actually by shut it down but the BBC make it a crime to send your kid to a public, private school whether religious or secular even matter.
Um, Eric I think you're here.
Erica let me ask you this question please. What other method. Could the government have selected to accomplish the same goal.
Um, the first thing my mind came to was like a homeschool kind of in setting like I'm a uniform, education, with homeschooling if that was an option.
Eric Let me ask a question differently. How else could the state ensure that students get education. Outside of being a public school what could perhaps a state to.
requiring. I mean, instead of going to homes or instead of going to public school. I'm providing.
I mean we do the standardized testing.
Yes. Did you go to a private school proper, you don't go to private school. No. Okay. Do you but you know that people private schools have to pass certain tests right.
I guess so. I mean the whole state right
yeah okay that's a fair question I'm sorry that's fine I think Erica. Okay so, maybe. Right. Maybe instead of banning all public, private schools the state just says fine. If you go to a private school you have to turn if the teacher topics. You have to meet certain standards, you have to pass certain certification tests. Right.
Um, you have to do certain things.
flamey is that okay is your hands up. Um,
yes that's okay. My question was, was the state's purpose, to make sure kids who are maybe being kept at home to help work had the opportunity to go to school or was their purpose that we want everyone to go to public school we don't want the private schools.
I think it's the latter,
because you got compulsory education less republican private say you're required to send your kids to school, whether it's public or private, Kevin. What do you think, well I mean on that like within. I mean, it didn't show the exact language of the statute but the way I read it was that they were requiring all kids to go to public school, which implicitly means they can go to private school, then the statute itself didn't say kids can't go to private school so I think their main intention, were that kids were being educated, more ditching out on school before eighth grade. I think that's right yeah thank you again. So, let me let me just go back to my question before. When we're talking about constitutional law we have to look at both the means and the ends. Right, the means to the ends and the means that they're using here. The means that they're using here are very extreme. They're far more narrowly tailored methods they could use.
In this case, to avoid
shutting down the schools they could enact compulsory education laws which says you have to go to some school and the school but some school they could enact regulations that the private school must cover certain topics they have to maybe put standardized testing to, you know, ensure the kids and private schools are getting a good education. But they went to, like, you know, they went all the way to the extremes there's no screw it to crime to send your kid to public school. Now, that was Moses, Erica Jeffrey here. Yeah. Now Jeffrey. This is kind of referenced in the reading but at the time in the 1920s. What was the most popular type of private school just, you know, just Yes, Catholic.
Yeah Catholic schools.
Why might the state of Oregon have decided to make it a crime to send your kid to Catholic school. Just throw that out there, probably not a big fan of some religion. No no no no, you're actually understanding it. Thanks Jeffrey, there was a very strong anti Catholic bias, during this time period. You know, it's hard to actually convey how strong this bias is because the Catholics, I mean, you know, I'm Jewish What do I know but but for the most part Catholics have been accepted to almost every facet of society right the. There are now six Catholics five who were practicing the Supreme Court, right there, their base your six. Well, of course it is unclear exactly what he has but he's kind of Catholic ish. He has his, his faith is a little bit unclear, but there's at least a majority of the court that are Catholic right. For the longest time it was one Catholic school the Catholic seed, just as Butler had it. You know there was one Catholic court. When President Kennedy was elected president. It was a huge deal of a Catholic press and people but he be loyal to the pope they were, you know, it was very strong fears of the of the Catholics in this period, you know, it just doesn't exist say the same we did them but I want you to have that history. Those anti Catholic bias. This was a way to shut down Catholic schools. They don't have to name them they knew by shutting down private schools. They would shut down Catholic schools. Again, this was not based on free exercise of religion, because it didn't exist to the First Amendment, this was not part of the state's restrictions.
But here, the court says that shutting down all Catholic schools is not reasonable. Right. It's the same analysis as an, as in Meyer, that this law unreasonably interfered with the liberty of parents and guardians to direct the upbringing of children's education.
So So Pearson Meier is a kind of like a sequels to each other they follow very similar reasoning, and they held that the state can't interfere with the upbringing of children in this fashion it's unreasonable that the maybe the state can regulate the schools but they can't shut them down. All right. I want to make sure I have time for buck. Any questions on
Pierce. All right.
