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02/11/2009
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A SURVEY COURSE
Reading Assignment
For Tomorrow: Please read Bakke v. Regents of the University of California
For Next Week: Please read Roe v. Wade, Griswold v. Connecticut, and Miranda v. Arizona
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The Breakdown of a CaseShort SynopsisShort SynopsisHeadnotesIntroduction of the Legal IssueBackground (Factual and Procedural)Legal AnalysisHoldingHoldingConcurrenceDissent
Questions to Think About When Reading the Cases
Who are the parties?Who are the parties?What is the legal issue that is being addressed?How did the case get to the Supreme Court?What is the Supreme Court’s holding?What was the Supreme Court’s rationale?What was the rationale for the concurrence?What was the rationale for the concurrence?What was the rationale for the dissent?Do you believe that the Supreme Court’s holding was the right outcome?
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Agenda
Constitutional Law
A. The Bill of Rights and Due ProcessB. Equal Protection of the LawsC Retroactive LegislationC. Retroactive LegislationD. 1st Amendment FreedomsE. Fourth Amendment Protections
The Bill of RightsPer the 14th Amendment, the following rights are applicable
h Sto the States:The freedom of speech, freedom of press, the right to assemble, the right to petition the government, the free exercise of religion, and the prohibition against the establishment of religion.The provisions guaranteeing the right to be free from unreasonable searches and seizures.The protection against double jeopardy, privilege against self‐incrimination, and requirement of just compensation when private property is taken for public use.p p y pThe rights guaranteeing the accused in criminal prosecutions a speedy and public trial, the right to confront and cross‐examine witnesses, the right to counsel, the right to a jury trial and the right to a jury trial in criminal cases.The prohibition against cruel and unusual punishment.
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Question
Both the 5th and 14th Amendments protect against the deprivation of “life, liberty, or property without the due process of the law.” What is the term “due process” mean in this context?
Due Process
Due process, in general, is the conduct of legal proceedings according to the rules and principles established in the system of jurisprudence for the protection and enforcement of private rights, including the right to notice and a fair hearing.
The are two types of due process as set forth by the US Constitution: (1) procedural due process and (2) substantive due process.
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Procedural Due Process
Both the 5th and 14th Amendments protect against the deprivation of “life, liberty, or property without the due process of the law.”
Procedural Due ProcessThe protection from deprivation of liberty extends to The protection from deprivation of liberty extends to the following:
Freedom from bodily restraintsDefamation by governmentPhysical punishmentPhysical punishmentCommitment to a mental institution
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Procedural Due ProcessThe protection from deprivation of property interests The protection from deprivation of property interests extends to the following:
Public EducationContinued Welfare BenefitsRetention of a Driver’s LicenseRetention of a Driver s LicensePublic Employment (in limited circumstances)
Substantive Due ProcessSubstantive Due Process is the doctrine that the 5th5and 14th Amendments require legislation to be fair and reasonable in content and promote a legitimate government interest.
Substantive Due Process extends to:
1. Economic Regulation2. Fundamental Rights3. The Right to Travel4. The Right to Vote
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Substantive Due Process
Economic Regulation: Economic regulation will be upheld if it is rationally related to a legitimate government interest.
Substantive Due Process
Fundamental Rights: The strictest judicial review applies to laws which burden the exercise of fundamental rightsFundamental Rights include: 1) the right to vote; 2) the right to travel; 3) the right to privacy; and 4) all the right to travel; 3) the right to privacy; and 4) all 1st Amendment rights.
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Substantive Due Process
Right to travel: The right of individuals to move freely from state to state is fundamental.
Substantive Due Process
Right to vote: The fundamental right of U.S. citizens over age 18 to vote extends to all federal, state, and local elections, as well as to primaries.
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Question
Do civil law systems have anything equivalent to the concept of “Due Process” under the US Legal System?
The Bill of Rights
The “Takings” Clause: The 5th Amendment provides that private property shall not be taken for public use without just compensation.
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Equal Protection of the Laws
The Constitutional Source: The 14th Amendment provides that “no state shall…deny to any person within its jurisdiction the equal protection of the laws.”
Question
The 14th Amendment provides that “no state shall…deny to any person within its jurisdiction the equal protection of the laws.” What does “equal protection” mean as that term is used in this context?p
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Equal Protection of the Laws
The three standards of review are strict scrutiny, intermediate scrutiny, and rational basis scrutiny.
Equal Protection of the LawsStrict ScrutinyStrict Scrutiny
The burden of persuasion is on the government to prove that the measure being challenged is necessary to further a compelling interest.
Strict scrutiny applies to suspect classes, fundamental rights, and protected 1st Amendment rights.
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Equal Protection of the LawsIntermediate ScrutinyIntermediate Scrutiny
The burden of persuasion is generally placed on the government to prove that the measure being challenged is substantially related to an important interest.
Intermediate scrutiny applies to issues involving gender and illegitimacy.
Equal Protection of the LawsRational Basis ScrutinyRational Basis Scrutiny
The burden of persuasion is on the plaintiff to show the measure being challenged is not rationally related to any legitimate interest.
Rational basis scrutiny applies to issues involving age, poverty, wealth, mental retardation, and necessities of life .
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Retroactive Legislation
The Constitution imposes expressed limitations on the government’s ability to pass retroactive legislation.
Retroactive Legislation
The Contracts Clause: “No state shall pass any law impairing the obligation of contracts.”
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Retroactive Legislation
Ex Post Facto Laws: The Constitution provides that : “No…ex post facto law shall be passed”; and that “No state shall pass any ex post facto law.”
1st Amendment Freedoms
Freedom of Religion and Separation of Church andState
The 1st Amendment provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
Question: What do you think that this means?
