Constitution could be invoked to impose limits on the substance of government regulations and other activities by which government affects “life, liberty, and property.” Since the 1880s,
Trang 1law because Virginia failed to prove a compel-ling state interest in preventing interracial marriages Legislation discriminating on the basis of religion or ethnicity, as well as those statutes that affect fundamental rights, also are inherently suspect
Depending on the facts of the case, legal resident ALIENS may be deemed a suspect class under the Equal Protection Clause, so courts will take a hard look at state laws barring aliens from government jobs For example, in Bernal
v Fainter, 467 US 216, 81 L Ed 2d 175, 104
S Ct 2312 (1984), a state law prevented non-U.S citizens from becoming notaries public
The Supreme Court struck down the statute because it could not withstand strict scrutiny
The state was unable to convince the Court of the necessity to keep aliens from becoming notaries public
Religion has also been deemed a suspect classification However, this finding has been limited to lower federal courts and state courts
Konikov v Orange County 302 F Supp 2d 1328 (M.D Fla 2004); Walsh v Carney Hosp Corp.,
1998 WL 1470698 (Mass Super 1998) The U.S Supreme Court has suggested that religion may be a suspect classification in dicta, but never in an express holding
Other classifications, such as those based on gender and illegitimacy (children born out of wedlock), are considered“quasi-suspect” classi-fications and are governed by an intermediate standard of JUDICIAL REVIEW Gender DISCRIMINA-TIONis justified only if the classification bears a fair and substantial relation to an important governmental interest U.S v Virginia, 518 U.S
515, 116 S Ct 2264, 135 L Ed 2d 735 (1996)
This intermediate scrutiny, rather than the more restrictive test used for racial classifica-tions, has also been applied to gender-based
AFFIRMATIVE ACTION programs Discrimination against illegitimate children is justified only if the classification is “substantially related to a legitimate state interest.” Mills v Habluetzel, 456 U.S 91, 99, 102 S Ct 1549, 1554, 71 L Ed 2d
770, 778 (1982)
Sexual-orientation discrimination receives mere rational-basis review when courts are reviewing laws affecting adoptions, guardian-ships,CHILD CUSTODY, visitation, housing, insur-ance, jury selection, medical services, procre-ation, professional licensing, or WORKERS’
COMPENSATION However, discrimination based
on sexual orientation may be reviewed more closely if it impacts aFUNDAMENTAL RIGHT, such as political participation Attempts to discriminate against gays, lesbians, and bisexuals through voter-enacted initiatives have also encountered judicial hostility In Romer v Evans, 517 U.S
620, 116 S Ct 1620, 134 L Ed 2d 855 (1996), the Court invalidated a voter-initiated state
CONSTITUTIONAL AMENDMENTprohibiting the gov-ernment from acting to protect gays and lesbians from discrimination Although the Court did not expressly refer to the classifica-tion as “suspect” or “quasi-suspect,” it did subject the initiative to very rigorous scrutiny
CROSS REFERENCES Equal Protection; Japanese American Evacuation Cases.
SUSPENDED SENTENCE
A sentence given after the formal conviction of a crime that the convicted person is not required to serve
In criminal cases a trial judge has the ability
to suspend the sentence of a convicted person The judge must first pronounce a penalty of a fine or imprisonment, or both, and then suspend the implementation of the sentence There are two types of suspended sentences
A judge may unconditionally discharge the defendant of all obligations and restraints An unconditionally suspended sentence ends the court system’s involvement in the matter, and the defendant has no penalty to pay However, the defendant’s criminal conviction will remain part of the public record A judge may also issue
a conditionally suspended sentence This type of sentence withholds execution of the penalty as long as the defendant exhibits good behavior For example, if a person was convicted of shoplifting for the first time, the judge could impose thirty days of incarceration as a penalty and then suspend the imprisonment on the condition that the defendant not commit any crimes during the next year Once the year passes without incident, the penalty is dis-charged If, however, the defendant does commit another crime, the judge is entitled to revoke the suspension and have the defendant serve the 30 days in jail
Whether a conditionally suspended sentence
is considered equivalent or complementary to a
