Intro to u.s. law prof. betsy candlersummer 2018class

Intro to
U.S. Law
Prof. Betsy Candler
Summer 2018
Class 4, July 18 - PM
1
Individual Rights – Equal Protection & Fundamental Rights
7 Cases:
Loving
Bowers
Romer
Lawrence
Windsor
Hollingsworth
Obergefell
Masterpiece Cakeshop
Review is always substantive (even RB), just a question of how
high a level of review the courts will give.

Marriage
Loving v. Virginia (1967) (invalidated)
State laws that were invalidated:
Boddie v. Connecticut (1971) (invalidated)
Zablocki v. Redhall (1978) (invalidated)
Treatment of Fed Soc Sec Act provisions:
Califano v. Jobst (1977) (upheld)
Bowen v. Owens (1986) (upheld)
Same Sex Marriage
Windsor (2015) (invalidated)
Obergefell (2015) (invalidated)
Lawrence v. Texas (2003) (invalidated)
Hollingsworth v. Perry (2013) (standing issue – let invalidation
remain)
Loving v. Virginia (1967)
Recap:
VA statute attempting to prevent interracial marriages between
a white person and a non-white person. Racial Integrity Act of
1924.
14th Am – EP Violation
Impermissible race discrimination
Equal Application is not a valid analysis deserving of lesser
scrutiny.
No legit purpose "independent of invidious racial
discrimination.”
Here, also 14th Am – Due Process Clause violation.
Marriage is one of the basic civil rights of man. Cites Skinner.

"Under our Constitution, the freedom to marry, or not marry, a
person of another race resides with the individual, and cannot
be infringed by the State."
Lawrence v. Texas (2003)
Protection for private, consensual, adult sexual activity
Expressly overruled Bowers v. Hardwick
Bowers (1986) held there was no fundamental right to engage in
homosexual sodomy OR private consensual homosexual activity
Even though the GA law addressed both same-sex and
heterosexual activity, the Court limited its reasoning to
homosexual sodomy.
Based on the text, framers’ intent, and history/tradition, there is
no right.
Precedent for Obergefell
Lawrence (2003) & Hollingsworth v. Perry (2013) & Windsor
(2013)
Hollingsworth:
CA Prop 22 – marriage = a union between 1 man & 1 woman.
2008 – Cal Supreme Court invalidated Prop 22 based on CA
Constitution’s EP Clause.
Nov. 2008 – CA Prop 8 passed, amending CA Constitution to
provide that "only marriage between a man and a woman is
valid or recognized by California.”
This suit arose out of the challenge to Prop 8 as a 14th Am EP
Clause violation. State officials did not defend Prop 8 at trial

level
Petitioners, official proponents of the measure, intervened to
defend it.
The district court held that Prop 8 violated the Constitution,
Ninth Circuit affirmed.
Court ruled that petitioners did not have standing. No merits
ruling.
Windsor (2013)
Same day as Hollingsworth. Leading up to Obergefell (2015).
Justice Kennedy wrote both the Windsor and Obergefell
opinions.
Both are 5-4 decisions.
Swing Vote discussion from More Perfect. (31:49-33:55).
Conservative: Voting Rights, Gun Rights, Class Action
Liberal: Eminent Domain, Environmental Protection, Gay
Marriage
Windsor (2013)
Edith Windsor, seeking a refund of the federal taxes paid on the
estate of her wife, Thea Spyer, who died in 2009.
$363,000
She didn’t get the same treatment as a man would have if he had
sought the refund because of DOMA – Defense of Marriage Act.
Federal law from 1990s defining marriage as between a man and
a woman for federal regulations.
Impacts over 1000 federal laws.

Married in Canada, New York recognized her as married.
Windsor (2013)
Held:
States have the authority to define marital relationshi ps and
DOMA goes against legislative and historical precedent by
undermining that authority.
DOMA denies same-sex couples the rights that come from
federal recognition of marriage.
The purpose and effect of DOMA is to impose a "disadvantage,
a separate status, and so a stigma" on same-sex couples in
violation of the Fifth Amendment's guarantee of Equal
Protection.
Classification? Level of Scrutiny?
Obergefell (2015)
What Scalia warned everyone would happen …
4 states that had limits on same-sex marriage and legal
ramifications – licensing and recognition of marriage from
another jurisdiction.
Adoption, marriage, surviving spouse on death certificate
Petitioners filed these suits in United States District Courts in
their home States. Each District Court ruled in their favor.
On appeal to Sixth Circuit, consolidated and reversed, holding
that states have no constitutional obligation to license same-sex
marriages or to recognize same-sex marriages performed out of
State..
Kennedy’s opinion for the majority. Reversed lower court.

Dissents:
CJ Roberts, Scalia, Thomas, Alito.
Obergefell
14th Am Due Process Clause
Violated here because the right to marry is a fundamental
liberties, and it applies to same-sex couples as it does to
opposite-sex couples.
Marriage
Is inherent to the concept of individual autonomy,
Protects the most intimate association between two people,
Safeguards children and families by according legal recognition
to building a home and raising children, and
Has historically been recognized as the keystone of social order.
14th Am Equal Protection Clause
Violated here because same-sex couples should not be denied a
right protected for opposite-sex couples.
1st Am
Protects the rights of religious organizations to adhere to their
principles, but it does not allow states to deny same-sex couples
the right to marry on the same terms as those for opposite-sex
couples.
Obergefell Dissents
1) CJ Roberts
Social policy and fairness are issues for legislatures.
This decision would allow for a fundamental right to plural

marriage.
Concerned about sincere religious convictions that lead to
opposition of gay marriage.
2) Scalia
Constitutional revision by an unelected committee of nine
(actually 5).
Text and Framers’ Intent – no right to same-sex marriage.
3) Thomas
Liberty is freedom from govt action, not entitlement to govt
benefits. Dignity is innate, it does not come from our govt.
DP Clause should not be used for substantive rights.
4) Alito
Constitution is not applicable here. Leave marriage questions to
the states.
Not a Fundamental Right – not “deeply rooted in this Nation’s
history and tradition.” Citing Glucksberg.
Marriage
Loving v. Virginia (1967) (state law criminalizing interracial
marriages invalidated)
Boddie v. Connecticut (1971) (state law with no exception or
waiver for indigency for divorce filing fees invalidated)
Zablocki v. Redhall (1978) (state law requiring proof of child
support payments invalidated)
Califano v. Jobst (1977) (Fed Soc Sec provision treating
upheld)
Bowen v. Owens (1986) (Fed Soc Sec provision treating
divorced widowed spouses differently from widowed spouses
upheld)
Lawrence v. Texas (2003) (state law criminalizing sodomy
invalidated)
Hollingsworth v. Perry (2013) (standing issue – let lower

court’s invalidation of Prop 8 remain)
Windsor (2015) (Fed DOMA provision that defined marriage as
between one man and one woman invalidated)
Obergefell (2015) (state laws failing to provide for or recognize
same-sex marriages invalidated)
Equal Protection and Fundamental Rights
Equal Protection:
Is the classification already a suspect or a quasi -suspect class
according to SCOTUS?
Yes, suspect – race or national origin = Strict Scrutiny
Yes, quasi-suspect – gender, legitimacy (may sexual
orientation?) = Intermediate Scrutiny
No, but I could argue that it should be
Compare to the groups protected above:
Discrete and Insular Minority, Immutable Characteristics, Prone
to stigmatizing stereotypes, History of discrimination and
political powerlessness.
No = Rational Basis Review (age, income, mental disabilities)
Still ask if there is a discriminatory purpose, can still consider
over/under inclusivity (but not too carefully), Is the statute
rationally related to a legitimate gov interest? (It can’t be
arbitrary.)
Equal Protection and Fundamental Rights
Fundamental Rights:

Is the liberty at issue already deemed a Fundamental Right?
Yes = Strict Scrutiny
Privacy, Travel, Voting, Marriage, Procreation
No, but it should be …
Argue why by comparing to those things that are and using the
same standards. Look at its history and search for a tradition of
protection of the right.
Is it implicit in the concept of ordered liberty?
Is it deeply rooted in the Nation’s history and traditions?
No = Rational Basis
Rational Basis Review
Does the Law have a Legitimate Purpose?
Romer v. Evans
Actual Purpose Required or Conceivable Purpose Sufficient?
Cases where Laws are Deemed Arbitrary and Unreasonable
US Department of Agriculture v. Moreno
Cleburne
Types of Discrimination: Only Rational Basis Review
Age Classifications - Massachusetts Board of Retirement v.
Murgia
Discrimination Based on Disability
Wealth Discrimination
Sexual Orientation Discrimination (?)
Intermediate Review: Gender Classifications
Early Cases Approving Gender Disc
Emergence of Intermediate Scrutiny

Frontiero v. Richardson
Craig v. Boren
US v. Virginia
Gender Classifications based on Roles or Stereotypes - Rostker
v. Goldberg
Gender Classifications Benefiting Women as a Remedy
(Affirmative Action) - Califano v. Webster
Strict Scrutiny: Classifications Based on Race
Race Discrimination and Slavery before the 13th and 14th
Amendments - Dred Scot v. Sandford
The Post-Civil War Amendments
Strict Scrutiny for Discrimination based on Race and National
Origin
Proving the Existence of a Race or National Origin
Classification
Facial Classifications
Race-Specific Classifications that Disadvantage Racial
Minorities - Korematsu v. US
Racial Classifications burdening both whites and minorities -
Loving v. Virginia, Palmore v. Sidoti
Laws Requiring Separation of the Races - Plessy v. Ferguson
Initial Attack on “Separate but Equal”
Brown v. Board of Education
The Invalidation of Segregation in Other Contexts
Facially Neutral, Discriminatory Impact - McCleskey v. Kemp,
City of Mobile
Racial Classifications Benefiting Minorities – Affirmative
Action
Emergence of SS as the Test - Richmond v. J.A. Croson Co.
Fisher v. Univ. of Texas at Austin

