Exam 1: Weeks 1 to 7

Week 1: Intro to Constitutional Law

1.1 Some Major Influences on the U.S. Constitution

Summary of Text

• Thomas Jefferson, Father of the Declaration of Independence. Used the phrase “life, liberty and the pursuit of happiness” based on French interpretation of John Locke’s beliefs.

• Ben Franklin, representative of Pennsylvania as Indian commissioner.

• John Locke, Philosopher. Believes all humans are basically good and that everyone has natural rights including “life, health, liberty and possessions” (or “life, health liberty and possessions” according to French revolutionaries)

• Jean-Jacques Rousseau. Government creates a social contract between the people and itself; government exists to help people and in-turn the people consent to its power.

• Montesquieu, Frenchman. Idea: Limiting power of any one person/group in government. Break up government into three branches (a “decentralized” government)

• Felix Cohen, author of “Americanizing the White Man” (1952). He sees Americanism as a product of Indian cultural influence on white European settlers. He stated "(historians) have seen America only as an imitation of Europe," but that "the real epic of America is the yet unfinished story of the Americanization of the white man."

• Francis Jennings, author of “The Invasion of America: Indians, Colonialism and the Cant of Conquest” (1975). He states: “What American society owes Indian society, as much as to any other source, is the mere fact of its existence”.

• Arthur Pound's Johnson of Mohawks. He Stated: "With the possible exception of the also unwritten British Constitution, deriving from the Magna Carta, the Iroquois Constitution is the longest-going international constitution in the world."

• Arthur C. Parker, archeologist, State Museum of New York. Put “The Great Law of Peace” in writing in 1915.

→ The Iroquois Constitution = “The Great Law of Peace” (adopted in 1715)

• A federal union of five (later six) Indian nations: Mohawk, Onondagam Seneca, Oneida, Cayuga and the Tuscarora, adopted in 1715. It was only put in writing in 1915 by Arthur C. Parker, archeologist for the State Museum of New York.

• influenced many key ideas for a new form of government-federalism, equality, natural rights, freedom of religion, property rights, etc.

→ Importance of Indians

→ Franklin vs. Canassetego

→ Lords of Confederacy:

• The lords are poorer than the common people. They own few material possessions and give away all presents or plunder acquired by treaty or war. They are above pettiness and corruption and show no signs of selfishness.

• Checks and Balances = no actions could be taken w/out approval of all five Indian Nations.

• Equality and liberty between men and women.

• Enslaved no prisoners of War and offered to adopt those that accepted the Great Law.

• Great Law was the law of the land. If you obeyed/disobeyed the law, you could be either accepted or alienated, respectively by the lords.

• Like the Iroquois, Thomas Jefferson believed that public opinion and popular consent were key in maintaining freedom and good government.

• Jefferson held that the power of public opinion was an important reason for the Iroquois' lack of oppressive government and class difference, and for their power to impeach officials who offended governing principles. Like the Iroquois, he also believed that the best government is the least government.

• The Europeans compared the Iroquois with the Greeks and Romans.
• Both emphasized ethical proof in their arguments.
• The Indians ended their orations with the words hiro and kone. Hiro means "I have said," and kone was spoken as an exclamation of joy or sorrow, depending on the occasion and circumstance. The French pronunciation of these words together became "Iroquois."

• Unlike Europe, the Iroquois society was matrilineal. Women owned the land and the status of their lineage.
• They owned all possessions of their husbands after marriage except their horse and rifle; they took charge of the money and were the tribe's educators and communicators of tradition.
• The female heirs of the lords of the confederacy were called royaneh (noble).
• The lord of the confederacy was nominated by women-selected for qualities of trustworthiness, good character, honesty, faithfulness to the people and nation, support of family, and good management of personal affairs.

• There was no state religion, and the religious rites and festivals of each nation were safeguarded against being disturbed or interrupted.
• Civil duties were separated from those of the religious leaders, and festivals were held in the longhouses.

TAKE-AWAY: More and more a nation of law and order, with vast class and economic distinctions and political favoritism, we would do well to reeducate ourselves in the values of the Iroquois-honesty, good character, honor, the power of spoken word and public opinion, and the high status of women.

Week 2: Federalism and the Commerce Clause

2.1 Overview

Learning Objectives

• Name one enumerated power of Congress that covers an area of federal law

• Describe the importance of the Commerce Clause and its grant of power to Congress

• Explain why the court in Heart of Atlanta Motel v. United States chose to uphold the Civil Rights Act (as it was applied to the motel in this case)

2.2 Instructor Video on Federalism and Commerce Clause

2.3 Material on Federalism and the Commerce Clause

Federalism

Enumerated Powers (Delegated Powers) of the Federal Government, from U.S. Constitution, Article I, Section 8

About McCulloch v. Maryland (1819)

• In 1791, the U.S. government created the first national bank for the country. During this time, a national bank was controversial because people had different opinions about what powers the national government should have.
• Alexander Hamilton believed that the national government had the power to create a new national bank.
• Thomas Jefferson believed that the national government did not have such a power. When Thomas Jefferson was president, he did not renew the national bank's charter.

• After the War of 1812, President James Madison decided that the country needed a national bank, and he asked Congress to create a Second Bank of the United States in 1816.

