UNIT 3 IN CLASS NOTES

• civil liberties:

  • Guaranteed freedoms for individuals and protections from government action

    • Freedom of speech, press, assembly, religion, petition, trial by jury, legal representation

    • Due process (5th Amendment and 14th Amendment)

• civil rights:

  • Guaranteed protections of groups from discrimination, prejudice, inequality, injustice

    • Equal protection (14th Amendment)

• ARTICLE III

  • Article III lays out basic framework for the judiciary, but doesn’t say a whole lot! 

    Only the SUPREME COURT is described in Constitution.

    • Highest court

    • Supremacy over matters involving Constitution & Federal Laws

  • Lower courts, number of Supreme Court justices, etc all created by Congress

• MARBURY VS MADISON (1803)

  • Elevated the power and relevance of the judicial branch. 

    Supreme Court can rule on the constitutionality of federal laws, executive orders and actions, and state laws.

    Judicial review was not written in the Constitution.

• FED 78

  • Argued for an independent judiciary that could exercise the power of judicial review

    • Maintains separation of powers and limited government

  • Argued for life tenure of justices

    • Helps maintain the independence of the judiciary

  • The judiciary would be the “least dangerous branch” as it does not have the power of the sword or the purse.

FEDERAL COURT AND JURISDICTION

• Jurisdiction: The legal authority to hear a case

  • Original Jurisdiction: The first court to hear a case

    • SCOTUS has original jurisdiction on cases affecting ambassadors, other nations, or states vs states

  • Appellate Jurisdiction: The court hears an appeal regarding legal issues surrounding the case (i.e. their rights were violated)

• District Courts: The lowest type of federal courts

  • Vast majority of federal cases begins here

  • Only has original jurisdiction

• Circuit Courts of Appeals

  • Review the constitutional issues of cases decided in lower courts

  • Only has appellate jurisdiction

• Supreme Court of the United States

  • Both original and appellate jurisdiction

SUPREME COURT BASICS

• Caseload

  • Chosen by the Supreme Court

  • Hears fewer than 1% of appeals 

  • Approximately 80-90 cases per year

• Rule of Four

  • Informal rule - needs four justices to hear a case

• Writ of Certiorari

  • A request for the lower case documents issued when the court agrees to hear the case; “granting cert”

REASONS WHY SCOTUS HEARS A CASE

• Involves a significant constitutional issue

• Two different lower courts ruled differently on the same issue

• Involves a civil rights or civil liberties issue

• The federal government appealed for the case to be heard

• Is it justiciable? Able to be decided by the court (aka not a political issue)

• Issue of standing - you must show that you’ve been harmed - won’t hear hypothetical cases

ROLE OF THE JUDICIAL BRANCH

• If SCOTUS decides to hear a case…

  • They usually rely on precedent (past decisions)

  • STARE DECISIS: Let the decision stand

• Lower courts use precedents as their guide - sets CASE LAW - law as established by previous cases

• New appointments to the court can lead to past decisions being overturned and the establishment of new precedents

NOMINATION OF SCOTUS JUSTICES

• Nominated by President; Confirmed by the Senate

• Factors to Consider

  • Political ideology

  • Political party

  • Judicial philosophy

  • Age, sex, and race

• No formal requirements in Constitution

JUDICIAL INDEPENDENCE

• Life Tenure allows the judiciary to maintain its independence

  • Allows for possibility of courts to make controversial decisions or unpopular decisions

    • Not democratically elected

    • Hold their power for life

    • Judicial review isn’t mentioned in the Constitution 

  • Flip side -- allows for the courts to protect the minority

    • Think of Brown vs Board of Education, Loving vs Virginia

AFTER SCOTUS AGREES TO HEAR A CASE

• Both sides write briefs - written arguments presented in each case. 

  • Others may write amicus curiae briefs - “Friends of the Court” 

• Oral Arguments - lawyers from each side present their arguments and get questioned - usually 30-60 mins per side.

• Conference Meetings - justices get together and discuss the merits of the case, initial vote

• Decision gets released when the opinions are published

DECISION TIME

• Opinion of the Court - the holding by the majority of the justices, legally binding, used as precedent for other cases  “majority opinion”

  • Takes months of revisions and rewrites

• Concurring Opinion - agrees with the ruling of the majority but for different reasons, not legally binding

• Dissenting Opinion - constitutional reasoning by the justices in the minority - can be together or separate

• Per Curiam Opinion - brief, unsigned opinion; only for issues that are very time sensitive (Bush v Gore)

WHAT IS THE PROPER ROLE OF SCOTUS

• Judicial Restraint: Court should defer to the democratically elected branches whenever possible

  • people who are elected by the public should be making policy decisions

  • Suggests a limited role for justices

• Judicial Activism: The Court can and should be free to overrule the other branches when they are wrong

  • Allows the courts to be drivers of policy change

  • Likely to strike down policies and past rulings

CONSTITUTIONAL PHILOSOPHY

• Strict Constructionism: The Constitution should be interpreted based on what is directly stated or clearly implied. 

