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A Citizen’s Guide to the Bill of Rights: What the Words Mean Today

Nan Miller

Academic Setting

At Sandia High School in Albuquerque, New Mexico, the student population hovers around two thousand of which roughly sixty-eight percent are Anglo, twenty-one percent Hispanic, and the remaining are small percentages of other ethnicities including Asians, Native Americans, and African-Americans.

About two-thirds of our students are college bound. Composite ACT scores are from 21.6 to 22.3. Since 1996, our percentage of sophomores passing the New Mexico High School Competency Exam has been ninety-four to ninety-five percent. In social studies specifically, the percentage of sophomores passing has been ninety-six to ninety-nine percent. Our students’ scores in the social studies area on the Terra Nova Norm-Referenced Test and on the New Mexico High School Competency Exam were rated as Exceeds Standards.

Our drop-out rates are in the range of six to seven percent per year which, we were told by the administration, is about eighty students per year.

Context and Background

This unit covers the history behind the Bill of Rights as well as the document itself and its modern day applications as interpreted by the United States Supreme Court. It is intended for an eleventh grade United States history course but is also applicable to a twelfth grade government course. These high school juniors and seniors are becoming independent citizens who occasionally come in contact with law enforcement personnel and need practical information about what are legal and acceptable practices both by law enforcement and by themselves in those situations. Additionally, these students could be serving on grand or petit juries in the near future of their lives as they turn eighteen. It is therefore important to them personally, but also to the community they serve, that they have a working knowledge of the rights of citizens and are able to analyze information to seek relevance, appropriateness, and to evaluate positions of the opposing claimants when their rights are in conflict.

At Sandia High School there is a new emphasis on ensuring the instruction and assessment of content standards and benchmarks as adopted by the State Board of Education. Along with these standards and benchmarks, the State Board adopted a series of “Guiding Principles” of social studies instruction which include: “Learning social studies is a life long endeavor... High school students ... undertake increasingly sophisticated study that is engaging, purposeful, and useful in understanding ideas and issues the (sic) impact their lives as individuals and citizens in a democratic society.”

The specific benchmarks for Social Studies adopted by the New Mexico State Board of Education in June, 2001 that this unit addresses are:

I-D#3 Describe primary and secondary sources and their uses in research.
I-D#8 Explain how to use technological tools to research data, verify facts and information, and communicate findings.
III-A#5 Analyze the rights, protections, limits and freedoms included within the United States Constitution and Bill of Rights to include:

-First Amendment guarantees of freedom of religion, speech, press, assembly and petition.
-Fourth, Fifth, and Sixth Amendments addresses search and seizure, rights of the accused, right to a fair and speedy trial, and other legal protections.
-conflicts which occur between rights, including tensions between the right to a fair trial and freedom of the press and between majority rule and individual rights

III-C#2 Analyze and explain the philosophical foundations of the American political system in terms of inalienable rights of people and the purpose of government to include:

-basic philosophical principles of John Locke expressed in the Second Treatise of Government (nature, equality, and dissolution of government).

-foundation principles of laws by William Blackstone (laws in general and absolute rights of individuals).

III-D#3 Demonstrate the skills needed to participate in government at all levels to include:

-debate current issues.

Since the overall student population at Sandia High School appears to be well on its way to being participating and contributing citizens in our democratic system, it is especially important for them to be aware of our civil rights protected in the Bill of Rights. By studying times when citizens believed that their rights have been jeopardized or ignored and their cases brought to the attention of the Supreme Court, I hope they will be more conscientious about protecting our rights as they become fully participating citizens in the years to come.

In this unit students will examine the Bill of Rights and the protections it provides. This involves moving from what the Bill of Rights states in a few sentences to what it actually means to citizens dealing with the justice system. Furthermore, I hope students will appreciate the importance of becoming “watch dogs” of our rights including an evaluation of when and under what circumstances others have found it essential to seek redress when they feel their constitutional rights have been denied. The cases included for study range in punishments delivered from a mere five dollar fine to life imprisonment, and all thought the issue important enough to carry it to the highest court in the country- the Supreme Court. “The strength of the Constitution lies entirely in the determination of each citizen to defend it,” said Albert Einstein (Phillip Morris 1). Only as the citizenry insists upon maintaining these rights can their existence be assured for future generations.

Since two-thirds of our students are college bound, they need further practice in researching, analyzing information, and synthesizing that information. Even those who are not college bound need to know how to access information, and since they are all possible jurists in the months or years to come, they must be able to analyze and evaluate information that is presented to them. Students will analyze court cases as to relevant information as it applies to the Bill of Rights through class discussion and may also utilize the Internet to research individual cases when citizens, who believed their rights had been denied, appealed to the justice system, the outcome of those cases, and the impact of those cases on future interpretations of citizens’ rights.

Of a the topics covered in a course on United States history, none is more relevant than the study of the Constitution by which our government was set up and the Bill of Rights by which the government was further limited in its powers. Although we are fortunate that governmental abuses are not the daily concerns of Americans, there is a danger that because they are not daily concerns we have a tendency to take the protections afforded us in the Bill of Rights for granted.

Perhaps by starting with the Third Amendment, the nature of the citizenry’s general complacency towards the Bill of Rights can be understood. After all, when was the last time the government asked their families, their relatives, their friends, or anyone, to quarter troops in their homes? Considering how far removed we perceive ourselves to be from the threat of the government quartering troops in our homes gives us some idea of how far removed some may feel from the necessity of defending our other rights.

Yet when we stop to consider that the Third Amendment is the least challenged by litigation- there has been only one case brought to the Supreme Court, Engblom v. Carey, 1982 (Silversmith I)- we begin to see how important these rights truly are. Every time a citizen has won a hearing before the United States Supreme Court, a new interpretation of some aspect of the Bill of Rights followed because even if a previous ruling was not overturned, the Justices in rendering their opinion gave new definition and refinement of meaning to what was previously held as the application of a particular right. And if it was not the Supreme Court delivering these refinements, it has been state legislatures defining specific applications for its citizens. Judicial and legislative acts have shaped the rights of Americans over the course of time.

In addition to students perceiving the importance of their rights, they should come to understand the importance of the responsibilities those rights entail. Along with the privileges afforded us as American citizens comes a list of duties of every citizen. These duties include things like obeying laws and making positive contributions to our country, our society, and our way of life by serving on juries, paying taxes, and staying informed of issues in order to make informed choices as we exercise another of our duties, to vote. One of the other duties that seems to be seldom mentioned is safeguarding our rights. And yet if our rights were suddenly denied to us, would any of our other duties as citizens matter as much? Since students cannot safeguard rights unless they know and understand them, it is essential for them to understand what the Bill of Rights states, what it means today, and to appreciate the protections it provides. In order to do this, students will study the present-day interpretation of their rights and the Supreme Court cases that have defined them. Once students are equipped with knowledge and understanding of their rights, they will be better equipped to recognize instances when others have objected when they perceived their rights had been ignored or denied and what was been done to remedy those situations. In this manner, students will be more cognizant of what these rights mean and what recourse is available if they perceive their own rights to be jeopardized.