• After President Madison approved the bank, many branches were opened throughout the country. Many states did not want the new bank branches to open. There were several reasons why the states opposed these national banks. They competed with the state banks, many national bank managers were thought to be corrupt, and the states believed that the national government was getting too powerful.

• Maryland tried closing down the Baltimore branch of the national bank by passing a law that forced all banks that were created outside of the state pay a $15,000 tax each year.

• James McCulloch, who worked at the Baltimore Branch, refused to pay the tax.

• The State of Maryland took McCulloch to court saying that Maryland had the power to tax any business in its state. Luther Martin, a lawyer for Maryland, said that:
• If the national government had the power to regulate state banks, then Maryland had the power to regulate national banks.
• He also said that the Constitution does not give Congress the power to create a national bank.

• After McCulloch was convicted of violating the tax statute and fined $2,500, he appealed the court's decision to the Maryland Court of Appeals.
• His lawyer argued that creating a national bank was a "necessary and proper" job of Congress.
• He stated that many of the powers of the national government are not written in the Constitution but are necessary for the national government to do its job.
• Also, he claimed that Maryland could not place a tax on the national bank because the tax would not let the national bank do its job.
• The Maryland Court of Appeals agreed with the lower court's decision. McCulloch then appealed to the Supreme Court of the United States, led by Chief Justice John Marshall.
• Excerpt from the Court’s opinion
• ". . . Although, among the enumerated powers of government, we do not find the word "bank" or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies . . . But it may with great reason be contended, that a government, entrusted with such ample powers . . . must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. . . . "

U.S. Terms Limits, Inc. v. Thornton, 514 U.S. 779 (1995)—Modern example

1. Do you think that states should have the power to enact term limits for members of Congress?

2. Go back and read the Tenth Amendment. Do you agree more with the Majority’s view or the Dissent’s view of what the Tenth Amendment means? Commerce Clause

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)

Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964)

1. The Factual Background and Contentions of the Parties.
• The case comes here on admissions and stipulated facts. Appellant owns and operates the Heart of Atlanta Motel which has 216 rooms available to transient guests. The motel is located on Courtland Street, two blocks from downtown Peachtree Street. It is readily accessible to interstate highways 75 and 85 and state highways 23 and 41. Appellant solicits patronage from outside the State of Georgia through various national advertising media, including magazines of national circulation; it maintains over 50 billboards and highway signs within the State, soliciting patronage for the motel; it accepts convention trade from outside Georgia and approximately 75% of its registered guests are from out of State. Prior to passage of the Act the motel had followed a practice of refusing to rent rooms to Negroes, and it alleged that it intended to continue to do so. In an effort to perpetuate that policy this suit was filed.
• The appellant contends that Congress in passing this Act exceeded its power to regulate commerce under Art. I, 8, cl. 3, of the Constitution of the United States; that the Act violates the Fifth Amendment because appellant is deprived of the right to choose its customers and operate its business as it wishes, resulting in a taking of its liberty and property without due process of law and a taking of its property without just compensation; and, finally, that by requiring appellant to rent available rooms to Negroes against its will, Congress is subjecting it to involuntary servitude in contravention of the Thirteenth Amendment.
• The appellees counter that the unavailability to Negroes of adequate accommodations interferes significantly with interstate travel, and that Congress, under the Commerce Clause, has power to remove such obstructions and restraints; that the Fifth Amendment does not forbid reasonable regulation and that consequential damage does not constitute a "taking" within the meaning of that amendment; that the Thirteenth Amendment claim fails because it is entirely frivolous to say that an amendment directed to the abolition of human bondage and the removal of widespread disabilities associated with slavery places discrimination in public accommodations beyond the reach of both federal and state law....

2. The History of the Act.
• On June 19, 1963, the late President Kennedy called for civil rights legislation in a message to Congress to which he attached a proposed bill. Its stated purpose was "to promote the general welfare by eliminating discrimination based on race, color, religion, or national origin in . . . public accommodations through the exercise by Congress of the powers conferred upon it . . . to enforce the provisions of the fourteenth and fifteenth amendments, to regulate commerce among the several States, and to make laws necessary and proper to execute the powers conferred upon it by the Constitution."
• Bills were introduced in each House of the Congress, embodying the President's suggestion. However, it was not until July 2, 1964, upon the recommendation of President Johnson, that the Civil Rights Act of 1964, here under attack, was finally passed....
• The Act as finally adopted was most comprehensive, undertaking to prevent through peaceful and voluntary settlement discrimination in voting, as well as in places of accommodation and public facilities, federally secured programs and in employment. Since Title II is the only portion under attack here, we confine our consideration to those public accommodation provisions.

3. Title II of the Act.
• This Title is divided into seven sections beginning with 201
1. which provides that: "All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. "There are listed in 201
2. four classes of business establishments, each of which "serves the public" and "is a place of public accommodation" within the meaning of 201 (a) "if its operations affect commerce, or if discrimination or segregation by it is supported by State action." The covered establishments are: (1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence; "(2) any restaurant, cafeteria . . . [not here involved]; "(3) any motion picture house . . . [not here involved]; "(4) any establishment . . . which is physically located within the premises of any establishment otherwise covered by this subsection, or . . . within the premises of which is physically located any such covered establishment . . . [not here involved]." …