Fundamental Rights
Fundamental Rights:
Is the liberty at issue already deemed a Fundamental Right?
Yes = Strict Scrutiny
Privacy, Travel, Voting, Marriage, Procreation
No, but it should be …
Argue why by comparing to those things that are and using the
same standards. Look at its history and search for a tradition of
protection of the right.
Is it implicit in the concept of ordered liberty?
Is it deeply rooted in the Nation’s history and traditions?
No = Rational Basis
Interpretive Limits: How should the Constitution be interpreted?
There is no agreement among Justices or Scholars.
Narrowly Circumscribed Discretion vs. Substantial Discretion
for the Court
Narrowly Circumscribed = Limit judicial power because
democracy means rule by electorally accountable officials.
Originalism, Textualists, Framers’ Specific Intent, Framers’
Abstract Intent (Scalia).
Substantial = Allow for evolution of the Text
Spectrum

2CALIFORNIA STATE UNIVERSITY, FULLERTONCollege of
Education
Department of Literacy and Reading Education
Read 290 Critical Reading, Thinking and Literacy (Web)
Spring 2018
Location: Online
Day and Time: Assignments due Wednesday and Friday at
11:59pm.
Instructor: Robin Afrasiabi
Office: College Park 570-27
E-mail: [email protected]
Phone: 949-648-8471
Office hours: Mondays 1-2 (virtual) Email response immediate.
*upon request
Technical support: Help Desk (657) 278-8888 or
[email protected]
TITANium Help: http://oasis.fullerton.edu/tutorials.aspx
Titan Help:
http://www.fullerton.edu/IT/help_desk/i ndex.asp
Table 1: Education Unit Conceptual Framework
EDUCATION UNIT CONCEPTUAL FRAMEWORK
Mission
The College of Education is committed to the preparation and
professional development of innovative and transformative
educators who advance just, equitable, and inclusive education.
As a professional community of scholar-practitioners, we
promote creativity, collaboration, and critical thinking as
fundamental to student achievement and success in a diverse
and interconnected world.

Program Outcomes and Indicators
After successful completion of a program of study, our
credential recipients and program graduates are:
1. Knowledgeable and Competent Specialists who
a) demonstrate a strong foundation of knowledge
b) implement effective practice
c) use current technologies for teaching and learning
2. Reflective and Responsive Practitioners who
a) advance just, equitable, and inclusive education
b) make informed decisions
c) participate in collaborative endeavors
d) think critically and creatively
3. Committed and Caring Professionals who
a) demonstrate leadership potential
b) maintain professional and ethical standards
c) engage in continuous improvement
READ DEPARTMENT MISSION STATEMENT FOR
UNDERGRADUATES
The Reading Program faculty believes that reading is a
developmental process, a complex meaning construction
process, a language process, and a critical thinking process.
Effective reading and learning requires an understanding of
these processes. Reading involves on-going analysis, synthesis,
and evaluation. In order to read and process information
effectively students must engage in meta-cognition so as to
raise the awareness of their own thinking in monitoring
comprehension and learning. Being life-long learners involves
making informed choices of the techniques, materials,
strategies, and approaches most appropriate for academic,
professional, and personal needs.

RESPONSE TIME
Email will be the best means of communicating with the course
instructor. The instructor will attempt to respond to all
questions sent by e-mail within a 24-hour period, Monday
through Friday and within a 48-hour period on weekends and
holidays.
COURSE DESCRIPTION
This course examines the relationship of critical reading and
critical thinking. An emphasis is placed on the development and
application of reading skills in the interpretation, analysis,
criticism and advocacy of ideas encountered in academic
reading.
STUDENT LEARNING GOALS AND RELATED OBJECTIVES
GE Core Competencies and Learning Goals for Critical
Thinking (UPS 411.201)
1. Organize one’s thoughts and communicate them clearly and
effectively, using language that demonstrates sensitivity to
gender and cultural differences.
2. Find, evaluate, select, synthesize, organize, cite and present
information and arguments clearly and effectively for a variety
of purposes and audiences.
3. Recognize and evaluate the features, functions, and contexts
of language that express and influence meaning.
4. Compare and contrast with care and accuracy the relative
merits of alternative or opposing arguments, interpretations,
assumptions, and cultural values.
5. Reflect in an open-minded manner on one’s own thinking in
relation to the ideas of others.
6. Understand the role of logic and its relation to language.

7. Understand elementary inductive and deductive processes,
including formal and informal fallacies.
8. Develop the skills to distinguish propositions and statements
of fact from issues of judgment or opinion.
9. Develop skills to advocate for ideas.
10. Develop skills to reach well-supported factual and
judgmental conclusions and the skills to successfully advocate
for these conclusions.
11. Evaluate, critique, and analyze the quality and sufficiency
of evidence and other forms of support for a position, include
recognition of underlying lines of argument.
Course objective: Students will demonstrate mastery through
writing, exams, and discussion the skills and dispositions
outlined in the learning goals above.
University GE Policy for Critical Thinking Courses (UPS
411.201)
1. READ 290 fulfills the Critical Thinking Core Competency
General Education requirement.
2. Writing assignments in READ 290 comply with General
Education policy and involve the organization and expression of
complex data or ideas. Students will receive careful and timely
evaluations of writing so that deficiencies are identified and
suggestions for improvement and/or means of remediation are
offered. Assessments of the student’s writing competence shall
be used in determining the final course grade.
ISTE /INTERNATIONAL COUNCIL FOR EXCEPTIONAL
CHILDREN STANDARDS
Our programs are informed by ISTE and/or International
Council for Exceptional Children Standards. More information
on these standards can be found at http://www.iste.org/ and
http://www.cec.sped.org/

REQUIRED TEXTSBrowne, M.N. and Keeley, S.M. Asking the
Right Questions: A Guide to Critical Thinking, second custom
ed. (or 11th edition)Barnet, S. and Bedau, H., Critical Thinking,
Reading, and Writing, custom ed.
ATTENDANCE
Physical attendance is not required in this online course. A
participation grade will be based on the weekly online activities
in which the student participates, including discussion and
various group activities.
ONLINE COURSE EXPECTATIONS AND GUIDELINES
This course is 100% online. Course material will be provided in
a variety of formats including narrated presentations, websites,
video, podcasts and Word documents.
Checklists. Students will be provided with weekly “to do”
checklists for this online course. The weekly “to do” checklists
and any additional materials needed such as lecture
presentations, will be available for each week in the appropriate
weekly block on TITANium.
Written Assignments. Specific instructions for submitting
assignments through Titanium will be provided. The course
instructor will enter feedback, comments and grades for all
assignments. These will be available for students to access on
Titanium.
Participation in all course activities is expected. A Checklist
will be posted in the appropriate Titanium Block each week.
Most assignments are due on Wednesday or Friday by 11:59pm
(Pacific Standard Time/PST) unless otherwise noted.
Your instructor will track participation in the weekly
interactions by reading all discussion posts. The weekly

participation assignments are worth approximately 20% of the
total grade for the course
Because of the intensive nature of online learning, students
should expect to allocate at least 6-10 hours per week for this
course. It is expected that each student will access the course
Titanium aminimum of three times a week to download
materials, check for announcements, post your work, and
participate in weekly interactive assignments. Students in
online courses have found these guidelines to be useful :
· Designate a place and schedule specific times for working on
the course – self-discipline is crucial to success in an online
course.
· Use the Course Calendar as a general overview of assignments
and due dates.
· Save each Checklist, and any additional materials needed to a
designated folder on your computer or keep these in a folder or
binder for easy reference.
· Familiarize yourself with all resources on TITANium – they
are there to help you.
· Check your CSUF email daily. New Announcements posted to
the TITANium will be automatically emailed to all users.
· Complete reading assignments early in the week; post your
participation assignment entry as specified in the Checklist.
· Submit only thoughtful and substantive posts to the interactive
assignments. Keep your communications concise and to the
point. Use professional language and tone, as in a face-to-face
classroom environment. To encourage responses to your post,
try concluding with a question.
GRADING POLICY AND GRADING STANDARDS FOR THE
COURSE
The Reading Department has adopted a uniform grading policy
per UPS 300.020. For undergraduate classes there will be NO
plus/minus grading. This class will use the point scale below to

determine grades.
A grade of C or better must be earned to fulfill the General
Education requirement.
A (4.0) = 600 - 540 points (100% - 90%)
B (3.0) = 539 - 480 points (89% - 80%)
C (2.0) = 479 – 420 points (79% - 70%)
D (1.0) = 419 – 360 points (69% - 60%)
F (0) = Below 360 points
In addition:
Papers must be word-processed, double-spaced, and of scholarly
quality and appearance to receive full credit.
Papers will be evaluated based on the guidelines of UPS
411.201. This includes use of rubrics to evaluate students’
organization and expression of complex data and/or ideas.
Careful evaluation with suggestions for improvement will be
provided in a timely manner so that students have an
opportunity to remediate errors on future assignments.
1. The TITANium Grade Book function will be used by the
Instructor to post grades and feedback on all course
requirements.
2. If you are unable to finish the course, it is your responsibility
to follow the appropriate procedures for dropping the course. In
the event that you need to withdraw from this course, it is your
responsibility to review the appropriate deadlines with the
Office of Admissions and Records:
http://www.fullerton.edu/admissions/currentstudent/regulations.
asp
3. Incompletes will be granted only under extreme

circumstances and students must be earning a B or better at the
time of the request for an incomplete. The instructor must be
informed as soon as possible if circumstances warrant
discontinuation of the course.
4. Except in cases of actual error, final grades are permanent. If
you need to drop this course, refer to the class schedule for the
deadlines and requirements for dropping or withdrawing from
courses.
EXTRA CREDIT OPTIONS
There are no extra credit options.
LATE ASSIGNMENTS
To receive full credit, assignments must be received on time.
Late assignments will be reduced by 10% and must be submitted
no later than one week past the due date. Weekly discussion
posts and small group activities will not be accepted late.
ASSIGNMENT DESCRIPTIONS
Participation Activities (10 @ 10 points
each)……………………………..100 points
Throughout the semester students will be required to participate
in class discussions and small group collaborations via the
discussion blog and worksheets available on TITANium.
Rubrics will be provided for these participation activi ties.
Papers (1 @ 50 points and [email protected] 100 points)
……………………....………….150 points
Students will be required to write two papers. The first of these
will be an issue exploration. In preparation for this paper,

