The Constitution

Round 2

In this Seminar

• Review the Amendments to the Constitution

• Introduce a case study that we will be using for the rest of the course

• Examine the impact of the Constitution on our case study

• Review some more recent Supreme Court decisions and their impact on us

Constitutional Amendments

• The 1st 10 are collectively know as the “Bill of Rights” • Adopted by Congress in 1789 they were ratified under

the Article 5 process in 1791• Interesting fact is that the Amendments when initially

adopted only applied to the federal government, not the states

• The Supreme Court through a series of cases starting in 1897 used the 14th Amendment “Due Process” clause to apply these rights against the states

• This is known as “the doctrine of incorporation”

The Bill of Rights

• 1. Congress shall make no law respecting the establishment of religion or prohibiting the free exercise therof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances

• 2. Right to bear arms

Bill of Rights

• 3. No quartering of soldiers in times of peace without permission

• 4. Protection against unreasonable searches and seizures and no Warrant shall issue without probable cause

• 5. Use of grand juries for capital crimes, right against self incrimination, can’t be deprived of life, liberty or property without due process of law. Property can’t be taken for public use without just compensation

Bill of Rights

• 6. Right to a speedy and public trial, by an impartial jury, to be informed of the nature and cause of the accusation, to confront witnesses

• 7. Civil suits exceeding $20 shall have the right to a trial by jury

• 8. Excessive bail shall not be required, nor excessive fines imposed, and no cruel or unusual punishment

Bill of Rights

• 9. The listing of these rights shall not be construed to deny or disparage others retained by the people

• 10. 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.

Bill of Rights

• Interesting to note with these Amendments is that there are no definitions

• Constitutional law is the development of the meaning of these rights over the years

• Interpretations have made clear that no rights are absolute

Constitutional Amendments

• 11. Judicial authority of Federal Courts did not extend to cases brought against a State by one of its citizens

• 12. Changes in the Electoral College• 13. Abolished slavery• 14. Contains the “equal protection” and “due

process” clause which have been used frequently by the Court over the years to extend and protect a variety of rights.

Constitutional Amendments

• 15. Protected the right to vote against discrimination on account of race, color or previous servitude (Note women still do not have the right to vote guaranteed by the Constitution for another 50 years

• 16. Power to set up income taxes

• 17. Deal with Senate vacancy’s

• 18. Prohibition

Constitutional Amendments

• 19 Women given the right to vote in 1920

• 20. Set the dates of the start of terms for the President etc

• 21. Repealed prohibition

• 22. Term limits for the President

• 23. Handled how Washington DC votes for the Electoral College would be handled

Constitutional Amendments

• 24 No poll tax

• 25. Succession plans for the Presidency

• 26. 18 years olds can vote

• 27. Pay increases for Congress can not take effect until there is an intervening election

Constitution

• There are very few Amendments for a government that has changed so much over the years

• Most of the changes we have seen have come from the increasingly broad interpretation of powers under the Constitution and from legislation

• This is a more efficient way to handle issues since Constitutional amendments take a long time and once done are hard to change

• Prohibition is a great example of how the Constitution should not be used

Case study

• Our family is John and Susan Applegate. John and Susan are in their mid 40’s. They have 3 children Erica 17, Matthew 15, and Jessica 10. Their children attend the local public school. This family is very politically active and John and Susan encourage their children to be active as well. Recently in a hotly contested school board election over the issue of school uniforms, they encouraged their oldest 2 children to stage a protest on school grounds and burn a set of uniforms as a protest.

• What potential Constitutional rights apply?

The Applegate’s

• The 1st Amendment states “Congress shall make no law … abridging the freedom of speech… or the right of the people to peaceably assemble…”

• The rights of “free speech and “peaceable assembly” are both potential rights that are being asserted by the Applegate’s in this situation

Applegate’s

• What is “speech”

• The Constitution does not define “speech” nor does it seem to allow any restrictions as it states “Congress shall make no law…”

Applegate’s

• The basic right of free speech allows individuals to express themselves without interference or constraints by the government

• Not everything will qualify however. The Supreme Court has recognized some limitations where the speech may cause a breach of the peace or violent action. Obscenity, fighting words, and advocating illegal action have all been found outside the protection of the 1st amendment.

Applegate’s

• Speech includes more than spoken or written words.

• The Court has also varied the protection depending on the location of the “speech”. Public forums like public parks, sidewalks etc traditionally enjoy the strongest protection for free speech.

• Limiting speech in one of these areas is subjected to strict scrutiny by the Court and any statute or ordinance must serve a compelling governmental purpose and be narrowly tailored to meet that interest.

Applegate’s

• In Tinker v. The Des Moines Independent School Board, 393 U.S. 503 ( 1969), three students wore black armbands to public school to protest the Vietnam war. The schools had a policy banning this practice and any student doing so would be suspended and allowed to return only when they agreed to abide by the policy.

• The Court held that the 1st Amendment applied to public schools and the wearing of the armbands was Constitutionally protected symbolic speech

Applegate’s

• In Texas v. Johnson, 491 U.S. 397 (1989) the Court affirmed its long standing interpretation that “speech” does not end with the spoken or written word. If there is an “intent to convey a message” it will be speech.

• This case overturned a conviction for flag burning. This case invalidated laws in 48 out of the 50 states at that time. Subsequent efforts by Congress to ban flag burning as a form of protest have also been struck down under this Amendment in United States v. Eichman, 496 U.S. 310 (1990).

Applegate’s

• One of the most recent pronouncements of the Court on the 1st Amendment right of free speech confirmed the right of the Westboro Baptist Church to picket at funerals in Synder v. Phelps decided March 2, 2011, at least under some circumstances.

• The Court determined that the “content” of the signs used by church members “plainly related to public, rather than private, matters. The placards highlighted issues of public import…”

Applegate’s

• “Peaceful assembly” is also a protected right of the 1st Amendment and is often used as a means to protest the action of government

• Burning the American flag at a protest was considered protected as we discussed earlier

• Protests can take many forms from marches, to picketing, to sit-ins etc.

Applegate’s

• In Nationalist Socialist Party v Skokie, 432 U.S. 443 (1977), the Court ruled that the Nazi party could not be prohibited from marching because the content of their message may lead to violence

• Interesting side note to this case was the fact the Socialist Party was represented by the ACLU (American Civil Liberties Union)

Applegate’s

• If you were on the Court and were reviewing the case, what would influence your decision in this type of case?

Supreme Court cases

• Brown v. Plata, examining California’s prisons the Court found that overcrowding in the prison system was leading to a denial of 8th Amendment rights against “cruel and unusual” punishments

• The result is that the California prison system has about 33,000 to many inmates for its current capacity and California must take steps to correct the problem under an initial 2 year deadline

Supreme Court cases• Under Article 5 of the Constitution the government has the power to

take private property for public use with compensation.• Recent cases have confirmed however that this “taking” does not

have to be actually used by the public rather it must be disposed of in such a manner as it benefits the public

• In Kelo v. City of New London, 545 U.S 469 (2005), a majority of the Court allowed a city to take property for resale to a private developer because the city had a specific development plan it was implementing as part of urban renewal and economic development

• Interesting side note is that the project was eventually abandoned because of the inability of the developer to obtain financing. The city had, however, already paid to move Kelo’s house leaving the land as an empty lot.

Supreme Court cases

• A great way to keep track of the cases is at http://www.supremecourt.gov/

• It is always better to read the case than to rely on those news reports.

• Next lecture will be a review in preparation for the Midterm Exam

• If you have areas you would like to see covered please email me ASAP at Lburns@kaplan.edu