Presentation Transcript

1. UNDERSTANDING THE CONSTITUTION Making It Work for You by Knowing What It Does & Does Not Mean
2. The United States Constitution DOES NOT Provide Rights to US Citizens
3. The United States Constitution Serves Two Purposes
4. 1) It provides the framework for our federal government. Article I – The Legislative Branch Article II – The Executive Branch Article III – The Judicial Branch
5. Article IV – The relationship between the federal government & the states as well as the relationship between the individual states Article V – Amending the Constitution Article VI – Establishes the Constitution as the Supreme Law of the land and forbids any religion tests for holding office Article VII – Established that 9 of the original 13 states had to ratify the Constitution in order for it to take effect
6. 2) It limits the power of the federal government. • Congress has only the power granted to it under Article One • The Executive Branch has only the power granted to it under Article Two • The Judicial Branch has only the power granted to it under Article Three • Congress can’t change the Constitution without ratification by the states
7. What about the Bill of Rights It does not grant rights either (other than the 6th & 7th Amendments). It recognizes rights that we already possess and prohibits the government from infringing on them. 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. (1st Amendment, emphasis added)
8. 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. (2nd Amendment, emphasis added) 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 (4th Amendment, emphasis added)
9. My Personal Favorite - The 10th amendment 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.
10. As stated earlier, in order to change the Constitution, the government must follow the amendment process outlined in Article V. HOWEVER Some would argue that the Supreme Court changes the Constitution on a regular basis without the permission of either Congress or the states
11. Where does the Constitution say that the Supreme Court has the power to interpret the Constitution and declare laws either constitutional or unconstitutional?
12. The Closest Explicit Language is From Article III Section 2 The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
13. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
14. So from where does this power come? Marbury v. Madison, 5 U.S. 137 (1803)
15. The landmark United States Supreme Court case in which the Court formed the basis for the exercise of judicial review under Article III of the Constitution. In deciding the case, the court struck down the Judiciary Act of 1789 as being unconstitutional. For the first time, the Supreme Court used the self-given power of Judicial Review to declare a law enacted by a legislature (Congress) unconstitutional. In defending the right of Judicial Review, Marshall relied on the oath a judge took to uphold the Constitution. The Supremacy Clause of the Constitution makes it the highest law in the land.
16. “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” Marbury v. Madison
17. Not everyone agreed with this interpretation of Article III You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. -Thomas Jefferson (In a letter to William Jarvis, 1820)
18. Why Is This Important to Us? Because of this principal of Judicial Review, when we are challenging a law based upon the Constitution, it is not enough to simply read the Constitution. We must look to see what the case law says as well. This is true for both the U.S. Constitution & State Constitutions.
19. Let’s Explore Some of Our Helpful & Not So HelpfulAreas of the Constitution
20. THE EQUAL PROTECTION CLAUSE OFTHE 14TH AMENDMENT All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
21. If the law must treat everyone equal, we should be able to use the Equal Protection clause to Attack Mandatory Helmet Laws Attack Motorcycle Only Checkpoints Attack No Colors Policies at Bars & Restaurants The Equal Protection Clause Prohibits Discrimination Right?
22. Not So Fast My Friend As interpreted by the US Supreme Court, the Equal Protection Clause Neither Prohibits Discrimination Nor Demands Everyone Be Treated Equally
23. The Court has constructed a three tiered method in analyzing Equal Protection Violations: If the person or group alleging a violation is of a suspect class (race, religion, ethnicity), or burdens a fundamental right (voting, marriage, access to courts) then the law complained of receives strict scrutiny, meaning the government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest. If the person or group is complaining based upon Gender or illegitimacy then government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest. This is heightened scrutiny.
24. Then there is the rest(which includes most of our issues) If the law deals with most other areas then the court will give the law minimal scrutiny. The government need only show that the challenged classification is rationally related to serving a legitimate state interest. The government need not show that the law is working or even wise. It need only show that it is rationally related to serving a legitimate state interest. Such as Highway Safety
25. Are mandatory helmet laws rationally related to highway safety? Yes. Are motorcycle only checkpoints rationally related to highway safety? Yes. Does discrimination violate the Equal Protection Clause? Not if it is not against a protected class. What about No Colors Policies in Bars and Restaurants? The Equal Protection Clause only applies to the government, not to the private owner of a bar or restaurant. Then why can’t a private bar owner discriminate based on race? That is not based on the Equal Protection Clause; it is based on the Civil rights Act which was passed via the Commerce Clause.
26. If the Equal Protection Clause is not very helpful what is? The Void for Vagueness Doctrine Preemption First Amendment
27. VOID FOR VAGUENESS DOCTRINE This doctrine comes from the Due Process Clause of the 5th and 14th Amendments to the U. S. Constitution. It requires criminal laws to be drafted in language that is clear enough for the average person to comprehend. If a person of ordinary intelligence cannot determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed under a particular law, then the law will be deemed unconstitutionally vague.
28. Use of Void for Vagueness in Helmet Cases Virginia’s Helmet Law Every person operating a motorcycle shall wear a face shield, safety glasses or goggles, or have his motorcycle equipped with safety glass or a windshield at all times while operating the vehicle, and operators and any passengers thereon shall wear protective helmets. Operators and passengers riding on motorcycles with wheels of eight inches or less in diameter or in three-wheeled motorcycles which have non-removable roofs, windshields and enclosed bodies shall not be required to wear protective helmets. The windshields face shields, glasses or goggles, and protective helmets required by this section shall meet or exceed the standards and specifications of the Snell Memorial Foundation, the American National Standards Institute, Inc., or the federal Department of Transportation.
