Chapter 17
RIGHTS TO LIFE, LIBERTY AND
PROPERTY
Citizenship Rights
 When are they granted?
 1868-14th Amendment-prior to this, each
state determined citizenship
 Includes various territories such as Guam,
Puerto Rico
 Does not include those born to foreign
ambassadors
NATURALIZATION
 A legal action conferring citizenship on an
alien
 Lawfully admitted aliens, 18+ and living in the
U.S. for minimum of 5 years
 Any state /federal court or INS can naturalize
DUAL CITIZENSHIP
 Common for those who are from nations that
do not allow right of expatriation(renouncing
of citizenship) to one’s citizens
 Children born abroad to U.S. citizens or
children born in U.S. to citizens of a foreign
nation
Rights of American Citizens
 Slaughter-House Cases(1873)-privileges of
U.S. citizens and those of state citizens
 Court held that Federal gov only owed
privileges in the Constitution or federal lawsto vote, to travel, to assemble
 Exceptions always in times of war to
guarantees of citizenship
Right to live and travel in
U.S.
 Can’t be limited by Congress, everyone wants
to live in the U.S. but only citizens cannot be
denied
Right to travel abroad
 Can be regulated within due process
 Currently must have passport
 Travel to Cuba prohibited unless special
permission is granted
Rights of Aliens
 Constitution protects rights of all persons so
can’t deny the right of freedom of religion,
speech, can’t be denied due process of law or
equal protection under law(unless “enemy
combatants”
 Can exclude from welfare, etc., but not from
emergency medical care, disaster relief, nutrition
programs or public education(Plyler v. Doe 1982)
Admission to the U.S.
 Congress regulates
 Immigration Act 1965-sets annual ceilings of
non-refugee aliens, limits on refugee aliens,
limits from specific nations
Property Rights
 Framers stress that part of the role of
government is to protect the right to
property ownership and to enjoy the
ownership of that property
Property rights; Police
Powers
 Contract Clause-protects the agreements
between individuals or businesses from
intervention of government
 Discarded over time; Supreme court states
these can be modified by state law to avert
social and economic catastrophe
 Thus, establishing police power-inherent
power of state to protect the public health,
safety and welfare
Property Rights
Government Taking of
Property
 State and national have eminent domain
power-taking of property for public use, with
just compensation-5th Amendment
 Regulatory taking: government regulation of
property so extensive that gov is deemed to
have gone too far in taking property, must
reimburse losses
 Government may regulate use of land
without taking it and without compensation
Due Process Rights
 What is meant by due process?
 No fixed definition-rules and regulations that
restrain government officials in the exercise
of their power
Procedural and Substantive
Due Process
 Procedural Due Process-government must
follow proper methods in how it applies the
law or uses its power
 Substantive Due Process-requirement that
government act reasonably and that the
substance of the laws themselves be fair and
reasonable; places limits on what a
government may do: contents of the law
Privacy Rights
 Abortion rights
 Sexual orientation rights
Abortion Rights
 1. Supreme Court ruling in Roe v. Wade (1973)
 2. Planned Parenthood v. Casey -Rehnquist
court upheld the view that due process
clauses of the Constitution protect
a
woman’s liberty to choose an abortion
prior to viability
 …however laws that restrict this liberty are ok
unless they place an “undue burden” on the
woman
3. Stenberg v. Carhart-Court strikes down a
Nebraska law that prohibits partial birth abortion
 Carhart v. Gonzales (2003)-Robert’s Court
decides that Congress’ law banning partial
birth abortion does not place undue burden
on a woman’s liberty to seek abortion
Sexual Orientation Rights
 1986-Court refuses to extend any protection
to relations among homosexuals
NOTE: Privacy, as substantive due process, still
developing in con law
In Boy Scouts of America v. Dale-boy scouts
could deny scout leadership to homosexuals
based on right to associate/assemble as
freedom of expression
Gender Rights
Rights of the Accused
 Freedom from Unreasonable Searches and
Seizures
 Exclusionary Rule
 Rights to Remain Silent
 The Miranda Warning
 Fair Trial Procedures
 Right to Counsel
 Indictment
 Trial
Sentencing and Punishment
Double Jeopardy
Three Strikes and You’re Out
The Death Penalty
Rights of persons accused of
crimes
 Fourth Amendment Protection from
unreasonable search and seizures
 Seizures given less protection
 The Constitution only forbids “unreasonable”
search and seizures
Fourth Amendment and Search
and Seizure
 Warrantless search and seizure Automobile exception
 The Terry exception
 Searches subsequent to a valid arrest
 Consent
 Border searches
 Plain view exception
 Exigent circumstances
 Foreign agents
“Unreasonable” search and
seizure
 Outside of the exception in previous list,
search and seizure must accompany a valid
search warrant
 Constitutional requirements for a
Constitutionally acceptable search
 Must describe the place to be searches
 Must describe what things are to be seized
The Exclusionary Rule
 Mapp v. Ohio (1961)-evidence obtained
illegally can’t be used as evidence in a
criminal trial as part of the main case against
persons from whom it was seized
 Purpose: to prevent police misconduct
 Establishes the exclusionary rule but applies
only to person the evidence was seized from
Right to Remain Silent
 Fifth Amendment protection against self-
incrimination
 Grant of immunity-authorities want
information rather that prosecution so grant
immunity and therefore witness no longer
can claim fifth since there will be no need to
protect one’s self.