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1st Amendment Freedoms
Freedom of Religion and Separation of Church andState
General Rule: Where a government program prefers one religion, or one religious sect, over others, strict g gscrutiny analysis will be applied.
1st Amendment Freedoms
Freedom of Religion and Separation of Church andState
Where the legislation or government program contains no religious or sect preference, the Court will follow the 3‐part test: 1) the statute must have a secular 3 ppurpose; 2) the primary effect or purpose must neither advance nor inhibit religion; and 3) the statute must not foster excessive government entanglement with religion.
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1st Amendment Freedoms
The Free Exercise Clause
A person’s religious beliefs are absolutely protected.
1st Amendment Freedoms
The Free Exercise Clause
Conduct in furtherance of one’s religious beliefs, however, may sometimes be regulated.
Th Wh i di id l’ d i i d The test: Where an individual’s conduct is motivated by his (or her) religious belief, the state may regulate or prohibit the activity if there is an “important” or “compelling” state interest.
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Question
Can you think of a situation in which the government would seek to regulate or otherwise prohibit certain activities even though the activities are in furtherance of religious beliefs?
1st Amendment Freedoms
The Freedom of Expression
The 1st Amendment provides “Congress shall make no law…abridging the freedom of speech, or of the press; or of the people peaceably to assemble, and to petition p p p y pthe government for a redress of grievances.”
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1st Amendment Freedoms
The Freedom of Expression
In general, government regulations directed at regulating the content of speech are invalid.
O h h h d l i i d On the other hand, government regulations not aimed at content, but at protecting “content‐neutral” interests, are generally upheld unless the restrictions unduly constrict the flow of free speech.
Question
What types of speech are not protected by the First Amendment?
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1st Amendment FreedomsThe Freedom of Expression: Unprotected SpeechThe Freedom of Expression: Unprotected SpeechThe following are several areas of “unprotected” speech can be regulated:
Symbolic SpeechClear and Present DangerFighting WordsD f tiDefamationObscenityChild PornographyCommercial Speech
1st Amendment FreedomsThe Freedom of Expression: The Freedom of Expression:
Regulation of the time, place and manner of speech
The government may place reasonable restraints on the time, place, and manner of speech in public areas.areas.
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1st Amendment FreedomsThe Freedom of Expression: The Freedom of Expression: Special Procedural Rules
No Prior Restraints: The government cannot suppress or restrain speech in advance of its publication or utterance.Overbreadth Doctrine: Statutes regulating speech Overbreadth Doctrine: Statutes regulating speech may not be overly broad.Vagueness Doctrine: Government regulations must be drawn with “narrow specificity.”
Question
What types of protections are afforded to the accused in a criminal trial under civil law systems?
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The Fourth Amendment
“The right of 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.”
The Fourth AmendmentImportant Terms:Important Terms:
1. Custody: When an individual, in the presence of an enforcement officer, is not free to leave
2. Arrest: When a person is taken into custody for the 2. Arrest: When a person is taken into custody for the purpose of commencing a criminal action
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The Fourth Amendment: Felonies vs. Misdemeanors
Felony ‐ a serious crime; typically punishable by a year or more in prison or worse
Misdemeanor – a less serious offense; typically Misdemeanor a less serious offense; typically punishable by a fine or less than a year in prison
The Fourth Amendment: Common Law Rules for Warrantless Arrests
Felonies: Both police officers and private citizens may make arrests for felonies committed in their presence.
Misdemeanors: Both police officers and private citizens can make arrests for misdemeanors where 1) the crime is committed in their presence, and 2) the misdemeanor amounts to a breach of the peace.
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The Fourth Amendment: Probable Cause Requirement
The Rule: Whether an arrest is made with or without a warrant, the Constitution requires probable cause to exist at the time of the arrest.
The Fourth Amendment: Search and Seizure
The Exclusionary Rule: Evidence of all materials seized in violation of the 4th Amendment is inadmissible in a criminal proceeding.
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The Fourth Amendment: Search and Seizure
The Fruit of the Poisonous Tree Doctrine: Any additional evidence acquired either directly or indirectly from the illegal arrest, search or seizure must also be excluded as tainted fruit of the poisonous tree.p
The Fourth Amendment: Search and Seizure
Reasonable Expectation of Privacy: A person’s 4th
Amendment rights may be raised where a reasonable expectation of privacy exists.
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The Fourth Amendment: Search and Seizure
Reasonable Expectation of Privacy Test:
Step 1: Does the Defendant have standing to assert the 4th Amendment claim?
To establish standing, an ownership or possessory interest in the premises is sufficient.
The Fourth Amendment: Search and Seizure
Reasonable Expectation of Privacy Test:
Step 2: Is the object to be seized “held out to the public”?
A person has not expectation of privacy to those items that are held out to the public . Hence, in such a case, no 4th Amendment protections can be raised.
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Question
In civil law systems, under what circumstances may the police seize an individual’s property?
The Fourth Amendment: Searches Pursuant to a Warrant
General Rule: The 4th Amendment requires that a warrant be issued for a search to be lawful, unless the search falls within one of the recognized exceptions to the warrant requirement
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The Fourth Amendment: Searches Pursuant to a Warrant
The Warrant must have the following characteristics to be effective:
1. Issued by a detached and neutral magistrate2. Supported by oath or affirmation – must support 2. Supported by oath or affirmation must support
probable cause3. Must be specific
The Fourth Amendment: Searches Pursuant to a Warrant
Notwithstanding the existence of probable cause, the issuance of the warrant must be reasonable.
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The Fourth Amendment: Searches Pursuant to a Warrant
Exceptions to the Warrant Requirement:1. Search incident to a lawful arrest2. Stop and frisk3. Plain view4 Automobile exception4. Automobile exception5. Consent6. Hot pursuit7. Exigent circumstances