Bill of Rights Bill of Rights David L. Hudson Jr. – David L. Hudson Jr. –

First Amendment Center First Amendment Center http://www.davidlhudsonjrbooks.com

First 10 Amendments to the First 10 Amendments to the Constitution Constitution

Added in December 1791 Added in December 1791

Battle between Federalists and Anti-Battle between Federalists and Anti-federalists … James Madison called federalists … James Madison called Father of the Bill of Rights because he Father of the Bill of Rights because he used the Bill of Rights to save the used the Bill of Rights to save the Constitution. Constitution.

State Action State Action

““Congress shall make no law …” Congress shall make no law …”

Applies to government (federal, state or Applies to government (federal, state or local) local)

Public school qualifies; private school Public school qualifies; private school does notdoes not

First Amendment First Amendment

““Congress shall make no law respecting Congress shall make no law respecting an an establishment of religionestablishment of religion or or prohibiting the prohibiting the free exercisefree exercise thereof; or thereof; or abridging the abridging the freedom of speechfreedom of speech, or of , or of the the presspress; or the right of the people ; or the right of the people peaceably to assemblepeaceably to assemble and to and to petition petition thethe governmentgovernment for a redress of for a redress of grievances.” grievances.”

First Amendment Freedoms First Amendment Freedoms

Religion Religion

Establishment Clause Establishment Clause

Free Exercise Clause Free Exercise Clause

Speech Speech

Press Press

Assembly Assembly

Petition Petition

Freedom of Religion Freedom of Religion

Establishment Clause --- provides for Establishment Clause --- provides for degree of separation between church and degree of separation between church and state; we just can’t agree on how much state; we just can’t agree on how much separation separation

Free Exercise Clause – protects person’s Free Exercise Clause – protects person’s rights to freely practice religion … but what rights to freely practice religion … but what if person’s religion conflicts with generally if person’s religion conflicts with generally applicable law applicable law

Freedom of Religion (cont.)Freedom of Religion (cont.)

Establishment Clause Establishment Clause

– What about school-sponsored prayer? What about school-sponsored prayer? Moment of silence laws? Prayer at high Moment of silence laws? Prayer at high school football games? Teachers wearing school football games? Teachers wearing religious jewelry? What about the posting of religious jewelry? What about the posting of the Ten Commandments on government the Ten Commandments on government property? property?

Other Establishment Clause Other Establishment Clause issuesissues

Bible clubs at schools – Equal Access Act Bible clubs at schools – Equal Access Act

Religious music at school concerts Religious music at school concerts

Faculty leading students in prayer at Faculty leading students in prayer at meetings meetings

Different InterpretationsDifferent Interpretations

See p. 203-204 See p. 203-204

Broad interpretation Broad interpretation

Narrow interpretation Narrow interpretation

Literal interpretation Literal interpretation

Freedom of Speech Freedom of Speech

Applies to more than just spoken word (certain Applies to more than just spoken word (certain forms of symbolic speech) forms of symbolic speech) Not all types of speech are protected (obscenity, Not all types of speech are protected (obscenity, perjury, incitement to imminent lawless action) perjury, incitement to imminent lawless action) Not all forms of speech – even those that are Not all forms of speech – even those that are protected – are treated the same (political protected – are treated the same (political speech favored over commercial speech) speech favored over commercial speech) Speech protection depends on context (school, Speech protection depends on context (school, military, employment, prison – reduced level of military, employment, prison – reduced level of free-speech protection) free-speech protection)

Justifications for free speech Justifications for free speech

See p. 208 See p. 208

Individual self-fulfillmentIndividual self-fulfillment

Democratic self-governance Democratic self-governance

Safety valve Safety valve

Essential for protection of all other rights Essential for protection of all other rights

Most fundamental free-speech Most fundamental free-speech principle principle

No viewpoint discrimination (Tinker black No viewpoint discrimination (Tinker black armband case) armband case)

No content discrimination No content discrimination

No vagueness or overbreadth No vagueness or overbreadth

When is a law vague? When is a law vague?

When people don’t know the meaning of a When people don’t know the meaning of a law? law?

