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The Federal Judiciary and Civil Liberties and Civil Rights. The Federal Court System. Role(s) of the Court in making policy Interpretation of laws & Constitution Extension of laws Designing remedies (how to fix problem). Judicial Review. Power to decide constitutionality
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The Federal Court System • Role(s) of the Court in making policy • Interpretation of laws & Constitution • Extension of laws • Designing remedies (how to fix problem)
Judicial Review • Power to decide constitutionality • Main judicial power in checks and balances • Marbury v. Madision
Two views on application of judicial review • “strict constructionists” conservatives • Limited role of the Court in policy-making • Don’t like “interpretation” of Constitution • “activists” “legislativists” liberals • Courts role is to interpret the Constitution • Use their own experiences to make policy
Selection of Judges/Justices • Appointment by President • Confirmation by Senate • “Senatorial Courtesy” • “Litmus Test”
Jurisdiction of Federal Courts • Dual Court System (State and Federal) • Federal jurisdiction is in Article 3 and 11th Amendment • Supreme Court of the US: • Original Jurisdiction: • Diversity Cases (2+ States) • US v. State(s) • Reps of Foreign Gov’t v. US • States v. Citizen of other State • Appellate Jurisdiction: any case may be appealed from lower federal Court or State Supreme Court
US Courts of Appeals • Only appellate jurisdiction • Hears cases from: • District Courts • Regulatory Agencies (OSHA, EPA, etc…) • Courts Martial • Etc…
US District Courts • Only original jurisdiction • Federal crimes • Civil suits under federal law • Diversity of Citizenship cases (50,000+ per year) • Admiralty and Maritime Cases • Bankruptcy Cases • Actions of Administrative Agencies (IRS, Social Security, etc…)
State cases that can be appealed to Federal Courts • Constitutional Questions • Death Penalty • Law Suits • Etc…
Getting your case to the Supreme Court of the US • Court rejects 90-95% of applications for Writ of Certiorari • Costs of Appeal is high • In forma Pauperis • ACLU • Fee Shifting • Interest Group assistance (NRA, LULAC, NAACP, etc…) https://mail.google.com/mail/u/0/#inbox/15f9861bc89009c3?projector=1
Standing • To have standing; must have real controversy with real adversaries • Must demonstrate actual harm/damages • Being a taxpayer is not enough to being a suit • Government has “sovereign immunity”
Class Action Suits • Brought on behalf of all those who have same issue • Silicone breast implants • Firestone Tires • Asbestos • Etc… • Financially attractive to lawyers (million of “winners” rather than just one) • Every member of the “class” must be notified so they can participate in the suit if they wish
The Supreme Court in Action • Most cases come of writs of cert • Rule of Four • Briefs submitted and studied • Oral Arguments: 30 minutes per side; 10 minutes for rebuttal • Judicial Conference; chief Justice polls members of the Court; case decided • Chief Justice assigns one of the Majority to write the Opinion of the Court • Majority Opinion (per curium– no author) • Concurring Opinion • Dissenting Opinion
https://www.youtube.com/watch?v=VbvbTztDoho&feature=youtu.be
Checks on the Judiciary • Public Opinion (limited) • President: nomination of judges/justices • No power to enforce rulings • Congress • Confirmation • Impeachment • Changing # on the Court(S) • Revising legislation declared unconstitutional • Changing jurisdiction of a Court (not Supremes) • Proposing Constitutional Amendment
Protecting the Liberties of the Individual • Purpose of the Bill of Rights was to protect the individual by limiting the power of the federal government • Original constitution has few protections: • Habeas Corpus • No Bill of Attainder or Ex Post Facto Laws • Privileges and Immunities Clause • Full Faith and Credit Cause • Definition of Treason
Bill of Rights Protects: • Personal Liberties: 1st Amendment • Personal Security: Amendments 2-4 • Rights of the Accused: Amendment 5-8 • Was not intended to restrict States • Incorporation to the States (except 7th amendment) through 14th Amendment’s Due Process Clause • Selective Incorporation
Freedom of ExpressionSpeech, Press, Assembly, and Petition • Written, spoken, and symbolic • Purpose of 1st amendment is to protect unpopular speech/expression • Blackstone: no prior restraint, but can arrest for any “unpleasant” or “seditious” expression • 1917-1919: Congress outlaws any “expression advocating treason, insurrection, or forcible resistance to federal law”. • 1919 : US v. Schenck: “Clear and Present Danger” Rule used to balance freedom and national security. “Cry fire in a crowded theater”
Expression • 1925: Gitlow v. NY: 14th amendment’s due process clause makes free speech apply to the States (Incorporation) • 1957: “Calculated to Incite” violence Test • 1969: Brandenburg v. Hayes: “Imminent Unlawful Act” Test • 1977: Nazi’s plan march in Skokie, IL. State outlaws. Nazi’s win in Court. Can’t prevent expression because you don’t like their political views
Court Standards on Expression • Preferred Position: speech always most important • Prior Restraint: illegal • Imminent Danger: going to happen NOW! • Neutrality: all laws must treat all groups equally; can’t discriminate • Clarity: all laws must be understandable by the average person • Least Restrictive Means: gov’t regulation has to be as limited as possible in its interference with expression
Not all expressions are legal: • Libel: false and damaging written expression • Slander: false and damaging verbal expression • Obscenity: Miller v. California; 3 part test! • False Advertising • Some symbolic expressions • Hate speech? • Etc…
Freedom of Religion • Establishment Clause: “Congress shall make no law respecting an establishment of religion” • 1789: no national religion • Jefferson: “created a wall of separation between Church and State” • Supreme Court has generally ruled in favor of the “wall”
Supreme Court and Free Exercise • School Prayer : Unconstitutional! • Engle v. Vitale • Murray v. Curlette • Wallace v. Jaffree • Santa Fe v. Doe
Legal School Prayer Guidelines • Must be student –initiated • Must be student –led • Must be open to all faiths • Must be non-disruptive of the educational process • Cannot be school sponsored • No adults may participate vocally!
