Law and SocietyLaw and Society

Chapter 6: Constitutional LawChapter 6: Constitutional Law

CJUS/POLS 102CJUS/POLS 102

Constitutional LawConstitutional Law1.1. ConstitutionalismConstitutionalism

- fundamental law / set of principles- fundamental law / set of principles- impose limits on government power- impose limits on government power- cornerstone for relationships- cornerstone for relationships

a. a. Constitution and amendmentsConstitution and amendments - basis of rights / liberties- basis of rights / liberties (1) (1) Clarifies our freedomsClarifies our freedoms

(2) (2) Complex evolutionComplex evolution (1789) (1789)

ConstitutionConstitutionb. b. Foundation for governmentFoundation for government

- defines organization- defines organization- three branches established- three branches established- powers of federal government- powers of federal government- limits government power- limits government power

(1) (1) Declaration of IndependenceDeclaration of Independence- 11 years before Constitution- 11 years before Constitution

(2) (2) First ten amendmentsFirst ten amendments- concerns about Constitution- concerns about Constitution

ConstitutionConstitution(3) (3) Role of US Supreme CourtRole of US Supreme Court

- - Marbury vs. MadisonMarbury vs. Madison- decided in federal court- decided in federal court

c. c. Regulates relationshipRegulates relationship- between government / governed- between government / governed

(1) (1) Private entityPrivate entity- cannot violate Constitution- cannot violate Constitution- example: Ken Bearing- example: Ken Bearing- violated state law- violated state law

ConstitutionConstitution

(2) (2) Intent of ConstitutionIntent of Constitution

- define powers of federal government- define powers of federal government

(a) State powers were limited (a) State powers were limited

- function of nation- function of nation

- union of states- union of states

(b) Bill of Rights (adoption)(b) Bill of Rights (adoption)

- applied only to federal level- applied only to federal level

- 1864: - 1864: 1414thth Amendment Amendment

ConstitutionConstitution- 100 years to comply- 100 years to comply

(c) 5(c) 5thth / 14 / 14thth Amendments Amendments

- federal due process- federal due process

- all Americans- all Americans

(3) (3) Supreme law of the landSupreme law of the land

- ‘- ‘Doctrine of SupremacyDoctrine of Supremacy’’

2.2. Constitutional issuesConstitutional issues

ConstitutionConstitution- protect inalienable rights- protect inalienable rights- issues protected- issues protected

a. a. Affirmative actionAffirmative action- designed to remedy discrimination- designed to remedy discrimination- gender / minority status / physical ability- gender / minority status / physical ability- education / employment / benefits / etc.- education / employment / benefits / etc.

(1) (1) Programs determined constitutionalPrograms determined constitutional- minority status- minority status- California voters- California voters

ConstitutionConstitution

(2) (2) Use by government / private businessUse by government / private business

- contract with feds- contract with feds

b. b. DiscriminationDiscrimination

- makes distinction - makes distinction

- limits rights / privileges- limits rights / privileges

- based on inclusion in protected class- based on inclusion in protected class

(1) (1) Against the disabledAgainst the disabled

- not actually a member of that class- not actually a member of that class

ConstitutionConstitution- may still be protected- may still be protected- if perceived to belong- if perceived to belong

(2) (2) Americans with DisabilitiesAmericans with Disabilities Act (1990) Act (1990)- increased equal protection- increased equal protection- school / housing / employment- school / housing / employment

(a) Include over-weight people(a) Include over-weight people

(b) Elderly also considered(b) Elderly also considered- limited in working rights- limited in working rights

ConstitutionConstitutionc. c. Eminent DomainEminent Domain

- right of government / others- right of government / others- take land for public purpose- take land for public purpose

(1) (1) Government must compensateGovernment must compensate- for taking the land- for taking the land

(2) (2) May be required to compensateMay be required to compensate- when activities amount to a taking- when activities amount to a taking- not allow logging near water- not allow logging near water- not allow building on wetlands- not allow building on wetlands