Finally students should understand exactly the interpretation of these rights today and from where the threats to these rights might be anticipated. Considering the millions of men and women who have given their lives to defend these rights throughout our history, and thousands who risk their lives today to continue the defense of our rights, we who reap the benefits of their efforts have at the very least a moral obligation to them to know, understand, and appreciate what these rights are and why they are that important.

News accounts are almost daily filled with stories that bring to the forefront the issue of rights for individuals or for groups within our society. In analyzing current events in which individual’s rights conflict with the rights of society to safety and security, students will further comprehend the importance of understanding these rights in their application to real world events. Today, issues of gun control, terrorism, and privacy leave policy makers with questions as to how best ensure the greatest amount of freedom to our citizens and still provide for public security.

Historical Background of the Bill of Rights

The framers of the Constitution locked themselves in a stuffy room in Philadelphia in the summer of 1781, and over the course of a few months created a new form of government for the people of the United States. And although that room lacked fresh air, the framers were not operating in a vacuum. The ideas that the framers brought with them as to how to create this new government reached as far back in time as the Magna Carta of 1215 which was the first time that citizens, in this case the nobility, attempted to limit the power and abuses of the government, which at that time was the king of England. Besides the idea of limiting the power of the government, some of the wording of the Magna Carta appears in our Fifth Amendment protection known as the “due process clause”: “No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land (Peck 14).” Other protections afforded us that began with the Magna Carta include the right to a trial by jury, a speedy trial, and the writ of habeas corpus (Peck 14). Overall, the idea of the Magna Carta was that England would henceforth be governed by the rule of law and not by the passing will of the king.

The framers also adopted ideas from the English Bill of Rights of 1689. Among these principles were the rights to arms and that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (Peck 18). These guarantees we see replicated in the Second Amendment’s right to bear arms and the Eighth Amendment protections which are nearly identical in wording.

Besides the impact of emerging rights of Englishmen over five centuries, the overriding influence of the philosophy of John Locke espoused in his Second Treatise of Government had a direct impact on the beliefs of the framers. Locke wrote during the Enlightenment when scientists and philosophers began to explain the world as an orderly place that was comprehensible. Locke’s purpose in writing his Second Treatise was to justify the Glorious Revolution in England and the enactment of the English Bill of Rights. Locke maintained that before governments were instituted, mankind possessed natural rights which made all mankind free and equal. In order to live in an orderly society, Locke said mankind gave up some of their rights to do whatever it pleased. Locke called this a “social contract,” and it resulted in mankind instituting governments to keep order. Locke also stated that government power should also be limited for the good of society. The government was supposed to preserve the individual’s right to life, liberty, and property which according to Locke included all of man’s natural rights (Peck 24). Locke also wrote that the “end of government is the good of mankind” which contributed to Jefferson’s inclusion in the Declaration of Independence: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,...”

Besides the Magna Carta, the English Bill of Rights, and Locke’s Second Treatise, the framers were influenced by an English lawyer, Sir William Blackstone, and a series of lectures on English common law delivered in 1758 and published in England as the Commentaries between 1765 and 1769. Blackstone’s Commentaries became the standard texts for all aspiring lawyers in America through the late nineteenth century to study common law which was thought to contain natural rights and to further define those natural rights in practice (Peck 33). Some 2,500 copies of Commentaries made the voyage to the British colonies in America (Peck 31). In the colonies the first printing of 1,400 copies sold out (Bailey 2). Although bits and pieces of the Commentaries were subject to debate, there seems little question that the framers included some notions of restrictions on the power of government from Blackstone.

Included in Blackstone’s Commentaries was the guarantee of a public trial which we find in Amendment Six:  

To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to goal, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government (Bailey 3).

We know that Blackstone’s Commentaries were discussed frequently throughout the constitutional convention in Philadelphia. For example, James Madison at one point questioned whether ex post facto laws would apply to civil cases. Another delegate, John Dickinson, checked his copy of Blackstone’s Commentaries and concluded that the stipulations prohibiting ex post facto laws applied only in criminal cases (Bailey 6). And so it stands in the Constitution, Article One, Section Nine, Clause Three: No bill of attainder or ex post facto laws shall be passed.

By including common law, the framers preserved guarantees that were not thought of as natural rights. These rights based on common law began to emerge in state constitutions drafted even before War for Independence. In June of 1776, the Virginia Declaration of Rights included a provision that

... in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself ... (Peck 46).

These protections we recognize in the Fifth and Sixth Amendments. We also find in the Virginia Declaration of Rights the seeds of the Second Amendment: “[t]hat a well- regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State” (Peck 46). This Virginia declaration also provided freedom of the press and freedom of religion and included a provision stating that general warrants were “grievous and oppressive, and ought not be granted” (Peck 125). And so we find the seeds of the First and Fourth Amendments.

It is clear the framers brought with them a long tradition of rights for protections from government from the earlier ideals of British common law from the Magna Carta to the writings of Blackstone. However, the final draft of the Constitution did not contain a bill of rights. By the time the final draft of the Constitution was ready to be evaluated by the states for possible ratification, the issue of a Bill of Rights emerged when George Mason and Elbridge Gerry introduced a resolution to add a bill of rights. Mason said, “It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours” (Constitution 2) The motion was quickly and unanimously defeated. Suggested reasons for its defeat include the lengthy convention was winding down, the fear of introducing further controversies at ratifying conventions, or the belief that since Congress was not granted the power to deny any of these rights, Congress could not do that anyway (Constitution 2).

Three arguments were advanced in defense of the new Constitution and its lack of a bill of rights. First, James Madison and C.C. Pinckney contended that a bill of rights was not necessary because the national government had only the powers that were enumerated in the Constitution. Therefore the national government could not deny citizens their inalienable rights because they did not have the power to do so. The states, however, unless limited by the state constitution as some were, could deny citizens these rights, and so it was, according to Madison, up to the states to draft a bill of rights for each state. In fact, individual rights were extensively protected already in state constitutions and to include it at the national level would be redundant (Renstrom 12). Second, George Washington and James Wilson held that not only was it impractical, but also too restrictive to include a bill of rights because if the framers had attempted to list the rights of the citizens and thereby restrict the acts of government, any right that had been omitted would no longer exist. The Federalists said it was nearly impossible to list all of man’s natural rights and that they were guaranteed by the written constitution anyway (Kelly 152).   Third, Madison in a letter to Thomas Jefferson stated not only the reservations stated above but also that “[E]experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State” (Constitution 3). In other words, historically whenever a bill of rights has been in place, it has not proven effective in limiting the power of a government that wished to ignore it.

