Miranda and the Right to Remain Silent The right against self-incrimination is some-times referred to as the“right to remain silent.” The Self-Incrimination Clause affords defen-dants th
Trang 1SELF-DETERMINATION The political right of the majority to the exercise
of power within the boundaries of a generally accepted political unit, area, or territory Also the right of parties to a disagreement to set their own mutual course for resolution
The principle of self-determination is men-tioned in the UNITED NATIONS Charter and has often been stressed in resolutions passed by the
UN General Assembly The concept is most often used in connection with the right of colonies to independence It does not relate to attempts at independence by groups, such as the French Canadians or the Nagas of India, who
do not possess their own sovereign states
In mediation (a form ofALTERNATIVE DISPUTE RESOLUTION, or “ADR”), one of the most fundamental principles is that of self-determi-nation The parties are left to define their issues and reach their own agreement voluntarily and without UNDUE INFLUENCE As such, a mediator must ensure that the parties each
have the requisite capacity to participate in the proceedings
SELF-EXECUTING Anything (e.g., a document or legislation) that is effective immediately and without the need of intervening court action, ancillary legislation, or other type of implementing action
A constitutional provision is self-executing when it can be given effect without the aid of legislation, and there is nothing to indicate that legislation is intended to make it operative For example, a constitutional provision that any municipality by vote of four-sevenths of its qualified electors may issue and sell revenue bonds in order to pay for the cost of purchasing a municipally owned public utility is self-executing and effective without a legislative enactment Constitutional provisions are not self-executing if they merely set forth a line of policy or principles without supplying the
Self-Defense or Unjustified Shooting? O
B
n December 22, 1984, at approximately 1:00P.M., Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an express subway train in
the Bronx borough of New York City The young
black men sat in the rear section of their car A
short time later, Bernhard Goetz boarded the same
car and took a seat near the youths Goetz, a white
computer technician, had been mugged some two
years earlier
Canty and Allen approached Goetz, and Canty
said, “Give me five dollars.” Goetz responded by
standing up and firing at the youths with a handgun
Goetz fired four shots before pausing He then
walked up to Cabey and reportedly said,“You seem
to be all right, here's another,” whereupon he fired
his fifth and final bullet into Cabey's spinal cord
Goetz had shot two of the youths in the back
Ramseur and Cabey each had a screwdriver, which
they said they used to break into coin boxes and
video machines
Goetz fled the scene and traveled north to
New Hampshire On December 31, 1984, he turned
himself in to police in Concord, New Hampshire Goetz was returned to New York where he was indicted on a charge of criminal possession of a weapon The state fought for a second grand jury, and Goetz was eventually indicted a second time on charges of attempted murder, assault, criminal possession of a weapon, and reckless endanger-ment At trial Goetz argued that he had acted in self-defense, and a jury convicted him only of illegal gun possession Ultimately Goetz was sentenced to one year in jail and fined $5,000
Goetz’s shooting of Darryl Cabey left Cabey with brain damage and paralyzed from the chest down Cabey sued Goetz, and in April 1996, a Bronx jury found Goetz liable for Cabey's injuries and awarded Cabey $43 million
FURTHER READINGS Fletcher, George P 1988 A Crime of Self-Defense: Bernhard Goetz and the Law on Trial New York: Free Press.
Roehrenbeck, Carol A 1989 People vs Goetz: The Summations and the Charges to the Jury Buffalo, N.Y.: W.S Hein.
