7th Amendment ...

1. 7th Amendment ... • “In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved.”

2. Trial by jury • Traditionally, the Supreme Court has treated the 7th amendment as preserving the right of trial by juries in civil cases as it “existed under the English common law when the amendment was adopted.”

3. Trial by jury • The right was to “a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts and (except in acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.” • Decision of the jury must be by unanimous verdict.

4. Trial by jury • The Supreme Court ruled that federal district court civil juries composed of six persons were permissible under the Seventh Amendment and congressional enactments.

5. Trial by jury • The Amendment governs only courts which sit under the authority of the United States, including courts in the territories and the District of Columbia, and does not apply generally to state courts.  • Parties may enter into a stipulation waiving a jury and submitting the case to the court upon an agreed statement of facts.

6. 8th Amendment • “Excessive bail shall not be required, nor excessive fines imposed, nor cruel & unusual punishment inflicted.”

7. Bail • “This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” • Bail is “excessive” in violation of the Eighth Amendment when it is set at a figure higher than an amount reasonably calculated to ensure the asserted governmental interest. 

8. Bail • The function of bail, the Court explained, is limited neither to preventing flight of the defendant prior to trial nor to safeguarding a court’s role in adjudicating guilt or innocence. • “the only arguable substantive limitation of the Bail Clause is that the government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.”

9. Bail • Detention pending trial of “arrestees charged with serious felonies, who are found after an adversary hearing to pose a threat to the safety of individuals or to the community, may deny release.”

10. Bail • If the only asserted interest is to guarantee that the accused will stand trial and submit to sentence if found guilty, then “bail must be set by a court at a sum designed to ensure that goal, and no more.”  • To challenge bail as excessive, one must move for a reduction, and if that motion is denied appeal to the Court of Appeals, and if unsuccessful then to the Supreme Court Justice sitting for that circuit.

11. Excessive fines • “Clearly was adopted with the particular intent of placing limits on the powers of the new government.” • At the time the Eighth Amendment was adopted, the Court noted, “the word ‘fine’ was understood to mean a payment to a sovereign as punishment for some offense.” “the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.”

12. Excessive fines • The Court’s decisions have been about protecting indigent, who if cannot pay a fine would be sent to jail. • Inapplicable to civil jury awards

13. Cruel & unusual punishment • “Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture [such as drawing and quartering, dis-embowelling alive, beheading, public dissecting, and burning alive], and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.”

14. Cruel & unusual punishment • Furman V. Georgia: Required consistency in application of death penalty. Invalidated death penalty for rape. • States required to enact new death penalty laws aimed at overcoming the court's concerns about arbitrary imposition of the death penalty. • Laws that mandated bifurcated trials, with separate guilt-innocence and sentencing phases, and imposing standards to guide the discretion of juries and judges in imposing capital sentences, were upheld in a series of Supreme Court decisions. • What about juveniles of any age? Mentally ill? Crimes other than murder, like rape? What about those who are AGAINT abortion, even to save the life of a mother, but who are FOR capital punishment for a long list of crimes beyond murder and who seek to significantly curtail the judicial review of death-row appeals in light of known innocents executed? See this link http://www.innocenceproject.org/ • You can listen to San Antonio former District Attorney Sam Millsap, my cousin, talk about one of his death penalty cases at http://www.youtube.com/watch?v=sGmkldPz19w The National Council of the Churches USA is composed of a wide spectrum of denominations representing 45 million persons in more than 100,000 local congregations and they have the following interesting unified positions on the death penalty http://www.ncccusa.org/NCCdocs/abolitionofthedeathpenalty.pdf • See this PBS Frontline video on Todd Willingham’s execution for arson murders after experts proved he was innocent. http://www.pbs.org/wgbh/pages/frontline/death-by-fire/

15. Many Religions Debate • Regarding criminal justice and influences on the authors of the US Constitution in writing the Bill of Rights to better protect the innocent - the following is the debate in Genesis 18:20-33. • 20 And the LORD said, “The outcry of Sodom and Gomorrah is indeed great, and their sin is exceedingly grave. 21 I will go down now, and see if they have done entirely according to its outcry, which has come to Me; and if not, I will know.” 22 Then the men turned away from there and went toward Sodom, while Abraham was still standing before the LORD. 23 Abraham came near and said, “Will You indeed sweep away the righteous with the wicked? 24 Suppose there are fifty righteous within the city; will You indeed sweep it away and not spare the place for the sake of the fifty righteous who are in it? 25 Far be it from You to do such a thing, to slay the righteous with the wicked, so that the righteous and the wicked are treated alike. Far be it from You! Shall not the Judge of all the earth deal justly?” 26 So the LORD said, “If I find in Sodom fifty righteous within the city, then I will spare the whole place on their account.” 27 And Abraham replied, “Now behold, I have ventured to speak to the Lord, although I am but dust and ashes. 28 Suppose the fifty righteous are lacking five, will You destroy the whole city because of five?” And He said, “I will not destroy it if I find forty-five there.” 29 He spoke to Him yet again and said, “Suppose forty are found there?” And He said, “I will not do it on account of the forty.” 30 Then he said, “Oh may the Lord not be angry, and I shall speak; suppose thirty are found there?” And He said, “I will not do it if I find thirty there.” 31 And he said, “Now behold, I have [f]ventured to speak to the Lord; suppose twenty are found there?” And He said, “I will not destroy it on account of the twenty.” 32 Then he said, “Oh may the Lord not be angry, and I shall speak only this once; suppose ten are found there?” And He said, “I will not destroy it on account of the ten.” 33 As soon as He had finished speaking to Abraham the LORD departed, and Abraham returned to his place ... End of citation. Thus you have examples going back to ancient  times debating how to protect the innocent.