Although the issue of a bill of rights was thus temporarily put aside, it reemerged as the states debated the merits and demerits of the new Constitution and  it became one focus of the Antifederalists who opposed ratification. When the state ratifying conventions were held, it was only with a promise of adopting a bill of rights as soon as the new government was established that won the ratification vote in Massachusetts, New York and Virginia. There is no doubt that had the states felt some pressure to ratify the Constitution because failure to do so could have terrifying results including economic and political chaos as the new country splintered into smaller divisions either by civil war or by conquest by foreign nations (Kelly 160).

It became, then, the first order of business of the newly created government of the United States to draft a Bill of Rights to be added to the Constitution. Madison campaigned and won a seat in the House of Representatives and then proposed a series of amendments in May, 1789. He said, “It is my sincere opinion that the constitution ought to be revised, and that the first Congress meeting under it ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants” (Constitution 4).

After debate in both the House of Representatives and the Senate twelve amendments were considered for ratification by the states at the end of September, 1789. The first two amendments were never ratified and had to do with regulating the number of members of the House of Representatives and the other postponing congressional pay raises until after an intervening election (Peck 75). The other ten, which we today refer to as the Bill of Rights, was finally ratified on December 15, 1791.

With the protections of the Bill of Rights firmly in place, the country continued under the perception that the Bill of Rights restricted only the national government. And so for the first seven or eight decades of its existence, the Bill of Rights remained quietly in the background. Occasionally it was resurrected as in the Alien and Sedition Acts of 1798 and the challenge that they violated the First Amendment’s protections that the government could not abridge the people’s freedom of speech or the press. It was commonly believed that the Bill of Rights did not apply to the states at all. This position was even officially adopted by the Supreme Court in Barron v. Baltimore, 1833, when the Court refused to apply the Fifth Amendment’s protections to John Barron against the actions of the city of Baltimore. Chief Justice John Marshall stated in the court’s opinion, the Constitution was “ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states” (Renstrom 17-18). There were very few challenges regarding the Bill of Rights until the adoption of the Fourteenth Amendment in 1868 at which time the country acknowledged the application of the Bill of Rights to the states:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And so it is with the adoption of the Fourteenth Amendment that we can begin a study of the Supreme Court’s interpretation of the Bill of Rights and its application to the citizens of every state. Further background information will be provided by lesson as the Supreme Court cases that apply to that Amendment.

Implementation

The following lessons over the Bill Of Rights are organized in numerical order by amendment, so each lesson can be used individually with or without using the others. The lessons over the Amendments are followed by activities for students to engage in further research and debate about current events that produce constitutional interpretation issues. For each lesson on the Amendments, a fist of Supreme Court cases, the background for each, the Court’s decision, and a brief discussion of what that decision entails is listed.

Students should first realize that these rights are not absolute; they are relative to the rights of others. Some discussion of that notion may be necessary before beginning the study of listed rights. Teachers should also assert a disclaimer that interpretations of individual cases are always subject to the courts where highly trained judges and lawyers discuss intricate meanings and argue about conflicting viewpoints of the law. Any case is ultimately decided in the courts regardless of citizens’ particular beliefs in that instance. The study of these cases is not meant to instill students with the belief that they now know everything there is to know about who can do what under various circumstances. The students should understand, however, that there are legal guidelines that governmental officials must follow. If officials fail to act in accordance with these guidelines, there may be recourse for the individual that has been wronged in some fashion.

As the study of the Bill of Rights commences, the teacher has an assortment here of engaging topics to present to the class. Before presenting the Amendments and Supreme Court cases, the students may be required to write a two to three page reflection of what each believes to be a working definition of justice, which is presumably the aim of the Bill of Rights. A class discussion may help them think more deeply about the issue. Questions that may help to enliven the discussion are:

Do we define just behavior by what is for the greater good of society or what is in my own personal interest? Should everyone receive the same treatment or should we consider mitigating circumstances? If we should consider mitigating circumstances, what mitigating circumstances are important and relevant? What factors may mediate justice (maturation, culture, experiences, perspective)?

After this discussion, students may write their own thoughts on justice and then revisit these ideas after the conclusion of the unit. Students may be asked again to write their reflections on what constitutes justice at the conclusion of the discussion of the Bill of Rights and then include the question of what the Bill of Rights does to ensure justice. The same discussion may be held again to see if ideas have remained constant or have changed.

The method of presentation, studying case law, mirrors in a smaller fashion the kind of training typical of most American law schools- “...the use of the case method of law teaching, the distinctive feature of American legal education” (Berman 202). To utilize this method, teachers might consider using a five step approach: “Step I- Determine the facts of the case. Step 2- Identify and analyze the relevant legal issues based upon the facts of the case. Step 3- Formulate arguments. Step 4- Reach a decision supported by reasons for it. Step 5- Provide reasons for the decision and compare it to the actual outcome of the case, including the legal reasoning of the court and the social or political implications of the ruling” (Giger 40).  Since this unit can be utilized at any high school in the country, concentrating on statutes for just the state of New Mexico would be unproductive for many. Cases chosen for study are those that have set precedent and are the most definitive in forming a practical     application of the Bill of Rights today.

Each lesson’s format below is to first define terms within the amendment, understand, the meaning of the amendment as a whole, then discuss particular relevant
Supreme Court cases:
(1) Reading and Vocabulary- Each lesson over the first ten amendments should begin with a reading of the amendment and clarifying the meaning of the specialized vocabulary of each amendment. A list of words begins each lesson for this purpose. (2) Discussion of Issues Historically Encountered- Following a discussion of the meaning of the particular Amendment, the listed questions should be posed for consideration by the class. These are the “What about this...”  and “What about that...” questions. For the teacher the Supreme Court case that helped to define that aspect is provided to aid in finding the brief synopsis of each case which follows. The teacher is free to choose which questions and which cases to discuss within his/her time restraints and with consideration to the needs and interests of the students in the class.
(3) Supreme Court Cases- Once students have pondered and discussed their interpretation, the teacher should provide the specific Supreme Court cases that apply to these questions. The teacher should give the background for each case and allow students to discuss what they perceive to be best solution to the conflict presented. Students should be encouraged to support their opinions with ideas from the Bill of Rights, explaining how that interpretation is in best keeping with intent of the Amendment.
(4) Closure- After discussing the cases listed for each Amendment, the lesson should close with a summary of what that Amendment specifically means after Supreme Court cases have been applied. Students can also be encouraged to discuss whether or not they believe relevant the outcome of that case to be just, whether or not they agree with the Court’s decision, and whether or not the application of the Court’s decision creates justice for our society

Lesson One- Lecture over Background of Bill of Rights
“ The Constitution only gives people the right to pursue happiness. You have to catch it yourself”  -Benjamin Franklin

Before beginning the discussion of the Bill of Rights itself, the students should be aware of the historical background leading to the Bill of Rights and its application to the states. The information provided in the subsection “The Historical Background of the Bill of Rights” above can be the basis of providing them with this information. Teachers should also recommend students of the founding fathers’ recent fight for independence and for what reasons the colonists fought for and achieved their independence from Great Britain. Once they have the historical and philosophical background for the ideas, they will be better prepared to consider the purpose of the Amendments and then their application and relevance today.

