AP AMERICAN GOVERNMENT: CHAPTER 17 RIGHTS TO LIFE, LIBERTY AND PROPERTY The framers of our Constitution recognized that is it necessary- but dangerous- to give power to those who govern. Because political power can threaten our liberty, we parcel it out in small chunks and surround it with restraints. CITIZENSHIP RIGHTS In a constitutional democracy, citizenship is an office and it carries with it certain powers and responsibilities. How Citizenship is Acquired & Lost 14 th Amendment was adopted in 1868 giving constitutional protection the basic right of citizenship; prior to that each state determined citizenship. All persons born in the US, except children born to foreign ambassadors and ministers, are citizens of this country regardless of the citizenship of their parents. Naturalization- the legal action conferring citizenship on an alien. All non-enemy aliens over age 1 8 who have been lawfully admitted for permanent residence and who have resided in the US for at least 5 years and in the state for at least 6 months, are eligible for naturalization. Any person denied citizenship after a hearing before an immigration officer may appeal to a federal district judge. The applicant renounces allegiance to his or her former country, swears to support and defend the constitution and laws of the US against all enemies, and promises to bear arms on behalf of the US if required to do so. Naturalized citizenship may be revoked if the government can prove it was secured by deception. Dual Citizenship- citizenship in more than one nation. Children born abroad to Americans may also be citizens of the nation in which they were born. Only Canada, Mexico, France and UK allow dual citizenship. The number of Americans eligible to hold citizenship in another country grows by 500,000 per year. Rights of American Citizens An American becomes a citizen of one of our states merely by residing in that state. Residence as understood in the 14 th Amendment means the place one calls home. The legal status of residence should not be confused with the fact of physical presence. They may live in one state- physically- but be a resident of another. Most of our most important rights flow from STATE citizenship. Slaughter-House Cases- 1873- the Supreme Court held that the only privileges of national citizenship are those that owe their existence to the Federal Government, its National Character, its Constitution, or its laws. In times of war, the liberties of citizenship are tested- internment of Japanese in camps in WWII.
The Supreme Court drew a distinction between the rights of citizenship during peacetime and wartime, observing that, hardships are part of war, and war is an aggregation of hardships. Citizens may not be subject to courts-martial or denied the guarantees of the Bill of Rights. The right to live and travel in the US is one of the most precious aspects of American citizenship. The right to international travel can be regulated within the bounds of due process. It is unlawful for citizens to leave or enter the US without a valid passport, and travel to Cuba is forbidden. Rights of Aliens The Constitution protects the rights of ALL persons- not just citizens. No government can deprive a person unless deemed an enemy combatant. Congress has denied most federally assisted benefits to illegal immigrants and has permitted states to deny them many other benefits- except for emergency medical care, disaster relief, and some nutrition programs. Admission to the US Aliens do not have a constitutional right to enter the US. The Immigration Act of 1965, amended 1990, sets and annual ceiling of 675,000 nonrefugee aliens allowed to come here as permanent residents. Add in refugees, it totals nearly 800,000 per year. The law also sets an annual limit on the number of immigrants from any single country- preference is given for family reunification and to people who have special skills or who are needed to fill jobs for which US workers are not available. Millionaire Immigrants - special admission for those who are able and willing to invest a substantial sum to create or support business in the US to provide jobs for Americans. Political refugees- people who have well-founded fears of persecution in their own countries based on their own countries based on their race, religion, nationality, social class or political opinion. They become permanent residents after one year. They must show specific danger of persecution. Many people are still willing to risk great danger to get here! According to the 2000 census, an estimated 115,000 immigrants from the Middle East alone are here illegally. Once in the US, aliens are subject to the full range of obligations, including the payment of taxes. Aliens are counted in the census for the purpose of apportioning seats in the US house of reps. PROPERTY RIGHTS
Constitutional Protection of Property Property does not have rights, people do. Property Rights- the rights of an individual to own, use, rent, invest in, buy and sell property. The legal tender and contract clauses in the Constitution forbid states from making anything except gold or silver legal tender for the payment of debts and from passing any law impairing them. Contract Clause- Article I, Section 10, was designed to prevent states from extending the period during which debtors could meet their payments or otherwise get out of contractual obligations. It was used to protect property and to maintain the status quo at the expense of a state s power. Police Powers- the powers of states to protect the public health, safety, and welfare of their residents. By 1934 the Supreme Court actually held that even contracts between individuals, the very ones the contract clause was intended to protect, could be modified by state law to avert social and economic catastrophe. What Happens When the Government Takes our Property? Eminent Domain- the power to take private property for public use- but the owner must be fairly compensated. Included in the 5 th Amendment. The taking must be direct, and a person must lose title and control over the property. The government must pay just compensation to its owners- it is defined as the price a willing buyer would pay in cash to a willing seller at the time of the taking. Regulatory Takings- when the government regulates property to the extent that it is deemed that they have taken it over- they must fairly compensate the landowner. DUE PROCESS RIGHTS Due Process- established rules and regulations that restrain people in government who exercise power. due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Procedural Due Process Procedural Due Process- constitutional requirement that governments proceed by proper methods; places limits on how governmental power may be exercised. It refers not to the law itself, but to the way in which a law is applied. Due process of law requires a procedure that hears before it condemns, proceeds upon inquiry, and renders judgment only after a trial or some kind of hearing- it applies to most kinds of governmental proceedings. A law may also violate the procedural due process requirement if it is too vague or if it creates an improper presumption of guilt. The liberty that is protected by due process includes, the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those common law privileges long recognized as essential to the orderly pursuit of happiness by free men.