98 SELF-DETERMINATION
Trang 2means by which they are to be effectuated, or if
the language of the constitution is directed to
the legislature As a result, a constitutional
provision that the legislature shall direct by law
the manner and court in which suits may be
brought against the state is not self-executing
Just as with constitutional provisions,
sta-tutes and court judgments can be self-executing
SELF-EXECUTING TREATY
A compact between two nations that is effective
immediately without the need for ancillary
legislation
A treaty is ordinarily considered
self-executing if it provides adequate rules by which
given rights may be enjoyed or imposed duties
may be enforced Conversely it is generally not
self-executing when it merely indicates
princi-ples without providing rules giving them the
force of law
SELF-HELP
Redressing or preventing wrongs by one’s own
actionWITHOUT RECOURSEto legal proceedings
Self-help is a term in the law that describes
corrective or preventive measures taken by a
private citizen Common examples of self-help
include action taken by landlords against
tenants, such as EVICTION and removal of
property from the premises, and repossession
of leased or mortgaged goods, such as
auto-mobiles, watercraft, and expensive equipment
Persons may use self-help remedies only where
they are permitted by law State and local laws
permit self-help in commercial transactions,
TORTandNUISANCEsituations, andLANDLORD AND
TENANTrelationships
Self-help is permissible where it is allowed
by law and can be accomplished without
committing aBREACH OF THE PEACE A breach of
the peace refers to violence or threats of
violence For example, if a person buys a ship
financed by a mortgage, the mortgage company
may repossess the ship if the buyer fails to make
the mortgage payments If the buyer is present
when the ship is being taken away, and the
buyer objects to the repossession, the mortgage
company breaches the peace if it can repossess
the ship only through violence or the threat of
violence In such a case, the mortgage company
would be forced to file suit in court to repossess
the ship Repossessors attempt to circumvent
objections by distracting or deceiving the defaulting party during the repossession
A majority of states have banned self-help
by landlords in the eviction of delinquent tenants These legislatures have determined that the interests of the landlord in operating a profitable business must be balanced against a tenant’s need for shelter In place of the self-help remedy, states have devised expedited judicial proceedings for evictions These pro-ceedings make it possible for a landlord to evict
a tenant without unacceptable delays while giving the tenant an opportunity to present to
a court arguments against eviction
In states that give landlords the right of self-help, landlords may evict a tenant on their own only if they can do so in a peaceful manner The precise definition of peaceful varies from state to state In some states, any entry by a landlord that does not involve violence or a breach of the peace
is acceptable In other states, any entry that is conducted without the tenant’s consent is illegal
In any case, if a landlord evicts a tenant through self-help, the eviction must be per-formed reasonably For example, a landlord may not nail plywood across the entrance to a tenant’s second-story apartment while the tenant is inside, and then remove the steps leading up to the apartment One landlord who performed such self-help faced criminal penalties after the trapped tenant and her two-year-old daughter needed the help of the local fire department to escape the apartment A landlord who violates laws on self-help may face criminal charges and a civil suit for damages filed by the tenant
One new form of self-help that poses interesting problems is self-help by providers of computer software Businesses in the United States that use computers have become depen-dent on computer software Sometimes, when disputes have arisen between the buyer of software and the software provider, the software provider has disabled the buyer’s software from a remote location In one case, a software supplier called Logisticon entered into a contract with Revlon Group to provide it with computer software After a dispute arose between the two parties, Logisticon accessed Revlon’s software system and disabled it, causing Revlon to suffer
$20 million in product delivery delays Revlon brought suit against Logisticon, alleging that Logisticon had violated the contract and that it
Trang 3had misappropriated Revlon’s trade secrets The two parties settled the suit out of court, and the terms of the settlement remain undisclosed
Self-help measures are controversial because they amount to taking the law into one’s own hands Opponents of self-help laws argue that they encourage unethical and sometimes illegal practices by creditors and that they diminish public respect for the law Proponents counter that self-help, if performed peaceably, is a valuable feature of the justice system because
it gives creditors an opportunity to alleviate losses and keeps small, simple disputes from glutting the court system
Self-help must be distinguished from vigi-lantism Groups that impose extra-judicial punishment on individuals for supposed illegal acts do so in violation of criminal andCIVIL LAW
FURTHER READINGS Bell, Tom W 2003 “Free Speech, Strict Scrutiny, and Self-Help: How Technology Upgrades Constitutional Juris-prudence ” Minnesota Law Review 87 (February).
Fischer, Julee C 2000 “Policing the Self-Help Legal Market:
Consumer Protection or Protection of the Legal Cartel? ” Indiana Law Review 34 (winter).
Gerchick, Randy G 1994 “No Easy Way Out: Making the Summary Eviction Process a Fairer and More Efficient Alternative to Landlord Self-Help.” UCLA Law Review
41 (February).
Gitter, Henry 1993 “Self-Help Remedies for Software Vendors ” Santa Clara Computer and High Technology Law Journal 9 (November).
CROSS REFERENCE Secured Transactions.
