By Richard A. Primus
Richard A. Primus examines 3 the most important sessions in American background (the past due eighteenth century, the Civil warfare and the Nineteen Fifties and Sixties) and demonstrates how the conceptions of rights winning at every one of those instances grew out of competition to concrete political situations. within the first research of its sort, Primus highlights the impact of totalitarianism (in Nazi Germany and the Soviet Union) at the language of rights. This e-book can be an enormous contribution to modern political thought, of curiosity to students and scholars in politics and govt, constitutional legislation, and American heritage.
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Page 169 ninety nine who are citizens of this State shall be liable to serve as jurors. " Just as the term "privilege" echoed Hohfeld in the context of voting, the word "liable" echoes Hohfeld in the context of jury service. The statute's use of the term was analytically consistent with Hohfeld's use: white male West Virginia citizens over twentyone had a liability, Hohfeld would say because they were subject to a legal power of another agent (the State) to compel them to do something. In Hohfeldian terms, that relationship defines a liability and not a right. But again, Hohfeld's rules miss the performative aspect of calling something a right, namely that calling something a right identifies it as important and deserving of special protection. The ability to serve on juries has long been recognized as a mark of enfranchisement, an instrument of power, and a trust bestowed only on those who hold the confidence of the community. When the Supreme Court in Strauder v. West Virginia considered the constitutionality of the West Virginia statute, it described jury service as a "right,'' despite the language of the statute. As Amar and others note, jury service began Reconstruction as a political right. 100 The Supreme Court, however, did not remain convinced of that categorization. The Strauder court declared that a state could not exclude blacks from jury service, but it did not argue that blacks enjoyed the same political rights as whites. Instead, the Court noted that the Constitution guaranteed blacks "all the civil rights that the superior race enjoy" and struck down the statute as a violation of the Fourteenth modification. 101 There was some ambiguity in Strauder as to whether the right being litigated was the right to serve on a jury or the right of defendants to be tried by juries from which people of their own race had not been excluded: Amar has recently offered a reading on which the former right is political and the latter right civil. If the holding in Strauder is only about one or the other, the latter option is probably the stronger one, and the best assessment is probably that the Court did not clearly limit its analysis to one right or the other. 102 This murkiness makes it difficult to cite Strauder as conclusive proof that the Supreme Court in 1880 saw jury service as a civil rather ninety nine West Virginia Acts of 1872–73, p. 102, qouted in Strauder v. West Virginia, 100 U. S. 303 (1880), at 305. a hundred Amar, Bill of Rights, p. 271. one zero one Strauder v. West Virginia, 100 U. S. at 306. 102 Compare Strauder, at 305, 309, 310, discussing the right of the defendant, with page 308 of the same case, which discusses the right to serve as a juror. Page 170 than a political right, inasmuch as Strauder might merely hold that the defendant's right was a civil right. Two companion cases to Strauder, however, removed much of the ambiguity. Virginia v. Rives explicitly analyzed exclusion from jury service as a denial of the potential juror's civil rights. 103 In Ex Parte Virginia, the Court upheld the detention of a state judge who had prevented blacks from serving as jurors, and it identified the issue as an issue of civil rights under the Fourteenth modification.
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