Let's try the next question this one usually gives it a little bit of a discussion point four. Number. Number six, multiple choice. Great for this one. Number six, which is a greater deprivation of liberty without due process of law, a
compulsory sterilization for imbeciles
be life turn, commitment, that's imprisonment in sex segregated prisons. And I just to make clear in both options you can't reproduce. You can't reproduce if you're sterilized. And you can't reproduce if you're in a sex segregated prison. Don't tell justice Gorsuch but but at least let's don't don't fight the hypo.
That was me and B and Gorsuch today. Sorry.
And there's no right answer to this question this is this is an opinion question and
I framed this question differently over the years I get different results I always try and tweak a little bit. This one I think is a better framing.
Okay. Mr. Kevin I think you're up next. Okay, what's your answer here sir. So I kind of followed the, I kind of followed the logic of the case as well though but I did, I did put the, and I mean it's one of those it's kind of one of those picking from the most horrible hands so that's kind of the kind of the idea, I went with is if either way this is going to happen to you. In one way, you're also being imprisoned. Um, so in other words if you can't, if you can't reproduce. You're better off on the street and locked up in a facility. Yes. And again, they're both bad. I mean, you know, that's one of those options see would be my preference. There's no see. scenery here.
Kevin here. I said earlier, okay, what's your answer here sir. I said, I can't remember which one or they were in but, but it was more wrong to sterilize imbeciles. So you think it's worse to sterilize a person that procedure that takes you know maybe a few a few days to heal from then to lock them up for life. Yeah, I mean we still lock people up for life. I mean, but I'd say there's probably an argument that you can sterilize people like on our own standards to this day. So, but but but again in both cases, you can't reproduce because you're not around people of the opposite sex until justice Gorsuch right. But it's a matter of like the state taking your ability to reproduce versus the state limiting I guess your ability to reproduce you just can't reproduce because you're in jail or you're confined versus Kevin Let me ask you a follow up, let's say there's a person who's convicted of sex offense right. Mm hmm. And they're given an option to spend 30 years in prison, or be castrated by castrations removed their sexual organs that That's right, yeah. For for guy for example right is convicted rapist. Make a child rapist right is good convict given a choice you can go to jail for 30 years, or given an option of castration. And it's taking that option. You can just give them that option. Yeah, sure, which option, and you think the sex offender was a you know what, after 30 years in prison versus gang a castration you think you would prefer that option. I think that would greatly vary because I'm sure there are people that are charged for sexual assault that do try to chemically castrate some castrate them so not cut off I'm talking old school that there are people that have done that too. Yeah. Let's see me one more vacation, what's your answer here. Oh, I chose the life term commitment. But my issue with the answer choices commitment because I feel like it's more of a choice on a person's end. I don't know if that's just the word, no when you're committed it's a voluntary I'm sorry it's just, just a clue. Okay, I know that I'm the involuntary. Okay. Then I still do think it's, I think. My opinion is be well alright well just the results here are 60% thought that the sterilization is the greater burden. And the 40% thought the lifetime commitment you should spend 5050 so I guess it's the list, a little bit skewed. Maybe we're on zoom too much I don't know where the lifetime commitment doesn't seem so bad we're on zoom all day. You know, I feel like it's in Terminal prison of of grids Tory you want to want to jump in.
Well, just a quick question. Are we not supposed to be considering because I'm in my head I'm thinking well you're, you're locked up it's not just your right to reproduce that's at Jeopardy there you're losing a slew of rights at that point, I'd be like, snip it out. Give me my freedom.
So you would take you take the compulsory sterilization over the lifetime commitment.
Yeah, for sure.
I have a close call of your mind.
I could adopt kittens that's fine.
It's not kittens.
You get me canceled all right thank you Tori
anyone else I it's sort of a personal question but I think it does get to the heart of this case, the buck case.
I don't have any kids yeah Harrison.
Is it not in life term commitment, it like have you not gone through due process of law, you are given a trial just like the Carrie Buck was given a trial.
I don't know, I got
it. I don't see anything about due process of law in a, so that's why I picked a no there's a hearing the trial, you got to hear it, get a trial judge said yes you were an imbecile. That was the hearing imbeciles kind of an arbitrary standard isn't to say what's arbitrary Why can't the state decide wouldn't imbeciles Why can't the state decide what the right language is learned is how they run schools you see where this goes right. Who are we to say that bakers have a dangerous profession. You see, it's a same question right, who gets to decide who gets to decide what the proper interest is the state, or the individual lanius very hands up.
