By Loren Miller
CIVIL RIGHTS
•
Bill of Rights
–
–
–
•
What is its purpose?
–
•
Unanimously defeated at the convention
Unnecessary as state constitutions protected
individual rights
So why was it proposed in 1789?
To limit the power of government
What government does it limit?
–
The national government (Barron v.
Baltimore, 1833)
RIGHTS IN THE
CONSTITUTION
•
•
•
•
•
•
guarantee of habeas corpus (unless cases
of rebellion or invasion)
prohibition of bills of attainder
prohibition of ex post facto laws
prohibition against acceptance of titles of
nobility, etc., from any foreign state
guarantee of trial by jury in state where
crime was committed
treason defined and limited to the life of
the person convicted, not to the person’s
heirs
RIGHTS IN THE
CONSTITUTION
•
guarantee of a republican form of
government
• no religious test oaths as a condition for
holding a federal office
• protection for citizens as they move from
one state to another, including the right to
travel
• Protection against the impairment of
contracts (states cannot pass laws that
invalidate contracts)
“A government is free in
proportion to the rights it
guarantees to the minority.”
Alf Landon, Republican
Presidential candidate in 1936
Respect for Minority Rights
% Rating Respect for Minority Rights as Very Important
“It is a fair summary of history to
say that the safeguards of liberty
have been forged in
controversies involving not very
nice people.”
Felix Frankfurter, Supreme Court
Associate Justice
Pirates of the Constitution
FREEDOM OF & FROM
RELIGION
“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof;”
•
The right to hold any or no religious
belief is an absolute right--as written
in the First Amendment
HOW FREE??
Congress shall
make no law . . .
Absolutists
Balancers
Total
Total
Individual
Government
Freedom
Control
What does the Constitution say?
RELIGIOUS TEST CLAUSE
• [N]o religious Test shall ever be
required as a Qualification to any
Office or public Trust under the
United States.”
•
U.S. Constitution, Article VI, Clause 3
• “A union of government and religion
tends to destroy government and
degrade religion.”
• Justice Hugo Black, Engle v. Vitale, 1962
FREE EXERCISE CLAUSE
•
Free exercise of religion deals with
how one practices their religion
•
Religious convictions do not exempt
one from complying with otherwise
valid laws designed to protect the
public peace, health, safety, and
morals
FREE EXERCISE CLAUSE
•
•
•
•
•
Laws which prohibit the practice of
polygamy
Laws requiring vaccination of school
children
Laws forbidding business activities
on Sunday
Native Americans use of peyote
Flag Salute Cases
ESTABLISHMENT CLAUSE
•
No Preference (Accommodationists)
–
•
government may aid and encourage
religious activities as long as there is no
preference shown
Wall of Separation (Separationists)
–
there is a wall of separation between
church and state which forbids
government from aiding, encouraging,
or supporting any or all churches
ESTABLISHMENT CLAUSE
•
“Believing . . .that religion is a matter
which lies solely between man and his
God, that he owes account to none
other for his faith or his worship . . .
That [Congress] should “make no law
respecting an establishment of religion .
. .” thus building a wall of separation
between Church and State.”
Thomas Jefferson to Danbury Baptists, 1802
ESTABLISHMENT CLAUSE
•
Not endorsing or appearing to endorse religion
is especially important in the public school
setting due to:
–
–
–
The specific sensitivities of school age children
The fact that public schools are public institutions
The influence of school officials and teachers over
students
•
–
Many student view their teachers as authority figures and are highly
susceptible to coercion, pressure to conform both from adults and their
peers.
The student body in America’s public schools is
growing increasingly diverse
ESTABLISHMENT CLAUSE
•
McCollum v. Bd. of Education, 1948
–
•
can students obtain religious
instruction in school during school
hours if it is a voluntary program?
Zorach v. Clauson, 1952
–
can students obtain religious
instruction outside of school during
school hours if it is a voluntary
program? (release time)
ESTABLISHMENT CLAUSE
•
Engle v. Vitale, 1962
–
must teachers, who want to inculcate in
children the belief in a supreme being, begin
the school day with a prayer which was
written by the state board of education?
What do they expect
us to do—listen to the
kids pray at home?
Herb Block, June 18, 1963
ESTABLISHMENT CLAUSE
•
Wallace v. Jaffree, 1985
–
can the state legislature of Alabama
require a “moment of silence for prayer
or meditation” to begin the school day?
– what was the purpose of the
legislation?
ESTABLISHMENT CLAUSE
•
Test for constitutionality of programs
–
–
–
Does the policy in question have a secular
(nonreligious) purpose?
Does the primary intent or effect of the law
either advance or inhibit religion?
Does policy in question avoid entangling
government and religion?
Lemon v. Kurtzman, 1971
–
If a school official cannot answer an
unequivocal yes to all three of these
questions, then the policy must be
abandoned.
ESTABLISHMENT CLAUSE
•
Can a state help pay the salary of teachers in
parochial schools?
–
•
Can a state help pay for parochial school texts?
–
•
No (Lemon v. Kurtzman, 1971)
Can public funds be used for parochial school
busing?
–
•
No (Lemon v. Kurtzman, 1971)
Yes (Everson v. Board of Education, 1947)
Can public funds be used for parochial/private
school computers?
–
Yes (Mitchell v. Helmes, 2000)
ESTABLISHMENT CLAUSE
•
Can a state ban the teaching of evolution?
–
•
Can a state require the teaching of creationism?
