Chapter 16 Rights to Life, Liberty, and Property.

Chapter 16Chapter 16Rights to Life, Liberty, and PropertyRights to Life, Liberty, and Property

Citizenship RightsCitizenship Rights

Rights to Life, Liberty, and Property

- Citizenship in a const. democ. is like an office that carries with it rights and responsibilities

- How Citizenship is Acquired and Lost - basic right of citizenship was not given const. protection until 1868, with the passage of 14th Amendment

- all persons born in the USA are citizens regardless of the citizenship of their parents- includes Puerto Rico, Guam, Northern Marianas, Virg. Islands- children born to an American citizen living abroad, or with a grandparent with citizenship is a citizen (if either grandparent lived in USA for over 5 years, 2 of which were after age 14)

- 14th Amendment did not make Native Americans citizens, Congress did in 1924

Citizenship RightsCitizenship RightsDual Citizenship

- citizen of two or more nations- not unusual, especially for those form nations that don’t recognize the right to renounce their citizenship, the right of expatriation- children born abroad- some countries that allow dual: Canada, Mexico, France, UK - negative aspects of dual --- may be subject to national service and taxes in both countries

•Rights of American Citizens- Amer. citizens are also citizens of states simply by living there- Residence = 14th Amendment, place one calls home- Slaughter House Cases (1873) Court distinguished between privileges of US and state citizens- only national privi’s are: right to navigate waters, protection on the high seas, assemble peacefully and petition for redress, vote if qualified to do so, travel though the country

Citizenship RightsCitizenship Rights

•Rights of American Citizens- ex: John Walker Lindh - American captured fighting with the Taliban in Afghanistan in 2001- accorded the assistance of counsel and tried in court

-Bush issued orders: declared US citizens “enemy combatants” plotting with Al-Queda- detention in milit. compounds w/o counsel or access to courts of law

- Supreme Court ruled in Hamdi v. Rumsfeld (2004) & Rasul v. Bush (2004) .... US citizens and foreign nationals may not be detained indefinitely w/o the opportunity to consult an attorney & contest detention in a indep. tribunal

Citizenship RightsCitizenship Rights

•Rights of American Citizens- Hamdan v. Rumsfeld : Court held that the military commissions procedures violated basic tenets of military and international law- prisoners must be tried in civilian courts or in courts-martial according to the Uniform Code of Military Justice and Geneva Conventions

• Right to live and travel in the USA- only American citizens have the constitutionally guaranteed right to do so

Rights of AliensRights of Aliens- Enemy Alien Act 1789: remains in effect, authority of the President during wartime to detain and expel citizens of a county with which we are at war- citizens can’t be expelled- aliens can be for minor infractions

- Immigration and Naturalization Act 1996: require mandatory detention during deportation hearings of aliens - may not be longer than 6 months

- only American citizens have the right to run for elective office- aliens can’t be denied freedom of religion or freedom of speech - nor can the gov’t deny anyone of the due process of the law or equal protection- Congress and the state may deny or limit welfare to aliens

- Court has held that states can’t exclude children of undocumented aliens form public schools or charge their parents tuition

Rights of AliensRights of Aliens

- Admission to the United States

- concerns of illegal immigration- 9 out of 10 surveyed claim it is a big problem- Census Bureau : 35 million immigrants in the US- racial & ethnic minorities are a majority of both Texas and California

- estimated 12 million are undocumented aliens- mostly of Mexican and Central American descent - most cross borders to secure greater economic opportunities

Rights of AliensRights of Aliens- borders extend thousands of miles- once in the country undocumented immigrants are hard to track down and expel

- Latino groups: concerned that enforcing laws against hiring undocumented workers will make employers hesitant to hire any Latinos

- Business contend that illegals are needed in service and construction jobs that are hard to fill

- workers argue that undocumented workers drive down wages

- state and locals are under pressure to provide social services

Rights of AliensRights of Aliens

- Immigration Act of 1965 (amended 1990, 1996) sets an annual ceiling of 675,000 non-refugees allowed to come as permanent residents, when refugees are added - 800,000 annually