And just thinking if somebody had a trial and is sentenced to prison, they've done something where Carrie was just born this way she didn't do anything.
The other state thought she was a harm she pose a danger to others her reproductive organs were a threat to the security of the state.
Yeah I read the notes a better step down to, I'm, I'm on Carrie's side.
I was someone who chose a, and I chose a because for me thinking about kind of violation of someone's person, you know to do to a medical procedure to me is that extra step. That to me feels more like a deprivation of liberty than simply,
you know, being being incarcerated. All right.
All right, thank you all, I appreciate the comments and by the way I have to confess. This an error in the book Laney mentioned the stepfather was actually a cousin who raped her I made the error in the book and I just did. The stepfather was was a was an asshole also, but it was actually the stepfather is like nephew or something that committed the rape so I screwed up an iPod I fix in 100 cases book but it. The textbook was published earlier so I apologize but thank you for wanting me to make that correction. This is a hard case to teach. I don't want to make light of it. There's a book published a couple years old called imbeciles think there was Cohen. It's a hard book to read it's not an easy book to read. The reason why this book, or this case thing is so difficult to teach is because it's so short. right and Holmes writes with such ruthless precision. You know he approaches this case, as if it was like you know, removing a hangnail, right, you know, just, you know, it's the procedure additions like yeah you know you had a, you know, hangnail removed right when we're talking about a woman's reproductive organs in the, you know, in the, in our young age. So let me discuss case a little bit of if we need to spill over to the next class we can do that one. But Virginia enacted a couple laws in 1924 that are important, one will study now one more study later. The first was the racial integrity act that ban interracial marriage will do the loving case loving rich Virginia and I think next week or so. The court would declare that law unconstitutional the 19 think 68 or 69 and blanking on the year. But that same year the court inactive the Sterilization Act, which said the so called imbeciles could be sterilized. These two laws were basically part of the same package the idea that the human race was destined for a bad place, and people could take the fate of humanity into their own hands by genetic engineering. Now they didn't have, you know, DNA splicing things we have today it was much more. Basically I thought well the way to improve the human race is to control who Riku reproduces, and the undesirables, so to speak. We're not allowed to reproduce so you can't have black, white people reducing that's a no no you can't do that. And you can't have imbeciles reproducing because I'll pass on their traits to their children and they'll create these awful family trees. People often think that Nazi Germany invented. You called eugenics right Nazis did not invent that they perfected it. It was created, right here in the US of A. And this was a very. I won't say popular was a very widely held belief system that was accepted in elite circles or you can go to college and major in eugenics said, PhD studying this stuff. It was well accepted and well, you know, publicized so it's not like controversial, but some courts in the early 20th century said whoa. Can't sterilize the presser feet in this so what the hell you can't do that that's that's new. So Virginia said we need a test case and the engineer this case. And they found, poor Carrie buck. Poor Carrie buck. Why do I say poor Carrie buck. She was picked in very unfortunate circumstances, her mother had given birth, which wasn't married was called wedlock. It's not really a phrase, we use anymore but Carrie was born out of wedlock. Carrie also a daughter, Vivian, who was also born out of wedlock. And there's some very strong evidence that she became pregnant because of a rape and again it wasn't the stepfather, it was it was I think a cousin or, or, it was a nephew of the, of the stepfather so I think was wrong the book I apologize for that.
After she became pregnant, the step,
the step that basically center to home right the this home for epileptics if people minded.
The center, then picked her to be the sort of test case for sterilization. It was a terrible setup. Her lawyer was actually a member of the board of the colony. So he was not on her side he was basically. How do I say going through the motions. His entire goal was just to make sure the case moved along well to get to the Supreme Court that's what their goal was, they didn't want to actually litigate, he had no witnesses no evidence. You know I remember I said you know you go to court you present evidence they think your honor we rest. Let's face what happened here no evidence no witnesses nothing. It's not even clear that Kerry understood what's going on I don't think anyone told her she may have known but she probably had no idea what hell's going on that that's the bit that's the better one. And then the state had their experts right. We talked about deferring to experts you know what these state has a law about baking, or, it says a lot about learning German or the state has a law about I don't know, teaching Catholic schools. It was experts who say here's what we think and what deference you give. Here the expert said well, Carrie buck is part of a lot of imbeciles, and there's a family tree there are three generations of imbeciles. The mother. You know, had an STD. And, you know, she had birth of wedlock and the daughter Carrie. Also also at birth at wedlock and she probably was named assault which which wasn't true she could read and write, she quit the high school I don't think she. I think she graduated high school she went to high school. She was educated.