students will explore the importance of critical thinking,
critical reading and critical action. To complete this paper,
students will be selecting an issue that they are interested in and
discussing the importance of this issue in society. The second
paper is a group collaboration on a Modified Annotated
Bibliography. To complete this paper, students will work in
groups to select and research an issue of interest to them. The
group’s research must include scholarly articles. Articles can be
accessed from the Internet, university libraries or personal
libraries of professional journals. Each group member will
contribute one entry to the completed bibliography. Rubrics will
be provided for both papers.
Presentation ………….…………………………………….....100
points
The students will work in groups or individually to develop a
presentation on a chosen topic. Groups will be required to
advocate for a position on a selected /researched issue.
Students will present their ideas in a 3-5 minute YouTube
video. A rubric will be provided.
Concept Quizzes (2 @ 50 points
each)……………………………………….100 points
Quizzes will cover the major concepts from the text and
required readings. Students will be required to apply the
concepts to new situations.
Exam #1 (Analysis)
……….…………………………………………………...50 points
Students will be required to analyze an argument by answering
questions that demonstrate their understanding of the following
concepts: issue, conclusion, reasons, ambiguity and
assumptions. Students must show their work on the analysis

worksheet provided to get credit for the exam.
Exam #2 (Analysis and Evaluation)
.………………………………………….100 points
Students will be required to analyze and evaluate an argument
by answering questions that demonstrate their understanding of
the following concepts: issue, conclusion, reasons, ambiguity,
assumptions, fallacies in the reasoning, evidence, rival causes,
omitted information and reasonable alternative conclusion.
Students must show their work on the analysis and evaluation
worksheet provided to get credit for the exam.
Total
Points………………………………………………………………60
0 points
ALTERNATE PROCEURE FOR SUBMITTING WORK
In the event of technical problems with the internet, email,
and/or Titanium, work may be submitted in these ways:
· FAX work to department office FAX at (657) 278-3110 –Attn:
JoAnne Greenbaum
· Hand Deliver or Mail work to instructor’s office or department
at:
JoAnne Greenbaum
CSUF Reading Department
P.O. Box 6868
Fullerton, CA 92834
Please contact the instructor to inform them of your problem
and decide on the best way to proceed.
SYNCRONOUS/ASYCHRONOUS/HYBRID INSTRUCTION
There is no face to face or synchronous instruction for this

course. However, group work may require synchronous
meetings with classmates at a time determined by the group.
TECHNICAL REQUIREMENTS
CSUF Helpdesk for Students
657-278-8888
[email protected]
Training
There is free online training for software and a variety of other
topics. Check out the Lynda.com link at
http://www.fullerton.edu/IT/students/software/.
Technology suggestion: Try teaching yourself to read online.
You’ll avoid having to print out long documents like our
syllabus and save yourself some money. Many PDF readers have
built-in highlighting and annotating features, including the free
Adobe PDF reader.
Student Technology Services Homepage
http://www.fullerton.edu/it/students/index.php
Screen Grab of Student Technology Services Webpage
3/28Software
As a CSUF student you have access to free software.
Information is at
http://www.fullerton.edu/IT/students/software/.
1. Microsoft 365: Word, Excel, and Powerpoint for up to five of
your devices
1. Dropbox: 50GB free storage online
1. Browser: Firefox, Chrome, Safari

1. Email client: MS Outlook, Thunderbird, Apple Mail
Note: It’s a good idea to install two different browsers on
your computer. That way if Titanium or CSUF access is not
working with one browser, you can try the other. Firefox is a
good choice for one of the two. I also use Google Chrome.
Important: Because as a CSUF student you have free access to
Microsoft 365,
1. All word processed work in this class must be submitted in
DOC or DOCX format.
1. Any work submitted as presentation slides must be submitted
in PPT, PPTX, or as a URL linked online service.’
1. Any spreadsheet submitted must be submitted in XLS, XLSX,
or PDF format.
Hardware
Computer / laptop
Internet access capability
As of November, 2015, CSUF IT recommends the following
specs for hardware for Windows machines. And of this writing,
I have not yet received recommendations for Apple
hardware.
· Intel Core 3.2Ghz i5-4570
· 8GB RAM
· 8X DVD+-/-RW
· 500GB HDD
· Intel Integrated Graphics HD Graphics 4600
NETIQUETTE REQUIREMENTS Review the “netiquette” rules
pertaining to behaviors that are appropriate for online academic
interactions. These are available at:
http://www2.nau.edu/delearn/support/tutorials/discrubrics/netiq

uette.php
UNIVERSITY INFORMATION Titanium
As a registered student you are enrolled in Titanium. You may
access Titanium for all your classes by clicking on your student
portal, found on the CSUF website. Problems? Contact (657)
278-5619. If you still need more help, contact (657) 278-8888.
Check Titanium weekly, the night before class, for any pertinent
or last minute, updated information.
Students with Special Needs
Please inform the instructor during the first week of classes
about any disability or special needs that you may have that
may require specific arrangements related to attending class
sessions, carrying out class assignments, or writing papers or
examinations. According to California State University policy,
students with disabilities must document their disabilities at the
Disability Support Services (DSS) Office in order to be
accommodated in their courses.
Academic Dishonesty Policy
Academic dishonesty includes such things cheating, inventing
false information or citations, plagiarism, and helping someone
else commit an act of academic dishonesty. It usually involves
an attempt by a student to show a possession of a level of
knowledge or skill which he/she in fact does not possess.
Cheating is defined as the act of obtaining or attempting to
obtain credit for work by the use of any dishonest, deceptive,
fraudulent, or unauthorized means. Plagiarism is defined as the
act of taking the work of another and offering it as one’s own
without giving credit to that source. An instructor who believes
that an act of academic dishonesty has occurred (1) is obligated
to discuss the matter with the student(s) involved; (2) should
possess reasonable evidence such as documents or personal
observation; and (3) may take whatever action (subject to
student appeal) he/she deems appropriate, ranging from an oral
reprimand to an F in the course. Additional information on this
policy is available from University Policy Statement 300.021

found at the UPS section of the Academic Senate website.
Emergency Contact
In the event of emergency, contact the University Police at
(657) 278-3333. Additional information can be found at the
CSUF Emergency Preparedness website.
Library Support
Students have access to all of the Pollak Library resources,
including over 200 subscription databases that index and
provide full text to academic journals and e-books. The library
has a robust interlibrary loan program that ensures that students
can get the resources they need. Students who do not visit the
campus for any classes may request that books or other print-
only materials be mailed to their homes. In addition, any CSUF
student may borrow materials from any other California State
University Library. Students also have access to 24/7 reference
assistance through email, phone, or chat, and may set up
appointments for one-on-one research consultations with a
librarian that can be conducted over the phone. Pollak Library
Assistance available for Online Students with online instruction
guidelines are available on the CSUF library website.
Titan Bites
For students facing food
insecurity, http://news.fullerton.edu/2017wi/Titan-Bites-
App.aspx describes a program initiated in Fall 2016 which
notifies students when food is available after various campus
events. More information and specific details are in that article,
including how to register: “Students interested in signing up for
Titan Bites should log in to their campus portal, click on the
"Settings" icon in the top right corner and scroll to the "Student
Account Settings" section. By clicking the "Edit" button next to
the "Join Titan Bites Free Food Program on Campus" setting,
they can designate whether they would like to receive push
notifications via email or SMS notification.”
Off Campus Resources

Off campus resources are also available to you. For example,
Orange County 2-1-1 provides referrals to a variety of services
and assistance programs. You may search their website for
services and information at www.211oc.org, email them
at [email protected], or call them toll free at 1-888-600-4357.
They are available 24/7 and speak multiple languages.Policy on
Retention of Student Work
Student work will be returned after grading via TITANium. It is
the student’s responsibility to access the work and review the
feedback and grades given to the work. Work will be retained
for one semester after grades have been posted.
The above policy is in compliance with UPS 320.005.
Authentication of Student Work (per UPS 411.104, Section
II.B.6.e)
Authentication of student work is important in an online class.
This is accomplished by requiring multiple measures of student
performance, including discussion board postings, individual
email conversations, and the multiple assignments you are
required to complete
TENTATIVE SCHEDULE
The following tentative outline is designed to give you an idea
of the scope and pace of this course. Some of the assignments
may be changed or rearranged as appropriate throughout the
semester.
ARQ refers to the Brown & Keely book, Asking the Right
Questions: A Guide to Critical Thinking.
CTRW refers to the Barnet & Bedau book, Critical Thinking,
Reading and Writing: A Brief Guide to Argument.
Most assignments are due on Wednesdays and Fridays by
11:59pm. Be sure to check due dates each week to ensure that
you receive full credit for submitting assignments on time.

Date
Topic
Assignment Due
Week 1
January 19-January 26
Introduction to Critical Reading/Thinking
Course Requirements/Overview
TITANium Site Overview
Purchase books. Create profile
CTRW pp. 34-52
Class Discussion
Week 2
January 26-February 2
Levels of Thinking/Reading Development/ Reading Process
Role of Adult Development
Definition of Critical Thinking, Critical Reading, Critical
Action
CTRW pp.3-20
Facione Article
Group Collaboration
Worksheet
Week 3
February 2-February 9
The Benefit and Manner of Asking the Right Questions
Speed Bumps Interfering with Critical Thinking

ARQ Ch.1 & 2
Class Discussion
Week 4
February 9-
February 16
Issue, Conclusion, Reasons
Paper #1 Issue Exploration (Due Feb.16 -11:59 p.m.)
ARQ-Ch.3 & 4
Paper #1 DUE
Week 5
February 16- February 23
Ambiguity and Assumptions
ARQ – Ch. 5 & 6 CTRW – Article pp117-120
Class Discussion
Week 6
February 23-
March 2
Practice Analysis Worksheet
Sample Article for Analysis (posted)
Group Collaboration Worksheet
Week 7
March 2-March 9

Concept Quiz ARQ-Chapters 1 through 6
(Due: by Wed. March 711:59 p.m.)
Exam – Analysis of Argument
(Open Fri. March 9 from 12 a.m. to 11:59 p.m.)
Quiz 1
Exam 1
Week 8
March 9-March 16
Fallacies
Intro. Paper #2 - Researched Perspectives
Select Issue / Review Modified Annotated Bibliography Model
ARQ Ch.7
CTRW-383-391
Paper 2 Worksheet 1
Week 9
March 16-
March 23
Evidence / Statistics
Research Issue / Collect Abstracts / Draft Modified Annotated
Bibliography / Peer Review Drafts
SPRING BREAK
(March 23-30)
ARQ-Ch.8, 9, 11

CTRW pp.91-102, 313-318,
Paper 2 Worksheet 2
Week 10
March 30-April 6
Collaborative Modified Annotated Bibliography
(Due Friday, April 6th at 11:59 p.m. )
Paper #2 due
Week 11
April 6-April 13
Presentation / An Advocate For Change (Story, Research,
Proposal)
Presentation Worksheet
Week 12
April 13-
April 20
Presentations (Due by 11:59 p.m. April 20—please submit using
the Week 13 submission file)
Presentations Due!
Week 13
April 20-
April 27

Rival causes, omitted information, multiple conclusions
ARQ-Ch. 12, 13
Class Discussion
Week 14
April 27-
May 4
Practice evaluation of article
Sample Article (posted)
Practice Analysis and Evaluation worksheet due
Week 15
May 4-
May 11
Concept Quiz ARQ – Chapters 7 through 13 (May 9)
Exam –Analysis/Evaluation of Argument (May 11)
Exam Analysis and Evaluation Worksheet dueDue Dates
Assignments
Paper #1……………..Feb. 16
Paper #2……………..April 6
Due by 11:59 pm on due date.
Tests
Exam 1…………………Mar. 9
Exam 2……………… . .May 11
Presentation……………Apr. 20
(Exams will be available from 12:00am until 11:55pm only.)