- US also admits political refugees- people who have well-founded fears of persecution in their own countries based on the their race, religion, nationality, social class, or political opinions.- can apply for citizenship after one year - AG can grant asylum to those in fear of persecution- Iraqis and Afghans who aided the US troops and contractors

http://www.thisamericanlife.org/radio-archives/episode/499/taking-names

Property RightsProperty Rights

- Constitutional Protection of Property

- Property doesn’t have rights, people do- have the right to own, use, rent , invest in, by and sell property- framers were concerned with potential that state legislatures may protect debtors from their creditors by issuing paper currency and setting aside private contracts- to prevent this- Constitution forbid states from making anything except god or silver legal tender to pay debts- form passing laws “impairing the obligation of contracts”

Property RightsProperty Rights

- contract clause (Article I, Section 10) designed to prevent states from extending the period for debtors to meet their payments or evade contractual obligations

- Gradually the Supreme Court restricted coverage of contract clause to police powers: power of states to protect the public health, safety, and welfare of their residents- no longer significantly limits governmental power

Property RightsProperty Rights

-What happens when the Government Takes Our Property?

- eminent domain: power to take private property for public use - must be fairly compensated (5th Amend)- the first provision of the B. of R. to be enforced as a limitation on state gov. and national gov

- regulatory takings: when govt taking of property is so extensive that govt is deemed to have taken it through eminent domain

Property RightsProperty Rights-What happens when the Government Takes Our Property?

- eminent domain: power to take private property for public use - must be fairly compensated (5th Amend)- the first provision of the B. of R. to be enforced as a limitation on state gov. and national gov

- regulatory takings: when govt taking of property is so extensive that govt is deemed to have taken it through eminent domain

- Kelo v City of New London (2005) public use is not limited to roads, includes “promoting economic development” even if the property was taken and sold for development to private developers

Due Process RightsDue Process Rights

Due Process RightsDue Process Rights

Substantive Due Process- limits what a government may do - means that an “unreasonable” law

is unconstitutional- means that a government

shouldn’t be allowed to do certain things

-Since the 1970s the Supreme Court has largely refused to apply the doctrine so substantive due process in reviewing laws regulating business enterprise-Court now believes that deciding what constitutes reasonable regulation is a legislative not judicial responsibility

Substantive Due Process- limits what a government may do - means that an “unreasonable” law

is unconstitutional- means that a government

shouldn’t be allowed to do certain things

-Since the 1970s the Supreme Court has largely refused to apply the doctrine so substantive due process in reviewing laws regulating business enterprise-Court now believes that deciding what constitutes reasonable regulation is a legislative not judicial responsibility

Due Process RightsDue Process Rights

The Court hasn’t abandoned subs. due process with regard to protecting civil liberties

Privacy Rights

- the area where substantive due process has been most expanded in in the area of privacy rights

- Griswold v. Connecticut (1965) right to be free form governmental surveillance an intrusion, especially with regard to intimate decisions on sexuality, the right not to have the government make private affairs public, and the right to be free fin thought and belief from governmental regulations

Abortion RightsAbortion Rights

Roe v. Wade (1973)

Court ruled that during the first trimester of pregnancy, it is unreasonable and unconstitutional interference with her liberty and privacy rights for sate to set any limits on her choice to have an abortion or on her doctors' medical judgments about how to carry it out

During the 2nd trimester , the state may place restrictions on abortion only if protecting the health of women becomes compelling

During the third trimesters, when the baby could potentially survive outside of the womb, the state’s interest in protecting the unborn child – can prohibit abortions altogether, except when necessary to preserve the life r health of the mother

Abortion RightsAbortion Rights Planned Parenthood v. Casey (1992)

reaffirmed the decision (5 person majority) upheld the view that the due process clause protects

women's rights to choose prior to viability court held that the right to have an abortion prior to

viability may be subject to state regulation that doesn't not “unduly burden” it

Court held that sates can prohibit the use of state funds and facilities for performing abortions, may also make a minors right contingent on at least one parent being notified

may require women to sign an informed consent form and wait 24 hours

may NOT condition a woman’s right based on notification of her husband

Sexual Orientation RightsSexual Orientation Rights Bowers v. Hardwick (1986), the Supreme Court rejected the extension of

privacy afforded to married couples to the private relations between homosexuals

held the Boy Scouts of America may exclude homosexuals

court refused to declare unconstitutional a Georgia law that made consensual sodomy a crime

