Chapter 36: Introduction to Constitutional Law

Chapter 36: Introduction to Constitutional Law

Constitutional Law Unit 6 Chapters 36 and 37

The US Constitution • Supreme Law of the land (Supremacy Clause) • Establishes the 3 branches of government • Guarantees all Americans certain basic rights

Amendments to the Constitution • Amendments: changes/additions to the Constitution • What are some amendments that you remember from C&E and US History?

Amending the Constitution PROPOSAL: • 2/3 vote of Congress • 2/3 vote of a National Convention (State Convention) RATIFICATION: • 3/4 vote of State Legislatures • 3/4 vote of State Convention

The Constitution • The Constitution was originally adopted in 1787 and the Bill of Rights (1st 10 Amendments) were ratified in 1791 • YOU ARE RESPONSIBLE FOR KNOWING THE BILL OF RIGHTS and OTHER AMENDMENTS • What are good study methods?

Bill of Rights 1st Amendment (RAPPS) -Freedom of Religion -Freedom of Assembly - Freedom of Press - Freedom of Petition - Freedom of Speech 2nd Amendment - Right to bear arms 3rd Amendment - Right not to quarter soldiers 4th Amendment - Freedom from unreasonable searches and seizures

Bill of Rights 5th Amendment • Right to Due Process (fair legal procedures/Trial) • Right to no self-incrimination (right to remain silent) 6th Amendment • right to a lawyer • An impartial jury • A speedy, public trial in criminal cases

Bill of Rights 7th Amendment • - right to a jury trial in civil cases where the amount is more than $20 8th Amendment • - no excessive bail ( a sum of money used as a security deposit; if the person shows up to court the bail money is returned to them; if the person does not show up for court they do not get their money back) • - no cruel and unusual punishment 9th Amendment • - citizens have rights beyond what is written in the constitution • - example: privacy 10th Amendment • -any powers not given to the national government are reserved for the states (reserved powers!!!)

Amendments 13th Amendment - outlaws slavery 14th Amendment - everyone has equal protection under the law and you cannot be deprived of life, liberty, or property without due process - Bill of Rights applies to state and local government 15th Amendment - one cannot be denied the right to vote because of race or color

Amendments 19th Amendment - gives women the right to vote (suffrage) 23rd Amendment - gives citizens in Washington DC the right to vote in Presidential Elections 24th Amendment - prohibits poll taxes (forcing people to pay to vote) 26th Amendment - gives all people 18 or older the right to vote

Basic Constitutional Principles • The rights guaranteed in the Constitution are NOT absolute (ex: do you have freedom of speech ALL the time? ) • Balancing Test: used by judges to determine which interest is most important (freedom of speech to yell fire OR the interest of all the people in the theater?)

Basic Constitutional Principles • The Constitution protects the people from actions by the government (14th amendment) • The Constitution does not contain ALL of our rights…laws are another way to guarantee our rights.

Marbury v. Madison • ESTABLISHED JUDICIAL REVIEW! • Although this power is not stated in the Constitution, the Supreme Court has the ability to determine if a law is constitutional.

Cruzan v. Director, Missouri Department of Health Facts of the Case: • In 1983, Nancy Beth Cruzan was involved in an automobile accident which left her in a "persistent vegetative state." She was sustained for several weeks by artificial feedings through an implanted gastronomy tube. When Cruzan's parents attempted to terminate the life-support system, state hospital officials refused to do so without court approval. The Missouri Supreme Court ruled in favor of the state's policy over Cruzan's right to refuse treatment.

Cruzan v. Director, Missouri Department of Health Question: • Did the Due Process Clause of the Fourteenth Amendment permit Cruzan's parents to refuse life-sustaining treatment on their daughter's behalf?

Cruzan v. Director, Missouri Department of Health Conclusion: • In a 5-to-4 decision, the Court held that while individuals enjoyed the right to refuse medical treatment under the Due Process Clause, incompetent persons were not able to exercise such rights. Absent "clear and convincing" evidence that Cruzan desired treatment to be withdrawn, the Court found the State of Missouri's actions designed to preserve human life to be constitutional. Because there was no guarantee family members would always act in the best interests of incompetent patients, and because erroneous decisions to withdraw treatment were irreversible, the Court upheld the state's heightened evidentiary requirements. • ****A state must have clear evidence of a victim/patient’s desire to end treatment . If there is no clear evidence, the state must act to preserve his/her life. (Despite family opinions)

Cruzan v. Director, Missouri Department of Health • http://www.youtube.com/watch?v=EQmyo6EvUY8&feature=related

