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Schenck v. United States, 1919

Wartime Freedom of Speech

By Fidel Andrada

★★★★ Background of the Case ★★★

The freedom of speech guarantee of the First Amendment was not tested in the Supreme Court for more than 100 years after the adoption of the Constitution, despite the number of federal and state laws that placed limits on free speech during that period. When the United States entered World War I in 1917, the federal government felt that it had to protect itself against efforts to influence people to oppose the war. Therefore, it passed the Espionage Act, which made it a crime to cause or attempt to cause insubordination in the armed forces, obstruct recruitment or enlistment, and otherwise urge, incite, or advocate obstruction or resistance to the war effort.

Charles Schenck, who was general secretary of the Socialist Party in the United States, carried on a campaign encouraging young men to resist the wartime draft. He mailed thousands of circulars to men who had passed exemption boards and to men who had been drafted. In the circulars he declared that the draft was unconstitutional despotism and urged the men to assert their rights to resist the draft. Further, he claimed that the Thirteenth Amendment, which banned involuntary servitude except as punishment for committing a crime, was violated by the conscription act and that a conscript was little better than a convict. The circular declared, “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.” He described arguments in favor of the draft as coming from cunning politicians and a mercenary capitalist press. For these actions Schenck was convicted of conspiracy to violate the Espionage Act by attempting to obstruct the recruitment of men into the United States’s armed forces. Schenck challenged his conviction on the grounds that his First Amendment rights had been violated.

★★★★★★ Constitutional Issue ★★★★★★

The Court had to decide whether Schenck had been properly convicted and whether the Espionage Act was constitutional in the light of the free speech guarantees of the First Amendment. Was such a broad limitation on the right of free speech as the Espionage Act allowed a violation of the First Amendment? Or was the fact that the Espionage Act was designed to protect the nation’s war effort a sufficient enough reason for the Supreme Court to reject Schenck’s First Amendment defense?

★★★★ The Supreme Court’s Decision ★★★★

The Court ruled unanimously that the Espionage Act was constitutional and affirmed that Schenck was guilty of having violated the act. Justice Oliver Wendell Holmes, Jr., wrote the Court’s opinion. The opinion was based on the idea that the First Amendment guarantees are not absolute and must be considered in the light of the setting in which supposed violations occur. Holmes wrote, “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Holmes then enunciated a principle that he felt defined the true scope of the First Amendment as it applied to political expression. “The question in every case,” Holmes wrote, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. . . . When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”

The Schenck case clarified some limitations on free speech and supported the notion that the rights of the people are not absolute but must be balanced with national interests that are judged to be essential.

DIRECTIONS: Answer the following questions on a separate sheet of paper. Or take the online Quiz HERE

1. Why was the Espionage Act passed?

2. Explain the clear and present danger principle that Justice Holmes enunciated in the Schenck decision.

3. According to Holmes, what factor made Schenck’s actions, which at other times would have been protected by the First Amendment, illegal at the time he performed them?

4. How far do you think the government should go in trying to protect itself against threats to its policies in times of war?

5. Eight months after the Schenck decision, the Court again applied the clear and present danger principle. Holmes dissented in that case, stating that unlike the Schenck case, actions of the convicted man in the second case had little or no effect on the nation’s war effort. What do you think this reveals about Holmes’s attitude toward free speech guarantees?

#fidel andrada #schenck

Syllogism: Reasoning and Fallacy

Syllogism is a form of deductive reasoning where you arrive at a specific conclusion by examining two other premises or ideas.

Hello, my name is Fidel Andrada. Syllogism derives from the Greek word syllogismos, meaning conclusion or inference.

Some syllogisms contain three components:

Major Premise

Minor Premise

Conclusion

For example, all roses are flowers (major premise). This is a rose (minor premise). Therefore, I am holding a flower (conclusion)

Types of Syllogism

The type of syllogism that typically contains these three components is a categorical syllogism. However, there are two other major kinds of syllogism. We'll discuss each one here, plus enthymemes and syllogistic fallacy.