–
•
No (Stone v. Graham, 1980)
Can a state ban use of school facilities to after
school Bible study?
–
•
No (Edwards v. Aguillard, 1987)
Can a state require the posting of the Ten
Commandments in public schools?
–
•
No (Epperson v. Arkansas, 1968)
No (Good News Club v. Milford Central School, 2001)
Can a state provide vouchers for students to
attend a parochial school?
–
Yes (Zelman v. Simmons-Harris, 2002)
ESTABLISHMENT CLAUSE
•
Is a public display of a nativity scene on
government property constitutional?
–
Not if its purpose is to endorse religion
•
A nativity scene located in a government building with the
words “Glory to God in the Highest” is Christian and not
legal
• The Ten Commandments on the grounds of the Texas
State Capitol is permissible because it is part of a
historical exhibit.
• The posting of the Ten Commandments in a Kentucky
courthouse is an unconstitutional endorsement of religion.
LOCAL CASES
•
The Denton marching band forms a
cross and marches across the
football field playing religious songs
•
The Duncanville girls basketball
team, lead by their coach,
participates in a post-game prayer
LOCAL CASES
•
Is prayer at commencement or at a
football game a violation of the
establishment clause?
•
Can the Gideon Society distribute
New Testaments at Collin County
Community College?
LOCAL CASES
•
Can PISD prevent the distribution in
the classroom of a religious message
attached to a candy cane?
SUPPORT FOR THE 1ST
AMENDMENT
2008
FREEDOM OF SPEECH
Congress shall make no law . . .
abridging the freedom of speech
•
The importance of free speech in an
open society was well put by Justice
Oliver Wendell Holmes:
–
The best test of truth is the power of the
thought to get itself accepted in the
competition of the market.
•
Abrams v. U.S., 1919
FREEDOM OF SPEECH
•
In the entire history of the United
States, the national government has
never attempted to punish opposition
to government policies, except in time
of war.
•
In peacetime (approximately 80% of our
history) the government does not
punish individuals for challenging
government policies.
FREEDOM OF SPEECH
•
The government has attempted to punish
individuals for criticizing government
officials or policies only during six
episodes in our history:
–
–
The Alien and Sedition Act of 1798
Suspension of the Writ of Habeas Corpus
during the Civil War
– The Espionage Act of 1917 and the Sedition
Act of 1918
– The internment of individuals of Japanese
descent during WWII
– The Cold War and prosecutions of alleged
Communists
– The Vietnam War and the prosecutions of
dissenters
FREEDOM OF SPEECH
•
Sedition Act of 1798
–
the punishment of false, scandalous,
and malicious writings against the
government, Congress or the President.
– an attempt to prohibit the Jeffersonians
from criticizing the Federalist’s support
for England in their war with France.
– no case was brought to the Supreme
Court, as Jefferson issued pardons to
the people who had been convicted
under this act.
FREEDOM OF SPEECH
•
Abraham Lincoln’s View
–
Even in wartime, the government may
not punish a speaker for criticizing its
policies, programs or actions.
–
However, the government may punish a
person for hindering the war effort by
advocating resistance to the draft or
encouraging desertion.
FREEDOM OF SPEECH
World War I
•
Espionage Act of 1917
–
•
penalized the circulation of false
statements made with an intent to
interfere with the military and the draft
(this has never been repealed)
Sedition Act of 1918
–
illegal to utter or publish words against
the government, the Constitution, or the
flag.
SCHENCK V. U.S., 1919
•
“In many places and in ordinary
times the defendant, in saying all that
was said . . . would have been within
his constitutional rights. But the
character of the act depends on the
circumstances in which it is done.”
•
This was a time of war
CLEAR & PRESENT
DANGER DOCTRINE
•
“The question in every case is whether the
words used are used in such
circumstances and are of such a nature as
to create a clear and present danger that
they will bring about the substantive evils
that Congress has a right to prevent.”
•
This replaces the bad tendency test which
is unconstitutionally vague.
HOW FREE??
Congress shall
make no law . . .
Clear & Present
Danger
Balancers
Total
Total
“In time of war the balance must
Individual
Government
shift in favor of order.”
Freedom
Control
William Rehnquist
What does the Constitution say?
CLEAR & PRESENT
DANGER DOCTRINE
•
•
The clear and present danger test
allowed the government to punish
speech in those instances when
speech created a clear and present
danger of unlawful action.
The test permitted the government to
act in anticipation of illegal conduct.
WHERE DO YOU DRAW
THE LINE?
•
“. . . we should be eternally vigilant
against attempts to check the
expression of opinions that we loath
and believe to be fraught with death,
unless they so immediately threaten
immediate interference with the
lawful and pressing purposes of the
law that an immediate check is
required to save the country.”
Oliver Wendell Holmes
Abrams v. U.S., 1919
FREEDOM OF SPEECH
World War II
•
For the most part, the Supreme Court
played a cautiously speech-protective role
during the war.
–
–
The Court rejected denaturalization as a
penalty for persons who spoke against the
war.
Even in war, criminal sanctions cannot be
imposed for stating that “it was wrong for our
President to send our boys . . . to be shot
down for no purpose at all.”
JEHOVAH’S WITNESSES
World War II
•
The Supreme Court held unconstitutional
a state law requiring all children in the
public schools to salute and pledge
allegiance to the flag.
–
“If there is any fixed star in our constitutional
constellation, it is that no official, high or petty,
can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters
of opinion or force citizens to confess by word
or act their faith therein.”