PROBATION order or is considered an entirely distinct legal action depends on the jurisdiction
458 SUSPENDED SENTENCE
Trang 2Under a probation order, the convicted person
is not incarcerated but is placed under the
supervision of a probation officer for a specified
length of time A person who violates probation
will likely have his probation revoked and will
have to serve the original sentence
In some jurisdictions a postponement of
sentencing is also considered to be a suspended
sentence A postponement of a criminal
sen-tence means that the judge does not pronounce
a penalty immediately after a conviction Courts
use postponement and conditionally suspended
sentences to encourage convicted persons to
stay out of trouble In most cases courts will
impose these types of conditional sentences
for less serious crimes and for persons who do
not have a criminal record Where there is
overcrowding in jails, suspended sentences for
petty crimes may be used to prevent further
congestion
SUSPICION
The apprehension of something without proof to
verify the belief
Suspicion implies a belief or opinion that
something is somehow inappropriate, based
upon facts or circumstances that do not
constitute proof In the case of Terry v Ohio,,
392 U.S 1 (1968), the U.S Supreme Court held
that police need only a“reasonable suspicion,”
based on “specific and articulable facts”
sur-rounding a person’s behavior, that criminal
activity is (or or has been or soon will be) in
progress, to have grounds to STOP AND FRISK a
person without a warrant In the 1983 case of
Michigan v Long, 463 U.S 1032 (1983), the
Court cited Terry in holding that police could constitutionally search compartments of auto-mobiles based on reasonable suspicion
SUSTAIN
To carry on; to maintain To affirm, uphold or approve, as when an appellate court sustains the decision of a lower court To grant, as when a judge sustains an objection to testimony or evidence, he or she agrees with the objection and gives it effect
vSUTHERLAND, GEORGE George Sutherland served as associate justice of the U.S Supreme Court from 1922 to 1938
A conservative jurist, Sutherland opposed the efforts of Congress and state legislatures to regulate business and working conditions
During the 1930s he was part of a conservative bloc that ruled unconstitutional major parts
of President FRANKLIN D ROOSEVELT’s NEW DEAL
program
Sutherland was born on March 25, 1862, in Buckinghamshire, England When Sutherland was a young child, his parents immigrated to the United States, settling in Provo, Utah
Sutherland graduated from Brigham Young University in 1881 and attended the University
of Michigan Law School in 1882 and 1883 He was admitted to the Michigan bar in 1883 but returned that same year to Utah, where he established a law practice in Salt Lake City
Sutherland took an interest in politics and served in the territorial legislature In 1896, after Utah had become a state, Sutherland was elected to the first Utah Senate as aREPUBLICAN
◆
1862 Born, Buckinghamshire,
England
1861–65 U.S Civil War
1863 Sutherland's father converted to Mormonism and moved family to Provo, Utah
1883 Admitted
to Michigan bar, moved back
to Utah
1901–03 Served in U.S House
1897–1901 Served in Utah state Senate
1923 Wrote majority opinion in
Adkins v Children's Hospital
1905–17 Served
in U.S Senate
1914–18 World War I
1932 Wrote opinions overturning convictions of
the "Scottsboro boys" in Powell v Alabama
1935 Joined majority to strike
down NIRA in Schechter Poultry
Corp v United States
1936 Joined majority to strike down the Agricultural Adjustment Act of 1933 in
United States v Butler
1939–45 World War II
1942 Died, Stockbridge, Mass.
1932 FDR elected president, promised
"New Deal"
1922–38 Served
as associate justice of the U.S.
Supreme Court
◆
SUTHERLAND, GEORGE 459
Trang 3PARTY member In 1900 he was elected to the U.S House of Representatives, and in 1905 he became a U.S senator from Utah
Despite Sutherland’s reputation as a politi-cal conservative in Congress, he did support President THEODORE ROOSEVELT’S reform pro-grams He also supported WORKERS’ COMPENSA-TION legislation for railroad workers and the
NINETEENTH AMENDMENTto the U.S Constitution, which provided for women’s suffrage Never-theless, he believed that individual rights were paramount and that government should not intrude on most economic activities
After being defeated in the 1916 Senate election, Sutherland became involved in na-tional Republican politics and served as an adviser to PresidentWARREN G.HARDING, who was elected in 1920 Sutherland’s name had been mentioned for several years as a possible Supreme Court appointee, and in September