As we know, our first example about roses was a categorical syllogism. Categorical syllogisms follow an "If A is part of C, then B is part of C" logic.

Let's look at some more examples of syllogism.

All cars have wheels. I drive a car. Therefore, my car has wheels.

Major Premise: All cars have wheels.

Minor Premise: I drive a car.

Conclusion: My car has wheels.

All insects frighten me. That is an insect. Therefore, I am frightened.

Major Premise: All insects frighten me.

Minor Premise: That is an insect.

Conclusion: I am frightened.

Conditional syllogisms follow an "If A is true, then B is true" pattern of logic. They're often referred to as hypothetical syllogisms because the arguments aren't always valid. Sometimes they're merely an accepted truth.

If Katie is smart, then she will get into a good college.

Major premise: Katie is smart.

Minor premise: Because she is smart Katie will get good grades.

Conclusion: Katie will get into a good college.

If Richard likes Germany, then he must drive an Audi.

Major premise: Richard likes Germany.

Minor premise: Richard likes all German things.

Conclusion: Richard drives a German car.

Disjunctive syllogisms follow a "Either A or B is true, if it's A, B is false" premise. They don't state if a major or minor premise is correct. But it's understood that one of them is correct.

This cake is either red velvet or chocolate.

It's not chocolate.

This cake is red velvet.

On the TV show Walkikng Dead, Claire's husband is either dead or alive.

He's not dead.

Claire's husband is alive.

An enthymeme is not one of the major types of syllogism but is what's known as rhetorical syllogism. These are often used in persuasive speeches and arguments.

Generally, the speaker will omit a major or minor premise, assuming it's already accepted by the audience.

He couldn't have stolen the jewelry. I know him.

Major Premise: He couldn't have stolen the jewelry.

Minor Premise: I know his character.

Her new purse can't be ugly. It's a Louis Vuitton.

Major Premise: Her new accessory can't be ugly.

Minor Premise: It's made by famous designer Louis Vuitton.

In an enthymeme, one premise remains implied. In the examples above, being familiar with someone or something implies an understanding of them.

Some syllogisms contain false presumptions. When you start assuming one of the major or minor premises to be true, even though they're not based in fact - as with disjunctive syllogisms and enthymemes - you run the risk of making a false presumption.

All crows are black. The bird in my cage is black. Therefore, this bird is a crow.

Major Premise: All crows are black.

Minor Premise: The bird in my cage is black.

Conclusion: This bird is a crow.

The scenery in Ireland is beautiful. I'm in Ireland. Therefore, the scenery must be beautiful.

Major Premise: The scenery in Ireland is beautiful.

Minor Premise: I'm in Ireland.

Conclusion: The scenery is beautiful.

Of course, not every black bird is a crow and not all of Ireland is beautiful. When preparing a speech or writing a paper, we must always make sure we're not making any sweeping generalizations that will cause people to make false presumptions.

Rules of Syllogism

There are six known rules of syllogism. However, they mainly apply to categorical syllogism, since that is the only category that requires three components: major premise, minor premise, conclusion. Here are six rules that will ensure you're making a strong and accurate argument.

Rule One: There must be three terms: the major premise, the minor premise, and the conclusion - no more, no less.

Rule Two: The minor premise must be distributed in at least one other premise.

Rule Three: Any terms distributed in the conclusion must be distributed in the relevant premise.

Rule Four: Do not use two negative premises.

Rule Five: If one of the two premises are negative, the conclusion must be negative.

Rule Six: From two universal premises, no conclusion may be drawn.

Further Examples of Syllogism

Syllogisms make for colorful literary devices. They explain situations indirectly, affording readers the opportunity to practice reasoning and deduction skills. Shakespeare was a master of many things, including syllogism. Here is an example of a syllogism fallacy in The Merchant of Venice:

Portia was a woman desired by many men. It was arranged she would marry the man who could correctly guess which of three caskets contained her portrait. One casket was inscribed with, "Who chooseth me shall gain what many men desire." One man concluded that, since many men desired Portia, her portrait must be in that casket.