PAGE 433- THE USA PATRIOT ACT Substantive Due Process Substantive Due Process-constitutional requirement that governments act reasonably and that the substance of the laws themselves be fair and reasonable; places limits on WHAT a government may do. Procedural due process mainly limits the executive and judicial branches because they apply the law and review its application; substantive due process mainly limits the legislative branch because it enacts laws. It means that there are certain things governments should NOT BE ALLOWED TO DO. The Supreme Court now believes that deciding what constitutes reasonable regulation of business and commercial life is a legislative, not a judicial, responsibility. Substantive due process has taken on new life as a protector o civil liberties, especially the right of privacy. Substantive due process has deep roots in concepts of natural law. PRIVACY RIGHTS Griswold v. Connecticut- the Supreme Court pulled together elements of the 1 st, 3 rd, 4 th, 5 th, 9 th and 14 th Amendments to recognize that personal privacy is one of the rights protected by the Constitution. 3 aspects of this right: 1. The right to be free from governmental surveillance and intrusion, especially in marital matters. 2. The right not to have private affairs made public by the government 3. The right to be free in thought and belief from governmental regulations. Abortion Rights Roe v. Wade- 1973 Supreme Court ruled: 1. During the first trimester of a pregnancy it is an unreasonable and unconstitutional interference with a woman s liberty and privacy rights for a state to set any limits on her choice to have an abortion or on her doctor s medical judgments about how to carry it out. 2. During the second trimester the state s interest in protecting the health of women becomes compelling, and a state may make a reasonable regulation about how where, and when abortions may be performed 3. During the third trimester, when the fetus becomes capable of surviving outside the womb, the state s interest in protecting the unborn child is so important that the state can prohibit abortions altogether except when necessary to preserve the life or health of the mother. Since then, Republicans have consistently tried to put people on the Supreme Court who might be expected to reverse it. Planned Parenthood v. Casey- 1992, divided Rehnquist court, 5-4 vote, upheld the view that the due process clauses of the constitution protect a woman s liberty to choose an abortion prior to viability. They also held that the right to have an abortion
prior to viability maybe subject to state regulation that does not unduly burden it. In other words, states may make reasonable regulations on how a woman exercises her right to an abortion so long as they do not prohibit any woman from making the ultimate decision on whether to terminate a pregnancy before viability. Applying this undue burden test, the Court has held that states can prohibit the use of state funds and facilities for performing abortions; states may make a minor s right to an abortion conditional on her first notifying at least one parent or a judge; and states may require women to sign an informed consent form and to wait 24 hours before having an abortion. A state may NOT condition a woman s right to an abortion on her first notifying her husband. Stenberg v. Carhart- 2000, Court struck down Nebraska s ban on partial birth abortions. Sexual Orientation Rights Bowers v. Hardwick- 1986 Supreme Court refused to extend such protection to relations between homosexuals (marital privacy) By a 5-4 vote, the court refused to declare unconstitutional a Georgia law that made consensual sodomy a crime. Some find greater privacy protection in their state constitutions than the US Supreme Court finds in the US constitution. 1999- Vermont state Supreme Court held that same-sex couples must be given the same benefits and protections as married couples and enacted a law recognizing civil unions. Boy Scouts Of America v. Dale- 2000-5-4 Vote, the Supreme Court held that a New Jersey public accommodations law could not be applied to keep the Boy Scouts from excluding gays from being Scout leaders. They concluded that because the Boy Scouts is a private association and as such has a right to exclude people whose beliefs and conduct are inconsistent with the Scouts views and mission. Romer v. Evans- 1996- Court struck down an initiative amending the Colorado constitution that prohibited all legislative, executive or judicial action designed to protect homosexuals at any level of state or local government. The court ruled that it represented a prejudice toward a particular group of people. RIGHTS OF PERSONS ACCUSED OF CRIMES Freedom From Unreasonable Search & Seizures 4 th Amendment- gives people the right to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures without probable cause. Search Warrant- a writ issued by a magistrate that authorizes the police to search a particular place or person, specifying the place to be searched and the objects to be seized. The warrant must specify the place to be searched and the things to be seized. General Search Warrants- warrants that authorize police to search a particular place or person without limitation are unconstitutional. A search warrant is usually needed to search a person in any place he or she has an expectation of privacy that society is prepared to recognize as reasonable.