Released Time • Zorach v. Clauson • Students may be excused from class to attend required religious instruction or services • Religious instruction/services may not be held on campus • Students may not be punished for religious requirements
State Aid to Religious Schools • Lemon v. Kurtzman “Lemon Test” or Child Benefit Test • States may provide aid to private schools as long as the aid neither promotes nor inhibits the religion and is of benefit to the child • Free lunch • School buses • Textbooks • Tax credits for tuition, uniforms, etc…
Lemon Test • Secular Purpose • Neutral purpose (neither advances nor inhibits the religion) • No excessive entanglement
The Court has allowed: • Nativity Scenes • House/Senate prayers • Military Chaplains • “In God We Trust” on $ • God in Pledge • God in Oath of Office • God in Oath in Court • Etc…
Free Exercise Clause • “Congress shall make no law… prohibiting the free exercise of religion” • Meaning: You can believe anything you want! • No government interference in beliefs • Government may make reasonable restrictions on religious action to protect the health, safety, morals, and welfare of the community
Free Exercise Clause • Religion is not an excuse for violating the laws of the US or of the States • Cases: • Conscientious Objection for Draft • Refusal to work on Sabbath • Unemployment Compensation • Compulsory Education Laws • Pledge of Allegiance • Snake Handling • Drug Use in Religious Ceremony • Medical Care • Blue Laws • Animal Sacrifice • Nudity • Etc…
Right to Keep and Bear Arms • Two schools of thought: • Guarantee of individual right to own/possess • Guarantee that each State will have an armed militia for defense • Supreme Court has generally agreed w/ 2nd
Cases • McDonald v. Chicago States • DC v. Heller Incorporation • 2nd Amendment protects individual right to have a handgun in the home for personal protection
Texas Handgun Law • Possession of a handgun on or about your person in public is illegal • Ownership of a handgun is restricted (21+) • Permit to Carry • Game Wardens and Law Enforcement Officers are exempt from THGL
4th Amendment A legal search usually requires: 1. Probable Cause (reasonable suspicion) 2. Warrant (court order)
Requirements for a Warrant • Probable Cause • Affidavit • Judge’s Signature • List of what is to be searched/seized (specific in scope) • Served in valid manner
The Exclusionary Rule • Prohibits the use of illegally obtained evidence in criminal court • Weeks v. US (federal) • Mapp v. Ohio (States- incorporation case) • Exceptions: • Good Faith • Inevitable Discovery • Honest Mistake • Police questioning of juveniles • Over-riding considerations of public safety (terrorism!)
Legal Warrantless Searches • Hot Pursuit • Plain View • Moveable Crime Scene • Emergency Search • Garbage • Inventory • Sobriety/Insurance Checkpoint • Airport Searches • Border Crossings • Student Searches • Nervousness/run from police • Consent • ETC…
Due Process of Law (5th/14th Amendments) • Government may only take one’s life,, liberty, or property after following the correct rules, laws, and procedures • Procedural • Substantive • 5th: Federal • 14th: States (incorporation)
Right to Privacy • Justice Brandeis defined it as “ the right to be left alone” • An implied right • Derived from • 1st Amendment’s freedom of religion • 3rd Amendment’s prohibition to quartering • 4th Amendment’s protection from unreasonable searches/seizures • 5th Amendment’s protections of private property • 9th Amendment’s unenumerated rights
Privacy Cases • Griswold v. Connecticut, 1965 • Roe v. Wade, 1973 • Planned Parenthood v. Casey, 1992 • Loving v. Virginia 1961 • Obergfell v. Hodges 2015
PrivacyIssues • Issues of Importance: • Birth Control • Abortion • Marriage • Medical Treatment/Information • Employee/Student Drug Testing • Wiretaps • Trespass • Invasion of Privacy/sale of personal information • Photography without consent (publication) • Electronic Data Collection • Etc…
Rights of the Accused • Grand Jury Indictment for major felonies is required • Right to be informed of the charges • Plead the 5th: don’t have to self-incriminate • Miranda v. Arizona • Miranda Rights • Applies only to verbal testimony and confession
Rights of the Accused • Right to Counsel • Gideon v. Wainwright • Escobedo v. Illinois • Right to Compel Witnesses to Testify • Right to Confront Witnesses • Due Process of Law • Speedy Trial • Public Trial • Impartial Jury of Peers • No Excessive Bail • No Cruel and Unusual Punishments • Right to Appeal
Death Penalty • Not considered cruel and unusual punishment as long as State follow guideline • Can only be given if convicted of Capital Murder • Two step trial • Immediate Appeal to States’ highest court required • Cannot be given death penalty if: • Were under 18 when crime was committed • Are currently insane • Were insane when the crime was committed • Are mentally retarded or incapacitated