He was wrong. His assumption falls under the category of syllogistic fallacy. One cannot deduce that, since this casket contains what men desire, it's automatically the portrait. Men also desire fortune and power, for example. There wasn't enough evidence to leap from premise to conclusion here.

Socrates is the subject of one of the most famous, and easily understood, examples of syllogism in philosophy. Note that it clearly follows the rule of three components.

All men are mortal. Socrates is a man. Therefore, I am mortal.

This draws a clear picture of how one statement, when known to be universally true, should point perfectly to another clear claim, thus drawing an accurate conclusion.

Keep syllogisms in mind when viewing advertisements. Many leaps are made in advertising, skipping either a major or minor premise:

Women love men who drive a Lexus.

Get ready for an enthymeme or syllogism fallacy. A blanket statement such as this skips one of the two required premises. Every time a woman likes a man, it can't be assumed he drives a Lexus.

Persuasive Speeches and Writing

Understanding syllogisms will help you create masterful persuasive speeches and essays. They create a formula for you to abide by, in order to ensure your main point is flawless.

Syllogisms also allow you to test your theories according to syllogistic fallacies. When examining your main argument or point for discussion, be sure you haven't made any presumptions that your audience might disagree with.

Maybe some women won't like Lexuses. Perhaps they prefer a good 'ol fashioned Jeep! Just keep your eyes and ears open while you allow syllogisms to drive your point home with clarity and truth.

#fidel andrada #Andrada #syllogism #fallacy

Syllogism is a form of deductive reasoning where you arrive at a specific conclusion by examining two other premises or ideas.

Fidel Andrada

Exploring the meaning of base word vs. root word will help you understand what these are and how to use them

#fidel andrada #root words #base words

Base Words and Root Words

The English language is made up of many closely related words. In fact, it's possible to build new words from existing words by adding affixes to the beginning and/or end of a base word or root. Base words and roots are slightly different. Exploring the meaning of base word vs. root word will help you understand what these are and how to use them, which will help you improve your vocabulary skills.

Hello, my name is Fidel Andrada.

Many words in the English language have been borrowed from other languages. The origins are usually Latin or Greek. A word can have three parts to it: a root, a prefix and a suffix. A prefix or suffix is a meaningful affix that doesn't function as a word on its own but can be attached to a base word or root.

Prefixes (like pre-, anti- or de-) go at the beginning of a base or root word.

Suffixes (like -tion, -ness and -ment) go at the end of a base or root word.

It's the middle part of a word that holds the most meaning, however. This may be a root or a base word.

The Difference Between Base Words and Root Words

People sometimes use the terms root word and base word as if they mean the same thing, but they are different. Discover the similarities and differences.

Root words come from Latin or Greek. They aren’t actually words that can stand alone in English. They are also referred to as a "word root" or just a "root." For example, aud is a Latin word root that means to hear or to listen.

Aud doesn't mean anything on its own in English — that is, you can't use it as a stand-alone word.

It is the root of common English words like auditorium, audio, audience, and audition, all of which have to do with hearing someone or something.

Understanding root words will help you learn more words in English quickly. As you begin to understand the Greek and Latin roots of common words, you'll notice them in more places, and this will give you a clue to the meaning of an unfamiliar word. Knowing the meaning of a word’s root makes it easier to figure out what the English words that use it mean.

Base words, on the other hand, are always words that can stand alone in English. These words have meaning on their own, but they can also have prefixes and suffixes added to them to make new words. For example, cycle is a full word in English, but it can function as the base of other words when affixes are added.

Cycle is the base word, or the simplest form of the word without any prefixes or suffixes added.

Prefixes can be added to make words like bicycle, tricycle and motorcycle.

Suffixes can be added to make words like cyclist, cyclical or cyclers.

