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Transcript of Constitutional Law
Christopher Alan Ervin
Vista Grande High School
Constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.
Marbury v. Madison, (1803) and Fletcher v. Peck, (1810). These two cases are important to the establishment of the power of judicial review. Judicial review is important because it grants the authority to the courts to review the constitutionality of wanting court cases that may have been adjudicated in error for one reason or other.
The power of the court (Supreme Court) is absolute concerning matters of the constitution for the legislative and executive branches of the federal government, on the lower courts in the federal system, and on all state courts. The United States Supreme Court has long been understood to have the power to declare federal or state legislation unconstitutional.
Power of the Court
The Bill of Right to the Constitution of the United States is the first ten amendments of the constitution and will be the focus of our discussion.
Bill of Rights and the First 10 Amendments
United States constitutional law defines the scope and application of the terms of the Constitution. It covers topics such as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States. Some constitutional scholars maintain that the authors of the Constitution intended that it be vague and subject to interpretation so that it could be adapted to the needs of a changing society. Others maintain that the provisions of the Constitution should be strictly construed and their provisions applied in a very literal manner.
What do you think?
Judicial review also grants the power to the courts to determine issues of constitutional law at both the Federal and State levels of government.
The first amendment is way more than freedom of speech. The opening part of the first amendment has to do with the freedom of religion. The part of the amendment that states it shall make "no law respecting an establishment of religion". Means what? The second statement of the religion part of the first amendment is reasonably self explanatory, "or prohibiting the free exercise thereof." Simply put, the second part means that people have the right to practice any religion however they want.
The First Amendment (Freedom of Speech)
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 the government for a redress of grievances.
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.
This amendment is and has been at the center of controversy for a long time. This amendment has been subject to many interpretations. One of the interpretations is that a militia has the right to bear arms. If you are not part of a militia you do not have the right to bear arms. The other interpretation is that EVERYONE has the right to bear arms. What are your thoughts on this?
"A well regulated militia, being necessary to the security of a free state..." Do we really need a well regulated militia to maintain state security? Who gets to decide if we need a militia? Who decides who will be in the militia? This is the part of the amendment that is open for debate.
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
This amendment was put into place because of the early wars related to the freedom of our great nation. During those wars, the military needed housing and quarters, without permission the armies domiciled in whatever home they happen to come across. Is this necessary in today's society? The second part of this amendment leaves room for the housing and quartering of troops even today. Making the provision that the act had to be covered by law, it leaves open the ability of the military (both state and federal troops) to gain entry into your house in time of war for the purpose of shelter and food.
What are your feelings regarding this 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.
The first of the amendments that directly pertains to our forensic class. The 4th amendment protects all suspects against unreasonable search and seizure. It prescribes the proper procedures for law enforcement officials to do a proper search so that a suspects rights are not violated.
Probable cause is a level of reasonable belief, based on facts that can be articulated.
What exactly is probable cause? This is a very important part of this amendment, and understanding what probable cause means is definitely important here. What is a reasonable belief? What do you think that is based on? How can we come up with a reasonable belief?
The fact that the belief is reasonable is based on the ability of the person wanting to do a search, to articulate that belief. The articulation of the belief, is, to me, the really important part of this amendment.
Even with probable cause, you cannot just search whatever you want to. The warrant that you obtain based on probable cause must be specific to a place and what you are looking for.
Anything found without a search warrant based on probable cause is inadmissible in a court of law.
There are a few exceptions to this rule. Exigent circumstance, and protection of the innocent, are the two exceptions to the rule of probable cause. Reasonable suspicion also applies here.
Reasonable suspicion is a level of belief that is less than probable cause.
A law enforcement officer possesses reasonable suspicion if they have enough knowledge to lead a reasonably cautious person to believe that criminal activity is occurring and that the individual played some part in it.
In practice this requirement means that an officer need not possess the measure of knowledge that constitutes probable cause to
Stop and Frisk
a person in a public place. In any case, an officer may not arrest a person until the officer possesses probable cause to believe that the person has committed a crime.
