Bill of Rights

1. Bill of Rights David L. Hudson Jr. – First Amendment Center http://www.davidlhudsonjrbooks.com

2. First 10 Amendments to the Constitution • Added in December 1791 • Battle between Federalists and Anti-federalists … James Madison called Father of the Bill of Rights because he used the Bill of Rights to save the Constitution.

3. State Action • “Congress shall make no law …” • Applies to government (federal, state or local) • Public school qualifies; private school does not

4. First Amendment • “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition thegovernment for a redress of grievances.”

5. First Amendment Freedoms Religion Establishment Clause Free Exercise Clause Speech Press Assembly Petition

6. Freedom of Religion • Establishment Clause --- provides for degree of separation between church and state; we just can’t agree on how much separation • Free Exercise Clause – protects person’s rights to freely practice religion … but what if person’s religion conflicts with generally applicable law

7. Freedom of Religion (cont.) • Establishment Clause • What about school-sponsored prayer? Moment of silence laws? Prayer at high school football games? Teachers wearing religious jewelry? What about the posting of the Ten Commandments on government property?

8. Other Establishment Clause issues • Bible clubs at schools – Equal Access Act • Religious music at school concerts • Faculty leading students in prayer at meetings

9. Different Interpretations • See p. 203-204 • Broad interpretation • Narrow interpretation • Literal interpretation

10. Freedom of Speech • Applies to more than just spoken word (certain forms of symbolic speech) • Not all types of speech are protected (obscenity, perjury, incitement to imminent lawless action) • Not all forms of speech – even those that are protected – are treated the same (political speech favored over commercial speech) • Speech protection depends on context (school, military, employment, prison – reduced level of free-speech protection)

11. Justifications for free speech • See p. 208 • Individual self-fulfillment • Democratic self-governance • Safety valve • Essential for protection of all other rights

12. Most fundamental free-speech principle • No viewpoint discrimination (Tinker black armband case) • No content discrimination • No vagueness or overbreadth

13. When is a law vague? • When people don’t know the meaning of a law? • Fear of arbitrary enforcement • People deserve notice

14. When is a law too broad? • See p. 212 • When law sweeps too broadly … “banning all political protests”

15. Freedom of the Press • Historically served as an additional check upon the government (called the fourth estate- check the other three branches of government) • No prior restraints (or very few) – gov. can’t license the press • Even libel laws must comport with the First Amendment

16. Assembly • Essential to women’s suffrage movement and the civil rights movement • Focus on word “peaceably” • Question of free-speech zones

17. Petition • Deep historical roots • Magna Carta • Declaration of Independence

18. Second Amendment • “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.” • Individual or collective right • (Scalia’s decision in Heller --- individual right)

19. Bill of Rights • Much of the Bill of Rights deals with protections for those accused of crimes. • Fourth Amendment • Fifth Amendment • Sixth Amendment • Eighth Amendment

20. Fourth Amendment • “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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

21. When is a Search “Reasonable” • A warrant backed up by probable cause; • Conduct that does not violate a defendant’s “reasonable expectation of privacy.”

22. Reasonable Expectation of Privacy • Katz v. United States (1967) • Reasonable expectation of privacy test: (1) Did the defendant have an actual, subjective expectation of privacy; (2) Does society regard this expectation of privacy as objectively reasonable?

23. Exceptions to the Warrant Requirement • Plain View doctrine: Rationale of "plain-view" doctrine is that if contraband is left in open view and is observed by police officer from lawful vantage point, there has been no invasion of legitimate expectation of privacy and thus no "search" within meaning of the Fourth Amendment.

24. Probable Cause • Text (p. 226): “Probable cause is defined as more than mere suspicion.” • The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

25. What If There is a Fourth Amendment Violation? • The exclusionary rule – material searched and seized in violation of the Fourth Amendment is suppressed. Justice Benjamin Cardozo famously described it as “the criminal goes free because the constable has blundered.”

26. Why Have the Exclusionary Rule? • To compel respect for the constitutional guaranty in the only effectively available way – by removing the incentive to disregard it.” (Text – p. 226-228)

27. Story of Dollree Mapp • See text p. 226-227 • Donald King makes a phone call – house contains bomb-making material … instead find dirty books

28. Good Faith Exception to the Exclusionary Rule • The exclusionary rule bars the prosecution from using in its case-in-chief evidence obtained during a search that violated the Fourth Amendment. Under the good faith exception to the exclusionary rule, however, that evidence need not be suppressed when police obtain the evidence through objective good faith reliance on a facially valid warrant that later is found to lack probable cause.