• Broad or Loose Constructionism: Loose interpretation based on its principles and vague language 

  • Living Constitution that changes and evolves

  • Implied powers & more federal power

  • Example - Jefferson and Hamilton and the fight over the National Bank

• Originalism: Constitution should be primarily interpreted based on the Framers’ original intent - their intention above everything else - leads to decrease in federal power

CIVIL LIBERTIES:

• Guaranteed freedoms for individuals and protections from government action

BILL OF RIGHTS:

• Anti - Federalists demanded this! 

• Protects individual liberties and limits the power of the federal government

  • Does not give us rights

  • Limits governmental power

• Continually being interpreted!

  • Barron vs. Baltimore - 1830s - federal government is limited to the federal government only. 

SELECTIVE INCORPORATION:

• Incorporation - Application of the Bill of Rights to the States

  • 14th Amendment (1868)

    • Established citizenship for every person born in the US

    • No state shall abridge the privileges and immunities of citizens

    • No state shall deprive any person of life, liberty and property without due process of law

    • Nor deny equal protection of the laws

• States can’t deny a person of due process. 

  • 1924 Gitlow vs United States

    • Looked at the word LIBERTY in the 14th Amendment

    • States cannot deny people their fundamental liberties 

    • Guarantees the Bill of the Rights to the states on a case by case basis

    • Restricted STATE power, protected INDIVIDUAL rights

    • 2019 - Timbs vs Indiana - incorporated excessive fines clause

FIRST AMENDMENT: RELIGION

• Establishment Clause

  • Prevents the government from establishing an official religion

  • Governments can’t give preferential treatment FOR or AGAINST religion

  • Must be religiously neutral

  • Engel v Vitale (1962) - state sponsored school prayer violates the establishment clause. 

• Free Exercise Clause

  • Prevents the government from prohibiting the free exercise of religion 

  • Prevents excessive entanglement of gov’t and religion

  • Wisconsin v Yoder (1972) - compelling Amish students to attend public school beyond 8th grade violates free exercise clause.

FIRST AMENDMENT: SPEECH

• Abridging the Freedom of Speech

  • No law reducing, diminishing or curtailing your speech

  • No rights are absolute

  • Debate = where’s the line?

  • Exceptions:

    • Time, Place, Manner

    • Obscenity

    • Libel (written) and slander (spoken) - must demonstrate MALICE and HARM

• Schenck v. US (1919)

  • Speech that creates a clear and present danger is NOT protected

  • There can be TIME, PLACE, and MANNER restrictions on speech

  • Can be limited if its intended to or likely to incite lawless action 

  Protected:

  • Hate Speech (yes we hate it)

  • Preferred position doctrine - court’s preference is to rule in favor of MORE speech, not less speech

  • Symbolic Speech (burning the flag)

  
  

FIRST AMENDMENT: SPEECH IN SCHOOL

• Tinker v. Des Moines (1969)

  • Protesting Vietnam War by wearing armbands to school

  • Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

  • Must not “materially disrupt” the functioning of their school

FIRST AMENDMENT: PRESS

• New York Times vs. US (1971) 

  • Strengthened press protections

  • Ruled against Nixon’s administration attempt to block the Pentagon Papers

  • Heavy presumption against prior restraint - censorship AHEAD of the publication. 

  • Even in cases involving national security - the court is HESITANT to rule against the newspaper.

FIRST AMENDMENT: ASSEMBLY

• Assembly

  • Involves non-verbal communication (including the message conveyed by the very existence of the group). 

  • Demonstrations, picket-lines, or parades convey more than the words on a placard or the chants of the crowd.  Need permits! 

  • De Jonge v. Oregon (1937) - “the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”

FIRST AMENDMENT: PETITION

• Petition

  • Dates back to Magna Carta!

  • Often seen as obsolete by an expanding Free Speech Clause

  • Reduced to a formality, with petitions routinely entered on the public record absent any obligation to debate the matters raised, or to respond to the petitioners

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.

SECOND AMENDMENT: RIGHT TO BEAR ARMS

• Prefatory Clause

  • A well regulated militia being necessary for a free state

  • Is it merely emphasizing the right to bear arms OR does the person need a connection to militia service?

  • The Case Law

    • DC vs Heller (2008) - Supreme Court decided that there is a right for an individual to bear arms for self-defense.

    • McDonald vs Chicago (2010) - incorporated the right to bear arms to the states.  State and local governments are restricted by the 2nd amendment.