SELF-INCRIMINATION Giving testimony in a trial or other legal proceeding that could subject one to criminal prosecution
The right against self-incrimination, guar-anteed by the FIFTH AMENDMENT to the U.S
Constitution and many state constitutions, forbids the government from compelling any person to give testimonial evidence that would likely incriminate him during a subsequent criminal case This right enables aDEFENDANTto refuse to testify at a criminal trial and“privileges him not to answer official questions put to him
in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings”
(Lefkowitz v Turley, 414 U.S 70, 94 S Ct 316,
38 L Ed 2d 274[1973])
Origins of the Privilege Against Self-Incrimination
The origins of the PRIVILEGE AGAINST SELF
-INCRIMINATIONcan be traced back to the struggle between church and state in late Medieval England The Latin MAXIM Anemo tenetur seipsum prodere, (no one is bound to inform against himself), was invoked as a defense against a variety of oaths The ex officio oath required witnesses and defendants to swear to truthfully answer inquisitorial questions on any subject matter However, in 1637 the English political agitator John Lilburne refused to take the required legal oath or to answer questions before the STAR CHAMBER regarding his alleged importing and printing of heretical books Lilburne’s refusal to answer questions before the Star Chamber later came to represent the idea that no one should be compelled to incriminate himself, a right that ordinary citizens began asserting at criminal trials with increasing frequency
By the end of the seventeenth century, the privilege against compelled testimony had become a COMMON LAW right, and a century later it was elevated to constitutional status by the Founding Fathers of the U.S Constitution, who incorporated it into theBILL OF RIGHTS The founders believed that coerced confessions not only violate the rights of the individual being interrogated but also render the confession untrustworthy Once a confession has been coerced, it becomes difficult for a judge or jury
to distinguish between those defendants who confess because they are guilty and those who confess because they are too weak to withstand the coercion
Basic Rule, Rationale, and Remedy
The relevant language of the Fifth Amendment states:“nor shall any person be compelled in any criminal case to be a witness against himself.” TheSUPREME COURTsummed up the es-sence of the privilege against self-incrimination
by saying that it “is the requirement that the state which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips Culombe v Connecticut, 367 U.S 568,
81 S.Ct 1860, 6 L.Ed.2d 1037 (1961) Subject only to limited exceptions, an individual must explicitly invoke his Fifth Amendment right
in order to receive its protections Unless an
100 SELF-INCRIMINATION
Trang 4individual invokes the Fifth Amendment
upon questioning, he is deemed to have waived
his right
Confessions, admissions, and other
state-ments taken from a defendant in violation of
this right are inadmissible against him during a
criminal prosecution Convictions based on
statements taken in violation of the right against
self-incrimination are normally overturned on
appeal, unless there is enough admissible
evi-dence to support the verdict
Miranda and the Right to Remain Silent
The right against self-incrimination is
some-times referred to as the“right to remain silent.”
The Self-Incrimination Clause affords
defen-dants the right not to answer particular
questions during a criminal trial or to refuse
to take the WITNESS STAND altogether When the
accused declines to testify during a criminal
trial, the government may not comment to the
jury about his or her silence However, the
prosecution may assert during CLOSING
ARGU-MENT that its case is“unrefuted” or
“uncontra-dicted” when the defendant refuses to testify
(Lockett v Ohio, 438 U.S 586, 98 S Ct 2954, 57
L Ed 2d 973 [1978]) However, before the
jurors retire for deliberations, the court must
instruct them that the defendant’s silence is not
evidence of guilt and that no adverse inferences
may be drawn from the failure to testify
InMIRANDA V.ARIZONA, 384 U.S 436, 86 S Ct
1602, 16 L Ed 2d 694 (1966), the Supreme
Court extended the right to remain silent to
pretrial CUSTODIAL INTERROGATIONS The Court
said that before a suspect is questioned, the
police must apprise him of his right to remain
silent and that if he gives up this right, any
statements may be used against him in
a subsequent criminal prosecution Under
Miranda, suspects also have a Fifth Amendment
right to consult with an attorney before they
submit to questioning Miranda applies to any
situation in which a person is both held in
“custody” by the police, which means that he is
not free to leave, and is being “interrogated,”
which means he is being asked questions that
are designed to elicit an incriminating response
A person need not be arrested or formally
charged for Miranda to apply
In Miranda the Supreme Court examined a
number of police manuals outlining a variety of
psychological ploys and stratagems that they
employed to overcome the resistance of defiant and stubborn defendants Such interrogation practices, the Court said, hark back to the litany
of coercive techniques used by the English government during the seventeenth century
Defendants may waive their Fifth Amend-ment right to remain silent However, the government must demonstrate to the satisfaction
of the court that any such waiver was freely and intelligently made The Supreme Court ruled that
a confession that was obtained after the suspect had been informed that his wife was about to
be brought in for questioning was not the product of a free and rational choice (Rogers v
Richmond, 365 U.S 534, 81 S Ct 735, 5 L Ed 2d
760[1961]) It also held that a statement was not freely and intelligently made when a defendant confessed after being given a drug that had the properties of a truth serum (Townsend v
Sain, 372 U.S 293, 83 S Ct 745, 9 L Ed 2d 770 [1963])