Knowing base words will help you understand new words as well as how prefixes and suffixes can change a word's meaning. Keep in mind, though, that most English words have Greek or Latin roots. The word cycle, for example, is actually based on the root cyc (which means circle).

Base Word vs. Root Word Confusion

When dealing with root and base words, the fact that most English base words actually have a Greek or Latin root can cause things to get a bit tricky. For example, like cycle, the word civil meets the definition of a base word. It is a standalone English word that can stand on its own. However, it does also have a Latin root.

Civil is a base word that describes someone courteous, the rights of ordinary citizens or legal proceedings based on legal matters that are not criminal in nature. This English word can stand alone, and it can also be expanded to create words like civilization, civility and civilian.

Though civil can stand alone as a base word in English, it comes from the Latin root civ (from the Latin word civis), which relates to citizens. You can't use civ on its own in English, but it's still part of the base word civil.

So, civ is the root of civil, which then serves as a base word forming other words.

Civ is also a root for other words that are not connected to the base word civil, including the word civics.

To make sense of what this means, consider the breakdowns of words related to civil (base word) and civ (root).

civil: The root of civil is civ. Civil is a base word.

civilization, civility and civilian: The root of these words is civ. They also have a base word, which is civil.

civics: The root of civics is civ. This word does not have a base word.

A Further Complication: Identical Roots and Bases

Occasionally, a base word in English is the same as a Latin root. For example, act is a standalone word in English, making it a base word. However, act is also a Latin root that comes from the Latin word actum. Prefixes and suffixes can be added onto act in order to make English words like action, reaction and actual. In this case, the root word and base word are the same (act) for each of these terms.

The Importance of Base Words and Root Words

Base words and root words are not the same, even if in a few cases a word can be labeled as both. Review some examples of root and base words to expand your knowledge. Then, practice with roots, bases, prefixes and suffixes. When you see how all the pieces of a word work together, you'll have a greater appreciation for English and how its vast vocabulary came to be.

#fidel andrada #base words #root words

The id, ego, and superego are names for the three parts of the human personality which are part of Sigmund Freud’s psychoanalytic personality theory. According to Freud, these three parts com…

The id, ego, and superego are names for the three parts of the human personality which are part of Sigmund Freud's psychoanalytic personality theory. According to Freud, these three parts combine to create the complex behavior of human beings.

Hello, my name is Fidel Andrada. Let's look at several examples of id, ego, and superego.

#fidel andrada #id ego super ego #Andrada #id #ego #super ego

The Oxford Comma

The Oxford comma has the distinction of being one of the most hotly debated elements of the English language. Also referred to as the serial comma, this little curlicue has been fiercely defended - or shrugged off - by grammarians for centuries.

Do you really need to use the Oxford comma? The short answer appears to be yes, with many opportunities for rebuttals and debates.

Hello, my name is Fidel Andrada. Let's take a closer look.

What Is the Oxford Comma?

The Oxford comma is, you guessed it, a comma that's placed in a series of three or more items. It's used in both "and" and "or" lists. For example:

She liked to read books, paint portraits, and take her dog for a walk.

Another example would be:

Make sure he doesn't eat any peanuts, bread, or carrot sticks.

Should You Use the Oxford Comma?

In the lists above, was the second comma really necessary? Wouldn't the powers of deduction lead anyone to believe those were three separate activities or snacks? Do we really need to use serial commas?

The answer to that is a resounding yes. Let's look at another example:

Everyone stood up and cheered when the president, Marsha and Greg entered the ballroom.

In this example, it seems like the president is someone named "Marsha and Greg." Instead, it should read:

Everyone stood up and cheered when the president, Marsha, and Greg entered the ballroom.

Examples of the Oxford Comma

Let's consider another example. What if a mother asked her child if he ate his breakfast of eggs, toast and orange juice?

Does that mean the mother was asking the child if he ate eggs, toast with orange juice on it? Yuck.

An Oxford comma provides a distinction between elements in a list of three or more items.

Worse than soaking toast with OJ, a lack of an Oxford comma can even have legal ramifications.

