Rights to life, liberty and property

1. Chapter 17 Rights to life, liberty and property

2. Citizenship Rights • When are they granted? • 1868-14th Amendment-prior to this, each state determined citizenship • Includes various territories such as Guam, Puerto Rico • Does not include those born to foreign ambassadors

3. NATURALIZATION • A legal action conferring citizenship on an alien • Lawfully admitted aliens, 18+ and living in the U.S. for minimum of 5 years • Any state /federal court or INS can naturalize

4. DUAL CITIZENSHIP • Common for those who are from nations that do not allow right of expatriation(renouncing of citizenship) to one’s citizens • Children born abroad to U.S. citizens or children born in U.S. to citizens of a foreign nation

5. Rights of American Citizens • Slaughter-House Cases(1873)-privileges of U.S. citizens and those of state citizens • Court held that Federal gov only owed privileges in the Constitution or federal laws-to vote, to travel, to assemble • Exceptions always in times of war to guarantees of citizenship

6. Right to live and travel in U.S. • Can’t be limited by Congress, everyone wants to live in the U.S. but only citizens cannot be denied

7. Right to travel abroad • Can be regulated within due process • Currently must have passport • Travel to Cuba prohibited unless special permission is granted

8. Rights of Aliens • Constitution protects rights of all persons so can’t deny the right of freedom of religion, speech, can’t be denied due process of law or equal protection under law(unless “enemy combatants” • Can exclude from welfare, etc., but not from emergency medical care, disaster relief, nutrition programs or public education(Plyler v. Doe 1982)

9. Admission to the U.S. • Congress regulates • Immigration Act 1965-sets annual ceilings of non-refugee aliens, limits on refugee aliens, limits from specific nations

10. Property Rights • Framers stress that part of the role of government is to protect the right to property ownership and to enjoy the ownership of that property

11. Property rights; Police Powers • Contract Clause-protects the agreements between individuals or businesses from intervention of government • Discarded over time; Supreme court states these can be modified by state law to avert social and economic catastrophe • Thus, establishing police power-inherent power of state to protect the public health, safety and welfare

12. Property Rights

13. Government Taking of Property • State and national have eminent domain power-taking of property for public use, with just compensation-5th Amendment • Regulatory taking: government regulation of property so extensive that gov is deemed to have gone too far in taking property, must reimburse losses • Government may regulate use of land without taking it and without compensation

14. Due Process Rights • What is meant by due process? • No fixed definition-rules and regulations that restrain government officials in the exercise of their power

15. Procedural and SubstantiveDue Process • Procedural Due Process-government must follow proper methods in how it applies the law or uses its power • Substantive Due Process-requirement that government act reasonably and that the substance of the laws themselves be fair and reasonable; places limits on what a government may do: contents of the law

16. Privacy Rights • Abortion rights • Sexual orientation rights

17. Abortion Rights • 1. Supreme Court ruling in Roe v. Wade (1973) • 2. Planned Parenthood v. Casey -Rehnquist court upheld the view that due process clauses of the Constitution protect a woman’s liberty to choose an abortion prior to viability • …however laws that restrict this liberty are ok unless they place an “undue burden” on the woman 3. Stenberg v. Carhart-Court strikes down a Nebraska law that prohibits partial birth abortion

18. Carhart v. Gonzales (2003)-Robert’s Court decides that Congress’ law banning partial birth abortion does not place undue burden on a woman’s liberty to seek abortion

19. Sexual Orientation Rights • 1986-Court refuses to extend any protection to relations among homosexuals NOTE: Privacy, as substantive due process, still developing in con law In Boy Scouts of America v. Dale-boy scouts could deny scout leadership to homosexuals based on right to associate/assemble as freedom of expression

20. Gender Rights

21. Rights of the Accused • Freedom from Unreasonable Searches and Seizures • Exclusionary Rule • Rights to Remain Silent • The Miranda Warning • Fair Trial Procedures • Right to Counsel • Indictment • Trial Sentencing and Punishment Double Jeopardy Three Strikes and You’re Out The Death Penalty

22. Rights of persons accused of crimes • Fourth Amendment Protection from unreasonable search and seizures • Seizures given less protection • The Constitution only forbids “unreasonable” search and seizures

