Law and Society
Chapter 6: Constitutional Law
CJUS/POLS 102
Constitutional Law
1. Constitutionalism
- fundamental law / set of principles
- impose limits on government power
- cornerstone for relationships
a. Constitution and amendments
- basis of rights / liberties
(1) Clarifies our freedoms
(2) Complex evolution (1789)
Constitution
b. Foundation for government
- defines organization
- three branches established
- powers of federal government
- limits government power
(1) Declaration of Independence
- 11 years before Constitution
(2) First ten amendments
- concerns about Constitution
Constitution
(3) Role of US Supreme Court
- Marbury vs. Madison
- decided in federal court
c. Regulates relationship
- between government / governed
(1) Private entity
- cannot violate Constitution
- example: Ken Bearing
- violated state law
Constitution
(2) Intent of Constitution
- define powers of federal government
(a) State powers were limited
- function of nation
- union of states
(b) Bill of Rights (adoption)
- applied only to federal level
- 1864: 14th Amendment
Constitution
- 100 years to comply
(c) 5th / 14th Amendments
- federal due process
- all Americans
(3) Supreme law of the land
- ‘Doctrine of Supremacy’
2. Constitutional issues
Constitution
- protect inalienable rights
- issues protected
a. Affirmative action
- designed to remedy discrimination
- gender / minority status / physical ability
- education / employment / benefits / etc.
(1) Programs determined constitutional
- minority status
- California voters
Constitution
(2) Use by government / private business
- contract with feds
b. Discrimination
- makes distinction
- limits rights / privileges
- based on inclusion in protected class
(1) Against the disabled
- not actually a member of that class
Constitution
- may still be protected
- if perceived to belong
(2) Americans with Disabilities Act (1990)
- increased equal protection
- school / housing / employment
(a) Include over-weight people
(b) Elderly also considered
- limited in working rights
Constitution
c. Eminent Domain
- right of government / others
- take land for public purpose
(1) Government must compensate
- for taking the land
(2) May be required to compensate
- when activities amount to a taking
- not allow logging near water
- not allow building on wetlands
Constitution
(a) City government
- take land
- sell to developer
- show for public good
(3) Condemnation
- transfer title
- from rightful owner to self
(4) Easement
- right to cross land
Constitution
d. Voting rights
- guaranteed to all qualified Americans
- 14th / 19th Amendments
(1) Voting Rights Act (1965)
- enacted to protect African-Americans
- ensure right to vote
(2) Eliminated literacy tests
- other obstacles
- created to discourage minority voting
Constitution
3. Rights to be familiar with:
a. Freedom of Information
- right to obtain information
- without undue restrictions
(1) Different form of freedom
- requires government action
- make information available
(2) Based on premise:
Constitution
- access to government information
- functions fairly / openly
(a) CIA / NSA / Homeland Security
- protected
(3) Does not refer to duty
- Congress required to keep journal
- Congressional Report
Constitution
(a) State of the Union Address
- given each year
(b) 5th Amendment
- trials open to public
(4) 2 types of information (FOI)
(a) What government has done / doing
- environmental studies / recalls
- FCC licenses / etc.
Constitution
(b) Info government has recorded on
person requesting
- federal job application
- federal employee
- arrested by federal agency
(5) Right to Privacy Act
- also access government files
(a) Correct / delete information
- inaccurate / irrelevant
Constitution
(b) Several differences
- who can access / what info
- file under both statutes
(6) Not all info accessible
- congress / courts / certain executive
offices exempt
(a) Agencies not exempt
- need not reveal certain info
Constitution
- trade secrets / national security
- internal rules / memos
- law enforcement records on
private individuals
(b) Receive government report
- part blacked out
(7) “Agency documents”
- written material / photographs
- computer tapes / data bases
Constitution
- controls if authority to dispose of it
(8) Time limit
- must decide within 10 working days
- to comply or not
(a) Deny request
- right to administrative appeal
- 20 days to respond
(b) Denial upheld
Constitution
- appeal in federal court
- “exceptional circumstances”
4. Freedom of Religion
- 360,000 places of worship
- 1500 religious bodies / sects
- 63% identify with religion
a. 1st Amendment
- prohibits government
- from making laws:
Constitution
- “respecting an establishment of religion or
prohibiting the free exercise thereof”
- two basic components
(1) Establishment Clause
- prevents giving special status
(a) Prevent government sponsored
religion
(b) Unique: forefathers were Protestant
Constitution
(2) Free Exercise Clause
- prevent from unreasonably interfering
- exercise of religious beliefs
(3) US Supreme Court
- separation of church / state
- 3-part test
(a) Action has a religious purpose?