Five Million Dollars

A group of dairy delivery drivers in Maine received a $5 million settlement in a debate, due entirely to the lack of an Oxford comma. In legislative documents, certain tasks were singled out as exempt from overtime payments.

The documents indicated that the "canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of" certain products are exempt from overtime payments.

Without a comma in the final series of tasks, "packing for shipment or distribution" could be read as "packing for shipment OR packing for distribution," where "packing for" is used for both "shipment" and "distribution."

This is quite different from [packing for shipment] or [distribution], wherein the drivers are doing the latter task. By placing an Oxford comma before "or distribution," it would've been clear that "distribution" was its own separate act.

Don't you think five million dollars is quite a loss, due the lack of a single, tiny comma? You can be sure an Oxford comma was added to the revised documents.

Going to the Experts

Let's take a moment to review the main style guides. We'll see where each of the heavy-hitters come down on the subject.

AP Stylebook

In September 2017, the Associated Press (AP) released a clear, concise statement via Twitter. They wrote, "We don't ban Oxford commas! We say: If omitting a comma could lead to confusion or misinterpretation, then use the comma."

That's precisely the kind of thing that could've saved the state of Maine a whopping $5 million.

The AP Stylebook is commonly used amongst journalists. That's why, when we read articles from some of our favorite news outlets, we might notice the lack of the Oxford comma.

APA Stylebook

The APA Stylebook by the American Psychological Association, however, is far firmer on their stance on the Oxford comma. In the punctuation section of the guidebook, you'll note the APA "requires the use of the serial (or Oxford) comma in lists of three or more items."

The Chicago Manual of Style

Turns out the Chicago Manual of Style falls on the same side as the APA. They, too, require the serial comma in a list of three or more items. It seems to be a matter of ambiguity. In an effort to minimize exactly that, the Chicago Manual of Style calls for the serial comma.

MLA Style Guide

Finally, the MLA Style Guide from the Modern Language Association requires the use of the Oxford comma as well. The only folks who leave it open to interpretation are the knuckleheads at the Associated Press.

Don't Go Nuts

Alright, alright. If someone is truly adamant, don't allow them to get your knickers in a bunch. It's true that the Oxford comma is sort of "open for interpretation." But, in the event of academic writing, be sure to check your style guides. Three out of four require it.

In the event of blog writing, go with your gut. If you want to be clear and concise, use the Oxford comma. If you want to run into a situation akin to the delivery drivers in Maine, go without it.

For such a tiny punctuation mark, the comma carries a lot of weight.

Writing a Great Hook

The world is coated in a sea of words… Start with a great hook!

What Is a Hook?

A hook is the line or lines written to lure a reader or listener in and make them want to learn more. It's an introduction that's meant to grab hold of people's attention. In an essay, the hook should fall within the first line or two of the introduction.

In longer works of fiction, such as short stories, novels, plays, and scripts, you can incorporate the hook into the title or write it into one of the opening scenes.

For example, in Anna Karenina by Leo Tolstoy, we read the following line early on: "Happy families are all alike; every unhappy family is unhappy in its own way." Thought-provoking, right?

Hello, my name is Fidel Andrada

How to Write a Catchy Opening

Before you can write a great hook, you must have a clear vision of the message you want to convey. Equally important, be sure you understand your audience and keep them in mind throughout the entirety of your written work.

Will this be a formal piece or something more laid back and conversational? That will influence the tone of your hook. Perhaps you'll include a stark statistic for something more formal. Meanwhile, you might want to consider a joke to kick things off in a more conversational tone.

Make sure your hook ties into your thesis statement or main idea. So, if you use a quote or a statistic to shock readers into paying attention, be sure it's directly related to the topic at hand. The same goes for a joke. If you'd like to entice readers with a joke, it must, of course, relate to your thesis.

There are a few options that might serve as a good hook if you feel like you can't come up with a striking statement on your own. It's fine to use a quote, offer a statistic, or pose a question as your hook. Let's take a look at some different options.