4. Application of Title II to Heart of Atlanta Motel.
• It is admitted that the operation of the motel brings it within the provisions of 201 (a) of the Act and that appellant refused to provide lodging for transient Negroes because of their race or color and that it intends to continue that policy unless restrained.
• The sole question posed is, therefore, the constitutionality of the Civil Rights Act of 1964 as applied to these facts. The legislative history of the Act indicates that Congress based the Act on 5 and the Equal Protection Clause of the Fourteenth Amendment as well as its power to regulate interstate commerce under Art. I, 8, cl. 3, of the Constitution. …
• Congress was dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.
• It is said that the operation of the motel here is of a purely local character. But, assuming this to be true, "[i]f it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze...."
• Thus, the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce....
• We, therefore, conclude that the action of the Congress in the adoption of the Act as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution, as interpreted by this Court for 140 years. It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress not with the courts. How obstructions in commerce may be removed - what means are to be employed - is within the sound and exclusive discretion of the Congress. It is subject only to one caveat - that the means chosen by it must be reasonably adapted to the end permitted by the Constitution. We cannot say that its choice here was not so adapted. The Constitution requires no more. Affirmed.

2.4 Videos

Week 3: 1st Amendment, Part I (Freedom of Speech)

3.1 Overview

Learning Objectives

• Summarize the protections granted by the First Amendment for Freedom of Speech

• Identify a limitation allowed by courts on Freedom of Speech

3.2 Materials on 1st Amendment: Freedom of Speech

• Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. (Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information “the people” should be allowed to hear.)

There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.

1. In some circumstances, the Supreme Court has held that certain types of speech are of only “low” First Amendment value, such as:
1. Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false. New York Times v. Sullivan (Links to an external site.) (1964).
2. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished. Watts v. United States (Links to an external site.) (1969).
3. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable. Chaplinsky v. New Hampshire (Links to an external site.) (1942). But this does not include political statements that offend others and provoke them to violence.  For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech. Cox v. Louisiana (Links to an external site.) (1965).
4. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment. Miller v. California (Links to an external site.) (1973). In practice, however, the government rarely prosecutes online distributors of such material.
5. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material. New York v. Ferber (Links to an external site.) (1982).
6. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech. Virginia Pharmacy v. Virginia Citizens Council (Links to an external site.) (1976).
7. Outside these narrow categories of “low” value speech, most other content-based restrictions on speech are presumptively unconstitutional. Even entertainment, vulgarity, “hate speech” (bigoted speech about particular races, religions, sexual orientations, and the like), blasphemy (speech that offends people’s religious sensibilities), and violent video games are protected by the First Amendment. The Supreme Court has generally been very reluctant to expand the list of “low” value categories of speech.

2. The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. A teacher in a public school, for example, can be punished for encouraging students to experiment with illegal drugs, and a government employee who has access to classified information generally can be prohibited from disclosing that information. Pickering v. Board of Education (Links to an external site.) (1968).

3. The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.” Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others. Turner Broadcasting System, Inc. v. FCC (Links to an external site.) (1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment. Schneider v. State (Links to an external site.) (1939).

3.3 Freedom of Speech

• This can include the right to: Not speak (specifically, the right not to salute the flag).

• West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)

• Symbolic speech (burning flag in protest). Texas v. Johnson, 491 U.S. 397 (1989).

• This can include the right to (more):
• Wear black armbands to school (student protest). Tinker v. Des Moines, 393 U.S. 503 (1969).
• Use certain offensive words to make political statements. Cohen v. California, 403 U.S. 15 (1971).
• Advertise commercial products. Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976).

The First Amendment can be Limited

• State can have law forbidding anyone from advocating overthrow of government by force. Gitlow v. New York, 268 U.S. 652 (1925).

• Time, place, and manner restrictions on speech in public fora are OK. Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85 (1977).

• Cannot incite actions that would harm others (shouting ‘fire’ in a crowded theater.”). Schenck v. United States, 249 U.S. 47 (1919).

3.4 Federal Communications Commission v. Pacifica Foundation, 556 F.2d 9 (1978)

Week 4: 1st Amendment, Part II (Freedom of the Press)

4.1 Overview

Learning Objectives

• Summarize the protections granted by the First Amendment for Freedom of the Press

• Explain why the U.S. Supreme Court takes a strong stance against prior restraints

Overview

4.2 Material of the Press

Materials on Freedom of the Press

Freedom to Criticize the Government

• In 1735, long before the creation of the United States, John Peter Zenger, printer of the New York Weekly Journal, a newspaper critical of then Governor William Cosby, was tried for seditious libel – the crime of ridiculing the government, or as practiced in England, ridiculing the king.

• A jury acquitted Zenger after his lawyer persuaded them of what was then a novel concept -- that Zenger should be allowed to demonstrate that the statements were true as a defense. This outcome raised consciousness in the colonies about the importance of a press that was free to criticize government.

• Not long after the First Amendment was ratified, however, Congress passed the Sedition Act of 1798, which:
• Allowed for the criminal prosecution of those who brought the president or the government into disrepute and ridicule.
• Was used to convict some ten Republicans loyal to Thomas Jefferson.
• When he assumed the presidency, Jefferson pardoned the convicted.
• Passed by the Federalists under President John Adams

• Noteworthy in that deeply partisan struggle is that newspapers of the day identified largely with one party or the other, as did pamphlets and other writings that served as the catalyst for the prosecutions.