1922 Harding nominated Sutherland to the Court
Sutherland joined a Supreme Court domi-nated by conservatives Like the conservative majority, Sutherland believed in the doctrine of
SUBSTANTIVE DUE PROCESS, which held that theDUE PROCESS Clauses of the Fifth and Fourteenth Amendments to the U.S Constitution could be invoked to impose limits on the substance of government regulations and other activities by
which government affects “life, liberty, and property.” Since the 1880s, the Supreme Court had invoked substantive due process to strike down a variety of state and federal laws that regulated working conditions, wages, and busi-ness activities
Sutherland also adhered to the concept of liberty of contract, which held that the govern-ment should not interfere with the right of individuals to contract with their employers concerning wages, hours, and working condi-tions Sutherland wrote the majority opinion in Adkins v Children’s Hospital, 261 U.S 525, 43 S
Ct 394, 67 L Ed 785 (1923), in which the Court struck down a federalMINIMUM WAGElaw for women workers in the District of Columbia Sutherland concluded that employer and em-ployee had the constitutional right to negotiate whatever terms they pleased concerning wages Sutherland rejected the idea that Congress had the authority to correct social and economic disparities that hurt society in general
With theSTOCK MARKETcrash of 1929 and the Great Depression of the 1930s, the conservative majority on the Court came under intense public and political scrutiny Franklin D Roosevelt’s election in 1932 signaled a change
in philosophy concerning the role of the federal government Roosevelt’s New Deal was pre-mised on national economic planning and the creation of administrative agencies to regulate business and labor This was anathema to Sutherland and his conservative brethren From 1933 to 1937 the Court struck down numerous New Deal measures Sutherland, along with Justices JAMES C MCREYNOLDS, WILLIS VAN DEVANTER, and PIERCE BUTLER, formed the core of opposition to federal efforts to revitalize the economy and create a social safety net The so-called Four Horsemen helped strike down as unconstitutional theNATIONAL INDUSTRIAL RECOV-ERY ACT OF1933 in Schechter Poultry Corporation
v United States, 295 U.S 495, 55 S Ct 837, 79
L Ed 1570 (1935), and the Agricultural Adjustment Act of 1933 in United States v Butler, 297 U.S 1, 56 S Ct 312, 80 L Ed 477 (1936)
Roosevelt responded by proposing a court-packing plan that would have added an additional justice to the Court for each member over the age of 70 This plan targeted the Four Horsemen and, if implemented, would have canceled out their votes Although Roosevelt’s
George Sutherland.
PHOTOGRAPH BY
HARRIS & EWING.
COLLECTION OF THE
SUPREME COURT OF THE
UNITED STATES.
EPITAPH WHICH CAN
BE CARVED IN
VANISHED LIBERTY IS
THAT IT WAS LOST
BECAUSE ITS
POSSESSORS FAILED
TO STRETCH FORTH A
SAVING HAND WHILE
—G EORGE
S UTHERLAND
460 SUTHERLAND, GEORGE
Trang 4plan was rejected by Congress, the national
debate over the role of the federal government
and the recalcitrance of the Supreme Court
led more moderate members of the Court to
change their positions and vote in favor of
New Deal proposals With the tide turning,
Sutherland retired in 1938
Despite his conservative views on
govern-ment and business, Sutherland defended liberty
rights as well as property rights In POWELL V
ALABAMA, 287 U.S 45, 53 S Ct 55, 77 L Ed 158
(1932), Sutherland overturned the convictions
of the “Scottsboro boys,” a group of young
African Americans sentenced to death for an
alleged sexual ASSAULT on two white women
Sutherland ruled that the SIXTH AMENDMENT
guarantees adequate legal counsel in state
criminal proceedings
In his opinion in United States v Bhagat
Singh Thind (1923), however, Sutherland
de-nied Thind, a native of India, naturalized U.S
citizenship based on the fact that Thind did not
fall within the popular interpretation of the
term Caucasian (i.e., white), despite
anthropo-logical evidence suggesting the contrary The
ruling held until the passage of the Luce-Cellar
Act in 1946, which granted Indians
NATURALIZA-TIONrights Sutherland died on July 18, 1942, in
Stockbridge, Massachusetts
FURTHER READINGS
Olken, Samuel R 2002 “The Business of Expression:
Economic Liberty, Political Factions and the
For-gotten First Amendment Legacy of Justice George
Sutherland ” William and Mary Bill of Rights Journal 10
(February).
Olken, Samuel R 1997 “Justice George Sutherland and
Economic Liberty: Constitutional Conservatism and the
Problem of Factions ” William and Mary Bill of Rights
Journal 6 (winter).