And then the daughter poor Vivian.
Poor Vivian the little girl, you know less than a year old. You know I have a, I have a daughter now who's now four months old and I've had a one year old, they can't do anything they don't know what the hell they're doing at that age I have no idea what the hell's going on in the world. And the idea that you can administer some sort of IQ test to a to a toddler just just, you know, she's adorable, but just it's insane. It's just it's just crazy. Um, but that wasn't the goal. The goal was just to run up the statute. And the case goes and appeals to the Supreme Court and the court affirms her sentence of sterilization. The Court upheld Virginia's law and homes Ruth is very brutal opinion where he says three generations of imbeciles are enough, uh, you know, this is a very famous line. In fact, it was read during the Nuremberg trials, the lawyers for the Nazis tried to demonstrate that eugenics was it was not just a Nazi problem an American problem. And when the lead Lord for the Nazis actually read for the Holmes opinion. You know, just to see where this, this went home says this was not a challenge to the procedure. In other words, this was not a procedural due process challenge yet a judge. Does a proper trial, somebody has a conflict of interest, oh my god yeah there's such conflict of interest here but just they kind of ignored it rather Holmes says this is the challenge the substantive law, right the substantive law, this is Holmes hinting at this distinction between procedural due process.
Excuse me and substantive due process.
And Holmes makes a very simple argument, he says, Look, if we can lock people up for life, which a state can do.
Right. If we can lock people up for life.
Why can't we take the lesser step of just burdening them but with a surgery. This was the question I gave you before. If you can be locked up for life, and we can't reproduce. Why can't they say take the cheaper approach of just sterilizing and letting you have to go free and running around the world. Homeless rights the state does not need to wait for the execute. I'm sorry, the state doesn't have to wait for the degenerate offspring right they don't have to wait for people to do this. That's why I put this question to you at the poll, because if you're favoring lifetime captivity. They think Holmes is wrong, but I think Tory and others said yeah just snip snip snip let it go adopt adopt Casper right. If we adopt cats then then is home so wrong right if. Of course you say this is insane this stuff in facility is nonsense gibberish. But how does the court know hashtag science what the right answer is and that is it for the legislative process to decide. Right. We're looking at this through the lens of 2020, where we know how science works but the time this was, this was science is what state of the art was everyone knew this was right. I'm gonna go maybe a minute or two over so if you need to leave a top 10 that's fine. Holmes also says, look, people have burdens, right, we have a draft where people are sent to war to die. Holmes was a soldier in the Civil War. He was shot twice and survived. Right, he survived to gun wounds to the Civil War people don't survive one usually.
He says, How can we call our best men to be sterilized to be shot and war. We can't call on these imbeciles to have a minor surgery performed live their lives normally without reproducing, they're alive, they're not like the people buried in the cemetery at Arlington.
All right. The vote and Buck was eight to one justice Butler dissented. He was the lone Catholic of the court and the Catholic Church, then as now opposes sterilization. He didn't write a dissent and there's some rumors that he have widened right it, there's no good reason we don't really know why he dissented I've looked into it I can't find a good reason he just dissented, it was fairly common at the time to dissent without an opinion. But, you know, that was that. Okay. I want to do a summary of the cases in a minute but first I want to give people a chance to ask Are there any questions on homes, and the, the buck opinion, ma see Go ahead.
Can you I know you said you're gonna summarize in a minute, but just like, what do I need to take away from this because the case is so obviously misguided that I'm not sure what I need to like take away from the opinion.
I'll get there, that's my goal in one minute, I promise. The questions about the Holmes opinion in general. All right, well, This is a, this is still good law, apparently, who's talking about Mike Cooper, Mike. That's I'll get there one minute Mike promise.
Any question the analysis itself not its impact today.
All right. All right, we've done now a
seven. Okay, so we've done seven
due process cases in the early 20th century.
