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(Continued)

Characteristics of Presidential Appointees to the United States Supreme Court by Presidential Administration, 1930–2014

Number of Years Presidential Administration Age at of Previous and Justice Political Party Home State Years on Court Nomination Judicial Experience

Hoover appointees

Charles E. Hughes Republican New York 1930–1941 67 0

Owens J. Roberts Republican Pennsylvania 1930–1945 55 0

Benjamin N. Cardozo Democrat New York 1932–1938a 61 18

F. Roosevelt appointees

Hugo L. Black Democrat Alabama 1937–1971a 51 1.5

Stanley F. Reed Democrat Kentucky 1938–1957 53 0

Felix Frankfurter Independent Massachusetts 1939–1962 56 0

William O. Douglas Democrat Connecticut 1939–1975 40 0

Frank Murphy Democrat Michigan 1940–1949a 49 7

James F. Byrnes Democrat South Carolina 1941–1942 62 0

Harlan Fiske Stone Republican New York 1941–1946a 68 0b

Robert H. Jackson Democrat New York 1941–1954a 49 0

Wiley B. Rutledge Democrat Iowa 1943–1949a 48 4

Truman appointees

Harold H. Burton Republican Ohio 1945–1958 57 0

Fred M. Vinson Democrat Kentucky 1946–1953a 56 5

Tom C. Clark Democrat Texas 1949–1967 49 0

Sherman Minton Democrat Indiana 1949–1956 58 8

Eisenhower appointees

Earl Warren Republican California 1953–1969 62 0

John M. Harlan Republican New York 1955–1971 55 1

William J. Brennan Democrat New Jersey 1956–1990 50 7

Charles E. Whittaker Republican Missouri 1957–1962 56 3

Potter Stewart Republican Ohio 1958–1981 43 4

Kennedy appointees

Byron R. White Democrat Colorado 1962–1993 44 0

Arthur J. Goldberg Democrat Illinois 1962–1965 54 0

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Number of Years Presidential Administration Age at of Previous and Justice Political Party Home State Years on Court Nomination Judicial Experience

Johnson appointees

Abe Fortas Democrat Tennessee 1965–1969 55 0

Thurgood Marshall Democrat New York 1967–1991 59 4

Nixon appointees

Warren E. Burger Republican Minnesota 1969–1986 61 13

Harry A. Blackmun Republican Minnesota 1970–1994 61 11

Lewis F. Powell Jr. Democrat Virginia 1971–1987 64 0

William H. Rehnquist Republican Arizona 1971–1986 47 0

Ford appointee

John Paul Stevens Republican Illinois 1976–2010 55 5

Reagan appointees

Sandra Day O’Connor Republican Arizona 1981–2006 51 6.5

Antonin Scalia Republican Illinois 1986–present 50 4

Anthony Kennedy Republican California 1988–present 51 12

George H.W. Bush appointees

David H. Souter Republican New Hampshire 1990–2009 50 13

Clarence Thomas Republican Georgia 1991–present 43 1

Clinton appointees

Ruth Bader Ginsburg Democrat New York 1993–present 60 13

Stephen G. Breyer Democrat Massachusetts 1994–present 56 14

George W. Bush appointees

John Robertsc Republican New York 2005–present 50 2

Samuel Alito Republican New Jersey 2006–present 56 16

Obama appointees

Sonia Sotomayor Independent New York 2009–present 55 17

Elena Kagan Democrat New York 2010–present 50 0

aDied in office. bPrior to appointment to associate justice. cAppointed Chief Justice in 2006 by George W. Bush. Source: Harold W. Stanley and Richard G. Niemi. Vital Statistics on American Politics. Washington, DC: CQ Press, 1994, pp.294–299. Table adapted by SOURCEBOOK staff. Reprinted by permission. Updated by the authors.

J. Scott Harr, JD Concordia University, Saint Paul

Kären M. Hess, PhD Normandale Community College

Christine H. Orthmann, M.S. Orthmann Writing and Research

Jon Kingsbury, JD Lieutenant, Minneapolis (MN) Police Department

Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United States

Constitutional Law and the

Criminal Justice System

S I X T H E D I T I O N

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WCN: 02-200-202

iii

1 A Historical Overview 3

2 An Overview of the U.S. Legal System 29

3 The U.S. Supreme Court: The Final Word 57

4 Equal Protection under the Law: Balancing Individual, State, and Federal Rights 76

5 The First Amendment: Basic Freedoms 121

6 The Second Amendment: The Gun Control Controversy 166

7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 195

8 Conducting Constitutional Seizures 233

9 Conducting Constitutional Searches 273

10 The Fifth Amendment: Obtaining Information Legally 333

11 The Sixth Amendment: Right to Counsel and a Fair Trial 376

12 The Eighth Amendment: Bail, Fines, and Punishment 408

13 The Remaining Amendments and a Return to the Constitution 435

Brief Contents

Epilogue 451

Appendix A The U.S. Constitution and Amendments 454

Appendix B Reading Legal Citations 467

Appendix C Briefs of Marbury and Miranda 468

Appendix D Shepardizing a Case 470

Appendix E Legal Research 471

Glossary 475

Case Index 483

Authors Index 487

Subject Index 489

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About the Authors xv

Preface xvii

Acknowledgments xxiv

SECTION I A Foundation for Understanding Constitutional Law

Prologue 1

1 A Historical Overview 3 Introduction 4 Where It All Began 5

Contributions from the Past 5 Development of the United States of!America 7

Colonial Dissension Grows 7 The First Continental Congress 9 The Tension Mounts 9 The Revolution Begins 10 The Second Continental Congress 10

The Declaration of Independence 10 What It Cost the Signers 11 The Articles of Confederation 11 The Influence of the Magna Carta 13 The 1787 Convention of Delegates: A Move toward the

Constitution 13 The Constitution Takes Shape 14

The Issue of Slavery 15 Drafting the Constitution 15

The Constitution of the United States: An Overview 16 Article 1: The Legislative Branch 16 Article 2: The Executive Branch 17 Article 3: The Judicial Branch 18 Article 4: Other Provisions 18 Article 5: The Amendment Process 18 Article 6: The Constitution as the Supreme Law 19 The Signing of the Constitution 19 Ratification 20

A Balance Is Struck with the Bill of Rights 21 The Bill of Rights: An Overview 22 A Living Law 25

A Nearly Timeless Document 25 Where the Declaration of Independence, U.S. Constitution, and

Bill of Rights Are Today 26

Contents iStockphoto/Thinkstock

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vi Contents

Summary 27 Discussion Questions 28 References 28 Cases Cited 28

2 An Overview of the U.S. Legal System 29 Introduction 31 Theories about and the Purpose of the Legal System 31

Purpose of Law: Consensus Theory versus Conflict Theory 31 The Purpose of the Criminal Justice System: Crime Control versus

Due Process 32 The Challenge: Balancing Individual and Societal Rights 34

The Law Defined 35 Development of the Law 35 The Continuing Need for Law 36 U.S. Law Lives 36 Categorizing Law 37

Who? (Jurisdiction) 37 How? (Procedural) 38 What? (Criminal or Civil) 38

Researching the Law 40 Sources of Information about the Law 40 Reading Legal Citations 41 Reading Case Law 41 Briefing a Case 42 Shepardizing 43

The Court System 43 The State Court System 45 The Federal Court System 47

Officers of the Court 48 An Adversarial Judicial System 49 Doctrines Governing What Cases Will Be!Heard 49

Standing 49 Mootness 50 Ripeness 50

The Components of the U.S. Legal System: The Big Picture 51 The Juvenile Justice System 51 The Changing Face of American Criminal Justice and

Constitutional Law 53 U.S. Criminal Justice beyond Our Borders 53 Summary 55 Discussion Questions 55 References 56 Cases Cited 56

3 The U.S. Supreme Court: The Final Word 57 Introduction 58 Authority for the Supreme Court 59

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Contents vii

Jurisdiction of the Supreme Court 59 Judicial Review 62

Controversy over and Alternatives to Judicial Review 63 Certiorari: Deciding Which Cases to Hear 64 The Supreme Court Justices 65 The Current Supreme Court 67 Politics and the Supreme Court 68 Public Attitudes toward the Supreme Court 70 Traditions and Procedures 70

Opinions 71 Interpretations 72

Where Supreme Court Decisions May Be Found 72 The Power of the Supreme Court 73 Summary 74 Discussion Questions 74 References 74 Cases Cited 75

SECTION II The Guarantees of the Constitution: Civil Rights and Civil Liberties

4 Equal Protection under the Law: Balancing Individual, State, and Federal Rights 76

Introduction 77 The Thirteenth Amendment 78 The Fourteenth Amendment 80 Due Process 81

Enumerated Rights and Incorporation 81 Procedural Due Process 83 Substantive Due Process 84 Due Process and Privacy Rights 87

Discrimination versus Prejudice 92 The Roots of Racial Discrimination 92 The Struggle for Equality 93

The Rise of Affirmative Action Programs 94 Reverse Discrimination 97 Racial and Gender Equality in the Twenty-First Century 98 Other Forms of Discrimination 98 The Immigration Issue 100

Equal Protection in the Criminal Justice System 106 Discrimination in Law Enforcement 107 Discrimination in the Courts 109 Discrimination in Corrections 111

A Check on Federal Power 113 Federalism Revisited 114 The Public Safety Employer-Employee Cooperation Act of

2009 114

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viii Contents

Summary 117 Discussion Questions 117 References 118 Cases Cited 119

5 The First Amendment: Basic Freedoms 121 Introduction 122 Freedom of Religion 124

The Establishment Clause 125 The Free Exercise Clause 128 Interpretations 131

Freedom of Speech 132 Symbolic Expression 135 Restrictions on Freedom of Speech 139 First Amendment Expression Rights of Public Employees 147 Freedom of Speech and the Internet 150 The Right to Photograph 151

Freedom of the Press 152 Balancing Freedom of the Press with the Right to a Fair

Trial 154 The Effect of Media Coverage on Criminal Investigations 157

The Right to Peaceful Assembly 157 Freedom of Association 158 First Amendment Rights of Prisoners 160 Summary 163 Discussion Questions 163 References 163 Cases Cited 164

6 The Second Amendment: The Gun Control Controversy 166

Introduction 167 Historical Background 168 The Debate: Interpreting the Second Amendment 168

Modern-Day Militias in the United States 168 Balancing Individual and States’ Rights 170

Early Case Law Regarding the Second Amendment: A Slow Start 171

A Shift in Interpretation: The Heller Decision 172 Incorporation of the Second Amendment 173 Variation in State and Local Gun Laws 174

Concealed Carry Laws 175 Castle Laws 176 Restrictions on Types of Firearms 178

Federal Regulation and the Second Amendment 182 The Brady Act 183 The Violent Crime Control and Law Enforcement Act of

1994 184

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Contents ix

The Law Enforcement Officers Safety Act 185 Other Proposed Federal Legislation 185

Guns, Crime, and Violence 186 Cases Governing Police Response to Gun Possession

Reports 188 The Current Gun Control Debate 189

In Opposition to Gun Control 189 In Support of Gun Control 189

Gun Control as a Political Issue 190 Finding Common Ground—Is a Compromise Possible? 190 Summary 192 Discussion Questions 192 References 193 Cases Cited 194

SECTION III The Fourth Amendment: Governing Constitutional Searches and Seizures

7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 195

Introduction 197 The Importance of the Fourth Amendment to Law

Enforcement 200 Who Is Regulated by the Fourth Amendment? 201 The Clauses of the Fourth Amendment 203

Two Interpretations 203 Reasonableness 204 Probable Cause 205 Sources of Probable Cause 206

Search and Arrest Warrants 208 Knock-and-Announce Rule 209 Special Conditions 211 Executing the Warrant 211

The Continuum of Contacts 212 The Law of Stop and Frisk 214

Basic Definitions 214 Terry v. Ohio 215

Consequences of Fourth Amendment Violations 217 The Exclusionary Rule 217 Exceptions to the Exclusionary Rule 222 Internal Sanctions, Civil Liability, and Criminal Liability 228

A Final Consideration: When State Law Conflicts with Constitutional Law 229

Summary 231 Discussion Questions 231 References 232 Cases Cited 232

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x Contents

8 Conducting Constitutional Seizures 233 Introduction 234 Intensity and Scope of a Seizure: Stop and Arrest

Compared 235 Investigatory Stops 237

Establishing Reasonable Suspicion 237 Length of the Stop 240 Protective Actions during Stops 241 The Controversy over Pedestrian Stops 241 Traffic Stops 242 Roadblocks and Checkpoints 248 Stops at International Borders 249