Justice Robert Jackson
West Virginia v. Barnette, 1943
JAPANESE-AMERICANS
World War II
•
Agitation for the mass evacuation of all
persons of Japanese ancestry was flamed
by newspaper and radio reports (all
unsubstantiated) of Japanese subversion.
• Although the Department of Justice
argued against it, President Roosevelt
signed Executive Order #9066 on February
19, 1942.
–
Between December 7, 1941 and April 15, 1945
there was no incident of any Japanese
subversion.
THE COLD WAR (1945-57)
The McCarran Act of 1950
•
Required all “Communist-action” and
“Communist-front” organizations to
register with the Attorney General.
–
–
–
Required all such organizations to disclose the
names of their officers, the sources of their
funds, and a list of all their members.
Groups were designated as “subversive”
without requiring proof of any unlawful
conduct by anyone.
Vetoed by President Truman but his veto was
overidden.
DENNIS V. U.S., 1950
•
In 1948, a federal grand jury in New York
indicted under the Smith Act twelve
members of the national board of the
Communist Party for conspiring to
advocate the overthrowing of the
government by force or violence.
•
The balancing of interests approach, or
the clear and possible danger test.
WHY THE CHANGE?
•
•
•
•
•
•
•
The House Un-American Activities
Committee was investigating the influence
of Communists in the government and in
other areas.
The federal government instituted a
loyalty program.
The accusations of Joseph McCarthy.
The Soviet domination of Eastern Europe.
The Soviet atomic bomb.
The fall of China.
The outbreak of the Korean War.
YATES V. U.S., 1957
•
•
•
By 1957, the fear of a Communist
takeover had subsided.
Yates, a leader of the Community
Party in California, had advocated
Marxist-Leninist principles, and was
convicted of violating the Smith Act.
The Court rules that the advocacy of
unlawful conduct must include a call
for specific, concrete action.
BRANDENBURG V. OHIO, 1969
•
Concerns the prosecution of Klansmen for
threatening racial violence.
• In what circumstances can a person be
punished for expressly advocating
unlawful conduct?
• A state cannot forbid the advocacy of the
use of force except when such advocacy
is likely to incite or produce such action.
Direct Incitement or Imminent
Action Test
“Punish the actor, not the speaker”
HOW FREE??
Clear & Possible
Danger
Congress shall
make no law . . .
Clear & Present
Danger
Balancers
Total
Total
Individual
Government
Freedom
Control
What does the Constitution say?
“Those who would give up Liberty, to
pursue a little temporary Safety,
deserve neither Liberty nor Safety.”
Benjamin Franklin (1755)
Stated when his colony was faced with
invasion by French and their Indian
allies and proposals to curtain civil
liberties were in the air.
NSA Wiretapping
SYMBOLIC SPEECH
•
Are thoughts that are expressed nonverbally protected by the freedom of
speech clause in the First
Amendment?
•
Is peaceful picketing a form of
speech?
–
Thornhill v. Alabama, 1940
SYMBOLIC SPEECH
•
May persons use the streets for the
purpose of communicating ideas to
the public?
•
May local governments regulate this
activity by requiring demonstrators
to seek a permit to parade on the
streets?
SYMBOLIC SPEECH
•
May a person in an anti-war
demonstration burn his draft card as
a symbol of his opposition to the
war?
•
•
United States v. O’Brien, 1967
No, as the card was intended primarily to protect
the military’s need for soldiers, not to prevent
people from criticizing government policy. This
is a content neutral law as it did not solely apply
to anti-war protesters.
DRAFT CARD
SYMBOLIC SPEECH
•
May students wear black armbands to school to
protest American involvement in the war?
• The 1st Amendment protects expression in public
schools as long as it’s not disruptive, obscene or
violates the rights of other students.
–
Tinker v. Des Moines School Dist., 1967
SYMBOLIC SPEECH
•
“Bong Hits 4 Jesus”
–
As the Olympics torch passed Juneau-Douglas
High School in Juneau, Alaska, a senior, Joseph
Frederick, unfurled a banner that read “Bong Hits 4
Jesus.” The school’s principal promptly
suspended Frederick, who then brought suit for
reinstatement, alleging that his free-speech rights
had been violated. Like most American public
schools, Juneau High prohibits assemblies or
expressions on school grounds that advocate
illegal drug use.
•
The First Amendment did not require schools to permit students
to advocate illegal drug use.
•
Morse v. Frederick, 2007
SYMBOLIC SPEECH
•
Dearborn, Michigan schools banned the
wearing of this T-shirt because of the threat to
order as Dearborn is the home of many prowar Iraqi Americans?
•
Is this an acceptable
expression of free speech?
•
Yes
–
Barber v. Dearborn Public Schools, 2003
SYMBOLIC SPEECH
•
A Vermont 7th Grader wore a t-shirt to school
with a picture of the president and the
statement “Chicken-Hawk in Chief” and
“World Domination.”
•
Is this an acceptable
expression of free speech?
•
Yes
–
Marineau v. Guiles, 2007
SYMBOLIC SPEECH
•
Can a man in a public place express
his opposition to the war by writing
on his leather jacket the following:
“Fuck the Draft, End the War.”
–
Cohen v. California, 1971
– “One man’s vulgarity is another man’s
lyric.”
SYMBOLIC SPEECH
• Can a man at an anti-American rally
express his opinion by burning the
American flag?