Lesson Two- The First Amendment
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof-, 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.

“It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either” -Mark Twain

Vocabulary: respecting, establishment, religion, abridging, assemble, petition, government, redress, grievances

Summary of reading and vocabulary discussion- Freedom of speech, of the press, of assembly are closely tied to freedom of religion and have sometimes been referred to as freedom of conscience. People are free to hold any set of beliefs and in order to adhere to and practice their beliefs, whether religious or political, people are allowed to share their beliefs in the written or spoken word, and to gather into groups to further discuss their beliefs. Being able to seek relief and to repair wrongs done by the government or others is also essential for individuals to freely practice their beliefs.

Questions
-Freedom of religion

Is prayer allowed in public schools? (Engel v. Vitale, 1962)
What about a man who is opposed to fighting in war (conscientious objector) and is drafted? (United States v. Seeger)

What about a student who is required to say the Pledge of Allegiance it is against his/her religion? (Minersville School District v. Gobitis, West State Board of Education v. Barnette)
What about using state tax money to help fund church-related schools? (Lemon v. Kurtzman)

-Freedom of speech and the press
Are there any limitations on freedom of speech and the press? (clear and present danger- Schenck v. United States, obscenity- Miller v. California, “fighting words”- Chaplinsky v. New Hampshire, symbolic expression- Tinker v. DesMoines Independent Community School District)
Is government censorship constitutional? (Near v. Minnesota)
What if an individual’s right to a fair trial is hampered by the press’s extensive coverage of the case? (Sheppard v. Maxwell)

-Right to peaceably assemble and to petition
Is there a conflict between an individual’s right to peaceable assemble and the need to protect society? (DeJonge v. Oregon, Edwards v. South Carolina) Is membership in groups protected? (NAACP v. Alabama)

Supreme Court Cases-
-Freedom of religion

Engel v. Vitale, 1962
Although students who did not wish to recite a nondenominational prayer were not required to do so, the New York Board of Regents recommended that students recite a prayer at the beginning of each school day. Parents in New Hyde Park, New York, filed suit because they claimed the prayer was against their religious beliefs and violated the establishment clause of the First Amendment. The Supreme Court ruled in favor of the parents. Justice Hugo L. Black wrote:

(the) constitutional prohibition against laws respected an establishment of religion must at least mean that ... it is not part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government. (Lindrop 48).

United States v. Seeger, 1965
In 1957 Donald Seeger asked to be classified as a conscientious objector in regards to the military draft. He opposed participation in war based on his religious beliefs but refused to say whether or not he believed in a Supreme Being and held that he had strong religious beliefs even though he did not belong to an organized religious group. He was not granted conscientious objector status and ordered to report for duty. When he failed to report, he was found guilty of violating the selective service law. The United States Court of Appeals overturned his conviction, and the federal government appealed to the Supreme Court. Eight years later the Supreme Court ruled in Seeger’s favor. Justice Tom C. Clark wrote for the majority:

(the) test of belief ‘in a relation to a Supreme Being’ is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for exemption. (Lindop 44).

Minersville School District v. Gobitis, 1940 and West Virginia State Board of Education v. Barnette, 1943
In Minersville, Pennsylvania, the school board required students to salute the American flag day or be expelled. The Gobitis children were Jehovah’s Witnesses and were forbidden by their religion to worship a “graven image.” They refused to salute the flag for that reason, and after being expelled their father filed a suit claiming their freedom of religion had been violated. The Supreme Court ruled that at times religious liberty must give way to political authority and ruled against Gobitis. Then three years later when faced with the same issue, the Supreme Court ruled in favor of Walter Barnette against the West Virginia State Board of Education. Justice Robert H. Jackson wrote in the majority opinion:

Freedom is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by work or act of faith, their faith therein. (Lindop 41).

Lemon v. Kurtzman, 1971
Alton Lemon led a group of parents, taxpayers, and organizations in challenging a Pennsylvania statue that provided reimbursements to private schools for teachers’ salaries and textbooks. The Supreme Court ruled against the Pennsylvania law. The Court created the three-pronged “Lemon test” that requires that ... “(1) ‘the statute must have a secular legislative purpose,’ (2) the statute’s ‘principal nor primary effect must be one that neither advances nor inhibits religion,’ and (3) ‘the statute must not foster an excessive government entanglement with religion” (Peck 216).

-Freedom of speech and the press

Schenck v. United States, 1919
Charles T. Schenck and other members of the Socialist party mailed leaflets to young men urging them to resist the draft during World War 1. Schenck was arrested and charged with violating the Espionage Act of 1917 and obstructing the draft among other charges. Upon conviction, Schenck claimed his right of free speech had been denied. The Supreme Court upheld the convictions with Justice Oliver Wendell Holmes writing in the unanimous decision:

...in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights.’ but, he observed, these were not ordinary times- the nation was at war and the Socialist circular obviously was produced to interfere with the war effort. ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theatre and causing panic.’ The Court concluded that Schenck’s leaflets were used in circumstances that would create ‘a clear and present danger’ which ‘Congress has the right to prevent’ (Lindop 55).

Miller v. California, 1973
Marvin Miller had attempted to sell books by sending unsolicited brochures in the mail and was convicted of distributing obscene material. The Supreme Court ruled in a narrow decision (5-4) against Miller. Chief Justice Warren E. Burger wrote the majority opinion:

...to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. Then Burger presented specific guidelines for determining what is obscene: (1) if the average person, applying contemporary community standards, would find the work as a whole appealing to prurient feelings; (2) if the work depicts or describes sexual conduct in a strongly offensive way; and (3) if the work as a whole lacks serious literary, artistic, political, or scientific value (Lindop 77).