Feiner v. New York Facts of the Case: • On March 8, 1949, Irving Feiner, a white student at Syracuse University, made an inflammatory speech on a street corner in Syracuse, New York. During the speech, which was intended to encourage listeners to attend a leftist rally, Feiner made several disparaging remarks about local politicians, organizations, and President Truman. A crowd gathered, and several listeners began "muttering" and "shoving." One listener threatened Feiner. Two officers on the scene, fearing violence, asked Feiner twice to end his speech. After he refused, the officers arrested Feiner for inciting a breach of the peace. • A trial court found Feiner guilty and sentenced him to thirty days in prison. On appeal, Feiner argued his arrest violated his right to free speech under the First Amendment. The Onondaga County Court and the New York Court of Appeals each denied his claim.

Feiner v. New York Question: • Did Feiner's arrest for inciting a breach of the peace violate his right to free speech under the First Amendment?

Feiner v. New York Conclusion: • No. In a 6-3 opinion authored by Chief Justice Fred Vinson, the Court applied the "clear and present danger" principle it originally articulated in Schenck v. United States (1919). According to the Court, Feiner's arrest was a valid exercise of "the interest of the community in maintaining peace and order on its streets." The Chief Justice dismissed the notion that the arrest amounted to the suppression of free communication. "It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace.“ ***When there is a clear and present danger, police should work in the interest of the community in maintaining peace and order and freedom of speech is not absolute!

Free Speech? • http://www.youtube.com/watch?v=D1LHqfa_GLY&feature=related

Chapter 37: Freedom of Speech

Freedom of Speech/Expression • Guaranteed in the 1st Amendment • Allows citizens to be exposed to different points of view • People are protected by the 1st Amendment even if people to do not agree with what they are saying

Freedom of Speech • Freedom of Speech cases are the most difficult for courts to resolve because the government can limit speech based on obscenity, defamation, commercial speech,and fighting words.

Obscenity Obscenity: Anything that treats sex or nudity in an offensive or lewd manner, exceeds recognized standards of decency, and lacks serious literary, political, or scientific value.

1973: Miller v. California Developed a 3 part test to determine if a work is obscene: - Would the average person find the work inappropriate when apply contemporary standards? - Does the work depict sex in an offensive way? - Does the work, as a whole, lack literary, artistic, political, or scientific value Ex: Anatomy book v. pornography

Class Discussion • P. 450 Problem 37.3 A-E

Defamation Defamation: a false expression about a person that damages a person’s reputation Slander: when defamation is spoken Libel: when defamation is written

Commercial Speech Commercial Speech: speech that is directed at buying or selling of goods and services (advertising) - the government is allowed to ban commercial speech that is false or misleading or provides info about illegal products

Fighting Words, Offensive Speakers, and Hostile Audiences Fighting Words: words spoken face to face that are so abusive that they are likely to cause a fight between the speaker and person being spoken to. Clear and Present Danger Test: used by courts to restrict speech when the government thinks the speech will cause danger (used in the 1950’s) - the right of the speaker v. the the harm the speaker proposed

Incitement Test: used by the courts to determine whether to restrict or punish expression based on its potential to cause unlawful behavior (gives the speaker greater protection than the clear present danger test)

Hate Speech Hate Speech: bigoted speech attacking a social or ethnic group or member of the group http://www.youtube.com/watch?v=K_PkYUK3EHs http://www.youtube.com/watch?v=hBlg2e5EAZk http://www.youtube.com/watch?v=50r0CnKq7_k

Hate Speech Supporters of punishment for hate speech… - argue that it has lastly impacts for victims - can amount to fighting words and cause violence Against punishment for hate speech… - it allows government censorship

Time, Place, and Manner Restrictions • There are laws that regulate when, where, and how a speech is allowed • EX: Do you need a permit? Have to be in a public place? Limit where posters can be displayed? Public Forum: any place, such as a park or street, where people are generally open to freedom of expression http://www.youtube.com/watch?v=jbhVuBlj4Hg&feature=related

Symbolic Speech Symbolic Speech: Conduct that expresses an idea (sit ins, demonstrations, flag waving) - to punish someone for symbolic speech the government must show good reason, not just that they didn’t agree

Vagueness and Overinclusive Laws • Laws governing free speech must be clear and specific • Vagueness: no clear or specific http://www.youtube.com/watch?v=CL_IZeKw5qU&feature=related http://www.youtube.com/watch?v=2lcXxL4mnp0

DISCUSSION Small Group Discussions: Censorship

Chapter 36: Introduction to Constitutional Law