LEGAL RIGHTS

TERRY JOHNSON

R I G H T SA M E R I C A N

Legal Rights

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Introduction: American Legal Rights vi

1 Origins of American Legal Rights 1Sir Edward Coke (15521634) 5The Massachusetts Body of Liberties (1641) 7British Colonies in North America, 16071763 10The Virginia Declaration of Rights (1776) 13United States, 1790 17

2 The Right Against Unreasonable Searches and Seizures 19

Every Mans House Is His Castle 21James Otis, Jr. (17251783) 23

3 The Right to Fair Treatment 32John Lilburne (ca. 16141657) 39Joseph R. McCarthy (19081957) 41

4 The Right to a Fair Trial 48Trial by Ordeal 52The Twelve-Person Jury 54

Contentsj

Geographic Boundaries of the U.S. Courts of Appeals and the U.S. District Courts, 2005 55

Class Action Suits 57

5 The Right Against Excessive or Cruel and Unusual Punishments 61

Benefit of Clergy 67People Executed, 19302003 68The Electric Chair 70People under Sentence of Death, 19532003 71Methods of Execution 76

6 Legal Rights and the War on Terrorism 78Flight Paths of Hijacked Airliners, September 11,

2001 79Total Number of U.S. Citizens Injured or Killed

in International Terrorist Attacks, 19982003 81Countries of Origin of People Killed,

September 11, 2001 82Afghanistan under the Taliban, 2001 83Terrorism Information Awareness 85Immigrant Prisoners in U.S. Investigation of

September 11th Attacks, March 2003 93Biometrics 95

7 The USA PATRIOT Act and the Future of American Legal Rights 97

The Department of Homeland Security 98The Homeland Security Advisory System 99Total Number of International Terrorist Attacks,

19822003 102

Glossary 104

Chronology 109

Appendix: Excerpts from Documents Relating to Legal Rights 117

Further Reading 139

Bibliography 141

Index 145

The First Amendment of the Bill of Rights promises that the U.S.Congress cannot, by law, take away the freedom of people to speaktheir minds, to practice a religion, to join a peaceful political group,or to publish a newspaper. For people to feel safe enough to enjoythese rights, the government must be powerful enough to protectthe country and the people in it. On the other hand, if a govern-ment has unlimited power to inspire fear and use force, any bill ofrights could easily become meaningless. In decisions regarding theFourth through Eighth Amendments, the U.S. Supreme Court,throughout its history, has had to balance two concerns: Allowingthe government enough power to maintain security, and limitingthe governments power enough to protect people from its abuse.

In fact, the government is quite powerful. To protect individu-als and the country from criminals, terrorists, and enemy countries,the government can search peoples homes, read peoples personale-mails and private letters, secretly watch people, listen in on theirprivate conversations, and take peoples property. And, as comput-ers and other electronic devices become more advanced, the gov-ernment becomes even more able to search and spy. By law, thegovernment (and only the government) can put people on trial forcrimes and punish those found guilty, in some cases by puttingthem to death.

The rights guaranteed in the Fourth through Eighth Amend-ments limit the power of the government to do these things andvi

Introduction

American Legal Rightsj

help ensure that the government carries out the law fairly. Peoplehave, among other rights, the right not to be searched or arrested,and the right not to have their property searched or taken, withouta good legal reason; the right not to confess or be witnesses againstthemselves; the right to be treated fairly; the right to trial by jury;the right to a speedy and public trial; the right to call and questionwitnesses; and the right against excessive, cruel, and unusual pun-ishments.

After the terrorist attacks of September 11, 2001, the govern-ment quickly expanded its power in order to hunt down the ter-rorists and to prevent future terrorist attacks. Without delay, lawenforcement officers began seizing people who the governmentsuspected were terrorists or had ties to terrorism. Two months afterthe attacks, the government had seized more than 1,200 citizensand noncitizens living in the United States. Many of those seizedwere later arrested. Most of those held were Muslim men from Arabcountries. (All of the September 11 terrorists were from the MiddleEast.)

Nearly a month after the attacks, the United States and its allyGreat Britain began attacking Afghanistan, the country harboringthe terrorist group that planned the attacks. After the war, theUnited States transferred captured enemy fighters to its U.S. navalbase at Guantnamo Bay, Cuba. The United States also capturedAmerican citizens who were fighting with the enemy and trans-ferred these fighters to prisons in the United States.

U.S. president George W. Bush declared that the prisoners atGuantnamoespecially those the government believes are terror-istsdo not have the same rights, such as the right not to be tor-tured, as those held by traditional prisoners of war. Thegovernment also claimed that prisoners in the United States whothe government suspects are terrorists or have ties to terrorism donot have the right to see a lawyer or other rights normally held bythose suspected of committing crimes.

The U.S. Congress also moved quickly to increase the govern-ments power to protect the country against terrorism. In themonth after the terrorist attacks, Congress passed the USA PATRIOTAct. The acts title is short for Uniting and Strengthening Americaby Providing Appropriate Tools Required to Intercept and ObstructTerrorism. The government now has more power to spy on people

Introduction vii

from the decisions of English royal courts established during the13th century. By the time the American colonists formally declaredtheir independence from Britain in 1776, they considered the com-mon law rights guaranteed by Magna Carta of 1215, the Petition ofRight of 1628, and the English Bill of Rights of 1689 to be abirthright. These English documents are the basis of English con-stitutional rights and are forerunners of the American Bill of Rights.

MAGNA CARTA(1215)

The most famous charter is Magna Carta (also Magna Charta) of1215. Magna Carta is a Latin phrase meaning Great Charter.Magna Carta was originally an agreement between Englands kingJohn (who ruled from 1199 to 1216) and his barons. (A baron wasa man who pledged his loyalty and service to a superior, such as amonarch, in return for land he could pass to his heirs, those whocould receive the land by legal right at the barons death. A womanwho received land under the same conditions was called abaroness). In time, however, the English people (including theAmerican colonists) saw Magna Carta as the source of English con-stitutional rights.

To finance his failed wars with France, King John had raisedtaxes, obtained money by force or threats from the barons and thetowns, and taken properties. Henry II and Richard I, the two previ-ous kings, had also violated the barons rights and privileges. Thebarons rebelled against John. In 1215, the barons wrote a charter ofliberties and sent it to the king. John refused to stamp the charterwith the royal seal (wax stamped with the kings mark), whichwould have shown that he approved the charter. When he refusedto seal the charter, the barons withdrew their loyalty to John. InMay 1215, the barons marched on London and took the city. OnJune 15, John met the barons at Runnymede, a meadow, and sealedthe charter, now known as Magna Carta.

At the time, the barons were concerned with their own inter-ests. Nevertheless, many of the barons demands had importancefar beyond the barons own direct interests. In fact, the charter(originally written in Latin) declared that the rights guaranteed byit are granted to all freemen of our kingdom, for us and our heirsforever. (A freeman or free man is someone who has the full rights

2 Legal Rights

within and outside the United States, to hold and remove from the country noncitizens suspected of being terrorists or of havingties to terrorism, to prevent foreigners suspected of being terroristsfrom entering the country, and to do other things to prevent fu-ture terrorist attacks. Some (including the president and his advis-ers) believe that the government needs even more power to fightterrorism.

Others, however, have become concerned that the governmenthas limited the freedom of citizens and noncitizens too much forthe sake of security. Some groups and family members of prisonershave brought court cases to limit the governments increasedpower. In Hamdi v. Rumsfeld (2004), the U.S. Supreme Court saidthat U.S. citizens who are enemy combatants have certain rightsthat other prisoners have under the Fifth Amendment. In Rasul v.Bush (2004), the Court said that people speaking on behalf of for-eign prisoners at Guantnamo Bay can ask a U.S. court to decidewhether the federal government has imprisoned them illegally. As other cases make their way through the courts, the Court will probably have to judge whether the governments expandedpower threatens other rights under the Fourth through EighthAmendments.

viii Legal Rights

1j

Origins of American Legal Rights

When settlers from England arrived on the Atlantic seaboard ofNorth America beginning in the early 17th century, they broughtwith them all of the traditional rights of English people. Thecolonists knew this because their charters (documents granting the settlers the power to set up their colonies) said so. For instance,the Virginia Charter of 1606, the first royal charter to set up a per-manent English settlement in America, said that the colonists ofVirginia were to Have and enjoy all [rights and liberties] to allIntents and Purposes, as if they had been abiding and born, withinthis our Realm of England. Colonial charters, however, did not sayin detail what these rights were.

In Englands view, however, the American colonists enjoyedthese rights not by right but by grace: The monarch (the ruling kingor queen) could change or cancel these charters at will. By law, thecolonies were under the total control of the monarch. Thus, in the-ory, the monarch could govern them directly according to his orher judgment, without regard to English law. In the end, the refusalof the Americans to accept that their rights were at the monarchsmercy led them to rebel and declare independence from GreatBritain in 1776. (Scotland and England united to become GreatBritain in 1707.) Years after the American Revolution, the Ameri-cans further protected these rights by creating the Bill of Rights.