ConstitutionConstitution(a) City government(a) City government

- take land- take land- sell to developer- sell to developer- show for public good- show for public good

(3) (3) CondemnationCondemnation- transfer title- transfer title- from rightful owner to self- from rightful owner to self

(4) (4) EasementEasement- right to cross land- right to cross land

ConstitutionConstitutiond. d. Voting rightsVoting rights

- guaranteed to all qualified Americans- guaranteed to all qualified Americans- 14- 14thth / 19 / 19thth Amendments Amendments

(1) (1) Voting Rights ActVoting Rights Act (1965) (1965)

- enacted to protect African-Americans- enacted to protect African-Americans- ensure right to vote- ensure right to vote

(2) (2) Eliminated literacy testsEliminated literacy tests- other obstacles- other obstacles- created to discourage minority voting- created to discourage minority voting

ConstitutionConstitution3.3. Rights to be familiar with:Rights to be familiar with:

a. a. Freedom of InformationFreedom of Information- right to obtain information - right to obtain information - without undue restrictions- without undue restrictions

(1) (1) Different form of freedomDifferent form of freedom- requires government action- requires government action- make information available- make information available

(2) (2) Based on premiseBased on premise::

ConstitutionConstitution- access to government information- access to government information- functions fairly / openly- functions fairly / openly

(a) CIA / NSA / Homeland Security(a) CIA / NSA / Homeland Security- protected- protected

(3) (3) Does not refer to dutyDoes not refer to duty- Congress required to keep journal- Congress required to keep journal- Congressional Report- Congressional Report

ConstitutionConstitution(a) State of the Union Address(a) State of the Union Address

- given each year- given each year

(b) 5(b) 5thth Amendment Amendment- trials open to public- trials open to public

(4) (4) 2 types of information2 types of information (FOI) (FOI)

(a) What government has done / (a) What government has done / doingdoing

- environmental studies / recalls- environmental studies / recalls- FCC licenses / etc.- FCC licenses / etc.

ConstitutionConstitution(b) Info government has recorded on(b) Info government has recorded on person requestingperson requesting

- federal job application- federal job application- federal employee- federal employee- arrested by federal agency- arrested by federal agency

(5) (5) Right to Privacy ActRight to Privacy Act- also access government files- also access government files

(a) Correct / delete information(a) Correct / delete information- inaccurate / irrelevant- inaccurate / irrelevant

ConstitutionConstitution(b) Several differences(b) Several differences

- who can access / what info- who can access / what info- file under both statutes- file under both statutes

(6) (6) Not all info accessibleNot all info accessible- congress / courts / certain executive- congress / courts / certain executive offices exemptoffices exempt

(a) Agencies not exempt(a) Agencies not exempt- need not reveal certain info- need not reveal certain info

ConstitutionConstitution- trade secrets / national security- trade secrets / national security- internal rules / memos- internal rules / memos- law enforcement records on- law enforcement records on private individualsprivate individuals

(b) Receive government report(b) Receive government report- part blacked out- part blacked out

(7) “(7) “Agency documentsAgency documents””- written material / photographs - written material / photographs - computer tapes / data bases- computer tapes / data bases

ConstitutionConstitution- controls if authority to dispose of it- controls if authority to dispose of it

(8) (8) Time limitTime limit- must decide within 10 working days- must decide within 10 working days- to comply or not- to comply or not

(a) Deny request(a) Deny request- right to administrative appeal- right to administrative appeal- 20 days to respond- 20 days to respond

(b) Denial upheld(b) Denial upheld

ConstitutionConstitution- appeal in federal court- appeal in federal court- “- “exceptional circumstancesexceptional circumstances” ”

4.4. Freedom of ReligionFreedom of Religion- 360,000 places of worship- 360,000 places of worship- 1500 religious bodies / sects- 1500 religious bodies / sects- 63% identify with religion- 63% identify with religion

a. a. 11stst Amendment Amendment - prohibits government- prohibits government - from making laws:- from making laws:

ConstitutionConstitution - - “respecting an establishment of religion or“respecting an establishment of religion or prohibiting the free exercise thereof”prohibiting the free exercise thereof” - two basic components- two basic components

(1) (1) Establishment ClauseEstablishment Clause - prevents giving special status- prevents giving special status

(a) Prevent government sponsored(a) Prevent government sponsored religionreligion

(b) Unique: forefathers were Protestant(b) Unique: forefathers were Protestant

ConstitutionConstitution(2) (2) Free Exercise ClauseFree Exercise Clause

- prevent from unreasonably interfering- prevent from unreasonably interfering- exercise of religious beliefs- exercise of religious beliefs

(3) (3) US Supreme CourtUS Supreme Court- separation of church / state- separation of church / state- 3-part test- 3-part test

(a) Action has a religious purpose?(a) Action has a religious purpose?- history of religion class in school- history of religion class in school- theology class in school- theology class in school

ConstitutionConstitution(b) Primary effect to advance religion?(b) Primary effect to advance religion?- funding for religious seminars- funding for religious seminars- free rent to churches- free rent to churches

(c) Promote “(c) Promote “excessive entanglementexcessive entanglement”?”?- funding to churches- funding to churches (federal grants for children)(federal grants for children)

(d) Answer = “(d) Answer = “yesyes””- violates establishment clause- violates establishment clause- constitutional violation- constitutional violation

ConstitutionConstitution(4) (4) Role of religionRole of religion

- continual litigation- continual litigation- activity that forces / encourages- activity that forces / encourages- students / teachers to participate- students / teachers to participate- unconstitutional (school prayer)- unconstitutional (school prayer)

(a) Government funds(a) Government funds- benefits religious / secular- benefits religious / secular- math / history books- math / history books

(b) Giving credits = court litigation(b) Giving credits = court litigation

ConstitutionConstitutionb. b. Issue of school prayerIssue of school prayer

- mandatory: unconstitutional- mandatory: unconstitutional- voluntary: constitutional- voluntary: constitutional

(1) (1) Unconstitutional restrictionUnconstitutional restriction: free speech: free speech- how to accommodate- how to accommodate- groups who wish to engage- groups who wish to engage- cannot promote / encourage- cannot promote / encourage

(2) (2) Right to hold belief = absoluteRight to hold belief = absolute- FEC: not protect all practices- FEC: not protect all practices

ConstitutionConstitution(a) Sincere religious belief(a) Sincere religious belief

- Santeria Church- Santeria Church- Supreme Court ruling- Supreme Court ruling

c. c. Religious protectionReligious protection- not just traditional denominations- not just traditional denominations- no belief in god / other supreme being- no belief in god / other supreme being

(1) (1) Refrained from exact definitionRefrained from exact definition- sincere / meaningful belief- sincere / meaningful belief- important to believer- important to believer

ConstitutionConstitution(2) Belief probably false(2) Belief probably false

- sincere = a religion- sincere = a religion

(a) Supernatural powers to heal(a) Supernatural powers to heal- constitutionally protected- constitutionally protected- sincerely held belief- sincerely held belief

5.5. Freedom of speechFreedom of speech

a. a. Not limited to spoken wordNot limited to spoken word - written communication / symbolic - written communication / symbolic

conductconduct

ConstitutionConstitution- t-shirt / silent behavior / burning flag- t-shirt / silent behavior / burning flag

(1) (1) Not all speech protectedNot all speech protected- nature of speech- nature of speech- obscenity vs. political- obscenity vs. political- incites others to violence- incites others to violence

(a) Forum(a) Forum- rally in park- rally in park- fewer restrictions- fewer restrictions- city-owned building- city-owned building

ConstitutionConstitution(b) Military installation(b) Military installation

- private property- private property

(2) (2) RestrictionsRestrictions: time / place / manner: time / place / manner- reasonable opportunity for expression- reasonable opportunity for expression