Fear of arbitrary enforcement Fear of arbitrary enforcement

People deserve notice People deserve notice

When is a law too broad? When is a law too broad?

See p. 212 See p. 212

When law sweeps too broadly … “banning When law sweeps too broadly … “banning all political protests” all political protests”

Freedom of the Press Freedom of the Press

Historically served as an additional check Historically served as an additional check upon the government (called the fourth upon the government (called the fourth estate- check the other three branches of estate- check the other three branches of government) government)

No prior restraints (or very few) – gov. No prior restraints (or very few) – gov. can’t license the press can’t license the press Even libel laws must comport with the First Even libel laws must comport with the First Amendment Amendment

Assembly Assembly

Essential to women’s suffrage movement Essential to women’s suffrage movement and the civil rights movement and the civil rights movement

Focus on word “peaceably” Focus on word “peaceably”

Question of free-speech zonesQuestion of free-speech zones

Petition Petition

Deep historical roots Deep historical roots

Magna Carta Magna Carta

Declaration of Independence Declaration of Independence

Second Amendment Second Amendment

““A well regulated militia, being necessary A well regulated militia, being necessary to the security of a free state, the right of to the security of a free state, the right of the people to keep and bear Arms, shall the people to keep and bear Arms, shall not be infringed.” not be infringed.”

Individual or collective right Individual or collective right – (Scalia’s decision in Heller --- individual right) (Scalia’s decision in Heller --- individual right)

Bill of Rights Bill of Rights

Much of the Bill of Rights deals with Much of the Bill of Rights deals with protections for those accused of crimes. protections for those accused of crimes.

Fourth Amendment Fourth Amendment

Fifth Amendment Fifth Amendment

Sixth Amendment Sixth Amendment

Eighth Amendment Eighth Amendment

Fourth Amendment Fourth Amendment

““The right of the people to be secure in The right of the people to be secure in their persons, houses, papers and effects, their persons, houses, papers and effects, against against unreasonable searches and unreasonable searches and seizuresseizures, shall not be violated, and no , shall not be violated, and no WarrantsWarrants shall issue, but upon shall issue, but upon probable probable causecause, supported by Oath or affirmation, , supported by Oath or affirmation, and and particularly describingparticularly describing the place to the place to be searched, and the persons or things to be searched, and the persons or things to be seized.” be seized.”

When is a Search “Reasonable” When is a Search “Reasonable”

A warrant backed up by A warrant backed up by probable cause; probable cause;

Conduct that does not violate a Conduct that does not violate a defendant’s “reasonable expectation of defendant’s “reasonable expectation of privacy.” privacy.”

Reasonable Expectation of Privacy Reasonable Expectation of Privacy

Katz v. United StatesKatz v. United States (1967) (1967)

Reasonable expectation of privacy test: (1) Reasonable expectation of privacy test: (1) Did the defendant have an actual, Did the defendant have an actual, subjective expectation of privacy; (2) Does subjective expectation of privacy; (2) Does society regard this expectation of privacy society regard this expectation of privacy as objectively reasonable?as objectively reasonable?

Exceptions to the Warrant Exceptions to the Warrant Requirement Requirement

Plain View doctrine: Rationale of "plain-Plain View doctrine: Rationale of "plain-view" doctrine is that if contraband is left in view" doctrine is that if contraband is left in open view and is observed by police open view and is observed by police officer from lawful vantage point, there has officer from lawful vantage point, there has been no invasion of legitimate expectation been no invasion of legitimate expectation of privacy and thus no "search" within of privacy and thus no "search" within meaning of the Fourth Amendment. meaning of the Fourth Amendment.

Probable Cause Probable Cause

Text (p. 226): “Probable cause is defined as Text (p. 226): “Probable cause is defined as more than mere suspicion.” more than mere suspicion.”

The task of the issuing magistrate is simply to The task of the issuing magistrate is simply to make a make a practical, common-sense decisionpractical, common-sense decision whether, given all the circumstances set forth in whether, given all the circumstances set forth in the affidavit before him, including the "veracity" the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying and "basis of knowledge" of persons supplying hearsay information, there is a hearsay information, there is a fair probability fair probability that contraband or evidence of a crime will that contraband or evidence of a crime will be found in a particular placebe found in a particular place.”.”