Concept Quizzes
Quiz 1……………………Mar. 7
Quiz 2……………………May 9
(Quizzes will be available from Saturday until Wednesday of
weeks 7 and 15 respectively.)
Updated August 2017
Information Literacy Project 3: Integrating Quotatio ns
Due: 9/21
Name:
Date:
Instructions
Part 1:
From the library, physically borrow orcheck out an electronic
book relevant to your research project. Read the introduction,
conclusion, and at least one chapter from the book. (Please
note: the chapter you select does not need to be the first
chapter. You should decide which chapter you believe will be
most valuable to your project after reading the introduction and
the conclusion). Then, using your Everyday Writer, cite the
book in MLA format in the space provided. Select three sections
of text from your reading that accurately, thoroughly, and

ethically represent the argument of the source. Using these
sections, create several quotations and write a 250+ word
paragraph explaining the book’s argument. Make sure to
properly use and integrate your quotes.
Part 2:
Complete each category in the space provided.
· Authority: How does the author assure the reader that the
information presented is accurate and complete? Click through
links, look up citations, or verify important facts in the book
through a web search. Are the links, citations, or facts presented
accurate and relevant? Look up other sources written by the
same author or biographical information about the author. What
are their credentials?
· Bias: Explain the commitments of the author. What do they
stand to gain from writing this source? Who is their audience,
and how can you tell? What kinds of organizations, ideas, or
beliefs do they associate themselves with? How do you know?
Are multiple viewpoints presented and addressed, or only the
viewpoints of the author?
· Context: Examine the website, journal, or other context in
which the article is written. Is this context credible? How does
this context assure the reader that the content it publishes is
accurate and well-researched?What sort of sources does this
context generally use (i.e., scholarly journals, popular press,
twitter, etc.)? How do these factors shape your view of this
context?
· Date: What is the date in which the book was published, and
how much does this matter for your subject? Explain your
reasoning.
Part 3:
Answer each reflection section in complete sentences in the
space provided. You will need to look at your ILP 1 and 2 in
order to answer some questions.

Part 1: Citation & Summary
Citation:
Summary (approx. 250 words, including quotations):
Part 2: Source Analysis
Authority:
Bias:
Context:
Date:
Part 3: Research Reflection
1. What steps did you go through to locate this book? What kind
of source is it (i.e., more informative or opinionated, and how
do you know?) What databases or search engines did you use?
Was searching for this source easier or more difficult than
locating sources for the previous ILP? Explain.
Response:
1. What knowledge have you gained from reading this source
compared to the sources you looked at in the previous ILP, and
has this knowledge affected your beliefs? Explain.
Response:
1. How can you use this source in your project? (To answer this
question, you’ll need to consider if you will use this sour ce in
your project, and why you will or will not utilize it.) Which
parts of the source are most useful for your project and why?
How does this source relate to the sources you have already
found?
Response:

California Judicial Branch
Page 1 of 6
FACT SHEET January 2014
The California court system—the largest in the nation, with
more than 2,000
judicial officers, approximately 17,000 court employees, and
nearly 8.5
million cases—serves over 38 million people. The state
Constitution vests
the judicial power of California in the Supreme Court, Courts of
Appeal, and
superior courts. The Constitution also provides for the
formation and
functions of the Judicial Council, the policymaking body for the
state courts
and other agencies.
Supreme Court

The Supreme Court of California is the state’s highest court. Its
decisions are binding
on all other California courts. The court conducts regular
sessions in San Francisco,
Los Angeles, and Sacramento; it also occasionally holds special
sessions elsewhere.
Membership, qualifications
One Chief Justice and six associate justices are appointed by the
Governor, confirmed
by the Commission on Judicial Appointments, and confirmed by
the public at the
next general election. A justice also comes before the voters at
the end of his or her
12-year term. To be eligible for appointment, a person must
have been a member of
the State Bar of California or a judge of a court in this state for
at least 10 years.
Jurisdiction
The Supreme Court has original jurisdiction in proceedings for
extraordinary relief in
the form of mandamus, certiorari, and prohibition. The court
also has original juris-
diction in habeas corpus proceedings.
The state Constitution gives the Supreme Court the authority to
review decisions of
the state Courts of Appeal. This reviewing power enables the
Supreme Court to
decide important legal questions and to maintain uniformity in
the law. The court
selects specific issues for review, or it may decide all the issues
in a case. The Consti-

tution also directs the high court to review all cases in which a
trial court has pro-
ADMINISTRATIVE OFFICE
OF THE COURTS
455 Golden Gate Avenue
San Francisco, CA
94102-3688
Tel 415-865-4200
TDD 415-865-4272
Fax 415-865-4205
www.courts.ca.gov
Page 2 of 6
nounced a judgment of death. Under state law, these cases are
automatically appealed
directly from a trial court to the Supreme Court.
The Supreme Court adopts rules governing the conduct of
judges, both on and off
the bench, and the conduct of judicial candidates in their
campaigns. These rules are
known as the Code of Judicial Ethics.

The Supreme Court has discretionary review of decisions by the
Commission on
Judicial Performance to admonish, censure, or remove a judge
for misconduct. The
Supreme Court also reviews the recommendations of the State
Bar of California
concerning the disciplining of attorneys for misconduct. The
only other matters
coming directly to the Supreme Court are appeals from
decisions of the Public
Utilities Commission.
The Supreme Court received 9,237 filings during fiscal year
2011–2012. Decisions of
the Supreme Court are published in the California Official
Reports and are available
online at www.courtinfo.ca.gov/opinions.htm.
Courts of Appeal
Established by a constitutional amendment in 1904, the Courts
of Appeal are Cali-
fornia’s intermediate courts of review. California has six
appellate districts (three of
which have multiple divisions) and a total of 105 justices. The
district headquarters
are situated as follows: First Appellate District, San Francisco;
Second Appellate
District, Los Angeles; Third Appellate District, Sacramento;
Fourth Appellate
District, San Diego; Fifth Appellate District, Fresno; and Sixth
Appellate District, San
Jose. The Legislature has constitutional authority to create new
appellate districts and
divisions.

Each district (or division, in the case of the First, Second, and
Fourth Appellate
Districts) has a presiding justice and two or more associate
justices. Appellate justices
are appointed by the Governor and confirmed by the
Commission on Judicial
Appointments. The same rules that govern the selection of
Supreme Court justices
apply to those serving on the Courts of Appeal.
Jurisdiction
Courts of Appeal have appellate jurisdiction in cases where
superior courts have origi-
nal jurisdiction and in certain other cases prescribed by statute.
Like the Supreme
http://www.courtinfo.ca.gov/opinions
Page 3 of 6
Court, they have original jurisdiction in habeas corpus,
mandamus, certiorari, and
prohibition proceedings. There were 24,118 filings in the Courts
of Appeal during
fiscal year 2011–2012.
The Courts of Appeal also receive appeals (technically, writ
proceedings) from

decisions of the Workers’ Compensation Appeals Board, the
Agricultural Labor
Relations Board, and the Public Employment Relations Board.
Cases are decided by
three-judge panels. Decisions of the panels, known as opinions,
are published in the
California Appellate Reports if they meet certain criteria. In
general, an opinion is
published if it establishes a new rule of law, involves a lega l
issue of continuing public
interest, criticizes existing law, or makes a significant
contribution to legal literature.
During fiscal year 2011–2012, approximately 8 percent of Court
of Appeal opinions
were certified as meeting the criteria for publication.
Superior Courts
Prior to June 1998, California’s trial courts consisted of
superior and municipal
courts, each with its own jurisdiction and with its number of
judges fixed by the
Legislature. On June 2, 1998, California voters approved a
constitutional amendment
permitting the judges in each county to unify their superior and
municipal courts
into a single superior court with jurisdiction over all case types.
The goal of court uni-
fication is to improve services to the public by consolidating
court resources, offering
greater flexibility in case assignments, and saving taxpayer
dollars. By February 2001,
judges in all 58 counties had voted to unify their trial courts.