The fourth amendment protects people, not places, from unreasonable governmental intrusions. Police may make reasonable warrantless searches in public places if the officers have probable cause, or at least a reasonable suspicion that they have committed or are about to commit crimes. No later than two days after making such an arrest, the police must take the arrested person to a magistrate so that the magistrate not just the police can decide whether probable cause existed to justify the warrantless arrest. Limits on police and deadly force- unconstitutional to shoot an apparently unarmed, fleeing suspected felon unless the officer has probable cause to believe that the suspect poses a significant threat and they must first warn, halt, or I ll shoot. If the police just ask questions or even seek consent to search an Individual, there is no detention. But, if a person refused to answer questions or consent to a search, the police can restrain the movement of the person, even though there is no arrest, and the 4 th Amendment comes into play. If the police do more, especially after consent is refused, their actions require them to have some objective justification for the search beyond mere suspicion. Tery v. Ohio- 1968- a stop and frisk exception to searches of individuals when officers have reason to believe they are armed and dangerous or have committed or are about to commit a criminal offense. The Terry search is limited to a quick pat down to check for weapons, check for contraband, determine identity, or maintain the status quo while obtaining more information. Border Searches- searches of persons and the goods they bring with them at border crossings. Border search also allows officials to open mail entering the country if they have reasonable cause to suspect it contains information imported violating the law. Exceptions to the rule against warrantless searches and seizures: 1. Plain-View Exceptions: permits offers to seize evidence without a warrant if they are lawfully in a position from which the evidence can be viewed, are apparent evidence of a crime. 2. Exigent Circumstances: searches are permissible when officers do not have time to secure a warrant before evidence is destroyed, when a crime escapes capture, or when there is a need to protect or preserve life or a serious injury. 3. The Automobile Exception: if they have probable cause to believe that an automobile is being used to commit a crime, that it contains persons who have committed crimes, or that it contains evidence of crimes, they may stop the automobile, detain the persons found therein, and search them and any containers or packages found inside the car. 4. Foreign Agents: a president can authorize warrantless wiretaps and physical searches of agents of foreign countries. Foreign Intelligence Surveillance Court created to approve such requests; this court, consisting of federal district judges, meets in secret. Searches by nonpolice government agents, such as teachers and health officials, do not require search warrants.
Racial profiling- the police practice targeting members of certain racial groups for street questioning or traffic stops on the assumption that members of these groups are likely to be engaged in illegal activities. Recently the Court has allowed the expansion of compulsory, random drug testing. In 2002 the Court on a 5-4 vote held that schools may require students who participate in extracurricular activities of any kind to submit to random drug tests. Mapp v. Ohio- 1961- Supreme Court adopted a rule excluding from criminal trial evidence that the police obtained unconstitutionally or illegally. Exclusionary Rule- rule of the above, was adopted to prevent police misconduct. The protection against self-incrimination is designed to strengthen the fundamental principle that no person has an obligation to prove innocence, rather the burden is on the government to prove guilt. The privilege against self-incrimination applies literally only in criminal prosecutions but it has always been interpreted to protect any person subject to questioning by any agency of government. To claim 5 th Amendment- persons must have a reasonable fear that their answers might support a criminal prosecution against them. Miranda v. Arizona- 1966- announced that no conviction could stand if evidence introduced at the trial had been obtained by the police during custodial interrogation unless suspects were notified that they have a right to remain silent and to have an attorney present during questioning by police, as well as have a lawyer appointed to represent them if they cannot afford to hire their own attorney. Failure to comply with these requirements leads to reversal of a conviction, even if other evidence is sufficient to establish guilt. In June, 2000 the Court reaffirmed the constitutionality of Miranda and that it applies in both state and federal courts. Fair Trial Procedures It is guaranteed that all persons accused of crimes will have the right to representation by counsel and to a fair trial by an impartial jury. The Supreme Court has ruled that the accused has a constitutional right to counsel at every stage of the criminal proceedings- preliminary hearings, bail hearings, trial, sentencing and first appeal. Communications between the accused and counsel are privileged, however, in cases of terrorism, under new guidelines by Attorney General John Ashcroft, police may listen in, undercover, on consultations between lawyers and detainees if reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agent to facilitate acts of terrorism. The national government cannot require anyone to stand trial for a serious crime except on the basis of a grand jury indictment or its equivalent; states are not required to use grand juries, and those that do not vest prosecutors with the power to seek indictments. Grand Jury- 12-23 persons who hear evidence to determine whether a person should stand trial. They are not concerned with a person s guilt or innocence but merely with whether there is enough evidence to warrant a trial.