Chaplinsky v. New Hampshire, 1942
Chaplinsky was handing out pamphlets about his religion on the streets of Rochester, New Hampshire when some people became angry and a disturbance broke out. As a traffic officer brought Chaplinsky to the city marshal, Chaplinsky said to him, “You are a God damned racketeer. A damned Fascist and the whole government of Rochester are Fascists or agents of Fascists’ in violation, the state charged, of a law that made it a crime to call another person “offensive and derisive” names. Chaplinsky complained to the Supreme Court that he had been denied his freedom of speech. The Supreme Court ruled against him. Justice Frank Murphy wrote:

...it is well understood that the right of free speech is not absolute at all times and under 0 circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought libelous, and the insulting or ‘fighting’ words- those which by their very utterance inflict injury or tend to incite an immediate breach of peace. (Lindop 60)

Tinker v. DesMoines Independent Community School District, 1969
Mary Beth Tinker, her brother and a friend, wore black armbands to school in a symbolic protest against the war in Vietnam. They were suspended when they refused to take the armbands off. Their parents sued to establish their right to free speech. When the case reached the Supreme Court, they ruled in favor of the students. Justice Abe Fortas wrote, students and teachers do not “... shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Lindop 64).

Near v. Minnesota, 1931
Jay Near published a weekly newspaper which charged that the local government had failed to prosecute “a Jewish gangster” who allegedly ran gambling and racketeering rings in Minneapolis. The county attorney obtained a temporary restraining order to cease publication because Near was printing anti-Semitic stories and charges it could not prove. Both the lower court and the state supreme court upheld the restraining order because it was against the Minnesota Gag Law which gave the state the power to shut down a publication it found to be a “public nuisance.” The Supreme Court narrowly voted that the Minnesota Gag Law was unconstitutional because there could be no censorship before publication only punishment after publication if individuals could prove they had been defamed in violation of libel laws. Thus, prior restraint is considered unconstitutional.

Sheppard v. Maxwell, 1966
In Cleveland, Ohio, in 1954, Dr. Sam Sheppard was charged with the murder of his wife. An enormous amount of pretrial publicity occurred from the beginning with the investigation through the indictment and through the trial. The coverage included extensive witness interviews and information supplied to the media by the prosecuting attorneys. The coverage was generally hostile to Sheppard, and he was convicted. The Supreme Court overturned his conviction in 1966 saying the judge failed to protect Sheppard from the adverse publicity which had made it impossible for him to receive a fair trial (Renstrom 147).

-Right to peaceably assemble and to petition

DeJonge v. Oregon, 1937

An avowed Communist, Dirk DeJonge spoke at a meeting against alleged brutality by the local police in Portland. The meeting remained peaceful, and DeJonge never proposed any violence.   Nevertheless, he was arrested for and convicted of violating a local law that made it a crime to advocate "physical violence, sabotage, or any unlawful acts or methods as a means of accomplishing industrial change or political revolution." Chief Justice Chutes Evan Hughes wrote in the unanimous decision overturning DeJonge’s conviction that:

... peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceful political action cannot be proscribed (prohibited). Those who assist in the conduct of such meetings cannot be branded as criminals on that score. (Lindop 84).

Edwards v. South Carolina, 1963
In March, 1961, in Columbia, South Carolina, demonstrators met at a church and later walked to the state capitol rounds which were open to the public. They carried signs that protested state laws that discriminated against African-Americans. After about an hour the demonstration drew onlookers and police; however, the demonstration remained peaceful. The City Manager ordered the police to disperse the crowd. After reasonable warning the crowd did not disperse. The marchers were arrested and charged with disturbing the peace and fined five to ten dollars each. The marchers appealed their convictions claiming their right to peacefully assemble. The Supreme Court ruled for the marchers saying what they were doing was in compliance with the First Amendment and that law enforcement should have protected their rights to peacefully assemble (Giger 171).

NAACP v. Alabama, 1958
Alabama had attempted to force the National Association for the Advancement of Colored People to disclose it membership list in an attempt to inhibit its activities. The NAACP refused to disclose the list and was sanctioned. The Supreme Court in a unanimous vote reversed the sanction because the court recognized that the NAACP or any group could enhance its effectiveness to further their “... collective effort to foster beliefs which they admittedly have a right to advocate” (Renstrom 132). Having to disclose its membership could adversely affect the organization by reduced financial support directly for the group or could result in public hostility towards its members possibly including loss of employment or physical coercion. “The Court found that Alabama had not shown a 4 controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have” (Renstrom 132).

Lesson Three- The Second Amendment

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

“The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government. “ - Thomas Jefferson

Vocabulary: militia, security, free, bear, arms, infringed

Summary of reading and vocabulary- Since eighteenth-century Americans preferred a volunteer citizen army to a professional standing army in peacetime, they recognized the necessity of citizens and states to maintain arms to protect themselves from not only foreign aggressors but also from a national army under the control of an overly ambitious leader who would seek absolute power (Lindop 24).

Question
Can the government regulate the kinds of firearms possessed by citizens? (United States v. Miller)

Supreme Court Case-
United States v. Miller, 1939
Jack Miler and Frank Layton were charged in Arkansas with illegally transporting from Oklahoma to Arkansas and failing to register a double-barrel, twelve gauge shotgun with an eighteen inch barrel in violation of the National Firearms Act of 1934. Miler claimed the law was unconstitutional because its purpose was not to raise revenue but to usurp the police power of the states and that it violated the protections of the Second Amendment. The District Court in Arkansas held that part of that Act did violate the Second Amendment and dropped the indictment. That decision was then appealed by the United States. The Supreme Court decided that there was no evidence that possession of a sawed-off shotgun was related to the preservation and efficiency of a well-regulated militia as intended by the Second Amendment and reversed the District Court’s decision and remanded the case back to the District Court (Killian).

(Note: The Third Amendment is not covered in a separate lesson because it has required little litigation. It is mentioned in the introductory lecture)

Lesson Three- The Fourth Amendment
The right of the 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 poorest man may in his cottage bid defiance to the Crown. It may be frail; its roof may shake; the wind may enter, the rain may enter; but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement! William Pitt (Arthur 163)

Vocabulary : secure, effects, warrants, probable cause, oath or affirmation

Summary of reading and vocabulary Before Independence, the colonists despised the Writs of Assistance which were general search warrants permitting officials to search for smuggled goods. This amendment provides the people with privacy. At the same time it provides the government with a method by which it may enforce laws and obtain evidence of wrongdoing.