When the first English settlers landed in America, much ofwhat the English people considered to be their rights was based oncommon law, a body of law based on custom and the decisions ofearlier judges. English common law developed over the centuries

1

The Puritan colonies of New England followed English criminallaw less closely than did other colonies. (New England consists of what are now the six northeastern U.S. states of Maine, New

Origins of American Legal Rights 7

THE MASSACHUSETTS BODY OF LIBERTIES(1641)

To protect the religious purity of the newcolony, the settlers of Massachusetts Bayfirst set up an oligarchy (government by thefew) of magistrates. Soon, however, thecolonists began to call for a popular go-vernment (government by the people). By1634, the colony had replaced its oligarchywith a representative government (govern-ment by individuals chosen by the people).The colonists also demanded that the colonywrite a body of lawssimilar to MagnaCartadescribing the colonists rights. Pub-lishing such a body of laws would, thecolonists believed, limit the magistratespower.

In 1641, the Massachusetts legislatureapproved the Massachusetts Body of Liber-ties. A mix of Magna Carta, Puritan beliefs,and common law, the Body of Liberties wasthe first detailed American charter of funda-mental rights. The law was far-reaching forits time. For example, besides guaranteeingthe rights of male citizens, the Body of Lib-erties also guaranteed the rights of women,children, servants, foreigners living in thecolony, and animals. The act also outlawedslavery. The Body of Liberties, however,failed to limit the magistrates power. As aresult, many of the colonists becameunhappy with the law. In 1648, the colony

replaced the Body of Liberties with theMassachusetts General Laws and Liberties.Nevertheless, the Body of Liberties became amodel for other colonial laws, including theNew York Charter of Liberties of 1683 andthe Pennsylvania Charter of Privileges of1701.

The Body of Liberties guaranteed manyof the rights now found in the Bill of Rights.Moreover, the Body of Liberties was the first American document to guarantee some of these rights, including some of therights guaranteed by the Fourth throughEighth Amendments. These rights includethe right not to be tried twice for the samecrime, the right to be paid for private prop-erty taken by the government for public use,the right to a lawyer, the right to trial byjury, and the right against cruel punish-ments. Most of the rights guaranteed by theBody of Liberties, however, were more lim-ited than such rights are today. For exam-ple, it allowed torture in certain casesinvolving capital crimes. The Body of Liber-ties is an important forerunner of the Bill ofRights in another way: The Body of Libertieswas not the grant of a ruler, but the firstAmerican charter of fundamental rightsthat the peoples representatives made intolaw.

ij

of a citizen.) Magna Carta was reissued with changes in 1216 (afterJohns death), 1217, and 1225. The 1225 version was put into Eng-lish statute law in 1297. (Statutes are laws passed by a legislature, agovernments body of lawmakers.) By the end of the 14th century,Magna Carta had become more than a statute: It had become (suchas a countrys constitution) fundamental law, a basic body of lawsand principles superior to statutes and other laws.

During the 17th century, Magna Carta was a rallying cry for theEnglish Parliament (Englands congress) and its supporters in thatbodys battle against the tyranny (dictator-like rule) of the Stuartkings (James I, his son Charles I, and Charless sons Charles II andJames II). The Stuart kings ruled England from 1603 to 1649, andfrom 1660 to 1714. Sir Edward Coke (pronounced Cook), animportant legal thinker and an outspoken critic of the abuses of theStuart kings when he was speaker of the House of Commons,claimed that no monarch could violate rights guaranteed by MagnaCarta, including the right against being arrested without legal rea-sons. (The British Parliaments House of Commons is similar to theHouse of Representatives in the U.S. Congress; like the speaker ofthe House of Representatives, the speaker directs the House ofCommons during sessions.)

English people who settled in America during the 17th centurybrought the principles of Magna Carta with them. For example,William Penn, the founder of Pennsylvania, used Magna Carta as asource when he wrote the new colonys Frame of Government in1682. Also, several colonies restated chapter 39 of Magna Carta intheir laws and charters. Chapter 39 says, No freemen shall be cap-tured or imprisoned or disseised [have his rights or possessionstaken away] or outlawed or exiled or in any way destroyed, nor willwe go against him or send against him, except by the lawful judg-ment of his peers or by the law of the land. This basically meantthat the government could punish citizens only by fairly and prop-erly following the law.

Magna Carta continues to influence American law through theBill of Rights. The most important example of Magna Cartas influ-ence is the Fifth Amendment. Chapter 39 of Magna Carta is a directforerunner of the clause, No person shall be . . . deprived of life,liberty, or property, without due process of law. By the time theFifth Amendment was written, due process of law had come tomean the same as law of the land. In other words, the Fifth

Origins of American Legal Rights 3

Amendment says that the government cannot punish someonewithout fairly and properly following the law. (Unlike MagnaCartas chapter 39, however, the Fifth Amendment protects anyperson, not just citizens.)

THE OTHER CHARTERS OF ENGLISH RIGHTS

The framers of the U.S. Constitution also claimed the rightsdeclared in the Petition of Right of 1628 and the English Bill ofRights of 1689. The petition, which the English Parliament sent toCharles I (king of England from 1625 to 1649), is a statement ofcomplaints against the king and of rights against the Crown (theroyal branch of government). In the petition, Parliament declaredthat the king had violated the rights of his subjects (people underthe monarchs rule) by taxing them without the consent of Parlia-ment, putting them in prison without showing a good legal reason,forcing them to house soldiers, and using military law in times ofpeace.

The English Bill of Rights declares the rights of Parliamentagainst the Crown. In 1689, King James II fled England after beingremoved from power. Prince William and Princess Mary of Orange(Williams territory in southern France) accepted the throne.William was Jamess nephew and son-in-law, and Mary was Jamessdaughter and Williams wife. In return for the throne, William andMary (now William III and Mary II) agreed to accept the Declara-tion of Rights, which Parliament later turned into the English Billof Rights. The bill declared that certain acts of James II were thenand from now on illegal.

The English Bill of Rights did not pretend to present any newprinciples. Nevertheless, the bargain between William and Maryand the English Parliament made Parliament supreme over theCrown. In this respect, the English Bill of Rights is unlike the Amer-ican Bill of Rights, which limits the power of all branches of thenational governmentincluding the U.S. Congress. The EnglishBill of Rights declares certain rights also found in the American Billof Rights, including the rights guaranteed by the Eighth Amend-ment. In fact, the Eighth Amendment is taken nearly word forword from the English Bill of Rights.

4 Legal Rights

Magna Charta is such afellow, that he will haveno sovereign [supremeruler].

Sir Edward Coke,speaker of the English Parliaments House of

Commons, opposing a pro-posed change to the Petition

of Right that would haveupheld the supreme powerof King Charles I over Par-

liament and the commonlaw, May 17, 1628

1212121

Origins of American Legal Rights 5

SIR EDWARD COKE(15521634)

To support their claims to common lawrights, the American colonists relied on the writings of English legal thinkers, espe-cially the writings of Sir Edward Coke, whowrote several works on the common law.Cokes ideas on the common law greatly in-fluenced English and American constitu-tional law.

Coke believed that the common law wasabove the monarch and Parliament; thus,neither the monarch nor Parliament couldviolate or take away common law rights,such as the right to trial by jury and the rightto a speedy trial. In other words, Coke con-sidered the common law to be supreme inthe same way that the U.S. Constitution is(as it states in Article 6) the supreme Law ofthe Land in the United States.

During his life, Coke held many impor-tant positions in government, includingattorney general (the Crowns lawyer), chiefjustice of the Kings Bench (a trial court thathears major cases; this court is referred to asthe Queens Bench during the reign of aqueen), and speaker of the English Parlia-ments House of Commons. As speaker ofthe House, Coke was a leading opponent ofthe English kings James I and Charles I. Theybelieved that monarchs were above the com-mon law and Parliament. In 1622, angeredby Cokes criticisms of the Crown, KingJames I imprisoned Coke for nine months inthe Tower of London, a prison for political

criminals. In 1628, Coke helped to write thePetition of Right.

Cokes most important work was the four-volume Institutes of the Laws of England, pub-lished in 1641 after his death. The Institutesbecame a basic text for the study of law inEngland and America. The Institutes remainedthe standard legal text in America until wellinto the 18th century. Despite the influence ofhis conclusions, however, Cokes interpreta-tions of early documents, such as MagnaCarta, were often wrong.

Sir Edward Coke (Library of Congress, Prints and Photographs Division [LC-USZ62-121998])

ij

COLONIAL AMERICAAlthough the first English settlers in America claimedthe common law as their birthright, at least many hadbeen unhappy with how justice was carried out in En-gland. First, some settlers believed that the English sys-tem was out-of-date. For instance, English common lawregarding crime was a confusing mix of precedents(earlier decisions that should be followed by judgesdeciding similar cases) and statutes written in law Latinand French. Therefore, in England, only the few whowere educated could understand the common law ofcrime. The colonists simplified the law, published it inEnglish, and made the law available for the generalpublic. The colonists also often required that the law beread before certain public gatherings.