Actual Malice

• First, the Court appeared to bury, decisively and perhaps for all time, the idea that individual speakers or publishers could be punished for criticism of government under a theory of seditious libel. The ideal, the Court said, was “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

• Second, the Court set a very high bar for public officials, later extended to public figures, to be able to recover damages from the news media for false and libelous statements. The Court adopted the “actual malice” test that requires a public figure to demonstrate either recklessness or deliberate falsehood by the news media.
• This standard makes it difficult for those in the public eye to win libel verdicts, but there are still regularly some who try and who complain about the high standard.
• When the subject of alleged libel is a private person or topics that are not of general public interest, the Supreme Court has afforded substantially less protection for publishers and speakers. But the focus of debate today remains the tough actual malice standard.

No Special Protections

• Namely that the press is not really entitled to special protections that are separate from or more extensive than the public generally.
• In ruling that L.B. Sullivan, Police Commissioner of Montgomery, Alabama, could not recover damages from the New York Times for errors in a published civil rights advertisement because there was no actual malice, the Court applied the same First Amendment standard to repel his damage claims against four individual ministers who were leaders of the civil rights movement and whose names appeared in the advertisement.

• In the libel context, most lawsuits still seem to involve some form of news media defendant, and the law of actual malice has developed largely in a media context.

• Where the First Amendment protects access to attend criminal trials, it was the right of the press and the public on which the justices opined. The Court has said that providing the news media access to information and events may serve as a proxy for general public access, but the right belongs to the public, not exclusively to the news media.

• The practical result of this principle in recent decades is to mute the separate impact of the freedom of the press clause and effectively merge it with the guarantee of freedom of speech. This focus on the public right, rather than the media’s, figured prominently in two important Supreme Court decisions, one in 1972 and the other in 1991.

• News reporters have no absolute First Amendment right to refuse to comply with grand jury subpoenas,

• Journalists must obey the law like anyone else called to give evidence and cannot decline because they have confidential sources.

Prior Restraint

• As ratified in 1791, both this clause and the free speech clause served only to protect rights from interference by the federal government and not by the states.

• It was not until 1925 (Gitlow v. N.Y.) for the free speech clause and 1931 (Near v. Minnesota) for the press clause, that the Supreme Court also applied those protections to limit the power of state governments.
• The case of Near v. Minnesota was the first to formally recognize one of the most widely accepted principles of freedom of speech and freedom of the press in this country: that the First Amendment prohibits prior restraints by government to prevent speech or publishing from taking place.
• In Near, a newspaper in Minnesota had been printing stories that tied politicians to gangsters and corruption; Minnesota then passed a law to prevent the newspaper from running such stories and the law was used to obtain an injunction against the newspaper. The Supreme Court invalidated the law as unconstitutional, saying that criticism of government, even “reckless assaults,” could not be stopped from publication.
• “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy consistent with constitutional privilege,” the Court said.
• After Near, the most famous case of prior restraint involved the publication in 1971 by the New York Times, the Washington Post and other newspapers of articles based on the top-secret Pentagon Papers, a study commissioned by the U.S. military of the history of the Vietnam War.
• The papers were leaked to the news media, and President Richard Nixon’s Justice Department went to Court repeatedly to block publication of secret details. Ultimately the Supreme Court ruled strongly in New York Times Co. v. United States (1971) that court orders blocking publication were an unconstitutional prior restraint in violation of the First Amendment.

• A majority of Justices indicated in separate opinions that under some extreme circumstances, especially if there were a genuine threat to national security, a prior restraint might be justified.

• While the general prohibition against prior restraints remains a bedrock principle of the First Amendment, skirmishes break out from time to time over whether and when a court may issue such an order.

Uncharted Waters

• The First Amendment by its terms and by Supreme Court interpretation applies only to limit government regulation of speech and press. That means that in today’s world, some of the biggest forums for expression, like Facebook and Twitter, are not subject to the First Amendment and may permit or prohibit speech as they see fit.

• But what happens when government officials, like President Trump, use Twitter to make what appear to be official pronouncements? There is much uncharted water here. Last May, a federal judge in New York ruled that President Trump violated the rights of seven Twitter users whom the white House blocked from access to @realdonaldtrump because they had criticized him. The Justice Department has appealed that ruling.

• In a decision in June 2017, Packingham v. North Carolina, the Supreme Court invalidated a state law that barred a convicted sex offender of accessing any sites on the Internet where minors might be present or might maintain their own pages.
• In an opinion by Justice Anthony Kennedy, who has since retired, the Supreme Court observed that the state law “bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human   thought and knowledge.”

4.3 Freedom of the Press, New York Times v. United States

4.4 Near vs. Minnesota

Facts

Opinions

Case Commentary

4.5 How Free is Our Freedom of the Press

Week 5: First Amendment: Freedom of Religion

5.1 Overview

Learning Objectives

• Summarize the protections granted by the First Amendment for Freedom of Religion

• Describe how the Lemon test is used to determine when a law has the effect of establishing religion

Overview

5.2 Material on Freedom of Religion

• The First Amendment has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause.
• The Establishment clause prohibits the government from "establishing" a religion. The precise definition of "establishment" is unclear. Historically, it meant prohibiting state-sponsored churches, such as the Church of England.
• Today, what constitutes an "establishment of religion" is often governed under the three-part test set forth by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the "Lemon" test, government can assist religion only if (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state.
• The Free Exercise Clause protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of a "public moral" or a "compelling" governmental interest. For instance, in Prince v. Massachusetts, 321 U.S. 158 (1944), the Supreme Court held that a state could force the inoculation of children whose parents would not allow such action for religious reasons. The Court held that the state had an overriding interest in protecting public health and safety.

