Law and Society

1. Law and Society Chapter 6: Constitutional Law CJUS/POLS 102

2. Constitutional Law • Constitutionalism - fundamental law / set of principles - impose limits on government power - cornerstone for relationships a. Constitution and amendments - basis of rights / liberties (1) Clarifies our freedoms (2) Complex evolution (1789)

3. Constitution b. Foundation for government - defines organization - three branches established - powers of federal government - limits government power (1) Declaration of Independence - 11 years before Constitution (2) First ten amendments - concerns about Constitution

4. Constitution (3) Role of US Supreme Court - Marbury vs. Madison - decided in federal court c. Regulates relationship - between government / governed (1) Private entity - cannot violate Constitution - example: Ken Bearing - violated state law

5. Constitution (2) Intent of Constitution - define powers of federal government (a) State powers were limited - function of nation - union of states (b) Bill of Rights (adoption) - applied only to federal level - 1864: 14th Amendment

6. Constitution - 100 years to comply (c) 5th / 14th Amendments - federal due process - all Americans (3) Supreme law of the land - ‘Doctrine of Supremacy’ • Constitutional issues

7. Constitution - protect inalienable rights - issues protected a. Affirmative action - designed to remedy discrimination - gender / minority status / physical ability - education / employment / benefits / etc. (1) Programs determined constitutional - minority status - California voters

8. Constitution (2) Use by government / private business - contract with feds b. Discrimination - makes distinction - limits rights / privileges - based on inclusion in protected class (1) Against the disabled - not actually a member of that class

9. Constitution - may still be protected - if perceived to belong (2) Americans with Disabilities Act (1990) - increased equal protection - school / housing / employment (a) Include over-weight people (b) Elderly also considered - limited in working rights

10. Constitution c. Eminent Domain - right of government / others - take land for public purpose (1) Government must compensate - for taking the land (2) May be required to compensate - when activities amount to a taking - not allow logging near water - not allow building on wetlands

11. Constitution (a) City government - take land - sell to developer - show for public good (3) Condemnation - transfer title - from rightful owner to self (4) Easement - right to cross land

12. Constitution d. Voting rights - guaranteed to all qualified Americans - 14th / 19th Amendments (1) Voting Rights Act (1965) - enacted to protect African-Americans - ensure right to vote (2) Eliminated literacy tests - other obstacles - created to discourage minority voting

13. Constitution • Rights to be familiar with: a. Freedom of Information - right to obtain information - without undue restrictions (1) Different form of freedom - requires government action - make information available (2) Based on premise:

14. Constitution - access to government information - functions fairly / openly (a) CIA / NSA / Homeland Security - protected (3) Does not refer to duty - Congress required to keep journal - Congressional Report

15. Constitution (a) State of the Union Address - given each year (b) 5th Amendment - trials open to public (4) 2 types of information (FOI) (a) What government has done / doing - environmental studies / recalls - FCC licenses / etc.

16. Constitution (b) Info government has recorded on person requesting - federal job application - federal employee - arrested by federal agency (5) Right to Privacy Act - also access government files (a) Correct / delete information - inaccurate / irrelevant

17. Constitution (b) Several differences - who can access / what info - file under both statutes (6) Not all info accessible - congress / courts / certain executive offices exempt (a) Agencies not exempt - need not reveal certain info

18. Constitution - trade secrets / national security - internal rules / memos - law enforcement records on private individuals (b) Receive government report - part blacked out (7) “Agency documents” - written material / photographs - computer tapes / data bases

19. Constitution - controls if authority to dispose of it (8) Time limit - must decide within 10 working days - to comply or not (a) Deny request - right to administrative appeal - 20 days to respond (b) Denial upheld

20. Constitution - appeal in federal court - “exceptional circumstances” • Freedom of Religion - 360,000 places of worship - 1500 religious bodies / sects - 63% identify with religion a. 1st Amendment - prohibits government - from making laws:

21. Constitution - “respecting an establishment of religion or prohibiting the free exercise thereof” - two basic components (1) Establishment Clause - prevents giving special status (a) Prevent government sponsored religion (b) Unique: forefathers were Protestant

22. Constitution (2) Free Exercise Clause - prevent from unreasonably interfering - exercise of religious beliefs (3) US Supreme Court - separation of church / state - 3-part test (a) Action has a religious purpose? - history of religion class in school - theology class in school

23. Constitution (b) Primary effect to advance religion? - funding for religious seminars - free rent to churches (c) Promote “excessive entanglement”? - funding to churches (federal grants for children) (d) Answer = “yes” - violates establishment clause - constitutional violation

24. Constitution (4) Role of religion - continual litigation - activity that forces / encourages - students / teachers to participate - unconstitutional (school prayer) (a) Government funds - benefits religious / secular - math / history books (b) Giving credits = court litigation

25. Constitution b. Issue of school prayer - mandatory: unconstitutional - voluntary: constitutional (1) Unconstitutional restriction: free speech - how to accommodate - groups who wish to engage - cannot promote / encourage (2) Right to hold belief = absolute - FEC: not protect all practices

26. Constitution (a) Sincere religious belief - Santeria Church - Supreme Court ruling c. Religious protection - not just traditional denominations - no belief in god / other supreme being (1) Refrained from exact definition - sincere / meaningful belief - important to believer