Also, the English often applied the law cruelly, un-fairly, and unequally. For example, in England, deathwas the legal punishment for even the most minorcrimes. But, England also did not punish all criminalsthe same for the same crime: For example, Englishcourts allowed murderers who could read to escapedeath but sentenced thieves who could not read tohanging. Although the colonists did not ban the death

penalty, they also allowed lesser punishments. For example, somecolonies ended the death penalty for crimes of theft.

Colonists also stressed the rights of the accused in coloniallaws. The accused is someone who has been arrested for or formallyaccused of a crime. The accused is also called the defendant. Therights of the accused included, among other rights, the right not tobe tried (put on trial) twice for the same crime, the right not to beforced to confess, the right to a public trial, the right to trial by jury,the right to call and question witnesses, the right to be defended bya lawyer, and the right against cruel punishments. (Not everycolony protected all of these rights.) These and other rights thatlimit the power of government to punish and to use force are nowguaranteed by the Fourth through Eighth Amendments of the Billof Rights. During the 18th century, however, the colonies began tofocus more on maintaining order and less on expanding the rightsof the accused.

6 Legal Rights

Our ancestors wereentitled to the commonlaw of England whenthey emigrated [leftEngland], that is, to just so much of it asthey pleased to adopt,and no more. They werenot bound or obliged to submit to it, unlessthey chose it.

American political leaderJohn Adams, writing under the pen name

Novanglus in 1774

1212121

John Winthrop (15881649) was the firstgovernor of the Massachusetts BayColony, which adopted the MassachusettsBody of Liberties. (Library of Congress,Prints and Photographs Division [LC-USZ62-124240])

The Puritan colonies of New England followed English criminallaw less closely than did other colonies. (New England consists of what are now the six northeastern U.S. states of Maine, New

Origins of American Legal Rights 7

THE MASSACHUSETTS BODY OF LIBERTIES(1641)

To protect the religious purity of the newcolony, the settlers of Massachusetts Bayfirstset up an oligarchy (government by the few)of magistrates. Soon, however, the colonistsbegan to call for a popular government (gov-ernment by the people). By 1634, the colonyhad replaced its oligarchy with a representa-tive government (government by individualschosen by the people). The colonists alsodemanded that the colony write a body oflawssimilar to Magna Cartadescribingthe colonists rights. Publishing such a bodyof laws would, the colonists believed, limitthe magistrates power.

In 1641, the Massachusetts legislatureapproved the Massachusetts Body of Liber-ties. A mix of Magna Carta, Puritan beliefs,and common law, the Body of Liberties wasthe first detailed American charter of funda-mental rights. The law was far-reaching forits time. For example, besides guaranteeingthe rights of male citizens, the Body of Lib-erties also guaranteed the rights of women,children, servants, foreigners living in thecolony, and animals. The act also outlawedslavery. The Body of Liberties, however,failed to limit the magistrates power. As aresult, many of the colonists becameunhappy with the law. In 1648, the colonyreplaced the Body of Liberties with the

Massachusetts General Laws and Liberties.Nevertheless, the Body of Liberties became amodel for other colonial laws, including theNew York Charter of Liberties of 1683 andthe Pennsylvania Charter of Privileges of1701.

The Body of Liberties guaranteed manyof the rights now found in the Bill of Rights.Moreover, the Body of Liberties was the first American document to guarantee some of these rights, including some of therights guaranteed by the Fourth throughEighth Amendments. These rights includethe right not to be tried twice for the samecrime, the right to be paid for private prop-erty taken by the government for public use,the right to a lawyer, the right to trial byjury, and the right against cruel punish-ments. Most of the rights guaranteed by theBody of Liberties, however, were more lim-ited than such rights are today. For exam-ple, it allowed torture in certain casesinvolving capital crimes. The Body of Liber-ties is an important forerunner of the Bill ofRights in another way: The Body of Libertieswas not the grant of a ruler, but the firstAmerican charter of fundamental rightsthat the peoples representatives made intolaw.

ij

Hampshire, Vermont, Massachusetts, Rhode Island, and Connecti-cut.) The Puritans believed in strictly following the Bible. Like otherAmerican colonies, the Puritan colonies drew most of their lawfrom English law. Some Puritan colonies, such as Massachusettsand Connecticut, however, drew much of their law from the Bible.For example, in English law, serious property crimes were usuallycapital crimes (crimes punishable by death). On the other hand,Massachusetts and Connecticut punished property crimes lessharshly, but made crimes such as adultery (being unfaithful toones wife or husband) capital crimes. In England, adultery was amuch less serious crime. Although laws in these colonies wereharsh, magistrates (local judges) usually reduced the punishment ifcriminals gave some sign that they felt sorry for their crimes.

THE ROAD TO REVOLUTIONIn the years after the French and Indian War, the British Parliamentraised taxes or imposed new taxes on certain goods in the Ameri-can colonies in order to raise money to help cover the costs ofdefending Britains now bigger empire in North America. TheBritish also imposed certain rules on shipped goods in order to stopthe colonists from smuggling goods (illegally bringing in goodsfrom, or sending them to, another country). The war, which lastedfrom 1754 to 1763, was the last of a series of four wars fought since1689 in North America between Britain and France, with theirNative American and colonial allies. Although Britain defeatedFrance, the war left Britain with a heavy debt and the great costs ofmanaging and defending the new North American territory thatthe country gained during the war.

The colonists protested that these taxes violated the colonistsEnglish right against taxation without representation: They couldbe taxed, they claimed, only with their consent, or the consent oftheir representatives. No one represented the colonists in theBritish Parliament. Thus, the colonists argued, only their coloniallegislatures could tax the colonies.

The colonists also reacted violently against the taxes. Colonistsdestroyed and refused to buy taxed goods, and threatened andattacked customs officers, who collected the taxes that Britainimposed on goods imported (brought into) the colonies. The morethe colonists resisted, the more Parliament felt that it needed to

8 Legal Rights

show its power over the colonies and to show the right of theBritish government to tax them. Over time, the conflict betweenthe American colonies and Britain grew into war. On April 19,1775, colonists and British soldiers exchanged the opening shots of

Origins of American Legal Rights 9

During the reign of George III, king of Great Britain and Ireland from 1760 to1820, the policies of the British government toward the American coloniesled to the American Revolution. (Library of Congress, Prints and PhotographsDivision [LC-USZ62-93478])

In the Proclamation of 1763, Great Britain declared that the area west of the Proclamation Line was NativeAmerican territory. In 1776, the American colonies declared independence from Great Britain because theybelieved that Britain had violated their traditional rights as English people.

the American Revolution in the Massachusetts towns of Lexingtonand Concord.

REVOLUTIONARY AMERICABy 1776, the American colonists lost all hope that they could settletheir differences with Great Britain peacefully and remain part ofthe British Empire. The colonies began formally changing them-selves into states. In May, the Continental Congress (the govern-ment of the United States during the American Revolution) calledfor the colonies to set up their own governments. On July 4, 1776,the Continental Congress declared in the Declaration of Indepen-dence that these United Colonies are, and of Right ought to be

Origins of American Legal Rights 11

This 18th-century print shows John Malcolm, a British customs officer, about to be tarred and feathered byBoston colonists. In the years leading to the American Revolution, colonists reacted against British taxes onimports by threatening and attacking British customs officers. (Library of Congress, Prints and PhotographsDivision [LC-USZ62-45556])

Free and Independent States. By the end of the American Revolu-tion in 1783, all of the 13 states had adopted their own constitu-tions.

Experience had taught the former colonists that their state con-stitutions had to be more than just blueprints for setting up gov-ernments. When Americans were still colonists, their royalgovernors constantly challenged the right of the colonies to governthemselves through their legislatures. To defend that right, thecolonists would appeal to fundamental law, such as Magna Carta.

12 Legal Rights

Leaders of the Second Continental Congress. The Second ContinentalCongress, which first met on May 10, 1775, was the congress of the UnitedStates during the American Revolution. The Second Continental Congress wasthe forerunner of the U.S. Congress. Left to right: John Adams, delegate fromMassachusetts; Gouverneur Morris, delegate from New York; AlexanderHamilton, delegate from New York; and Thomas Jefferson, delegate fromVirginia. (Library of Congress, Prints and Photographs Division [LC-USZ62-14414])

The colonists arguments were less forceful, however, when theywere based on unwritten principles. By the time they were ready towrite their first state constitutions, Americans believed that consti-tutions had to guarantee certain individual rights and set specificlimits to government power. Nine states introduced their state con-stitutions with bills of rights. The other four states (New Jersey,Georgia, New York, and South Carolina) added specific rights intothe bodies of the state constitutions. Together, these first state con-stitutions guaranteed nearly all of the rights now guaranteed by theFourth through Eighth Amendments (although not necessarily inthe same way or to the same extent).