- history of religion class in school
- theology class in school
Constitution
(b) Primary effect to advance religion?
- funding for religious seminars
- free rent to churches
(c) Promote “excessive entanglement”?
- funding to churches
(federal grants for children)
(d) Answer = “yes”
- violates establishment clause
- constitutional violation
Constitution
(4) Role of religion
- continual litigation
- activity that forces / encourages
- students / teachers to participate
- unconstitutional (school prayer)
(a) Government funds
- benefits religious / secular
- math / history books
(b) Giving credits = court litigation
Constitution
b. Issue of school prayer
- mandatory: unconstitutional
- voluntary: constitutional
(1) Unconstitutional restriction: free speech
- how to accommodate
- groups who wish to engage
- cannot promote / encourage
(2) Right to hold belief = absolute
- FEC: not protect all practices
Constitution
(a) Sincere religious belief
- Santeria Church
- Supreme Court ruling
c. Religious protection
- not just traditional denominations
- no belief in god / other supreme being
(1) Refrained from exact definition
- sincere / meaningful belief
- important to believer
Constitution
(2) Belief probably false
- sincere = a religion
(a) Supernatural powers to heal
- constitutionally protected
- sincerely held belief
5. Freedom of speech
a. Not limited to spoken word
- written communication / symbolic conduct
Constitution
- t-shirt / silent behavior / burning flag
(1) Not all speech protected
- nature of speech
- obscenity vs. political
- incites others to violence
(a) Forum
- rally in park
- fewer restrictions
- city-owned building
Constitution
(b) Military installation
- private property
(2) Restrictions: time / place / manner
- reasonable opportunity for expression
(a) Field across from governor’s house
- vs. lawn of house
(b) Bullhorns
- not to exceed certain decibels
Constitution
(3) Protects right to peaceably assemble
- cannot prevent others from listening
(a) Restriction does not serve a:
- “compelling government interest”
- unconstitutional
6. Grand Jury
- 5th Amendment
- information vs. indictment
- accusatory documents (charging)
Constitution
a. Two functions:
(1) Indictment process
- listening to evidence
- determine if crime occurred
(2) Investigate criminal activity
- private / public figures
b. Enough evidence to charge
- do not determine guilt or innocence
Constitution
(1) Prosecutors present evidence
- call grand jury together
- some are independent
(2) Witness not entitled to attorney
- cannot enter grand jury room
- can advise before / after
(3) Proceedings held in private
- not open to public / press
Constitution
- cannot reveal proceedings
(4) 12 to 23 jurors
- must have quorum
7. Prisoner rights
- do not have same rights
- do have certain rights
a. Due process
- decisions that discipline
Constitution
- classification / restrictions on liberties
(1) Transfer to mental institution
- right to hearing
- to other prison – no right
b. Right to property
- loss / due compensation
c. Right to privacy
- limited
Constitution
d. Writ of habeas corpus
- claim rights violated
- brought before court
e. 8th Amendment
- cruel and unusual punishment
- prison conditions
(1) Freedom of religion
(2) Freedom of information
Constitution
8. Search and seizure
- 4th Amendment
- unreasonable
- person / property
a. Court involvement in illegal seizures
(1) Stops a person
- restrict their movement
(a) Need “reasonable suspicion”
Constitution
(b) To make an arrest
- “probable cause”
(c) With arrest:
- right to search person
- remove all property
(d) Search motor vehicle
- arrest of any person
- all unlocked areas / containers
- no warrant / no permission
Constitution
(e) Arrest in home
- search person
- search within arm’s reach
(2) Not allowed unless:
- search warrant / arrest
- permission of individual with authority
- granting valid consent:
(a) Roommate for common areas
- not roommate’s personal area
Constitution
(b) Parents for child under 18
- unless emancipated / pays
(c) School principal
- cannot search at police request
- can search on school policy
(d) Landlord
- cannot allow without permission
- give reasonable notice to enter
- emergency entry different
Constitution
(3) Burden of proof
- police must show reasonable belief
- person involved
(a) “Totality of circumstances”
- required for warrants
- both search / arrest
(b) “Exceptional circumstances”
- to protect the public
- “hot pursuit”
Constitution
b. Right not to incriminate
- 5th Amendment
(1) Does not apply to:
- blood
- urine
- handwriting
(2) Court order
- may be required
- blood / urine
Constitution
9. Government responsibility
- tells government what it can / cannot do
- laws cannot be retroactive (ex post facto)
a. Federalism gives power to the people:
- initiative: put issue on ballot
- referendum: proposal for public vote
- recall petition: remove elected officials
- voter approval: elected by the public
(1) Police powers
Constitution
- 10th Amendment
- enact / enforce laws of state
- both state / local government
(a) Limited by constitutions
- federal has specific functions
- impacts country as a whole
(b) Interstate transportation / banking /
Native American affairs / etc.