Arrests: An Overview 250 When Arrests May Be Lawfully Made 251

Warrantless Arrests for Crimes Committed in the Presence of an Officer 251

Warrantless Arrests Based on Probable Cause 252 Arrests with a Warrant 253

Where Arrests May Be Made 253 An Arrest or Not? De Facto Arrests 254 The Knock-and-Announce Rule Revisited 255 Community Caretaking Doctrine 255 Escalating Events 255 Pursuit 257 Use of Force 259

What Is Reasonable Force? 260 Use of Less-Lethal Force 262 The Use of TASERs 264 Use of Deadly Force 266

Citizen’s Arrest 268 Immunity from Arrest 269 Summary 270 Discussion Questions 270 References 271 Cases Cited 272

9 Conducting Constitutional Searches 273 Introduction 274 Tenets of Fourth Amendment Search Analysis 275 The Scope of Searches 277 Searches with a Warrant 278

Executing the Warrant 280 Conducting the Search 282

Searches without a Warrant 283 Searches with Consent 284 Frisks 287 Plain Feel and Plain Touch 289 Plain View Evidence 290

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Contents xi

Searches Incident to Lawful Arrest 292 The Automobile Exception 300 Exigent Circumstances 303 Open Fields, Abandoned Property, and Public Places 307

Border Searches 314 Special Needs Searches 317

Administrative Searches 317 Public School Searches 318 Prison, Probation, and Parole Searches 319 Searches of Public Employee Work Areas 322

Electronic Surveillance, Privacy Interests, and the Fourth Amendment 323 The Electronic Communications Privacy Act 326 Balancing Security Concerns with Privacy Interests 328

Summary 329 Discussion Questions 330 References 330 Cases Cited 330

SECTION IV Due Process: The Fifth, Sixth, and Eighth Amendments

10 The Fifth Amendment: Obtaining Information Legally 333 Introduction 334 Government’s Need to Know 336 The Right against Self-Incrimination 336 Due Process of Law 337 The Fifth Amendment and Confessions 338

Voluntariness of Confessions 338 A Standard for Voluntariness 341 False Confessions 341

Miranda v. Arizona 342 The Case 342 The Miranda Warning 343 The Wording 343 Premature Miranda Warnings 345 When the Miranda Warning Must Be Given 345 Waiving and Invoking the Rights 349 Beachheading or “Question First” 354 Miranda Survives a Challenge—Dickerson v. United States 356 Miranda, the Right against Self-Incrimination, and Impeached

Testimony 357 Miranda Issues Continue 358 When Miranda Warnings Generally Are Not Required 358

The Public Safety Exception 359 Consequences of a Miranda Violation 363 Fifth Amendment Miranda Implications of Using

Informants 363

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xii Contents

Entrapment 363 Other Rights Guaranteed by the Fifth Amendment 365

The Right to a Grand Jury 365 Double Jeopardy 367 Just Compensation 368

Fifth Amendment and Corrections 368 USA PATRIOT Act 369

Elements of the USA PATRIOT Act 370 The Renewal of the USA PATRIOT Act 371 The USA PATRIOT Act and a Changing Society 372

Summary 373 Discussion Questions 373 References 374 Cases Cited 374

11 The Sixth Amendment: Right to Counsel and a Fair Trial 376 Introduction 378 Speedy and Public Trial 378 Where the Trial Is Held 380 An Impartial Jury 380 Jury Nullification 382 Being Informed of the Accusation 383 The Right to Confront Witnesses 383 Compulsory Process 384 Right to Counsel 385

The Role of Counsel 385 Development of the Right to Counsel 386 Current Developments 389

Right to Counsel at Critical Stages of Criminal Proceedings 389 Critical Stages during the Criminal Investigation 390 Rights during Identification 392 Critical Stages at Hearings, Trials, and Appeals 395

The Presumption of Effective Counsel 400 Waiver of Sixth Amendment Right to Legal Counsel 402 The Right to Act as One’s Own Counsel 402 Juveniles and the Sixth Amendment 404 The Sixth Amendment and Corrections 404 Summary 405 Discussion Questions 405 References 406 Cases Cited 406

12 The Eighth Amendment: Bail, Fines, and Punishment 408 Introduction 409 A Brief History of Punishment 410 Bail 411

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Contents xiii

The Evolution of Legislation and Case Law on Bail 411 The Bail Reform Act of 1966 411 The Bail Reform Act of 1984 412

Fines 414 Asset Forfeiture and the Prohibition against

Excessive Fines 415 Cruel and Unusual Punishment 416

Punishment Options 420 Physical Forms of Punishment 421

Capital Punishment 423 Is Capital Punishment Cruel and Unusual? 423 Are Lengthy Delays in Execution Cruel and Unusual? 425 Who Can Be Executed? 426 Appeals 428 Costs of the Death Penalty 428 Juries and Capital Punishment Cases 428 Continuing Controversy 429

The Eighth Amendment and Corrections 430 Prisoner Treatment and the Eighth Amendment 431

Summary 433 Discussion Questions 433 References 434 Cases Cited 434

SECTION V Coming Full Circle

13 The Remaining Amendments and a Return to the Constitution 435

Introduction 436 The Remaining Amendments to the Bill of Rights 437

The Third Amendment 437 The Seventh Amendment 437 The Ninth Amendment 438 The Tenth Amendment 440

Amendments beyond the Bill of Rights 443 The Eleventh Amendment (1795) 443 The Thirteenth Amendment (1865) 443 The Fourteenth Amendment (1868) 443 Amendments Related to Elections and Structure

of Congress 444 Voting Rights 446 Taxes 447 Prohibition 447

Attempts at Other Amendments 447 Summary 449 Discussion Questions 449 References 449 Cases Cited 450

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xiv Contents

Epilogue 451

Appendixes

A. The U.S. Constitution and Amendments 454

B. Reading Legal Citations 467

C. Briefs of Marbury and Miranda 468

D. Shepardizing a Case 470

E. Legal Research 471

Glossary 475

Case Index 483

Authors Index 487

Subject Index 489

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This text is dedicated to J. Scott Harr (1953–2008), the original lead author of this text whose 30-year career embodied true commitment to the law and allegiance to the U.S. Con- stitution. Scott was a recipient of the Warren E. Burger Award, given in honor of the former Chief Justice of the U.S. Supreme Court, and a member of the U.S. Supreme Court bar, placing him among attorneys permitted to practice before the Supreme Court. As a police officer, police chief, attorney, and educator in criminal justice, Scott Harr’s passion for and belief in the law was inspirational to his students, colleagues, and the communities in which he served. He is deeply missed.

KÄREN MATISON HESS, PhD., (d. 2010) wrote extensively in law enforce- ment and criminal justice, gaining a respected reputation for the consistent peda- gogical style around which she structured each textbook. She developed the original edition of Constitutional Law and the Criminal Justice System with Scott Harr and carried it through four successful revisions; much of her work and influence remains unchanged in this new edition.

Other texts Hess authored or co-authored for Cengage Publishing are Careers in Criminal Justice and Related Fields: From Internship to Promotion; Community Policing: Partnerships for Problem Solving; Criminal Investigation; Introduction to Law Enforce- ment and Criminal Justice; Introduction to Private Security; Management and Supervision in Law Enforcement; Juvenile Justice; and Police Operations.

Hess held a PhD in English and in instructional design from the University of Minnesota and was a nationally recognized educator. She was an instructor in the English department at Normandale Community College (Bloomington, Minne- sota), a frequent instructor for report writing workshops and seminars for law enforcement agencies around the country, and President of the Institute for Profes- sional Development. In 2006, Hess was honored by the University of Minnesota College of Education and Human Development at the school’s 100-year anniver- sary as one of 100 alumni who have made a significant contribution to education and human development.

CHRISTINE HESS ORTHMANN holds an MS in criminal justice from the University of Cincinnati and has been writing and researching in various aspects of criminal justice for more than 20 years. Orthmann is a co-author of numerous Cen- gage texts, including Community Policing: Partnerships for Problem Solving; Criminal Investigation; Introduction to Law Enforcement and Criminal Justice; Juvenile Justice; Management and Supervision in Law Enforcement; and Police Operations: Theory and Practice. She is also a major contributor to Introduction to Private Security and Careers in Criminal Justice and Related Fields: From Internship to Promotion.

Orthmann is a member of the Academy of Criminal Justice Sciences, the Ameri- can Society of Criminology, the Text and Academic Authors Association, and the National Criminal Justice Honor Society (Alpha Phi Sigma). She also serves as a reserve officer with the Rosemount (Minnesota) Police Department.

About the Authors iStockphoto/Thinkstock

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JON KINGSBURY, JD, has been with the Minneapolis (Minnesota) Police Department since 1995. In addition to his time in uniform, he has experience as a department physical fitness instructor, defense tactics coordinator, field training officer, SWAT team supervisor, and in-service trainer. Lt. Kingsbury received a BA from the University of Minnesota and a JD from Hamline University School of Law, graduating magna cum laude. He instructs in the department of criminal justice at St. Cloud State University. He is a member of the Minnesota State Bar Association and the International Law Enforcement Educators and Trainers Association.

xvi About the Authors

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xvii

Constitutional Law and the Criminal Justice System was written with the criminal jus- tice student in mind. We have developed a natural progression to help students build their knowledge of the Constitution and how it directs law enforcement pro- cedures and practices. Plain language is preferred to legalese. Court opinions are important, and students have opportunities in this text to learn how to read them and, in fact, read and brief some. Mastering the basic concepts of constitutional law is only the beginning, however; U.S. law is unique in that it can, and does, change to meet the changing needs of the society it serves. Thus, an important part of the knowledge students will acquire through this text and course is how to keep cur- rent with this exciting and evolving area of law.

Organization of the Text Section I provides a foundation for understanding constitutional law beginning with a historical overview of how the Constitution came to be (Chapter 1). This is followed by an overview of our country’s legal system (Chapter 2) and an examina- tion of the Supreme Court of the United States as the final word on any legal issues (Chapter 3).

Section II focuses on the guarantees of the Constitution to citizens: their civil rights and civil liberties. The discussion first focuses on equal protection under the law and efforts to balance individual, state, and federal rights (Chapter 4). The focus then shifts to the basic freedoms guaranteed by the First Amendment (Chap- ter 5). This section concludes with a discussion of the gun control controversy aris- ing from the Second Amendment (Chapter 6).

Section III describes in depth the constitutional amendment that governs searches and seizures—the Fourth Amendment. It begins with an overview of constitutional searches and seizures as required by the Fourth Amendment (Chapter 7). A detailed look at conducting constitutional seizures is presented next (Chapter 8), followed by an equally detailed look at conducting constitu- tional searches (Chapter 9).

Section IV examines the three other amendments particularly crucial to those in the criminal justice profession as they apply to citizens’ due process rights. The sec- tion first discusses due process and obtaining information legally as required by the Fifth Amendment (Chapter 10), followed by citizens’ right to counsel and a fair trial as required by the Sixth Amendment (Chapter 11). The section concludes with a discussion of bail, fines, and punishment as regulated by the Eighth Amendment (Chapter 12).

The final section of the text provides a discussion of the remaining amendments and how additional amendments might come to be in the future (Chapter 13).

Preface iStockphoto/Thinkstock

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How to Use This Text Constitutional Law and the Criminal Justice System is a carefully structured learning experience. The more actively you participate in it, the greater your learning will be. You will learn and remember more if you first familiarize yourself with the total scope of the subject. Read and think about the table of contents, which provides an outline of the many facets of constitutional law. Then follow these steps for triple- strength learning as you study each chapter:

1. Read the objectives at the beginning of the chapter. These are stated as “Do You Know?” questions. Assess your current knowledge of the subject of each ques- tion. Examine any preconceptions you may hold. Look at the key terms, and watch for them when they are used.

2. Read the chapter, underlining, highlighting, or taking notes—whatever is your preferred study method.

a. Pay special attention to all highlighted information:

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The key concepts of the text are highlighted in this way and answer the “Do You Know?” questions.

b. Pay special attention to all the words in bold print. The key terms of the chapter appear this way the first time they are used.

3. When you have finished reading the chapter, read the summary—your third exposure to the chapter’s key information. Then return to the beginning of the chapter and quiz yourself. Can you answer the “Do You Know?” questions? “Can You Define?” the key terms?

4. Finally, read the Discussion Questions and be prepared to contribute to a class discussion of the ideas presented in the chapter.