• Sometimes the Establishment Clause and the Free Exercise Clause come into conflict. The federal courts help to resolve such conflicts, with the Supreme Court being the ultimate arbiter.

5.3 The Lemon Test

• Lemon dealt with Rhode Island and Pennsylvania programs that supplemented the salaries of teachers in religiously based private schools for teaching secular subjects. The Court struck down both programs as violating the establishment clause.

• The purpose of the Lemon test is to determine when a law has the effect of establishing religion. The test has served as the foundation for many of the Court's post-1971 establishment clause rulings. As articulated by Chief Justice Burger, the test has three parts:

• According to separationist scholars Barry Lynn, Marc Stern, and Oliver Thomas, the fact that a law may have a "religious purpose or be motivated by religion does not mean it is unconstitutional as long as it also has a bona fide secular or civic purpose" (The Right to Religious Liberty, p. 3). Similarly, "a law that has a remote or incidental effect of advancing religion is not unconstitutional as long as the effect is not a 'primary' effect" (p. 3).

• Finally, the Court has allowed some entanglement between church and state, as long as this entanglement is not "excessive" (p. 3). Hence, the Court has built some leeway into the test so as not to invalidate laws that have only remote connections to religious practice.

5.4 City of Boerne v. Flores Summary

5.5 Hobby Lobby Case: Supreme Court Strikes Down Contraceptives Mandate

5.6 Supreme Court Justice Ruth Bader Ginsburg Discusses Hobby Lobby Dissent

5.7 Should states fund repairs at church schools?

Week 6: Rights of the Accused (Mainly 5th and 6th Amendments)

6.1 Overview

Learning Objectives

• Detail the Miranda rights

• Explain where the right to an attorney is protected in the Bill of Rights

• Describe which case prompted the expansion of the criminal defense system (more public defenders and court-appointed lawyers)

Overview

6.2 Material on Rights of the Accused

Rights of the Accused

Due Process (5th and 14th Amendment)

• The Fifth and Fourteenth Amendments provide that the State may not deprive a person of “life, liberty, or property, without due process of law.”

• The Fifth Amendment also requires an indictment from a grand jury for most types of crimes. This requires the State to maintain clear procedures in criminal matters and ensures that the State cannot convict someone of a crime without following those procedures.

• As a practical matter, the Fourteenth Amendment expressly applies to states, while the Fifth Amendment applies only for actions of the federal government. Though the U.S. Supreme Court has held that most of the Bill of Rights protections also people against state actions, that protection comes by way of the Fourteenth Amendment.

6.3 Summary of Miranda Rights

List of Miranda Rights

• You have the right to remain silent;

• Anything you say can be used against you in a court of law;

• You have the right to an attorney and have him present during the interrogation;

• If you cannot afford a lawyer, one will be appointed to you free of charge;

• You can waive your right to be silent before or during an interrogation, and if you do so, the interrogation must be halted;

• You can invoke your right to have an attorney present, and until he is present, the interrogation must be halted.

Case: Miranda v. Arizona

• This case represents the consolidation of four cases, in each of which the defendant confessed guilt after being subjected to a variety of interrogation techniques without being informed of his Fifth Amendment rights during an interrogation.

• On March 13, 1963, Ernesto Miranda was arrested in his house and brought to the police station
• He was questioned by police officers in connection with a kidnapping and rape.
• After two hours of interrogation, the police obtained a written confession from Miranda. The written confession was admitted into evidence at trial despite the objection of the defense attorney and the fact that the police officers admitted that they had not advised Miranda of his right to have an attorney present during the interrogation.
• The jury found Miranda guilty. On appeal, the Supreme Court of Arizona affirmed and held that Miranda’s constitutional rights were not violated because he did not specifically request counsel.

→ Conclusion

• 5–4 DECISION FOR MIRANDA (MAJORITY OPINION BY EARL WARREN)
• The Fifth Amendment requires that law enforcement officials advise suspects of their right to remain silent and to obtain an attorney during interrogations while in police custody.
• To protect the privilege, the Court reasoned, procedural safeguards were required:
1. A defendant was required to be warned before questioning that he had the right to remain silent, and that anything he said can be used against him in a court of law.
2. A defendant was required to be told that he had the right to an attorney, and if he could not afford an attorney, one was to be appointed for him prior to any questioning if he so desired.
3. After these warnings were given, a defendant could knowingly and intelligently waive these rights and agree to answer questions or make a statement.
4. Evidence obtained as a result of interrogation was not to be used against a defendant at trial unless the prosecution demonstrated the warnings were given, and knowingly and intelligently waived.