–
Texas v. Johnson, 1989
• The government may not prohibit the expression of an idea
simply because society finds the idea offensive or
disagreeable.
SYMBOLIC SPEECH
• Can a state ban cross burning?
– Yes, there is no communication, no
message. It is an attempt to terrorize a
population.
• Virginia v. Black, 2003
SYMBOLIC SPEECH
• Can a state ban picketing at funerals?
– Fred Phelps’ Westboro Baptist Church
began picketing funerals of gays while
carrying signs saying things like “Thank
God for 9/11” and “Thank God for Dead
Soldiers” (the theory being that God is
punishing America for its toleration of
homosexuality).
–
Video
SYMBOLIC SPEECH
• The government can:
– Ban loud picketing outside funerals
– Can probably ban all picketing
immediately outside the funeral
– Must allow picketing or marching
relatively near to funerals
SYMBOLIC SPEECH
• The government generally may impose
content-neutral limits on noisy picketing
or picketing that blocks traffic, but they
must do this based on the number or
volume level of picketers, and not through
bans on picketing (Madsen v. Women’s
Health Center, 1994)
SYMBOLIC SPEECH
• The court has recognized one place
where picketing can be banned (if the
ban is content-neutral): outside the
targeted person’s home (Frisby v.
Schultz, 1988)
A district judge found a New York City
woman innocent of littering after she
dumped a box of garbage under the
police dispatcher’s window. Noting
that the act was committed to protest
the lack of trash barrels at a local
beach, the court held that the tourist
was exercising her right of free
speech.
A city judge dismissed indecent
exposure charges against seven
women who went topless in a park
protest saying that women are free to
bare their breasts as a form of
expression.
An Oregon man tired of security searches at
the Portland airport took off all of his
clothes to prove he wasn’t a security
threat. Officers piled up plastic tubs to
block the view, then arrested John
Brennan, 50, for indecent exposure. A
judge found him not guilty ruling that his
protest was protected free speech.
FREEDOM OF THE PRESS
Congress shall make no law . . .
abridging the freedom of . . . the press
•
A free press is an indispensable part of an open
society (preferred position).
– “The only security of all is in a free press”
Thomas Jefferson
•
Is freedom of the press an absolute right?
•
Freedom of the press protects ideas that have
“redeeming social importance.”
FREEDOM OF THE PRESS
•
Licensing is a form of censorship
•
There is a very heavy presumption
that “prior restraint” (preventing
publication prior to its approval from
the government) is a violation of the
Constitution.
FREEDOM OF THE PRESS
•
Can a state prevent the publication of a
newspaper because a previous edition of
the newspaper published “false and
scandalous” information about a public
official? (Minnesota public nuisance law)
–
Near v. Minnesota, 1931
FREEDOM OF THE PRESS
•
Certain forms of expression are not
protected by the First Amendment,
as they have no socially redeeming
value:
–
fighting words
– libel
– obscenity
– profanity
OBSCENITY
•
If something is obscene it can be banned,
but how does one define obscenity?
–
“I know it when I see it”
Justice Potter Stewart, 1964
•
The Supreme Court tried to define
obscenity in the case of Roth v. U.S., 1957.
ROTH V. U.S., 1957
•
“. . . Obscenity is not protected by
the 1st Amendment since it is utterly
without redeeming social
importance. But sex and obscenity
are not synonymous. Obscene
material is material which deals with
sex in a manner appealing to prurient
interests.”
ROTH V. U.S., 1957
•
According to Roth, a book is obscene
if “to the average person (not
children), applying contemporary
community standards (society at
large), the dominant theme of the
material taken as a whole appeals to
prurient interests.”
MILLER V. CALIFORNIA, 1973
Establishes “community standards” for
determining dominant theme and different
communities can have different standards.
• Prurient is defined as patently offensive
descriptions of “ultimate sex acts.”
• It no longer is defined to be “utterly
devoid” of socially redeeming value. Now
it has to “lack serious literary, artistic,
political or scientific value.” (SLAPS test)
•
•
Can an adult have obscene material in
their home for personal use?
–
•
This was modified in 1990 to exclude child
pornography.
–
•
Yes (Stanley v. Georgia, 1969)
Osborne v. Ohio
In 2008, this was extended by upholding a
federal statute that makes it a crime to
offer or solicit child pornography, even if
the material is based on computergenerated or digitally altered images that
make it appear to be those of children.
–
U.S. v. Williams
PORN ON THE INTERNET
Congress tried to ban “indecent” and
“patently offensive” communication from
the Internet in its Communications
Decency Act of 1996.
• Supreme Court ruled that government
cannot limit Internet messages “to only
what is fit for children.”
•
–
Reno v. ACLU (1997)
CONSTITUTIONAL??
. . . the use of CCCCD technological resources for
creating, viewing, or sending nuisance, harassing, or
pornographic materials is prohibited. The
determination of what is pornographic or what
constitutes a hate crime, fighting words or visual
material that creates a hostile working environment is
within the sole discretion of CCCCD for application of
the college’s disciplinary policy.
Adopted by CCCCD Board of Trustees
June 27, 2000
LIBEL
•
The publication of:
–
false statements
– made with malicious intent
– publishers may avoid a libel suit by
printing a retraction
•
It is almost impossible for a public
figure to win a libel case:
–
must prove “actual malice”
•
•
New York Times v. Sullivan, 1964
Hustler Magazine v. Falwell, 1988
FREE PRESS IN SCHOOLS?