    • Expanding civil liberties and limiting government power.

• Balancing Freedom with Public Order & Safety

  • Freedom Side

    • Right to bear arms is constitutionally protected. 

    • Keeps us a free country and keeps the government from becoming overly powerful.

  • Public Order Side:

    • Government has a duty to keep us safe (ensure domestic tranquility) 

    • Safety issue - both federal governments and states have police powers to keep us safe.

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.

FOURTH AMENDMENT: SEARCHES AND SEIZURES

• The Text

  • Protects people from unreasonable searches and seizures

  • What is reasonable and unreasonable? 

• Legal Searches

  • Must have probable cause (good reason that crime has been committed), search warrant (from a judge) or consent

• The Case Law 

  • Mapp vs Ohio (1961) - Established the Exclusionary Rule - any evidence illegally obtained cannot be used in trial

    • Good Faith Objections - officer believed search was legal

    • Inevitable discovery rule - can be used if it would have been discovered eventually 

• Exceptions to the Search Warrant Requirement

  • Hot Pursuit of a fleeing felon

  • Directly related to a lawful arrest

  • Traffic stops for reasonable suspicion

  • Exigent circumstances

  • Schools - New Jersey vs TLO - must meet the reasonableness standard (lower than probable cause)

• Riley vs California (2014):  the warrantless search and seizure of the digital contents of a cell phone during an arrest is unconstitutional under the 4th Amendment

• Carpenter vs United States (2018): a warrant is required for police to access cell site location information from a cell phone company—the detailed geolocation information generated by a cellphone’s communication with cell towers.

• Kyllo vs United States (2001): the use of thermal-imaging to detect areas of high heat in one's private home was a violation of 4th Amendment

  ---

FIFTH 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 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.

FIFTH AMENDMENT:

• Self-Incrimination

  • protects criminal defendants from having to testify if they may incriminate themselves through the testimony. 

• Double Jeopardy

  • prohibits anyone from being prosecuted twice for substantially the same crime.

• Just Compensation (Eminent Domain)

  • Property owners are paid fair market value for their property but often determining what fair market value is can be difficult.

  • Kelo vs New London (1995) - the city's taking of private property to sell for private development qualified as a "public use" within the meaning of the takings clause. 

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 obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

• Speedy Trial

  • the accused must be brought to trial or released within a reasonable amount of time. 

• Public Trial

  • Public trials ensure that there's an extra layer of accountability as the public can determine whether government officials properly carry out their functions in a way that is not shrouded in secrecy

• Impartial Jury

  • The role of the jury is to provide unbiased views or resolution to evidence presented in a case in a court of law. 

  • Must be a cross section of the community where the crime occurred

• How do you get on the jury list? 

  • Driver’s License

  • Voter Registration

  • State Income Tax 

  • Unemployment Checks

• Informed of the Crime

  • right to be informed of the nature and cause of the accusation allows the defendant the chance to prepare for his/her defense

• Confront Witnesses

  • ensures that any testimony presented to a jury be tested through cross-examination; ensures the reliability of testimony/evidence at trial

• Assistance of Counsel

  • Counsel must be present from the moment the accused is taken into custody until punishments and sentencing.

  • Miranda Rule

• Gideon vs Wainwright (1963)

  • requires states to provide attorneys to criminal defendants who are unable to afford their own.

EIGHTH AMENDMENT:

• Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

• History

  • During the founding era, you could receive the death penalty for stealing a horse!

• The Case Law

  • Furman vs Georgia (1972) - temporarily halted death penalty because it was being arbitrarily applied with a racial bias. States had to ensure it was not administered in discriminatory way.

  • Gregg vs Georgia (1976) - reinstituted the death penalty, but said that states cannot have mandatory death policies.

  • Atkins vs Virginia (2002) - death penalty cannot be given to intellectually disabled persons

  • Roper vs Simmons (2005) - death penalty cannot be given to a minor 

  • Kennedy vs Louisiana (2007) - can’t be given for any crime besides murder

• The Case Law

  • Timbs vs Indiana (2019)

  • After Tyson Timbs pleaded guilty to a drug offense in Indiana, he was sentenced to home detention followed by probation.

  • They confiscated his Land Rover since it was used in the operation. 

  • Court said NO - Excessive Fines - and incorporated it to the state level.

RIGHT TO PRIVACY: (no specific amendment)

• 9th Amendment

  • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  • This was the key to Hamilton’s argument against the Bill of Rights - what if we forget any? 

• Other Amendments - Penumbras

  • Substantive Due Process: establish and protect certain fundamental rights from government interference (using due process clause)

  • Griswold vs Connecticut (1965) - law against Birth Control - established and incorporated a right to privacy - you can find it implied by the 1st, 3rd, 4th, 5th, and 9th amendments