In Mitchell v United States, 526 U.S 314, 119 S.Ct 1307, 143 L.Ed.2d 424 (1999), the Supreme Court held that a person who pleads guilty to a crime does not waive the self-incrimination privilege at sentencing The Court acknowledged that it is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the PRIVILEGE AGAINST SELF-INCRIMINATION when questioned about the details However, the Court found a significant difference between the waiver of the right against self-incrimination in a trial and in a sentencing hearing The concerns, which justify the CROSS-EXAMINATION when the defendant testifies, are absent at a plea hearing Treating a guilty plea as a waiver of the Self-Incrimination Clause would allow prosecutors to indict a person without specifying the quantity of drugs
at issue, obtain a guilty plea, and then put the defendant on the witness stand to tell the court the quantity Such a scenario would make the defendant “an instrument of his or her own condemnation.” This would undermine consti-tutional CRIMINAL PROCEDURE, turning an adver-sarial system into an inquisition
In Dickerson v United States 530 U.S 428,
120 S Ct 2326, 147 L Ed.2d 405 (2000), the U.S Supreme Court concluded that the Mi-randa decision was based on Fifth Amendment principles and therefore Miranda could not be overturned legislatively Congressional anger at the Miranda decision had led to the passage in
Trang 51968 of a law, 18 U.S.C.A § 3501, which made
it easier for the prosecution to introduce a defendant’s un-Mirandized statements at trial
However, the United States DEPARTMENT OF JUSTICE, under attorneys general of both major political parties, has refused to enforce the provision, believing the law to be unconstitu-tional The law lay dormant until the U.S Court
of Appeals for the Fourth Circuit ruled in 1999 that Congress had the constitutional authority
to pass the law Chief JusticeWILLIAM REHNQUIST,
a frequent critic of the Miranda decision, joined the majority in rejecting the Fourth Circuit’ decision Although members of the Court might not agree with the reasoning and the rule of Miranda, Rehnquist acknowledged the essential place that Miranda has in U.S law and society
He pointed out the importance that the judicial system places on STARE DECISIS, a concept that counsels courts to honor judicial precedents to ensure stability and predictability in decision-making A court should only OVERRULE its case precedents if there is, in Rehnquist’s words,
“special justification.” The Court in Dickerson concluded there were no special justifications
The Court’s ruling in Dickerson generated a significant amount of interest in the legal community Criminal defense attorneys and other Miranda supporters began citing Dick-erson for the proposition that the Miranda rule
is not only alive and well, but has been elevated
to the status of a“constitutional” rule, and not just a “prophylactic” rule If Miranda were a constitutional rule, then a violation of Miranda would be a constitutional violation giving rise to
a possible SECTION 1983 action It would also trigger the “fruits of the poisonous tree”
doctrine and result in the suppression of any evidence obtained as a result of an un-Miran-dized confession If Miranda were just a
“prophylactic” rule, then a violation of Miranda would not necessarily render inadmissible any evidence obtained as a result of an un-Miran-dized confession, and might not even render the confession itself inadmissible, depending on the circumstances
The Court began to clarify this ambiguity in
CHAVEZ V.MARTINEZ, 538 U.S 760, 123 S Ct 1994,
155 L Ed 2d 984 (2003) The case involved the question of whether police officers are required to read criminal suspects the Miranda warnings even
if the suspects are never brought to trial In 1997, Oliverio Martinez, a farm worker, was shot and injured by police officers during a struggle A
police sergeant, Ben Chavez, questioned Martinez for 45 minutes while the latter lay in a hospital bed Chavez never read Martinez the Miranda warnings, and Martinez insisted that he did not want to answer the questions Martinez filed a Section 1983 action to vindicate what he claimed was a violation of his constitutional right to be Mirandized before an interrogation commenced The Supreme Court ruled that the police officer’s failure to read Martinez Miranda warn-ings did not violate Martinez’s constitutional rights and could not be used as a basis for recovery under 42 U.S.C.A § 1983 In a badly splintered 5-4 decision, JusticeCLARENCE THOMAS, writing for the Court, said that while the Miranda warnings offer protection against violations of constitutional rights, the failure to provide these warnings is not necessarily a constitutional violation by itself In this case, Martinez was never required to be a witness against himself in a criminal trial Instead, it was Martinez who was seeking to introduce the unMirandized interro-gation on his own behalf during a civil trial he had brought to vindicate an alleged civil rights violation Thus, the Court concluded that the Self-Incrimination Clause was not directly impli-cated, and the fact that the officer had asked coercive questions did not violate Martinez’s Fifth Amendment right against self-incrimination
A year later, the Court further undermined the claim that Dickerson had made Miranda an inviolable constitutional rule In U.S v Patane,
542 U.S 630, 124 S Ct 2620, 159 L Ed 2d 667 (2004), the Court reviewed a case involving a defendant charged with being a felon in possession of a weapon During an interro-gation in which the defendant had not been Mirandized, the defendant told police where the weapon was located, but he did not expressly confess to the crime The Court held that Miranda is just a “prophylactic“rule designed to enforce the protection of the Self-Incrimination Clause against coerced, involuntary statements Since the defendant had voluntarily disclosed the location of the weapon and the prosecution was not seeking to admit into evidence a confession of any sort, the Court reasoned, no Fifth Amendment violation had occurred Nor could the“fruit of the poisonous tree doctrine”