•
Can a principal censor nondisruptive
stories containing no offensive innuendo
in a school-sponsored newspaper if the
censorship served the educational
mission of the school?
–
Two articles on teen pregnancies and one on
divorce
•
Yes, Hazelwood School District v. Kuhlmeier, 1986
THE 2ND AMENDMENT
“A well regulated militia, being
necessary to the security of a free
State, the right of the people to
keep and bear arms shall not be
infringed.”
What is the subject of the sentence?
Who has the right to keep and bear
arms?
THE 2ND AMENDMENT
•
Is the right to bear arms an individual right
or a collective right? (US v. Miller, 1939)
•
“The 2nd Amendment protects an individual
right to possess a firearm unconnected with
service in a militia.” (DC v. Heller, 2008 and
McDonald v. Chicago, 2010)
THE 4TH AMENDMENT
The right of the people to be secure in
their persons, houses, papers and
effects against unreasonable searches
and seizures, shall not be violated, and
no warrants shall issue, but upon
probable cause, supported by oath or
affirmation, and particularly describing
the place to be searched and the
persons or things to be seized.
THE 4TH AMENDMENT
•
The first part of the amendment
concerns searches and seizures.
•
What kind of search or seizure is
prohibited?
•
Unreasonable
THE 4TH AMENDMENT
•
What kinds of searches and seizures are
“unreasonable?”
•
The fruits of an unreasonable search are
inadmissible in court (the exclusionary
rule) Weeks v. U.S. (1914)
•
What sorts of information are sufficient to
constitute “probable cause?”
THE 4TH AMENDMENT
•
How important is “probable cause”?
–
•
The police need only probable cause to
search your vehicle.
The police can search your car and
your belongings if they arrest you.
THE 4TH AMENDMENT
•
The police can pull you over for a
traffic violation even if they intend to
look for something more serious
•
The police don’t have to explain your
rights to you.
HOW TO PROTECT YOURSELF
•
•
You are obligated to supply your
license and registration, although
failure to do so doesn’t give the
officer the right to search.
Refuse any request for a search. If
the officers believe they have
probable cause, they don’t need your
permission. Giving your permission
helps to justify the search.
HOW TO PROTECT YOURSELF
•
If police search your car they don’t
have to tell you why or what they are
looking for.
•
Police are obligated to release you in
a “timely” manner. Once you have
your license and registration back,
generally you’re free to go.
IF YOU BELIEVE YOU HAVE
BEEN SUBJECT TO AN
ILLEGAL SEARCH
Don’t take it up with the police officer.
Be polite.
Get the name and badge number of the
officer.
If you get a ticket, sign it. Don’t argue
with the officer.
Don’t tell the officer that you intend to file
a complaint.
THE 4TH AMENDMENT
•
Are police roadblocks to check for intoxication
legal?
–
•
Are police roadblocks to check for drugs legal?
–
•
Yes, as long as it is systematic and not arbitrary
(Michigan v. Sitz, 1990)
No, as it does not deal with highway safety (Indianapolis
v. Edmund, 2001)
Can police use thermal imaging devices to scan
homes to detect the presence of heat sources
that might be related to the production of illegal
drugs?
–
No, a judge must first review the evidence (Kyllo v. U.S.,
2001)
THE 4TH AMENDMENT
•
Can a patient in a public hospital be forced to
take a test for illegal drugs if the purpose is to
turn them over to the police if the test is positive?
–
•
No, this is an illegal search (Ferguson v. Charleston,
2001)
You erect a 15 foot fence around your back yard
for privacy. The police believe that you are using
the yard to cultivate illegal drugs, but they are
unable to see into the yard to verify this. So, they
rent an airplane to fly over your back yard to
check things out. Is this a legal search?
–
Yes, as air space is public domain (California v. Ciraolo,
1986)
THE 4TH AMENDMENT
•
Do all searches require a warrant?
•
Is a “frisk” a search? Does it require
a warrant?
–
•
No, but it does require “reasonable
suspicion”
Are most searches and seizures
done with or without a warrant?
THE 4TH AMENDMENT
•
A search warrant may be obtained
under certain conditions:
–
there is a showing of probable cause;
– a statement of facts is made under oath;
– the warrant describes with certainty the
place to be searched;
– the goods to be seized must be
described
EXCEPTIONS
•
If the warrant is faulty through no fault of
the police officer, can the fruits of the
search be admitted in court?
–
•
Yes, U.S. v. Leon, 1984 (Good Faith Exception)
Can evidence obtained in a search be
admitted if the suspect tells police where
the evidence is located prior to being
advised of his right to remain silent?
–
Yes, N.Y. v. Quarles, 1984 (Public Safety
Exception)
EXCEPTIONS
•
Can prosecutors use illegally obtained
evidence if it would have been “inevitably
discovered” by the police through the use
of a legal warrant?
–
•
Yes, Nix v. Williams, 1984 (Inevitability
Exception)
Can illegally obtained evidence be used in
pre-trial?
–
Yes, Pennsylvania Board of Pardons and
Parole v. Scott, 1998
THE 5TH AMENDMENT
1. The right against self-incrimination
2. The right against double jeopardy
3. The right to have charges brought
by a grand jury
4. Guarantees of due process of law
5. The right of eminent domain
SELF INCRIMINATION
•
The Miranda Warning
–
Van Chester Thompkins was arrested in connection with a
fatal shooting. The police gave Thompkins a written form
containing the Miranda warning, but he refused to
acknowledge either that he received and understood his
rights, or that he was waiving them. Officers began to
question Thompkins about the crime, but Thompkins remained
mostly silent. After nearly three hours, a detective asked
Thompkins if he had ever asked God to forgive him “for
shooting that boy down.” Thompkins said yes and his
statement was used to help convict him of murder.