Quotes can be a great spark to light the fire. Let's say you're writing an essay about a particular author. Why not offer up one of their most poignant quotes? If you were writing a paper about the legendary Ernest Hemingway, you might want to begin with a quote that demonstrates his strength of character:

There is nothing noble in being superior to your fellow man; true nobility is being superior to your former self.

Perhaps you're drafting a persuasive essay. Feature someone prominent in the community you're discussing and use one of their most striking lines as your hook. If you were writing about the benefits of world travel, you might want to incorporate a line or two from a famous travel TV host, like Rick Steves.

Travel is rich with learning opportunities, and the ultimate souvenir is a broader perspective.

Statistics can play a powerful role in hooks, similar to a quote. If you're writing a persuasive essay, consider kicking things off with a striking statistic that will blow readers' minds and encourage them to want to learn more.

You can also use a statistic to disprove a common misconception and then build upon that throughout the rest of your piece. Let's say you are writing a persuasive piece about the perils of alcohol consumption. You might want to begin with a statistic that paints a dire scene:

According to a recent report from the CDC, alcohol poisoning kills six people every day in the United States. That same report also reveals there are over 15 million people currently struggling with alcohol use disorder.

Consider opening up with a thought-provoking question. Steer clear of yes or no questions, because there's nowhere to go from there. You can use a question to open up the minds of your readers and churn the wheels of curiosity.

Let's say you were writing a piece about the different forms of writing. You might want to consider essay writing versus novel writing. This is a great example of a hook, stated clearly in the first line of an essay by Zadie Smith:

Why do novelists write essays? Most publishers would rather have a novel.

A joke can be a great hook for a short story or novel. It will set the tone for the piece and give the readers a sense about the main character. Hopefully, they'll immediately be drawn to him or her. Here's an example of a great hook by Paul Hellman that could open up a short story or novel:

"Every night, 20 new people hate my guts," the big muscular guy said. "On a good night, 30 people." Then he spit. "I could care less."

Depending on the nature of your piece, an anecdote can also be an interesting way to hook readers in. Typically, you want to avoid writing in the first person in an essay, but perhaps you have a story you can relay in the third person to lure readers in.

Wendy is a tried and true New Yorker who's lived there all her life. Yet, even in a city with over 8.5 million people, she's never been able to shake off the dregs of loneliness.

If you're writing a narrative essay, an anecdote is the perfect place to start. It has the power to make you instantly relatable to your readers.

Hooks Grab Attention

Hooks come in many shapes and sizes. That means the door is wide open for you to lure readers in. Whenever you're writing, always keep your audience in mind. This is especially true for the introductory elements, namely the hook and your thesis statement.

#fidel andrada #writing

Examples

Straw Man Fallcy by Fidel Andrada

#fidel andrada #Andrada #straw man fallacy

Do you have a strong opinion about a topic? If so, now’s the time to take that opinion, bolster it, and convince others to “come on your…

by Fidel Andrada

A persuasive essay has one main goal: to persuade the audience of a certain viewpoint. Like a sales pitch, your essay is selling your point of view. Do you have what it takes?

#fidel andrada #persuasive essay #writing #art of persuation #andrada

Examples

The bandwagon fallacy describes believing something is true or acceptable only because it is popular.

Have you ever deemed someone’s behavior to be unethical? Have you ever questioned their moral code or the values upon which they base their…

Have you ever deemed someone's behavior to be unethical? Have you ever questioned their moral code or the values upon which they base their decisions?

New Jersey v. T.L.O., 1985

The Right to Search Students

By Fidel Andrada

★★★★★★★ Background of the Case ★★★★★★

A New Jersey high school teacher discovered a 14-year-old freshman, whom the courts later referred to by her initials, T.L.O., smoking in a school lavatory. Since smoking was a violation of school rules, T.L.O. was taken to the assistant vice-principal’s office.

