Download Amendments

Introduction to American
Legal System
The Constitution of the
United States of America
Amendments
Amendments
Amendment = change
 Process: Article V of the Constitution
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Two-thirds of votes of both houses of
Congress => amendment submitted to the
states for ratification (Congress may specify if
ratification by state legislature or by
conventions in the states) => ratification by
three quarters of the states => the proposed
amendment become part of the Constitution.
Amendments
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Additional Process: Article V of the
Constitution
If two-thirds of the states apply to Congress
for a convention for proposing amendments, a
convention will be called.
 This process allows states to get chance to
consider amendments that Congress on its
own might not propose.
 Has NEVER been used.
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Amendments
The Bill of Rights symbolizes the idea that
forms the basis of the American system of
govt: Freedom.
 Freedom to speak out against govt,
freedom to assemble peaceably, freedom
to worship, freedom from govt intrusion.
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Amendments
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The Bill of Rights did not introduce the concept
of freedom from govt power – the early settlers
and colonists began defining liberties shortly
after coming to the New World.
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1649 Maryland passed the Toleration Act – became
the first colony to codify religious liberty,
1650s MA adopted the Body of Liberties – bill of
rights that guaranteed the right to assemble
peaceably, the right to a jury trial in civil cases, the
equal protection of laws, etc.
1682 William Penn created a long list of enumerated
rights in PA’s first Constitution.
Amendments
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State Constitutions:
The Virginia Constitution of 1776 includes a
sixteen-point Declaration of Rights that
restrained all three branches of govt; the first
to proclaim that all men are created equal and
that all power derives from the people.
 Pennsylvania’s Bill of Rights introduced the
separation of church and state, the right to
bear arms and the right to travel.
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Amendments
Delaware’s Bill of Rights was the first to
prohibit stationing of troops in homes during
peacetime
 Maryland’s Bill of Rights outlawed bill of
attainder
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 Legislative
act that finds a person guilty of a crime
w/o conducting a trial; fairly common in the colonial
era, and one of the biggest grievances of the
colonists; eliminating bills of attainder is one of the
cornerstones of Am. legal system.
Amendments
MA’s Bill of Rights outlawed unreasonable
searches and seizures
 The method of creation was interesting:
MA was the first to call a special
constitutional convention – established the
precedent that the Bill of Rights could only
be altered by constitutional convention.
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Amendments – Creating the Bill of Rights
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The Constitution that was signed in Philadelphia
in Sept. of 1787 did not contain a bill of rights.
As states began deliberating the adoption of the
Constitution, the delegates realized their political
mistake in not including a bill of rights – the
Antifederalists used it to rally the public against
the Constitution
In response, James Madison and his fellow
Federalists promised the new Congress would
create a bill of rights as its first order of
business.
Amendments – Creating the Bill of Rights
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Madison took up the issue of a bill of rights in the
summer of 1789.
Borrowing from state bills of rights and other
public writings, Madison proposed seventeen
amendments to the Constitution, which the
House quickly passed. The Senate accepted
and the Bill of Rights was submitted to the states
for ratification.
On Dec. 15, 1791, Virginia became the 11th
state to ratify ten amendments, and with that the
United States Constitution had a Bill of Rights.
Amendments: Freedom of Expression
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The First Amendment: free speech, free
religious expression and a free press
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No coincidence that this provision appears
at the top of the list: The Framers believed
those rights were critical to democracy and
an essential component of liberty.
Amendments: Freedom of Religion
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„Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof”
Amendments: Freedom of Religion
The First Amendment does 2 things:
1. It prohibits the govt from creating an
„official” religion (establishment clause)
2. Prevents the govt from prohibiting the
practice of any religion (free exercise
clause)
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Amendments: Freedom of Religion
In re. 1: The federal and state govts
cannot set up church, give preference to
one religion over another, participate in the
affairs of religious organizations, or punish
individuals because of their religious
beliefs.
 In re. 2: The govt cannot ban religious
practices or interfere with citizens’
religious beliefs.
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Amendments: Freedom of Religion
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Interesting case:
 In the summer of 2003, Alabama Supreme
Court Chief Justice Roy Moore created a
national scandal when refused a federal court
order to remove a 5,300-pound stone
engraving of the Ten Commandments from a
state judicial building. He was removed from
the bench by a Court of the Judiciary.
 In 1995 the American Civil Liberties Union
had sued him for posting the Ten
Commandments in his courtroom.
Amendments: Freedom of press
At the time of drafting the text of the
Constitution, freedom of press referred to
newspapers and pamphlets. Today, it
applies to multiple media: TV, radio,
Internet, magazines, e-mail, billboards,
etc.
