Approaches to “Living Constitution”

Introduction

Legislative system of the United States of America is one of the most sophisticated and advanced systems of legislation in the world. Its laws cover numerous areas of people’s lives and they are always aimed at protection of innocent people and punishment of the criminals.

However, the original aim of the whole system of legislation of the United States of America is to prevent crime. To reach this aim, appropriate authorities pass a range of legislations which are aimed at protection of rights of innocent people.

Unfortunately, sometimes it happens so that criminals use them to escape punishment and in many cases of this type courts are not able to develop appropriate facts and clues to exercise justice; however, there are a range of theories which are aimed at development of the necessary arguments which later contribute to peace of the society.

Cases

Cohen v. California

The first case I have chosen is Cohen v. California. The decision about this case took place in 1971. Paul Robert Cohen, who was 19 years old. was arrested in 1968. The reason of the arrest was the fact the teenager had the words “Fuck the Draft” written on his jacket while finding himself in the Los Angeles Courthouse.

It was claimed that the adolescent violated 415th section of the California Penal Code. The boy demonstrated offensive conduct, as the law mentions “ HYPERLINK “http://en.wikipedia.org/wiki/Malice_(law)” \o “Malice (law)” maliciously and willfully disturbing the HYPERLINK “http://en.wikipedia.org/wiki/Peace” \o “Peace” peace or quiet of any neighborhood or person by offensive conduct” [1], so Cohen was imprisoned for one month. The California Court of Appeal and California Supreme Court upheld the conviction [1].

Supreme Court of the United States, per Justice John Marshall Harlan II overturned the decision by a vote of 5-4. Arguments of Harlan can be divided into three main points:

the states cannot censor their citizens in order to “civilize” society(as Justice Harlan began with underlying a point about freedom of speech about not “conduct”)

the line between harmless heightened emotion and vulgarity is very vague

Passion is essential element of politics and vulgarity is simply a side effect of a free exchange of ideas.

In own argumentation the Justice emphasized that the role of the First Amendment to US Constitution is to defend the inviolability of the freedom of ideas. So, I suppose that Harlan’s decision was based not on “living constitution” approach, but statutory interpretation of constitutional law, protecting the basic sense of the First Amendment mentioned above.

“To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve.

That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength” [4]. According to Harlan’s famous quote: “one man’s HYPERLINK “http://en.wikipedia.org/wiki/Vulgarity” \o “Vulgarity” vulgarity is another’s HYPERLINK “http://en.wikipedia.org/wiki/Lyric_poetry” \o …
Posted by: Mariana Galipeau

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