What If There is a Fourth What If There is a Fourth Amendment Violation?Amendment Violation?

The exclusionary rule – material searched The exclusionary rule – material searched and seized in violation of the Fourth and seized in violation of the Fourth Amendment is suppressed. Justice Amendment is suppressed. Justice Benjamin Cardozo famously described it Benjamin Cardozo famously described it as “as “the criminal goes free because the the criminal goes free because the constable has blunderedconstable has blundered.”.”

Why Have the Exclusionary Why Have the Exclusionary Rule? Rule?

To compel respect for the constitutional To compel respect for the constitutional guaranty in the only effectively available guaranty in the only effectively available way – by removing the incentive to way – by removing the incentive to disregard it.” (Text – p. 226-228) disregard it.” (Text – p. 226-228)

Story of Dollree MappStory of Dollree Mapp

See text p. 226-227 See text p. 226-227

Donald King makes a phone call – house Donald King makes a phone call – house contains bomb-making material … instead contains bomb-making material … instead find dirty books find dirty books

Good Faith Exception to the Good Faith Exception to the Exclusionary Rule Exclusionary Rule

The exclusionary rule bars the prosecution The exclusionary rule bars the prosecution from using in its case-in-chief evidence from using in its case-in-chief evidence obtained during a search that violated the obtained during a search that violated the Fourth Amendment.Fourth Amendment. Under the Under the good good faith exceptionfaith exception to the exclusionary rule, to the exclusionary rule, however, that evidence need not be however, that evidence need not be suppressed when police obtain the suppressed when police obtain the evidence through evidence through objective good faithobjective good faith reliance on a facially valid warrant that reliance on a facially valid warrant that later is found to lack probable cause. later is found to lack probable cause.

Fifth Amendment Fifth Amendment

““No person shall be held to answer for a capital, No person shall be held to answer for a capital, or otherwise infamous crime, unless on or otherwise infamous crime, unless on presentment or presentment or indictment of a Grand Juryindictment of a Grand Jury …; …; nor shall any person be subject for the same nor shall any person be subject for the same offence to be offence to be twice put in jeopardytwice put in jeopardy of life or limb; of life or limb; nor shall be compelled in any criminal case to be nor shall be compelled in any criminal case to be a a witness against himselfwitness against himself, nor be deprived of , nor be deprived of life, liberty, or property without life, liberty, or property without due processdue process of of law; nor shall private property be taken for public law; nor shall private property be taken for public use without use without just compensationjust compensation.”.”

Fifth Amendment freedoms Fifth Amendment freedoms

Grand Jury Grand Jury

Double jeopardy Double jeopardy

Self-incrimination (right to remain silent) Self-incrimination (right to remain silent)

Due Process Due Process

Just Compensation (Takings Clause)Just Compensation (Takings Clause)

Grand Jury Grand Jury

Grand jury requirement has not been Grand jury requirement has not been extended to the states. See text at p. 235 extended to the states. See text at p. 235

Body of citizens whose duty consists of Body of citizens whose duty consists of determining whether probable cause determining whether probable cause exists in a criminal case to warrant an exists in a criminal case to warrant an indictment. indictment.

Tennessee Tennessee

Tennessee Rules of Criminal Procedure – Tennessee Rules of Criminal Procedure – http://www.tncourts.gov/OPINIONS/TSC/rules/TNrulesofcourt/crimprocindex.htm

““The criminal information has been used in state The criminal information has been used in state cases under the provisions of § 40-3-101, but cases under the provisions of § 40-3-101, but because the Constitution of Tennessee, Art. 1, because the Constitution of Tennessee, Art. 1, § 14, provides that no person shall be put to § 14, provides that no person shall be put to answer any criminal charge but by presentment, answer any criminal charge but by presentment, indictment or impeachment, its use is limited to indictment or impeachment, its use is limited to those cases in which there is an agreement by those cases in which there is an agreement by the defendant to be bound by its use.” the defendant to be bound by its use.”