 The Framers believed that a free press
was a „super-check” on all three branches
of govt.
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Amendments: Freedom of press
Over the years, the Supreme Court has
interpreted freedom of press broadly,
putting few restrictions on the media.
 Interesting case:
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In 1971, the Supreme Court denied President
Nixon an injunction against the New York
Times from publishing a classified report that
exposed the role of the US in the Vietnam
War. The Court decided that such prohibition
would violate the First Amendment.
The New York Times began publishing the
documents on June 13, 1971
Amendments: Freedom of Speech
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The right to free speech has been a
balancing act between legitimate
expression and public safety.
Amendments: Freedom of speech
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Schenck v. United States, 249 U.S. 47 (1919), was a
United States Supreme Court decision which
concluded that a defendant did not have a First
Amendment right to free speech against the draft
during World War I. Charles Schenck was the
Secretary of the Socialist party and was responsible
for printing, distributing, and mailing 15,000 leaflets to
men eligible for the draft that advocated opposition to
the draft. These leaflets contained statements such as:
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"Do not submit to intimidation", "Assert your rights", "If you
do not assert and support your rights, you are helping to
deny or disparage rights which it is the solemn duty of all
citizens and residents of the United States to retain."
Amendments: Freedom of speech
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The Court, in a unanimous opinion written by Justice Oliver Wendell
Holmes, Jr., held that Schenck's criminal conviction was
constitutional. The First Amendment did not protect speech
encouraging insubordination and held, the circumstances of wartime
permit greater restrictions on free speech than would be allowable
during peacetime.
In the opinion's most famous passage, Justice Holmes sets out the
"clear and present danger" test:
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"The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has
a right to prevent."
This case is also the source of the phrase "shouting fire in a
crowded theater," paraphrased from Holmes' assertion that "the
most stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic."
Amendments: Freedom of speech
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Some interesting issues:
Is burning of a national flag an expression of a
free speech?
 Protection to speech that is considered
slanderous or obscene:
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and regulating obscene speech –
Supreme Court Justice Potter Stewart „test”:
although he couldn’t define obscenity, „I know it
when I see it”.
 Defining
Amendments: The Right to Bear Arms
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The Second Amendment states:
„A well regulated Militia, being necessary to
the security of a free State, the right of
people to keep and bear Arms, shall not
be infringed”
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Does it mean individuals have an inviolable right
to possess a gun or that states have the right to
create an armed militia?
Amendments: The Right to Bear Arms
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Gun owners and powerful lobbying group, the
National Riffle Association (NRA) argue that
citizens have an absolute right to bear arms.
However, many states and the federal govt have
enacted laws restricting gun ownership which
the courts have upheld by reasoning that the
Framers intended for the Second Amendment to
allow states to support armed militias, not to give
individuals an inviolable right to a gun.
Third Amendment
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The Third Amendment prohibits govt quartering
of soldiers in private homes.
It can be viewed in reference to the Second
Amendment.
Madison included it because during the
Revolutionary War, British soldiers frequently
took over citizens’ homes against their will. The
Framers did not want the states of federal govt
doing the same.
Criminal Rights Amendments
The drafters of the Bill of Rights believed
that constitutional protection against
arbitrary prosecution was a critical check
of govt power.
 The Fourth, Fifth, Sixth and Eighth
Amendments safeguard individuals from
abusive practices in the criminal process
and limit the govt’s ability to prosecute
unjustly.
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Criminal Rights Amendments
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No illegal searches or seizures:
 The Fourth Amendment guarantees „the right of
people to be secure in their persons, houses,
papers, and effects, against unreasonable
searches and seizures” w/o a properly authorized
warrant
 The Supreme Court’s interpretation: evidence
obtained illegally (or w/o a warrant) by law
enforcement officials is excluded from trial.
 Exceptions: „good faith” effort of an official to
follow the established procedures.
Criminal Rights Amendments
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The Right Against Self-Incrimination:
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The Fifth Amendment is well known: „I plead
the Fifth”
is also the longest in the Bill of Rights
Criminal Rights Amendments
It establishes the following:
1. No Double Jeopardy Trials: a person cannot
be tried twice for the same crime
2. The Right Against Self-Incrimination: A
person cannot be forced to testify against
himself or herself in a criminal trial – only
when given immunity from prosecution
3. The Right to a Grand Jury: a person cannot
be held for crime punishable by death w/o a
grand jury indictment
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Criminal Rights Amendments
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Landmark case:
1961 Supreme Court case Miranda v.
Arizona – the Court created a notion of
„Miranda Rights” from the Fifth Amendment
right against self-incrimination.