Questions -

What is probable cause and what is necessary to prove probable cause? (Draper v. United States)
Under what circumstances may officers stop-and-frisk without a warrant? (Terry v. Ohio)
May police use illegally obtained evidence against a defendant in court? (Weeks v. United States, Mapp v. Ohio)
What kind of information must be contained in the search warrant? (Ybarra V. Illinois)
 When are searches without a warrant permissible? (movable sites-Chambers v. Maroney, voluntary searches- Schneckloth b. Bustmonte, consent to search by a third party- United States v. Matlock)
Does eavesdropping on telephone conversations (wire-tapping) require a warrant? (Katz v. United States)

What about evidence in plain view? (Washington v. Chrisman)

 Supreme Court Cases- Draper v. United States, 1959
A federal agent arrested James Draper on information supplied by a previously reliable informant that Draper was distributing narcotics. When Draper was arrested, he was searched and found to be in possession of heroin which was used as evidence against him in the trial where he was convicted. The Supreme Court was asked to decide if the arresting officer had probable cause in making the arrest. The Court upheld the conviction and said, “‘We deal in probabilities ... the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’... The court suggested that a standard of probable cause exists where sufficient reasonably trustworthy information is known to authorities to ‘warrant a man of reasonable caution in the belief that an offense has been or is being committed’ (Renstrom 169).” Draper thus established the precedent that searches without a warrant could occur legally in some circumstances if probable cause existed.

Terry v. Ohio, 1968
A veteran police officer observed three men who he believed were “casing” a store. The officer asked them for identification and frisked them when they did not comply with his request for identification. John Terry had a gun and was charged and convicted for carrying a concealed weapon. In rendering their opinion the Court concluded that since the officer did have probable cause, the officer was entitled to conduct a weapons search as a matter of protection. The Court went on to distinguish between a frisk and a full search. In subsequent cases the Court has extended the permissibility of cursory searches to include a frisk based on an informant tip (Adams v. Williams, 1972), a search of the passenger compartment of a stopped car (Michigan v. Long, 1983), and by school officials (New Jersey v. TL.O., 1985)(Renstrom 176).

 Weeks v. United States, 1914
A conviction of Fremont Weeks for using the mail to conduct an illegal lottery was obtained after the police had entered his home and seized documents and letters as evidence without having first obtained a search warrant. When Weeks appealed to the Supreme Court, they unanimously overturned the conviction saying:

(the) ...’tendency of those who execute the criminal laws’ by means of illegal seizures ‘should find no motion in the judgments of courts.’ If illegal searches can yield admissible evidence, the ‘protection of the Fourth Amendment declaring [a citizen’s] right to be secure against such searches and seizures is of no value and, so far as those so placed are concerned, might well be stricken from the Constitution’ (Renstrom 202).

Mapp v. Ohio, 1961

This case established the “exclusionary rule” that illegally obtained evidence cannot be used in a trial. When the police arrived at her duplex apartment to search for evidence that a resident of the duplex was involved in gambling, Dollree Mapp called her lawyer who advised her not to let the police enter without a warrant. The police left but returned after a few hours with a paper that they waved at her and said was a warrant. The police would not let her read it, so she grabbed it and stuffed it in her dress. The police recovered the paper but never let her read it. The police searched her apartment while she sat handcuffed on her bed. They found obscene materials which was against the law in Ohio. She was arrested, charged, tried, and convicted of possessing obscene materials. The items found in the search were used against her at the trial. The Supreme Court ruled in her favor saying “... close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right” (Renstrom 202). Every other means of protecting citizens from unreasonable search and seizure other than excluding its use in trial had been futile. The Fourth Amendment was an “... empty promise unless secured through the exclusionary rule” (Renstrom 202).

Ybarra v. Illinois, 1979
Officers were conducting a search of a tavern for which they had a warrant specifying the tavern and the bartender as targets of the search. While searching the tavern, officers also searched customers including Ventura Ybarra who was found to be in possession of heroin and was subsequently convicted after his motion to suppress the evidence as illegally obtained was denied. His conviction was overturned by the Supreme Court in a decision that read,

State is unable to articulate any specific fact that would have justified the police officer at the scene in even suspecting that Ybarra was armed and dangerous.... A person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person... search or seizure of a person must be supported by probable cause particularized with respect to that person... (Renstrom 173).

Later additions to the United States Code have specified that a search warrant should show “... probable cause supported by an affidavit naming or describing the person and particularly describing the property and place to be searched ...” (Killian 2).

Chambers v. Maroney, 1970
Police stopped a car meeting the descriptions of suspected armed robbers and their car. Those in the car were arrested. The car was searched without a warrant at the police station where it had been taken and weapons and property from the robbery were found. Frank Chambers was convicted and sought to have the conviction reversed on grounds of an unconstitutional search. The Supreme Court unanimously upheld the conviction and said,

(There was) “...a necessary difference between a search of a store, dwelling house or other structure... and a search of a ship, motor boat, wagon or automobile.” These were readily movable and so “... an immediate search is constitutionally permissible” (Renstrom 187).

Schneckloth b. Bustamonte, 1973
Merle Bustamonte gave a police officer permission to search the car he was driving. Bustamonte voluntarily opened the trunk for the officer’s inspection whereupon the officer recovered several stolen checks which were entered into evidence at Bustamonte’s trial. Bustamonte was convicted, and the Supreme Court later upheld the admissibility of the evidence because Bustamonte’s consent to search was voluntary. The majority opinion stated, “...two competing concerns must be accommodated in determining the meaning of a ‘voluntary’ consent- the legitimate need for such searches and the equally important requirement of assuring the absence of coercion” (Renstrom 193).

United States v. Matlock, 1974

William Matlock was convicted of bank robbery. Stolen money was presented as evidence against him. The stolen money was obtained in a search without a warrant of his bedroom. Consent for the search had come not from Matlock but from the other person that shared the bedroom. The Supreme Court ruled that since the bedroom was a condition of joint occupancy, the third person had the ability to give valid consent to authorize the search (Renstrom 194).

Katz v. United States, 1967
Charles Katz was accused of illegal gambling. The evidence against him included a great deal of evidence from an eavesdropping and recording device located outside a public phone booth Katz had used. Justice Potter Stewart wrote the Supreme Court’s decision in the case which was ruled in Katz’s favor:

...the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected .... (Lindop 124)

Washington v. Chrisman, 1982
A police officer stopped Neil Chrisman for illegally possessing liquor and requested identification. When Chrisman requested that he be allowed to go to his dormitory room to get the identification, he was allowed and the officer went with him. While standing in the open doorway, the officer saw marijuana on the desk in plain view. The officer entered the room, confirmed the marijuana, advised Chrisman and his roommate of their rights and asked if he could search the room. Both roommates gave consent, and the officer found more marijuana and LSD. The roommates asked to have the evidence of illegal drugs suppressed because the officer did not have a warrant. The Supreme Court upheld the convictions saying “ (the doctrine) ... permit’s a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be.... (The officer had an) unimpeded view of and access to the area’s contents and its occupants” (Renstrom 185).

