Amending the Constitution(a two step process)

Propose

• 2/3 of members of both houses of Congress

• OR

• At a convention called by 2/3 of the states (33 states)

Ratifying• ¾ of state legislatures (state

lawmakers) 38 states

• OR

• At a convention held by ¾ of the states

The Bill of

RightsAmendments 1-10

Why was the Bill of Rights Added

• To satisfy the

anti-federalists

• To guarantee our individual liberties/freedoms

in writing

Bill of Rights

• Over 120 were proposed

• 12 made it to the ratification stage

• Only 10 were ratified

• They are in no particular order of importance

The Bill of Rights is meant to protect citizens from Government, not each

other

• If your friend goes through your closet without permission, that is not a violation of your civil liberties, it is violation of a civil law

• If the police go through your closet with out a warrant, it is a violation of your civil liberties

All rights are a balance of…

• Freedom v. Protection

– More freedom = less protection

– More protection = less freedom

– All freedoms have limits (there is an exception to every rule)

1st 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 the government for a redress of grievances”

5 parts to 1st amendment

1. Religion

2. Speech

3. Press

4. Assembly

5. Petition

Two Parts of Freedom of Religion

Establishment Clause

• “Congress shall make no law respecting an establishment of religion…”

• Congress can’t create a religion for people to follow or favor one religion over another one

Exercise Clause

• “…or prohibiting the free exercise thereof…”

• Guarantees each person the right to hold any religious belief that they choose

Freedom of Religion

• “religion is a matter which lies solely between Man & his God.” The establishment clause builds “a wall of separation between Church & State”

– Thomas Jefferson

• Separation of church and state

means that the government must remain neutral on the notion of religion

Public Displays• Are nativity scenes legal?

– Sometimes

– When part of a broad display

• Ten Commandments?

– Sometimes

– Historical value

EducationReligious v. Secular (nonreligious)

• Public school buses bussing students to private schools

• Prayer in School

• Moment of silence

• Public money to private schools for……

• Lemon Test (next slide)

Lemon Test

• Lemon v. Kurtzman (1971)

• Three part test

1. The law must have a secular legislative purpose

2. The law’s major effects must neither advance nor inhibit religion

3. It must not encourage “excessive entanglement with religion”

Free Exercise Cases

• Use of illegal drugs

• Bigamy/polygamy

• Saluting the flag

• Amish education

• Amish beliefs and exemptions to the laws

Freedom of Speech

• “or abridging the freedom of speech…” U.S. Constitution

• You have the right to say what you want right?

• Of course not – freedom v. protection

• 1st amendment

Why is it so important in a democracy?

• Citizens must be able to gather information and be able to discuss it to be able to make informed decisions.

• Free Speech in Democracy

• They must be able to criticize the government without fear of punishment

• Free Speech around the World

– Open meetings laws

– Freedom of Information Act

How does the Supreme Court Judge Free Speech Cases?

• Places speech into 2 categories:

1. Content based (what you say)• Prohibits speech on the basis of the ideas or

information contained in the speech

2. Content neutral (how/where you say it)• Prohibits all speech to avoid an evil that is not

connected to the content of the speech

• Usually involves the time, place, and manner of the speech

Is it going too far?• The courts have a 3 part “test”

– Time

• The time of day is considered

– Place

• WHERE were you when you said it?

– Manner

• What was the context? What meaning was it meant to convey?

Types of Speech with Limits

• Obscene/lewd

• Dangerous

• Defamation

• Commercial Speech

• Fighting Words

• Hate Speech

• Symbolic speech

Speech that does NOT get 1st Amendment Protection

• Obscene*– Offensive, rude, shocking, repulsive

• Lewd*– Offensive, but sexual (in a obvious or rude way)

*Hard to define – each community defines these words differently; it is very subjective and open to interpretation:

Other Speech that does NOT get 1st

amendment protection• Defamation – False expression about a person that

damages that person’s reputation

– Slander

• false speech intended to damage a person’s reputation

– Libel

• false written statements intended to damage a person’s reputation

* Public officials/figures = must show malice (know it is false or reckless disregard for whether it is true or not)

National Security Threats do NOT get 1st amendment protection

• Seditious Speech (sedition) –

• Speech that is rebellious and threatens to violently overthrow the government

• Treason

• Give aid to our enemies

• Words that threaten national security

Dangerous Speech

• Any speech that creates a “clear and present danger” or “direct incitement” of “imminent” threat of illegal action

• Speech that is not responsible – can’t yell “fire” in a crowded theatre or “bomb” at an airport

Fighting Words Do NOT Get 1st

Amendment Protection• Constitution does not protect you if use words

that are abusive or threatening because they are considered “fighting words.”