→ Opinions

• Majority: Chief Justice Earl Warren delivered the opinion of the 5-4 majority, concluding that defendant’s interrogation violated the Fifth Amendment.
• The Fifth Amendment requires that law enforcement officials advise suspects of their right to remain silent and to obtain an attorney during interrogations while in police custody.
• Dissent: Justice Tom C. Clark
• He argued that the majority’s opinion created an unnecessarily strict interpretation of the Fifth Amendment that curtails the ability of the police to effectively execute their duties.
• He wrote that the state should have the burden to prove that the suspect was aware of his rights during the interrogation, but that statements resulting from interrogation should not be automatically excluded if the suspect was not explicitly informed of his rights.
• Dissent: Justice John M. Harlan
• He wrote that the judicial precedent and legislative history surrounding the Fifth Amendment does not support the view that the Fifth Amendment prohibits all pressure on the suspect.
• He also argued that there was no legal precedent to support the requirement to specifically inform suspects of their rights.
• Dissent: Justices Potter Stewart and Byron R. White
• Justice White wrote a separate dissent in which he argued that the Fifth Amendment only protects defendants from giving self-incriminating testimony if explicitly compelled to do so.
• He argued that custodial interrogation was not inherently coercive and did not require such a broad interpretation of the protections of the Fifth Amendment. Such an interpretation harms the criminal process by destroying the credibility of confessions.

Case: Oregon v. Elstad, 470 U.S. 298 (1985)

• Michael James Elstad was suspected of committing a burglary and was picked up by police officers in his home.

• Before officers had given the warnings required by Miranda v. Arizona, Elstad made an incriminating statement.

• Once at the Sheriff's headquarters, Elstad was advised of his rights. Elstad then voluntarily executed a written confession.

→ Conclusion:

• In a 6-to-3 decision, the Court held that though Miranda required unwarned admissions to be suppressed, subsequent statements, if made knowingly and voluntarily, need not be suppressed.
• The Court held that ". . .the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion."
• The Court also noted that police officers were ill-equipped to determine when "custody" legally begins. Justice O'Connor, writing for the majority, argued that the holding "in no way retreat[ed] from the bright-line rule of Miranda."

Case: Gideon v. Wainwright

• Clarence Earl Gideon was charged in Florida state court with felony breaking and entering.

• When he appeared in court without a lawyer, Gideon requested that the court appoint one for him.

• According to Florida state law, however, an attorney may only be appointed to an indigent defendant in capital cases, so the trial court did not appoint one.

• Gideon represented himself in trial. He was found guilty and sentenced to five years in prison. Gideon filed a habeas corpus petition in the Florida Supreme Court, arguing that the trial court's decision violated his constitutional right to be represented by counsel. The Florida Supreme Court denied habeas corpus relief.

→ Opinions: Unanimous

The Sixth Amendment's guarantee of a right to assistance of counsel applies to criminal defendants in state court by way of the Fourteenth Amendment.

• In a unanimous opinion authored by Justice Hugo L. Black, the Court held that it was consistent with the Constitution to require state courts to appoint attorneys for defendants who could not afford to retain counsel on their own.

• The Court reasoned that the Sixth Amendment's guarantee of counsel is a fundamental and essential right made obligatory upon the states by the Fourteenth Amendment.

• The Sixth Amendment guarantees the accused the right to the assistance of counsel in all criminal prosecutions and requires courts to provide counsel for defendants unable to hire counsel unless the right was competently and intelligently waived.

• Justice Douglas, while joining the Court's opinion, elaborated, in a separate opinion, the relation between the Bill of Rights and the first section of the Fourteenth Amendment.

• Justices Clark and Harlan concurred in separate decisions.

Case: Escobedo v. Illinois

• Petitioner, a 22-year-old of Mexican extraction, was arrested with his sister and taken to police headquarters for interrogation in connection with the fatal shooting, about 11 days before, of his brother-in-law.

• He had been arrested shortly after the shooting, but had made no statement, and was released after his lawyer obtained a writ of habeas corpus from a state court.

• Petitioner made several requests to see his lawyer, who, though present in the building, and despite persistent efforts, was refused access to his client.

• Petitioner was not advised by the police of his right to remain silent and, after persistent questioning by the police, made a damaging statement to an Assistant State's Attorney which was admitted at the trial.

• Convicted of murder, he appealed to the State Supreme Court, which affirmed the conviction.

• Held: Under the circumstances of this case, where a police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect in police custody who has been refused an opportunity to consult with his counsel and who has not been warned of his constitutional right to keep silent, the accused has been denied the assistance of counsel in violation of the Sixth and Fourteenth Amendments, and no statement extracted by the police during the interrogation may be used against him at a trial.

Case: Bellow v. Georgia

• A case heard by the United States Supreme Court that held that a Georgia state statute authorizing criminal conviction upon the unanimous vote of a jury of five was unconstitutional. The constitutional minimum size for a jury hearing petty criminal offenses was held to be six.

→ Conclusion

Yes. The Court found that a trial by jury of less than six members violated the accused's right to a trial by jury as protected by the Sixth and Fourteenth Amendments. Justice Blackmun reasoned that small juries foster poor group deliberation. Group memory of the details of testimony, the ease with which group compromises can be made, and the desire of the group to be self-critical and reflective are all hindered as the size of the jury decreases. Blackmun also relied on statistical studies to claim that the risk of jury error increased with smaller juries.

Videos

Week 7: 8th Amendment, 2nd Amendment

7.1 Overview

Learning Objectives

• Describe what kinds of punishment the U.S. Supreme Court has considered to be cruel and unusual

• Explain how the language of the Second Amendment operates, according to the U.S. Supreme Court

Overview

7.2 Material on Cruel and Unusual Punishment

Imprisonment

→ Proportionality of Sentence

→ Age

Prison Beatings

Conditions of Confinement

→ Deliberate Indifference

→ Overcrowding

7.3 Furman v. Georgia, Summary (Is Death Penalty "Cruel and Unusual"?)

• Furman was burglarizing a private home when a family member discovered him.

