Introduction to American Legal System The Constitution of the United States of America Amendments
Amendments Amendment = change Process: Article V of the Constitution Two-thirds of votes of both houses of Congress => amendment submitted to the states for ratification (Congress may specify if ratification by state legislature or by conventions in the states) => ratification by three quarters of the states => the proposed amendment become part of the Constitution.
Amendments Additional Process: Article V of the Constitution If two-thirds of the states apply to Congress for a convention for proposing amendments, a convention will be called. This process allows states to get chance to consider amendments that Congress on its own might not propose. Has NEVER been used.
Amendments The Bill of Rights symbolizes the idea that forms the basis of the American system of govt: Freedom. Freedom to speak out against govt, freedom to assemble peaceably, freedom to worship, freedom from govt intrusion.
Amendments The Bill of Rights did not introduce the concept of freedom from govt power the early settlers and colonists began defining liberties shortly after coming to the New World. 1649 Maryland passed the Toleration Act became the first colony to codify religious liberty, 1650s MA adopted the Body of Liberties bill of rights that guaranteed the right to assemble peaceably, the right to a jury trial in civil cases, the equal protection of laws, etc. 1682 William Penn created a long list of enumerated rights in PA s first Constitution.
Amendments State Constitutions: The Virginia Constitution of 1776 includes a sixteen-point Declaration of Rights that restrained all three branches of govt; the first to proclaim that all men are created equal and that all power derives from the people. Pennsylvania s Bill of Rights introduced the separation of church and state, the right to bear arms and the right to travel.
Amendments Delaware s Bill of Rights was the first to prohibit stationing of troops in homes during peacetime Maryland s Bill of Rights outlawed bill of attainder Legislative act that finds a person guilty of a crime w/o conducting a trial; fairly common in the colonial era, and one of the biggest grievances of the colonists; eliminating bills of attainder is one of the cornerstones of Am. legal system.
Amendments MA s Bill of Rights outlawed unreasonable searches and seizures The method of creation was interesting: MA was the first to call a special constitutional convention established the precedent that the Bill of Rights could only be altered by constitutional convention.
Amendments Creating the Bill of Rights The Constitution that was signed in Philadelphia in Sept. of 1787 did not contain a bill of rights. As states began deliberating the adoption of the Constitution, the delegates realized their political mistake in not including a bill of rights the Antifederalists used it to rally the public against the Constitution In response, James Madison and his fellow Federalists promised the new Congress would create a bill of rights as its first order of business.
Amendments Creating the Bill of Rights Madison took up the issue of a bill of rights in the summer of 1789. Borrowing from state bills of rights and other public writings, Madison proposed seventeen amendments to the Constitution, which the House quickly passed. The Senate accepted and the Bill of Rights was submitted to the states for ratification. On Dec. 15, 1791, Virginia became the 11th state to ratify ten amendments, and with that the United States Constitution had a Bill of Rights.
Amendments: Freedom of Expression The First Amendment: free speech, free religious expression and a free press No coincidence that this provision appears at the top of the list: The Framers believed those rights were critical to democracy and an essential component of liberty.
Amendments: Freedom of Religion Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
Amendments: Freedom of Religion The First Amendment does 2 things: 1. It prohibits the govt from creating an official religion (establishment clause) 2. Prevents the govt from prohibiting the practice of any religion (free exercise clause)
Amendments: Freedom of Religion In re. 1: The federal and state govts cannot set up church, give preference to one religion over another, participate in the affairs of religious organizations, or punish individuals because of their religious beliefs. In re. 2: The govt cannot ban religious practices or interfere with citizens religious beliefs.
Amendments: Freedom of Religion Interesting case: In the summer of 2003, Alabama Supreme Court Chief Justice Roy Moore created a national scandal when refused a federal court order to remove a 5,300-pound stone engraving of the Ten Commandments from a state judicial building. He was removed from the bench by a Court of the Judiciary. In 1995 the American Civil Liberties Union had sued him for posting the Ten Commandments in his courtroom.
Amendments: Freedom of press At the time of drafting the text of the Constitution, freedom of press referred to newspapers and pamphlets. Today, it applies to multiple media: TV, radio, Internet, magazines, e-mail, billboards, etc. The Framers believed that a free press was a super-check on all three branches of govt.
Amendments: Freedom of press Over the years, the Supreme Court has interpreted freedom of press broadly, putting few restrictions on the media. Interesting case: In 1971, the Supreme Court denied President Nixon an injunction against the New York Times from publishing a classified report that exposed the role of the US in the Vietnam War. The Court decided that such prohibition would violate the First Amendment.
The New York Times began publishing the documents on June 13, 1971
Amendments: Freedom of Speech The right to free speech has been a balancing act between legitimate expression and public safety.
Amendments: Freedom of speech Schenck v. United States, 249 U.S. 47 (1919), was a United States Supreme Court decision which concluded that a defendant did not have a First Amendment right to free speech against the draft during World War I. Charles Schenck was the Secretary of the Socialist party and was responsible for printing, distributing, and mailing 15,000 leaflets to men eligible for the draft that advocated opposition to the draft. These leaflets contained statements such as: "Do not submit to intimidation", "Assert your rights", "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain."
Amendments: Freedom of speech The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was constitutional. The First Amendment did not protect speech encouraging insubordination and held, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime. In the opinion's most famous passage, Justice Holmes sets out the "clear and present danger" test: "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 case is also the source of the phrase "shouting fire in a crowded theater," paraphrased from Holmes' assertion that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
Amendments: Freedom of speech Some interesting issues: Is burning of a national flag an expression of a free speech? Protection to speech that is considered slanderous or obscene: Defining and regulating obscene speech Supreme Court Justice Potter Stewart test : although he couldn t define obscenity, I know it when I see it.