Some of them are good, most of them aren't. Okay, so first off, Lochner is Nakula Atkins verse the Children's Hospital of DC, not good law. Both of those cases follow the Pekka model we put the burden on the government economic cases, the Supreme Court has said no no no no no you cannot do that. Eventually justice Holmes opinion his dissent in both cases prevailed. So for Lochner and Adkins. The majorities are not good law the home sense in both cases are really the standard now for economic cases.
Then we have Meyer and Pierce.
These are good law, but in a sort of quirky fashion. Meyers was about, you know, teaching Bible stories and pierce was about, you know, a Catholic schools. Today the court views Myers and pierce as First Amendment cases by free speech in a free exercise of religion. That was not how they're written, and you just read them you know that's the case they don't even mention the First Amendment, but the, the Supreme Court in the 1960s highlights a launder the opinions they sort of just rewrote them and said no no these are my first amendment. Why that argument, allow them to keep Myers and Pierce, but get rid of Lochner napkins right say well locker napkins were about personal liberties but these are first seven cases of their safe right so they sort of morph these old substantive due process cases by children in schools which are, you know, fine, people like them to first amendment cases. All right. Third, we have a good friend Moeller. This was a case about women working so many hours. If remember the Brandeis brief argued that women were these inferior vessels of of children and they can't do anything else,
only slightly exaggerated.
So Muller was based on the sort of rampant sexism. But today, molars considered a good case, not about the gender discrimination, but about the deference that that we should be more deferential to the state when we're reviewing these regulations. We studied the academy warli which was about the segregationist ordering and now Louisville, Kentucky. Again, that was an economic liberty case o'clock there's right the right of contract that case has been basically rewritten as a equal protection case that you can't discriminate against people on the basis of race. That's not how he cared it was argued, because the time plus he was so good law right Plus he was the rule. But if you look at cases like brown and some of the other cases they cite Buchanan, as evidence he can't discriminate the basis of race
to the last case Buffy
give a, an even more robust answer to this question I would have the past.
Buck was never ruled.
Never ruled. Indeed, it gets favorably cited in some unexpected places. The place where it gets cited most controversially is in Roe v Wade. Most casebooks edit that part out Randy's that I put it back in because it was important. And that's fine why it's cited. We'll study around a few weeks but row people thinks is
right with their bodies.
Right. If she wants to terminate a pregnancy she can terminate the pregnancy. Not so fast as Row, Row explains that people do not have the right to their body with a wish. It's not limited the state has an interest in your body, and the state decides you should say pregnant should say pregnant. And what's the citation for that. But if you bill. In other words, the state can forcibly make you sterile. The court says. They can also make you remain pregnant. So it's a weird rule in row that this is cited and most people just don't know they exist I always make a point is, is molars. As far as buck still good law, kind of it is there also a case that chemical castration, I think, Lady mentioned that earlier, or it was Gavin Bosworth suddenly. And there's questions of whether a person can opt into chemical castration as a way of being released early right that's a condition of release. And you better believe it those cases SIPE buck. So it's sort of case where like you realize like how can this possibly be, you know, good law, but I think it reflects the sort of deference that Holmes preached. And it's still, it's still out there. And during the discussions of the pandemic. We're talking about mandatory vaccinations. The line of cases from buck becomes relevant. Right. Can they stay forcibly sterilized you can say fortunately vaccinate you home says, Look, if we can if we can jam a needle in your arm, and make you take a unsafe vaccine Why can't we remove your your your organs or maybe one's permanent ones not. But if if the way to stop the spread of smallpox is through a vaccination, you do it. If the way to stop the spread of imbecility is sterilization you do it. Keep in mind, they've used in facility as a disease. And the way to stop it was through sterilizing these people, there were no birth control the Dean of contraception didn't exist. It was a thing. Back then, if it did, was very effective. The way to stop it was by sterilizing.
I think I'm done, I said one a few minutes over I apologize. Um, I'll start the minute poll now so you can get going on that. Are there any questions from the slides and I'll be here at office hours can be 10 to 15 minutes, I can promise of any questions as we wrap up. No. Okay. And again, the link for the. The link for the the transcript is here. If you click that link maybe in 15 or 20 minutes, it should be indexed by speaker with audio it's pretty cool, but I'll take a look at later. Alright, thank you very much everyone and I'll see.