If circumstances prevent a chance to gain probable cause, you may find yourself with exigent circumstances. Exigent circumstances are an unusual and time-sensitive circumstance that justifies conduct that might not be permissible or lawful in other circumstances.
An example of a situation that exigent circumstances may exist is one where law enforcement go into a house where evidence is supposed to be and a person there is trying to get rid of evidence the police have the responsibility to act under exigent circumstances to ensure the evidence is not destroyed.
Another example of a situation where law enforcement does not need probable cause is when the suspect poses a threat to the safety of the public. If a suspect is running away from the police, they cannot use deadly force to stop them. The police cannot shoot a person to get them to stop. Now if that same person is running away in possession of a gun, exigent circumstances now exist. The person could be a threat to innocent people so now the police do not need probable cause, they can affect an arrest without it. In order to keep the public safe courts have ruled that under these types of circumstance a law enforcement agent need not show clear probable cause to arrest a person, nor do they need to wait for a search warrant. These are the only circumstances where law enforcement agencies do not need to adhere to the 4th amendment.
No person shall be held to answer for a capital, or otherwise infamous 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 offense 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.
Another of the amendments that directly fits into our class. The 5th amendment is the amendment that prevents self incrimination. The 5th amendment is far more than self incrimination however. The 5th amendment also calls for the due process of law. The self incrimination part of the amendment is pretty self explanatory. We will consider the due process of law component. We will also consider double jeopardy.
Double jeopardy is when someone is tried for the same offense twice.
The 5th amendment clearly states that no person shall be put under the microscope of the court twice for the same crime. This part of the 5th amendment guarantees that no person shall be tried for the same offense. What exactly does this mean? If you are acquitted of a certain crime, does this mean you can not ever be charged with that crime again?
Due process is often categorized in two components; Substantive Due Process and Procedural Due Process.
Substantive due process has to do with freedom of speech and the right to privacy. Whereas procedural due process has to do with provisions such as the right to adequate notice of a lawsuit, the right to be present during testimony, and the right to an attorney. The procedural due process are what we are concerned with at the moment. You have the right under due process to have adequate notice of a law suit so that you can prepare a defense on your behalf. Due process also gives you the right to be present at trail to confront the witnesses against you, and it also gives you the right to an attorney. Out of this amendment comes Miranda Rights.
The court case in 1966; Miranda v. Arizona, which went to the Supreme Court, which held that the Fifth and Sixth Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and trial for domestic violence.
The Supreme Court did not specify the exact wording to use when informing a suspect of their rights. However, the Court did create a set of guidelines that must be followed.
The ruling states:
...The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him.
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present now and during any future questioning. If you cannot afford an attorney, one will be appointed to you free of charge.
This is the typical warning police use to "Mirandize" a suspect prior to questioning. The Miranda rights do not protect you from being arrested, only from incriminating yourself during questioning. All police need to legally arrest a person is "probable cause" -- an adequate reason based on facts and events to believe the person has committed a crime.
Police are required to "Read him his (Miranda) rights," only before interrogating a suspect. While failure to do so may cause any subsequent statements to be thrown out of court, the arrest may still be legal and valid.
Miranda, Ironic End
What most people are unaware of is the ironic ending to the Miranda case.
Ernesto Miranda was given a second trial at which his confession was not presented. Based on the evidence, Miranda was again convicted of kidnapping and rape. He was paroled from prison in 1972 having served 11 years.
In 1976, Ernesto Miranda, age 34, was stabbed to death in a fight. Police arrested a suspect who, after choosing to exercise his Miranda rights of silence, was released.
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 obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Known as the amendment that guarantees the right to a speedy trail the 6th amendment prevents long term incarceration before a trail occurs. The "speedy trial" clause is intended to prevent long-term incarceration and detention without trial--which amounts to a prison sentence without a guilty verdict.
Sixth Amendment, Cont.
The right to a public trial and fair and impartial jury are also provided by the 6th amendment.
Although public trials would ordinarily seem to be a condition that would work against the defendant, given the likely humiliating effect, they also ensure that the proceedings are not conducted in an underhanded way. One question currently under debate in the court system is whether televised trials are a good idea--do they further protect this right, or do they just exploit it? What are your thoughts on this debate?