16. Religion Based Law • “Judicium dei” is the judgment of God. Early Saxon and English law impiously reached the judgments on trials by ordeal, by physical combats etc. It was believed that the accused, if innocent, will be exculpated through divine intervention. Innocence was established if the "trial" produced no evidence of injury. For example, in an ordeal by fire the accused was forced to handle a red-hot iron or to walk barefoot and blindfolded over nine red-hot plowshares. The accused will not be injured if he was innocent.

17. Cruel & unusual punishment • The Court approved electrocution as a permissible method of administering punishment. A divided Court held that a second electrocution following a mechanical failure that injured but did not kill the condemned man did not violate the proscription.

18. Cruel & unusual punishment • Imprisonment: “Conditions in prison must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. Conditions may deprive inmates of the minimal civilized measure of life’s necessities. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. Conditions may be restrictive and even harsh, but may not create or maintain prison conditions that are inhumane to inmates generally.

19. 9th Amendment • “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

20. Rights retained by the people • Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that in as much as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those.

21. Rights retained by the people • “The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. • “To hold that a right so basic and fundamental and so deep–rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth.”

22. 10th • “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.” • Nullification theory or state “compact theory” … sovereign States created the Union and thus they have the right to invalidate any federal law THEY deem unconstitutional – that States – not Federal courts – are ultimate interpreters of national power. Jefferson & Madison advanced in response to Congress Alien & Sedition Acts. • Famous Ableman v. Booth 1859 Supreme Court case opinion: State courts cannot contradict federal courts or rule federal law unconstitutional. (Supremacy clause Art. 6) This happened because northern states tried to block Congress’ pro slavery Fugitive Slave Act 1850. http://en.wikipedia.org/wiki/Ableman_v._Booth • Famous Texas v. White 1869 Supreme Court case opinion --- states are NOT free to leave the union - “the United States is an indestructible Union, composed of indestructible States." Accordingly, no state may unilaterally secede. • http://en.wikipedia.org/wiki/Texas_v._White

23. Texas v. White 1869 The Supreme Court, Chief Justice Salmon Chase, ruled in this landmark case: “The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union wassolemnly declared to "be perpetual." And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union." It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not? --- When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.”

24. Settled Question • The Civil War was started in the 1860s by Southern States and it caused horrific casualties - equivalent to 11 million with today's population. In several places the Constitution prohibits what southern States did, such as (1) "---no State shall enter into any treaty, alliance or confederation" and (2) "---no States shall without permission of Congress keeps troops or ships of war or enter into agreements with another State or foreign powers, or engage in war" and (3) "---nor any State to be formed by the jurisdiction of 2 or more states - without consent of the Legislatures of those states concerned as well as of the Congress” and (4) "---no person is eligible to hold ANY government job at the national, state or local level if engages in insurrection or rebellion against the USA, or gives aid or comfort to the enemies of the USA." Treason! Traitors! • The U.S. Constitution prohibited what Civil War Confederate States of America did & efforts to do so again disqualifying anyone for ANY civilian or military government job. Here are specific references:

25. Free speech or rebellion & insurrection • Gov. Perry & Tea Party activists and others, believe Texas can legally and unilaterally secede from the USA. Are they right? Consider Court cases on the previous slides and these Constitution powers, among many others, denied to the States. • Article 1, section 10, clause 1: “no State shall enter into any treaty, alliance or confederation.” • Article 1, section 10, clause 3, “no States shall without permission of Congress keep troops or ships of war … or enter into agreements with another State or foreign powers, or engage in war.” • Article 4, section 3: “nor any State to be formed by the jurisdiction of 2 or more states - without consent of the Legislatures of those states concerned as well as of the Congress.” • Amendment 14 section 3, no person is eligible to hold ANY government job at the national, state or local level if engages in insurrection or rebellion against the USA, or gives aid or comfort to the enemies of the USA.