27. Constitution (2) Belief probably false - sincere = a religion (a) Supernatural powers to heal - constitutionally protected - sincerely held belief • Freedom of speech a. Not limited to spoken word - written communication / symbolic conduct

28. Constitution - t-shirt / silent behavior / burning flag (1) Not all speech protected - nature of speech - obscenity vs. political - incites others to violence (a) Forum - rally in park - fewer restrictions - city-owned building

29. Constitution (b) Military installation - private property (2) Restrictions: time / place / manner - reasonable opportunity for expression (a) Field across from governor’s house - vs. lawn of house (b) Bullhorns - not to exceed certain decibels

30. Constitution (3) Protects right to peaceably assemble - cannot prevent others from listening (a) Restriction does not serve a: - “compelling government interest” - unconstitutional • Grand Jury - 5th Amendment - information vs. indictment - accusatory documents (charging)

31. Constitution a. Two functions: (1) Indictment process - listening to evidence - determine if crime occurred (2) Investigate criminal activity - private / public figures b. Enough evidence to charge - do not determine guilt or innocence

32. Constitution (1) Prosecutors present evidence - call grand jury together - some are independent (2) Witness not entitled to attorney - cannot enter grand jury room - can advise before / after (3) Proceedings held in private - not open to public / press

33. Constitution - cannot reveal proceedings (4) 12 to 23 jurors - must have quorum • Prisoner rights - do not have same rights - do have certain rights a. Due process - decisions that discipline

34. Constitution - classification / restrictions on liberties (1) Transfer to mental institution - right to hearing - to other prison – no right b. Right to property - loss / due compensation c. Right to privacy - limited

35. Constitution d. Writ of habeas corpus - claim rights violated - brought before court e. 8th Amendment - cruel and unusual punishment - prison conditions (1) Freedom of religion (2) Freedom of information

36. Constitution • Search and seizure - 4th Amendment - unreasonable - person / property a. Court involvement in illegal seizures (1) Stops a person - restrict their movement (a) Need “reasonable suspicion”

37. Constitution (b) To make an arrest - “probable cause” (c) With arrest: - right to search person - remove all property (d) Search motor vehicle - arrest of any person - all unlocked areas / containers - no warrant / no permission

38. Constitution (e) Arrest in home - search person - search within arm’s reach (2) Not allowed unless: - search warrant / arrest - permission of individual with authority - granting valid consent: (a) Roommate for common areas - not roommate’s personal area

39. Constitution (b) Parents for child under 18 - unless emancipated / pays (c) School principal - cannot search at police request - can search on school policy (d) Landlord - cannot allow without permission - give reasonable notice to enter - emergency entry different

40. Constitution (3) Burden of proof - police must show reasonable belief - person involved (a) “Totality of circumstances” - required for warrants - both search / arrest (b) “Exceptional circumstances” - to protect the public - “hot pursuit”

41. Constitution b. Right not to incriminate - 5th Amendment (1) Does not apply to: - blood - urine - handwriting (2) Court order - may be required - blood / urine

42. Constitution • Government responsibility - tells government what it can / cannot do - laws cannot be retroactive (ex post facto) a. Federalism gives power to the people: - initiative: put issue on ballot - referendum: proposal for public vote - recall petition: remove elected officials - voter approval: elected by the public (1) Police powers

43. Constitution - 10th Amendment - enact / enforce laws of state - both state / local government (a) Limited by constitutions - federal has specific functions - impacts country as a whole (b) Interstate transportation / banking / Native American affairs / etc.

44. Constitution (2) Taxes - applied at all levels - pay for operations of government (a) Congress: “Power to lay (collect) taxes, duties, imposts, and excises” (b) State / county / city / PUD (3) Commerce clause - anything to effect interstate commerce

45. Constitution - “The Congress shall have the power . . . To regulate Commerce with foreign Nations and among the several States and with Indian Tribes” (a) Interstate transportation - activity crossing state borders (b) Intrastate transportation - occurs within a state’s borders

46. Constitution (c) Congress can control intrastate transportation - but it is limited • Bill of Rights - first Ten Amendments - applied only to the federal government a. US Supreme Court interprets Constitution - “due process” / “equal protection” - Incorporation Doctrine (individual rights)

47. Constitution (1) First Amendment (a) Freedom of Speech - verbal/written/symbolic/conduct (b) Freedom of the Press - papers / magazines / agendas (c) Freedom of Religion - right to choose /practice /believe (d) Right to Petition

48. Constitution - redress of grievances (2) Second Amendment - keep and to bear arms (3) Third Amendment - forbids quartering of soldiers (4) Fourth Amendment - right to privacy - unreasonable search / seizure

49. Constitution (5) Fifth Amendment - indictments by grand jury - forbids self-incrimination - forbids trying a person twice - requires due process (6) Sixth Amendment - right to counsel - speedy / public trial / impartial jury - confront witnesses - present witnesses

50. Constitution (7) Seventh Amendment - jury trial in civil suits - right to sue for violation of civil rights (8) Eighth Amendment - forbids excessive bail / punishment (9) Ninth Amendment - other rights retained - though not listed