By Loren Miller CIVIL LIBERTIES Bill

By Loren Miller

CIVIL LIBERTIES • Bill of Rights Unanimously defeated at the convention – Unnecessary as state constitutions protected individual rights – So why was it proposed in 1789? – • What is its purpose? – • To limit the power of government What government does it limit? – The national government (Barron v. Baltimore, 1833) Civil Liberties protect people from interference by the government

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

“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

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. . . Balancers Absolutists Total Individual Government Freedom Control What does the Constitution say?

• “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

Tolerance for Free Speech Rights of Religious Extremists Percent for allowing meetings of religious extremists

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 • 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 • Mc. Collum 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?

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 seven 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 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 The Patriot Act and the prosecution of terrorists.

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)

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 “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. •

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. ” –

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 Mc. Carran 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 Mc. Carthy. 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 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 1 st 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 on private property 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. The First Amendment did not require schools to permit students to advocate illegal drug use. – There is a compelling interest to combat 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 7 th 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

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 • Freedom of the press protects ideas that have “redeeming social importance. ”

FREEDOM OF THE PRESS • Is freedom of the press an absolute right? – National Security • – Can’t publish troop movements prior to the battle Fair Trial • A judge can prohibit the publication of prejudicial material that could prevent a defendant from receiving a fair trial

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 1 st 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 the Federal Communications Commission ban cursing and nudity on broadcast television? – • Can the Federal Communications Commission ban cursing and nudity on cable television? – • Yes No (U. S. v. Playboy Enterprises, 2000) Can government ban violent video games? – No (Brown v. Entertainment Merchants Ass’n, 2011)

• 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)

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 2 ND 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 2 ND AMENDMENT • Is the right to bear arms an individual right or a collective right? (US v. Miller, 1939) • “The 2 nd Amendment protects an individual right to possess a firearm unconnected with service in a militia. ” (DC v. Heller, 2008 and Mc. Donald v. Chicago, 2010)

THE 4 TH 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 4 TH AMENDMENT • The first part of the amendment concerns searches and seizures. • What kind of search or seizure is prohibited?

THE 4 TH 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 4 TH 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 4 TH 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 4 TH 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 4 TH 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 4 TH AMENDMENT • Can police officers search the cell phone for data from people who are arrested? – • No, not without a search warrant (Riley v. California, 2014) Can police officers collect DNA from people arrested but not yet convicted of serious crimes? – Yes, “DNA identification is a reasonable search that be considered part of a routine booking procedure” (Justice Kennedy); Maryland v. King (2013)

THE 4 TH 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 4 TH 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 products of illegal searches if other evidence unrelated to the illegal evidence would have justified a search warrant? – • Yes, Murray v. U. S. , 1988 (Inevitability Exception) Can illegally obtained evidence be used in pre-trial? – Yes, Pennsylvania Board of Pardons and Parole v. Scott, 1998

EXCEPTIONS • Can police who have probable cause to search an automobile for illegal substances search personal possessions (like a purse) of passengers in the car? – • Yes, Wyoming v. Houghton, 1999 Do police have to knock or announce their presence when entering a house with a search warant? – No, Hudson v. Michigan, 2005

THE 5 TH 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. • Berghuis v. Thompkins (2010)

SELF INCRIMINATION • The Miranda Warning – A 13 -year-old boy was questioned at school by police officers, during which time he confessed to committing two robberies. The confession was used in court even though the student had not been given a Miranda warning. This was allowed on the grounds that the student was not technically in police custody when he made the confession. – Should the confession be admitted? – Supreme Court said “no, ” as it is hard for a child to assess whether or not they are in custody or not. Police have to take age into account. • J. J. B. v. North Carolina (2012)

SELF INCRIMINATION • A defendant may not be forced to take the witness stand 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 Evidence is given to prosecutor Case is Presented to the Grand Jury (Indictment) No Bill

DUE PROCESS OF LAW • Why do we have two due process clauses? One in the 5 th Amendment and one in the 14 th? – 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)

THE 6 TH 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 over 90% of the time – what is the minimum number of people on a jury? – must a decision be unanimous? – exclusions? ? –

THE 6 TH 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 8 TH AMENDMENT • Excessive bail shall not be required – a judge must try to foretell whether the defendant is likely to commit another crime, hurt someone or skip out • – does this require that bail be offered? • • an algorithm has been created to eliminate bias between judges No, U. S. v. Salerno, 1987 No excessive fines imposed • U. S. v. Bajakajian, 1998

THE 8 TH 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? – No, Kennedy v. Louisiana, 2008 • is the death penalty racist? – No, Mc. Cleskey v. Kemp, 1987 • can a state execute a mentally retarded person? – 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 13 TH 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 13 TH AMENDMENT • Is drafting people into the Armed Services a violation of this amendment? • Do compulsory community service programs violate this amendment?

THE 14 TH 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 14 TH 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 14 TH 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 14 TH 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

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 14 th amendment If a state infringes upon your freedom of speech, they have violated ? ? ? – the due process clause of the 14 th 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 14 th

Applying the Bill of Rights to the States

THE 14 TH 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 14 th 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 14 th 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 14 th 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 14 th 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 14 th amendment? – Yes, because the new law school is not equal to the University of Texas Law School

Mc. LAUREN 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 14 th Amendment? – Yes, the Court said that this was not “equality”.

Hernandez V. Texas, 1954 • In 1951, Mexican farmworker Pedro Hernandez killed his employer. He was tried by an all-white jury and found guilty. There was no doubt of his guilt. • His lawyers argued that his right to “equal protection” was violated as he was not tried by a jury of his peers. • Though legally classified as “white, ” are Hispanics a “separate class”? • Two weeks prior to Brown v. Board of Education the Supreme Court ruled in favor of Hernandez. He received a new trial and was found guilty. – Treating Blacks, Whites and Hispanics differently was a violation of the 14 th Amendment

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 100 s 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 15 TH 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 15 th 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 2012 White Black Alabama 69% 19% 81% 57% 72% 73% Georgia 63% 27% 71% 68% 71% 72% Louisiana 81% 32% 80% 59% 77% Mississippi 70% 7% 72% 62% 81% 91% N. Carolina 97% 47% 62% 46% 78% 85% S. Carolina 76% 37% 51% 48% 73% 76% Virginia 61% 38% 61% 54% 76% 73%

VOTING RIGHTS ACT OF 1965 The heart of this law was that nine states (the deep South) could not change their election laws without advance federal approval. This was declared unconstitutional in 2013 in the case of Shelby County v. Holder. Chief Justice Roberts wrote that the rules were appropriate for 1965, but things have changed since then Texas immediately announced that a voter identification law and redistricting maps that have been held up by the federal government would now go into effect.

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. • Universities can continue to consider race and ethnicity in admissions only if there is no other way to achieve diversity. Fisher v. University of Texas, 2013

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 Texas

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 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 14 th 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, Sexual Orientation • • 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) • Assumed constitutional unless no rationale for the law can be provided

Interracial Couple Denied Marriage License • Beth Humphrey and Terence Mc. Kay 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, Mc. Kay 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? – No. This is a violation of the equal protection clause of the Constitution. • Obergefell v. Hodges, 2015

Should Interracial Marriage Be Legal? (% Yes) 1972 71% 61% 43% 54% 74% 1988 Northeast Midwest South Rocky Mountain Pacific Coast 85% 76% 62% 89% 87%

Should Same-Sex Marriage Be Legal? (% Yes) 1988 12% 8% 12% 16% 2010 Northeast Midwest South Rocky Mountain Pacific Coast 54% 50% 38% 45% 52% Texas