• He attempted to flee, and in doing so tripped and fell. The gun that he was carrying went off and killed a resident of the home.

• He was convicted of murder and sentenced to death. (Two other death penalty cases were decided along with Furman: Jackson v. Georgia and Branch v. Texas. These cases concern the constitutionality of the death sentence for rape and murder convictions, respectively).

1. Does the imposition and carrying out of the death penalty in these cases constitute cruel, and unusual punishment in violation of the Eighth and Fourteenth Amendments?

• In over two hundred pages of concurrence and dissents, the justices articulated their views on this controversial subject.

• Only Justices Brennan and Marshall believed the death penalty to be unconstitutional in all instances. Other concurrences focused on the arbitrary nature with which death sentences have been imposed, often indicating a racial bias against black defendants.

• The Court's decision forced states and the national legislature to rethink their statutes for capital offenses to assure that the death penalty would not be administered in a capricious or discriminatory manner.

7.4 Article: The Importance of the Furman case

The Importance of Furman v. Georgia, 408 U.S. 238 (1972)

• Although Furman v. Georgia did not completely abolish the death penalty, it placed stringent requirements on death penalty statutes.
• EVENTS:
• On the night of 11 August 1967, 29-year-old William Joseph Micke, Jr. came home from work to his wife and five children in the city of Savannah, Georgia. He went to bed around midnight. Two hours later, the Mickes were awakened by strange noises in the kitchen. Thinking that one of his children was sleepwalking, William Micke went into the kitchen to investigate.
• He found William Henry Furman there, a 26-year-old African American man who had broken into the house and was carrying a gun.
• Furman fled the house, shooting Micke as he left. The bullet hit Micke in the chest, and Micke died instantly. Micke's family promptly called the police, who arrived on the scene within minutes. The police searched the neighborhood and found Furman, who was still carrying the murder weapon.
• Furman was charged with murder and was tried in the Superior Court of Chatham County, Georgia on 20 September 1968.
• Furman was a poor man, and he got a poor man's trial. His court-appointed lawyer, B. Clarence Mayfield, received the court-approved standard retainer for murder cases: $150, which did not include costs.
• The trial lasted just one day: the jury was selected at 10:00 a.m., the evidence was presented and the judge's instructions to the jury given by 3:30 p.m., and the jury's guilty verdict was returned at 5:00 p.m. Long before the trial, the court committed Furman to the Georgia Central State Hospital at Milledgeville for psychological examination. Furman had dropped out of school after the sixth grade, and he tested in the lowest four percent of the test's intelligence range. The hospital diagnosed Furman as being mentally deficient and subject to psychotic episodes. Nevertheless, the court denied Furman's insanity plea at trial.

• Under Georgia law, Furman faced the death penalty. This was despite the fact that Furman had testified that his shooting of Micke was accidental:
• “I admit going to these folks' home and they did caught [sic] me in there and I was coming back out, backing up and there was a wire down there on the floor. I was coming out backwards and fell back and I didn't intend to kill nobody. . . The gun went off and I didn't know nothing about no murder until they arrested me, and when the gun went off I was down on the floor and I got up and ran. That's all to it.”

• Georgia's death penalty statute, however, permitted executions even for unintended killings. So long as Furman had broken into the Micke house illegally, it was irrelevant that his shooting was accidental since that shooting had caused Micke's death while Furman was committing a criminal act. The judge's instructions to the jury made this clear:
• “If you believe beyond a reasonable doubt that the defendant broke and entered the dwelling of the deceased with intent to commit a felony or a larceny and that after so breaking and entering with such intent, the defendant killed the deceased in the manner set forth in the indictment, and if you find that such killing was the natural, reasonable and probable consequence of such breaking and entering, then I instruct you that under such circumstances, you would be authorized to convict the defendant of murder and this you would be authorized to do whether the defendant intended to kill the deceased or not.”

• The Georgia Supreme Court affirmed Furman's conviction and death sentence on 24 April 1969, but on 3 May 1969 Chief Justice W. H. Duckworth stayed the execution so that Furman could file a petition with the U.S. Supreme Court. Furman was no longer represented solely by court-appointed counsel: his case had generated some publicity, and several lawyers were now handling his appeal.

• On 17 January 1972 the parties argued their case before the U.S. Supreme Court in Washington, D.C. The Court had agreed to hear the case to answer the legal question of whether the death penalty violates the Eighth Amendment to the U.S. Constitution, which states that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. "The Court issued its decision 29 June 1972.

• By a narrow 5-4 majority, the justices voted to overturn Furman's conviction on the grounds that in his case the death penalty constituted cruel and unusual punishment. The justices were deeply divided over how to interpret the Eighth Amendment, however. All nine justices filed separate opinions stating their legal reasoning, which is highly unusual. For the most part, Justice William O. Douglas' opinion spoke for the five-member majority.