Miranda Warning
 Miranda v. Arizona ((1966)-no conviction
could stand if evidence had been obtained by
police during “custodial interrogation”
unless…
 Notified that they are free to remain silent
 Warned that what they say may be used against
them in court
 Told that they have a right to have counsel
present during questioning
 Permitted to terminate investigation at any time
Criticisms of the Miranda
Rule
 Fugitives from justice go free unnecessarily
Fair Trial Procedures
 Preliminary hearing and right to counsel
 1. Judges have an obligation to ensure that all
persons subject to custodial interrogation are
represented by lawyers
 2. Right to counsel extends to all hearings for all
offenses for which an accused could be deprived
of liberty
The Indictment
 1.Grand jury indictment is necessary in order
to require anyone to stand trial for a serious
crime
 2. Jurors determine if enough evidence to
charge
 3. If they issue indictment they feel evidence
warrants a trial
Indictment continued
 4. Constitution guarantees the accused the
right to be informed of the nature and cause
of the accusation so that a defense may be
prepared
 4. Plea bargaining-pleading guilty to a lesser
offense in return for not having to go to trial
for a more serious charge(90% of cases)
Trial
 1. obligation to give a speedy and public trial
 2. impartial jury-requirements of due process
and equal protection = persons that are a
cross section of community
 3. Preemptory challenges cannot be used to keep
people off juries based on race, ethnic origin
or sex
 4.defendant has right to obtain own
witnesses; if no fifth is pleaded must allow
cross-examination
5. Right to confront witnesses
The sentencing and the
punishment
 1. Eighth Amendment forbids levying of fines
and inflicting of cruel and unusual
punishment
 2. federal court judges must follow
sentencing guidelines as set down by the U.S.
Sentencing Commission
The Death Penalty
 Court halts capital punishment until states
could administer it in “consistent fashion”
 Since reinstatement in 1976, _____ executed
and more that ______ are on death row.
 Fifteen members of EU have outlawed death
penalty
 Growing concern over fairness of death
penalty, 2/3 or all death sentences
overturned, releases after DNA technology
Three Strikes and You’re Out
 Public concern about crime is up, need for
“toughness”
 Scholars skeptical about three strikes idea,
not sure it will cut crime
Appeals and Double Jeopardy
 Fifth Amendment prevents individual from
being tried again(if found innocent)
 Can still be tried by both federal and state
governments for the same crime(or by two states)
 Double jeopardy does not forbid civil prosecution
after acquittal in a criminal trial
Is Our System Really Just?
 Too many loopholes
 Too unreliable
 Too discriminatory
 Unfair to minorities
How Just is our Justice
System
 Too many loopholes?
 Overprotect the innocent and put too much
burden on the government—criminals go
unpunished
 Others argue that each stem in administration of
criminal laws has been constructed to protect
against particular abuses
Too Unreliable?
 Trial by jury is the problem. Jury system
allows for nullification and unpopular verdicts
have led to state laws regarding jury system
 Opposite this argument is that the jury
system is good and provides a check on the
actions of judges and prosecutors, does not
systematically differ from those of judges,
educates citizens
Too discriminatory?
 Supreme Court has worked hard to enforce
ideal of equal justice under the law
 Poor people must have attorneys, not be
imprisoned if can’t afford fines
 Even civil cases, like divorce, discriminatory
fees are banned
Unfair to Minorities
 Tension exists between police and African
American and Hispanic communities in the
ghettos and barrios of large cities (California
study)
 Blacks consider the police to be enforcers of
white law; there is an element of racial
prejudice in police shooting at minorities
 Action has been taken to recruit more
minorities into polcie force