Not only must jury members not have improper biases before the trial begins, but they must also not be improperly prejudiced by the case or by media coverage of the case. Since juries are by definition made up of members of the community, and human beings in general tend to be good at developing prejudices, this can be a challenge.
Sixth Amendment, Cont.
...Unless You're a Kid:
Juvenile defendants are not entitled to a jury trial under the Sixth Amendment. This is consistent with the overall higher level of privacy granted in juvenile courts, where sentences are less harsh and criminal records are generally kept private.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Common Law the part of English law that is derived from custom and judicial precedent rather than statutes. Often contrasted with statutory law.
the body of English law as adopted and modified separately by the different states of the US and by the federal government.
The 7th amendment, in short, requires jury trials in civil lawsuits where ordinary damages are sought.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Eighth Amendment, Cont.
The prohibition against Cruel and Unusual Punishment by states is derived from the doctrine of incorporation, through which selective liberties contained in the Bill of Rights have been applied to the states by the U.S. Supreme Court's interpretation of the due process and Equal Protection Clauses of the Fourteenth Amendment (which we will not cover in this class).
The Eighth Amendment requires that every punishment imposed by the government be commensurate with the offense committed by the defendant. Punishments that are disproportionately harsh will be overturned on appeal. Examples of punishments that have been overturned for being unreasonable are two Georgia statutes that prescribed the death penalty for rape and Kidnapping (Coker v. Georgia).
The 8th amendment is the amendment that ensures that you are not put in jail without the real chance of getting out before your trial.
The 8th amendment also ensures that you will not endure cruel and unusual punishment after you have been convicted. Appellate courts usually defer to lower courts' decisions when a criminal penalty is challenged under the Excessive Fines and Excessive Bail Clauses of the Eighth Amendment. They give much closer scrutiny to criminal penalties that are challenged under the Cruel and Unusual Punishments Clause. State and federal governments are prohibited from inflicting cruel and unusual punishments on a defendant, no matter how heinous the crime committed.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Ninth Amendment to the U.S. Constitution is somewhat of an enigma. It provides that the naming of certain rights in the Constitution does not take away from the people rights that are not named. Yet neither the language nor the history of the Ninth Amendment offers any hints as to the nature of the rights it was designed to protect.
Ratified in 1791, the Ninth Amendment is an outgrowth of a disagreement between the Federalists and the Anti-Federalists over the importance of attaching a Bill of Rights to the Constitution. When the Constitution was initially drafted by the Framers in 1787, it contained no Bill of Rights. The Anti-Federalists, who generally opposed ratification because they believed that the Constitution conferred too much power on the federal government, supported a Bill of Rights to serve as an additional constraint against despotism. The Federalists, on the other hand, supported ratification of the Constitution without a Bill of Rights because they believed that any enumeration of fundamental liberties was unnecessary and dangerous.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Ratified in 1791, the Tenth Amendment to the Constitution embodies the general principles of Federalism in a republican form of government. The Constitution specifies the parameters of authority that may be exercised by the three branches of the federal government: executive, legislative, and judicial. The Tenth Amendment reserves to the states all powers that are not granted to the federal government by the Constitution, except for those powers that states are constitutionally forbidden from exercising.
Tenth Amendment, Cont.
For example, nowhere in the federal Constitution is Congress given authority to regulate local matters concerning the health, safety, and morality of state residents. Known as police powers, such authority is reserved to the states under the Tenth Amendment. Conversely, no state may enter into a treaty with a foreign government, as this is a reserved power for the Federal government under the tenth amendment.
The first ten amendments to the constitution, known as the Bill of Rights, provides many of the everyday freedoms that we, as Americans, enjoy throughout our live. They also provide us the rights needed if we were ever to find ourselves in trouble. A very necessary part of Forensics class, the Bill of Rights is important to us all.
Many thanks to the wonderful internet and all of the great people who contribute to its wonderful contents. Here's to the websites that helped me out; About.com/civil liberties, The Free Dictionary by Farlex, and as always Google.com