CONSTITUTIONAL LAWIndividual & the Law

Unit II

Introduction to Constitutional Law

Amendments to the Constitution Methods of amending the Constitution

Proposed by 2/3rd of both houses of Congress 2/3rd vote from a national convention

Requested by 2/3rd of the states Called by Congress

Ratified by 3/4th of the state legislatures 3/4th of special conventions in each state

Bill of Rights Basics

1st 10 Amendments Proposed as a compromise to ratify the

Constitution Ratified in 1791

Amendments 1st Amendment - Freedom of Expression

Speech Religion Press Assembly Petition

2nd Amendment –Right to bear arms 3rd Amendment – Quartering of Troops 4th Amendment – Searches and Seizures 5th Amendment – Due Process & Eminent Domain 6th Amendment – Rights of the Accused 7th Amendment – Civil Trials 8th Amendment – Cruel & Unusual Punishment 9th Amendment – Rights not Covered 10th Amendment – Reserved Powers of the States

Rest of the Amendments 11th – Suits against the States 12th – Electoral Process 13th – Ended Slavery 14th – Due Process – States 15th – Voting Rights for Minorities 16th – Income Tax 17th – Direct Election of Senators 18th – Prohibition 19th – Women’s Suffrage (right to vote)

20th – Inauguration Day 21st – Repealed the 18th

22nd – Term Limits for President 23rd – Electoral Votes for D.C. 24th – No Poll Taxes 25th – Presidential Succession 26th – Minimum Voting Age at 18 27th – Congressional Pay

Basic Constitutional Law Principles The rights guaranteed in the Constitution are not, and

cannot be absolute The right to vote doesn’t extend to everyone regardless of age Balancing Test – the court tries to decide which is more

important the freedom/right or the protection of the public The Constitution protects citizens from certain actions BY

THE GOVERNMENT. Its protection usually does not extend to situations that are PURELY PRIVATE in nature. It does not protect against searches and seizures by private

individuals If a thief comes in and takes your flat screen TV, they haven’t

violated the 4th amendment, but they have broken a law.

Enforcing rights can be time-consuming and expensive One should weigh the cost of enforcing the right

against the importance of the right

Freedom of Speech

Importance of Free Speech Free Speech is central to our democracy

The truth is allowed to emerge from the diverse opinions that can be voiced

Being able to exchange ideas openly, we have a safety valve to let us deal with needed changes in an orderly and stable manner. Those who disagree with the majority are more

likely to accept their loss if they can at least voice their opinions

Obscenity – in general terms, is anything that uses sex or nudity to exceed recognized standards of decency and lacks serious literary, artistic, political, or scientific value Miller v California, 1973 set out three

guidelines for determining obscenity Does the average person in the community find

the work obscene? Does the work violate specific state laws? Does the work as a whole lack serious literary,

artistic, political or scientific value?

Defamation is a false expression about a person that damages their reputation Libel – writing lies about someone Slander – spreading false rumors about

someone

The Constitution DOES NOT protect free speech when it involves defamation!

Commercial Speech – basically, it’s advertising Governments can ban commercial speech that is

False or misleading Advertises/supports something illegal

Fighting Words, Offensive Speakers, & Hostile Audiences Fighting Words are abusive and threatening and are spoken

face-to-face Offensive Speakers – people who deliver speeches that

incite riots or illegal activities Prior to the 1950s they used the Clear and Present Danger

Test – means the courts looked at the circumstances surrounding the speech

Today they use the Balancing Test – does the speaker encourage the audience to take part in very dangerous acts? If so, clear and present danger is not needed to punish the speaker

In the late 1960s, the court began using the Incitement Test. The speaker can be punished when It is directed toward inciting or producing immediate lawless

action from the audience When the advocacy was likely to produce such behavior This ultimately gave speakers greater protection

Hate Speech is motivated by bigotry and racism Pros and Cons

Pros say that forbidding hate speech violates freedom of speech

Cons say hate speech should be banned because of the negative impact it has on its victims

Courts tend to rule that hateful speech should be countered with speech that refutes bigotry and racism.

Time, Place, & Manner Restrictions This regulates when, where and how a speech

is allowed Getting city or county permits for having large

gatherings on public property Checking zoning restrictions for large gatherings

on private property Gatherings may be restricted if

It’s during prime traffic hours It’s at the same time another gathering is

scheduled for the same place Etc.

Symbolic Speech is conduct that expresses an idea Sit-ins Flag waving Demonstrations, wearing armbands/buttons Court rulings regarding punishment of symbolic

speech Does the speaker intend to convey a particular

message? Is that message likely to be understood by those who

view it? Most of the time, as long as the symbolic speech

doesn’t support violence or subvert the steady flow of the day, the court will support it

Vagueness and Over inclusive laws Courts have ruled that laws governing free

speech must be clear and specific Unclear laws will be struck down by the courts

on grounds of vagueness Laws drafted governing free speech must be

narrow and only include the basics needed to achieve the objective.

Freedom of the Press

This first amendment freedom protects us from censorship of newspapers, magazines, books, radio, television, and film.

The framers of the Constitution provided the press with broad freedom to help establish a strong sense of freedom. Thus, the press has come to be known as the

‘fourth branch’ of our government

Sometimes freedom of press collides with other rights Right to a fair trial Right to privacy

This leads to questions such as When can the government prevent the press

from publishing information? When can the government keep the press

form obtaining information? When can the government force the press to

disclose information?