–
Since he had not waived his rights, should the statement be
admitted?
–
Yes (5-4). Suspect must declare that they do not want to talk
and ask for the interrogation to end.
SELF INCRIMINATION
•
The Miranda Warning
•
A defendant may not be forced to take the
witness stand and testify against him/her
self.
•
May a prosecutor make reference to a
defendant’s unwillingness to take the
stand?
SELF INCRIMINATION
•
Can a confession be admitted when police
failed to inform the suspect of attorney’s
attempted contact?
–
•
Yes, Moran v. Burbine, 1986
Is a confession automatically overturned
in cases of coerced confession if other
evidence is strong enough to justify
conviction?
–
No, Arizona v. Fulminante, 1991
DOUBLE JEOPARDY
•
One cannot be tried twice for the
same crime in the same court.
GRAND JURY
Police Obtain
Information
Grand Jury
Reviews Evidence
Felony Arrest
is Made
True Bill
(Indictment)
Case is
Presented to
the Grand Jury
No Bill
DUE PROCESS OF LAW
•
Why do we have two due process
clauses? One in the 5th Amendment
and one in the 14th?
– One limits the national government, and
one limits the states
EMINENT DOMAIN
•
Private property may be taken for
public use, but the government must
pay “just compensation.”
•
What are some examples of “public
use?”
–
•
Kelo v. New London, CT (2005)
Cases on this subject deal with???
THE 6TH AMENDMENT
•
The right to counsel
–
an attorney must be provided to indigents
•
•
•
Johnson v. Zerbst, 1938
Gideon v. Wainwright, 1963
The right to a jury trial (replaced trial by
combat)
–
plea bargaining occurs 90% of the time
– what is the minimum number of people on a
jury?
– must a decision be unanimous?
– exclusions??
THE 6TH AMENDMENT
•
The right to a speedy and public trial
–
–
prevents the government from holding secret
proceedings
prevents the government from holding charges
against someone for an indefinite period of
time
•
There is no clear time limit. It is up to individual
judges to determine what is “speedy”
A jury consists of twelve persons chosen to
decide who has the better lawyer.
Robert Frost
THE 8TH AMENDMENT
•
Excessive bail shall not be required
–
does this require that bail be offered?
•
•
No, U.S. v. Salerno, 1987
No excessive fines imposed
•
U.S. v. Bajakajian, 1998
THE 8TH AMENDMENT
•
No cruel and unusual punishment
–
loss of citizenship as punishment?
•
–
can a juvenile be sentenced to life without parole
for a non-homicide offense
•
–
No, Trop v. Dulles, 1958
No, Graham v. Florida, 2010
the death penalty?
•
Can a state execute a person for being found guilty of
the rape of a child?
–
•
is the death penalty racist?
–
•
No, McCleskey v. Kemp, 1987
can a state execute a mentally retarded person?
–
•
No, Kennedy v. Louisiana, 2008
No, Panetti v. Quarterman, 2007
can a state execute a person who committed their
crime as a minor (under 18)?
–
No, Roper v. Simmons, 2005
THE 8TH AMENDMENT
•
Can Guantanamo Bay detainees have the
right to challenge their detention in courts?
–
•
Does a U.S. citizen detained at Guantanamo
Bay have the right to be heard in U.S. courts?
–
•
Yes, as Guantanamo Bay is under U.S. jurisdiction
(Rasul v. Bush, 2004)
Yes, as a U.S. citizen, this is a given right (Hamdi v.
Rumsfeld, 2004)
Can secret military tribunals (where detainees
would have no right to see the evidence
against them nor call witnesses in their
behalf) try detainees?
–
No, the Executive is bound by the rule of law
(Hamdan v. Rumsfeld, 2006)
THE 13TH AMENDMENT
Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party
shall have been duly convicted, shall exist within
the United States, or any place subject to their
jurisdiction. (1865)
•
The first of the Civil War
Amendments proposed by the
Radical Republicans
THE 13TH AMENDMENT
•
Is drafting people into the Armed
Services a violation of this
amendment?
•
Do compulsory community service
programs violate this amendment?
THE 14TH AMENDMENT:
CLAUSE ONE
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they
reside.
• Defines citizenship
–
–
U.S. citizen by birth, blood, or by
naturalization; state by residency
required to overturn the decision in Dred Scott
v. Sandford (1850)
THE 14TH AMENDMENT:
CLAUSE TWO
No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States.
•
What are the privileges or
immunities of citizenship?
THE 14TH AMENDMENT:
CLAUSE THREE
nor shall any State deprive any person of life,
liberty, or property, without due process of law
•
Does the amendment indicate what
“due process of law” is?
•
Who determines what due process
is?
THE 14TH AMENDMENT:
CLAUSE THREE
•
There are two types of due process:
–
procedural
•
–
the government is forbidden to limit an
individual’s personal rights unless it did so
through proper procedure
substantive
•
the government is forbidden to limit an
individual’s personal rights unless the
substance of the law treated people fairly
THE 14TH AMENDMENT:
CLAUSE THREE
•
Between procedural and substantive
due process, which one gives a
person the greatest protection from
government?
SUBSTANTIVE DUE PROCESS
•
If a state law does not treat people fairly,
justly, or equitably, that state law has
violated ? ? ? ?