Amendments: The Right to Bear Arms The Second Amendment states: A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed Does it mean individuals have an inviolable right to possess a gun or that states have the right to create an armed militia?
Amendments: The Right to Bear Arms Gun owners and powerful lobbying group, the National Riffle Association (NRA) argue that citizens have an absolute right to bear arms. However, many states and the federal govt have enacted laws restricting gun ownership which the courts have upheld by reasoning that the Framers intended for the Second Amendment to allow states to support armed militias, not to give individuals an inviolable right to a gun.
Third Amendment The Third Amendment prohibits govt quartering of soldiers in private homes. It can be viewed in reference to the Second Amendment. Madison included it because during the Revolutionary War, British soldiers frequently took over citizens homes against their will. The Framers did not want the states of federal govt doing the same.
Criminal Rights Amendments The drafters of the Bill of Rights believed that constitutional protection against arbitrary prosecution was a critical check of govt power. The Fourth, Fifth, Sixth and Eighth Amendments safeguard individuals from abusive practices in the criminal process and limit the govt s ability to prosecute unjustly.
Criminal Rights Amendments No illegal searches or seizures: The Fourth Amendment guarantees the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures w/o a properly authorized warrant The Supreme Court s interpretation: evidence obtained illegally (or w/o a warrant) by law enforcement officials is excluded from trial. Exceptions: good faith effort of an official to follow the established procedures.
Criminal Rights Amendments The Right Against Self-Incrimination: The Fifth Amendment is well known: I plead the Fifth is also the longest in the Bill of Rights
Criminal Rights Amendments It establishes the following: 1. No Double Jeopardy Trials: a person cannot be tried twice for the same crime 2. The Right Against Self-Incrimination: A person cannot be forced to testify against himself or herself in a criminal trial only when given immunity from prosecution 3. The Right to a Grand Jury: a person cannot be held for crime punishable by death w/o a grand jury indictment
Criminal Rights Amendments Landmark case: 1961 Supreme Court case Miranda v. Arizona the Court created a notion of Miranda Rights from the Fifth Amendment right against self-incrimination. Under Miranda Rights, law enforcement officers must inform suspects of their constitutional right to ask for an attorney and to remain silent.
Miranda Rights You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?
Criminal Rights Amendments The Right to Counsel and Jury Trial: The Sixth Amendment gives criminal def. the right to a speedy jury trial and the right to counsel
Criminal Rights Amendments The right to counsel has evolved over years: 1932: the Supreme Court held that the right to an attorney applied ONLY to capital offences (death penalty) 1963: the Court widened the right to include felony arrests cases in which the threat of imprisonment exceeds 1 year Present: the Court widened it to include any case that held a possible prison time. No right to an attorney in civil cases
Criminal Rights Amendments The Seventh Amendment establishes: in suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved At that time, the twenty dollars limit was quite high Today, every civil case tried in federal court has a jury trial unless both parties whish otherwise
Criminal Rights Amendments No cruel and Unusual Punishment: The Eighth Amendment states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.
Criminal Rights Amendments Does the death penalty constitute a cruel and unusual punishment? The death penalty has never been cosidered a cruel and unusual punishment but some methods of its execution were (public torture) The Supreme Court has expanded the Eighth Amendment to inlcude a prohibition against torture and other forceful measures to obtain confessions from criminal suspects.
Amendments: Protecting Rights Both the Ninth and Tenth Amendments serve as a reminder that any rights not specifically enumerated are reserved to the people and the states, respectively. Interesting case: Roe v. Wade and Griswold v. Connecticut in which the Supreme Court overturned a Connecticut state law that outlawed the use of contraception. The Court decided in those decisions that the Ninth Amendment included a fundamental right to privacy that could not be violated
Amendments: Protecting Rights The Tenth Amendment declares that the powers not delegated to the United States, are reserved to the States respectively, or to the people
Other Amendments In addition to the Bill of Rights, The United States Constitution has been amended seventeen times: The first 1795 The last 1992 Only one amendment has been repealed: the Eighteenth Amendment prohibition of the production, sale or transportation of alcohol
Thirteenth Amendment Ratified in December of 1865 Freed all slaves and abolished slavery in the United States and its territories Former slaves were given the same rights as other citizens
Fourteenth Amendment Ratified in 1868 The longest and most frequently cited in Constitutional Law Originally, passed to protect the rights of former slaves Over time evolved to mean that all citizens are subject to DUE PROCESS and equal protection of the laws
Fifteenth Amendment Ratified in 1870 States: 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 However, it wasnt until the Civil Rights Act of 1964, that true voting rights were established for all Americans
Sixteenth Amendment Ratified in 1913, It overturned an 1894 Supreme Court decision that held income taxes unconstitutional It allows Congress to tax income w/o apportioning the revenues evenly among the states
Nineteenth Amendment Ratified prior to the 1920 presidential elections Gave women the right to vote in state and federal elections First proposed in 1878 and came before Congress eight times before finally winning passage A few states: Wyoming, Idaho, Utah, Colorado allowed women to vote before it
Twenty-second Amendment Ratified in 1951 Prohibited presidents from serving more than two elected terms It stipulates that if a president succeeds to office after the halfway point of his predecessor s term, he can serve two more elected terms (max. 10 years) Direct response to FDR s four terms in office which many legislators considered excessive and somewhat reckless
Twenty-fifth Amendment Ratified in 1967 Established that the president can appoint a vice president (subject to vote of Congress) when the office becomes vacant Before that, the office remained vacant for the entire term
Twenty-sixth Amendment Ratified in 1971 Establishes that citizens who are eighteen years or older cannot be denied the right to vote in federal or state elections by virtue of age A response to discontent from the Vietnam War, during which thousands of teenagers died on the battlefield.