Origins of American Legal Rights 13

THE VIRGINIA DECLARATION OF RIGHTS(1776)

Virginia, the oldest and largest of the original American states,was the first state to adopt a declaration of rights and a constitu-tion. The Virginia Declaration of Rights (adopted June 12, 1776)and the Virginia Constitution (adopted June 29, 1776) are alsoolder than the Declaration of Independence. The author of theVirginia Declaration of Rights was George Mason, one of the del-egates at the Constitutional Convention of 1787 who refused tosign the U.S. Constitution because it did not have a bill of rights.Mason also wrote much of the Virginia Constitution. James Madi-son, who helped to write the Virginia Constitution, used the Vir-ginia Declaration of Rights as a model when (as representative ofVirginia in the U.S. Congress) he wrote the amendments thatbecame the Bill of Rights.

The Virginia Declaration of Rights guaranteed many of therights now guaranteed in the Fourth through Eighth Amendmentsof the Bill of Rights, including (in the words of the declaration)the right to a speedy trial, the right to trial by jury, the right notto give evidence against oneself, the right not to be deprivedof . . . liberty except by the law of the land, the right to confrontaccusers and witnesses, and the right against cruel andunusual punishments.

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THE BIRTH OF THE BILL OF RIGHTS

The U.S. Constitution set up a federal system of gov-ernment in the United States. Under a federal system,power is divided between a central government and thestates. The central government is also called the federalgovernment. When the writers of the U.S. Constitutionpresented it to the Constitutional Convention on Sep-tember 12, 1787, George Mason, a delegate from Vir-ginia, wished aloud that the Constitution had beenprefaced [introduced] with a Bill of Rights, whichwould limit the powers of the federal government.Elbridge Gerry (a delegate from Massachusetts) andEdmund Randolph (a delegate from Virginia) alsowanted a bill of rights that would limit the powers ofthe federal government. The Constitutional Conven-tion, however, rejected the idea. On September 17, thelast day of the convention, Mason, Gerry, and Ran-dolph refused to sign the Constitution.

Why so many of the conventions delegatesrejected a federal bill of rights is unclear. Perhaps the

14 Legal Rights

The Declaration of Independence was signed on July 4, 1776. (Library of Congress, Prints and PhotographsDivision [LC-USZ62-3736])

Sir William Blackstone (172380), Englishjudge and legal scholar, wroteCommentaries on the Laws of England, 4 vol.(176569). This was the standard textbookfor the teaching of law in England andNorth America. The Commentaries greatlyinfluenced American lawmakers and legalthinkers during and after the AmericanRevolution. (Library of Congress, Prints andPhotographs Division [LC-USZ62-43798])

delegates, who had already spent months working on the Consti-tution during the hottest summer in Philadelphia that anyonecould remember, were ready to go home. The delegates were prob-ably not eager to deal with such a big issue when their job wasalmost done. Perhaps the delegates also agreed with Roger Sher-man, a delegate from Connecticut. He argued that a federal bill ofrights was not needed: The state bills of rights, he claimed, wereenough to protect the rights of Americans. Also, he argued, the fed-eral government had only those powers named in the Constitu-tion, which did not give the federal government any power toviolate rights protected by the states.

Although the Constitution as adopted in 1787 did not containa bill of rights, it did protect some rights normally protected by abill of rights. For example, under Article 1, Section 9 of the Consti-tution, the government cannot punish people without a trial orpunish them for doing something that was not a crime at the time.Article 3, Section 2 guarantees the right to trial by jury in criminalcases.

Origins of American Legal Rights 15

The Constitution of the United States was signed at the ConstitutionalConvention in Philadelphia, Pennsylvania, on September 17, 1787. (Library of Congress, Prints and Photographs Division [LC-USA7-34630])

I am glad to hear thatthe new constitution isreceived with favor. I sin-cerely wish that the 9first conventions mayreceive, and the 4 lastreject it. The former willsecure it finally, while thelatter will oblige them tooffer a declaration ofrights in order to com-plete the union.

Thomas Jefferson, in aletter dated February 6,1788, sent from Paris,

France, to Federalist James Madison

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A bill of rights is whatthe people are entitledto against every govern-ment on earth, generalor particular, and whatno just governmentshould refuse.

Thomas Jefferson, in aletter dated December 20,

1787, sent from Paris,France, to James Madison,

a leading Federalist

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The Constitutional Conventions decision not toinclude a bill of rights in the Constitution turned outto be a serious mistake. The lack of a bill of rights wasthe most powerful argument of the Anti-Federalists(those who opposed the Constitution). The Anti-Federalists believed that the federal government underthe proposed Constitution would be too powerful.Mason and Gerry were leading Anti-Federalists. TheFederalists (those who supported the Constitution)countered, as Sherman had argued, that a federal billof rights was unnecessary: The Congress, the Federal-ists claimed, would have no power to violate individ-ual liberties.

In the end, the Federalists arguments against a fed-eral bill of rights were unconvincing. By January 9,1788, five states (Delaware, Pennsylvania, New Jersey,Georgia, and Connecticut) had ratified (formallyapproved) the Constitution. Only four more states hadto ratify the Constitution for it to become the law ofthe land. What important states such as Massachusetts,New York, and Virginia would decide, however, re-mained uncertain. To win the support of Massachu-setts, the sixth state to ratify the Constitution,Federalist delegates to that states convention proposed

a list of amendments (changes in wording or meaning) to the Con-stitution. Massachusetts was the first among the states that ratifiedthe Constitution to submit proposed amendments along with thestates ratification to Congress. Other states that ratified the Con-stitution also officially recommended amendments. New Hamp-shire, the ninth state to ratify the Constitution, ratified theConstitution on June 21, 1788.

When the first American congress under the new U.S. Consti-tution met in April 1789, James Madison, representative from Vir-ginia and a leading Federalist, led the effort to amend theConstitution. Madison drew the amendments that became the Billof Rights from those proposed by the states, especially the amend-ments proposed by Virginia. The United States adopted the Bill ofRights on December 15, 1791.

16 Legal Rights

James Madison (17511836) was the mostimportant framer of the U.S. Constitutionand author of the amendments that werelater shaped into the Bill of Rights.Madison became the fourth president ofthe United States in 1809. (Library ofCongress, Prints and Photographs Division[LC-USZ62-106865])

For why declare thatthings shall not be donewhich [the governmenthas] no power to do?

Federalist AlexanderHamilton, on why the U.S.

Constitution did not need a bill of rights, in The

Federalist, no. 84, 1788

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Origins of American Legal Rights 17

FROM STATES RIGHTS TO THE RIGHTS OF INDIVIDUALS

When the United States adopted the Bill of Rights, it guaranteedrights against the federal government, not the states. In 1868, how-ever, the United States adopted the Fourteenth Amendment, whichforbids the states (as the Fifth Amendment forbids the federal gov-ernment) from depriving any person of life, liberty, or property,without due process of law. In other words, the FourteenthAmendment says that state governments (just like the federal government) cannot treat people unfairly under the law. (After the American Civil War, the Thirteenth, Fourteenth, and FifteenthAmendments made the newly freed black slaves full American citizens.)

The Fourteenth Amendment changed the Bill of Rights from adocument that stressed the rights of the states to one that also for-bids state and local governments from violating the fundamentalrights of individuals. In the 20th century, the U.S. Supreme Courtsaid in a number of decisions that the due process clause of theFourteenth Amendment forbids the states from violating rightsguaranteed in the Bill of Rights. For example, in Gitlow v. New York(1925), the Court said that the due process clause forbids the statesfrom violating the First Amendment right to free speech. In Wolf v.Colorado (1949), the Court said that the due process clause forbidsthe states from violating the Fourth Amendment right againstunreasonable searches and seizures. Today, all but the Second andSeventh Amendments, and one clause in the Fifth Amendment,apply to state and local governments. The Fifth Amendment clausethat does not apply to the states is the one that forbids the federalgovernment from trying someone for a crime unless a grand juryagrees that the government has enough evidence against theaccused.

18 Legal Rights

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, sup-

ported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

Amendment IV, Constitution of the United States

Under the Fourth Amendment, Americans have a right . . . againstunreasonable searches and seizures. This means that an officer (forexample, a sheriff or a police officer) cannot search or arrest (takeor hold) people, or search or take away their things (such as theirhomes or papers), without a good legal reason.

The amendment also says that no warrants can be issued with-out probable cause. A warrant is a writ (a written legal order) thatgives an officer the power to do something that is necessary in orderto carry out the law. In the Fourth Amendment, the word War-rants refers specifically to search and arrest warrants. A search war-rant gives an officer the power to search a place or a person. A searchwarrant also usually gives an officer the power to seize (take or takecontrol of) evidence (something that is presented in court in orderto prove whether something is true or false). An arrest warrant ordersan officer to arrest the person named on the warrant and to bringhim or her before the court or a magistrate (a court officer who hassome of the powers of judges, such as the power to issue warrants).