• Words spoken face-to-face and are likely to inflict harm or cause an imminent breach of the peace(acts or conduct that seriously endanger or disturb public peace and order) between the speaker and the listener– Courts use the question: Would the average person in

the community consider these fighting words?– Chaplinsky v. New Hampshire (1942)

Elonis v. United States (2014)• Elonis - About his ex-wife, he posted:

– “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

• When she got a restraining order, he posted,

– “I’ve got enough explosives to take care of the state police and the sheriff's department” and

– “I’m checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined ... The only question is ... which one?”

• FBI agents came to his door; he posted his fantasy of killing one female agent: “Pull my knife, flick my wrist, and slit her throat Leave her bleedin’ from her jugular in the arms of her partner.”

Elonis continued

• He was convicted in federal district court of five counts of transmitting in interstate commerce (here, the Internet) “any threat to injure the person of another.”

• Elonis argued that, under the First Amendment, the government had to prove that he had a “subjective” intent to threaten. He said he lacked that, in part because some of his posts echoed words by rapper Eminem.

Hate Speech Does NOT Get 1st

Amendment Protection

• Speech that intended to degrade, intimidate, or incite violence or prejudicial action against someone based on their race, ethnicity, national origin, religion, sexual orientation, or disability, etc.

• Very Subjective

• Westboro Baptist Church

Symbolic Speech Gets 1st

Amendment Protection (but like all speech, it can be limited)

• conduct that is intended to convey a particular message which is likely to be understood by those viewing it

– Allowed = nodding your head, waving, winking, etc.

– Limited = flipping people off, burning the cross, flashing, streaking, etc.

Commercial Speech Advertising can get protection unless….

• It is….

– False

– Misleading

– Advertising for illegal products

Students’ Rights to Free Speech

• Students in school - you still have rights,

– Students and teachers don’t “…shed their constitutional rights…at the schoolhouse gate.”

» Justice Abe Fortas, Supreme Court Justice in majority opinion of Tinker v. Des Moines

– but students can’t disrupt the school environment

– can be suspended for lewd, indecent, etc. language or actions at school events & school can decide what’s appropriate

Freedom of the Press

• Created to keep the public aware of the

activities of the government.

• Without this the people can’t control the

government

• The government can’t prevent individuals

from expressing their opinions

Prior Restraint

• What is prior restraint? -

– government censorship BEFORE it is published or broadcast

– Prior Restraint is NOT Legal (unless…)

• Threat to national security

Right to Petition

• Petition means to

– request/appeal/ask

• You have the right to ask the government to make a change, correct a problem, change their point of view.

• You can picket, protest, send letters to elected officials with your thoughts, but within reason – no threats or harm

Right to Assemble

• You have the right to organize into groups

• Some limits – examples include:– Often need a permit if the group is large

– (but permits can’t be denied just because views are unpopular)

– Must be peaceful

– Must follow the rules of the location

– Not on private property without permission

– Holmen Ordinance Holmen ordinance

2nd AmendmentThe Right to Bear Arms

• “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”

What does it mean?

• Well-regulated

• A militia

• Security

• People

• Keep and bear

• Arms

• Infringed

Why was this amendment included?

• To keep our government from taking away our weapons from the militia, like the British had done.

And

• The fact that citizens were armed was meant to discourage the state and federal government from imposing military or tyrannical rule

• 2nd amendment video

Gun Control History

• 1934 – National Firearms Act– a statutory excise tax on the manufacture and transfer of

certain firearms and mandates the registration of those firearms.

– A shotgun or rifle having a barrel of less than eighteen inches in length or any other weapon, other than a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machinegun, and includes a muffler or silencer for any firearm whether or not such a firearm is included in the foregoing definition

• 1968 – Gun Control Act

– generally prohibits interstate firearms transfers except among licensed manufacturers, dealers and importers

1994

• Brady Act

– Requires a five-day waiting period and background check in the sale of handguns

– Required a National Instant Criminal Background Check System to be created

• Assault Weapons Ban

– Banned a number of rifles defined as “assault weapons,” including many semi-automatics, military style rifles such as the AK47 and SKS

2004

• Assault Rifle Ban ends when Congress does not reauthorize it

2008 – D.C. v Keller

• 5-4 decision that the Second Amendment protects an individual's right to possess a firearm for traditionally lawful purposes, such as self-defense within the home and within federal enclaves.