By following these steps, you will learn more information, understand it more fully, and remember it longer.

Note: The material selected to highlight using the triple-strength learning instructional design includes only the chapter’s key concepts. Although this infor- mation is certainly important in that it provides a structural foundation for under- standing the topic(s) discussed, you may not simply glance over the “Do You Know?” highlighted boxes and summaries and expect to master the chapter. You are also responsible for reading and understanding the material that surrounds these basics—the “meat” around the bones, so to speak.

New to This Edition The sixth edition of Constitutional Law and the Criminal Justice System has been com- pletely updated with the most recent Supreme Court decisions and references available. Those familiar with this text will notice that the current edition contains 13 chapters—one fewer than the previous edition—based on the conclusion that the chapter previously titled “Researching the Law” need not constitute a stand-alone

xviii Preface

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chapter; the most pertinent content was redistributed to other chapters, and the “extras” were placed in appendixes. Additionally, two important new learning tools introduced to this edition are:

! case synopses—to provide the student with straightforward legal interpreta- tions of those seminal cases most impacting criminal justice

! Myth versus Reality boxes—designed to dispel some popular misconceptions about Constitutional law

In addition to these new elements, each chapter has been revised and updated as follows:

! Chapter 1: A Historical Overview Streamlined the discussion. ! Chapter 2: An Overview of the U.S. Legal System Added a discussion of

Packer’s model of criminal justice: due process versus crime control; updated case processing statistics; included a brief addition of how civil and criminal trials are governed by different procedural rules; assimilated portions of old Chapter 4 (Researching the Law) into this chapter and moved the remaining content into four new appendixes (B: reading legal citations; C: briefs of Mar- bury and Miranda; D: Shepardizing a case; E: legal research).

! Chapter 3: The U.S. Supreme Court: The Final Word Added discussion of cases in which the Court is more likely to grant certiorari; updated the tables reporting public confidence in and overall opinion of Supreme Court; brief expansion to the discussion on judicial interpretation.

! Chapter 4: Equal Protection under the Law: Balancing Individual, State, and Federal Rights Reorganized the chapter and brought forward the section on the doctrine of incorporation; expanded the discussion of due pro- cess, adding more detailed explanation of selective incorporation versus total incorporation; expanded coverage of procedural due process and defining a liberty interest; expanded the discussion of substantive due process and approaches to determining unenumerated rights: Griswold, Glucksberg; included 13 new cases; discussed the scaling back and discontinuation of ICE’s 287(g) program and redirected efforts into the Secure Communities initiative; updated the Arizona immigration law (S.B. 1070) and 2012 SCOTUS ruling; updated the “In the News” element (this is the first chapter in the text to include this element); inserted critical thinking questions at the end of the “Constitutional Law in Action” scenario boxes (again, this is the first chapter to include this feature).

! Chapter 5: The First Amendment: Basic Freedoms Expanded coverage of the First Amendment, specifically as related to the areas of religion and speech, with the following new cases: McCreary County v. ACLU (2005)— constitutionality of Ten Commandments displays in public places, more detailed discussion of Church of Lukumi Babalu Aye v. Hialeah (1993)— violation of the Free Exercise Clause and infringement on religious conduct, Spence v. State of Washington (1974)—how content of symbolic expres- sion affects First Amendment protection; expanded the discussion on level of protection of speech and standards used by courts to analyze laws restricting speech: content versus content-neutral (Clark v. Community for Creative Non- Violence, 1984—the “time, place, and manner” test for content-neutral law),

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Snyder v. Phelps (2011)—the military funeral protest case, Brown v. Entertain- ment Merchant’s Association (2011)—technology: banning youth from violent video games and content-based restriction on speech, United States v. Alvarez (2012)—the Stolen Valor Act and lying about military service and honors (pro- tected speech), Roberts v. United States Jaycees (1984)—freedom of association; added a brief discussion of the perspectives courts take when analyzing free speech; two “In the News” articles have been included that cover lying about military medals and a federal media shield law.

! Chapter 6: The Second Amendment: The Gun Control Controversy Updated the number of hate groups and other anti-government “Patriot” groups currently active in the United States; added a discussion of the new direction of debate in gun control, now that the right has been incorporated, and how cases are turning to laws that limit guns types, magazine capacity, etc.; added material on how courts differ as to their standard of review when evaluating laws that impose a burden on a person’s Second Amendment right (Gowder v. City of Chicago (2012)—a “text, history, and tradition” approach; United States v. Decastro (2nd Circuit, 2012)—an analysis of heightened scrutiny; United States v. Skoien (7th Circuit, 2009)—the scrutiny standard); added content regarding Indiana’s Castle Doctrine and amendment to the law allowing use of force against police in one’s own home (Barnes v. State, 2011); added a new “Constitutional Law in Action” scenario; included discussion of new firearms bills: S.150: Assault Weapons Ban of 2013; H.R. 1369: Firearm Risk Protection Act of 2013 (bill requiring liability insurance to purchase a firearm); S.54: Stop Illegal Trafficking in Firearms Act of 2013); updated the statistics on firearm violence and homicides, gun ownership, and public opinion on gun control.

! Chapter 7: The Fourth Amendment: An Overview of Constitutional Searches and Seizures Added to the discussion of when a private party can be considered a government agent (United States v. Walther, 1981); expanded the explanations of probable cause (Illinois v. Gates, 1983), no-knock warrants (Richards v. Wisconsin, 1997), and warrant execution (Michigan v. Summers, 1981); added Davis v. United States (2011)—how the Court has begun to move away from the idea that the exclusionary rule is a “self-executing mandate implicit in the Fourth Amendment itself,” added new term attenuation doctrine and discussion of it as an exception to fruit-of-the-poisonous tree (Brown v. Illi- nois, 1975); added briefly to the harmless error discussion and that the stan- dard was derived from Chapman v. California (1967); included Arizona v. Gant (2009) and how that decision shifted Court interpretation of warrantless searches of vehicles and the role of the exclusionary rule.

! Chapter 8: Conducting Constitutional Seizures Expanded the original definition and elements of a seizure, adding United States v. Mendenhall (1980) (the Mendenhall test) and California v. Hodari D. (1991); added a new Constitu- tional Law in Action scenario; added two new “In the News” items that dis- cuss NYPD civil suit regarding stop and frisk and police use of deadly force on unarmed subject); added material on reasonable suspicion versus probable cause, warrantless arrests for misdemeanors not committed in an officer’s presence, and hot pursuit.

! Chapter 9: Conducting Constitutional Searches Moved the discussion of Katz v. United States (1967) to the beginning of the chapter and followed it up

xx Preface

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with United States v. Jones (2012) because Jones modified the definition of a search for Fourth Amendment purposes—analysis must include both the tres- pass doctrine and the reasonable expectation of privacy doctrine; added to the discussion of executing a search warrant with more recent cases (Muehler v. Mena, 2005; Bailey v. United States, 2013); included Messerschmidt v. Millender (2012) as a case example for qualified immunity; modified the three criteria of plain view to better align with Horton v. California (1990); added mention of how courts are split regarding search of cell phones incident to arrest (United States v. Wurie, 2013)—an area of law to watch; added brief clarification to search of people who are companions of the arrestee; explained how Carroll has been modified such that exigency by virtue of a vehicle’s mobility is no longer a requirement for warrantless search of vehicle because courts now focus on probable cause; expanded discussion of Acevedo to further clarify when officers may search containers in vehicles; added a section under Exi- gent Circumstances: Imminent Destruction of Evidence and two new cases (Kentucky v. King, 2011; Missouri v McNeely, 2013); added Ryburn v. Huff (2012) to the emergency aid/“danger to life” discussion; added discussion of Florida v. Jardines (2013) and the “physical intrusion into property” aspect of a war- rantless search; added two new “In the News” features that discuss cellphone searches and abandoned DNA; expanded the discussion of administrative searches with addition of Camara v. Municipal Court of the City and County of San Francisco (1967)—the first case to recognize such searches; added Florence v. Board of Chosen Freeholders of the County of Burlington (2012) and Maryland v. King (2013) to searches of prisoners; added several new cases to the list illus- trating how courts tend to remove the reasonable expectation of privacy when a third-party service provider holds the information in question (United States v. Conner, 2013; United States v. Graham, 2012; United States v. Warshak, 2010).

! Chapter 10: The Fifth Amendment: Obtaining Information Legally Added discussion of Colorado v. Connelly (1986)—voluntariness of confessions; added Watts v. Indiana (1949)—making statements to police without advice of counsel; added Howes v. Fields (2012)—Mirandizing a suspect already in custody for another offense; added United States v. Muhlenbruch (2011)—example of fac- tors the court considers when determining if custody under Miranda exists; added “and Invoking” to the discussion of “Waiving Miranda Rights” and con- tent to clarify the difference between waiving rights and invoking them; added an “In the News” box that discusses public safety exception to Miranda and ter- rorist suspect (Boston marathon bombing Dzhokhar Tsarnaev); added United States v. Patane (2004)—Miranda violation does not require the suppression of the “physical fruits” of the statement, only the non-use of the actual statement.

! Chapter 11: The Sixth Amendment: Right to Counsel and a Fair Trial Expanded the discussion of the right to confront witnesses with addition of four cases: Crawford v. Washington (2004), Davis v. Washington (2006), Michigan v. Bryant (2011), and Bullcoming v. New Mexico (2011); added Perry v. New Hampshire (2012)—Court refused to extend due process analysis to a show-up situation not created by police; added Missouri v. Frye (2012) to Table 11.1, critical stages at which right to counsel exists.

! Chapter 12: The Eighth Amendment: Bail, Fines, and Punishment Added content about the incorporation (or lack thereof) of protection from

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excessive bail; updated asset forfeiture statistics; added a new “In the News” item that covers juveniles sentenced to life without parole for noncapital crimes; updated Table 12.1, statistics regarding offenders given various sen- tencing dispositions; updated data on the death penalty, number of inmates on death row, and cost of capital punishment versus life without parole; added Brown v. Plata (2011)—Prison Litigation Reform Act; expanded the discussion on Whitley v. Albers (1986) and the distinction made between use of force on prisoners under the Eighth Amendment (corrections setting) and that used under the Fourth Amendment (police officers and “free” persons).

! Chapter 13: The Remaining Amendments and a Return to the Constitu- tion Added an explanation of “court of law” versus “court of equity;” expanded the discussion of the Tenth Amendment: government accountability, Congress may not force states to enact and enforce a federal regulatory pro- gram; added Chisholm v. Georgia (1783) and ex parte Young (1908) to discussion of Eleventh Amendment; added Shelby County v. Holder (2013) and the recent Court ruling regarding key aspects of the Voting Rights Act of 1965 to the dis- cussion of voting rights.

Exploring Further The text provides an opportunity for you to apply what you have learned or to go into specific areas in greater depth through discussions and Internet assignments. Complete each of these areas as directed by the text or by your instructor. Be pre- pared to share your findings with the class.

Good learning!

Ancillaries To access additional course materials, please visit www.cengagebrain.com. At the CengageBrain.com home page, search for the ISBN of your title (from the back cover of your book) using the search box at the top of the page. This will take you to the product page where these resources can be found.

Instructor’s Manual with Test Bank Updated by Mark Brown of University of South Carolina, the manual includes learning objectives, key terms, a detailed chapter outline, a chapter summary, les- son plans, discussion topics, student activities, “What If” scenarios, media tools, a sample syllabus and an expanded test bank with 30 percent more questions than the previous edition. The learning objectives are correlated with the discussion top- ics, student activities, and media tools. Each chapter’s test bank contains questions in multiple-choice, true false, completion, essay and new critical thinking formats, with a full answer key. The test bank is coded to the learning objectives that appear in the main text, and includes the section in the main text where the answers can be found. Finally, each question in the test bank has been carefully reviewed by expe- rienced criminal justice instructors for quality, accuracy, and content coverage.

The manual is available for download on the password-protected website and can also be obtained by e-mailing your local Cengage Learning representative.

xxii Preface

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PowerPoint Lectures Helping you make your lectures more engaging while effectively reaching your visually oriented students, these handy Microsoft PowerPoint® slides outline the chapters of the main text in a classroom-ready presentation. Updated by Tony Wolusky of Metropolitan State College, the PowerPoint® slides reflect the content and organization of the new edition of the text and feature some additional examples and real-world cases for application and discussion. Available for download on the password-protected instructor book companion website, the presentations and can also be obtained by e-mailing your local Cengage Learning representative.