 Under Miranda Rights, law enforcement
officers must inform suspects of their
constitutional right to ask for an attorney and
to remain silent.
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Miranda Rights
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„You have the right to remain silent.
Anything you say can and will be used
against you in a court of law. You have the
right to an attorney present during
questioning. If you cannot afford an
attorney, one will be appointed for you.
Do you understand these rights?”
Criminal Rights Amendments
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The Right to Counsel and Jury Trial:
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The Sixth Amendment gives criminal def. the
right to a speedy jury trial and the right to
counsel
Criminal Rights Amendments
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The right to counsel has evolved over years:
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1932: the Supreme Court held that the right to an
attorney applied ONLY to capital offences (death
penalty)
1963: the Court widened the right to include felony
arrests – cases in which the threat of imprisonment
exceeds 1 year
Present: the Court widened it to include any case that
held a possible prison time.
No right to an attorney in civil cases
Criminal Rights Amendments
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The Seventh Amendment establishes: „in
suits at common law, where the value in
controversy shall exceed twenty dollars, the
right of a trial by jury shall be preserved”
At that time, the twenty dollars limit was
quite high
Today, every civil case tried in federal court
has a jury trial unless both parties whish
otherwise
Criminal Rights Amendments
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No cruel and Unusual Punishment:
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The Eighth Amendment states: „Excessive
bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishment
inflicted”.
Criminal Rights Amendments
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Does the death penalty constitute a cruel and
unusual punishment?
The death penalty has never been cosidered a
cruel and unusual punishment but some
methods of its execution were (public torture)
The Supreme Court has expanded the Eighth
Amendment to inlcude a prohibition against
torture and other forceful measures to obtain
confessions from criminal suspects.
Amendments: Protecting Rights
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Both the Ninth and Tenth Amendments serve as
a reminder that any rights not specifically
enumerated are reserved to the people and the
states, respectively.
Interesting case:
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Roe v. Wade and Griswold v. Connecticut in which
the Supreme Court overturned a Connecticut state
law that outlawed the use of contraception. The Court
decided in those decisions that the Ninth Amendment
included a fundamental right to privacy that could not
be violated
Amendments: Protecting Rights
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The Tenth Amendment declares that „the
powers not delegated to the United States,
are reserved to the States respectively, or
to the people”
Other Amendments
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In addition to the Bill of Rights, The United
States Constitution has been amended
seventeen times:
The first – 1795
 The last – 1992
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Only one amendment has been repealed:
the Eighteenth Amendment – prohibition of
the production, sale or transportation of
alcohol
Thirteenth Amendment
Ratified in December of 1865
 Freed all slaves and abolished slavery in
the United States and its territories
 Former slaves were given the same rights
as other citizens
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Fourteenth Amendment
Ratified in 1868
 The longest and most frequently cited in
Constitutional Law
 Originally, passed to protect the rights of
former slaves
 Over time evolved to mean that all citizens
are subject to DUE PROCESS and equal
protection of the laws
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Fifteenth Amendment
Ratified in 1870
 States: „the right of citizens of the United
States to vote shall not be denied or
abridged by the United States or by any
State on account of race, color, or
previous condition of servitude”
 However, it wasnt until the Civil Rights Act
of 1964, that true voting rights were
established for all Americans
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Sixteenth Amendment
Ratified in 1913,
 It overturned an 1894 Supreme Court
decision that held income taxes
unconstitutional
 It allows Congress to tax income w/o
apportioning the revenues evenly among
the states
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Nineteenth Amendment
Ratified prior to the 1920 presidential
elections
 Gave women the right to vote in state and
federal elections
 First proposed in 1878 and came before
Congress eight times before finally
winning passage
 A few states: Wyoming, Idaho, Utah,
Colorado allowed women to vote before it
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Twenty-second Amendment
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Ratified in 1951
Prohibited presidents from serving more than
two elected terms
It stipulates that if a president succeeds to office
after the halfway point of his predecessor’s term,
he can serve two more elected terms (max. 10
years)
Direct response to FDR’s four terms in office
which many legislators considered excessive
and somewhat reckless
Twenty-fifth Amendment
Ratified in 1967
 Established that the president can appoint
a vice president (subject to vote of
Congress) when the office becomes
vacant
 Before that, the office remained vacant for
the entire term
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Twenty-sixth Amendment
Ratified in 1971
 Establishes that citizens who are eighteen
years or older cannot be denied the right
to vote in federal or state elections by
virtue of age
 A response to discontent from the Vietnam
War, during which thousands of teenagers
died on the battlefield.
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