(a) Field across from governor’s house(a) Field across from governor’s house- vs. lawn of house- vs. lawn of house

(b) Bullhorns(b) Bullhorns- not to exceed certain decibels - not to exceed certain decibels

ConstitutionConstitution(3) (3) Protects right to peaceably assembleProtects right to peaceably assemble

- cannot prevent others from listening- cannot prevent others from listening

(a) Restriction does not serve a:(a) Restriction does not serve a:- “- “compelling government compelling government

interestinterest””- unconstitutional- unconstitutional

6.6. Grand JuryGrand Jury- 5- 5thth Amendment Amendment- information vs. indictment- information vs. indictment- accusatory documents (charging)- accusatory documents (charging)

ConstitutionConstitutiona. a. Two functionsTwo functions::

(1) (1) Indictment processIndictment process- listening to evidence- listening to evidence- determine if crime occurred- determine if crime occurred

(2) (2) Investigate criminal activityInvestigate criminal activity- private / public figures- private / public figures

b. b. Enough evidence to chargeEnough evidence to charge- do not determine guilt or innocence- do not determine guilt or innocence

ConstitutionConstitution(1) (1) Prosecutors present evidenceProsecutors present evidence

- call grand jury together- call grand jury together- some are independent- some are independent

(2) (2) Witness not entitled to attorneyWitness not entitled to attorney- cannot enter grand jury room- cannot enter grand jury room- can advise before / after- can advise before / after

(3) (3) Proceedings held in privateProceedings held in private- not open to public / press- not open to public / press

ConstitutionConstitution- cannot reveal proceedings- cannot reveal proceedings

(4) (4) 12 to 23 jurors12 to 23 jurors- must have quorum- must have quorum

7.7. Prisoner rightsPrisoner rights- do not have same rights- do not have same rights- do have certain rights- do have certain rights

a. a. Due processDue process - decisions that discipline - decisions that discipline

ConstitutionConstitution - classification / restrictions on liberties- classification / restrictions on liberties

(1) (1) Transfer to mental institutionTransfer to mental institution- right to hearing- right to hearing- to other prison – no right- to other prison – no right

b. b. Right to propertyRight to property- loss / due compensation- loss / due compensation

c. c. Right to privacyRight to privacy- limited- limited

ConstitutionConstitutiond. d. Writ of habeas corpusWrit of habeas corpus

- claim rights violated- claim rights violated- brought before court- brought before court

e. e. 88thth Amendment Amendment- cruel and unusual punishment- cruel and unusual punishment- prison conditions- prison conditions

(1) Freedom of(1) Freedom of religion religion

(2) (2) Freedom of informationFreedom of information

ConstitutionConstitution8.8. Search and seizureSearch and seizure

- 4- 4thth Amendment Amendment- unreasonable - unreasonable - person / property- person / property

a. a. Court involvement in illegal seizuresCourt involvement in illegal seizures

(1) S(1) Stops a persontops a person- restrict their movement- restrict their movement

(a) Need “(a) Need “reasonable suspicionreasonable suspicion””

ConstitutionConstitution(b) To make an arrest(b) To make an arrest

- “- “probable causeprobable cause””

(c) With arrest:(c) With arrest:- right to search person- right to search person- remove all property- remove all property

(d) Search motor vehicle(d) Search motor vehicle- arrest of any person- arrest of any person- all unlocked areas / containers- all unlocked areas / containers- no warrant / no permission- no warrant / no permission

ConstitutionConstitution(e) Arrest in home(e) Arrest in home

- search person- search person- search within arm’s reach- search within arm’s reach

(2) (2) Not allowed unlessNot allowed unless::- search warrant / arrest - search warrant / arrest - permission of individual with authority- permission of individual with authority- granting valid consent:- granting valid consent:

(a) Roommate for common areas(a) Roommate for common areas- not roommate’s personal area- not roommate’s personal area