29. North Carolina Helmet Law (a) No person shall operate a motorcycle or moped upon a highway or public vehicular area: (1) When the number of persons upon such motorcycle or moped, including the operator, shall exceed the number of persons which it was designed to carry. (2) Unless the operator and all passengers thereon wear on their heads, with a retention strap properly secured, safety helmets of a type that complies with Federal Motor Vehicle Safety Standard (FMVSS) 218.
30. No Colors in Bars & Restaurants I believe that many of these policies can be challenged as being unconstitutionally vague. However it is not the motorcyclist who was kept out who has the right to challenge. It is the bar owner who has had the threat of losing their liquor license placed upon them by an unconstitutionally vague law. The motorcyclist has no standing to sue.
31. Standing Standing is the name of the federal law doctrine that focuses on whether a person can show that some personal legal interest has been invaded by the defendant. It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute. The person must have a personal stake in the outcome of the controversy.
32. VIRGINIA STATUTE § 4.1-225. Grounds for which Board may suspend or revoke licenses. The Board may suspend or revoke any license other than a brewery license, in which case the Board may impose penalties as provided in § 4.1-227, if it has reasonable cause to believe that: g. Has maintained the licensed premises in an unsanitary condition, or allowed such premises to become a meeting place or rendezvous for members of a criminal street gang as defined in § 18.2-46.1 or persons of ill repute, or has allowed any form of illegal gambling to take place upon such premises;
33. § 18.2-46.1 § 18.2-46.1. Definitions. As used in this article unless the context requires otherwise or it is otherwise provided: "Act of violence" means those felony offenses described in subsection A of § 19.2-297.1. "Criminal street gang" means any ongoing organization, association, or group of three or more persons, whether formal or informal, (i) which has as one of its primary objectives or activities the commission of one or more criminal activities; (ii) which has an identifiable name or identifying sign or symbol; and (iii) whose members individually or collectively have engaged in the commission of, attempt to commit, conspiracy to commit, or solicitation of two or more predicate criminal acts, at least one of which is an act of violence, provided such acts were not part of a common act or transaction.
34. "Predicate criminal act" means (i) an act of violence; (ii) any violation of § 18.2-31, 18.2-42, 18.2-46.3, 18.2-51, 18.2-51.1, 18.2-51.2, 18.2-51.3, 18.2-51.6, 18.2-52, 18.2-52.1, 18.2-53, 18.2-53.1, 18.2-55, 18.2-56.1, 18.2-57, 18.2-57.2, 18.2-59, 18.2-83, 18.2-89, 18.2-90, 18.2-95, 18.2-108.1, 18.2-121, 18.2-127, 18.2-128, 18.2-137, 18.2-138, 18.2-146, 18.2-147, 18.2-248.01, 18.2-248.03, 18.2-255, 18.2-255.2, 18.2-279, 18.2-282.1, 18.2-286.1, 18.2-287.4, 18.2-289, 18.2-300, 18.2-308.1, 18.2-308.2, 18.2-308.2:01, 18.2-308.4, 18.2-355, 18.2-356, or 18.2-357; (iii) a felony violation of § 18.2-60.3 or 18.2-248.1:1; (iv) a felony violation of § 18.2-248 or of 18.2-248.1 or a conspiracy to commit a felony violation of § 18.2-248 or 18.2-248.1; (v) any violation of a local ordinance adopted pursuant to § 15.2-1812.2; or (vi) any substantially similar offense under the laws of another state or territory of the United States, the District of Columbia, or the United States.
35. So how does the owner of a restaurant know who is a member of a criminal street gang? They are forced to rely on the police. One of the key provisions of the void for vagueness doctrine is that a penal statute can’t give law enforcement unfettered discretion as to whether the statute has been violated.
36. Myrtle Beach & Improper Acceleration SECTION 56-5-2110. Starting of a vehicle. No person shall start a vehicle which is stopped, standing or parked unless and until such movement can be made with reasonable safety.
37. PREEMPTION AAKJER III v. CITY OF MYRTLE BEACH To determine the validity of a local ordinance, this Court's inquiry is twofold: (1) did the local government have the power to enact the local ordinance, and if so (2) is the ordinance consistent with the constitution and general law of this State. An ordinance is preempted under implied field preemption when the state statutory scheme so thoroughly and pervasively covers the subject as to occupy the field or when the subject mandates statewide uniformity.
38. Court’s Decision Riders opting not to wear helmets or eyewear in other areas of the state would be obliged to carry the equipment with them if they intended to pass through a city with a helmet ordinance. Moreover, local authorities might enact ordinances imposing additional and even conflicting equipment requirements. Such burdens would unduly limit a citizen's freedom of movement throughout the State. Consequently, the Helmet Ordinance must fail under the doctrine of implied preemption.
39. First Amendment Prohibits the government from abridging rights – not private individuals.
40. Cohen v. California (1971) “One man’s vulgarity is another’s lyric”
41. Spence v. Washington (1974) Expressive conduct gets first amendment protection when 1) There is an intent to convey a particular message, and 2) There is a great likelihood that the message would be understood.
42. Sammartano v. First Judicial District Court in and For the County of Carson City 9th Cir. (2002) & Villegas v. Gilroy Garlic Festival Association 9th Cir. (2008) & Pagans, MC v. New Jersey 3rd Cir. (Currently in Litigation)
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