The superior courts have1,7051 authorized judges and 342 (in
terms of full-time
equivalents) authorized commissioners and referees. The
California Legislature
determines the number of judges in each court. Superior court
judges serve six-year
terms and are elected by county voters on a nonpartisan ballot at
a general election.
Vacancies are filled through appointment by the Governor. A
superior court judge
must have been an attorney admitted to practice law in
California or have served as a
judge of a court of record in this state for at least 10 years
immediately preceding
election or appointment.
1 In 2007, AB 159 (Stats. 2007, ch. 722) created an additional
50 judgeships, pending appropriation by
the Legislature. Funding has been delayed for these judgeships,
so although the 50 judgeships are
included in the total number of authorized judgeships, they are
ineligible to be filled until funding is
provided.
Page 4 of 6
Jurisdiction
Superior courts have trial jurisdiction over all criminal and civil
cases. During 2011–

2012, 8.5 million cases were filed in these courts.
Court System Agencies
The Constitution also provides for agencies concerned with
judicial administration:
Judicial Council, Commission on Judicial Appointments,
Commission on Judicial
Performance, and Habeas Corpus Resource Center. Their duties
are described below.
Judicial Council
Chaired by the Chief Justice, the Judicial Council is the
governing body of the Cali-
fornia courts. The California Constitution directs the Judicial
Council to provide
policy guidelines to the courts, make recommendations annually
to the Governor and
Legislature, and adopt and revise California Rules of Court in
the areas of court
administration, practice, and procedure. The council performs
its constitutional and
other functions with the support of its staff agency, the
Administrative Office of
the Courts.
New judicial members of the council and its committees are
selected through a nomi-
nating procedure intended to attract applicants from throughout
the legal system and
to result in a membership that is diverse in experience, gender,
ethnic background,
and geography.
The 21 voting members of the Judicial Council consist of the

Chief Justice, 14
judicial officers appointed by the Chief Justice, 4 attorney
members appointed by the
State Bar Board of Trustees, and 1 member from each house of
the Legislature. The
council also has approximately 11 advisory members who
include court executives or
administrators, the chair of the council’s Trial Court Presiding
Judges Advisory
Committee, and the president of the California Judges
Association. Staggered terms,
with one-third of the council’s membership changing each year,
ensure continuity
while creating opportunities for new participation and input.
The council performs
most of its work through internal committees and advisory
committees and task
forces.
Commission on Judicial Appointments
The Governor’s appointees to the Supreme Court and the Courts
of Appeal must be
confirmed by the Commission on Judicial Appointments. The
commission has three
Page 5 of 6
members: the Chief Justice, the Attorney General, and the
senior presiding justice of
the Court of Appeal of the affected appellate district or—when

a Supreme Court
appointee is being considered—the state’s senior presiding
justice of the Courts of
Appeal. The commission convenes after the Governor nominates
or appoints a
person to fill a vacancy on either the Supreme Court or a Court
of Appeal. The
commission holds one or more public hearings to review the
appointee’s qualifica-
tions and may confirm or veto the appointment. No appellate
appointment is final
until the commission has filed its approval with the Secretary of
State.
Commission on Judicial Performance
The California Constitution provides for a Commission on
Judicial Performance,
which deals with the censure, removal, retirement, or public or
private
admonishment of judges and commissioners for either
misconduct or inability to
perform their duties on account of permanent disability. The
commission has
authority to conduct proceedings against any California judge
after it investigates
cases of willful misconduct in office, persistent failure or
inability to perform the
duties of office, habitual intemperance, conduct prejudicial to
the administration of
justice that may be detrimental to the judicial office itself, or a
disability of a
permanent character that seriously interferes with performance
of duties.
Effective March 1, 1995, Proposition 190 (passed in the

November 1994 election)
authorized the commission to remove, retire, or censure a judge.
Automatic Supreme
Court review was eliminated, although the court is permitted
discretionary review. All
commission proceedings are required to be public after formal
charges are filed. The
commission is composed of 11 members: 1 justice of a Court of
Appeal and 2 judges
appointed by the Supreme Court, 4 members appointed by the
Governor (2 attorneys
and 2 nonattorney public members), 2 public members
appointed by the Assembly
Speaker, and 2 public members appointed by the Senate Rules
Committee.
Appointments are for four-year terms.
Habeas Corpus Resource Center
The Habeas Corpus Resource Center handles state and federal
habeas corpus pro-
ceedings in capital cases and provides training and resources for
private attorneys who
take these cases.
Page 6 of 6
California Attorneys
State Bar of California

The State Bar of California is a public corporation, established
within article VI, the
judicial article, of the California Constitution. The State Bar
acts as the administra-
tive arm of the Supreme Court in matters of attorney admission
and discipline. With
nearly 248,000 members, the State Bar of California is by far
the largest state bar in
the country.
The State Bar’s Committee of Bar Examiners administers the
bar examination and
other requirements for admission to the practice of law and
certifies qualified
applicants to the Supreme Court for admission.
The State Bar’s Board of Trustees formulates rules of
professional conduct that, once
approved by the Supreme Court, are binding on all California
lawyers.
The State Bar’s Office of Chief Trial Counsel investigates
allegations of attorney
misconduct and may initiate disciplinary proceedings in the
State Bar Court, which
may impose a reproval, or recommend to the Supreme Court
that a lawyer be
disbarred or suspended. Decisions of the State Bar Court are
subject to review by the
Supreme Court.
Commission on Judicial Nominees Evaluation
State law requires the State Bar’s Commission on Judicial
Nominees Evaluation to
review the qualifications of persons being considered by the

Governor for
appointment to the courts.
Contact:
Office of Communications, 415-865-7740
Additional resources:
General court information, www.courts.ca.gov/courts.htm
Supreme Court, www.courts.ca.gov/supremecourt.htm
Courts of Appeal, www.courts.ca.gov/courtsofappeal.htm
Superior courts, www.courts.ca.gov/superiorcourts.htm
http://www.courts.ca.gov/supremecourt.htm
http://www.courts.ca.gov/courtsofappeal.htm
http://www.courts.ca.gov/superiorcourts.htm
1
SUPREME COURT OF THE UNITED STATES
5 U.S. 137
Marbury v. Madison
Mr. Chief Justice MARSHALL delivered the opinion
of the Court.
[In the last weeks of his administration, President
John Adams nominated the plaintiff, William
Marbury, to serve as a justice of the peace,
a low-level judicial officer. The Senate
confirmed
him, and all that remained to be done was for
Secretary of State John Marshall to deliver a

physical document, called a commission, to
Marbury.
President Adams, knowing that his political party would
soon lose both the presidency and the
majority of the House and Senate, rushed to
nominate as many judges as he could.
He
nominated Marshall, the man who was to deliver
the commission to Marbury, to serve as
Chief
Justice of the United States Supreme Court.
In the end-of-administration rush, Thomas Jefferson
succeeded Adams as President before the
physical proof of confirmation, called a
commission, was delivered to Marbury. James
Madison,
the defendant in this case, was the successor to
Marshall as Secretary of State. Madison refused
to deliver the commission, thus preventing
Marbury from becoming a justice of the peace.
Marbury petitioned the United States Supreme Court
to issue an order, called a writ of
mandamus, which would have forced Madison to
deliver the commission. Madison responded
that the United States Supreme Court did not
have the power to order him to deliver
the
commission. Chief Justice John Marshall, the very
same man who neglected to deliver the
commission, proceeded to writeperhaps the most famous

opinion in United States history.]
. . . The peculiar delicacy of this case,
the novelty of some of its circumstances, and
the real
difficulty attending the points which occur in it
require a complete exposition of the
principles
on which the opinion to be given by the
Court is founded.
. . .
In the order in which the Court has viewed
this subject, the following questions have been
considered and decided.
1. Has the applicant a right to the commission he
demands?
2. If he has a right, and that right has been
violated, do the laws of his country afford
him a remedy?
3. If they do afford him a remedy, is it a
mandamus issuing from this court?
2
[I.]
The first object of inquiry is:

1. Has the applicant a right to the commission he
demands?
[Madison argued that Thomas Jefferson, the new
President, could withdraw the commission,
since it had never been delivered.]
[Marbury’s] right originates in an act of Congress
passed in February, 1801, concerning the
District of Columbia.
After dividing the district into two counties, the
eleventh section of this law enacts,
that there shall be appointed in and for each of the
said counties such number of
discreet [sic] persons to be justices of the peace
as the President of the United States
shall, from time to time, think expedient, to
continue in office for five years.
It appears from the affidavits that, in compliance
with this law, a commission for William
Marbury as a justice of peace for the County
of Washington was signed by John Adams,
then
President of the United States, after which the
seal of the United States was affixed to it,
but
the commission has never reached the person
for whom it was made out.
In order to determine whether he is entitled to
this commission, it becomes necessary to
inquire whether he has been appointed to the office.
For if he has been appointed, the law

continues him in office for five years, and he is
entitled to the possession of those
evidences of
office, which, being completed, became his
property.
The second section of the second article of
the Constitution declares,
The President shall nominate, and, by and with the advice
and consent of the Senate,
shall appoint ambassadors, other public ministers and
consuls, and all other officers of
the United States, whose appointments are not
otherwise provided for.
The third section declares, that "He shall commission all
the officers of the United States."
An act of Congress directs the Secretary of State to
keep the seal of the United States, to make
out and record, and affix the said seal to all civil
commissions to officers of the United States
to
be appointed by the President, by and with the consent
of the Senate, or by the President
alone; provided that the said seal shall not be affixed
to any commission before the same shall
have been signed by the President of the United
States.
3

These are the clauses of the Constitution and
laws of the United States which affect
this part of
the case. They seem to contemplate three distinct
operations:
1. The nomination. This is the sole act of the
President, and is completely voluntary.
2. The appointment. This is also the act of the
President, and is also a voluntary act,
though it can only be performed by and with the
advice and consent of the Senate.
3. The commission. To grant a commission to a
person appointed might perhaps be
deemed a duty enjoined by the Constitution. "He
shall," says that instrument,
"commission all the officers of the United States."
The acts of appointing to office and
commissioning the person appointed can scarcely be
considered as one and the same, since the power
to perform them is given in two separate
and
distinct sections of the Constitution.
. . .
Some point of time must be taken when the
power of the Executive over an officer, not
removable at his will, must cease. That point of
time must be when the constitutional power of

appointment has been exercised. And this power has
been exercised when the last act required
from the person possessing the power has been
performed. This last act is the signature of
the
commission.
. . .
The commission being signed, the subsequent
duty of the Secretary of State is prescribed by
law, and not to be guided by the will of the
President. He is to affix the seal of the United
States
to the commission, and is to record it.
. . .
It is therefore decidedly the opinion of the Court
that, when a commission has been signed by
the President, the appointment is made, and that
the commission is complete when the seal of
the United States has been affixed to it by
the Secretary of State.
. . .
The discretion of the Executive is to be exercised
until the appointment has been made. But
having once made the appointment, his power
over the office is terminated in all cases,
where
by law the officer is not removable by him.