ConstitutionConstitution(b) Parents for child under 18(b) Parents for child under 18

- unless emancipated / pays- unless emancipated / pays

(c) School principal (c) School principal - cannot search at police request- cannot search at police request- can search on school policy- can search on school policy

(d) Landlord(d) Landlord- cannot allow without permission- cannot allow without permission- give reasonable notice to enter- give reasonable notice to enter- emergency entry different- emergency entry different

ConstitutionConstitution(3) (3) Burden of proofBurden of proof

- police must show reasonable belief- police must show reasonable belief- person involved- person involved

(a) “(a) “Totality of circumstances”Totality of circumstances”- required for warrants- required for warrants- both search / arrest- both search / arrest

(b) “(b) “Exceptional circumstancesExceptional circumstances””- to protect the public- to protect the public- “hot pursuit”- “hot pursuit”

ConstitutionConstitutionb. b. Right not to incriminateRight not to incriminate

- 5- 5thth Amendment Amendment

(1) (1) Does not apply toDoes not apply to::- blood- blood- urine- urine- handwriting- handwriting

(2) (2) Court orderCourt order- may be required- may be required- blood / urine- blood / urine

ConstitutionConstitution9.9. Government responsibilityGovernment responsibility

- tells government what it can / cannot do- tells government what it can / cannot do- laws cannot be retroactive (- laws cannot be retroactive (ex post factoex post facto))

a. a. Federalism gives power to the peopleFederalism gives power to the people::

- - initiativeinitiative: put issue on ballot: put issue on ballot - - referendumreferendum: proposal for public vote: proposal for public vote - - recall petitionrecall petition: remove elected officials: remove elected officials - - voter approvalvoter approval: elected by the public: elected by the public

(1) (1) Police powersPolice powers

ConstitutionConstitution- 10- 10thth Amendment Amendment

- enact / enforce laws of state- enact / enforce laws of state

- both state / local government- both state / local government

(a) Limited by constitutions(a) Limited by constitutions

- federal has specific functions- federal has specific functions

- impacts country as a whole- impacts country as a whole

(b) Interstate transportation / (b) Interstate transportation / banking / banking / Native American affairs / etc. Native American affairs / etc.

ConstitutionConstitution(2) (2) TaxesTaxes

- applied at all levels- applied at all levels- pay for operations of government- pay for operations of government

(a) Congress: (a) Congress: “Power to lay (collect)“Power to lay (collect) taxes, duties, imposts, and taxes, duties, imposts, and

excises”excises”(b) State / county / city / PUD(b) State / county / city / PUD

(3) (3) Commerce clauseCommerce clause- anything to effect interstate - anything to effect interstate

commercecommerce

ConstitutionConstitution- “- “The Congress shall have the power . The Congress shall have the power .

. . To regulate Commerce with foreign. . To regulate Commerce with foreign

Nations and among the several Nations and among the several

States and with Indian Tribes”States and with Indian Tribes”

(a) Interstate transportation(a) Interstate transportation

- activity crossing state borders- activity crossing state borders

(b) Intrastate transportation(b) Intrastate transportation

- occurs within a state’s borders- occurs within a state’s borders

ConstitutionConstitution(c) Congress can control intrastate(c) Congress can control intrastate transportationtransportation

- but it is limited- but it is limited

10.10. Bill of RightsBill of Rights- first Ten Amendments- first Ten Amendments- applied only to the federal government- applied only to the federal government

a. a. US Supreme Court interprets ConstitutionUS Supreme Court interprets Constitution - “- “due processdue process” / “” / “equal protectionequal protection”” - Incorporation Doctrine (- Incorporation Doctrine (individual individual

rights)rights)

ConstitutionConstitution(1) (1) First AmendmentFirst Amendment

(a) Freedom of Speech(a) Freedom of Speech- verbal/written/symbolic/conduct- verbal/written/symbolic/conduct

