Courts and Social Change 2/1 - 2/3
Courts and Social Change 2/1 - 2/3 SOC 2167
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This 12 page Class Notes was uploaded by Andrea Starkman on Monday February 1, 2016. The Class Notes belongs to SOC 2167 at George Washington University taught by Dr. Buntman in Spring 2016. Since its upload, it has received 45 views. For similar materials see Sociology of Law in Sociology at George Washington University.
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Date Created: 02/01/16
4) Courts and Social Change – Class 02/01/2016 Brown V. Board of Education: Warren Court. Had to challenge previous cases. Consolidated cases from three states. 14 Amendment: Look back at the precedent. Need to look at effect of segregation on people not just the tangible factors like facilities and curriculum. o Education too different in 1954 than in 1868 than Plessy went through. Warren court represented constitutionalism is evolving rather than stagnant. Changing meaning in society rather than its meaning when it was created. Education can’t be seen in the same way now than in 1868. New social and legal meaning in present day. ▯ ▯ - Does segregation of children in public schools on the basis of race deprive children of the minority group of equal education opportunities even though tangible factors may be equal. Segregation demeans African Americans, gives them a message of inferiority. Clark Study: Range of dark and light skinned dolls. Asked little girls which was prettier, which do you prefer, and which is uglier. o Standard use of psychology to see how children understood race. o Thought white dolls were better than black dolls. Court decided that did have an effect on the minority. - Shouldn’t overstate or understate the importance of courts, especially the Supreme court. Focus on major SC cases tends to ignore what happens before and afterwards, and the social political, economic, and legal processes behind it. Supreme Court as a method of enacting social change. Source of change through legal methods. 9 Justices, with one Chief Justice. Chief sets their own agenda. Court is called by its current chief justice (Roberts Court). Terms: Majority, minority, unanimous dissent, concurrence, holding, finding, precedent. o Majority: At least 5 justices agree to the decision. o Minority: Between 1-4 justices. o Dissent: Writing the disagreement with the decision. o Legal Holding: The legal decision. o Concurrent Opinion: Agree with outcome but not why the majority came to that decision. o Unanimous Opinion: All justices agree to a decision. o Precedent: Looking to past to guide future cases, held as a principle. More often than not use past decisions to guide future decisions. Can be overturned via legislative means, 14 13 and th th th 15 amendments as repudiation of Scott Vs. Stanford. Overturned by court cases as well. Plessey Vs. Ferguson with separate but equal being legal. ▯ ▯ - Non Legal Factors: th th Reconstruction of the 13 -15 amendments, reworking of constitution. o 13 : Abolishes slavery. o 14 : Due process and equal protection under the law. th o 15 : Right to vote for all citizens no matter race or color. o Jim Crow Laws and White Racial Terror o South holding on to opinions to maintain its cultural identity. NAACP 1909 Civil Society organization to challenge second class treatment of African Americans in all aspects of American life. o Legal Defense Fund 1940 Thurgood Marshall. o Charles Houston Strategy: Focus on law schools (Gains) and focus on overturning P V. F. Behind Painter case. Changing Society o Economics – great migration o Politics U.S. supported democracy and freedom but laws and practices not matching rhetoric of war they helped win. Idea of white supremacy embarrasses U.S. government and pummeled on diplomatic front by critiques of USA. Executive branch supported NAACP in efforts o WW2 – black soldiers coming home wanting to vote, holocaust victims, racism. Right to vote and won war anti racism. Dissonance. o Integrating society and having society accept this integration are two different things. Exp. Jackie Robinson in Baseball. Hard to break away from their idea of normal, or the ideas they were raised with and integrated into their mentality. Helps people feel better about themselves, or gives them a relative advantage over others. Don’t think its necessary, if status quo is acceptable to you why would you want to change. Fear of unknown and changes could make things worse for self. Re-invoking historical contexts, civil war. North telling south what to do. Life was being rewritten to backlash was huge. Brandeis Brief: Represent idea that empirical evidence into a court room and its rising power. o Clark’s doll study. ▯ ▯ - Post Brown: Brown II 1955 “all deliberate speed” Legal versus social realities. Extent to which social realities are influenced by law? ▯ ▯ ▯ Plessy V. Ferguson: Majority for support of separate but equal. Supported by 14 th amendment. Legitimizing and legalizing idea that racial segregation was consistent with American law. o Legitimate: Law not viewed as acceptable by the southern states so they did not put this into practice. o Legal: Written as a law on the books. Formally codified supreme courts view of the constitution (14 amendment), case law. o The bigger the gap between legitimacy and legality, the more likely your are to see legal and social change. Law against Marijuana use strict and public opinion shift towards it more favorably. No longer such strict morals. Gay rights: Gay sex used to be outlawed, public opinion changed which resulted in changes to the law. Racial order between them in the U.S. completely legal. Separate but unequal becomes accepted by the court, not as doctrine but as practice. Dissent by Justice Harlan: forced segregation of races identifies blacks as inferiors. Supporting public opinion but believes them to be wrong on the law. Legality is more important than public opinion NOT OVERTURNED JUST NARROWED IN PRACTICE UNWORKABLE. ▯ ▯ Gaines V. Canada: NAACP Legal Defense Fund States must provide equal facilities (black law schools) within their state if black citizens can’t go to state law schools restricted to whites. Wins because not consistent with Plessy Vs. Ferguson on basis of separate but equal, how can it be equal if there is no black law school at all. Narrowed how P V. F would work in terms of institutions. To keep them separate have to somewhat move towards equality (availability of these resources for blacks). ▯ ▯ Sweat V. Painter 1950: Tangible and intangible (in)equalities matter. o Tangible: What can actually be seen, state physically. o Intangible: Reputation of school, student body interactions, etc. Very hard to make this equal. ▯ ▯ Need to know enough context to understand the legal holding and finding of the case and its conclusion. ▯ ▯ Abortion Article and Videos: Pro Life Trying to change point of view by saying you’re a better person for having the child and being a mother than not. No longer shameful and can have a supportive community. Write laws that make a greater impediment to having an abortion since it can’t be banned. o Parental consent laws 18> o Watching videos and information on child development, etc. The group as a whole are very homogenous in their idea, high solidarity. o Different strategies towards the same ultimate goal. Some legislative, some on change of opinion, etc. Meant as case study of a particular socio-legal phenomenon. Involve socio legal debates and what role these sources aid in understanding issues. Examples of changes, stability, and contesting of law from different sides. New point of stability doesn’t mean it will stay that way. Moving agenda that changes over time. ▯ ▯ Roe V. Wade 1973: Berger court. Supreme court decision that can’t criminalize a woman’s right to get an abortion. Can’t make abortions a criminal offense. Can have one in first trimester but not always in second trimester. Resulted in new legislation to make it more difficult to get an abortion since it can’t be banned outright. Law is contested and changes. Can be source or goal of change depending on perspective. ▯ ▯ ▯ Holzer Comparison: Refugees did not achieve all goals through protest. Still had a social impact same as these groups had an effect on the law and opinions even though abortion is not banned. Activism and politics going on in both scenarios. ▯ ▯ 1) Fighting Back: Brown Vs. Board of Education, Little Rock School Integration, Ole Miss Integration. ▯ ▯ “Supreme court or no supreme court” the South refused to integrate. Passages of the Bible to support segregation. Religion having a sense of legality to individuals in the South. Felt segregation was an attack on their heritage, culture, and beliefs. o President Eisenhower: Moving too fast legally, socially, and emotionally for the southerners. o NAACP Rep. 100 years after emancipation proclamation should be more than enough time. Society Vs. Written Law: No acceptance No Compliance Questioned Legitimacy. o Maintaining way of life more important than the law. ▯ ▯ Public riots affecting educational institutions. Public protest and actions affecting University of Alabama compliance with federal laws. Mob control. o Violence as a tactic of the mob to maintain segregation. o Lack of a federal presence at the time made it possible. Arkansas and Virginia close down schools to present integration of public schools. Little Rock, Arkansas Slowly integrating. Buses and university first and then high schools. Governor attempting to block Af. Am. Students from entering white high school. Using state troops to block the entrance. Pressure on President Eisenhower to exert federal control over the situation, or would authority be lost? Governor replaced the guard with the state police which did little