When questioned by the assistant vice-principal, T.L.O. denied that she had been smoking. The assistant vice-principal then searched her purse. There he found a pack of cigarettes along with rolling papers commonly used for smoking marijuana. He then searched the purse more thoroughly and found marijuana, a pipe, plastic bags, a large amount of money, an index card listing students who owed T.L.O. money, and “two letters that implicated T.L.O. in marijuana dealing.”

The assistant vice-principal notified the girl’s mother and turned the evidence of drug dealing over to the police. T.L.O. was charged, as a juvenile, with criminal activity. T.L.O., in turn, claimed the evidence of drug dealing found in her purse could not be used in court as evidence because it had been obtained through an illegal search and seizure. T.L.O.’s attorneys claimed that the Fourth Amendment protects against unreasonable search and seizure. They maintained that the Fourth Amendment requirements for a warrant and probable cause applied to T.L.O. while in high school as a student. After appeals in lower courts, the case eventually reached the United States Supreme Court.

Want to Know More? Click on this Link for the Outcome

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#Fidel Andrada #New Jersey v TLO #Supreme Court #Fidel #Andrada

Miranda v. Arizona, 1966

The Rights of the Accused

By Fidel Andrada

★★★★★★★★ Background of the Case ★★★★★★★★

Ernesto Miranda had been arrested at his home in Phoenix, Arizona, and accused of kidnapping and rape. Questioned at the police station by two police officers, he was not advised of his right to an attorney nor his right to remain silent. After two hours of interrogation, he signed a written confession to the crimes. At his trial, he was found guilty and sentenced to 20 to 30 years in prison. He took his case to the United States Supreme Court.

★★★★★★★★Constitutional Issue ★★★★★★★★★★

The Fifth Amendment of the Constitution guarantees that “no person . . . shall be compelled in any criminal case to be a witness against himself. . . .” This right was made part of the Bill of Rights to prevent a tyrannical government from forcing accused persons to confess to crimes they may or may not have committed. Miranda’s case before the Supreme Court was based on this Fifth Amendment protection. The Court accepted the case in order to explore and clarify certain problems arising from earlier decisions related to the rights of individuals taken into police custody. The precise question that the Court explored was under what circumstances an interrogation may take place so that a confession made during the interrogation would be constitutionally admissible in a court of law.

★★★★★★★ The Supreme Court’s Decision ★★★★★★★★

The Supreme Court overturned Miranda’s conviction in a 5 to 4 decision. Chief Justice Earl Warren wrote the majority opinion. The Court’s ruling centered on what happens when a person is taken into custody. No statement from the suspect, the Court held, may be used when it stems from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way.

Warren noted that a suspect under interrogation is subject to great psychological pressures designed “to overbear the will,” and that questioning often takes place in an environment “created for no other purpose than to subjugate the individual to the will of his examiner.” In overturning Miranda’s conviction, the Court intended “to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination. . . .”

A person in police custody “or otherwise deprived of his freedom...must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires,” Warren stated.

Once these warnings are given, the individual in custody may choose to stop answering questions, or may halt the interrogation until his attorney is present. Otherwise, he may waive his exercise of these rights. In such a case, there would be “a heavy burden . . . on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to ...counsel.”

The Miranda ruling applies only to interrogations. The Court emphasized that such safeguards were “not intended to hamper the traditional function of police officers in investigating crime. . . .” The ruling was not meant to bar “general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process. . . .” In addition, the Chief Justice declared, the Fifth Amendment does not bar voluntary statements from a person who, for example, enters a police station “. . . to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make.”

The Miranda ruling has led to the practice now followed routinely by arresting police officers and other law enforcement officials during which they read a suspect his or her Miranda rights.

★★★★★★★★ Dissenting Opinion ★★★★★★★★★

Justices John Marshall Harlan, Tom C. Clark, Potter Stewart, and Byron White dissented. They saw no historical precedent for the majority position and feared the decision could weaken law enforcement. Justice White condemned the majority for creating law enforcement directives he viewed as inflexible, while at the same time leaving many unanswered questions.