The right to the office is then in the person
appointed, and he has the absolute, unconditional
power of accepting or rejecting it.
4
Mr. Marbury, then, since his commission was signed by
the President and sealed by the
Secretary of State, was appointed, and as the
law creating the office gave the officer a
right to
hold for five years independent of the Executive,
the appointment was not revocable, but
vested in the officer legal rights which are
protected by the laws of his country.
To withhold the commission, therefore, is an act
deemed by the Court not warranted by law,
but violative of a vested legal right.
[II.]
This brings us to the second inquiry, which is:
2. If he has a right, and that right has been
violated, do the laws of his country afford
him a
remedy?
The very essence of civil liberty certainly consists in
the right of every individual to claim the

protection of the laws whenever he receives an injury.
One of the first duties of government is
to afford that protection. In Great Britain,
the King himself is sued in the respectful form of
a
petition, and he never fails to comply with the
judgment of his court.
In the third volume of his Commentaries, page 23,
Blackstone states two cases in which a
remedy is afforded by mere operation of law.
"In all other cases," he says,
it is a general and indisputable rule that where
there is a legal right, there is also a legal
remedy by suit or action at law whenever that
right is invaded.
. . .
The Government of the United States has been
emphatically termed a government of laws,
and
not of men. It will certainly cease to deserve
this high appellation if the laws furnish no
remedy
for the violation of a vested legal right.
. . .
Is the act of delivering or withholding a
commission to be considered as a mere
political act
belonging to the Executive department alone, for

the performance of which entire confidence
is placed by our Constitution in the Supreme
Executive, and for any misconduct respecting
which the injured individual has no remedy?
5
That there may be such cases is not to be
questioned, but that every act of duty to be
performed in any of the great departments of
government constitutes such a case is not to
be
admitted.
. . .
By the Constitution of the United States, the
President is invested with certain important
political powers, in the exercise of which he is
to use his own discretion, and is accountable
only
to his country in his political character and to
his own conscience. To aid him in the
performance of these duties, he is authorized to
appoint certain officers, who act by his
authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever
opinion may be entertained of the manner in
which executive discretion may be used, still there
exists, and can exist, no power to control

that discretion. The subjects are political. They respect
the nation, not individual rights, and,
being entrusted to the Executive, the decision of
the Executive is conclusive. The application of
this remark will be perceived by adverting to the
act of Congress for establishing the
Department of Foreign Affairs. This officer, as
his duties were prescribed by that act, is to
conform precisely to the will of the President. He is
the mere organ by whom that will is
communicated. The acts of such an officer, as an
officer, can never be examinable by the
Courts.
But when the Legislature proceeds to impose on
that officer other duties; when he is
directed
peremptorily to perform certain acts; when the
rights of individuals are dependent on the
performance of those acts; he is so far the
officer of the law, is amenable to the laws
for his
conduct, and cannot at his discretion, sport away
the vested rights of others.
The conclusion from this reasoning is that, where
the heads of departments are the political or
confidential agents of the Executive, merely to
execute the will of the President, or rather to
act
in cases in which the Executive possesses a
constitutional or legal discretion, nothing can be

more perfectly clear than that their acts are only politically
examinable. But where a specific
duty is assigned by law, and individual rights depend
upon the performance of that duty, it
seems equally clear that the individual who considers
himself injured has a right to resort to
the
laws of his country for a remedy.
If this be the rule, let us inquire how it applies
to the case under the consideration of the
Court.
The power of nominating to the Senate, and
the power of appointing the person
nominated,
are political powers, to be exercised by the
President according to his own discretion. When
he
has made an appointment, he has exercised his
whole power, and his discretion has been
completely applied to the case. If, by law, the
officer be removable at the will of the
President,
then a new appointment may be immediately made,
and the rights of the officer are
terminated. But as a fact which has existed
cannot be made never to have existed,
the
appointment cannot be annihilated, and
consequently, if the officer is by law not
removable at

6
the will of the President, the rights he has
acquired are protected by the law, and are not
resumable by the President. They cannot be extinguished
by Executive authority, and he has
the privilege of asserting them in like manner as if
they had been derived from any other
source.
The question whether a right has vested or not is,
in its nature, judicial, and must be tried by
the judicial authority. . . .
. . .
[III.]
It remains to be inquired whether,
3. He is entitled to the remedy for which he
applies. This depends on:
1. The nature of the writ applied for, and
2. The power of this court.
[III.A.]
1. The nature of the writ.
Blackstone, in the third volume of his
Commentaries, page 110, defines a mandamus to
be
a command issuing in the King's name from

the Court of King's Bench, and directed to
any person, corporation, or inferior court of
judicature within the King's dominions
requiring them to do some particular thing therein
specified which appertains to their
office and duty, and which the Court of King's
Bench has previously determined, or at
least supposes, to be consonant to right and justice.
Lord Mansfield, in 3 Burrows, 1266, in the
case of The King v. Baker et al., states
with much
precision and explicitness the cases in which
this writ may be used.
"Whenever," says that very able judge,
there is a right to execute an office, perform a
service, or exercise a franchise (more
especially if it be in a matter of public
concern or attended with profit), and a person
is
kept out of possession, or dispossessed of such
right, and has no other specific legal
remedy, this court ought to assist by mandamus,
upon reasons of justice, as the writ
expresses, and upon reasons of public policy, to
preserve peace, order and good
government.
7
In the same case, he says,

this writ ought to be used upon all occasions where
the law has established no specific
remedy, and where in justice and good government
there ought to be one.
In addition to the authorities now particularly
cited, many others were relied on at
the bar
which show how far the practice has conformed to
the general doctrines that have been just
quoted.
This writ, if awarded, would be directed to an
officer of government, and its mandate to
him
would be, to use the words of Blackstone,
to do a particular thing therein specified, which
appertains to his office and duty and
which the Court has previously determined or
at least supposes to be consonant to right
and justice.
Or, in the words of Lord Mansfield, the
applicant, in this case, has a right to execute an
office of
public concern, and is kept out of possession of
that right.
These circumstances certainly concur in this case.
Still, to render the mandamus a proper
remedy, the officer to whom it is to be
directed must be
one to whom, on legal principles, such writ may be

directed, and the person applying for it
must be without any other specific and legal remedy.
1. With respect to the officer to whom it
would be directed. The intimate political
relation,
subsisting between the President of the United States
and the heads of departments,
necessarily renders any legal investigation of the
acts of one of those high officers peculiarly
irksome, as well as delicate, and excites some
hesitation with respect to the propriety of
entering into such investigation. Impressions are often
received without much reflection or
examination, and it is not wonderful that, in such a
case as this, the assertion by an individual of
his legal claims in a court of justice, to which
claims it is the duty of that court to attend,
should,
at first view, be considered by some as an
attempt to intrude into the cabinet and to
intermeddle with the prerogatives of the Executive.
It is scarcely necessary for the Court to
disclaim all pretensions to such a jurisdiction.
An
extravagance so absurd and excessive could not
have been entertained for a moment. The
province of the Court is solely to decide on
the rights of individuals, not to inquire
how the
Executive or Executive officers perform duties in
which they have a discretion. Questions, in
their nature political or which are, by the

Constitution and laws, submitted to the
Executive,
can never be made in this court.
But, if this be not such a question; if so far
from being an intrusion into the secrets of
the
cabinet, it respects a paper which, according to
law, is upon record, and to a copy of which
the
8
law gives a right, on the payment of ten
cents; if it be no intermeddling with a
subject over
which the Executive can be considered as having
exercised any control; what is there in the
exalted station of the officer which shall bar a
citizen from asserting in a court of justice
his
legal rights, or shall forbid a court to listen to
the claim or to issue a mandamus
directing the
performance of a duty not depending on Executive
discretion, but on particular acts of
Congress and the general principles of law?
. . .
[III.B]
This, then, is a plain case of a mandamus, either
to deliver the commission or a copy of it

from
the record, and it only remains to be inquired:
Whether it can issue from this Court.
The act to establish the judicial courts of the
United States authorizes the Supreme Court to
issue writs of mandamus, in cases warranted by
the principles and usages of law, to any courts
appointed, or persons holding office, under
the authority of the United States.
The Secretary of State, being a person, holding
an office under the authority of the United
States, is precisely within the letter of the
description, and if this Court is not
authorized to
issue a writ of mandamus to such an officer, it
must be because the law is unconstitutional,
and
therefore absolutely incapable of conferring the
authority and assigning the duties which its
words purport to confer and assign.
The Constitution vests the whole judicial power of
the United States in one Supreme Court,
and
such inferior courts as Congress shall, from time to
time, ordain and establish. This power is
expressly extended to all cases arising under
the laws of the United States; and
consequently, in
some form, may be exercised over the present case,

because the right claimed is given by a
law
of the United States.
In the distribution of this power. it is
declared that
The Supreme Court shall have original jurisdiction in
all cases affecting ambassadors,
other public ministers and consuls, and those in
which a state shall be a party. In all
other cases, the Supreme Court shall have appellate
jurisdiction.
It has been insisted at the bar, that, as the original
grant of jurisdiction to the Supreme and
inferior courts is general, and the clause
assigning original jurisdiction to the Supreme
Court
contains no negative or restrictive words, the power
remains to the Legislature to assign
original jurisdiction to that Court in other cases
than those specified in the article which
has
been recited, provided those cases belong to
the judicial power of the United States.
9
. . . If Congress remains at liberty to
give this court appellate jurisdiction where the
Constitution
has declared their jurisdiction shall be original, and
original jurisdiction where the Constitution

has declared it shall be appellate, the distribution of
jurisdiction made in the Constitution, is
form without substance.
. . .
When an instrument organizing fundamentally a
judicial system divides it into one Supreme
and
so many inferior courts as the Legislature
may ordain and establish, then enumerates its
powers, and proceeds so far to distribute them as to
define the jurisdiction of the Supreme
Court by declaring the cases in which it
shall take original jurisdiction, and that in others
it shall
take appellate jurisdiction, the plain import of the
words seems to be that, in one class of
cases,
its jurisdiction is original, and not appellate; in
the other, it is appellate, and not original. If
any
other construction would render the clause
inoperative, that is an additional reason for
rejecting such other construction, and for adhering to
the obvious meaning.
To enable this court then to issue a mandamus, it
must be shown to be an exercise of
appellate
jurisdiction, or to be necessary to enable them to
exercise appellate jurisdiction.
It has been stated at the bar that the appellate
jurisdiction may be exercised in a variety of