An officer cannot receive a warrant unless he or she can showprobable cause, that is, good reason (reason based on facts) for 19

2The Right AgainstUnreasonable Searchesand Seizures

j

believing that (1) something illegal has been or is being done, (2)the person to be arrested is guilty of breaking the law, (3) the thingto be seized is in the place named on the warrant, or (4) a searchwill uncover illegal goods.

Finally, the Fourth Amendment requires that warrants be spe-cific. They must particularly [describe] the place to be searched,and the persons or things to be seized.

ORIGINSAmericans created the Fourth Amendment because they dislikedwrits of assistance when America was under British rule. Generally,a writ of assistance is a writ issued to a sheriff, marshal, or other lawofficer to enforce an order. In the American colonies, Great Britainused writs of assistance to search for illegally imported goods.(Importing certain goods into the colonies without paying Britishtaxes was illegal.) These writs allowed British customs officers tosearch anyone and anywhere and to seize any smuggled goods theoffficers may find. Also, these writs remained in force until sixmonths after the death of the monarch.

These writs of assistance were general warrants, writs statingthat those legally bearing the warrants had been given power bythe monarch to arrest, search, or seize whomever or whatever inorder to carry out the law. Besides using such warrants to findsmuggled goods, British officers used general warrants to search forand arrest political and religious dissenters. Americans created theFourth Amendment mainly in order to outlaw general warrants inAmerica.

Although the American colonists disliked Britains use or (as theywould say) abuse of general warrants, the American colonies alsoused them, including writs of assistance. Most colonies used generalsearches to collect taxes, discourage illegal hunting or fishing, cap-ture serious criminals, or find stolen goods. Although specific war-rants (that is, warrants that limit searches, seizures, and arrests to theparticular person, things, or place named on the warrant) did exist,the colonies rarely used them before 1750. General warrants werestill common in America during the American Revolution, eventhough eight state constitutions outlawed general warrants.

During the 17th and 18th centuries, respected English legalthinkers, such as Coke, Sir Matthew Hale, and Sir William Black-

20 Legal Rights

There are . . . essentialrights, which we havejustly understood to bethe rights of freemen; asfreedom from hasty andunreasonable searchwarrants, warrants notfounded on oath, andnot issued with due cau-tion, for searching andseizing mens papers,property, and persons.

Anti-Federalist RichardHenry Lee, on the need for

constitutional protectionagainst unreasonable search warrants, The

Federal Farmer, no. 4,October 12, 1787

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stone, argued that general warrants violated Magna Carta, specifi-cally chapter 39, which says, No freemen shall be captured orimprisoned or disseised or outlawed or exiled or in any waydestroyed, nor will we go against him or send against him, exceptby the lawful judgment of his peers or by the law of the land. Infact, however, Magna Carta says nothing against general searches.Nevertheless, Magna Carta became an important weapon againstthem.

As Paxtons Case (1761) shows, resistance to general warrantsalso existed in America. In 1760, the death of Britains king GeorgeII meant that existing writs of assistance would end after sixmonths. In Paxtons Case, 63 Boston merchants asked the Massa-chusetts Superior Court (the highest court in the colony) not toreplace the writs. Representing the merchants, James Otis, Jr., aMassachusetts lawyer, argued before the court that the 1662 Britishstatute approving writs of assistance violated common law. He alsoargued that the statute violated natural law. Those who believed inthis system of law or justice believed that it comes from nature andthat natural law can be discovered by human reason alone, without

The Right Against Unreasonable Searches and Seizures 21

EVERY MANS HOUSE IS HIS CASTLE

Critics of general warrants often referred to Semaynes Case (1603),which upheld the right of homeowners to defend their homesagainst those who are entering illegally, even if the invaders areacting on behalf of the monarch. Said the court, The house ofevery one is to him as his castle and fortress. This restated thepopular English saying, A mans house is his castle, which hasbeen traced back to 1567. Forty years after Semaynes Case, Cokesaid in his Institutes of the Laws of England For a mans house is hiscastle.

Semaynes Case, however, did recognize the right of officers tobreak into someones home, after giving notice, to make an arrestor to present an order to appear in court. But although SemaynesCase upheld the right of the government to invade a dwelling inorder to carry out a legal order, the saying Every mans house ishis castle became a popular rallying cry against general searches.

ij

referring to human laws and decisions by judges. People who be-lieved in natural law also believed that it is common to all humansocieties and that it is the proper basis for all human laws. A manshouse is his castle, said Otis, repeating the popular English saying.He continued, This writ [of assistance], if it should be declaredlegal, would totally [destroy] this privilege.

To support his argument that writs of assistance violated com-mon law, Otis referred to Coke, who had argued that Magna Cartaforbids general search warrants. (In fact, as already noted, MagnaCarta says nothing against general searches.) Otis also wronglyinterpreted Coke to mean that all search warrants must be specific.In the end, the court rejected Otiss arguments and decided in favorof continuing to issue writs of assistance.

The Massachusetts legislature responded to the courts decisionby reducing the judges salaries and passing a bill to define writs ofassistance as specific warrants. The state governor, however, vetoedthe bill. Chief Justice Thomas Hutchinson would later argue thathis support of writs of assistance in Paxtons Case had led to hispolitical downfall. Also, less than a decade later, most colonialcourts would refuse to issue writs of assistance when called for bythe Townshend Acts of 1767. (The acts taxed certain goodsimported into the American colonies.)

Although opposition to general war-rants has its roots in Great Britain, the history of specific warrants begins in 18th-century Massachusetts. Specific warrantsname the particular place that is to besearched and the person or things that areto be searched, arrested, or seized. More-over, specific warrants limit all searches,arrests, and seizures to the particular place,person, or things listed on the warrant.From 1756 to 1766, a group of Massachu-setts statutes and court decisions limited a search or an arrest to the person or placenamed on the warrant. In the 1780s, thestate legislature also limited seizures ofobjects to those things named on the warrant.

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This writ ofassistance . . . appearsto me . . . the worstinstrument of arbitrarypower, the most destruc-tive of English liberty,and the fundamentalprinciples of the consti-tution, that ever wasfound in an English lawbook.

Massachusetts lawyerJames Otis, Jr., arguing

against writs of assistance inPaxtons Case (1761)

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But Otis was a flame of fire! . . . Every man of acrowded audience appeared to me to go away, as Idid, ready to take arms against writs of assistance.Then and there was the first scene of the first act ofopposition to the arbitrary claims of Great Britain.Then and there the child Independence was born. Infifteen years, namely in 1776, he grew up to man-hood, and declared himself free.

former U.S. president John Adams (U.S.president, 17971801), in a letter dated March 29, 1817. Adams, who witnessed

Paxtons Case as a young lawyer, describes James Otiss speech against writs of assistance

during the trial as inspiring the American Revolution.

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UNREASONABLE SEARCHES AND SEIZURES

The Fourth Amendment does not say what is an unreasonablesearch or seizure. Nor does the amendment clearly say whether asearch or seizure not approved by a warrant is necessarily unrea-sonable. In cases before Harris v. United States (1947), the U.S.Supreme Court tended to define a reasonable search or seizure asone that, with narrow exceptions, is approved by a proper warrant.Starting with Harris and until Chimel v. California (1969), however,

The Right Against Unreasonable Searches and Seizures 23

JAMES OTIS, JR.(17251783)

American colonial political leader andlawyer James Otis, Jr., was born in WestBarnstable, Massachusetts, in 1725. Otis,famous largely for Paxtons Case (1761),greatly influenced the ideas of the AmericanRevolution. Although Otis lost Paxtons Case,he soon became leader of the radical wing ofcolonists who opposed Great Britains poli-cies regarding the American colonies. Otisalso defended colonial rights in speechesand pamphlets. Paxtons Case led to Otissbeing elected in May 1761 to the Massachu-setts House of Representatives, to which hewas reelected almost every year until hispolitical life ended in 1769. Although Otiswas elected speaker of the house in 1766,the royal governor of Massachusetts vetoedhis election.

In 1769, Otis was struck on the head dur-ing a quarrel with a British customs officer.The blow made Otis, who had alreadytended to have fits of insanity, permanently

(but harmlessly) insane. He died in 1783after being struck by lightning.

James Otis, Jr. (Library of Congress, Prints andPhotographs Division [LC-USZ62-102561])

ij

the Court did not presume that searches and seizures require war-rants to be reasonable, although the Court believed that whether asearch or seizure was approved by a warrant is one among otherissues that should be considered. Since Chimel, the Court has, as itdid before Harris, stressed the importance of warrants.

In many cases, before and after Harris, the Court stressed thatonly a neutral magistrate should issue search and arrest warrants.That is, unlike the officer requesting the warrant, the magistratemust have no interest in whether the search or arrest takes place.After the officer applying for the warrant swears that the informa-tion given on the application is true, the magistrate must deter-mine whether there is probable cause for a search or an arrest.