to nothing to protect the students. o Wouldn’t fight their own kind to defend the legal rights of the “other”. Troopers under federal orders sent to protect students and make sure integration occurred. Mob rule can’t override the decisions of the supreme court. Students could get used to integrated schools, identified the real problem as being the parents. o Integration generated sense of equality and compassion through exposure. Supported by NAACP Legal Fund Thurgood Marshall. ▯ ▯ Mississippi: Ole Miss. University Integration State governor threatening Af. Am. And instilling fear in whites generating a frenzy to fight back against integration. Governor accused Kennedy administration of abuse of power because attempting to withhold integration laws. o Law of Interposition Vs. Supremacy Clause (constitution). States rights Vs. Federal governments supremacy in law. o Caused constitutional test by saying state law disagreed with federal thus would not comply. State law Vs. National law. Governor prevented James M. from registering at the University even though it was mandated by the Court and Executive Branch. Rioters targeting deputy marshalls and reporters to protest registration of Af. Am. Student at the university. ▯ ▯ 2) A Nation of Law: The Black Panthers, Police Brutality, Political Activism ▯ ▯ Nixon: Nobody is above the law, nobody is below the law, and we will enforce the law in America. ▯ ▯ Self Defense: Right of Af. Am. to bear arms and defend themselves against brutality. “Power to the people” = Black Panthers. ▯ ▯ Police Using Rule of Law: Threat came from being armed, black, and political. Police trying to weaken the Black Panther Party and prevent political movement. Burned Chicago HQ, this strengthened the community as a whole afterwards. Preventing alliance between youth (street gangs) and the party so as to make sure influence didn’t grow politically. FBI infiltrating the BPP to extract information and later kill its leaders. o Head of Bureau believed BPP was greatest internal threat to national security, vast overstatement. ▯ ▯ Police Brutality: Shooting of BPP leaders in their apartment. Raid where police killed leaders and then lied to the public saying it was a shoot out. o Evidence showed that bullets came from the outside (the police officers) not the inside of the apartment. o Unlawful, disorderly, and no protection under the “law” o Trial, conviction, and execution done by the police force and FBI. Police didn’t have to worry about the law, they were protected because they were following order of the FBI when going after BPP. o New police culture to destroy the organization at all costs without repercussions. Use of authority and capacity. o Charges against the panthers were dropped but no police were indighted. FBI files showing spying on social organizations within the US. Nixon still supported the Bureau after this development. POLICE AS OCCUPYING FORCE IN THE COMMUNITY, NOT RULE OF LAW. ▯ ▯ Lecture Questions: ▯ What's the relationship between law and social change? Law can drive social change as was the case in segregation laws forcing schools in the south to integrate and eventually changing the prevalent culture. The drive for social change can use the law as a method to finally arrive at that change. Af. Am. used the court system to pass Brown V. Board of education to end separate but equal and spur equal treatment in education. This change in the law then drove the social change in the south over time though acceptance took a significant amount of time. ▯ ▯ What kinds of social change drive what kinds of law? In theory it can be any type of social change that an garner a significant amount of support to make it a legitimate legal issue and have the facts or emotional charge to back it up in a given community. End of racism was very emotionally charged and controversial on both sides but it also had constitutional support via the Emancipation proclamation and the 14 amendment, thus it had legal precedent and a charged history. Large social group in support of the movement as well. Usually has to have some large over reaching meaning and some basis for which to change the law. Morality, public opinion, precedent, pre-established legal concepts or laws, etc. ▯ ▯ What kinds of law drive what kinds of social change? In theory any law implemented could cause social change, however it would most likely have some vast societal implication in terms of change and emotion. Racism laws changed the way in which Whites could look at themselves and believe that they were better than the “other”. Attempted to erase the lines that made the two groups so different from each other. Integration drove social change because it was a controversial issue due to culture. Heritage, and emotions of those being forced to change and the desire of the Af. Am. community to achieve that change despite the opposition. ▯ AUL Article If