29. Fifth Amendment • “No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury …; 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 witness 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.”

30. Fifth Amendment freedoms • Grand Jury • Double jeopardy • Self-incrimination (right to remain silent) • Due Process • Just Compensation (Takings Clause)

31. Grand Jury Grand jury requirement has not been extended to the states. See text at p. 235 Body of citizens whose duty consists of determining whether probable cause exists in a criminal case to warrant an indictment.

32. Tennessee Tennessee Rules of Criminal Procedure – http://www.tncourts.gov/OPINIONS/TSC/rules/TNrulesofcourt/crimprocindex.htm “The criminal information has been used in state cases under the provisions of § 40-3-101, but because the Constitution of Tennessee, Art. 1, § 14, provides that no person shall be put to answer any criminal charge but by presentment, indictment or impeachment, its use is limited to those cases in which there is an agreement by the defendant to be bound by its use.”

33. Double Jeopardy • The underlying idea … is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal … as well as enhancing the possibility that even though innocent he may be found guilty.”

34. Self-Incrimination • Taking the Fifth • Miranda Warnings: (1) You have the right to remain silent. (2) Anything you say can be used against you in a court of law. (3) You have the right to an attorney and to have the attorney present during questioning; (4) If you cannot afford an attorney, one will be appointed for you before any questioning begins.

35. Miranda Not Overruled, But Reaffirmed • Dickerson v. United States (2000) – “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”

36. Due Process • Two basic types: (1) procedural due process and (2) substantive due process. • Procedural due process – government gives a fair process (notice and a hearing) • Substantive due process – underlying law is rational and not arbitrary

37. Substantive Due Process • Rochin v. California (1952) – Police methods that shock the conscience violate the due process clause. In Rochin, police burst into dude’s bedroom and physically assaulted him. They took him to hospital and had his stomach pumped.

38. Sixth Amendment • In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtained witnesses in his favor, and to have the assistance of counsel for his defence.”

39. Sixth Amendment freedoms • Speedy trial • Public trial • Trial by Impartial Jury • Notice • Confrontation Clause • Compulsory Process Clause • Assistance of Counsel

40. Speedy trial • Government get on with it – don’t let criminal defendant languish in jail forever. “Justice delayed is justice denied.” • Length of the delay • Your assertion of your right to a speedy trial • Reason for the delay • Prejudice to you because of the delay

41. Trial by jury • Trial by jury in all criminal prosecutions. • The U.S. Supreme Court wrote that "trial by jury in criminal cases is fundamental to the American scheme of justice." Doesn’t have to be 12 jurors. Williams v. Florida (1970) – 6-member juries constitutional but 5-member juries unconstitutional (Ballew v. Georgia) Tennessee requires 12 jurors (Rule 24 of the Tennessee Rules of Criminal Procedure)

42. Ballew v. Georgia (cont.) • “recent empirical data suggest that progressively smaller juries are less likely to foster effective group deliberation. At some point, this decline leads to inaccurate fact-finding and incorrect application of the common sense of the community to the facts.”

43. Impartial jury • Jury must be chosen from fair cross-section of the community (Taylor v. Louisiana) – defendant given new trial because women excluded from the jury

44. Assistance of Counsel • “lawyers in criminal courts are necessities not luxuries.” Gideon v. Wainwright (1963) • This decision essentially led to the public defender system. (text p. 229)

45. Eighth Amendment • “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

46. Excessive Bail • “need for bail in an unusually high amount is an arbitrary act. Such conduct would inject into our own system of government the very principles of totalitarianism which congress was seeking to guard against in passing the statute under which petitioners have been indicted.” • Stack v. Boyle (1951)

47. U.S. v. Bajakajian (1998) • Hosep Bajakajian attempted to leave the United States without reporting, as required by federal law, that he was transporting more than $10,000 in currency. • “We now hold that a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense.” (Justice Clarence Thomas)

48. Cruel and Unusual Punishment • “Death is different.” • “the evolving standards of decency that mark the progress of a maturing society" -- to determine which punishments are so disproportionate as to be cruel and unusual. • Curious history of capital punishment: outlawed in 1972 (Furman v. Georgia); reinstated in 1976 (Gregg v. Georgia)

49. Recent Decisions • The Court outlawed the death penalty for those who committed murder when they were juveniles. Roper v. Simmons (2004) • The Court outlawed death penalty for the mentally retarded. Atkins v. Virginia (2002). • The Court ruled no death penalty even for child rapist in Kennedy v. Louisiana (2008)

50. Ninth Amendment • “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” • For many years nothing but a constitutional curiosity. • Griswold v. Connecticut (1965)