Chapter 2
The American Quest for Freedom
and Justice: Our Laws
The Declaration of Independence
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Asserts that all individuals are created equal
and are entitled to unalienable rights of life,
liberty and the pursuit of happiness.
Government derives power from the PEOPLE.
American Creed: a body of beliefs about
equality, liberty and justice which most
Americans believe in.
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Americans demanded CIVIL RIGHTS and
CIVIL LIBERTIES from the English.
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Civil Rights: claims that the citizens has the
affirmative assistance of government.
Civil Liberties: an individual’s immunity from
governmental oppression.
The Declaration of Independence broke our
ties with England.
Types of Law
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Social or Moral Law
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Laws made by society and enforced solely by
social pressure
Common Law:
Precedents set by the judges in the royal courts as
disputes rose
 Case Law:
Judicial precedents; no specific law exists, but a
similar case serves as a model
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Statutory Law:
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Legislated and written law
May be passed at the federal or state level
At both levels includes constitutional and ordinary law
Constitutional law:
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Amendments and interpretations by federal courts
Ordinary law:
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Acts of congress, treaties with foreign states, executive
orders, regulations, and interpretation of the preceding by
federal court.
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Equity
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Demands that laws change as society
changes, resorting to general principles of
fairness and justice whenever existing law is
inadequate.
Requires “spirit of the law” take precedence
over “letter of the law”
Constitutional Law
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Constitution:
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System of fundamental laws and principles
that prescribe the nature, functions and limits
of a government or other body.
The US Constitution, ratified in 1789, is
the basic instrument of government and
the supreme law of the land.
Bill of Rights
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The Bill of Rights refers to the first 10
amendments to the constitution, which
protect the peoples’ liberties and forbid
the government to violate these rights.
First Amendment
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Guarantees
Guarantees
Guarantees
Guarantees
assembly
Guarantees
freedom
freedom
freedom
freedom
of
of
of
of
religion
speech
the press
peaceable
freedom of petition
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Freedom of Religion:
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Free to worship as we see fit
No law can establish official church
No law can prevent free exercise of religion
Separates church and state
Government must be neutral on religious
matters, favoring no religion about another
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Freedom of Speech:
Pure Speech: protected by the First
Amendment
speech without accompanying action
Speech Plus:
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Not protected under First Amendment
Example: picket lines
Symbolic Speech:
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Tangible forms of expression
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Freedom of the Press:
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Freedom of Peaceable Assembly:
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Generally forbids censorship
Obscene or libelous prints is not protected
Political, religious or social activity
Authorities cannot impose unreasonable restrictions
on assemblies
Freedom of Petition:
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Allows citizens to communicate with their government
The Second Amendment
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The Second Amendment guarantees the
right to keep and bear arms as necessary
for a well-regulated militia.
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Gun control acts
The Fourth Amendment
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The Fourth Amendment requires probable
cause and forbids unreasonable searches
and seizures
Searches:
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Police Officer typically need a warrant to
search or seize property of private citizen
Plain view
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Exclusionary Rule
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No evidence may be admitted in a trial unless
it was obtained with in the constitutional
standards set forth in the Fourth Amendment
The Fifth Amendment:
Guarantees due process:
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Notice of hearing
Full information regarding the charge
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Opportunity to present evidence in one’s
own behalf before impartial judge or jury
Presumed innocent until proven guilty
Prohibits double jeopardy
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Can’t be tried more than once for the same
crime.
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Second trial can occur, however, when the first trial
results in mistrial, jury cannot agree on verdict, or
when ordered by appellate court
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Fifth Amendment prohibits selfincrimination
Grand Jury:
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Prior to being tried in Federal Court, a person
must first be INDICTED (formally accused of a
crime)
The Grand Jury’s duty is to prevent people
from being subjected to trial with out proof a
crime was committed
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Due Process:
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Occurs in the Fifth and Fourteenth
Amendment
Requires timely notice of a hearing/trial
Informs accused of charges
Present evidence
Impartial judge or jury
Innocent until proven guilty
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Self Incrimination:
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People are not required to provide information
that may convict them
Miranda v. Arizona:
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Warned prior to custodial interrogation of their
right to remain silent, what they say can be used
against them, right to counsel
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The Sixth Amendment:
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Establishes requirements for criminal trials
speedy
Public
 Informed of charges
 Confront witness against him or her
 Subpoena witnesses for defense
 Have counsel
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Subpoena:
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Hearsay
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Orders into court as witness person whose
testimony is desired at trial
Secondhand information
Indigent:
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No means to hire counsel
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The Eighth Amendment:
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The Ninth Amendment:
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Forbids excessive bail, excessive fines and
cruel and unusual punishments
Government powers are limited by the rights
of the people (don’t have right to invade the
rights of the people)
The Tenth Amendment:
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Made the Bill or Rights applicable to states
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The Fourteenth Amendment:
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Requires each state to abide by the
Constitution and the incorporation doctrine of
the Bill of Rights. It guarantees due process
and equal protection under the law.
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Criminal Law:
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Rules and procedures for investigating crimes
and prosecuting criminals
Regulates the constitution of courts.
Regulates conduct of trials, and administration
of penal institutions.
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Felony:
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Misdemeanor:
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Serious crime
Punishable by death or imprisonment
Sentence of more than one year
Minor offense
Punishable by fine or short term jail sentence
Sentence less than one year
Actus Reus: material elements of crime
Menus Rea: intent
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Civil Law and Tort
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Non-criminal restrictions placed on people
Seeks restitution no punishment
Known as Tort
Civil Rights Act (1983) US Code, Title 42
Stipulates that anyone under the authority of
local or state law who violates another
person’s constitutional rights, even though
they are upholding the law, can be sued.
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Requirements for a Section 1983 action are:
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The plaintiff must be deprived of a constitutional right
The defendant must deprive the plaintiff of this right
while acting under the “color of the law”
Strict liability: liable even if no harm was intended
Intentional wrong: knew if was wrong and did it any
way
Negligence: did not set out to do harm by acted
carelessly
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Police Power:
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Authority: the right to direct and command
Power: force by which other can be made to
obey
Police Power: is derived from the US
Constitution, US Supreme Court decisions,
federal statutes, state constitutions, state
statutes, state court decisions and various
municipal charters and ordinances
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Police power is restricted by the
Constitution, Fourteenth Amendment and
the Courts
Conflict Theory:
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Marx & Engel’s Manifesto of the Communist
Party
Contends that certain behavior are
criminalized to keep the dominate class in
power
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Consensus Theory:
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Contends that individuals within a society
agree on basic values, on what is inherently
right and wrong.