Lesson Four- The Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 

“It is better that ten guilty escape than one innocent suffer.”    William Blackstone

Vocabulary: capital, infamous crime, indictment, Grand Jury, subject, jeopardy, due process of law, private property, just compensation

Summary of reading and vocabulary -For serious crimes such as murder, the government must present the case and its evidence to a Grand Jury of citizens who will decide if the government has sufficient evidence to accuse the person and hold him/her for trial. Once a person has been tried and acquitted, the government cannot bring the person to trial again for that specific crime. In order to punish an individual for a violation of law by taking the person’s life, freedom, or property (fines), the government must follow due process which entails acting fairly and in accordance with established law. Finally, if the government must take a person’s private property for public use, that person must be fairly compensated for the loss of his/her property.

Questions -
Are there any rulings governing Grand Jury proceedings? (Costello v. United States) What is meant by double jeopardy? (Green v. United States)
What does it mean that a person is protected from self-incrimination? (Miranda v. Arizona)

What constitutes “due process”? (see “Due Process” under Supreme Court Cases.)

Supreme Court Cases –

Costello v. United States, 1956
Claiming that the indictment for tax evasion against him from a grand jury was based on hearsay, Frank Costello claimed his conviction on that charge should be dismissed. The Supreme Court ruled unanimously against him saying there is no constitutional provision that “prescribes the kind of evidence upon which grand juries may act” (Renstrom 21 1).  This case has three consequences today: 1. Grand Juries should be exposed to the widest range of information to perform their function to accuse or not accuse a person of committing a crime. 2. In investigations the prosecutor guides the Grand Jury in its operations. 3. Grand Jury proceedings are substantially informal and so arise questions of protecting witness’s rights against self-incrimination and the right to the assistance of counsel (Renstrom 212).

Green v. United States, 1957
Green was charged with first degree murder, but the jury returned a guilty verdict for second degree murder. When Green appealed that verdict it was reversed. Green was then retired for first degree murder. The Supreme Court held this a violation of the double jeopardy clause and ruled that “the first trial must be given the same effect as would have been required had the jury returned a verdict which expressly read, ‘We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree” (Miller 833). Justice Hugo Black wrote-

(The State) “...with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty” (Felkenes 320).

Miranda v. Arizona, 1966
Ernesto Miranda was arrested and questioned by police for two hours about a kidnapping and rape of a girl in Arizona. He signed a confession which used against him in trial, and he was convicted. Miranda appealed eventually to the Supreme Court who ruled in his favor in a close vote (5-4). Chief Justice Earl Warren wrote the majority opinion that police must follow three rules to assure a defendant’s constitutional rights:

At the outset, if a person in custody is to be subjected to interrogation, he must be informed in clear and unequivocal terms that he has the right to remain silent. The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court .... if he is indigent a lawyer will be appointed to represent him (Lindop 111).

He has the right to have his attorney there during the interrogation. This ruling has resulted in police informing suspects of their “Miranda rights” upon arrest.

“Due Process”
First students must understand there are two kinds of due process- procedural and substantive. Procedural due process means that people must be treated in a fair and just manner, while substantive due process means that the substance of the laws themselves must be fair. Procedural due process includes cases decided under Amendments Four, Five, Six, and Eight. Some examples of due process include possibly making it a violation of due process if-

•   Police lineup procedures are unduly suggestive.
•   Involuntary confession obtained by using or threatening to use physical force.
•   Government’s unreasonable and unexplained delay in charging a defendant hampers the defendant’s ability to defend himself
•   Failure by the government to disclose exculpatory information which would show the defendant is not guilty.
•   The government entraps a person into committing a crime. (Bergman 17/5)

Lesson Five- The Sixth Amendment

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

“We have a criminal jury system which is superior to any in the world, and its efficiency is only marred by the difficulty of finding twelve men every day who don’t know anything and can’t read” -Mark Twain

Vocabulary: criminal prosecutions [as opposed to civil cases], impartial, ascertained, accusation, witnesses, compulsory process, counsel

Summary of reading and vocabulary- People accused of a crime are entitled to a speedy trial in which the public has full viewing. A jury composed of the defendant’s peers “I will decide if the government has proven with evidence whether or not the accused person did commit the crime. In order to defend himself/herself, the accused must be told what crime he/she is suspected of committing, must have the assistance of a lawyer, must be able to question witnesses against him/her, and must be able to force witnesses who are able to testify in his/her behalf.”

Questions-
What are some factors in deciding if a person’s right to a speedy trial has been denied? (Barker v. Wingo)
What may constitute an unfair trial? (Moore v. Dempsey)
How might a defendant’s rights to a fair trial are denied? (Escobedo v. Illinois)

What does it mean to be confronted with witnesses against him? (Pointer v. Texas)
Does a child victim of molestation have to confront the accused in order to witness against him/her? (Maryland v. Craig)
Are there limitations as to who can be called as a witness in the favor of the defendant? (Chambers v. Mississippi, 1973)
Under what circumstances are citizens guaranteed the right to counsel? (Gideon v. Wainwright)

Supreme Court Cases-

Barker v. Wingo, 1972
Willie Barker’s trial for the murder of an elderly couple was postponed seventeen times over a period of five years. The first eleven times the trial was postponed, Barker did not object as he was on pre-trial release. He was eventually convicted and sentenced to life imprisonment. The Supreme court upheld his conviction and established four criteria for evaluating speedy trial claims:

(1) length of delay; (2) reasons offered by the prosecution to justify the delay; (3) the defendant’s assertion of his or her right to a speedy trial; and (4) prejudice to the defendant as measured by such things as pre-trial detention, anxiety, or impairment to the defense position itself (Renstrom 268).

Moore v. Dempsey, 1923
A group of African-Americans met to discuss hiring a lawyer to represent them against discriminatory actions of local landowners. A white mob broke up the meeting, and several people were killed. Five of the African-Americans were arrested for the killing of the only white man who died. A jury made up of all whites, which included members of a lynch mob who attempted to lynch the arrested men, returned a guilty verdict in five minutes after a trial that lasted only forty-five minutes. All defendant’s were sentenced to death. Appeals were all denied until the Supreme Court overruled the decision and ordered a new trial for the defendants. The Court reasoned that the trial had been dominated by a mob, and the state was required to remedy that situation. The defendants were deprived of life without due process of law (Giger 223, 226).

Escobedo v. Illinois, 1964
Danny Escobedo was arrested for murder. He repeatedly asked for an attorney during the police interrogation. This request was repeatedly denied. He was also not told that he had the right to remain silent during the interrogation. During his trial some of his statements were used against him. He challenged his guilty verdict saying he had not received a fair trial because his rights to counsel and to remain silent had been violated. The Supreme Court eventually overturned his conviction. Justice Arthur J. Goldberg wrote in the majority opinion:

We have ... learned ... that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens’ abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system (Lindop 109).