Constitution
(2) Taxes
- applied at all levels
- pay for operations of government
(a) Congress: “Power to lay (collect)
taxes, duties, imposts, and excises”
(b) State / county / city / PUD
(3) Commerce clause
- anything to effect interstate commerce
Constitution
- “The Congress shall have the power .
. . To regulate Commerce with foreign
Nations and among the several
States and with Indian Tribes”
(a) Interstate transportation
- activity crossing state borders
(b) Intrastate transportation
- occurs within a state’s borders
Constitution
(c) Congress can control intrastate
transportation
- but it is limited
10. Bill of Rights
- first Ten Amendments
- applied only to the federal government
a. US Supreme Court interprets Constitution
- “due process” / “equal protection”
- Incorporation Doctrine (individual rights)
Constitution
(1) First Amendment
(a) Freedom of Speech
- verbal/written/symbolic/conduct
(b) Freedom of the Press
- papers / magazines / agendas
(c) Freedom of Religion
- right to choose /practice /believe
(d) Right to Petition
Constitution
- redress of grievances
(2) Second Amendment
- keep and to bear arms
(3) Third Amendment
- forbids quartering of soldiers
(4) Fourth Amendment
- right to privacy
- unreasonable search / seizure
Constitution
(5) Fifth Amendment
- indictments by grand jury
- forbids self-incrimination
- forbids trying a person twice
- requires due process
(6) Sixth Amendment
- right to counsel
- speedy / public trial / impartial jury
- confront witnesses
- present witnesses
Constitution
(7) Seventh Amendment
- jury trial in civil suits
- right to sue for violation of civil rights
(8) Eighth Amendment
- forbids excessive bail / punishment
(9) Ninth Amendment
- other rights retained
- though not listed
Constitution
(10) Tenth Amendment
- protects state rights
(11) Fourteenth Amendment
- nationalized the Bill of Rights (1868)
(a) Section 1: “No state shall make or
enforce any law which shall abridge
the privileges or immunities of the
citizens of the United States; nor
shall any State deprive any person
Constitution
of life, liberty, or property without
due process of law; nor deny to any
person within its jurisdiction the
equal protection of the laws”
(b) Congress will enact a law
- it will impact state residents
- does not violate 14th
b. Equal protection under the law
- fundamental right
Constitution
- guaranteed under Constitution / Bill of Rights
- determined by US Supreme Court
a. Equal protection
- applying for a job
- apply to college / university
- police protection
- where you live
(1) Education
- quality education
Constitution
(a) Civil Rights Act – 1964
- federal funds must be withdrawn
- guilty of discrimination
- “based on race, color, or natural
origin in any program or activity
receiving federal assistance”
(b) Gender / disability / age / veteran
- added later to list
- unlawful to discriminate
Constitution
(2) Housing
- unlawful to discriminate
- race / gender / disability / age
- sale / rental
(3) Employment
- equal protection
- employment opportunities / keep job
- race / gender / disability / age
(4) Police protection: equal protection clause