Abortions can’t be outlawed, then pass legislation to decrease the number of abortions occurring. More stringent rules, decreased access Organization focuses on generating new legislation to increase protection and decrease availability to abortion. o Decreasing funding to abortion clinics by the state, make them more out of the way for individuals, decreased access. o Having doctor’s explain state of the baby in terms of feelings and development before procedure o Being told procedure can be reversed half way through, some say this is a false statement. Can always do more to be pro-life, no state has taken every measure to prevent abortions. ▯ ▯ Students for Life of America Video: Educate college students about abortions and support women who find themselves in a pregnancy crisis. o Opening chapters at new schools o Regional managers to aid in training and support Big on mobilization (under 24 hours) and presence at rallies and support of pro life legislation. Mission to educate and change college campus culture and mentality about abortions and being pro-life. Very relationship and emotion based, tight knit group with vast support network. ▯ ▯ Lecture Questions: ▯ What's the relationship between law and social change? Law can drive social change, AUL trying to change legislation in the hopes that it will then lead to a shift in opinion over time. The law affects the way in which we see the world and our opinions. The drive for social change can use the law as a method to finally arrive at that change. Using legislation to impede abortions forces that change among the civil society of certain states via the law. ▯ ▯ What kinds of social change drive what kinds of law? In theory it can be any type of social change that can garner a significant amount of support to make it a legitimate legal issue and have the facts or emotional charge to back it up in a given community. Supreme Court decision in Roe V. Wade determined that women had a right to choose, which in turn made it socially acceptable to have an abortion and in some ways even made it seem responsible. o Pro Life activists attempting to change the laws in states to make it seem less acceptable, or more difficult to achieve. Idea that if more people are pro-life may be able to shift laws into a more pro-life direction to protect unborn children and their mothers. Usually has to have some large over reaching meaning and some basis for which to change the law. Morality, public opinion, precedent, pre-established legal concepts or laws, etc. ▯ ▯ What kinds of law drive what kinds of social change? In theory any law implemented could cause social change, however it would most likely have some vast societal implication in terms of change and personal emotions and opinions. Laws on abortion could spur on more positive view of single expecting mothers. ▯ ▯ I introduced the idea of state, civil society, and the economy, in a society of citizens. I alluded to the idea of social movements. Civil Society has their own culture, ideas, emotions, and heritage however in theory still need to abide by the law. State determines the law via the court system, especially the supreme court. Has the right to enforce these laws on citizens. ▯ ▯ How do these videos and article flesh out that model of state and society in similar and different ways? Where does law fit in? The law is used as an instrument of social change and a shift of ideas and policy in both abortion and civil rights. Civil rights used court cases that reached the supreme court to reach a national decision to end segregation and allow for integration within communities. Pro – Life movement lost in the supreme court, however still use state legislative bodies to create impediments to prevent abortions, and decrease them in numbers through the individual states instead of using the federal system. Both have societal opinions and implications. Abortion movement trying to change peoples ideas through communication and relationships and spreading their message. The civil rights movement was going against societal opinion rather than using it to its advantage, especially in the South. Law is used as a way to communicate with the state and civil society in the most legitimate way possible. ▯ ▯ What kinds of law do we see in the different cases? (Issues, time periods, etc, perspectives) Civil Rights: Constitutional Law: 14 amendment equal protection under the law, emancipation proclamation, supremacy clause. Idea that Af. Am. should have the same rights and protections as white citizens. The states do not have the authority to ignore court rulings or the federal government support of these rulings, rule of law and the constitution. Abortion: Roe V. Wade, women have the right to choose. Legislation meant to put more stringent requirements such as parental consent, and impediments to abortions. ▯ ▯
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