If a majority of the grand jurors agree that a trial is justified, they return what is known as a true bill, or an INDICTMENT. The Constitution guarantees the accused the right to be informed of the nature and cause of the accusation so that he or she can prepare a defense. Constitution guarantees a speedy and public trial. If the government denies the accused a speedy trial, not only is the conviction reversed but the case must also be dismissed outright. Petit Jury- a jury of 6-12 persons that determines the guilt or innocence in a civil or criminal case. Conviction in federal courts must be by unanimous jury vote, but he Court has ruled that state courts may render guilty verdicts by nonunanimous juries, provided that such juries consist of 6 or more persons. An impartial jury, one that meets the requirements of due process and equal protection, consists of persons who represent a fair cross section of the community. Peremptory Challenges- when each side of a case gets to dismiss jurors in the initial selection process without providing a reason. Sentencing & Punishment If the accused is found guilty, the judge hands down the sentence. In federal courts, judges follow the sentencing guidelines set down by the US Sentencing Commission. Three Strikes and you re out Laws require a lifetime sentence without the possibility of parole for anyone convicted of a third felony. The Supreme Court will have to decide if a three strikes law violates the prohibition against cruel and unusual punishment. Defendants may appeal their convictions if they claim they have been denied some constitutional right or denied the due process and equal protection of the law. Double Jeopardy- does not prevent punishment by the national and the state governments for the same offense or for successive prosecutions for the same crime by two states. Japan and the US are the only 2 industrialized countries to retain the death penalty. The US Supreme Court ruled that the death penalty is not necessarily cruel and unusual punishment if it is imposed for crimes that resulted in a victim s death, if the procedures used by the court are fair. More states have added the death penalty, there are now 38 and the national government has increased the number of crimes for which the death penalty may be imposed. More than 3,700 convicts are on death row. Concerns have grown about the fairness of how capital punishment is imposed. DNA tests have established the innocence of many. HOW JUST IS OUR SYSTEM OF JUSTICE?
Too Many Loopholes? Some observers argue that by overprotecting criminals and placing too much of a burden on the criminal justice system not to make any mistakes, we delay justice, encourage disrespect for the law, and allow guilty persons to go unpunished. Justice should be swift and certain without being arbitrary. The public never knows whom to hold responsible when laws are not enforced. Too Unreliable? No other country relies as heavily on trial by jury as the United States. Jury trials are also time-consuming and costly. Trial by jury, critics argue, leads to a theatrical combat between lawyers who base their appeals on the prejudices and sentiments of the jurors. The jury system allows for what is called jury nullification- when jurors ignore their instructions to consider only the evidence presented in court and vote for acquittal to express their displeasure with the law or the actions of prosecutors or police. States have been rewriting the rules for the jury system, making it more difficult for people to be excused from jury service, allowing for nonunanimous decisions, limiting how long jurors can be sequestered, and exerting more control by judges over lawyers statements to jurors in order to prevent appeals to jurors emotions. Defenders of the jury system reply that trial by jury provides a check by nonprofessionals on the actions of judges and prosecutors. During the past several decades, the Supreme Court has worked particularly hard to enforce the ideal of equal justice under the law. Unfair to Minorities? Many members of minorities believe they do not have equal protection under the law and that they are targeted by law enforcement officers. One study in California found that the rate of unfounded arrest was four times higher for African Americans than Anglos. Latino rates were double those of Anglos. Community Policing- assigning police to neighborhoods where they walk the beat and work with churches and other community groups to reduce crime and improve relations with minorities. THE SUPREME COURT AND CIVIL LIBERTIES Judges play a major role in enforcing constitutional guarantees. Moreover, the Supreme Court can do little unless its decisions over time reflect a national consensus. The preservation of these rights depends on wide, continuing, and knowledgeable public support.