–
•
the due process clause of the 14th amendment
If a state infringes upon your freedom of
speech, they have violated ? ? ?
–
the due process clause of the 14th amendment
SUBSTANTIVE DUE PROCESS
The Bill of
Rights
Sections of
the Bill of
Rights
Limits
The National
Government
Limit
State and Local
Governments
Selective Incorporation
through the Due Process
Clause of the 14th
Applying the Bill of Rights to
the States
THE 14TH AMENDMENT:
CLAUSE FOUR
nor deny to any person within its jurisdiction
the equal protection of the laws.
•
This clause and the due process
clause are responsible for the
incorporation of our fundamental
freedoms into the 14th amendment
and their application to the states
EQUAL PROTECTION
•
With the ending of Reconstruction and
the return of “white man’s government” to
the Southern States, state laws were
again adopted to “put the Black in his
place.”
–
•
“Black Codes” and Jim Crow Laws
Do these laws violate the equal protection
clause of the 14th amendment?
PLESSY V. FERGUSON, 1896
•
In 1890, the legislature of Louisiana
passed a law providing “that all railway
companies carrying passengers in their
coaches in this state shall provide equal
but separate accommodations for the
white and black races
– the Separate but Equal Doctrine
GAINES V. CANADA, 1938
•
Mr. Gaines, a black male, graduated from a
college in Missouri and applied for
admission to the University of Missouri
Law School (the only law school in the
state). He was denied admission solely on
the basis of race. Is this a violation of the
14th Amendment?
– Yes, because there was no law school in
Missouri for blacks, Mr. Gaines must be
admitted to the University of Missouri.
SIPUEL V. OKLAHOMA
STATE REGENTS, 1948
•
Oklahoma attempted to create a separate
law school for blacks by roping off a
section of the state capitol for black law
students and assigning three law teachers
to them. Is this a violation of the 14th
Amendment?
– Yes, the Court said that this was not
“equality”.
SWEATT V. PAINTER, 1950
•
No law school for black students existed
in Texas. Heman Sweatt, a black male,
applied for admission to the University of
Texas Law School. The state judge
delayed his decision for almost a year
while the legislature appropriated funds
for the creation of a law school for blacks.
Then he denied Mr. Sweatt’s application.
Is this a violation of the 14th amendment?
–
Yes, because the new law school is not equal
to the University of Texas Law School
McLAUREN V. OKLAHOMA
STATE REGENTS, 1950
•
Oklahoma attempted to provide graduate
education to a black student by making
him sit in a classroom surrounded by a
railing marked “reserved for colored,”
assigning him a segregated desk in the
library, and requiring him to sit separately
from whites in the cafeteria. Is this a
violation of the 14th Amendment?
– Yes, the Court said that this was not
“equality”.
BROWN V. BOARD OF
EDUCATION, 1954
•
This case was the culmination of efforts made by
the NAACP to desegregate schools. Why did the
NAACP use the courts rather than the Congress?
•
The NAACP used an incremental approach
Integration
Segregation
100s of Cases
Between 1930 & 1954
INTEGRATION??
•
Ten years after Brown fewer than
2% of black students were attending
integrated schools in the South.
– “with all deliberate speed”
– lack of political support for integration
until the Johnson presidency
• Speaking of Eisenhower, “if he had fought
World War II the way he fought for civil
rights, we would all be speaking German
today.”
Roy Wilkins, Executive Secretary of
the NAACP, 1984
TYPES OF SEGREGATION
•
De jure
–
•
segregation by law; primarily found in
the southern states.
De facto
–
segregation by housing patterns;
primarily found in areas other than the
south
SEGREGATION 2007
States with the largest percentage
(90%+) of black students attending
segregated schools:
1. Illinois
62%
2. New York
62%
3. Michigan
58%
4. Maryland
52%
5. New Jersey
48%
SEGREGATION 2007
States with the largest percentage
(90%+) of Hispanic students
attending segregated schools:
1. New York
59%
2. Texas
51%
3. California
50%
4. Illinois
44%
5. New Jersey
41%
THE 15TH AMENDMENT
The right of citizens of the United States to vote
shall not be denied or abridged by the United
States or by any State on account of race, color or
previous condition of servitude. (1870)
•
The amendment is specific in its
intention, but some states tried to
avoid its implications.
–
Poll tax
– Property requirement
– Grandfather Clause
– Literacy Test
THE GRANDFATHER
CLAUSE
•
If your grandfather could vote on
January 1, 1866, then you could
register to vote without taking a
literacy test.
•
Is this a violation of the 15th
amendment?
– Yes, Guinn v. U.S., 1915
THE WHITE PRIMARY
•
The southern states were solidly
Democratic, so who ever won the
Democratic primary was assured of
winning the general election.
•
The Democratic Party is a private
organization and they established that one
of the requirements for membership was
that you had to be white.
THE WHITE PRIMARY
The General Election
Democrat
Winner
v
Republican
Loser
Democratic
Primary
(whites only)
Smith v. Allwright, 1944
TEXAS
The General Election
Democrat
Winner
v
Republican
Loser
Democratic
Primary
The Jaybird Primary
(whites only)
Terry v. Adams, 1953
CIVIL RIGHTS ACT OF 1964
Upon Kennedy’s assassination, Lyndon Johnson put
civil rights at the top of his legislative agenda.
Outlawed discrimination in voter registration.