be applied to exclude the introduction of the weapon at trial The Self-Incrimination Clause only protects witnesses from testifying against themselves, the Court said, and the weapon was non-testimonial physical evidence
102 SELF-INCRIMINATION
Trang 6On the same day that Patane was decided,
the Court handed down its opinion in Missouri
v Seibert, 542 U.S 600, 124 S.Ct 2601, 159 L
Ed.2d 643 (2004) The case involved the use of a
police tactic whereby the police would
interro-gate a suspect in two phases During the initial
phase, the police would aggressively question
the suspect without first reading the Miranda
warnings If the suspect confessed to a crime,
the police would then take a break, leave the
room, and come back a short time later to
resume questioning However, before the
sec-ond phase of the interrogation started, the police
would read the suspect the Miranda warnings
Because the suspect had already confessed during
phase one, the police would persuade the suspect
that there was no reason not to confess again
The prosecution would then seek to introduce
the second, Mirandized confession, at trial
In the case at hand, the defendant had been
charged with neglecting her own child, who had
died under suspicious circumstances The
defendant was brought in for an initial phase
of questioning by the police, and confessed to
knowledge of a plan to conceal the
circum-stances of her son’s death by burning down the
familys mobile home She also admitted that
during the fire, she allowed an unrelated
mentally retarded 18-year-old, who had been
living with her family in the mobile home, to
die in the fire With confession in hand, the
police left the interrogation room for
approxi-mately 30 minutes, returned, and persuaded the
defendant to sign a second confession retelling
the same story, but only after the police first
read her the Miranda warnings
In another badly splintered 5-4 decision,
Justice DAVID SOUTER, writing for the Court, said
the that facts of this case“by any objective measure
reveal a police strategy adapted to undermine the
Miranda warnings.” He declared that the police
had created a situation for the defendant“in which
it would have been unnatural to refuse to repeat at
the second stage what had been said before.”
Justice ANTHONY KENNEDY provided a fifth vote
concurring with the judgment of the Court, but in
a separate opinion, Kennedy articulated a test by
which to determine the constitutionality of any
two-step interrogation process, a test that no one
else on the Court adopted
Exceptions and Limitations
The right against self-incrimination is not
absolute A person may not refuse to file an
incomeTAX RETURNon Fifth Amendment grounds
or fail to report a hit-and-run accident The government may compel defendants to pro-vide fingerprints, voice exemplars, and writing samples without violating the right against self-incrimination because such evidence is used for the purposes of identification and is not testimo-nial in nature (United States v Flanagan, 34 F.3d
949 [10th Cir 1994]) Despite the dubious grounds for the distinction between testimonial and non-testimonial evidence, courts have per-mitted the use of videotaped field sobriety tests over Fifth Amendment objections
Although the language of the Fifth Amend-ment suggests that the right against self-incrimination applies only during criminal cases, the Supreme Court has ruled that it may be asserted during civil, administrative, and legisla-tive proceedings as well The right applies during nearly every phase ofLEGAL PROCEEDINGS, including
GRAND JURY hearings, preliminary investigations, pretrial motions, discovery, and the trials them-selves However, the right may not be asserted after conviction when the verdict is final because the constitutional protection against DOUBLE JEOPARDY protects defendants from a second prosecution for the same offense Nor may the privilege be asserted when an individual has been granted IMMUNITY from prosecution to testify about certain conduct that would otherwise be subject to criminal punishment
At the same time, the right against self-incrimination is also narrower than the Fifth Amendment suggests The Fifth Amendment allows the government to force a person to be a witness against herself or himself when the subject matter of the testimony is not likely to incriminate the person at a future criminal proceeding Testimony that would be relevant
to a civil suit, for example, is not protected by the right against self-incrimination if it does not relate to something that is criminally inculpatory
By the same token, testimony that only subjects a witness to embarrassment, disgrace, or oppro-brium is not protected by the Fifth Amendment
Finally, the privilege against self-incrimina-tion is personal, applying only to natural persons and not usable by, or on behalf of, any organization Thus, a corporation does not have the privilege against self-incrimination, although the privilege applies to the oral testimony of corporate officers called to testify
in an official capacity (Doe v United States, 487
Trang 7U.S 201, 108 S Ct 2341, 101 L Ed 2d 184 [1988]) Likewise, a department of a federal, state, or municipal government has no privilege against self-incrimination
FURTHER READINGS Garcia, Alfredo 2002 The Fifth Amendment: A Comprehen-sive Approach Westport, Conn.: Greenwood.
LaFave, Wayne R., Jerold Israel, and Nancy J King 2000.
Criminal Procedure St Paul, Minn.: West Group.
Levy, Leonard W 1999 Origins of the Fifth Amendment: The Right Against Self-Incrimination Chicago: Ivan R Dee.
O ’Neill, Michael Edmund 2002 “The Fifth Amendment in Congress: Revisiting the Privilege against Compelled Self-Incrimination “Georgetown Law Journal 90 (August).
Savage, David G 2003 “Speaking Up about Silence:
Supreme Court Takes Another Look at Miranda Warnings ” ABA Journal 89 (November).