• The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states

2010 – McDonald v. Chicago

• The Court held that the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states.

• Government CAN limit guns, weapons, ammo

– Congress can regulate sale of weapons over state lines (interstate commerce)

– States are free to regulate the sale and use of firearms within state boundaries

Questions and Problems to be Decided by the Courts

• Interpretation/Questions

– Can Anyone own a gun?

• felons, kids, mentally challenged, etc.

– Can anybody have any type of gun?

• Fully automatic, grenades, etc.

– Should we force more training?

– Other?

3rd AmendmentQuartering of Soldiers

• “No soldier shall, in times 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”

Quartering of Soldiers

• Government can’t force citizens to house soldiers in peacetime

• Congress can do this in war timeunder certain conditions

4th amendmentSearches and Seizures

• “The right of 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.”

Writs of Assistance

• British had used general search warrants called writs of assistance to find smuggled goods

• They needed no cause or reason and did not have to say what they were looking for or where they were looking

• 4th Amendment video

Protects Right to Privacy

• Police need probable cause to search or get a warrant

• Probable Cause= sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime.

• Police often need a search warrant to search premises or seize (take) evidence or people.

Warrants

• Search warrant (Paper signed by judge describing the specific place to be searched) is usually required to search

• Arrest warrant (paper signed by judge to approve an arrest) is sometimes needed to arrest

• exclusionary rule – (added later by a court decision) – can’t use evidence in trial if it was taken illegally - like without a warrant

No warrant needed when…

1. At school – they need only “reasonable grounds” (a good reason to think someone is behaving in a criminal way)

2. stop and frisk – if there is reasonable suspicion that a person has committed a crime, is in the process of it or is about to (for officer safety)

3. after a person is arrested(called “pursuant to a lawful arrest”)

No warrant needed when…

4. hot pursuit = when police are following a suspect

5. exigent (urgent) circumstances - something that needs an immediate response due to safety concerns

example: a police officer hears someone calling for help or sees a crime in progress, they can enter

6. consent – after a person gives the OK to search

Automobile Exception

• Because cars can quickly and easily move, there are times when no warrant is required

– If police have probable cause they can search it

– Lunge Area = area that is immediately accessible (can be searched at any time)

Plain View Exceptions

• Anything that is in plain view of an officer, does not require a warrant to seize (take)

• Examples

Current Events

• Up-skirting

– Is upskirting illegal?

• Class I felony = up to 3 years in prison and $10,000 fine (as of Thursday 2/19, it has not passed the Senate)

• Cell phone searches

– U.S. Supreme Court ruled in June 2014 that police must have a warrant to search them

• Internet searches

• Drug searches

Drug Searches• 2013, the justices issued two dog-sniff rulings. In

a 9-0 decision, the justices found that a properly trained drug-sniffing dog "alerting" to the presence of drugs could constitute probable cause for a search.

• In a 5-4 ruling, the high court held that when police bring a drug-sniffing dog onto the porch of a home, that constitutes a search requiring a warrant, consent or some emergency circumstance for evidence obtained through the search to be used later in court.

More Drug Searches

• Can the police detain you at a traffic stop in order to bring a drug dog, if there is no probable cause?

– Case heard in November, no ruling yet

Drug Testing• Drug testing of people receiving government

assistance?

– A U.S. circuit court ruled it unconstitutional

• As of February 2015, at least 14 states have proposed legislation requiring some form of drug testing or screening for public assistance recipients. The states include: Connecticut, Illinois, Iowa, Kentucky, Minnesota, Mississippi, Montana, New York, Oregon, Pennsylvania, South Carolina, Texas and West Virginia. Hawaii's proposal is for the state to study the issue.

Drug Testing

• Employer drug tests in states where marijuana is legal?

– Colorado law says you can’t be fired for taking part in LEGAL activities done off the premises during nonworking hours….