Careers in Criminal Justice Website Available bundled with this text at no additional charge. Featuring plenty of self- exploration and profiling activities, the interactive Careers in Criminal Justice web- site helps students investigate and focus on the criminal justice career choices that are right for them. Includes interest assessment, video testimonials from career professionals, résumé and interview tips, and links for reference.

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xxiv

Acknowledgments

The authors would like to thank the reviewers of this edition for their insightful feedback and constructive suggestions: Richard Pacelle, Georgia Southern University; Melissa Harrell, Bainbridge College; Shane Gleason, Southern Illinois University; Linda Rawls, Esq., Davenport University; Charles Johnson, Ph. D., Uni- versity of Maine at Presque Isle; Omobolanle Ene-Korubo, Miles College; Richard Heinzman, Amridge University; Brent Catchings, Southern Union State Commu- nity College; Donna McIntyre, Ogeechee Technical College; and Karen Dowell, LeMoyne-Owen College.

We would also like to thank the reviewers of previous editions: Mitch Chamlin, University of Cincinnati; Bob Diotalevi, Florida Gulf Coast University; Wayne Dur- kee, Durham Technical Community College; Laura Woods Fidelie, Midwestern State University; Jill Jasperson, Utah Valley State College; Morris Jenkins, Univer- sity of Toledo; Mark Jones, Atlantic Cape Community College; Bill Kitchens, Uni- versity of Louisiana–Monroe; Jeff Kleeger, Florida Gulf Coast University; Deborah Klein, College of DuPage; Wayne Logan, SUNY–Albany; Jerry Maynard, Cuyahoga Community College; Milo Miller, Southeast Missouri State University; Russ J. Pom- renke, Gwinnett Technical College; Leanna Rossi, Western New Mexico University; Vincent Russo, City Colleges of Chicago; James Sanderson, Robeson Community College; Joseph G. Sandoval, Metropolitan State College of Denver; Pamella Seay, Florida Gulf Coast University; Caryl Lynn Segal, University of Texas–Arlington; Gene Straughan, Lewis and Clark State College; Robert Wiggins, Cedarville Uni- versity; Denise R. Womer, Southwest Florida College; and John Wyant, Illinois Central College.

The authors also wish to thank acquisitions editor, Carolyn Henderson Meier; editorial assistant, Virginette Acacio; and content project managers, Ruth Sakata Corley and Rita Jaramillo, at Wadsworth Cengage; production service manager, Sue! Nodine; art director, Brenda Carmichael; rights acquisitions specialist, Don Schlotman; copyeditor, Claudia Gravier Frigo; proofreader, Santhosh Kumar Appukuttan; the team at PreMediaGlobal, including photo researcher, Padma Priya Soundararajan, and text researcher, Ganesh Kumar; and the composition team at Integra.

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Constitutional law—no other subject guides our daily lives as does the Constitution of the United States. Each of us can go about our business in a fairly predictable, safe way because of the guarantees and personal freedoms ensured by our Consti- tution. And yet how many Americans know much about it? Most have never read it. Few have studied it. Even fewer have taken the time to contemplate the implica- tions of this incredible document . . . one many have died for.

Walk into any law library and the sheer volume of material is overwhelming. Yet to remain law, every one of these books must balance ever so delicately on one other, much smaller, document—the U.S. Constitution. This is a heavy burden for the Constitution to bear, yet it has done so admirably for more than two centuries. And all you have to do to see that it continues to do so is to maintain an awareness of current events. The U.S. living law changes before your eyes.

When the document was drafted in 1787, it was never meant to be an all- inclusive compendium of legal answers. It was intended as a basic framework within which all other law must remain. It is so powerful a document that any laws people try to impose on it that do not meet its tenets are simply void. However, the difficulties faced by Rosa Parks and other American heroes who have stood up for their constitutional rights remind us that the process is not quite that easy.

Those drafting the Constitution had a timeless vision. They knew society would change, as would its needs. They realized they could never foresee all the issues their country would confront (and what issues there are!). But the framers of our Constitution successfully developed the charters that established our unique U.S legal system. The basic organizational structure is created so no one person, royalty or dictator, shall ever have total rule, and so that a handful of precious basic rights are ensured. This is what the U.S. Constitution is about. It is really quite simple. So why does a course in constitutional law strike fear in the hearts of students of all ages? Because anything that has worked so well for so many, for so long, must have some built-in complexity. And it does—interpretation.

Myriad forces affect interpretation of the Constitution: the time, societal norms, and politics. Indeed, constitutional interpretation is political, explaining why any President wants to exercise the powerful right to appoint justices to the U.S. Supreme Court. This text addresses the awesome power the Court has in being the final arbiter of which laws are constitutional and which are not. In this role, the

Prologue iStockphoto/Thinkstock

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Supreme Court becomes the ultimate maker of law. In the famous case of Marbury v. Madison (1803), the Court considered whether it had the authority to review laws passed by the Congress—and the Court declared that it did. Some argue that by so doing, the U.S. Supreme Court has become the de facto ultimate lawmaking body in our country. So it becomes important to political leaders to have justices on that bench whose ideologies are in accord with theirs. Politics does play a real part in interpreting laws.

The Constitution works because those who wrote it more than 200 years ago provided only basic tenets, leaving the challenge of interpreting them as they relate to current issues. For example, free speech issues are decidedly different today than two centuries ago—but the basic idea remains. The Fourth, Fifth, and Sixth Amend- ments still guide government investigations, but such matters as the use of sophis- ticated electronic eavesdropping and computer equipment now become an issue.

How people interpret the Constitution can cause confusion. For all who are certain how the Constitution should be read (in their favor, of course), others are just as sure it should be interpreted differently. And today’s issues of abortion, gun control, and the environment beg for interpretation, flip-flopping back and forth, up and down, through our legal system, always searching for a final interpretation. Most often, the U.S. Supreme Court, as the final arbiter of law, tells us what the interpretation is—until the Court makes a change itself or until another case with a slightly different twist than previous cases is decided differently.

Before you look ahead, it is important to take time to reflect on the past. History seems to be an accurate predictor of the future because it has a unique way of repeating itself. Yet history is often overlooked. That is why this text starts with a brief, but important, review of what led to the U.S. Constitution, re-establishing the foundation on which the subsequent information neatly rests and making the study of the Constitution logical, perhaps even enjoyable. This point is reinforced by two statues positioned at the rear exit of the National Archives in Washington, DC. Most visitors would never see these imposing statues unless they went out the wrong door. Those who do so may stop to look around to get their bearings and see the crucial advice of one statue, “What Is Past Is Prologue.”

2 Section I A Foundation for Understanding Constitutional Law

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CHAPTER 1 A Historical Overview

G!v" #" $!%&rty, 'r g!v" #" de(t)! —Patrick Henry

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What is past is prologue.

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4 Section I A Foundation for Understanding Constitutional Law

Introduction It has been said that the best way to know where you are going is to look where you have been. As discussed in the introduction to this section, constitutional law can become complicated. Any endeavor becomes easier, however, if a firm base is estab- lished from which to proceed. Although you might think a historical review is unnecessary, or that you took a wrong turn when opening a constitutional law text to begin reading about the colonists, you should gain some important insights.

Do You Know . . .

Can You Define? amendments anti-Federalists constitution constitutionalism Federalists

Great Compromise law Loyalist minutemen

Patriot pluralism ratify supremacy clause

! What law is? ! What pluralism contributes to our society? ! Why the colonists resisted increased taxes? ! What the Boston Tea Party symbolized? ! What resulted from the First Continental Congress? from the Second

Continental Congress? ! What the Declaration of Independence is? ! What the Articles of Confederation were? ! What the Magna Carta is? ! What important role the Magna Carta played in framing the

U.S. Constitution? ! What the primary purpose of the Constitution is? How it is

achieved? ! What the first three articles of the Constitution established? ! How the balance of power was established? ! What the supremacy clause established? ! When and where the Constitution was signed? ! Who the Federalists were? The anti-Federalists? ! Why some states were reluctant to accept the Constitution? ! What the Bill of Rights is and how it was included with the

Constitution? ! What serious omission occurred in the Bill of Rights? ! Where the Declaration of Independence, the U.S. Constitution,

and!the Bill of Rights are housed?

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Chapter 1 A Historical Overview 5

This chapter begins with a discussion of the roots of the U.S. Constitution and contributions from the past. This is followed by an examination of how the United States of America developed, including a discussion of the American Revolution and the signing of the Declaration of Independence. Then the move toward the Constitution is described, followed by an overview of the Constitution itself and the balance struck through the addition of the Bill of Rights. The chapter concludes with an assessment of how the Constitution and Bill of Rights, as examples of living law, are nearly timeless documents, followed by a look at where the Declaration of Independence, the U.S. Constitution, and the Bill of Rights are currently archived.

Where It All Began A constitution is a system of basic laws and principles that establish the nature, functions, and limits of a government or other institution. The U.S. Constitution (always written with a capital “C”) is youthful, which makes it all the more impres- sive. Consider other nations that rely on many more centuries, even thousands of years, of tradition and law that has been fine-tuned to serve them. And although the U.S. Constitution may be young, the history that influenced it can be traced back to when people first began forming groups throughout the world.

Recognize that every culture that has made its way to the United States has been influenced by other cultures, all of which have contributed to the uniqueness of U.S. law. Rules that become laws are a part of any society.

The laws that the framers of the U.S. Constitution were famil- iar with helped form what would become the new law of the new country. The land that now composes North America has always held an attraction. As long ago as 30,000 !.".#., people began tra- versing the continent to seek something that held the promise of more than they had. And whether the motivations for these incredible journeys were as basic as food or as complicated as a search for political and religious freedoms, people came hoping for something better.

Contributions from the Past Representatives from every culture that has come to the United States, regardless of when they arrived or where they came from, share in the historical development of our country and legal sys- tem. It is the common thread that binds all who have come here— the desire for something better—that makes U.S. law so unique in serving the pluralistic society that created it.

Before the colonization of the United States, the American Indian tribes had their distinct territories, languages, and cultures. Pluralism existed long before the colonists “discovered” America. When the colo- nists arrived and began taking over the land occupied by the American Indians, the American Indians began to band together in self-defense.

The colonists came from various countries and were of varied religions and cultures. Initially they settled in specific areas and maintained their original culture, for example, the Pennsylvania Dutch. A pluralistic society challenged the colonists

constitution a system of basic laws and principles that establish the nature, functions, and limits of a government or other institution

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law a body of rules promulgated (established) to support the norms of a society, enforced through legal means (i.e., punishment)

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pluralism a society in which numerous distinct ethnic, religious, or cultural groups coexist within one nation, each contributing to the society as a whole

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6 Section I A Foundation for Understanding Constitutional Law

to exercise tolerance and respect for the opinions, customs, traditions, and lifestyles of others. Cultural and ethnic diversity enriched early American life and strength- ened the emerging nation. The following list shows the ethnic population of the colonies in 1775 by percentage:

48.7 English

20.0 African (slaves)

7.8 Scots-Irish

6.9 German

6.6 Scottish

2.7 Dutch

1.4 French

0.6 Swedish

5.3 Other

Source: Armento et al., 1991, p. 49.

Interestingly, the American Indians are absent from this chart because they were not considered part of the colonies. Also of interest is the 20 percent African popula- tion, who were slaves brought to this country primarily to labor on Southern planta- tions. In many Southern states, slaves outnumbered the colonists. For example, in 1720 South Carolina’s population was 30 percent white and 70 percent black (Simmons, 1976). Concerned about the dangers the oppressed slaves could create, some of the first new laws colonists wrote were slave laws. Most Southern colonies established a special code of laws to regulate the slaves and established special enforcement officers, known as slave patrols, to ensure that these laws were obeyed.

Although American Indians and African Americans are not often given the rec- ognition they are due, they played an important part in the development of America. In 1775, three large groups coexisted in the United States: the American Indians, the African slaves, and the colonists. The history of the United States, however, has generally focused on only the colonists. And the colonists with the most wealth and power—white, male property holders—are credited with creating the basic structure of our country.

Over time, interaction, and eventually, assimilation occurred among the colonists, commonly referred to as a “melting pot” because several different nationalities com- bined into what was known as “the American colonist.” Such assimilation was encouraged by the vast, apparently unlimited resources available, as well as by the struggle for survival. Colonists faced the threat of foreign countries wishing to control them, the dangers posed by the American Indians they were displacing, and the often- rebellious slaves in the South. Therefore, it was natural that they should band together.