SWANN V
CHARLOTTE-MECKLENBURG BOARD OF
EDUCATION
During the 15 years that followed the Supreme
Court’s momentousSCHOOL DESEGREGATION
deci-sion in BROWN V.BOARD OF EDUCATION, 347 U.S
483, 74 S Ct 686, 98 L Ed 873 (1954), school
boards throughout the South did little to
eliminate racial separation in the public schools
In some cases school boards merely announced
a race-neutral school attendance policy In other
cases white-dominated school boards closed
schools that were ripe for INTEGRATION and
instead built new schools in suburban areas that would be virtually white-only The NAACP and the federal government became increasingly frustrated by these methods and sought relief
in the federal courts As federal courts began to issue desegregation plans, questions arose over whether court-ordered supervision of local schools was proper In Swann v Charlotte-Mecklenburg Board of Education, 402 U.S 1, 91
S Ct 1267, 28 L Ed.2d 554 (1971) (also known
as North Carolina State Board of Education v
Swann) the Supreme Court issued another landmark decision, ruling that federal courts could exercise their remedial powers to end a dual school system divided by race The Court made clear that when school boards refused to act in GOOD FAITH, the federal courts had broad discretion to order, implement, and oversee the desegregation of school systems In addition, the Court endorsed the use of busing to ensure desegregation Swann was a controversial deci-sion that guided federal courts for almost 30 years By the late 1990s, however, federal courts had ended oversight of school desegregation and busing began to lose favor
The Charlotte-Mecklenburg school system included the city of Charlotte and the surround-ing Mecklenburg County, North Carolina The school district was very large, encompassing over 550 square miles of territory During the 1968–1969 school year 84,000 pupils attended
107 schools in the district, with 71 percent of the students white and 29 percent black Of the 24,000 black students, 21,000 attended schools within the city of Charlotte Of that number, 14,000 black students attended 21 schools with were either completely black or more than 99 percent black These statistics demonstrated that the racial SEGREGATION persisted 15 years after the Brown decision James E Swann and a number of other black parents filed suit in 1965, asking the federal court to mandate that the school system be desegregated The school board responded by passing a plan based on geographic ZONING with a free-transfer provi-sion Swann and the other plaintiffs returned to court in 1968 and asked again for a plan that would dismantle the dual system and impose a unitary system upon the school district
The district court conducted many hearings
on the issues and found that the school district had drawn school attendance zones in such a way as to result in segregated education The SWANN V CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 461
Trang 5key issue, however, was how to remedy this situation The school board proposed closing seven schools and restructuring attendance zones The court found little merit in this proposal, finding that more than half the black and white students would remain in heavily segregated schools The court appointed an expert, Dr John Finger, to prepare another desegregation plan The “Finger Plan” slightly modified the school board’s plans for high school and junior high school students but was more drastic when it came to handling the 76 elementary schools in the system This plan proposed using zoning, paring, and other grouping techniques so that student bodies in the school district would range from nine percent to 38 percent black Black students in grades one through four would be bused from the inner city to predominantly white schools in the suburbs, while white students in the fifth and sixth grades would be bused to predomi-nantly black schools in Charlotte Under this plan, nine inner city schools were grouped with
24 suburban schools
The Supreme Court, in a unanimous decision, upheld the desegregation plan and outlined what powers a federal court could employ to desegregate a public school system
Chief Justice WARREN BURGER, writing for the Court, noted that it had issued a second Brown decision in 1955 that addressed the need for school systems to move with “all deliberate speed” to end state-imposed segregated school systems Brown v Board of Education, 349 U.S
249, 75 S Ct 753, 99 L Ed 1083 (1955)
Despite the Court’s desire that desegregation decisions be made by local school boards, it concluded that very little progress had been made when it issued its 1968 decision, Green v
County School Board, 391 U.S 430, 88 S Ct
1689, 20 L Ed 2d 716 (1968) In Green the Court set out standards for measuring success
in creating a unitary school system that no longer displayed the vestiges of segregation The decision had made clear that school districts must take definite action to desegregate all aspects of public education or face court-imposed action With Swann, Chief Justice Burger saw the opportunity to “make plain”
and to “amplify guidelines” that would assist school districts and the lower federal courts
The Court first stated that once a school district had been found in violation of the
Fourteenth Amendment’s EQUAL PROTECTION CLAUSE, a district court’s “equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Though judges could only employ these vast powers on the basis of a constitutional violation, once a violation had been established a court could fashion a remedy based on the scope of the violation Chief Justice Burger rejected the school board’s claim that Title IV of the CIVIL RIGHTS ACT OF 1964 limited the federal courts’ ability to implement the Brown decision He concluded that the 1964 act restricted the courts from dealing with“de facto segregation,” where racial imbalance in the schools had occurred without the discriminatory actions of state officials The North Carolina schools had been segregated by state laws and therefore were subject to correction by the federal courts Chief Justice Burger addressed four main issues concerning student assignments to par-ticular schools: (1) the use of racial balance or quotas; (2) the elimination of one-race schools; (3) limitations on attendance zones; and (4) the use of busing to correct state-enforced racial school segregation As to the first issue, Burger emphasized that courts should not use a“fixed mathematical” ratio of white to black students for each school A school district did not have the obligation to ensure that “every school in every community must always reflect the racial composition of the school system as a whole.”