forms, and that, if it be the will of the
Legislature that a mandamus should be
used for that
purpose, that will must be obeyed. This is true; yet
the jurisdiction must be appellate, not
original.
It is the essential criterion of appellate jurisdiction
that it revises and corrects the proceedings
in a cause already instituted, and does not create
that case. Although, therefore, a mandamus
may be directed to courts, yet to issue such a
writ to an officer for the delivery of a
paper is, in
effect, the same as to sustain an original action
for that paper, and therefore seems not to
belong to appellate, but to original jurisdiction.
Neither is it necessary in such a case as
this to
enable the Court to exercise its appellate
jurisdiction.
The authority, therefore, given to the Supreme Court
by the act establishing the judicial courts
of the United States to issue writs of mandamus
to public officers appears not to be
warranted
by the Constitution, and it becomes necessary to
inquire whether a jurisdiction so conferred
can be exercised.
The question whether an act repugnant to the
Constitution can become the law of the land is
a
question deeply interesting to the United States,
but, happily, not of an intricacy proportioned

to its interest. It seems only necessary to
recognise certain principles, supposed to have
been
long and well established, to decide it.
That the people have an original right to establish
for their future government such principles
as, in their opinion, shall most conduce to their own
happiness is the basis on which the whole
American fabric has been erected. The exercise of
this original right is a very great exertion; nor
10
can it nor ought it to be frequently repeated.
The principles, therefore, so established are
deemed fundamental. And as the authority from which
they proceed, is supreme, and can
seldom act, they are designed to be permanent.
This original and supreme will organizes the government
and assigns to different departments
their respective powers. It may either stop here or
establish certain limits not to be
transcended by those departments.
The Government of the United States is of
the latter description. The powers of the
Legislature
are defined and limited; and that those limits
may not be mistaken or forgotten, the
Constitution is written. To what purpose are powers
limited, and to what purpose is that
limitation committed to writing, if these limits

may at any time be passed by those
intended to
be restrained? The distinction between a
government with limited and unlimited powers is
abolished if those limits do not confine the
persons on whom they are imposed, and if
acts
prohibited and acts allowed are of equal obligation.
It is a proposition too plain to be
contested
that the Constitution controls any legislative act
repugnant to it, or that the Legislature may
alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground.
The Constitution is either a superior,
paramount law, unchangeable by ordinary means, or
it is on a level with ordinary legislative
acts, and, like other acts, is alterable when the
legislature shall please to alter it.
If the former part of the alternative be true,
then a legislative act contrary to the
Constitution is
not law; if the latter part be true, then written
Constitutions are absurd attempts on the part of
the people to limit a power in its own nature
illimitable.
Certainly all those who have framed written
Constitutions contemplate them as forming the
fundamental and paramount law of the nation,
and consequently the theory of every such
government must be that an act of the Legislature

repugnant to the Constitution is void.
This theory is essentially attached to a written
Constitution, and is consequently to be
considered by this Court as one of the
fundamental principles of our society. It is
not, therefore,
to be lost sight of in the further consideration of
this subject.
If an act of the Legislature repugnant to the
Constitution is void, does it, notwithstanding its
invalidity, bind the Courts and oblige them to
give it effect? Or, in other words, though it
be not
law, does it constitute a rule as operative as if it
was a law? This would be to overthrow in
fact
what was established in theory, and would seem,
at first view, an absurdity too gross to be
insisted on. It shall, however, receive a more
attentive consideration.
It is emphatically the province and duty of the
Judicial Department to say what the law is.
Those
who apply the rule to particular cases must, of
necessity, expound and interpret that rule. If
two laws conflict with each other, the Courts must
decide on the operation of each.
11

So, if a law be in opposition to the
Constitution, if both the law and the Constitution
apply to a
particular case, so that the Court must either decide
that case conformably to the law,
disregarding the Constitution, or conformably to
the Constitution, disregarding the law, the
Court must determine which of these conflicting
rules governs the case. This is of the very
essence of judicial duty.
If, then, the Courts are to regard the Constitution,
and the Constitution is superior to any
ordinary act of the Legislature, the Constitution,
and not such ordinary act, must govern the
case to which they both apply.
Those, then, who controvert the principle that the
Constitution is to be considered in court as
a
paramount law are reduced to the necessity of
maintaining that courts must closetheir eyes on
the Constitution, and see only the law.
This doctrine would subvert the very foundation of
all written Constitutions. It would declare
that an act which, according to the principles and
theory of our government, is entirely void, is
yet, in practice, completely obligatory. It would
declare that, if the Legislature shall do what is
expressly forbidden, such act, notwithstanding the
express prohibition, is in reality effectual. It

would be giving to the Legislature a
practical and real omnipotence with the same breath
which
professes to restrict their powers within narrow
limits. It is prescribing limits, and
declaring that
those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed
the greatest improvement on political
institutions -- a written Constitution, would of
itselfbe sufficient, in America where written
Constitutions have been viewed with so much
reverence, for rejecting the construction. But
the
peculiar expressions of the Constitution of the
United States furnish additional arguments in
favour of its rejection.
The judicial power of the United States is
extended to all cases arising under the
Constitution.
Could it be the intention of those who gave
this power to say that, in using it, the
Constitution
should not be looked into? That a case arising
under the Constitution should be decided
without examining the instrument under which
it arises?
This is too extravagant to be maintained.
In some cases then, the Constitution must be looked
into by the judges. And if they can open it
at all, what part of it are they forbidden to read or

to obey?
. . .
It is also not entirely unworthy of observation
that, in declaring what shall be the supreme law
of the land, the Constitution itselfis first mentioned,
and not the laws of the United States
generally, but those only which shall be made in
pursuance of the Constitution, have that rank.
12
Thus, the particular phraseology of the Constitution
of the United States confirms and
strengthens the principle, supposed to be essential to
all written Constitutions, that a law
repugnant to the Constitution is void, and that courts,
as well as other departments, are bound
by that instrument.
The rule must be discharged.
Reading an American Judicial Decision
For better or worse, much of American legal education consists
of the close reading of opinions from the appellate and supreme
courts of the nation. It takes time, effort, and skill to read an
opinion well. At the beginning, you may not know why you are
reading an opinion. You may not know what information is
relevant in the opinion and what information is less important.
Finally, you may not know how to efficiently read a case and
retain the most important information. Legal education

generally, and this course specifically, will help you develop
these skills.
In this excerpt there are editor-added parenthetical explanations
of the important information that you will find in each part of a
typical case. What you will read below is also edited; it is not
the entire case. This will help you more efficiently read your
other assigned cases. Comments are in brackets. Brackets in
casebooks usually indicate matters that the textbook author has
either added to the case or moved from its original location.
Supreme Court of the United States
Richard Perry LOVING et ux., Appellants,
v.
COMMONWEALTH OF VIRGINIA.
No. 395.
Argued April 10, 1967. Decided June 12, 1967.
MR. CHIEF JUSTICE WARREN delivered the opinion of the
Court.
[Each case begins with a caption, above, that lists identifying
information. The caption contains information which helps set
the context for the rest of the case. Don’t ignore it!
For example, you learn here that this opinion comes from the
United States Supreme Court, that it was written by the then
Chief Justice of that Court, Earl Warren, and that the decision
was issued in June of 1967. Why does that matter? Between
1954 and 1980 the United States Supreme Court endeavored to
eliminate inequalities based on race that had persisted in the
United States since the time of slavery a century earlier. Chief
Justice Earl Warren was a principal creator of that change. You
also learn that this case was heard in April of 1967 and decided
in June of 1967. The United States Supreme Court takes a long
summer break starting in late June or early July. The Court
often issues its most important and potentially controversial
decisions shortly before it leaves for its “summer vacation.” In

short, you learn from the caption that this is likely to be a very
important opinion.
Also, you learn a great deal about the parties to the case. One
of your first jobs as reader of a case is to figure out the heart of
the legal conflict. Here, this case is a conflict between
“Richard Perry Loving, et ux” and the “Commonwe alth of
Virginia.” What does “et ux” mean? It’s an abbreviation for
“et uxor,” Latin for “and wife.” A much more common Latin
phrase you will find in captions is “et al,” an abbreviation for
“et alia,” which isLatin for “and others.” What is the
“Commonwealth of Virginia?” A few states in the United
States, particularly among the original thirteen states identify
themselves with terms other than or in addition to “state.”
From the perspective of the United States Constitution,
however, they are all just “states.”
Finally, notice that the Lovings are listed first in the caption. If
the case comes from the United States Supreme Court, as this
one does, the parties listed before the “versus” – abbreviated
“v.” – are usually the petitioners, which means that they lost in
the court immediately below and sought Supreme Court review
to correct that outcome. Here the Lovings are called
“appellants,” not petitioners, for complex reasons of procedure
irrelevant here.]
This case presents a constitutional question never addressed by
this Court: whether a statutory scheme adopted by the State of
Virginia to prevent marriages between persons solely on the
basis of racial classifications violates the Equal Protection and
Due Process Clauses of the Fourteenth Amendment. [Section 1
of the Fourteenth Amendment provides:
"All persons born or naturalized in the United States and subject
to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal

protection of the laws."]
For reasons which seem to us to reflect the central meaning of
those constitutional commands, we conclude that these statutes
cannot stand consistently with the Fourteenth Amendment.
[Most modern cases start with a statement of the issue the court
must decide. Here there is a potential conflict between a group
of Virginia state laws and two clauses of the United States
Constitution, the Equal Protection Clause and the Due Process
Clause, both located in the Fourteenth Amendment. You learn
from the last sentence of the statement of the issue that the US
Constitutional provisions render Virginia state statutes invalid
as a result of that conflict. You will discover why that is the
case when you read Marbury v. Madison and Martin v. Hunter’s
Lessee later in this course.]
In June, 1958, two residents of Virginia, Mildred Jeter, a Negro
woman, and Richard Loving, a white man, were married in the
District of Columbia pursuant to its laws. Shortly after their
marriage, the Lovings returned to Virginia and established their
marital abode in Caroline County. At the October Term, 1958,
of the Circuit Court of Caroline County, a grand jury issued an
indictment charging the Lovings with violating Virginia's ban
on interracial marriages. On January 6, 1959, the Lovings
pleaded guilty to the charge, and were sentenced to one year in
jail; however, the trial judge suspended the sentence for a
period of 25 years on the condition that the Lovings leave the
State and not return to Virginia together for 25 years. He stated
in an opinion that:
"Almighty God created the races white, black, yellow, malay
and red, and he placed them on separate continents. And, but for
the interference with his arrangement, there would be no cause
for such marriage. The fact that he separated the races shows
that he did not intend for the races to mix."
[Most opinions then contain a short statement of facts
discussing the actual conflict between the parties. Here, the
Lovings traveled from their home in Virginia to Washington,
D.C. in order to get married, since interracial marriages were