Colonies developed and organized in unique ways. The emerging nation saw different priorities and different norms. Some colonies banded together for security in ways not unlike modern businesses. Massachusetts Bay and Virginia, for exam- ple, entered into businesslike agreements, or charters, establishing cooperative government. Other colonists entered into compacts with primarily a religious pur- pose in establishing how they chose to govern themselves, as was the case with the Plymouth, Rhode Island, Connecticut, and New Haven colonies.

Regardless of how unique the states were allowed—in fact, encouraged and demanded—to be, it was undeniable that benefits remained in working together

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Chapter 1 A Historical Overview 7

rather than separately. A fragmented beginning was developing into a single nation. The terms liberty and limited government were ideals that compelled all that was necessary for establishing a new country. But what did these terms mean, and how could a new country be effectively governed for the good of all while ensuring individual liberty and limited government? The task was daunting, but the promise of what could be was highly motivating.

Levy and Mahoney (1987, p. 35) explain how this new country was forging the law to come: “To keep government limited—that is, to remain a constitutional soci- ety, Americans took sovereignty away from government and lodged it with the people . . . with separation of powers. Because the people, rather than government at any level, must be sovereign, they can delegate some powers to their state gov- ernments and others to a national government.”

Development of the United States of!America Despite the colonists’ desire for freedom, America was viewed as an attractive area for expansion by the world powers. Spain, France, and England, as well as other countries, saw great importance in adding the “New World” to their growing empires. This desire for existing nations to make America a part of their govern- ment planted the tiny seed of what was to grow into independence. Just as American Indians had seen their freedom threatened by the colonists and the African American slaves had been stripped of their freedom, the colonists realized their freedom was in jeopardy from abroad. Americans were not willing to sit idly by while those asserting power attempted to coerce them into submission. When the colonies were confronted with attempts, primarily by Great Britain, Spain, and France, to consume and control the New World, resistance grew, exemplifying the spirit associated with the United States.

Colonial Dissension Grows As the colonies’ populations began to grow, so did serious differences between those who saw themselves as free, independent colonies and those who wanted a foreign flag flying over them. As existing empires positioned themselves politically and militarily to expand their boundaries into the New World, conflict was inevitable.

In 1750, French troops began arriving from Canada, building forts and laying claim to land that American Indians were occupying and that England was eyeing. A showdown eventually occurred in 1754, when British leaders ordered the Virginia governor to forcibly repel the French. George Washington and about 150$colonists marched against the French in what became known in North America as the French and Indian War (1754–1763). This competition between the British and the French was part of a larger, general European conflict—the Seven Years’ War. By 1763, after the French and Indian War, French resistance was defeated, and the Treaty of Paris resulted in France losing most of the land it had claimed in America. But British problems were far from resolved.

Great Britain confronted two significant problems, the first being continued westward settlement by the colonists (Divine et al., 1991). This was problematic for

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8 Section I A Foundation for Understanding Constitutional Law

Great Britain because the American Indian tribes fought to protect their land from the colonists, and the British army was unable to protect the isolated frontier settle- ments. For example, nearly 2,000 colonial men, women, and children died during Pontiac’s Rebellion. In December 1763, British and colonial troops finally crushed the American Indians’ defense of their territory. When King George III learned of the fighting, he issued the Proclamation of 1763, closing the western frontier to colonial settlement and placing it under military rule. Settlers already there were ordered to leave.

The second major problem facing Great Britain was the huge debt resulting from English military action to expand the empire. The British Parliament felt the colonists should share this debt. The colonies resisted the restrictions to westward settlement and to paying for Great Britain’s war debts. Significant leaders began emerging— George Washington, Benjamin Franklin, Paul Revere, and Thomas Jefferson—leaders who had found strength in cooperating to resist the French and who now redirected their resistance toward Parliament’s efforts to control America.

Spurred on by its belief that the American colonies should share in the expenses incurred, Parliament passed the Stamp Act in 1765, requiring stamps to be pur- chased and placed on legal documents such as marriage licenses and wills, as well as several commodities, including playing cards, dice, newspapers, and calendars.

Further resentment grew when, in 1765, Parliament passed the Quartering Act, which required colonists to feed and shelter the 10,000 British troops in America. Protests against the increasing British attempts to rule the colonies intensified, but demands that Parliament repeal these laws were rejected—objections to the Quar- tering Act later found their way into the Third Amendment to the U.S. Constitution. In addition, when the king’s troops marched out of Boston on their way to Lexing- ton and Concord, they were searching for munitions—hence the wording of the Second Amendment to the U.S. Constitution.

In 1766, the Stamp Act was finally repealed but was replaced by other taxes on commodities the colonists needed to import from England. New York resisted the Quartering Act, and Parliament again found itself trying to rule from abroad, which was not working well. Dissension increased, as did tensions between the colonists and the British soldiers sent to enforce Parliament’s demands.

Finally, in 1770, after 4,000 armed British troops had come to Boston from Nova Scotia and Ireland, colonists began taunting British soldiers and throwing snow- balls and ice at them. The soldiers fired on these colonists in what became known as the Boston Massacre. Attempting to quell the volatile situation, Parliament even- tually repealed most of the taxes and duties, except those on tea. For both sides, this remaining tax was a symbol of British rule over the colonies. In December 1773, disguised as American Indians, colonists boarded three British ships in Boston Har- bor and dumped the cargos of tea overboard.

As a result of the tea dumping, Parliament passed several laws in retaliation for such an open act of defiance, including the following:

! Town meetings were restricted to one a year. ! The king was required to appoint people to the governmental court rather

than have them elected. ! The Quartering Act was expanded, requiring soldiers to be housed in private

homes and buildings (which seemed like spying to the colonists).

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Chapter 1 A Historical Overview 9

! British officials accused of crimes in the colonies were permitted to be tried in England, away from angry American colonists.

Again the colonists were not complacent. They met to address the situation.

The First Continental Congress In September 1774, 55 delegates from 12 colonies met in Philadelphia to address their mounting complaints against Great Britain. At this First Continental Congress, such leaders as Samuel Adams and Patrick Henry resolved to resist British rule.

The Congress agreed on three important actions. First, they adopted a set of resolutions defining the rights, liberties, and immunities of the colonists and listing actions of the British government that violated these rights. Second, they drew up an address to King George III and another to the citizens of Britain, presenting American grievances and calling for a restoration of American rights. Third, they called for each community to establish a boycott committee to prevent colonists from buying British goods until the Congress’s demands were met. In general, someone who bought British goods was branded a Loyalist or Tory. One who sup- ported the boycott was called a Patriot or rebel.

The Tension Mounts By the beginning of 1775, the colonies were actively preparing for what many saw would be an inevitable confrontation with the British. Minutemen, the name given to the colonial soldiers, were drilled and equipped to respond at a minute’s notice to protect American lives, property, and rights. In March 1775, Patrick Henry deliv- ered his famous plea for freedom:

Sir, we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne and have implored its interposition to arrest the tyrannical hands of the Ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with con- tempt, from the foot of the throne. In vain, after these things, may we indulge the fond hope of peace and reconciliation.

There is no longer any room for hope. If we wish to be free; if we mean to preserve inviolate those inestimable privileges for which we have been so long contending; if we mean, not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon, until the glorious object of our contest shall be obtained; we must fight! I repeat it, sir, we must fight!! . . . It is vain, sir, to extenuate the matter. Gentlemen may cry, peace, peace; but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear or peace so sweet as to be purchased at the price of chains and slavery?

Forbid it, Almighty God—I know not what course others may take, but as for me, give me liberty, or give me death! (Brown and Bass, 1990, p. 140)

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Loyalist a colonist who did not support the boycott of British goods in the colonies and who still paid allegiance to the British monarchy

Patriot a colonist who supported the boycott of British goods in the colonies and who owed allegiance to America rather than to the British monarchy

minutemen colonial soldiers

MYTH Those who fought for inde- pendence intended for the Constitution to protect my right to do whatever I like. After all, “It’s a Free Country!”

REALITY The Constitution protects many civil rights but never declares that individuals are free to do whatever they wish.

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10 Section I A Foundation for Understanding Constitutional Law

The Revolution Begins The American Revolution was led, financed, and designed by and for those with social and economic power. Ironically, some African American slaves joined the fight for freedom. With tensions at their flash point, minutemen in Lexington and Concord were alerted by William Dawes, Paul Revere, and other midnight riders that the British soldiers were coming.

On April 19, 1775, the waiting minutemen in Lexington saw the British Redcoats approaching. Shots were exchanged, and the British killed eight Americans that morning and then moved on to Concord. The battles at Lexington and Concord strengthened the colonists’ resolve and prompted them to meet again to determine how to proceed.

The Second Continental Congress In 1775 the Second Continental Congress convened in Philadelphia.

The Congress also made plans to raise money and buy sup- plies for the new army and to seek support from other countries by opening diplomatic relations with them. The colonists were now prepared for all-out war with the British.

George III denounced the American leaders as “rebels” and ordered the British military to suppress the disobedience and pun- ish the authors of the “treacherous” resolves. The ensuing battles

of Ticonderoga, Bunker Hill, Trenton, and Saratoga, among others, showed the American people’s commitment to fight for what they held so dear—their indepen- dence. As the war continued, prospects for a reconciliation with Great Britain dimmed.

In May, the Congress instructed each colony to form a government of its own, assuming the powers of independent states. The movement for a break with Great Britain spread upward from the colonies to the Continental Congress, with the desire for independence firmly resolved.

The Declaration of Independence In July 1776, after arduous debate, delegates at the Second Continental Congress voted unanimously in favor of American independence. Thomas Jefferson was selected to coordinate writing the formal announcement, which would become known as the Declaration of Independence. It listed the complaints the people had against Britain and justification for declaring independence.

The entire text of the Declaration of Independence can be found on the National Archives website (www.archives.gov). However, it is important to highlight here the important sections of this historic work. First, the opening paragraph explains why the Declaration was issued, that is, the compelling necessity for the colonists to break their political ties with Great Britain. The second paragraph, the crucial statement of the purposes of gov- ernment, declares that a government’s right to rule is based on

permission from the people who are governed. Third, charges against the British king were reviewed in a long list that enumerated how the king’s government had

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Chapter 1 A Historical Overview 11

denied the American colonists their rights. Fourth, the Declaration describes the colonists’ attempts to obtain justice and the British lack of response. Fifth, the last paragraph proclaimed independence and listed actions the new United States of America could take as a country.

What It Cost the Signers The men who signed the Declaration were the elite of their colonies, men of wealth and social standing. They were, indeed, risking all. To sign the Declaration of Inde- pendence was an act of treason—punishable by death. Because it was so dangerous to publicly accuse their king, the names of the signers were kept secret for six months. Although most of the 56 signers survived the war and many went on to illustrious careers—including two presidents, as well as vice presidents, senators, and governors—not all were so fortunate.

Nine of the 56 signers died during the American Revolution, never tasting inde- pendence. Five were captured by the British. Eighteen had their great estates looted or burned by the British. Carter Braxton of Virginia, an aristocrat who invested heavily in shipping, had most of his ships captured by the British navy and his estates ruined. He became a pauper. Richard Stockton, a New Jersey Supreme Court judge, was betrayed by his Loyalist neighbors, dragged from his bed and impris- oned, brutally beaten, and starved. His estate was devastated. Although he was released in 1777, his health was ruined, and he died within five years, leaving his family to live on charity. John Hart, the speaker of the New Jersey Assembly was forced to flee in 1776 at the age of 65 from the bedside of his dying wife. He hid in forests and caves while the British destroyed his home, fields, and mill, and took his 13 children. When he returned, his wife was dead, his children missing, and his estate destroyed. He never saw his children again and died, shattered, in 1779 (Jacoby, 2000).

Indeed, Americans owe much to those 56 signers of the Declaration of Indepen- dence. Because of their commitment to liberty, the colonists were able to move forward in establishing the foundation for their new, free country.

The Articles of Confederation The Second Continental Congress acted to declare independence for America and set about determining how government should be developed. Richard Henry Lee, the delegate who made the resolution for America to be independent, encouraged a confederation of independent states.

In 1777, the delegates to the Second Continental Congress agreed, and the Articles of Confederation created a governmental model for this new country. The 13 states were cherishing their independence and resisted agreeing to a single gov- ernment of any kind. The tension over whether to secede from Great Britain in the first place, both for fear of the Crown’s power and fear of the unknown, was replaced with a new tension. Once the break was made, might not a new govern- ment be even worse? Could any single government meet their needs? The colonists’ solution was a confederation of independent states.