#Fidel Andrada #Miranda v Arizona #Supreme Court #Fidel #Andrada

Marbury v. Madison, 1803

The Supreme Court’s Power of Judicial Review

By Fidel Andrada

★★★★★★★ Background of the Case ★★★★★★★

The election of 1800 transferred power in the federal government from the Federalist Party to the Republican Party. In the closing days of President John Adams’s administration, the Federalists created many new government offices, appointing Federalists to fill them. One of the last-minute or “midnight” appointments was that of William Marbury. Marbury was named a justice of the peace for the District of Columbia. President Adams had signed the papers, but his secretary of state, John Marshall, somehow neglected to deliver the papers necessary to finalize the appointment.

The new president, Thomas Jefferson, was angry at the defeated Federalists’ attempt to “keep a dead clutch on the patronage” and ordered his new secretary of state, James Madison, not to deliver Marbury’s commission papers. Marbury took his case to the Supreme Court, of which John Marshall was now the Chief Justice, for a writ of mandamus—an order from a court that some action be performed—commanding Madison to deliver the commission papers in accordance with the Judiciary Act of 1789.

★★★★★★★ Constitutional Issue ★★★★★★★★

Article III of the Constitution sets up the Supreme Court as the head of the federal judicial system. Historians believe that the Founders meant the Court to have the power of judicial review, that is, the power to review the constitutionality of acts of Congress and to invalidate those that it determines to be unconstitutional. The Constitution, however, does not specifically give the Court this right.

Chief Justice John Marshall, as a Federalist, believed strongly that the Supreme Court should have the power of judicial review. When the Marbury case presented the perfect opportunity to clearly establish that power, Marshall laid out several points which the Court believed supported the right of judicial review. At the time, the decision was viewed as a curtailment of the power of the president, but people today recognize that the case established, once and for all, the importance of the Supreme Court in American government.

★★★★★★ The Supreme Court’s Decision ★★★★★★

Justice Marshall reviewed the case on the basis of three questions: Did Marbury have a right to the commission? If so, was he entitled to some remedy under United States law? Was that remedy a writ from the Supreme Court? Marshall decided the first question by holding that an appointment is effective once a commission has been signed and the U.S. seal affixed, as Marbury’s commission had been. Therefore, Marbury had been legally appointed, and Madison’s refusal to deliver the commission violated Marbury’s right to the appointment. In response to the second question, Marshall held that Marbury was entitled to some remedy under United States law. The final question examined whether the Court had the power to issue the writ. Marshall explained that the right to issue writs like the one Marbury was requesting had been granted the Court by the Judiciary Act of 1789. This law, however, was unconstitutional and void because the Constitution did not grant Congress the right to make such a law. In his written opinion, Marshall defended the right of the Court to declare a law unconstitutional: “It is emphatically the province and duty of the judicial department to say what the law is . . . . If two laws conflict with each other, the courts must decide on the operation of each.” The Supreme Court thus became the final judge of constitutionality, thus establishing the principle of judicial review. At the time, observers were much more interested in the practical result of the ruling— that the Court could not issue the writ, and could not, therefore, force the appointment of Marbury. Congress could not expand the Court’s original jurisdiction, and the Constitution does not give the Court the authority to issue a writ. They paid much less attention to the long-term implications of the decision. Here is how a constitutional scholar evaluates the Marbury decision: “Over the passage of time [the] Marbury [decision] came to stand for the monumental principle, so distinctive and dominant a feature of our constitutional system, that the Court may bind the coordinate branches of the national government to its rulings on what is the supreme law of the land. That principle stands out from Marbury like the grin on a Cheshire cat; all else, which preoccupied national attention in 1803, disappeared in our constitutional law.” Not until fifty years after rendering the Marbury decision did the Court again declare a law unconstitutional, but by then the idea of judicial review had become a time-honored principle.

#Fidel Andrada #Supreme Court #Fidel #Andrada #Miranda v Arizona

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