Barred discrimination in public accommodations
involved in interstate commerce:
Hotels and Restaurants
Provided for the withholding of federal funds
from discriminatory state and local programs
Prohibited discrimination in employment on grounds
of race, color, religion, national origin or sex
VOTING RIGHTS ACT OF 1965
VOTER REGISTRATION
1965
1972
2004
White
Black
White
Black
White
Black
Alabama
69%
19%
81%
57%
74%
73%
Georgia
63%
27%
71%
68%
63%
64%
Louisiana
81%
32%
80%
59%
75%
71%
Mississippi
70%
7%
72%
62%
72%
76%
N. Carolina
97%
47%
62%
46%
69%
70%
S. Carolina
76%
37%
51%
48%
74%
71%
Virginia
61%
38%
61%
54%
68%
57%
IMPACT OF VOTING
RIGHTS ACT OF 1965
% Voting
70
60
50
40
Whites
30
Blacks
20
10
0
% of Eligible Voters
Registered in the South
90
80
70
60
50
Black
40
White
30
20
10
0
1952
1956
1960
1964
1968
1972
1976
AFFIRMATIVE ACTION
• Any program whose goal is to
overcome the results of past unequal
treatment of minorities by giving
these groups preferential treatment.
• Equality of Opportunity (not Results)
is provided by Affirmative Action
programs.
• Do these programs discriminate
against whites in violation of the
equal protection clause?
AFFIRMATIVE ACTION
• The Supreme Court has continued to
approve affirmative action programs
where there is evidence of past
discriminatory practices.
• Should diversity be an institutional
goal in higher education?
THE RIGHT TO PRIVACY
•
First mentioned by Louis Brandeis in
an 1895 article in the Harvard Law
Review.
•
Supreme Court “created” this right in
Griswold v. Connecticut (1965).
•
Judicial Activism
THE RIGHT TO PRIVACY
•
Since 1965, there have been more privacy
cases decided by the Supreme Court than
any other type of case.
– Abortion rights
Illegal in all
circumstances
16
2
56
26
2005
No opinion
Legal under
any
circumstances
Legal under
certain
circumstances
THE RIGHT TO PRIVACY
•
Do privacy rights extend to persons in
“non-traditional” relationships?
–
No, Bowers v. Hardwick (1986)
– Yes, Lawrence v. Texas (2003)
– “The state cannot demean their existence or
control their destiny by making their private
sexual conduct a crime.”
THE RIGHT TO PRIVACY
Percentage agreeing that “homosexuality is
a way of life that should be accepted by society”
THE RIGHT TO DIE
•
When do you “pull the plug”?
– If a person decides not to be kept on
life support, this decision must be made
prior to being placed on life support.
WOMEN’S RIGHTS
•
Most laws that treat women different from
men are derived from paternalistic or
religious precepts.
–
Women may not be licensed to practice law
because of the “rough and tumble” nature of
the occupation (1873)
“The paramount destiny and mission of
women are to fulfill the noble and benign
offices of wife and mother. This is the law of
the Creator.” Bradwell v. Illinois
WOMEN’S RIGHTS
– Women can not tend bar in Michigan unless
the owner of the bar is the woman’s spouse or
father (1948).
– Women may be prevented from voting because
they lack the necessary knowledge (1876).
– Women can be excluded from juries unless
they ask to serve (1961)
WOMEN’S RIGHTS
– Women may be prevented from working
long hours because special protections
for women are needed because of their
“frail condition” and the need for
women to have strong babies (1905).
• Use of a “Brandeis Brief”
• “History discloses the fact that woman has
always been dependent upon man. . . . It is
impossible to close one’s eyes to the fact
that she still looks to her brother and
depends upon him.” Muller v. Oregon
WOMEN’S RIGHTS
•
Gender based differences are only
valid if they serve a valid
governmental function.
– Craig v. Boren (1976)
• Rational Distinction Doctrine
WOMEN’S RIGHTS
•
Is this a violation of the 14th Amendment?
–
Single sex public nursing schools?
•
–
Laws that allow women but not men to receive alimony?
•
–
Yes
Draft registration for males only?
•
–
Yes
Virginia’s maintenance of an all-male military college?
•
–
Yes
No
Statutory rape laws that only apply to female victims?
•
Yes
LEVELS OF REVIEW
•
Strict Scrutiny
–
Race, Ethnicity
•
•
Intermediate Scrutiny
–
Gender
•
•
Assumed unconstitutional in the absence of
an overwhelming justification (e.g., national
security)
Assumed unconstitutional unless the law
serves a clearly compelling purpose
Reasonable Basis
–
Other Categories (age, income, sexual
orientation)
•
Assumed constitutional unless no rationale
for the law can be provided
Interracial Couple Denied
Marriage License
•
Beth Humphrey and Terence McKay wanted to get married.
However, when they went to the courthouse in Hammond,
Louisiana, to get a marriage license, they were turned away
because of their race. Humphrey is white, McKay is black. “I’m not
a racist,” said JP Keith Bardwell. “I just don’t believe in mixing the
races that way. . . . Interracial . . . marriages do not last long and
society does not readily accept the offspring of interracial
relationships.”
•
Is this a violation of the Equal Protection Clause?
•
Yes. As an agent of government, this violates strict scrutiny.
•
Can a judge deny a marriage license to a samesex couple?
–
Yes. Sexual orientation is not a suspect
classification. For government to treat people
differently based on their sexual orientation, it would
need to show a reasonable basis for the distinction.