These articles were important because after they were approved in 1781, the duties of government were divided among the states and the central government. During the eight years that America operated under them, great strides were made

MYTH The Declaration of Independence states that ours should be a government “of the people, by the people, for the people.”

REALITY This phrase comes from President Abraham Lincoln’s Gettysburg Address, delivered 87 years after the signing of the Declaration of Independence.

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12 Section I A Foundation for Understanding Constitutional Law

toward unifying a group of states that had, by their own desire, become separate. And although the inadequacies of this document eventually led to the Constitution itself, the Articles of Confederation were an important stepping-stone. The articles established a congress to conduct the necessary tasks of a central government, including waging war and making peace, controlling trade with the Indians, orga- nizing a mail service, and borrowing money.

Reflection on the reasons for the events that led up to this point can easily explain why this preliminary attempt to establish a federal government left Con- gress with much weaker powers than would eventually be established. The found- ers feared a concentrated, centralized political power. Therefore, Congress was not empowered to

! Regulate trade—internally or externally. ! Levy taxes. They could ask but could not compel. ! Draft soldiers. Again, they could ask but could not compel. ! Establish a court system. ! Regulate money.

Nevertheless, Benjamin Franklin commented, “Americans are on the right road to improvement [with the Articles of Confederation], for we are making experi- ments.” George Washington, however, cautioned that the articles did not have the necessary strength to run a new country, and as the confederation stood, it was little more than the “shadow without the substance.”

The colonists were faced with the formidable task of governing themselves and holding together their agreed-on union: “No longer could disputes within and between colonies be carried to London for settlement. No longer did loyalty to the British King or the need for common action in the war against him constitute a unifying principle for Americans” (Beard and Beard, 1968, p. 123).

Loyalists, who had opposed the revolution, called for reestablishing a monar- chy for America. Others called for a military dictatorship. The need for some sort of strong leadership became more apparent as complaints against state governments grew in number and strength. In some states, such as Massachusetts, the right to vote was restricted to property owners and taxpayers. Creditors could sue debtors and take property away from farmers who could not pay what they owed. In 1786, a band of debt-burdened farmers in Massachusetts, led by Captain Daniel Shays, attempted to shut down the courts through armed force:

It was only with difficulty and some bloodshed that the state government put down “Shays’ Rebellion.” Even then popular sympathies with the uprising remained so strong that the state officials did not dare to execute Shays or any of his followers. Whatever the merits of this popular revolt, it increased the fears of property owners and conservatives in general, inciting them to work harder than ever for a powerful national government. (Beard and Beard, 1968, p. 125)

According to David Woodard (personal communication, 2006), “Shays’ Rebellion is one of the most important catalysts, if not the most important, in bringing about the Constitution.” The rebellion reflects the impact of individuals in forging the shape of their government. Another strong influence that came from England was the Magna Carta.

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Chapter 1 A Historical Overview 13

The Influence of the Magna Carta The U.S. Constitution has important ties to what is perhaps the most important instrument of English government—the Magna Carta. This document, which King John was forced to sign on June 12, 1215, ensured feudal rights and guaranteed that the king could not put himself above the law.

To this day, the British have never operated their govern- ment under a centralized “constitution.” Rather, they work under tradition, and at the heart of that tradition is the his- toric Magna Carta, guaranteeing, among other things, basic due process. Those who came to America in 1620 and their descendants, through the American Revolution, ultimately rejected rule under the British Crown and what it had come to symbolize. Nonetheless, present-day American law has deep roots in what Great Britain had established as a legal system. This explains the importance of continuity of law. Consistency must run through all law to develop predictabil- ity. The framers of the U.S. Constitution sought to develop such a format that would guarantee the continuation of basic rights as specific law developed.

At least some stability in life is ensured by holding on to our past. And although the colonists rejected British rule, they recognized that a document such as the Magna Carta provided a stable framework from which to start. First, the Magna Carta was a step away from total rule by a single individual. Second, it had a fairly long history of success by the time the New World began to receive visitors from abroad seeking to colonize. And finally, it provided some security in that not every- thing needed to start from scratch.

For some 20 years, the British Magna Carta significantly influenced the develop- ment of other documents drafted in response to colonists’ ever-growing desires for fairer treatment by their government. The revision of the Articles of Confederation was one such example.

The Articles of Confederation had established “a firm league of friendship” between the states. However, they were inadequate as the foundation for effective government because they lacked a balance of power between the states and the central government. Therefore, in 1787, the Congress of the Confederation called for a convention of delegates from the original states to meet in Philadelphia to revise the Articles of Confederation.

The 1787 Convention of Delegates: A Move toward the Constitution In May 1787, delegates to the Constitutional Convention met at Independence Hall in Philadelphia. George Washington was elected to preside over the meetings. The public was not permitted in the meetings so the delegates could speak more freely. Arduous debate occurred during this Constitutional Convention. The summer of 1787 was one of record heat, and because of the standard dress of the day, the fram- ers worked for only a few hours in the mornings. Afternoons were filled with much camaraderie and imbibing of favorite beverages.

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MYTH The U.S. government is a democracy.

REALITY The Constitution established the U.S. government as a republic, not a democracy. In fact, the word democracy appears nowhere in the Constitution. Article IV, Section 4 of the Constitution states, in part: “The United States shall guarantee to every State in this Union a Republican Form of Government. . . .” A democracy functions under majority rule (mob rule) and lacks legal safeguards protecting the rights of individuals in the minority. Because the framers of the Constitution feared demo- cratic rule and how it allowed the omnipotent majority to trample on the rights of the minority, they created a republic—a represen- tative government rule by law (the Constitution)—recognizing the inalienable rights of all individu- als, not just those of the majority.

• Think about words in the Pledge of Allegiance and what you are vowing to uphold.

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14 Section I A Foundation for Understanding Constitutional Law

The delegates decided how many votes each state would have and that a new document was preferable to merely amending the Articles of Confederation. The challenge of drafting the Constitution began.

Bearing in mind the combined difficulties of communi- cation and travel, the willingness and persistence of the delegates who gathered to shape what was to become the Constitution speaks directly to their need for such a tool. For without it, even the most revered and capable politicians and leaders of the time would have been doomed to failure. Instead, the most incredible chapter of U.S. history was slowly being opened.

The Constitution Takes Shape It can be difficult to grasp all that lies behind the Constitution unless one keeps in mind the underlying reason for the Constitution, that is, to provide a system of government that would prevent one individual from having complete power. Understandably, such a system would, out of necessity, have complexities built in to achieve such a lofty goal, but the basic reasoning is simple.

Issues that became prominent were the structure and powers of Congress (the legislative branch), of the executive branch, and of the judicial system. What was sought was an array of checks and balances that would allow the system to work, while achieving the primary goal of limiting power to any individual or section of the government.

The delegates at the Constitutional Convention, who came from varied back- grounds, rose to the challenge. Individual power was never their objective, but rather societal cohesiveness and democratic power to achieve . . . “one nation, with liberty and justice for all.” The delegates who would help make the Constitution came that year with differing views, but all were advocates of constitutionalism. That is, they believed in a government in which power is distributed and limited by a system of laws that must be obeyed by those who rule. According to that principle, constitutions are a system of fundamental laws and principles that prescribe the nature, functions, and limits of a government or other body. Constitutions are distin- guished from ordinary acts of legislation in that they are drafted by special assem- blages and ratified by special conventions chosen by the people. A constitution is supreme law, not to be annulled by legislation. Constitutionalism is one of the most original, distinctive contributions of the American system of government.

Like those who wrote the Articles of Confederation, the framers of the Constitu- tion recognized that the people are the power. The delegates to the First Continental Congress in Philadelphia had been selected by the people of the colonies, not by existing colonial governments. Likewise, the delegates to the Constitutional Con- vention represented the people.

All states except Rhode Island were represented at the Constitutional Conven- tion, which met at the State House in Philadelphia from May 25 to September 15, 1787. The 55 delegates included many of the most influential men in the country. Eight had signed the Declaration of Independence, 7 were governors of their states, and 39 were congressmen. More than half were college graduates, and at least

constitutionalism a belief in a government in which power is distributed and limited by a system of laws that must be obeyed by those who rule

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Chapter 1 A Historical Overview 15

one-third were lawyers. Most held prominent positions in the Revolutionary War, and all were highly respected property owners.

Although unanimously elected president, George Washington took a limited but effective role in the deliberations. Despite some talk of the larger states getting more votes than the smaller states, the convention followed the procedures used to develop the Articles of Confederation, giving each state one vote, with seven states constitut- ing a quorum. Any vote could be reconsidered, as many were during the convention. The convention was also governed by a rule of secrecy, requiring that nothing said during the deliberations be printed, published, or otherwise communicated without permission. Such secrecy was vital to unbiased discussion and to prevent rumors and misconceptions. The official journal to the convention was closed until 1819.

The convention first debated the Virginia resolution, calling for a national govern- ment with a bicameral legislature, an executive, and a judiciary branch. The smaller states, however, backed the New Jersey Plan, calling for only modest revisions in the Articles of Confederation. In addition, the larger states supported representation pro- portional to a state’s population, whereas the smaller states wanted one or two votes per state. A threatened deadlock was averted by the Great Compromise, which gave each state an equal vote in the Senate and a proportionate vote in the House.

After lengthy debate, the delegates also decided to strengthen the central gov- ernment and to clearly define federal powers. All other powers were entrusted to the individual states and to the people. Specifically, the country was to be governed by a president to be chosen by electors in each state, a national judiciary and a two- chamber legislature. The House of Representatives was to be popularly elected. The Senate, however, which shared certain executive powers with the president, was to be chosen by individual state legislatures. Under the Great Compromise between the large and small states, representation in the House was to be proportional to a state’s population; in the Senate each state was to have two votes. The national plan for government agreed to by the convention delegates clearly separated the powers of the three branches of government and created a system of checks and balances among these three branches, as well as between the federal and state governments and the people both were to serve.

The Issue of Slavery The issue of slavery was omitted during the constitutional debates. Although none of the framers knew whether this radical document would be ratified, they knew it would have zero chance of getting Southern ratification if it dealt with the slavery issue. At the time, slavery was on its way out in many states. Some plantation own- ers in the South had their doubts about slavery as well. It was not until Eli Whit- ney’s invention of the cotton gin six years later that the demand for slaves greatly increased. As Thomas Jefferson said, “Slavery is like holding a wolf by its ears. You don’t like it, but you’re afraid to let it go.” The Tenth Amendment, by default, left the slavery issue up to each state. The omission of slavery from the Constitution, and indirectly the failure to compromise, would lead to civil war.

Drafting the Constitution After all issues had been debated and agreement reached, a committee was formed to draft the Constitution based on those agreements. On Tuesday, August 7, 1787, a

Great Compromise the agreement reached in drafting the U.S. Constitution that gave each state an equal vote in the Senate and a proportionate vote in the House

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16 Section I A Foundation for Understanding Constitutional Law

draft Constitution was ready for a clause-by-clause review (Armento et al., 1991). After four months, what had developed is nothing short of amazing. The material was old, connected back to the Magna Carta, but it was new—with some rather brilliant concepts. It was the brainchild of a relatively select few, but if it were to work, it had to be accepted by all. The task was monumental:

In the Constitution that emerged from these deliberations, the concept of gov- ernment by consent of the governed formed the basic principle; accountability was the watchword. The rights of the people were to be protected by diffusing power among rival interests. (Mitchell, 1986, pp. 1–2)

The final document was put before the Convention on September 17. Following are the provisions of the articles contained in the final draft of the Constitution.

The Constitution of the United States: An Overview Descriptions of the debates that forged the Constitution during the summer of 1787 in Philadelphia are fascinating, and this is certainly worthwhile reading for those

who wish to pursue it further. The following condensation describes the results of those debates—the articles contained in the final draft of the Constitution (Lieberman, 1976, pp. 33–41).

The Constitution is both a structure for government and a set of principles, that is, a method for making law and a law itself. Of all the principles in this 7,000-word document, the single most important principle is that the government has been delegated its powers by the people. The government is not superior to them; its powers come only from them.

Article 1: The Legislative Branch Article 1 establishes the legislature: “All legislative Powers herein granted shall be vested in a Congress of the United States.” This legislature may pass laws, but it has no power to enforce or interpret them. This article contains the Great Compromise. Congress has two chambers, a Senate and the House of Representatives, each acting as a check against the other. Senators are chosen by each state’s legislature, with each state having two senators, and each senator having one vote. (Senators are no longer chosen by state legislatures.)

