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.