CROSS REFERENCES Criminal Law; Criminal Procedure; Exclusionary Rule; Fruit
of the Poisonous Tree; Lineup.
SENATE The Senate is the upper chamber, or smaller branch,
of the U.S Congress The word also refers to the upper chamber of the legislature of most of the states
The U.S Constitution reserves for the Senate special powers not available to the other branch of Congress, the HOUSE OF REPRESENTA-TIVES These powers include the trial of all impeachments of federal officials; the RATIFICA-TION, by a two-thirds vote, of all treaties ob-tained by the president of the United States;
and approval or rejection of all presidential appointments to the federal judiciary, ambassa-dorships, cabinet positions, and other signifi-cantEXECUTIVE BRANCHposts
The Senate, with terms of six years for its members—as opposed to two years for mem-bers of the House of Representatives—and a tradition of unlimited debate, has long prided itself as being the more deliberate of the two branches of Congress Under its rules a senator may speak on an issue indefinitely, which is known as the FILIBUSTER Sixty senators present and voting may pass a motion of cloture to stop debate
Members
Under Article II, Section 3, of the U.S
Constitution, the Senate is made up of two members from each state, and each member has one vote Unlike the House of Representatives,
in which the entire chamber is up for election every two years, only one-third of the senators are up for reelection every two years
The Constitution requires that a senator
be at least 30 years of age and a U.S citizen for a minimum of nine years Senators must make theirLEGAL RESIDENCEin the state that they represent
The Constitution originally provided for the election of senators by state legislatures How-ever, theSEVENTEENTH AMENDMENTto the Consti-tution, adopted in 1913, mandates the election
of senators by popular vote The Senate may punish members for disorderly behavior With the concurrence of two-thirds of the senators, it can expel a member
When a vacancy occurs in the representa-tion of any state in the Senate, the governor of that state issues a writ of election to fill the vacancy The state legislature, however, can empower the governor to make a temporary appointment until the people fill the vacancy through an election
The vice president of the United States is president of the Senate but has no vote unless the senators are equally divided on a question His vote breaks the tie
Committees
The Senate uses a committee system to eva-luate, draft, and amend legislation before it is submitted to the full chamber During the 104th Congress (1995–97), the Senate had 16 stand-ing, or permanent, committees: Agriculture, Nutrition, and Forestry; Appropriations;ARMED SERVICES; Banking, Housing, and Urban Affairs; Budget; Commerce, Science, and Transporta-tion; Energy and Natural Resources; Environ-ment and Public Works; Finance; Foreign Relations; Governmental Affairs; Judiciary; La-bor and Human Resources; Rules and Admin-istration; Small Business; and Veterans’ Affairs The committees have an average of six to seven subcommittees Senators typically belong to three committees and eight subcommittees The Senate also has joint committees with the House, special committees, and investigative committees
Officers
The vice president acts as the president of the Senate In the vice president’s absence, that position is filled by the president pro tempore,
104 SENATE
Trang 8who is usually the most senior senator of the
majority party The majority leader has
signifi-cant powers in the appointment of majority
senators to committees Political parties also
elect majority and minority leaders to lead
their efforts in the Senate They are assisted
by an assistant floor leader (whip) and a party
secretary
Other Senate officers include the secretary,
who oversees Senate finances and official Senate
pronouncements related to IMPEACHMENT
pro-ceedings and treaty ratification, and the sergeant
at arms, who serves as the law enforcement and
protocol officer and organizes ceremonial
functions
Control
Throughout much of the twentieth century, the
DEMOCRATIC PARTYheld a majority of the seats on the Senate Republicans held a majority between the 104th Congress in 1995 through the 109th Congress in 2006 Democrats regained a majority in 2006 As of 2009, Democrats held
57 seats on the Senate
FURTHER READINGS Bach, Stanley 1996 “The Daily Order of Business.” In The Legislative Process on the Senate Floor: An Introduction.
Report 91-520 RCO Washington, D.C.: Congressional Research Service, Library of Congress.
Congressional Research Service, Library of Congress 2001.