Lawrence v Texas (2003) the Court struck down Texas’s law making homosexual sodomy a crime

- dissenting opinion of Scalia, Thomas, and Rhenquist was that the decision would lead to overturning same-sex marriage laws

Romer v. Evans (1996) Court struck down an initiative amending the Colorado constitution that prohibited sate and local governments from protecting homosexuals from discrimination- Court held that it lacked a rational basis and simply represented prejudice toward a particular group

- when the text was Published only Mass granted same sex marriage licenses, , as of Tuesday there are now 15

Rights of Person Accused of CrimesRights of Person Accused of Crimes

✦ 4th Amendment protects against unreasonable searches and seizures

✦ persons, papers, effects, shall not be violated✦ no warrants shall be issued w/o probable cause✦ warrants should describe in great detail exactly what is to be searched

✦ Search warrant - must be issued by a magistrate, based on an officer swearing under oath that they have probable cause

✦ General (non-specific) warrants are unconstitutional

✦protects people NOT places, from unreasonable governmental intrusions

✦ warrantless searches in public places are legal if the officers have probable cause, or at least reasonable suspicion that the person in question has committed or is about to commit a crime✦ within two days of such an arrest the person must be taken to a magistrate to decide whether probable cause existed to justify a warrantless arrest

Deadly ForceDeadly Force

Fourth Amendment

Limits use of deadly force

Unconstitutional to shoot at an apparently unarmed, fleeing person who is suspected of a crime

Unless… the officer has probable cause to believe that the suspect poses a significant threat of death or serious injury to others or the officer

When possible the officer must declare “Halt or I’ll shoot”

Stop and FriskStop and Frisk Terry v Ohio (1968)

Court upheld a stop and frisk exception to searches of individuals when officers have reason to believe they are armed and dangerous or have committed or about to commit a crime

Limited to a quick pat-down to check for weapons that might be used to assault the arresting officer, check for contraband, determine identity, to maintain the status quo while obtaining more information

If person refuses to identify themselves, they may be arrested but police must have reasonable suspicion they are involved in criminal activities

Exceptions to warrantless searches Exceptions to warrantless searches

The plain-view exception May enter dwelling if they have probable cause to believe someone

inside is threatened with serious injury

Exigent Circumstances Searches are permissible when officers do not have time to secure a

warrant before evidence is destroyed, when a criminal escapes capture, or when there is a need “to protect or preserve life or avoid serious injury”

Automobile Exception Probable cause that a vehicle is being used to commit a crime, even

traffic offenses, contains a person who has committed a crime, contains evidence of a crime

If so, they can stop the automobile, detain the persons found in it, and search them and any containers or packages they find inside the car

May also use drug-sniffing dogs around cars stopped for routine traffic violations

If driver is arrested police can then search the contents of the car

Foreign Intelligence and National Security Supreme court hasn’t sustained it , Congress has endorsed Presidents

claim that he/she can authorize warrantless whitecaps and physical searches of agents of foreign countries FISC authorized by Congress to approve requests (secret court) Patriot Act lower the basis for approval of warrants

NSA

Authorize surveillance communications – one party outside of the USA

Bush defended based on : times of war, Authorize the Use of Military Force allows for the “all necessary and appropriate” force to combat terrorists, AUMF justifies not complying with FISA b/c it superseded FISA

2006 Congress enacted legislation to reinforce the authority of FISA

Racial Profiling Traffic stops based on assumption that members of the these

groups are likely to engaged in illegal activities Race and ethnicity may legally still be used to “identify

terrorist threats and stop potential catastrophic attacks”

Random Drug Testing Supreme Court has upheld the use of random d.t.s for

employees involved in train accidents, federal employees and high school students

Struck down law in GA requiring candidates for office to certify they had passed a drug test

2002 Court ruled that schools could drug test students involved in any extracurricular activities

Exclusionary RuleExclusionary Rule Mapp v Ohio (1961) Court adopted a rule excluding evidence from criminal trials

that the police obtained unconstitutionally or illegally

The Right to Remain SilentThe Right to Remain Silent 5th Amendment Persons shall not be compelled to testify against themselves

in criminal prosecutions. Fundamental principle that no person has an obligation to

prove innocence Burden to prove guilt is on the government Applies literally only in criminal prosecutions Cant refuse unless there is a reasonable fear the their

answers might support a criminal prosecution against them

Immunity – sometime offered to witnesses if information or testimony is more important than prosecution of individual