(b) Freedom of the Press(b) Freedom of the Press

- papers / magazines / agendas- papers / magazines / agendas

(c) Freedom of Religion(c) Freedom of Religion- right to choose /practice /believe- right to choose /practice /believe

(d) Right to Petition(d) Right to Petition

ConstitutionConstitution- redress of grievances- redress of grievances

(2) (2) Second AmendmentSecond Amendment- keep and to bear arms- keep and to bear arms

(3) (3) Third AmendmentThird Amendment- forbids quartering of soldiers- forbids quartering of soldiers

(4) (4) Fourth AmendmentFourth Amendment- right to privacy- right to privacy- unreasonable search / seizure- unreasonable search / seizure

ConstitutionConstitution(5) (5) Fifth AmendmentFifth Amendment

- indictments by grand jury- indictments by grand jury- forbids self-incrimination- forbids self-incrimination- forbids trying a person twice- forbids trying a person twice- requires due process- requires due process

(6) (6) Sixth AmendmentSixth Amendment- right to counsel- right to counsel- speedy / public trial / impartial jury- speedy / public trial / impartial jury- confront witnesses- confront witnesses- present witnesses- present witnesses

ConstitutionConstitution(7) (7) Seventh AmendmentSeventh Amendment

- jury trial in civil suits- jury trial in civil suits

- right to sue for violation of civil rights- right to sue for violation of civil rights

(8) (8) Eighth AmendmentEighth Amendment

- forbids excessive bail / punishment- forbids excessive bail / punishment

(9) (9) Ninth AmendmentNinth Amendment

- other rights retained- other rights retained

- though not listed- though not listed

ConstitutionConstitution(10) (10) Tenth AmendmentTenth Amendment- protects state rights- protects state rights

(11) (11) Fourteenth AmendmentFourteenth Amendment- nationalized the Bill of Rights (1868)- nationalized the Bill of Rights (1868) (a) (a) Section 1Section 1: : “No state shall make or“No state shall make or enforce any law which shall abridgeenforce any law which shall abridge the privileges or immunities of thethe privileges or immunities of the citizens of the United States; norcitizens of the United States; nor shall any State deprive any personshall any State deprive any person

ConstitutionConstitution of life, liberty, or property withoutof life, liberty, or property without due process of law; nor deny to due process of law; nor deny to

anyany person within its jurisdiction the person within its jurisdiction the equal protection of the laws” equal protection of the laws”

(b) Congress will enact a law(b) Congress will enact a law- it will impact state residents- it will impact state residents- does not violate 14- does not violate 14thth

b. b. Equal protection under the lawEqual protection under the law- fundamental right- fundamental right

ConstitutionConstitution- guaranteed under Constitution / Bill of Rights- guaranteed under Constitution / Bill of Rights- determined by US Supreme Court- determined by US Supreme Court

a. a. Equal protectionEqual protection- applying for a job- applying for a job- apply to college / university- apply to college / university- police protection- police protection- where you live- where you live

(1) (1) EducationEducation- quality education- quality education

ConstitutionConstitution(a) Civil Rights Act – 1964(a) Civil Rights Act – 1964

- federal funds must be withdrawn- federal funds must be withdrawn- guilty of discrimination- guilty of discrimination- “- “based on race, color, or naturalbased on race, color, or natural origin in any program or activityorigin in any program or activity receiving federal assistance”receiving federal assistance”

(b) Gender / disability / age / veteran(b) Gender / disability / age / veteran- added later to list- added later to list- unlawful to discriminate- unlawful to discriminate

ConstitutionConstitution(2) (2) HousingHousing

- unlawful to discriminate- unlawful to discriminate- race / gender / disability / age- race / gender / disability / age- sale / rental- sale / rental

(3) (3) EmploymentEmployment- equal protection- equal protection- employment opportunities / keep job- employment opportunities / keep job- race / gender / disability / age- race / gender / disability / age

(4) (4) Police protectionPolice protection: equal protection : equal protection clauseclause