Laws of the United States—in the form of bills—may originate in either house. The sole exception is that only the House of Representatives may first consider “bills for raising revenue.” The cry “no taxation without representation” was still strong. Only the popular body, the house representing the people, was given the power to initiate taxes.

All bills must clear three hurdles before they can become laws. They first must pass each house in identical form and then meet the approval of the president. The president has the power to veto, but Congress, in turn, can override that veto if each house, by a two-thirds vote, chooses to do so.

Section 8 of Article 1 grants specific powers to Congress, including coining money and establishing post offices, as well as the power to

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Chapter 1 A Historical Overview 17

! Lay and collect taxes. ! Borrow money on the credit of the United States. ! Regulate international and interstate commerce. ! Naturalize foreign-born citizens. ! Raise and govern the military forces. ! Declare war.

In what has come to be known as the “elastic clause,” Congress also was given the power “to make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” In other words, Congress was granted an enormous potential reserve of power to do what was “necessary and proper” to pass laws for the nation. For the first time, the new Congress could do what the old Congress could not: enact laws that directly affected the people.

The Supreme Court addressed the necessary and proper clause in McCulloch v. Maryland (1819), establishing the authority of the federal government to address national issues. Historically, the clause caused considerable debate because of con- cern that it was too open-ended and could lead to excessive federal authority. How- ever, the need to permit Congress to make necessary laws and carry out their enumerated powers was acknowledged in McCulloch v. Maryland, a need reinforced in Kinsella v. Singleton (1960). In this later case, the clause was not considered a grant of federal power, but a declaration that Congress does possess the means needed to carry out its authority as set forth in the Constitution to run the country by enacting laws that are necessary and proper.

Article 1 is just one building block of our national government. Like the other articles and the Bill of Rights, none are exclusive and, in fact, all work together to prevent any one branch of government from having excessive or exclusive power. Although Congress is a powerful element of American law, it remains but one com- ponent required to lawfully interact with the others.

Article 2: The Executive Branch The office of president was created to carry out the law; to provide a commander in chief of the military forces; to carry out the nation’s foreign policy, including enter- ing into treaties with other nations; and to appoint the ambassadors, judges, and officials needed for the government to function. The president is chosen through a complex system that uses “electors,” selected by procedures that vary from state to state. The number of electors equals each state’s number of senators and representa- tives in Congress. Therefore, it is possible for a president to be elected without receiving a majority of the popular votes. Whether an electoral college is needed is a continuing controversy.

As a check against the president’s power, many of the president’s most signifi- cant actions must be approved by the Senate. For example, treaties require a two- thirds Senate vote. Judges and appointed executive officials need a majority Senate vote to be confirmed. In addition, the president must report periodically to Congress on the state of the Union and may recommend laws Congress should enact. The president’s most important duty is phrased, characteristically, in general language requiring that the president “shall take care that the laws be faithfully executed.”

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18 Section I A Foundation for Understanding Constitutional Law

Like the other articles and elements of our legal system, the presidency is not immune from limitations. Nowhere are absolute rights or privileges guaranteed because of the ever-present tension between the people’s rights and the government’s needs. Individuals do not have boundless freedoms, and their government does not have boundless power, including the presidency. Although the president has great power, it is not absolute. A president can be impeached or removed from office. Although two presidents have been impeached (Andrew Johnson and Bill Clinton), none have actually been removed from office. No public figure can completely escape public or private accountability, as evidenced by the Supreme Court permitting the sexual harassment suit by Paula Jones to proceed (Clinton v. Jones, 1997).

Article 3: The Judicial Branch The third article completes the national government structure, vesting judicial power in the U.S. Supreme Court, as discussed in depth in Chapter 3. Congress is also empowered to create lower courts. Federal court judges are appointed by the presi- dent and hold office for life.

As a check against judicial power, Congress is authorized to regulate the courts’ dockets by deciding what kinds of cases the Supreme Court may hear on appeal. This power of Congress to regulate the courts’ jurisdiction further illustrates how each branch of government is given significant power to affect the others. Congress enacts laws, but the president may veto them, and the courts may interpret them.

Federal versus State Power The fact that powers not specifically delegated to the federal government were reserved for the states and the people has been a big issue. Many court cases and policy debates revolve around that issue. Slavery, seg- regation, education, transportation, and environmental concerns, such as migrating waterfowl versus nonmigratory birds and the like, are all issues that at one time or another have inspired debate on the role of the federal government versus that of state government.

Checks and Balances The Constitution established an effective system of checks and balances on the power of any one of the three branches of government. The president has veto power, but Congress can override with two-thirds majority vote. The president nominates Supreme Court Justices, but the legislative branch confirms or denies the nomination. The president is commander in chief, but the legislative branch declares war and pays for it.

Article 4: Other Provisions Article 4 contains a variety of provisions, some taken over from the Articles of Con- federation, further describing the creation of the federal union. The article also deals with criminal extradition, formation of new states, and Congress’s power to govern in territorial lands not yet states.

Article 5: The Amendment Process Article 5 dictates how the Constitution may be amended. An amendment must first be approved by a two-thirds vote in each house of Congress. It is then submitted to the states for ratification, requiring the approval of three-fourths of the states to

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Chapter 1 A Historical Overview 19

pass the amendment. The people may also begin the amendment process if the legislatures of two-thirds of the states call for a constitutional convention. This article was extremely important in allowing the Bill of Rights to be added to the Constitution, as discussed shortly.

Article 6: The Constitution as the Supreme Law The second section of Article 6 contains the famous supremacy clause:

The Constitution and the Laws of the United States which shall be made in Pur- suance thereof; and all Treaties made, or which shall be made, under the Author- ity of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Here, in a stroke, was the solution to the problem of dual sovereignty of the federal and state governments. It was denied. In matters over which the Constitu- tion grants the federal government authority, the states must concede.

This clause establishing the supremacy of federal law did something else momentous: It permitted the Supreme Court to become the ultimate decision maker in whether laws and actions of the government circumvent the Constitution and to invalidate them if they do so. This article also requires the allegiance of every federal and state official to the Constitution.

The Signing of the Constitution Once the overall format was agreed on, the next step was to seek approval of the document by the delegates. After hearing the debate over the final version of the Constitution, Benjamin Franklin, on Saturday, September 15, 1787, eloquently urged the convention to respect the spirit of compromise:

I confess that there are several parts of this Constitution which I do not at present approve. But I am not sure I shall ever approve them. For having lived long, I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise . . . . I consent, Sir, to this Constitu- tion because I expect no better and because I am not sure that it is not the best. (Lieberman, 1987, p. 447)

Franklin urged, “Every member of the Convention who may still have objections to it [the Constitution], would, with me, on this occasion doubt a little of his own infal- libility, and . . . put his name to this instrument.” He moved that the Constitution be approved unanimously and signed by those states present. The delegates voted to accept the Constitution, and the following Monday, September 17, it was ready to be signed.

Forty-two of the 55 delegates were present on September 17 to sign the Consti- tution, with only three members refusing to sign, including George Mason, who cited the lack of a bill of rights as a remaining concern. He proposed adding a bill of rights, but other delegates argued that the individual states’ declarations of rights would sufficiently protect individual liberties. They voted against adding a

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20 Section I A Foundation for Understanding Constitutional Law

bill of rights. James Madison was quoted (The Records of the Federal Convention of 1787):

Whilst the last members were signing it, Doctor Franklin looking towards the President’s chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had found it difficult to dis- tinguish in their art a rising from a setting sun. I have, said he, often in the course of the session . . . looked at that [sun] behind the President without being able to tell whether it was rising or setting. But now at length I have the happiness to know that it is a rising and not a setting sun. (Armento et al., 1991, p. 133)

The delegates agreed that the Constitution should next be submitted to special conventions of the states for ratification.

Ratification Although the delegates to the Constitutional Convention had agreed to the makeup of the Constitution, each state had to approve, or ratify, it. Delaware was the first state to do so. New Hampshire cast the decisive vote, but ratification was not a sure

thing. Many people had grave reservations. Although they were all supportive of the Constitution, the dispute tended to be more about how strong or weak the central government should be.

Political leaders such as Alexander Hamilton, James Madison, and John Jay wrote powerful essays in a newspaper called The Feder- alist Papers, which encouraged the ratification of the Constitution and the formation of a strong national government. The anti-Federalists, however, feared such a strong federal government; what would

assure the country that this attempt would not fail, too? Further, they were reluctant to ratify the Constitution without a bill of rights to guarantee individual liberties.

The anti-Federalists were not successful in blocking the final ratification of the Constitution, but they did raise awareness regarding the need for a bill of rights. Because the Constitution primarily addressed the formation of a government with limited and distributed powers, a bill of rights to protect individuals was not con- sidered necessary.

After the Philadelphia convention, most of those who drafted the Constitution could not understand why a bill of rights was such an issue for many states. They believed the Constitution could stand on its own. Nonetheless, most Federalists were willing to compromise on this issue to ratify the Constitution and establish a new govern- ment. Fearing defeat in the Massachusetts ratifying convention,

Federalist leaders sought support by drafting a list of amendments, additions to improve the Constitution. They enlisted John Hancock, the most popular man in Mas- sachusetts, to present these amendments to the state convention. The proposed amend- ments made the Constitution acceptable to many who had opposed ratification.

The compromising strategy of the Massachusetts Federalists turned the tide of ratification. As other states debated ratification, they also insisted on amendments that would guarantee individual rights.

The Bill of Rights became part of the Constitution in 1791 by the addition of 10 amendments designed to ensure that the national government would not inter- fere with individual liberties. By December 15, 1791, the states had ratified 10 of

ratify approve a constitutional amendment

amendments changes to a constitution or bylaws

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Federalists colonists who favored a strong federal government

anti-Federalists colonists who opposed a strong federal government

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Chapter 1 A Historical Overview 21

the 12 proposed amendments to the Constitution, and the United States had a Bill of Rights. Figure 1.1 illustrates the timeline of events occurring in the United States and elsewhere between the 1620 landing of the Mayflower and the 1791 ratification of the Bill of Rights.

A Balance Is Struck with the Bill of Rights The framers of the Constitution sought to balance the powers of the legislative, executive, and judicial branches of government. The proposed amendments aimed at balancing the rights of the states and of individual citizens against the powers of the central government. In December 1791, the 13 states had passed the 10 amend- ments that constitute the Bill of Rights. Proof of how well the Constitution would work was seen by the fact that it could, as a single document, embrace the additions that those it was drafted to serve determined necessary. Thomas Jefferson’s com- ment on this process was of great significance: “The example of changing a Consti- tution by assembling the wise men of the State instead of assembling armies.”

The Bill of Rights is intriguing because, whereas the Constitution was general, the amendments were specific. However, even these directives have offered enough room for interpretation to keep a steady flow of constitutional cases before courts at all levels.

The Bill of Rights continues as an outgrowth of the Magna Carta. The English, including those who left to establish the United States, found that documenting their laws reduced the likelihood of abuse, misunderstanding, or being forgotten. Because the charters and compacts of the colonies were all different, the benefits of some uniformity in a national set of laws made sense.

It was illogical for civil liberties to be safe from an overly strong federal govern- ment, only to be abused by the states. And it made even less sense for some states to have a version of a bill of rights and others to have none. James Wilson of Penn- sylvania suggested, “An imperfect bill of rights was worse than none at all because the omission of some rights might justify their infringement by implying an unin- tended grant of government power” (Levy, 1999, p. 21).

Americans were becoming more comfortable with a clearly established, written law. Documented agreements worked. Recognizing that certain rights were so important to the country to ensure that no government, state or federal, could infringe on them, the Bill of Rights was finally agreed on. To this day, amendments are not taken lightly, and adding or deleting amendments is extremely difficult.

Had the Constitution been ratified without a bill of rights, it would have taken several years for those protections to be passed. By taking the form of amendments, these provisions became an integral part of the Constitution that many had argued be included originally. As noted by Supreme Court Chief Justice Warren E. Burger during the Constitution’s bicentennial (Armento et al., 1991, p. 26):

The Founders, conscious of the risks of abuse of power, created a system of lib- erty with order and placed the Bill of Rights as a harness on government to protect people from misuse of the powers. The evils of tyranny even today fall on most of the world’s people and remind us of what life would be like without our respect for human dignity and freedom. We must never forget what our strength was meant to serve and what made that strength possible—the Consti- tution and the Bill of Rights as they stand today.

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MYTH The guarantees of “Life, Liberty, and the Pursuit of Happiness” are Constitutional rights.