Miranda WarningMiranda Warning Supreme Court –no conviction could stand is evidence introduced at trial had

bee obtained by police during “custodial interrogation” unless suspects were notified that they had a right to remain silent

Has been modified: evidence obtained contrary to Miranda guidelines can be use to attack the credibility of defendants who offer testimony at their trial that conflicts with their statements to police

Indictment continued & Trialsgrand juries may admit hearsay evidence, and the exclusionary rule does not applyif a majority o the grand jurors agree that a trial is justified they return an indictment.Constitution guarantees accused the right to be informed on the charges and have time to prepare a defense

plea bargains are common (90% of criminal proceedings) - typically plead guilty to a lesser crime with decreased penalty

Trialsafter indictment trial date is set and bail is determinedif speedy trial requirement is neglected case must be dismissed6th amend guarantees accused a petit jury from the state and district that the crime took place (between 6 and 12 jurors), federal crimes require 12 jurors

Federal convictions must be unanimousStates don’t have to be unanimous provided there are 6 or more

Impartial Jury - fair cross section of the community and meets the requirements of due process

prosecutors can’t strike jurors due to race or gender nor can defense attorneys ..... called peremptory challenges

Sentencing and Punishmenttrial ends - jury recommends verdict..... guilty or not guiltyJudge hands down sentence8th Amendment prohibits Cruel and Unusual punishment and excessive fines

Three Strike Lawsthree felonies = life sentence

Scholars don’t feel that it deters crimeCost society much more in the long run - staffing and building prisons

Ewing v. California (2003) Supreme Court upheld California’s 3 strike law25 years to life for the theft of three golf clubs was found not to violate cruel and unusual punishment ???????? Unbelievable

Appeals and Double Jeopardy

5th Amendment - no person shall be “subject for the same offense to be twice put in jeopardy of life and limb”- does not exclude the national and state gov’ts from prosecution from the same offense- nor forbid prosecution for the same crime by two states

Sentencing and Punishment

even if defendant is found not guilty they can still be sued in a civil trial

ex: OJ Simpson

Death Penalty

Japan and the US - only two industrialized nations that still use the death penalty

-late 1960s - 1970s moratorium on the death penalty

- Court found that it wasn’t cruel and unusual if the crime led to a victims death

DNA testing have helped to establish the innocence of many individuals convicted of murder

How Just is Our System of Justice???

Loopholes- under our procedures

- criminals may go unpunished b/c police decide not to arrest them- prosecutor decides not to prosecute- grand jury decides not enough evidence to indict - judge decides not to hold them for trial- jury decides not to convict them- appeals court decides to reverse the conviction- judge decides to release them on a writ of habeas corpus- the president or governor decides to pardon, reprieve, or parole them if convicted

Others contend this is the strength of the process- protects against trial and error- created to protect ordinary persons from abuses by those in power

Too Unreliable?Critics argue- Jury trials are time consuming and costly- leads to theatrical combat between lawyers who appeal to the prejudices of the jury

How Just is Our System of Justice???

jury nullification - when jurors ignore the judges instructions consider only the evidence presented in court and vote for acquittal to express their displeasure with the law or the actions of prosecutors or police

Defenders of Jury System- trial by jury provides a check by nonprofessionals on the actions of judges and prosecutors

- there is no evidence that juries are unreliable: on the contrary, decisions of juries do not significantly differ from those of judges

- helps educate citizens and enable them to participate in the application of their countries laws

Too Discriminatory?

- fines can’t prevent the poor from being released from prison - those who can’t afford an attorney must be furnished with them at the governments expense

How Just is Our System of Justice???

Unfair to Minorities?

-many members of minority communities feel like they are unfairly targeted by police and mistreated by them

- community policing: police work in tandem with churches and other local community groups an take officers out of patrol cars and have them walk the beat

- crime prevention programs

-have shown to reduce crime and improve minorities confidence in the police