Treaties and Other International Agreements: The Role of
A Day in the Life of the Senate
A
B
s the bells ring in the halls of the Capitol and
its office buildings, the U.S Senate starts the
day's session The presiding officer of the Senate,
sometimes the vice president but usually the president
pro tempore, accompanies the Senate chaplain to the
rostrum to lead the chamber in an opening prayer
After short speeches by the majority and
minority leaders, the Senate begins the “morning
hour”—a session that generally lasts two hours
During this time senators introduce bills,
resolu-tions, and committee reports and speak briefly on
subjects of concern Bills are referred to
approrpi-ate committees at this time
Following the morning hour, the Senate may
take up executive or legislative business If in
executive session, the Senate considers treaties or
nominations that the president has submitted for
Senate approval Before 1929 executive sessions
were conducted behind closed doors Since then,
however, the public and the press have been
allowed to observe these sessions
Most of the Senate's time, however, is spent in
legislative session This time is used to debate and
vote on bills Bills with unanimous consent are
enacted by a simple voice vote without debate,
whereas more controversial bills may be debated at
length and may undergo roll call votes Some bills
may not come up for a vote at all
During debate of a bill, assistant floor leaders,
or whips, from each party usually occupy the seats
of the majority and minority leaders, located in the front row, center aisle, of the Senate chamber They enforce established time limits, if any, for debate on specific bills Frequently, only a few senators are on the Senate floor, while the majority are attending committee meetings or working in their offices From their offices, senators may apprise themselves of Senate proceedings either through“hot lines” to the Senate floor or live television coverage on the Cable-Satellite Public Affairs Network (C-SPAN), which began broadcasting Senate sessions in 1986
A Senate legislative day may end in either ad-journment or recess If the Senate adjourns, a legis-lative day is officially over If it merely recesses, however, the legislative day resumes on the follow-ing calendar day In the case of a recess, the Senate may forego the rituals of the morning hour on the next calendar day This is frequently done to save time during busy legislative sessions
Sometimes, when there is a filibuster or heavy legislative load, the Senate does not stop at the end
of the day but continues through the night During these night sessions, a lantern at the top of the Capitol dome remains lit The public has access to Senate galleries at all times that the Senate is in session, day or night
Trang 9the United States Senate: A Study Washington, D.C.:
GPO.
Hardeman, D B 1976 “Congress, United States.” In Dictionary of American History Vol 2 Edited by Louise
B Ketz New York: Scribner.
U.S Senate Website Available online at http://www.senate.
gov/ (accessed June 3, 2009).
Wirls, Daniel, and Stephen Wirls 2003 The Invention of the United States Senate Baltimore, MD: Johns Hopkins Univ Press.
CROSS REFERENCES Advice and Consent; Articles of Impeachment; Congress of the United States; Constitution of the United States.
SENATE JUDICIARY COMMITTEE The U.S Senate established the Committee on the Judiciary on December 10, 1816, as one of the original 11 standing committees It is also one of the most powerful committees in Congress;
among its wide range of jurisdictions is investiga-tion of federal judicial nominees and oversight of criminal justice, antitrust, and INTELLECTUAL PROPERTYlegislation Meeting each year since the Fourteenth Congress, the Judiciary Committee reviews a vast range of legal issues and advises the larger Senate on how to handle them Just like any other congressional committee, it cannot pass laws or approve presidential nominees on its own, but its recommendations are highly regarded by the larger body
Historically, initial issues before the Senate Judiciary Committee centered largely on the widespread western expansion and growth of the nation, with corresponding concerns about the role of the federal judiciary and JUDICIAL ADMINISTRATION Boundary disputes between states were another early concern The issue of
SLAVERY was perhaps the most controversial, however The committee was partially responsi-ble for the enactment of the COMPROMISE OF
1850, which included the FUGITIVE SLAVE ACT Also, after theU.S.CIVIL WAR, beginning in 1868, the committee shared jurisdiction to oversee federalRECONSTRUCTION
The authority to investigate nominees to the federal court system is the most powerful and controversial authority delegated to the com-mittee Although the U.S Constitution grants authority to the full SENATE to approve judges nominated by the president, the Senate has delegated much of this responsibility to the committee since 1868 When the president submits judicial nominations, the Senate im-mediately submits them to the committee for
consideration The committee votes whether to approve or disapprove a nomination of a judge, and it votes whether to submit the nomination
to the full Senate for its consideration Both votes require a majority of the members of the committee If the Senate approves a judge, he or she receives lifetime tenure on the federal bench, barringIMPEACHMENTor retirement The nomination process of federal judges traditionally has caused a significant amount of controversy regarding the criteria that are used
by committee members in determining whether
to approve or disapprove a judicial nominee Some commentators suggest that the nomina-tion process should only involve consideranomina-tions
of ethics and professional competence, while others argue that the real considerations among committee members relate to the ideologies and philosophies of the nominees
When President RONALD REAGAN nominated
ROBERT BORKin 1987 to fill a vacancy on the U.S