In the case of the Charlotte-Mecklenburg schools, however, the court-approved ratio of
71 percent to 29 percent was“no more than a starting point in the process of shaping of a remedy.” The limited use of this ratio was within the discretion of the district court
As to one-race schools, Chief Justice Burger found that these would require“close scrutiny
to determine that school assignments are not part of state-enforced segregation.” Moreover, where a school system has a history of segregation, the courts were warranted to presume that one-race schools had been created
as a result of past or present discriminatory action As to the altering of school attendance zones, the Court admitted that federal courts had employed “drastic” gerrymandering to ensure a mix of white and black students Such actions were acceptable as “interim corrective measure[s]” and were not “beyond the broad remedial powers of a court.”
462 SWANN V CHARLOTTE-MECKLENBURG BOARD OF EDUCATION
Trang 6The use of busing to desegregate public
schools was the most controversial remedy
imposed by the federal courts Chief Justice
Burger noted that bus transportation had been
an integral part of U.S schools for years and
that 39 percent of public school children had
been bused during the 1969–1970 school year
The “normal” use of bus transportation,
coupled with the finding that neighborhood
school attendance zones would not dismantle
the dual school system, led the Court to
conclude that busing was an acceptable remedy
Burger pointed out that under the desegregation
plan many students would actually have shorter
bus rides To rule out busing would doom
desegregation
The Court pointed out that the school
system would someday be judged unitary and
that the federal court would withdraw from its
oversight of the system At that point the school
board would be free to consider how it wanted
to draw its attendance zones This happened in
1999 when the district court released the
Charlotte-Mecklenburg district from its order
The school district then ended busing and
returned to neighborhood attendance zones
Segregation of the school district also returned
FURTHER READINGS
Chemerinsky, Erwin 2006 Constitutional Law: Principles
and Policies 3d ed New York: Aspen Publishing.
Kluger, Richard 1976 Simple Justice New York: Random
House.
Orfield, Gary, Susan E Eaton, and Elaine R Jones 1997.
Dismantling Desegregation: The Quiet Reversal of
Brown v Board of Education New York: New Press.
Schwartz, Bernard 1986 Swann’s Way: The School Busing
Case and the Supreme Court New York: Oxford Univ.
Press.
CROSS REFERENCES
Civil Rights Acts; Discrimination.
SWAT TEAMS
First developed in the 1960s by local law
enforcement agencies, Special Weapons and
Tactics units, or SWAT teams, have become
common in police departments throughout the
United States These teams generally consist of
small numbers of highly trained officers who
use special weapons and tactics to handle
high-risk situations Although SWAT teams have
been used successfully during countless
num-bers of altercations since their development,
some critics charge that their use exceeds the traditional POLICE POWERgiven to the states
SWAT teams began during the turbulent 1960s In August 1966, Charles Joseph Whit-man climbed a tower on the campus of the University of Texas at Austin and shot 47 people, killing 15 The incident took place during a 90-minute span, and police officers were ill-equipped to handle the situation
Officers eventually climbed the tower and reached Whitman’s position, killing him after
he tried to shoot the officers
Police departments recognized that their forces needed officers trained to handle these types of incidents
The Los Angeles Police Department (LAPD) had struggled to contend with rioters during the
1966 Watts riots Officers found that traditional police and riot-control tactics were ineffective against the disorganized nature of the mobs they faced During the same year, LAPD officers were ambushed by Jack Ray Hoxsie, who began
a shooting spree from within his home Officers failed in their attempts to shoot back at Hoxsie
They were successful in subduing the situation only after they threw tear gas through a broken window and then stormed the house
Former LAPD Police Chief Daryl Gates is credited with developing the first SWAT team
in 1966 Gates was then a patrol area com-mander in charge of the Metro Division of the LAPD The division was a floating police unit responsible for handling unusual criminal activity within the city of Los Angeles Gates and others in the LAPD studied guerrilla warfare tactics of the U.S military, determining that new teams trained to handle these danger-ous situations needed to be smaller, with each member of the team given a specific purpose
The LAPD SWAT teams gained notoriety in
1969 when one of the teams was used to serve
anARREST WARRANTon two members of the Black Panthers, a radical and armed activist group known nationally for espousing revolutionary politics The mission was successful Five years later, the LAPD SWAT force, in conjunction with federal SWAT teams, engaged in an altercation with the Symbionese Liberation Army (SLA), best known for its KIDNAPPING of publishing heiress PATTY HEARST During the altercation between the SWAT team members and the SLA, the house in which the SLA
SWAT TEAMS 463
Trang 7members were hiding caught fire, eventually killing the six members
The number of SWAT teams in police departments began to rise during the 1970s and has risen steadily ever since An estimated
90 percent of police departments in cities with populations of more than 50,000 maintain SWAT teams The vast majority of federal law enforcement agencies have also established specialized response units SWAT is among a number of names given to such units by federal and local agencies Others include Special Response Team (SRT), Emergency Response Team (ERT), Special Emergency Response Team (SERT), and Emergency Services Unit (ESU)