illegal in Virginia at that time. But the mere act of their
returning to Virginia as an interracial couple was also illegal
under Virginia law. Is such a law consistent with the United
States Constitution? We know from the earlier statement of the
issue that the answer is “no.”]
After their convictions, the Lovings took up residence in the
District of Columbia. On November 6, 1963, they filed a motion
in the state trial court to vacate the judgment and set aside the
sentence on the ground that the statutes which they had violated
were repugnant to the Fourteenth Amendment. . . . On January
22, 1965, the state trial judge denied the motion to vacate the
sentences, and the Lovings perfected an appeal to the Supreme
Court of Appeals of Virginia. . . .
The Supreme Court of Appeals upheld the constitutionality of
the anti-miscegenation statutes and, after modifying the
sentence, affirmed the convictions. The Lovings appealed this
decision, and we noted probable jurisdiction on December 12,
1966 . . .
[Opinions also regularly include a statement of the case or
procedural history. This section describes the actions of the
attorneys and judges in the case as it made its way to the United
States Supreme Court. Here, the case originated in the Virginia
state court system, but the United States Supreme Court
accepted review of the case to determine whether the Virginia
state laws conflict with the United States Constitution and thus
cannot be enforced.]
. . . The Lovings were convicted of violating § 258 of the
Virginia Code:
"Leaving State to evade law. -- If any white person and colored
person shall go out of this State, for the purpose of being
married, and with the intention of returning, and be married out
of it, and afterwards return to and reside in it, cohabiting as
man and wife, they shall be punished as provided in § 20-59,
and the marriage shall be governed by the same law as if it had
been solemnized in this State. The fact of their cohabitation
here as man and wife shall be evidence of their marriage."

. . .
Virginia is now one of 16 States which prohibit and punish
marriages on the basis of racial classifications. Penalties for
miscegenation arose as an incident to slavery, and have been
common in Virginia since the colonial period.
I
[Immediately above this comment, you will see the Roman
numeral “I.” When courts begin a new topic, they often indicate
a break by using a Roman numeral. The section below is part of
the court’s reasoning that the Virginia statutes are
unconstitutional.]
In upholding the constitutionality of these provisions in the
decision below, the Supreme Court of Appeals of Virginia
referred to its 1955 decision in Naim v. Naim, 197 Va. 80, 87
S.E.2d 749, as stating the reasons supporting the validity of
these laws. In Naim, the state court concluded that the State's
legitimate purposes were "to preserve the racial integrity of its
citizens," and to prevent "the corruption of blood," "a mongrel
breed of citizens," and "the obliteration of racial pride,"
obviously an endorsement of the doctrine of White
Supremacy. Id. at 90, 87 S.E.2d at 756. . . .
. . . [T]he State argues that the meaning of the Equal Protection
Clause, as illuminated by the statements of the Framers, is only
that state penal laws containing an interracial element as part of
the definition of the offense must apply equally to whites and
Negroes in the sense that members of each race are punished to
the same degree. Thus, the State contends that, because its
miscegenation statutes punish equally both the white and the
Negro participants in an interracial marriage, these statutes,
despite their reliance on racial classifications, do not constitute
an invidious discrimination based upon race. The second
argument advanced by the State assumes the validity of its
equal application theory. The argument is that, if the Equal
Protection Clause does not outlaw miscegenation statutes
because of their reliance on racial classifications, the question

of constitutionality would thus become whether there was any
rational basis for a State to treat interracial marriages
differently from other marriages. On this question, the State
argues, the scientific evidence is substantially in doubt and,
consequently, this Court should defer to the wisdom of the state
legislature in adopting its policy of discouraging interracial
marriages.
[Often the Court begins its reasoning with a short statement of
the arguments that the parties have made, or perhaps the
reasoning of a lower court that has already considered the issue.
Here the State of Virginia makes a textual argumentabout the
meaning of “equal” in the Equal Protection Clause of the 14th
Amendment. The state argues that the words of the Constitution
favor its argument. Can you state in your own words the two
arguments that the state makes in defending the
constitutionality of the statute?]
Because we reject the notion that the mere "equal application"
of a statute containing racial classifications is enough to remove
the classifications from the Fourteenth Amendment's
proscription of all invidious racial discriminations, we do not
accept the State's contention that these statutes should be
upheld if there is any possible basis for concluding that they
serve a rational purpose. The mere fact of equal application
does not mean that our analysis of these statutes should follow
the approach we have taken in cases involving no racial
discrimination. . . . In these cases, involving distinctions not
drawn according to race, the Court has merely asked whether
there is any rational foundation for the discriminations, and has
deferred to the wisdom of the state legislatures. In the case at
bar, however, we deal with statutes containing racial
classifications, and the fact of equal application does not
immunize the statute from the very heavy burden of justification
which the Fourteenth Amendment has traditionally required of
state statutes drawn according to race.
[According to the Court, in what situations does the Equal
Protection Clause apply? When the state statute discriminates

between different races? Or when the state statute classifies
people by race, even if people of different races are equally
affected? The paragraph above provides the answer.]
The State argues that statements in the Thirty-ninth Congress
about the time of the passage of the Fourteenth Amendment
indicate that the Framers did not intend the Amendment to make
unconstitutional state miscegenation laws. Many of the
statements alluded to by the State concern the debates over the
Freedmen's Bureau Bill, which President Johnson vetoed, and
the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto.
While these statements have some relevance to the intention of
Congress in submitting the Fourteenth Amendment, it must be
understood that they pertained to the passage of specific
statutes, and not to the broader, organic purpose of a
constitutional amendment. As for the various statements
directly concerning the Fourteenth Amendment, we have said in
connection with a related problem that, although these historical
sources "cast some light" they are not sufficient to resolve the
problem;
"[a]t best, they are inconclusive. The most avid proponents of
the post-War Amendments undoubtedly intended them to
remove all legal distinctions among 'all persons born or
naturalized in the United States.' Their opponents, just as
certainly, were antagonistic to both the letter and the spirit of
the Amendments, and wished them to have the most limited
effect."
Brown v. Board of Education, 347 U. S. 483, 489 (1954). . . .
We have rejected the proposition that the debates in the Thirty-
ninth Congress or in the state legislatures which ratified the
Fourteenth Amendment supported the theory advanced by the
State, that the requirement of equal protection of the laws is
satisfied by penal laws defining offenses based on racial
classifications so long as white and Negro participants in the
offense were similarly punished. McLaughlin v. Florida, 379 U.
S. 184 (1964).
[In the paragraph above, the Court rejects the state’s historical

argument. The state argues that the politicians who drafted the
14th Amendment did not intend it to legalize interracial
marriage. Note that the Court often uses historical arguments to
establish the original understanding of a law, when the text of
that law is ambiguous.]
The State finds support for its "equal application" theory in the
decision of the Court in Pace v. Alabama, 106 U. S. 583 (1883).
In that case, the Court upheld a conviction under an Alabama
statute forbidding adultery or fornication between a white
person and a Negro which imposed a greater penalty than that of
a statute proscribing similar conduct by members of the same
race. The Court reasoned that the statute could not be said to
discriminate against Negroes because the punishment for each
participant in the offense was the same. However, as recently as
the 1964 Term, in rejecting the reasoning of that case, we stated
"Pace represents a limited view of the Equal Protection Clause
which has not withstood analysis in the subsequent decisions of
this Court." McLaughlin v. Florida, supra, at 379 U. S. 188. As
we there demonstrated, the Equal Protection Clause requires the
consideration of whether the classifications drawn by any
statute constitute an arbitrary and invidious discrimination. The
clear and central purpose of the Fourteenth Amendment was to
eliminate all official state sources of invidious racial
discrimination in the States. . . .
[Finally the State makes an argument based on precedent, by
analogizing to the prior case of Pace v. Alabama. According to
the Court, was Pace correctly decided? If not, then what is the
correct rule? When will the Court declare that a state statute
violates the Equal Protection Clause and thus is invalid? Can
you find a phrase or sentence in the paragraph above that would
help?]
There can be no question but that Virginia's miscegenation
statutes rest solely upon distinctions drawn according to race.
The statutes proscribe generally accepted conduct if engaged in
by members of different races. . . . At the very least, the Equal
Protection Clause demands that racial classifications, especially

suspect in criminal statutes, be subjected to the "most rigid
scrutiny," Korematsu v. United States, 323 U. S.
214, 216 (1944), and, if they are ever to be upheld, they must be
shown to be necessary to the accomplishment of some
permissible state objective, independent of the racial
discrimination which it was the object of the Fourteenth
Amendment to eliminate. . . .
[Courts often announce a rule or rules, which it intends to apply
both to the case before it and to future cases. The paragraph
above contains a rule. Can you state in your own words the rule
and in what circumstances we apply that rule?]
There is patently no legitimate overriding purpose independent
of invidious racial discrimination which justifies this
classification. The fact that Virginia prohibits only interracial
marriages involving white persons demonstrates that the racial
classifications must stand on their own justification, as
measures designed to maintain White Supremacy. We have
consistently denied the constitutionality of measures which
restrict the rights of citizens on account of race. There can be
no doubt that restricting the freedom to marry solely because of
racial classifications violates the central meaning of the Equal
Protection Clause.
[Finally, courts often include an application of the rule to the
facts of the case. The paragraph above is a short application of
the rules that emerge from the reasoning of Part I of the
opinion. Note also the Roman numeral II immediately below.
This new section introduces a new subject, the Due Process
Clause of the United States Constitution.]
II
These statutes also deprive the Lovings of liberty without due
process of law in violation of the Due Process Clause of the
Fourteenth Amendment. The freedom to marry has long been
recognized as one of the vital personal rights essential to the
orderly pursuit of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental
to our very existence and survival. . . . To deny this

Intro to u.s. law prof. betsy candlersummer 2018class

Intro to u.s. law prof. betsy candlersummer 2018class

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