Pointer v. Texas, 1965
Robert Pointer was accused, at a preliminary hearing where he was unrepresented by a lawyer, of robbery. At the trial when he was convicted, the prosecution used transcripts of that witness’s testimony because the witness had moved out of state. The Supreme Court reversed the conviction because it said the right to cross-examine a witness was central to confrontation which was essential to a fair trial (Renstrom 269).

Maryland v. Craig, 1990
In a prior case, Coy v. Iowa, the Supreme Court ruled against a procedure whereby a child witness in a sexual misconduct prosecution was allowed to testify behind a screen so that the child and the defendant did not have face-to-face contact during the child’s testimony. That interpretation was changed in Maryland. Justice Sandra Day O’Connor wrote for the majority decision that no previous rulings established that a defendant has an “absolute right to a face-to-face meeting” with witnesses against him/her. “The ‘central concern’ of the clause is to ‘insure the reliability of evidence ... by subjecting it to rigorous testing in the context of an adversary proceeding.’ Maryland’s procedure of using closed-circuit television does prevent the child witness from seeing the defendant, but it preserves all the other elements of the confrontation right .... ..... retains full opportunity for contemporaneous cross-examination’” (Renstrom 272).

Chambers v. Mississippi, 1973
Chambers was on trial for the murder of a police officer. Chambers tried to introduce the testimony of three witnesses who heard another person, McDonald, state that he had killed the officer. The trial court did not allow that testimony. It also did not allow Chambers to call McDonald as a witness because under Mississippi law McDonald was not an adverse witness subject to cross-examination for Chambers to establish that McDonald did admit to killing the officer. Justice Powell who wrote the majority opinion that Chambers had been denied a fair trial at least in part because of the prohibition of cross-examination of an adverse witness:

The availability of the right to confront and cross-examine those who give damaging testimony against an accused has never been held to depend on whether the witness was initially put on the stand by the accused or the state (Felkenes 370).

Gideon v. Wainwright, 1963
Clarence Earl Gideon was arrested for breaking into a poolroom to steal money. At trial Gideon asked the court to appoint a lawyer for him because he was unable to afford one. The judge denied him saying the only time a court could appoint a counsel was in capital cases. Gideon was convicted and sent to prison. He appealed to higher courts and finally reached the Supreme Court who unanimously reversed the conviction. Justice Hugo L. Black wrote the opinion saying that the Sixth Amendment guaranteed the right to counsel and that this was “fundamental and essential to a fair trial” (Lindop 107).

Lesson Six- The Seventh Amendment

In suits of common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of common law.   

Vocabulary: suits

Summary of reading and vocabulary-The right to a trial by jury is guaranteed in civil matters- disputes between private parties- as well as criminal matters. The idea in English common law was that matters of law be decided by a judge and matter of fact be decided by a jury (Killian).

Supreme Court Cases-

(Byrd v. Blue ridge Rural Electric Cooperative, Inc., 1958)
Byrd sued blue Ridge rural Electric Cooperative to recover for injuries caused by Blue Ridge’s alleged negligence while he worked as a linesman in a construction crew for a contractor hired by the Cooperative. Byrd claimed “...notwithstanding the state decision holding that this statutory defense must be decided by the judge alone, petitioner is entitled in a federal court to have the factual issues raised by the defense presented to the jury” (Killian).  Justice Brennan wrote in the opinion which reversed the Court of Appeals’ decision and remanded the case back to District Court for retrial:

…The trial judge in the federal system has powers denied the judges of many States to comment on the weight of evidence and credibility of witnesses, and discretion to grant a new trial if the verdict appears to him to be against the weight of evidence. We do not think the likelihood of a different result is so strong as to require the federal practice of jury determination of disputed factual issues to yield to the state rule in the interest of uniformity of outcome (Killian).

Lesson Seven- The Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Vocabulary: bail
Summary of reading. and vocabulary - In order to prepare for trial, and because accused individuals are presumed innocent until proven guilty, defendants are usually allowed to go free until trial after posting bail. Cruel and unusual punishment was common in colonial times and is forbidden.

Questions-
What is the purpose of requiring no excessive bail, and what would be considered excessive? (Stack v. Boyle)
Is capital punishment cruel or unusual? (Gregg v. Georgia) Supreme Court Cases

Stack v. Boyle, 1951

Stack and several others were charged with violating the Smith Act. The United States District Court for the Southern District of California set bail at $50,000 for each individual. The defendants sought to have the bail reduced and submitted various financial statements.... The United States Supreme Court... remanded the case to the district court with instructions to hold a hearing to fix a reasonable bail. Chief Justice Vinson delivered the opinion of the Court:

…federal law has unequivocally provided that a person arrested for a no capital offense shall be admitted to bail. This traditional right to freedom before conviction permit’s the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction .... To infer from the fact of indictment alone a need for bail in an unusually high amount is an arbitrary act. Such conduct would inject into our own system of government the very principles of totalitarianism which Congress was seeking to guard against in passing the statute under which petitioners have been indicted (Felkenes 381-382).

Gregg v. Georgia, 1976
Gregg was convicted of murdering two men during an armed robbery. In Georgia there is one trial for the murder and another for the punishment if guilt was established in the first trial. Gregg was convicted and then given the death sentence which he challenged as unconstitutional because it was cruel and unusual. The Supreme Court said that the death penalty “does not invariably violate the Constitution ... (Capital punishment was an) expression of society’s moral outrage at particularly offensive conduct” (Renstrom 299).

Cruel and unusual punishment was defined by the Supreme Court with a three-part test- 1) It shocks the general conscience. 2) It is unnecessarily cruel. 3) Goes goes beyond legitimate penal ends (Clear 95).

Lesson Eight- The Ninth and Tenth Amendments

(9th) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
(10th) 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.

Vocabulary: enumeration, construed, disparage, delegated

Summary of reading and vocabulary- The Ninth Amendment is intended to protect any other rights that the people should have that had not been listed. The Tenth Amendment gives any power that is not specifically given to the national government to the state governments.

Questions-
Is this where the right to privacy comes in? (Griswold -v. Connecticut, Roe v. Wade)

Supreme Court Cases-
Griswold v. Connecticut, 1965
Griswold, the medical director of a planned parenthood organization, was convicted and fined $100 for providing birth-control devices to married persons in violation of Connecticut laws which made it illegal to use birth-control devices, or give information or instructions to anyone for birth-control devices. Justice Douglas wrote in the majority opinion in Griswold’s favor:

Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment .... We do not sit as a super- legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physian’s role on one aspect of that relation .... The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guaranteed. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact of that relationship (Felkenes 206).

Roe v. Wade, 1973
(Roe is a fictitious named used to protect the identity of the woman having an abortion.) Justice Harry A. Blackmun wrote the majority opinion that the right to privacy “...is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (Lindop 125).  Blackmun said the right was not absolute and set regulations that pertain to different stages of pregnancy.