Double Jeopardy Double Jeopardy

The underlying idea … is that the State The underlying idea … is that the State with all its resources and power should not with all its resources and power should not be allowed to make repeated attempts to be allowed to make repeated attempts to convict an individual for an alleged convict an individual for an alleged offense, thereby subjecting him to offense, thereby subjecting him to embarrassment, expense, and ordeal … embarrassment, expense, and ordeal … as well as enhancing the possibility that as well as enhancing the possibility that even though innocent he may be found even though innocent he may be found guilty.” guilty.”

Self-Incrimination Self-Incrimination

Taking the Fifth Taking the Fifth

Miranda Warnings: Miranda Warnings: (1) You have the right to remain silent.(1) You have the right to remain silent.(2) Anything you say can be used against you in a (2) Anything you say can be used against you in a

court of law.court of law.(3) You have the right to an attorney and to have (3) You have the right to an attorney and to have

the attorney present during questioning; the attorney present during questioning; (4) If you cannot afford an attorney, one will be (4) If you cannot afford an attorney, one will be

appointed for you before any questioning begins.appointed for you before any questioning begins.

Miranda Not Overruled, But Miranda Not Overruled, But ReaffirmedReaffirmed

Dickerson v. United StatesDickerson v. United States (2000) – (2000) – “Miranda has become embedded in “Miranda has become embedded in routine police practice to the point where routine police practice to the point where the warnings have become part of our the warnings have become part of our national culture.” national culture.”

Due Process Due Process

Two basic types: (1) procedural due Two basic types: (1) procedural due process and (2) substantive due process. process and (2) substantive due process.

Procedural due process – government Procedural due process – government gives a fair process (notice and a hearing)gives a fair process (notice and a hearing)

Substantive due process – underlying law Substantive due process – underlying law is rational and not arbitrary is rational and not arbitrary

Substantive Due Process Substantive Due Process

Rochin v. CaliforniaRochin v. California (1952) – Police (1952) – Police methods that shock the conscience violate methods that shock the conscience violate the due process clause. In the due process clause. In RochinRochin, police , police burst into dude’s bedroom and physically burst into dude’s bedroom and physically assaulted him. They took him to hospital assaulted him. They took him to hospital and had his stomach pumped. and had his stomach pumped.

Sixth Amendment Sixth Amendment

In all criminal prosecutions, the accused shall In all criminal prosecutions, the accused shall enjoy the right to a enjoy the right to a speedy speedy and and public trialpublic trial, by , by an an impartial juryimpartial jury of the State and district of the State and district wherein the crime shall have been committed; wherein the crime shall have been committed; which district shall have been previously which district shall have been previously ascertained by law, and to be ascertained by law, and to be informed informed of the of the nature and cause of the accusation; to be nature and cause of the accusation; to be confrontedconfronted with the witnesses against him; to with the witnesses against him; to have have compulsory processcompulsory process for obtained for obtained witnesses in his favor, and to have the witnesses in his favor, and to have the assistance of counselassistance of counsel for his defence.” for his defence.”

Sixth Amendment freedoms Sixth Amendment freedoms

Speedy trial Speedy trial

Public trial Public trial

Trial by Impartial Jury Trial by Impartial Jury

Notice Notice

Confrontation Clause Confrontation Clause

Compulsory Process Clause Compulsory Process Clause Assistance of Counsel Assistance of Counsel

Speedy trial Speedy trial

Government get on with it – don’t let Government get on with it – don’t let criminal defendant languish in jail forever. criminal defendant languish in jail forever. “Justice delayed is justice denied.” “Justice delayed is justice denied.”

Length of the delay Length of the delay Your assertion of your right to a speedy Your assertion of your right to a speedy

trial trial Reason for the delay Reason for the delay Prejudice to you because of the delay Prejudice to you because of the delay

Trial by jury Trial by jury

Trial by jury in all criminal prosecutions. Trial by jury in all criminal prosecutions.