SUPREME COURT, it was evident from the question-ing durquestion-ing the nomination hearquestion-ing that the senators took numerous factors into account Bork, who had been a judge on the U.S Court of Appeals for the District of Columbia and known for his conservative views, was selected by the Republican president to replace Justice LEWIS POWELL, whose views were more moderate Both the committee and the full Senate eventually turned down Bork’s nomination, based largely on ideology Public-interest groups supporting or opposing Bork spent a reported $20 million in their attempts to influence the nomination Similar questions of ideology and philosophy have been raised about the 1991 confirmation hearings for JusticeCLARENCE THOMAS
Some members of the bar and some legal commentators have criticized the judicial selec-tion process In The Supreme Court Phalanx, legal scholar RONALD DWORKIN wrote: “Since Judge Robert Bork was rejected by the Senate
in 1987, several nominees have reduced the hearings to a pointless recital of an established script They declare their firm intention to decide cases‘according to the rule of law’ and they promise to enforce the Constitution as it actually is rather than revise it to suit their own personal‘bias.’” According to Dworkin, nomi-nees will not volunteer any controversial opinions out of concern that members of the Judiciary Committee will use these statements against them
106 SENATE JUDICIARY COMMITTEE
Trang 10The publicity surrounding the nomination
process in the federal judiciary did not begin
until the twentieth century Historically, few
nominees appeared before the committee
Several high-profile nominees, including LOUIS
BRANDEIS, HUGO BLACK, and FELIX FRANKFURTER,
offered statements for the committee to
con-sider It is now common for all nominees to
make statements before the committee
With a high number of nominations to the
federal judiciary, it is not uncommon for the
committee to send nominations of judges in
lower courts to subcommittees This process
continues to be lengthy
Other areas of jurisdiction of the committee
include legislative oversight ofAPPORTIONMENTof
representatives; BANKRUPTCY; MUTINY, ESPIONAGE,
andCOUNTERFEITING; civil liberties; constitutional
amendments; government information;
holi-days and celebrations;IMMIGRATIONand
NATURAL-IZATION; interstate compacts; local courts in
territories and possessions of the United States;
national penitentiaries;PATENTS, copyrights, and
TRADEMARKS; protection of trade and commerce
against unlawful restraints and monopolies; and
state and territory boundary lines
After the terrorist attacks on the World Trade
Center and the Pentagon on September 11, 2001
(SeeSEPTEMBER11TH ATTACKS), the Judiciary
Com-mittee held a number of hearings on the issues
of TERRORISM and homeland defense The
com-mittee also has taken an active role in such social
issues asCIVIL RIGHTSprotection, law enforcement,
and reform of the criminal justice system
Controversies in 2001 extended to the cabinet
nominees, including the position of attorney
general When President GEORGE W BUSH
nomi-nated then-senatorJOHN ASHCROFT(R-Mont.) for
the position in 2001, Senator Patrick Leahy
(D-Vt.) immediately indicated that he would
oppose the confirmation While Ashcroft was
eventually confirmed, he also was required to
appear before the committee numerous times
throughout 2001 to report on issues involving
the Attorney General’s Office and the JUSTICE
DEPARTMENT
FURTHER READINGS
Denning, Brannon P 2002 “The Judicial Confirmation
Process and the Blue Slip ” Judicature 85 (March-April).
Dworkin, Ronald 2008 The Supreme Court Phalanx New
York: New York Review Board.
National Archives and Records Administration “Records
of the Committee on the Judiciary and Related
Committees ” Available at http://www.archives.gov/
research/guide-fed-records/groups/046.html (accessed June 3, 2009).
Nemacheck, Christine L 2007 Strategic Selection: Presiden-tial Nomination of Supreme Court Justices from Herbert Hoover Through George W Bush Charlottesville:
University of Virginia Press.
Nourse, Victoria F, and Jane S Schacter 2002 “The Politics
of Legislative Drafting: A Congressional Case Study ” New York University Law Review 77 (June).
Ralph Nader Congress Project 1975 The Judiciary Commit-tees: A Study of the House and Senate Judiciary Committees New York: Grossman.
CROSS REFERENCES Congress of the United States; Senate.
SENECA FALLS CONVENTION The Seneca Falls Convention, which took place
in Seneca Falls, New York, in July 1848, was the first national women’s rights convention and a pivotal event in the continuing story of U.S and women’s rights
The idea for the convention occurred in London in 1840 when ELIZABETH CADY STANTON
and Lucretia Mott, who were attending a meeting of the World Anti-Slavery Society, were denied the opportunity to speak from the floor or to be seated as delegates Mott and Stanton left the hall where the meeting was taking place and began to discuss the fact that while they were trying to secure rights for enslaved African Americans, American women found themselves treated unequally in numer-ous ways They concluded that what was needed was a national convention in which women could take steps to secure equal rights with men
Although they agreed that the need for such a convention was a pressing one, they were not to take action on their plan for several years
Both Stanton and Mott were progressive leaders who had been active in reform move-ments Mott, a former teacher who had grown up
in Boston, had become interested in women’s rights when she discovered that because she was female, she was earning a salary that was exactly half that of male teachers In 1811 she married fellow teacher James Mott and moved to Phila-delphia She became a member of the Society
of Friends (also known as the Quakers) and began to travel the country speaking on the topic of religion and issues including tempe-rance, peace, and theABOLITIONofSLAVERY In 1833 Mott attended the founding meeting of the American Anti-Slavery Society Shortly afterwards