Prohibiting Publication Prior Restraint is only allowed if

Publication would cause a certain serious, and irreparable harm

No lesser means would prevent the harm The prior restraint would be effective in avoiding

the harm

Denying the Press Access to Information Freedom of Information Act, 1966

Federal agencies must release information in their files to the public unless it involves National security Foreign policy Personnel Medical files Trade Secrets Investigatory records Other Confidential information

Requiring the Press to Disclose Information Shield Laws exist in some states that allow

reporters to protect their sources. Exceptions to these laws often involve Security of the nation, state, or people

Such as the identity of a murderer or a terrorist who has committed a crime

Expression in Special Places First Amendment rights are usually exercised

in a public forum. Exceptions are the places listed below and their publications Schools Military Bases Prisons

In the places listed above, one can usually exercise the right of free expression as long as it doesn’t interfere with the purpose of the facility

First Amendment in Public Schools First Amendment rights must be balanced

against the school’s duty to determine the educational program Schools can restrict freedom of expression if the

conduct would “materially and substantially disrupt” the educational process

Tinker v Des Moines, 1969 Hazelwood v Kuhlmeier, 1988

The First Amendment in Prisons and the Military Can be very limited

Prisons separate their members from society so they can limit first amendment freedoms as they need to maintain order

Military bases usually control all aspects of a soldier’s life so they can also regulate what goes on and what is said on base

Freedom of Religion

The first 16 words of the First Amendment deal with freedom of religion. Protections for religious freedom

The Establishment Clause – no national religion can be established

The Free Exercise Clause – protects the right of people to believe/worship as they choose

The Establishment Clause – forbids both state and federal governments from setting up churches, from passing laws aiding one or all religions, or from favoring one religion over another

The Endorsement Test is used to see of the government is violating the Establishment Clause Does the challenged law or government action have

either the purpose or the effect of endorsing religion in the eyes of members of the community? Has the government sent a message to nonbelievers

that they are outsiders in the community?

Free Exercise Clause protects the right of people to worship as they choose One cannot violate laws in their form of

worship You can worship a rock, but you can’t get

away with saying your form of worship requires you to throw the rock at people!

Due Process

Due Process involves the basic notion of society that legal fairness is a must! Procedural Due Process – Fair procedures Substantive Due Process – does the law

infringe on the fundamental liberty people have?

The Fifth Amendment Due Process deals with the federal government

The 14th Amendment Due Process applies the bill of rights to the state governments

Substantive Due Process Early 1900s, the court didn’t allow child labor

laws and minimum wage laws because they thought it violated the property rights of businesses

1930s this changed and regulations began to be more accepted

Procedural Due Process Today, this is what most due process cases

deal with. Due process requirements vary depending on

the situation

Right to Privacy

Right to privacy or the right to be left alone is not mentioned in the Constitution, but most agree that it is a basic right

Development of the Right to Privacy This right came to light in the 1960s.

Right to be left alone – search and seizure Privacy in making important personal decisions

Marriage Family Planning

Supreme Court weighs the issue when privacy rights are considered Providing information on the living

whereabouts of released sex offenders does not violate their right to privacy Their right to privacy is overridden by the

public’s right to protection from such offenders

Privacy in the Home A person’s home is their castle

A person’s rights are protected unless they are breaking the law or causing harm to someone in their home

Privacy at School Government limits a students’ right to privacy in schools

Supreme Court has upheld searches of students’ belongings without a warrant and without probably cause as long as school officials have some reasonable suspicion of wrongdoing

Family Educational Rights and Privacy Act of 1974 gives parents the right to inspect their children’s school records Prohibits the release of school records without a parent’s

permission Today, college students must sign a waiver in order to allow their

parents to view their information.

Information Gathering & Privacy Technology has changed things

Computers make the gathering and storing of information easier than it ever has been.

Also allows easier access for hackers to steal information

Banks can release information to legal investigators as long as the information involves checks or deposit slips

The government does provide limited protection The Privacy Act of 1974prevents the government

from releasing most information about a person unless that person gives their written consent.

Reproductive Rights and Privacy Griswold v Connecticut, 1965 – the Supreme Court

struck down a state law that prohibited the possession of contraceptives by married couples.

Roe v Wade, 1973 made abortion legal in certain circumstances 1st Trimester a woman could have an abortion on

demand 2nd Trimester a state could regulate abortions for safety

but could not prohibit them entirely. 3rd Trimester the state could regulate or forbid all

abortions except to save the life of the mother The Supreme Court has allowed state laws requiring

parental consent for abortions performed on minors

Discrimination

The 13th, 14th, 15th, 19th, and 24th Amendments were passed in attempts to end various types of discrimination Plessy v Ferguson, 1896 upheld segregation Brown v Board of Education, 1954 ended

segregation The Civil Rights Act of 1964 & 1968 prohibited

discrimination based on race, religion, and national origin in employment and housing

The Voting Rights Act of 1965 tried to make voting equal too

What is Discrimination? People being treated differently due to their

race, age, gender, religion, etc. Discrimination is an unavoidable yet necessary

part of lawmaking 16 years old to drive 18 years old to vote

Rational Basis Test A rational basis exists when there is a logical

relationship between the classification and the purpose of the law Minimum age to marry without parental consent

Strict Scrutiny Test The state must show the discrimination shows

a compelling interest and has no less intrusive way to satisfy that interest Ritual animal sacrifices in a religion

Substantial Relationship Test Used in sex discrimination cases – there must

be a close connection between the law and its purpose Banning alcohol sales to males 18-20 years old,

but not females is not okay