The U.S. Supreme Court wrote that "The U.S. Supreme Court wrote that "trial by jury trial by jury in criminal cases is fundamental to the in criminal cases is fundamental to the American scheme of justice." American scheme of justice." Doesn’t have to be 12 jurors. Doesn’t have to be 12 jurors. Williams v. FloridaWilliams v. Florida (1970) – 6-member juries constitutional but 5-(1970) – 6-member juries constitutional but 5-member juries unconstitutional (member juries unconstitutional (Ballew v. GeorgiaBallew v. Georgia) )

Tennessee requires 12 jurors (Rule 24 of the Tennessee requires 12 jurors (Rule 24 of the Tennessee Rules of Criminal Procedure) Tennessee Rules of Criminal Procedure)

Ballew v. Georgia Ballew v. Georgia (cont.)(cont.)

““recent empirical data suggest that recent empirical data suggest that progressively smaller juries are less progressively smaller juries are less likely to foster effective group likely to foster effective group deliberationdeliberation. At some point, this decline . At some point, this decline leads to inaccurate fact-finding and leads to inaccurate fact-finding and incorrect application of the common sense incorrect application of the common sense of the community to the facts.” of the community to the facts.”

Impartial jury Impartial jury

Jury must be chosen from fair cross-Jury must be chosen from fair cross-section of the community (Taylor v. section of the community (Taylor v. Louisiana) – defendant given new trial Louisiana) – defendant given new trial because women excluded from the jurybecause women excluded from the jury

Assistance of Counsel Assistance of Counsel

““lawyers in criminal courts are necessities lawyers in criminal courts are necessities not luxuries.” not luxuries.” Gideon v. WainwrightGideon v. Wainwright (1963) (1963)

This decision essentially led to the public This decision essentially led to the public defender system. (text p. 229) defender system. (text p. 229)

Eighth Amendment Eighth Amendment

““Excessive bailExcessive bail shall not be required, nor shall not be required, nor excessive finesexcessive fines imposed, nor imposed, nor cruel and cruel and unusual punishmentunusual punishment inflicted.” inflicted.”

Excessive Bail Excessive Bail

““need for bail in an unusually high amount need for bail in an unusually high amount is an arbitrary act. Such conduct would is an arbitrary act. Such conduct would inject into our own system of government inject into our own system of government the very principles of totalitarianism which the very principles of totalitarianism which congress was seeking to guard against in congress was seeking to guard against in passing the statute under which petitioners passing the statute under which petitioners have been indicted.” have been indicted.”

Stack v. BoyleStack v. Boyle (1951) (1951)

U.S. v. BajakajianU.S. v. Bajakajian (1998) (1998) Hosep Bajakajian attempted to leave the United Hosep Bajakajian attempted to leave the United

States without reporting, as required by federal States without reporting, as required by federal law, that he was transporting more than $10,000 law, that he was transporting more than $10,000 in currency. in currency.

““We now hold that a punitive forfeiture violates We now hold that a punitive forfeiture violates the Excessive Fines Clause if it is grossly the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's disproportional to the gravity of a defendant's offense.” (Justice Clarence Thomas) offense.” (Justice Clarence Thomas)

Cruel and Unusual Punishment Cruel and Unusual Punishment

““Death is different.” Death is different.”

““the evolving standards of decencythe evolving standards of decency that mark that mark the progress of a maturing society" -- to the progress of a maturing society" -- to determine which punishments are so determine which punishments are so disproportionate as to be cruel and unusual. disproportionate as to be cruel and unusual.

Curious history of capital punishment: outlawed Curious history of capital punishment: outlawed in 1972 (in 1972 (Furman v. GeorgiaFurman v. Georgia); reinstated in 1976 ); reinstated in 1976 ((Gregg v. GeorgiaGregg v. Georgia) )

Recent Decisions Recent Decisions

The Court outlawed the death penalty for The Court outlawed the death penalty for those who committed murder when they those who committed murder when they were juveniles. were juveniles. Roper v. SimmonsRoper v. Simmons (2004) (2004)

The Court outlawed death penalty for the The Court outlawed death penalty for the mentally retarded. mentally retarded. Atkins v. VirginiaAtkins v. Virginia (2002). (2002).

The Court ruled no death penalty even for The Court ruled no death penalty even for child rapist in child rapist in Kennedy v. LouisianaKennedy v. Louisiana (2008) (2008)

Ninth Amendment

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

For many years nothing but a constitutional curiosity.

Griswold v. Connecticut (1965)

Tenth 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.”

Received renewed appreciation during the Rehnquist Court.