SWAT teams are designed to work only in extraordinary circumstances, such as those involving hostages, hijackers, and suspects who have barricaded themselves The most common use of SWAT teams is to assist other officers in serving arrest warrants when the subject of the warrant is considered a high risk SWAT teams generally enter and secure the premises where the subject is located so that officers charged with serving the warrant can do so The use of SWAT teams is rather common in the appre-hension of suspected drug dealers, who are often armed and considered dangerous
In 1981 Congress passed the Military Cooperation with Law Enforcement Officials Act, which allows the U.S military to provide equipment and facilities for civilian police in the war on drugs As a result, SWAT teams could be armed with military-style, high-tech arms and other equipment to carry out their functions
Moreover, many members of SWAT teams receive their training from military units The result is that some SWAT teams now resemble paramilitary units more than they represent a division of a civilian police force
The widespread use of SWAT teams has been criticized as the militarization of civilian law enforcement Critics note that some SWAT teams are now used in routine police matters and that the paramilitary approach adopted by the SWAT teams is not appropriate for enforce-ment of the law Law enforceenforce-ment supporters often respond that criminals are much more dangerous than they were in the past and that traditional civilian policing methods are ineffec-tive against many types of criminals
In April 1999, more than 30 years after Charles Joseph Whitman climbed a tower on
the campus of the University of Texas and shot
47 people, a SWAT team was called to respond
to a shooting at Columbine High School in Littleton, Colorado There, students Eric Harris and Dylan Klebold embarked on a shooting spree that resulted in the deaths of 15 people The SWAT team faced harsh criticism after the widely publicized massacre, amidst claims that they had taken too long to get into the building The official report concerning the incident reflected that the delay was attributable to the mass confusion at the scene and the conflicting information that the officers were given during the incident In the years following the Colum-bine massacre, law enforcement agencies across the nation have continued to evaluate changes that could be implemented to save lives and increase safety in the future
FURTHER READINGS Chronis, Peter G May 16, 2000 The Columbine Report: SWAT Team Hampered By Confusion www.denverpost com (accessed September 21, 2009).
Mijares, Tomas C., Ronald M McCarthy, and David B Perkins 2000 The Management of Police Specialized Tactical Units Springfield, Ill.: C.C Thomas Singh, Karan R 2001 “Treading the Thin Blue Line: Military Special-Operations Trained Police SWAT Teams and the Constitution ” William and Mary Bill
of Rights Journal 9 (April).
Smith, Dave April 20, 2009 A Decade after Columbine: We’re Still Learning, Teaching.www.policeone.com (accessed September 21, 2009).
Snow, Robert L 1999 SWAT Teams: Explosive Face-Offs with America’s Deadliest Criminals Cambridge, Mass.:
De Capo Press.
CROSS REFERENCE Police Power.
vSWAYNE, NOAH HAYNES Noah Haynes Swayne served as associate justice
of the U.S Supreme Court from 1862 to 1881
A prominent Ohio attorney for almost 40 years before becoming a judge, Swayne was President
ABRAHAM LINCOLN’s first Supreme Court appoint-ment His tenure on the Court was relatively undistinguished
Swayne was born on December 7, 1804, in Frederick County, Virginia He studied law with two Virginia attorneys and was admitted to the Virginia bar in 1823 His antislavery views proved troublesome, however, and he moved his law practice to Coshocton, Ohio Appointed county attorney in 1826, Swayne soon became involved inDEMOCRATIC PARTYpolitics An ardent
464 SWAYNE, NOAH HAYNES
Trang 8supporter of PresidentANDREW JACKSON, Swayne
was elected to the Ohio state legislature in 1829
In 1830 Jackson named him U.S district
attorney, a position he held for almost ten
years He moved to Columbus, Ohio, to
administer his office
By 1840 Swayne had returned to private
practice, but he served on many public
commissions in Ohio, including a commission
to arbitrate a boundary dispute between Ohio
and Michigan He left the Democratic party in
1856 because he disagreed with the party’s
support ofSLAVERYand joined the newly formed
REPUBLICAN PARTY As a lawyer, he represented
several runaway slaves in legal proceedings in
which slaveholders sought to reclaim their
property
In 1862 JusticeJOHN MCLEAN, an Ohio native
and friend of Swayne, died suddenly Swayne
used his Ohio political connections to lobby for
an appointment to the Supreme Court
Presi-dent Lincoln nominated Swayne in January
1862 He was confirmed two days later
Though Swayne spent almost twenty years
on the Supreme Court, he left no mark on the
institution An inveterate politician, he lobbied
for the position of chief justice in 1864 and
1873 During the U.S CIVIL WAR, he was a
consistent supporter of Lincoln’s emergency
war measures, including the imposition of
MARTIAL LAW and the issuance of paper money
called“greenbacks,” which were not redeemable
for gold or silver In addition, he upheld the
constitutionality of a federal INCOME TAX
im-posed during the Civil War (Springer v United
States, 102 U.S (12 Otto) 586, 26 L Ed 253
[1881])
Swayne retired from the Court in 1881 He
died on June 8, 1884, in New York City
SWIFT V TYSON For almost 100 years, the U.S Supreme Court’s decision in Swift v Tyson, 41 U.S (16 Pet.) 1, 10
L Ed 865 (1842), allowed the federal courts to create their own body of civil COMMON LAW in cases in which the parties were from different states In exercising its diversity jurisdiction, a federal court was free to ignore the pertinent common law of the state in which it sat and apply federal common law Though it was intended to encourage the development of a uniform set of COMMERCIAL LAW principles, the Swift decision was sharply criticized as an unwarranted intrusion into areas reserved to state courts
Swift involved a legal dispute over the law of negotiable instruments A NEGOTIABLE INSTRU-MENT is a document by which one party promises to pay either money or goods to
Noah H Swayne THE LIBRARY OF CONGRESS
1804 Born,
Frederick County, Va.