• Douglas reviewed the history of capital punishment under the English common law, from the Norman Conquest in 1066 through the American colonial period and up to the ratification of the Constitution.
• He noted that English law had evolved to consider the death penalty unfair when applied selectively to minorities, outcasts and unpopular groups.
• In America, the Court had already held that discriminatory enforcement of the law violates the equal protection clause of the Fourteenth Amendment. Therefore, if a death penalty statute was applied in a discriminatory manner, it was unfair and constituted cruel and unusual punishment.
• For Furman, the death penalty was unfair because there had not been enough protection for him at trial. He had gotten a quick one-day trial and he was African American, poor, uneducated, and mentally ill:
• The generality of a law inflicting capital punishment is one thing. What maybe said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions. It would seem to be incontestable that the death penalty inflicted on one defendant is "unusual" if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.
• . . . Douglas concluded that the death penalty was disproportionately applied to African Americans, the poor, and other groups who are at a disadvantage in society:
• Former Attorney General Ramsey Clark has said, "It is the poor, the sick, the ignorant, the powerless and the hated who are executed." One searches our chronicles in vain for the execution of any member of the affluent strata of this society.
• Justices Brennan and Marshall, who had voted with Douglas, wrote opinions that called for the complete abolition of the death penalty for all crimes and under any circumstances. They were in the minority, however, and so Douglas' opinion embodied the impact of the Court's decision: the death penalty could still be imposed, but only if the law bent over backwards to make sure that people like Furman were protected.

• While Furman v. Georgia was hailed as a landmark decision protecting minorities and other historically oppressed groups, it did not give the states much guidance on what they had to do to make their death penalty statutes comply with the Eighth Amendment.

• In the 1976 case of Gregg v. Georgia, the Court upheld the death penalty imposed on a convicted murderer under a revamped Georgia statute that required sentencing hearings and other protective procedures. Most states with death penalty statutes have followed Gregg and modified their laws so there are procedures to protect the poor, minorities, the mentally ill, and other groups. Further, most states have repealed the death penalty for accidental killings and other crimes less serious than cold-blooded intentional murder.

• Furman v. Georgia did not forbid capital punishment, but it did place strict requirements on death penalty statutes, at both the state and federal levels, based on the Eighth Amendment.

7.5 Justices Extend Firearm Rights in 5-4 Ruling (New York Times, June 28, 2010) (McDonald v. Chicago case)

Justices Extend Firearm Rights in 5-to-4 Ruling

7.6 California gun law headed to Supreme Court?

• California has some of the nation’s tightest gun control laws and virtually no session of the Legislature ends without additional restrictions being enacted.

• In polling and by their votes, Californians endorsed making gun purchases and ownership increasingly more difficult.

• HOWEVER, current and would-be gun owners complained that the laws violate Californians’ constitutional right to bear arms, codified in the Second Amendment to the U.S. Constitution.
• Those complaints are now likely to reach the U.S. Supreme Court because of Tuesday’s decision by the 9th District Court of Appeals upholding two of the state’s most controversial gun control laws, banning the sale and possession of magazines holding more than 10 rounds of ammunition.
• PROPOSITION 63 (One controversial gun control law was enacted by the Legislature and the other in a ballot initiative sponsored by Gavin Newsom in 2016 when he was lieutenant governor)
• A federal judge in San Diego, Roger Benitez, became a hero to gun owners when he struck down Proposition 63’s 10-round magazine limit two years ago, saying that it unconstitutionally interfered with using guns for self-protection. “The statute hits at the center of the Second Amendment and its burden is severe,” Benitez wrote.
• Newsom had become governor when Benitez ruled and denounced the judge as a “wholly-owned subsidiary of the gun lobby and the National Rifle Association.”
• A three-three judge panel of the 9th Circuit Court sided with Benitez but on Tuesday, the full 11-judge court, dividing along ideological lines, ratified the magazine laws. It declared that they “reasonably supported California’s effort to reduce the devastating damage wrought by mass shootings.
• The majority opinion added that requiring owners of higher-capacity magazine to get rid of them is not an illegal government “taking” because “the government acquires nothing by virtue of the limitation on the capacity of magazines.”
• The case sparked a welter of opinions from individual members of the court both endorsing the majority opinion and dissenting.
• Three judges appointed by former President Donald Trump were sharply critical of the majority, saying, “these magazines are lawfully owned by millions of people nationwide” and warning that applying California’s law across America would “require confiscating half of all existing firearms magazines in this country.”
• Newsom, of course, hailed the ruling that upheld his ballot measure, tweeting, “Weapons of war don’t belong on our streets. This is a huge victory for the health and safety of all Californians.”

• California being what it is, the nation’s most populous state with some of the nation’s tightest gun laws, the eventual outcome of the magazine capacity case could have wide effects. Blue state prosecutors filed briefs supporting California’s position while those in Texas and other red states backed Benitez’s ruling.
• The possibility of it becoming a landmark case was enhanced when lawyers for gun owners who challenged the state’s magazine limit immediately promised that they would appeal to the U.S. Supreme Court.
• If, as Tuesday’s decision indicated, judicial attitudes about gun control laws divide along ideological lines, California’s limit on magazine capacity could face rough treatment from the Supreme Court’s 6-3 conservative majority.

• In recent decisions, the Supreme Court has become increasingly critical of restrictive gun laws and has a landmark case now pending, involving New York’s ban on carrying guns outside the home.

• During arguments a few weeks ago, majority justices gave every indication they would overturn the law, criticizing it for interfering with citizens’ rights to self-defense. That’s essentially the same line of reasoning that Judge Benitez adopted in overturning California’s magazine limit.

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