5th AmendmentRights of Accused Persons

• 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

Grand Juries & Indictments• grand jury = a group of citizens (16-23) who

determine if there is enough evidence to send an accused person to trial (different than a petite jury, who determines guilt or innocence at trial)

• no person can be tried for a serious crime without an indictment

• indictment is when a grand jury decides there is enough evidence to hold a person over for trial

Double Jeopardy

No double-jeopardy – can’t be tried twice for the same crime

Exceptions:

• You can be tried twice for a crime like murder, but not the SAME murder, once you have been found innocent

• You can be tried again if you were found guilty (i.e. new evidence)

• You can be brought to criminal AND civil court– OJ,

– Michael Jackson’s doctor,

– Trisha Stratman (Brandon Jennings)

Civil v. Criminal Cases

Civil Suits

• involve a disagreement between two or more people and involves something of value

– Examples

– Suing

– Car accidents

– Divorce

– Dog bites

Criminal Suits

• when the government takes you to court because you have violated a law

– Examples

– Murder

– Assault

– Rape

– Theft

Pleading the 5th

(No Self-Incrimination)• The government cannot force any person to give

testimonial evidence that would likely incriminate him during a subsequent criminal case.

• You can refuse to answer questions in court if it may link you to a crime.

• You are innocent until proven guilty and the government must prove guilt

Due Process of the Law

• Government can’t deprive any person of life, liberty, or property without due process of the law

• Due process = government must follow the laws and procedures in trials and other actions against individuals

Eminent Domain (property rights)

– eminent domain = the government’s right to take private property for public use, but must give “just compensation” (you must be paid)

– Question - What is considered “public use?”

– Supreme Court says……

• Economically beneficial for the community is OK

Amendment 6• “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 Assistance of Counsel for his defense. “

6th Amendment

Criminal Trial Rights

• “…the right to a speedy and public trial…”

• What is “speedy?”

• What is “public?”

“…by an impartial jury…”

What does impartial mean?

Unbiased, open minded

Accused person can ask to be tried by a

judge alone (no jury)

“…wherein the crime shall have been committed…”

• The trial must occur

– in the location that the crime took place, unless you ask for a change of venue

• Change of venue

– new trial location when unfavorable publicity means you don’t think you can get a fair trial

“…to be informed of the nature and cause of the accusation;…”

• You have a right to know what crime you are being charged with.

Amendment 6 - Witnesses

• to be confronted with the witnesses against him;

• to have compulsory process for obtaining witnesses in his favor,

• Be able to see witnesses and question them

• To bring witness in to testify for you

• “and to have Assistance of Counsel for his defense. “

• The right to an attorney (lawyer)

Miranda Rights (Amendments 5&6)

• added later by a law

• rights that must be read to you when you are arrested

• “You have the right to remain silent, anything you say can be used against you in a court of law. You have the right to an attorney. If you can not afford one, one will be assigned for you.”

Miranda vs. Arizona (1966)

• Ernesto Miranda was arrested at his home in Phoenix, Arizona and accused of kidnapping and rape

• Questioned at the police station and not advised of his rights (to an attorney of right to remain silent)

• After two hours he signed a confession to the crimes

Miranda continued

• Miranda was found guilty and sentenced to 20-30 years in prison

• He appealed on the grounds that he did not KNOW of his right to remain silent and right to a lawyer

• Supreme Court said:– New trial – No confession allowed (illegally obtained)

Amendment 7Civil Suits

• “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 Courts of the United States, than according to the rules of common law.”

7th amendment – Civil Suits

• Guarantees the right to a jury trial in any civil dispute involving $20 or more

• Judge can settle it if you choose (no jury)

Amendment 8

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

• 8th amendment

8th Amendment Bail & Punishment

1. No excessive bail

- What is bail?

*money or property required to be released from jail until the trial

*bail is returned when person comes to trial

Amendment 8

• No excessive fines

–What is excessive?

• No cruel or unusual punishments

–What is cruel and unusual?

–Police respond to suspect

Methods used

Supreme Court

• January 27

– In a 6-3 ruling Monday, the court made retroactive a 2012 decision that struck down automatic life terms with no chance of parole for people convicted of murder who were 17 or younger at the time of the crime.

Wrongful convictions

• The legislation increases the payments tenfold, from $5,000 up to $50,000 annually, for each year the person was incarcerated.

• It also caps the total payment sum at $1 million. Current law caps payments at $25,000.

• Wisconsin Wrongful Conviction Law

Amendment 9

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

• 9th Amendment

9th amendment Powers Reserved to the People

• people’s rights are not limited to those in the constitution

• Examples

– Education

– Marriage

– Having children

– Murder????

• No (see amendment 10)

Amendment 10

• “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.”

• 10th Amendment

10th Amendment Powers Reserved to the States

• powers not given to the national gov’t or denied to the states in Art. 1, sect 10, belong to the states

• Examples:

– Marriage laws

– Drinking laws

– Driving Laws

– Criminal laws