1812–14 War of 1812
1823 Admitted
to Va bar
1826 Served as prosecuting attorney of Coshocton County (Ohio)
1829 Served in Ohio legislature
1836 Served
in Ohio legislature
1830–39 Served as U.S attorney for Ohio
1856 Switched from Democrat
to the new Republican Party
1861–65 U.S Civil War
1864 Lobbied for chief justiceship but it went to Salmon Chase
1873 Lobbied for chief justiceship but it went to Morrison Waite
1862–81 Served as associate justice of the U.S Supreme Court
1881 Upheld federal income tax imposed during the Civil War in
Springer v United States
1884 Died, New York City SWIFT V TYSON 465
Trang 9another party, called the“bearer.” For example,
a check written on a person’s bank account is a negotiable instrument Negotiable instruments used by business are called COMMERCIAL PAPER
and played an important role in the U.S
economy in the early nineteenth century One unresolved issue was whether the bearer could assign aBILL OF EXCHANGEto aTHIRD PARTY, who could then collect on the obligation
The question of assignments was at the heart of Swift A third-party assignee of a bill of exchange drawn in New York presented it for payment and was refused The third party, who was not a New York resident, sued in New York federal district court The New York COMMON LAW held that a bill of exchange could not be assigned, and the federal judge ruled accord-ingly Because New York was the leading commercial center in the United States, this ruling had serious implications for the national economy
On appeal, the U.S SUPREME COURT over-turned the decision by reinterpreting the federal
RULES OF DECISION ACT, originally section 34 of the
JUDICIARY ACT OF1789 (1 Stat 73) In its original form, the act provided that “the laws of the several states shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.”
The main issue before the Court concerned the meaning of the word laws The Court considered whether the word was limited to legislatively enacted statutes or included state common law decisions as well
Justice JOSEPH STORY, writing for a unani-mous court, concluded that the term laws did not include common law decisions Such decisions were“at most, only evidence of what the laws are, and are not, of themselves, laws.”
Except for decisions of a“local” nature, such as those pertaining to REAL ESTATE, a federal judge was not required to apply a “general” state common law rule involving commerce to a diversity-based case Under the Rules of Deci-sion Act, a federal judge could apply only state statutes to a legal dispute
Story, who was the leading U.S authority
on COMMERCIAL LAW and commercial paper, believed it was imperative for the growth of the U.S economy that the United States develop a uniform national law of commerce for the federal courts to apply Therefore, he
declared that federal common law permitted the assignment of commercial paper Economic and legal historians have concluded that Swift did contribute to the growth of multistate transactions and the national economy Busi-nesses were able to assign commercial paper without fear that a state would invalidate the assignment
Nevertheless, the decision angered many who believed a federal common law interfered with the right of states to develop their own principles of commercial law The Swift doc-trine also led to situations in which the
SUBSTANTIVE LAW applied to litigants might be determined simply by the fortuity of their residences Two cases might have different legal results depending only on whether thePLAINTIFF
and theDEFENDANT were from the same state or from different states This led to significant unfairness and forum shopping For example, in Black & White Taxicab & Transfer Co v Brown
& Yellow Taxicab and Transfer Co., 276 U.S
518, 48 S Ct 404, 72 L Ed 681 (1928), a Kentucky corporation dissolved and reincorpo-rated in Tennessee to obtain the benefit of substantive federal common law against another Kentucky corporation
Faced with mounting criticism of Swift, in
1938 the Supreme Court overturned the deci-sion inERIE RAILROAD CO.V.TOMPKINS, 304 U.S 64,
58 S Ct 817, 82 L Ed 1188 Federal courts were again required to apply state law, whether statutory or common, in diversity-jurisdiction cases In a radical shift from Swift, federal district courts periodically refer questions to state supreme courts, asking for a ruling on what the state law is on a specific issue Although federal common law no longer exists in the same form as it did under Swift, a type of common law still exists in the federal courts today The most notable area of federal common law involves the rights and obligations
of the United States government itself
FURTHER READINGS Cleveland, Coker B 2001 “Steamfitters Local Union No 420 Welfare Fund v Philip Morris: Is Swift v Tyson Dead?” American Journal of Trial Advocacy 25 (summer) Anastaplo, George 2006 Reflections on Constitutional Law Lexington: Univ Press of Kentucky.