Even though the Court has often stressed the importance of warrants, the Court has never believed that the Fourth Amend-ment requires officers to get warrants for all searches and seizures.First of all, getting a warrant may be impractical. For instance,while arresting someone, police officers often search that personfor any hidden weapons or evidence. A search connected with aproper arrest is called a search incident to arrest. In Weeks v.United States (1914), the Court recognized the power of officers to do such searches without a warrant. No justice has ever chal-lenged the principle, which is rooted in common law, that offi-cers making a proper arrest can search the person being arrestedfor hidden weapons or evidence. In Chimel, the Court limited thesearch of someone in a search incident to arrest to the areawithin his immediate control, meaning, the area from wherethe person may get a weapon or evidence that can be destroyed.The great majority of searches are searches incident to arrest.

Other searches that do not require warrants are stop-and-frisksearches. When police officers see someone acting suspiciously butdo not have probable cause to arrest that person, they often stopthe suspect and frisk (run their hands quickly over) the suspectsclothing to find any hidden weapons. In Terry v. Ohio (1968), theCourt said that before an officer can stop and frisk someone, theofficer must have reasons, based on facts, to believe that the sus-pect is about to commit a crime and that the officers safety or thesafety of others is at risk.

Today, many searches do not require warrants. Warrants arenow most often required in criminal cases. However, there are

24 Legal Rights

exceptions here as well. For example, officials can search publicschools, government offices, and prisons without warrants. Othersearches that do not require warrants include automobile searches;body searches (including those that involve extracting blood); shipsearches; border searches (searches of people, vehicles, or goodsentering the country); open field searches (searches in openareas, like pastures, wooded areas, open water, and vacant lots); andplain view searches (searches of illegal items that are not blockedfrom an officers view).

THE EXCLUSIONARY RULEThe Fourth Amendment does not say whether evidence obtainedby violating the amendment should be barred from being used against the accused. Before the 20th century, the U.S.Supreme Court followed common law, which allowed the gov-ernment to use illegally seized evidence against defendants incriminal trials. The Court said that victims of illegal searches or

The Right Against Unreasonable Searches and Seizures 25

A police officer frisks seven men in New York City as they line up on a fence.(Library of Congress, Prints and Photographs Division [LC-USZ62-120785])

seizures could seek justice by suing the officers who had violatedthe law.

In Weeks, the Court decided that the Fourth Amendment doesbar the government from using evidence obtained from an illegalsearch or seizure by federal officers. This decision established theexclusionary rule, which bars evidence obtained by violating theconstitutional rights of defendants. The Court said, however, thatthe exclusionary rule applies only to federal, not state, criminalcases. In Wolf v. Colorado (1949), the Court said that the states can-not violate the Fourth Amendment right against unreasonablesearches and seizures. But the Court still refused to require thestates to follow the exclusionary rule. In Mapp v. Ohio (1961), how-ever, the Court reversed itself and said that the exclusionary rulealso applies to the states.

Mapp involved the case of Dollree Mapp. In 1957, in Cleveland,Ohio, three police officers entered the boardinghouse of Mappwithout a search warrant. The officers believed that Mapp was hid-ing someone involved in a recent bombing. They also expected tofind evidence of illegal gambling. When they entered the board-inghouse, they found neither the person they were looking for norevidence of illegal gambling. They did find, however, illegalpornography (sexual pictures or writings), for which Mapp wasarrested and convicted (found guilty) for possessing. OverturningMapps conviction, the Court said that evidence seized by violatingthe Fourth Amendment cannot be used against criminal defen-dants in state courts, just as such evidence cannot be used againstcriminal defendants in federal courts.

Many criticized the Courts decision in Mapp. Supporters of theexclusionary rule claimed that it is the only way to protect the rightto be free from illegal searches or seizures. Critics, however, arguedthat a criminal should not escape punishment because a police offi-cer violated the U.S. Constitution. Critics also argued that theexclusionary rule does not strongly discourage police officers fromviolating the Fourth Amendment. For example, the rule does notrequire superiors to punish police officers who obtained evidenceillegally. Moreover, governments rarely try to bring such officers totrial.

Since the 1960s, the Court has limited the exclusionary rule inimportant ways. For instance, in most cases, only victims of illegal

26 Legal Rights

The criminal goes free,if he must, but it is thelaw that sets him free.

Associate Justice Tom C. Clark, delivering

the opinion of the U.S. Supreme Court in

Mapp v. Ohio (1961),on the exclusionary rule

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searches can benefit from the exclusionary rule.For example, according to the Courts decisionin Rakas v. Illinois (1978), if officers violate theFourth Amendment by searching Marys houseand find evidence against Jane, the evidence canbe used against Jane in her trial. State courts,however, are free to exclude evidence in caseslike Janes. Also, in Harris v. New York (1971), theCourt allowed prosecutors to use illegallyobtained evidence to challenge a defendantstestimony (statements made under oath by awitness) in court. In United States v. Calandra(1974), the Court allowed prosecutors to admitillegally obtained evidence in grand jury pro-ceedings. In Chapman v. California (1967), theCourt allowed higher courts to considerwhether the use of illegally obtained evidence ina criminal trial was harmless error, an error thatneither affected an important or essential rightnor changed the outcome of a trial.

In United States v. Leon (1984), the Courtallowed good faith exceptions to the exclu-sionary rule. In cases where a search warrant isfound later by a higher court to be illegal, thegood faith exception allows the government touse the evidence that was obtained under thewarrant against the defendant in a trial if thepolice reasonably believed at the time that the warrant was legal.The good faith exception has become the most important excep-tion to the exclusionary rule.

The exclusionary rule also applies to evidence obtained by vio-lating the Fifth and Sixth Amendments. For example, the govern-ment cannot use coerced confessions from defendants as evidenceagainst them in criminal trials, since forcing defendants to confessviolates their Fifth Amendment right not to accuse themselves of acrime. The government also cannot use statements from defen-dants as evidence against them in criminal trials if officers obtainthe statements by violating the defendants Sixth Amendmentright to a lawyer.

The Right Against Unreasonable Searches and Seizures 27

Byron R. White, associate justice of the U.S.Supreme Court from 1962 to 1993, delivered thedecision in United States v. Leon (1984), whichallowed good faith exceptions to the exclusionaryrule. (Library of Congress, Prints and PhotographsDivision [LC-USZ62-60144])

EXPECTATION OF PRIVACYBefore 1967, the U.S. Supreme Court believed that the FourthAmendment was meant to protect property interests. This viewcontrolled the Courts decisions in many cases, including a caseinvolving wiretapping. Wiretapping involves connecting into atelephone or telegraph wire to get information by secretly listen-ing to private conversations. In Olmstead v. United States (1928),the Court said that wiretapping is not a search or a seizure withinthe meaning of the Fourth Amendment. Therefore, the Courtsaid, the government did not need a warrant in order to wiretapsomeones telephone conversations, as long as the governmentdid not physically enter the persons property without permissionor by force.

Warrantless wiretapping continued to be legal for almost 40years until the Courts decision in Katz v. United States (1967). InKatz, the Court said that the main purpose of the Fourth Amend-ment is to protect privacy, not property. Thus, overruling its deci-sion in Olmstead, the Court said that the Fourth Amendmentrequires the government to get a search warrant to install a wiretap.

Katz involved the case of Charles Katz. Agents from the FederalBureau of Investigation (FBI) suspected that Katz was illegally send-ing gambling information over the telephone from Los Angeles,California, to clients in other states. Without a warrant, the agentsattached an electronic listening and recording device to the roof ofa public telephone booth where Katz made his calls. Based onrecordings of Katzs telephone conversations, Katz was convicted ofillegally sending betting information from Los Angeles to Boston,Massachusetts, and Miami, Florida.

The Court said that the government, by electronically listen-ing to and recording Katzs conversations, violated Katzs privacy,upon which he justifiably relied while using the telephonebooth; therefore, the wiretapping was a search and seizure withinthe meaning of the Fourth Amendment. The Fourth Amendment,therefore, required the agents to get a search warrant to wiretap thepublic pay phone, even though the agents did not physically enterthe phone booth. In a separate opinion, Justice John Marshall Har-lan said that an enclosed telephone booth is an area where, like ahome, . . . and unlike a field, . . . a person has a constitutionallyprotected reasonable expectation of privacy.

28 Legal Rights

The Fourth Amendmentprotects people, notplaces. What a personknowingly exposes to thepublic, even in his ownhome or office, is not asubject of FourthAmendmentprotection. . . . But whathe seeks to preserve asprivate, even in an areaaccessible to the public,may be constitutionallyprotected.

Associate Justice PotterStewart, delivering the

opinion of the U.S.Supreme Court in Katz v.

United States (1967)

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Since Katz, whether a search or seizure violates a reasonableexpectation of privacy has determined whether a search or seizureis presumed to require a warrant. Now, however, the Court tries todetermine whether the expectation of privacy is so great that asearch or seizure requires a warrant. In Cardwell v. Lewis (1974),Associate Justice Harry A. Blackmun, who delivered the opinion ofthe Court, said, One has a lesser expectation of privacy in a motorvehicle than in a home or an office. If there is a lesser expectationof privacy, then a search or seizure may not require a warrant. As aresult, the power of the government to search greatly expandedafter Katz.