23. Fourth Amendment and Search and Seizure • Warrantless search and seizure- • Automobile exception • The Terry exception • Searches subsequent to a valid arrest • Consent • Border searches • Plain view exception • Exigent circumstances • Foreign agents

24. “Unreasonable” search and seizure • Outside of the exception in previous list, search and seizure must accompany a valid search warrant • Constitutional requirements for a Constitutionally acceptable search • Must describe the place to be searches • Must describe what things are to be seized

25. The Exclusionary Rule • Mapp v. Ohio (1961)-evidence obtained illegally can’t be used as evidence in a criminal trial as part of the main case against persons from whom it was seized • Purpose: to prevent police misconduct • Establishes the exclusionary rule but applies only to person the evidence was seized from

26. Right to Remain Silent • Fifth Amendment protection against self-incrimination • Grant of immunity-authorities want information rather that prosecution so grant immunity and therefore witness no longer can claim fifth since there will be no need to protect one’s self.

27. Miranda Warning • Miranda v. Arizona ((1966)-no conviction could stand if evidence had been obtained by police during “custodial interrogation” unless… • Notified that they are free to remain silent • Warned that what they say may be used against them in court • Told that they have a right to have counsel present during questioning • Permitted to terminate investigation at any time

28. Criticisms of the Miranda Rule • Fugitives from justice go free unnecessarily

29. Fair Trial Procedures • Preliminary hearing and right to counsel • 1. Judges have an obligation to ensure that all persons subject to custodial interrogation are represented by lawyers • 2. Right to counsel extends to all hearings for all offenses for which an accused could be deprived of liberty

30. The Indictment • 1.Grand jury indictment is necessary in order to require anyone to stand trial for a serious crime • 2. Jurors determine if enough evidence to charge • 3. If they issue indictment they feel evidence warrants a trial

31. Indictment continued • 4. Constitution guarantees the accused the right to be informed of the nature and cause of the accusation so that a defense may be prepared • 4. Plea bargaining-pleading guilty to a lesser offense in return for not having to go to trial for a more serious charge(90% of cases)

32. Trial • 1. obligation to give a speedy and public trial • 2. impartial jury-requirements of due process and equal protection = persons that are a cross section of community • 3. Preemptory challenges cannot be used to keep people off juries based on race, ethnic origin or sex • 4.defendant has right to obtain own witnesses; if no fifth is pleaded must allow cross-examination 5. Right to confront witnesses

33. The sentencing and the punishment • 1. Eighth Amendment forbids levying of fines and inflicting of cruel and unusual punishment • 2. federal court judges must follow sentencing guidelines as set down by the U.S. Sentencing Commission

34. The Death Penalty • Court halts capital punishment until states could administer it in “consistent fashion” • Since reinstatement in 1976, _____ executed and more that ______ are on death row. • Fifteen members of EU have outlawed death penalty • Growing concern over fairness of death penalty, 2/3 or all death sentences overturned, releases after DNA technology

35. Three Strikes and You’re Out • Public concern about crime is up, need for “toughness” • Scholars skeptical about three strikes idea, not sure it will cut crime

36. Appeals and Double Jeopardy • Fifth Amendment prevents individual from being tried again(if found innocent) • Can still be tried by both federal and state governments for the same crime(or by two states) • Double jeopardy does not forbid civil prosecution after acquittal in a criminal trial

37. Is Our System Really Just? • Too many loopholes • Too unreliable • Too discriminatory • Unfair to minorities

38. How Just is our Justice System • Too many loopholes? • Overprotect the innocent and put too much burden on the government—criminals go unpunished • Others argue that each stem in administration of criminal laws has been constructed to protect against particular abuses

39. Too Unreliable? • Trial by jury is the problem. Jury system allows for nullification and unpopular verdicts have led to state laws regarding jury system • Opposite this argument is that the jury system is good and provides a check on the actions of judges and prosecutors, does not systematically differ from those of judges, educates citizens

40. Too discriminatory? • Supreme Court has worked hard to enforce ideal of equal justice under the law • Poor people must have attorneys, not be imprisoned if can’t afford fines • Even civil cases, like divorce, discriminatory fees are banned

41. Unfair to Minorities • Tension exists between police and African American and Hispanic communities in the ghettos and barrios of large cities (California study) • Blacks consider the police to be enforcers of white law; there is an element of racial prejudice in police shooting at minorities • Action has been taken to recruit more minorities into polcie force