CROSS REFERENCES Constitutional Law; States ’ Rights.
466 SWIFT V TYSON
Trang 10A headnote; a short note preceding the text of a
reported case that briefly summarizes the rulings
of the court on the points decided in the case
The syllabus appears before the text of the
opinion The syllabus generally is not part of the
opinion of the court but is prepared by a legal
editor employed by a private law book company
that publishes court decisions to serve as a quick
reference for a researcher Some courts prepare
the syllabus for their own decisions, but in many
states the syllabus has no legal effect Ohio is one
exception, however, where the court-prepared
syllabus is part of the decision and is considered
a statement of the law In most states, only the
opinion of the court containing the original
statement of the grounds for the opinion may be
used in legal papers in a lawsuit to convince a
court or jury of a particular point of law
CROSS REFERENCE
Court Opinion.
SYMBOLIC DELIVERY
The constructive conveyance of the subject matter
of a gift or sale, when it is either inaccessible or
cumbersome, through the offering of some
substi-tute article that indicates the donative intent of the
donor or seller and is accepted as the
representa-tive of the original item
For example, when one individual wishes to
make a gift of a car to another individual, he or
she might do so by handing over the keys and
all documents indicating ownership thereof In
the law of real property, the transfer of a twig or
clod of dirt from the grantor of land to the
grantee was LIVERY OF SEISIN that constituted
symbolic delivery of the right of legal possession
or ownership of land pursuant to a freehold
estate In the early twenty-first century, the transfer
of a deed from the seller to a buyer demonstrates
the change in ownership of property
SYMBOLIC SPEECH
Symbolic speech consists of nonverbal gestures and
actions that are meant to communicate a message
The term symbolic speech is applied to many
types of nonverbal communication Many
political activities, including marching, wearing
armbands, and displaying or mutilating the
U.S flag, are considered forms of symbolic
expression The U.S Supreme Court has held
that this form of communicative behavior is
entitled to the protection of theFIRST AMENDMENT
to the U.S Constitution, but the scope and nature of that protection have varied Courts have also referred to symbolic speech as speech plus or speech plus conduct
Initial Recognition of Symbolic Speech under the First Amendment
The Supreme Court first gave symbolic speech First Amendment protection in Stromberg v
California (283 U.S 359, 51 S Ct 532, 75 L Ed
1117[1931]) The Court overturned a California statute that prohibited the display of a red flag
as a “sign, symbol or emblem of opposition to organized government.” But not until the
VIETNAM WAR era did the Court articulate the rules to be followed in determining whether symbolic expression is entitled to the protection
of the First Amendment
Symbolic Speech during the Vietnam War
In United States v O’Brien (391 U.S 367, 88 S
Ct 1673, 20 L Ed 2d 672 [1968]), the Court reviewed the conviction of David Paul O’Brien for violating a 1965 amendment to the Selective Service Act (50 U.S.C.A App §§ 451 et seq.) that prohibited any draft registrant from know-ingly destroying or mutilating his draft card
O’Brien had burned his Selective Service card on the steps of the South Boston Courthouse at a rally protesting the Vietnam War He claimed that his act of burning his card was symbolic speech protected by the First Amendment The government argued that it could prohibit this conduct because it had a legitimate interest in requiring registrants to have draft cards always
in their possession as a means of ensuring the proper functioning of the military draft
The Supreme Court sided with the govern-ment, with Chief Justice EARL WARREN rejecting
“the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby
to express his idea.” When “speech” and
“nonspeech” elements are combined in the same course of conduct, a lesser burden will be placed on the government to justify its restric-tions Accordingly, the Court announced the appropriate constitutional standard:
[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers
an important or substantial government
SYMBOLIC SPEECH 467