NATIONAL SECURITYU.S. courts have generally accepted the power of the president toapprove warrantless searches and seizures (such as break-ins andspying) in order to gather foreign intelligence (in-formation about possible or actual foreign enemies ofthe United States or about other countries). There aregood reasons for allowing presidents this power: Forinstance, to counter foreign threats, presidents have toact secretly and quickly. Also, presidents know muchmore about foreign affairs and have more experience insuch matters than do judges. Finally, the U.S. Constitu-tion gives presidents the dominant role in foreignaffairs.

Since Franklin D. Roosevelt (U.S. president from1933 to 1945), American presidents have also claimedthe power to approve warrantless searches and seizures,including warrantless electronic surveillance, to protectnational security. Electronic surveillance means spyingthrough the use of electronic devices, such as wiretaps,bugs (hidden listening devices), and videotaperecorders. In United States v. United States District Court(1972), however, the Court said that, even in matters ofnational security, the federal government must get awarrant to spy within the United States in order togather domestic intelligence (information about groupsor individuals within the country). Limits on gatheringdomestic intelligence is meant to prevent the creation

The Right Against Unreasonable Searches and Seizures 29

Lewis F. Powell, Jr., associate justice of theU.S. Supreme Court from 1972 to 1987,delivered the decision in United States v.United States District Court (1972), whichrequired the federal government to get awarrant in order to spy within the UnitedStates. Congress has since given thefederal government more power to spy onAmericans. (Library of Congress, Prints andPhotographs Division [LC-USZ62-60140])

of a secret police, a police organization that works mostly in se-crecy. In many countries, the secret police suppresses dissent, oftenby inspiring fear.

In 1976, the Senate Select Committee to Study GovernmentalOperations with Respect to Intelligence Activities issued a finalreport providing evidence of many cases where, from the 1930s tothe 1970s, the executive branch and intelligence agencies illegallyor improperly used their power to spy electronically. (The executivebranch includes the president, the vice president, and the presi-dents advisers.) For example, from 1940 to 1975, the FBI installedabout 10,000 wiretaps and bugs. Other federal agencies also wire-tapped phones and planted bugs. An agent in the Department ofthe Treasury installed more than 10,000 wiretaps and microphonesbetween 1934 and 1948.

Although these agencies conducted such spying in the name ofnational security, in most cases, they spied in order to control

crime or to keep an eye on political dissenters.For example, between 1963 and 1968, the FBIspied on civil rights activist Martin LutherKing, Jr., in search of communist influence.(During the 1950s and 1960s, King was animportant leader in the movement to gainequal rights for African Americans.) During the1960s and the 1970s, the Central IntelligenceAgency (which gathers foreign intelligence)illegally spied on thousands of activists withinthe United States and abroad in order to findties between antiwar groups and foreign pow-ers. The agency never found any such ties.

The many cases of improper and illegal elec-tronic spying by the federal government ledCongress to pass the Foreign Intelligence Sur-veillance Act (FISA) in 1978. The act requiredthat spying within the United States against aforeign power or an agent of a foreign power inorder to protect national security be approved bya warrant. Foreign powers include, for example,foreign governments, foreign political groups,and international terrorist groups. An agent of a

30 Legal Rights

Under J. Edgar Hoover, director of the FederalBureau of Investigation from 1924 to 1972, the FBIspied on many Americans in an effort to findcommunist influence. (Library of Congress, Prints and Photographs Division [LC-USZ62-92411])

foreign power is someone who works for or onbehalf of a foreign power. FISA established a spe-cial secret court, which reviews applications bythe federal government to spy against foreignpowers or agents of foreign powers. The act alsobanned the government from using electronicdevices to listen in on Americans unless theiractivities involve criminal conduct.

Twenty years later, however, the terroristattacks on September 11, 2001, against theUnited States would lead Congress to expandthe power of the federal government in order todeal with the threat of global terrorism (the useof violence to frighten people into acceptingcertain political goals or demands). Weeks afterthe terrorist attacks, Congress passed the USAPATRIOT Act, which gave the federal govern-ment much more power to search and spy inorder to gather foreign and domestic intelli-gence. For example, the act changed FISA toallow the FBI to do searches and to wiretap incriminal investigations without having to showprobable cause if gathering foreign intelligenceis an important reason (rather than the reason)for the search or wiretap.

The Right Against Unreasonable Searches and Seizures 31

On August 9, 1974, U.S. president Richard M.Nixon resigned from office because of theWatergate affair, a series of scandals involving,among other things, illegal wiretapping of citizensby members of the executive branch while he waspresident and political spying by his reelectioncommittee. He had been president since 1969.(Library of Congress, Prints and Photographs Division[LC-USZ62-13037])

No person shall be held to answer for a capital, or otherwise infa-

mous crime, unless on a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces, or in the Militia,

when in actual service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to be a wit-

ness against himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken for

public use, without just compensation.

Amendment V, Constitution of the United States

The rights guaranteed by the Fifth Amendment help to ensure thatthe government treats people fairly under the law. The right to anindictment by a grand jury, the right against double jeopardy, andthe right against self-incrimination are meant to protect peopleagainst unfair and unjustified prosecutions. The right to dueprocess of law forbids the government from depriving people oflife, liberty, or property unfairly. Finally, the right to just compen-sation requires the government to pay a fair price for private prop-erty taken for public use.

THE RIGHT TO INDICTMENT BY GRAND JURY

Under the Fifth Amendment, the federal government cannot tryanyone outside of the armed forces (the military, the navy, and the32

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air force) for a serious federal crime without an indictment by agrand jury. (Those in the regular armed forces who are accused offederal crimes are tried in military courts.) An indictment is a for-mal document that accuses someone or a group of people of acrime, a serious illegal act that is seen as affecting the public,although only one person might have been harmed. Examples ofcrimes are murder, arson, burglary, and robbery.

A grand jury is a group of people chosen to examine the gov-ernments accusations against someone charged with (formallyaccused of) a crime. The Fifth Amendment also says that a grandjury can make a presentment. A presentment is like an indictment,except that the members of a grand jury make a presentment bychoice, without an indictment laid before them; or, they make apresentment based on their own knowledge. The grand jury clausewas meant to protect people against careless, groundless, or mean-spirited charges by the government. In Hurtado v. California (1884),the U.S. Supreme Court said that the Fifth Amendment does notrequire the states to use grand juries.

Origins of the Grand JuryThe grand jury has roots in ancient Athens, Greece; England underthe Anglo-Saxons (Germanic peoples who conquered England inthe fifth century); and Englands King Henry lIs Assize of Claren-don of 1166. The Assize of Clarendon was a series of laws begun byHenry II that established the grand jury. The Grand Assize, as thejury was called, was made up of local gentry (those who weresocially ranked below nobles but above small landowning farmers).The Grand Assize consisted of 12 men in each 100, and four menin each township. Members of the Grand Assize, relying on first-hand accounts and rumor, were supposed to report to the kingstraveling judges the most serious crimes and to name those accusedand suspected of crimes. By the 17th century, the grand jury wasseen as a safeguard against unjust charges by the government.

The Grand Jury SystemIn the modern-day grand jury system in the United States, the pros-ecutor presents the indictment before a grand jury. Prosecutors arelawyers who, on behalf of the government, formally accuse some-one suspected of a crime and try to prove in court that the accused

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is guilty. In other words, prosecutors prosecute those suspected ofcrimes. If the grand jury believes that the prosecutor has presentedenough evidence to justify a trial, the grand jury approves theindictment. Grand juries also have the power to investigate: Theyare often chosen to make investigations and issue reports.

Grand juries differ from trial juries in many ways. First, unliketrial juries, grand juries do not decide whether the accused is guilty.Second, grand juries usually have many more members than trialjuries, which usually have 12 members. Grand juries usually havebetween 12 and 23 members. Federal grand juries usually havebetween 16 and 23 members.

Third, in jury trials, two opposing sides, usually represented bylawyers, present evidence to the jury by questioning witnesses. Ingrand jury proceedings, however, prosecutors do most or all of thequestioning of witnesses, whereas, potential defendants or theirlawyers cannot call witnesses at all. Moreover, prosecutors do nothave to present both sides of the case.

Fourth, prosecutors can also introduce evidence that a judgemight not allow them to present in a jury trial. Moreover, prosecu-tors do not have to follow the exclusionary rule: They can basetheir questioning of witnesses on evidence that was obtained ille-gally.

Fifth, grand jury witnesses do not have the same rights as trialwitnesses. For example, grand jury witnesses can be forced to tes-tify (make a statement under oath). They also cannot bring lawyerswith them into the grand jury room. Grand jury witnesses also donot have to be told whether they may be indicted. Finally, unlikejury trials, grand jury proceedings are closed, or secret. The USAPATRIOT Act, however, allows certain federal officials to receiveinformation involving foreign intelligence from grand jury pro-ceedings.

Many people believe that grand juries serve mostly prosecutors,not the accused. Grand juries tend to indict when prosecutorsadvise them to indict. The secrecy of grand jury proceedings alsomakes abuses by prosecutors more likely. For example, secrecyenables prosecutors to trick and bully witnesses, or to misleadgrand jurors.

Today, most states in the United States do not require a prose-cutor to issue an indictment. Instead, they allow a prosecutor to

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issue an information (a written accusation of a crime), which doesnot have to be approved by a grand jury.

THE RIGHT AGAINST DOUBLE JEOPARDY

When an accused person is tried for a crime, he or she is in jeopardy(that is, in danger) of being punished. Double jeopardy means thetrying of someone twice for the same crime (thereby, putting thatperson in the same danger twice). The Fifth Amendment bars dou-ble jeopardy whether the person was acquitted (found not guilty)or convicted. The amendment also forbids the government frompunishing someone twice for the same crime. In 1959, however,the Court said in Abbate v. United States and Bartkus v. Illinois thatthe federal government and a state government can prosecute thesame defendant for the same crime. As a matter of policy, however,the federal government avoids prosecuting a case that has alreadybeen prosecuted by a state.

The double jeopardy clause was meant to prevent the govern-ment from repeatedly exposing someone to the risks connectedwith being tried for a crime. For example, someone accused of acrime risks losing his or her job, reputation, or (if found guilty) free-dom or life. Also, defending oneself against criminal charges cancost a lot of time and money. The phrase jeopardy of life or limb,which comes from common law, used to refer generally to the riskof capital punishment (the risk of being put to death) if foundguilty. In Ex parte Lange (1874), however, the U.S. Supreme Courtdenied that jeopardy must involve risk to life or limb. (Ex partemeans that the case involved one side.)

The right against double jeopardy has roots in ancient Greek,Roman, and Roman Catholic Church law. English common lawallowed defendants to plead former acquittal or former conviction(to state that they had been acquitted of the crime or convicted) inorder to prevent a retrial. In colonial and revolutionary America,the common law rule that defendants can claim double jeopardyonly if they were convicted or acquitted in the first trial was fol-lowed in some cases. In other cases, the rule against double jeop-ardy was understood as barring a second trial even if the accusedwas neither convicted nor acquitted in the first trial.

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THE RIGHT AGAINST SELF-INCRIMINATION

To incriminate someone is to accuse that person of being involvedin a crime, or to show evidence or proof that he or she is involvedin a crime. Self-incrimination is the act of incriminating oneself.Most people have probably heard or seen someone plead theFifth in a courtroom or a hearing. People who plead the Fifth areexercising their Fifth Amendment right against self-incrimination(or the right not to accuse themselves): That is, they are saying thatthey will not answer a question because to do so truthfully mightsuggest that they had been or are involved in a crime. Witnessesand the accused have the right against self-incrimination. In Coun-selman v. Hitchcock (1892), the U.S. Supreme Court said that theFifth Amendment also guarantees witnesses the right against self-incrimination in federal grand jury proceedings. In Quinn v. UnitedStates (1955), the Court said that the Fifth Amendment guaranteeswitnesses the right against self-incrimination in legislative investi-gations. In McCarthy v. Arndstein (1924), the Court also extendedthe right to civil cases if answering truthfully places the person atrisk of being prosecuted for a crime or punished. (Civil cases arenoncriminal cases, for example, those involving legal disagree-ments between individuals.)

On the other hand, to get evidence concerning a crime, thegovernment can force a witness to testify by granting him or herimmunity from prosecution. That is to say, in return for the wit-nesss testimony, the government promises not to use the witnessstestimony against him or her in a trial. Immunity, in this case,means freedom from being punished for a crime. The governmentcan still, however, put the witness on trial with evidence unrelatedto the witnesss testimony. In some cases, a state government prom-ises a witness that the government will not try to punish him or herunder any circumstances for the crime. The federal government,however, does not grant this type of immunity.

OriginsThe American right against self-incrimination comes largely fromthe English common law system of criminal justice. The source ofthe Fifth Amendment clause is the maxim no man is bound to

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The Fifth Amendment isan old friend and a goodfriend. It is one of thegreat landmarks inmans struggle to be freeof tyranny, to be decentand civilized. It is ourway of escape from theuse of torture.

William O. Douglas,associate justice of the

U.S. Supreme Court(193975), An Almanac

of Liberty, 1954

1212121

accuse himself. The right resulted from the conflict between twosystems of justice: the accusatorial system (used by English com-mon law courts) and the inquisitorial system (developed by Englishchurch courts and used also by other royal courts, which were notbound by common law).

Before people could be proven guilty of a crime in the accusato-rial system, they first had to be accused of a crime; then, they hadto be tried publicly by a judge. In the inquisitorial system, the judgeexamined the facts and questioned witnesses. In England duringthe 16th and 17th centuries, the judge, under this system, was alsothe accuser and the prosecutor. The English inquisitorial systemduring this period also allowed torture to force confessions. Com-mon law courts also tried to force those accused or suspected ofcrimes to incriminate themselves. The accusatorial system, how-ever, was fairer to the accused. Moreover, common law courts neverapproved torture, although the Crown held the right to use tortureuntil 1641.

Church courts used inquisitions especially in order to discoverand punish nonconformists (those whose religious views andteachings did not agree with the teachings of the Church of Eng-land). In church courts, officials forced the accused to take an oath(referred to as the oath ex officio) to answer all questions as truth-fully and as fully as possible. Before taking the oath, the accusedwere not told the charges against them, what they were going to beasked, or whether they were even accused of a crime. The royalcourt of the Star Chamber also used the oath ex officio. In the early16th century, the Court of Star Chamber (so called because of thestars painted on the ceiling) became a means to suppress politicaldissenters. Sentences (punishments ordered by a court) for thosefound guilty included whipping, branding (marking someone witha hot iron), and pillorying (placing someone in a public place withhis or her hands and head locked in the holes of a wooden frame).The court, however, never sentenced anyone to death.

Puritans often had to face the oath ex officio. Puritanism arosearound 1560 as a movement to reform the Church of England,which Puritans believed was too much like the Roman CatholicChurch. (King Henry VIII had broken the English church awayfrom the Catholic Church of Rome in 1534.) The early Puritansbelieved that Scripture did not support the Church of Englands

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worship practices or the setting up of bishops and churches by thegovernment. By the 17th century, the Crown was oppressing Puri-tans for their religious beliefs. Suspected nonconformists were sum-moned before the Court of High Commission, which exercisedpower over church matters on behalf of the Crown. The Commis-sion relied on the oath ex officio, not torture, to get answers. Thosewho refused to take the oath or to answer questions after taking theoath were sentenced for contempt (refusal to obey or respect acourt or a judge) and were likely to be tried in the court of the StarChamber.

Legislative InvestigationsAfter World War II (193945), the United States, the Soviet Union,and their allies became rivals. During this struggle, known as thecold war, the two superpowers avoided a direct war, although eachcountry engaged in combat to keep allies from changing sides or tooverthrow allies that had done so. The Soviet Unions system ofgovernment was much different from that of the United States. TheSoviet Unions system of government was based on communism, asystem where the government or the community, not individuals,owns property and controls how and what goods are produced, andwho gets which goods. In the Soviet Union, the government, underthe control of the Communist Party, owned property and con-trolled the economy. The United States has a capitalist system,where the government interferes less in the economy. Moreover,the theories on which communism (Soviet-style communism) isbased call for the overthrow of capitalism. The cold war ended withthe fall of the Soviet Union in 1991.

In 1946 and 1950, concerns about the increased power of theSoviet Union, the spread of communism across the world, the con-fessions of former American Communists, and cases of Communistspying prompted government agencies to investigate the threat ofCommunism in the United States. The U.S. Senate gave two of itscommittees power to investigate communism in the United States:the Judiciary Committees Subcommittee on Internal Security andthe Government Operations Committees Subcommittee on Investi-gations. These committees held hearings where the committeescalled people to testify about their ties or those of others to Com-munist organizations. The U.S. House of Representatives House Un-

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American Activities Committee (HUAC), created in 1938 to investi-gate disloyalty and organizations that sought the overthrow of theU.S. government, also focused on exposing American Communistsand Communist ideas and information in American society. Some

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JOHN LILBURNE(ca. 16141657)

Puritan activist John Lilburne did a lot tomake the right against self-incrimination arule of common law. In 1637, Lilburne wasarrested for smuggling Puritan pamphletsinto England. When he went before thecourt of the Star Chamber for trial, he re-fused to take the oath ex officio. In 1638, Lil-burne was found guilty, fined, publiclywhipped, pilloried, and imprisoned. Lil-burnes refusal to take the oath focused alot of public attention on the injustice offorcing people to incriminate themselves. InDecember 1640, the English Parliamentfreed Lilburne from prison. In 1641, Parlia-ment, which was controlled by the Puritanparty and common lawyers (lawyers whospecialize in the common law), denouncedthe sentences against Lilburne and others,ended the Star Chamber and the High Commission, and banned church officialsfrom giving any