REALITY This phrase is stated in the Declaration of Independence, not the Constitution. However, the Fifth Amendment does guarantee Constitutional protection to “life, liberty, or property,” stating the government cannot deprive anyone of these things without due process of law.

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22 Section I A Foundation for Understanding Constitutional Law

The Bill of Rights: An Overview Sections II, III, and IV of this text focus on the Bill of Rights, as well as additional amendments made to the Constitution. Most laws and controversies deal with these amendments. The following brief introduction to each of the first 10 amend- ments provides an overview on which later discussions can be based.

The First Amendment lists important individual liberties, including freedom of religion, speech, and the press:

Congress shall make no law respecting an establishment of religion, or prohibit- ing the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

These freedoms are so basic to the American way of life that they are sometimes referred to as “First Amendment rights.”

The Second Amendment preserves the right of the people “to keep and bear arms”:

1750170016501600 1755 1760 1765 1770 1775 1780 1782

1776 Declaration of Independence

1759 British take Quebec

1754 French and Indian War begins

1620 Mayflower compact

1763 Treaty of Paris is signed

1765 Stamp Act is passed

1773 Boston Tea Party

1770 Boston Massacre

1774 First Continental Congress meets

1775 Battles of Lexington and Concord

1781 Articles of Confederation go into effect

Figure 1.1 Timeline of Events

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Chapter 1 A Historical Overview 23

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 courts have ruled that this is not an absolute right. Laws prohibiting private paramilitary associations and carrying concealed weapons have been upheld.

The Third Amendment prohibits the government from housing soldiers in private homes during peacetime without the owner’s consent:

No Soldier shall, in time of peace, be quartered in any house without the consent of the Owner, nor in time of war but in a manner to be prescribed by law.

This is the only amendment that the government has never tried to violate (Lieberman, 1976, p. 46).

The Fourth Amendment is concerned with the right to privacy and security:

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 War- rants shall issue, but upon probable cause, supported by Oath or affirmation,

17921784

1787 English settlement for freed slaves founded in Sierra Leone

1788 Bread riots in France

1789 Martin Klaproth discovers uranium

1791 Bill of Rights passed

Events in the United States

Events elsewhere

1790

1787 Northwest Ordinance passed/Constitutional Convention meets

1785 Russians settle the Aleutian Isles

1784 Serfdom abolished in Denmark

1786 Shays’ Rebellion

1786 Lord Cornwallis becomes Governor-General of India

1788 Constitution goes into effect

1786 1788

Figure 1.1 (Continued) ©

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24 Section I A Foundation for Understanding Constitutional Law

and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment forbids the government or its agents from searching indi- viduals, their homes, or their personal possessions or from seizing them unless the government has “probable cause” to believe a crime has been committed. If such probable cause exists, a search warrant describing in detail what (or who) is to be seized should be obtained. (This capsule description is necessarily loose: the police need not obtain warrants for every arrest or for every search. The past 15 years have seen an enormous volume of litigation over the precise limits of this amendment.)

The Fifth Amendment sets forth several restrictions on how the government may treat a person suspected of a crime:

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 offence 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.

The Fifth Amendment establishes the need for a grand jury indictment for felony cases. It prohibits double jeopardy, meaning a person acquitted by a jury of a crime may not be retried for the same offense. It prohibits the government from forcing a person to testify against himself; hence the expression “pleading the Fifth.” It also contains the famous due process clause: “nor shall any person . . . be deprived of life, liberty, or property without due process of law.”

The Sixth Amendment describes the requirements for a fair trial:

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.

The trial must be convened speedily and must be public. The accused is entitled to an impartial jury in the community where the crime occurred and must be advised of the crimes being charged. Accused individuals must also be allowed to cross- examine witnesses who testify against them. In addition, they can compel witnesses who will testify in their favor to come to court. Finally, they have the right to be represented by a lawyer.

The Seventh Amendment preserves the right to trial by jury in common law cases “where the value in controversy shall exceed twenty dollars”:

In Suits at common law, where the value in controversy shall exceed twenty dol- lars, the right of trial by a jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

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Chapter 1 A Historical Overview 25

This amendment is one of the few clauses in the Constitution that includes a figure that has lost meaning over the years. By law today, federal courts cannot hear cases where the contested value is less than $10,000, unless a federal law is involved. The amendment also forbids courts to reexamine facts found by juries, except as the common law permits.

The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This is the amendment that opponents of capital punishment most frequently cite. The Ninth Amendment answered the objections of those who thought that nam-

ing some rights but not all might result in the government’s claiming more power than was intended:

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

The Tenth Amendment further underscores the framers’ intent to reserve certain powers to the states and to the people:

The powers not delegated to the United States by the Constitution, nor prohib- ited by it to the States, are reserved to the States respectively, or to the people.

This amendment establishes no rights nor takes any away. It is a reminder that the government is for the people, not the reverse.

The U.S. Constitution and its amendments are provided in Appendix A.

A Living Law The inclusion of the Bill of Rights stands as an example of how the U.S. Constitution lives. It is neither unchangeable nor unresponsive. It is not merely a piece of paper locked away in a vault in Washington, DC. The framers took a lot of good ideas referenced previously and, with the political skill of compromise, developed a workable form of government that continues to this day. It was designed to grow, develop, and be redefined if necessary to best serve the people’s needs. Study of the amendments and how they have been interpreted since their inception makes it obvious that the Constitution is a living document that grows with the citizens it was written to protect.

A Nearly Timeless Document The final draft of the Constitution established a broad framework for the new American government. For more than 200 years, the Constitution has been flexible enough to meet the nation’s changing needs without extensive formal revision. Although the framers of the Constitution would find many modern governmental practices quite foreign, the basic system continues to operate as they planned. Rec- ognizing the importance of ensuring in practice the division of power, Madison suggested this could best be done “by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”

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26 Section I A Foundation for Understanding Constitutional Law

Lieberman (1976, p. 49) notes, “The Constitution has the distinction of being an almost timeless document but for one grievous flaw. It did not abolish slavery.”

Lieberman continues,

Those who detested slavery reconciled themselves to this grievous and glaring flaw that contradicted the Declaration of Independence at its most solemn point—that all men are created equal—by assuming that slavery would in time vanish naturally. But it would not go away so easily. The compromise that saved the Union could not be peacefully eliminated, and the amendments that would make the Constitution true to itself could come about only after the bloodiest war in American history. (p. 49)

Although nearly timeless, the Constitution reflects the will and values of the people who originally drafted it and those charged with maintaining it. For example, whereas the Constitution as originally ratified did not prevent slavery and other discriminations, the ability of our law to be amended (in this case by the Fourteenth Amendment) speaks volumes about the American spirit to learn, even from its own mistakes.

Where the Declaration of Independence, U.S. Constitution, and Bill of Rights Are Today

The Declaration of Independence, which established the United States as an independent nation, the Constitution, which established its form of government, and the Bill of Rights have been carefully preserved.

These valuable documents are contained in ballisti- cally resistant casements and displayed under armed guard.

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Chapter 1 A Historical Overview 27

Summary From the beginning, the colonists sought structure and collaboration. Law is a body of rules promul- gated (established) to support the norms of that soci- ety, enforced through legal means (i.e., punishment). The U.S. Constitution was written to serve the needs of a pluralistic society. Pluralism refers to a society in which numerous distinct ethnic, religious, or cultural groups coexist within one nation, each contributing to the society as a whole.

The history of the Constitution is rooted in the colonists’ desire for freedom from foreign rule. The colonists resisted increased taxes because they felt it was taxation without representation. The Boston Tea Party, in which colonists boarded British ships and threw their cargos of tea in the harbor, repre- sented the colonists’ unwillingness to pay taxes without representation.

As tension between the British and the colonists increased, the First Continental Congress was called and resulted in the first written agreement among the colonies to stand together in resistance to Great Brit- ain. The British retaliated by sending more troops to quell the “rebels.” In 1775, the Second Continental Congress established the Continental Army and named George Washington as its commander. On July 4, 1776, the president of the Congress signed the American Declaration of Independence, which for- mally severed ties with Great Britain.

The Congress also drafted the Articles of Con- federation, which formally pledged the states to “a firm league of friendship,” and “a perpetual union” created for “their common defense, the security of their liberties,” and their “mutual and general wel- fare.” This loose governmental structure proved unsatisfactory and resulted in the colonists seeking a stronger central government—one established by the Constitution.

The U.S. Constitution was greatly influenced by the Magna Carta, which established the supremacy of the law over the ruler and guaranteed English

feudal barons individual rights and “due process of law,” including trial by jury. Americans continued to believe in the principles contained in the Magna Carta, which was a precedent for democratic gov- ernment and individual rights and the foundation for requiring rulers to uphold the law. The Magna Carta greatly influenced the writers of the U.S. Constitution.

The purpose of the Constitution was to establish a central government authorized to deal directly with individuals rather than states and to incorpo- rate a system of checks and balances that would preserve the fundamental concepts contained in the Magna Carta, that is, to limit the power of the gov- ernment. The first three articles of the Constitution establish the legislative, executive, and judicial branches of government and the country’s system of checks and balances. The balance of power was established vertically through the separation of power between the federal government and the states and laterally through the three branches of government with its system of checks and balances. In the supremacy clause, the Constitution declared itself the supreme law of the land.

The U.S. Constitution was signed in Philadelphia on September 17, 1787. The next step was for the individual states to ratify it. The Federalists favored a strong central government. They were greatly chal- lenged by the anti-Federalists, who favored a weaker central government. Some states opposed the Consti- tution because it did not contain a bill of rights. In an important compromise, 10 amendments, known as the Bill of Rights, were added to the Constitution in 1791 to ensure the individual rights of American citi- zens. The Constitution and Bill of Rights had one serious shortcoming: They failed to abolish slavery. The Declaration of Independence, the U.S. Constitu- tion, and the Bill of Rights are housed in the Rotunda for the Charters of Freedom at the National Archives in Washington, DC.

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28 Section I A Foundation for Understanding Constitutional Law

Discussion Questions 1. Few people could live together and not have laws.

Why? 2. Does pluralism have any negative aspects? Why

have some fought so hard against the concept in the United States?

3. Do demonstrations such as the Boston Tea Party have any effect? Are they positive or negative?

4. What factors make it amazing that any organization among the colonies was successful?

5. Were the Articles of Confederation a wasted effort or were they needed?

6. What do you think about the Constitutional Convention being closed to the public? Was this necessary?

7. Why is the Constitution called a living document? Give examples.

8. What do you think the anti-Federalists were really afraid of?

9. Why should the Bill of Rights not have been left up to each state to develop on its own?

10. If the U.S. Constitution works so well, why do all countries not adopt it?

References Armento, Beverly J., Nash, Gary B., Salter,

Christopher$L., and Wixson, Karen K. A More Perfect Union. Boston: Houghton Mifflin Company,$1991.

Beard, Charles A., and Beard, Mary R. The Beards’ New!Basic History of the United States. Garden City, NY: Doubleday & Company, Inc., 1968.

Brown, Richard C., and Bass, Herbert J. One Flag, One Land. Morristown, NJ: Silver Burdett and Ginn, 1990.

Divine, Robert A., Breen, T. H., Fredrickson, George M., and Williams, R. Hal. America: The People and the Dream. Glenview, IL: Scott, Foresman and Company, 1991.

Jacoby, Jeff. “56 Who Pledged Their Lives, Fortunes, Sacred Honor.” Boston Globe. Reprinted in (Minneapolis/St. Paul) Star Tribune, July 4, 2000, p.$A11.

Levy, Leonard W. Origins of the Bill of Rights. New Haven, CT: Yale University Press, 1999.

Levy, Leonard W., and Mahoney, Dennis J., eds. The Framing and Ratification of the Constitution. New York: Macmillan Publishing Company, 1987.

Lieberman, Jethro K. Milestones! St. Paul, MN: West Publishing Company, 1976.

Lieberman, Jethro K. The Enduring Constitution: A Bicentennial Perspective. St. Paul, MN: West Publishing Company, 1987.

Mitchell, Ralph. CQ’s Guide to the U.S. Constitution: History, Text, Glossary, Index. Washington, DC: Congressional Quarterly, Inc., 1986.

Simmons, R. C. The American Colonies. New York: D. McKay Company, 1976.

Cases Cited Clinton v. Jones, 520 U.S. 681 (1997) Kinsella v. Singleton, 361 U.S. 234 (1960) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)

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CHAPTER 2 An Overview of the U.S. Legal System

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30 Section I A Foundation for Understanding Constitutional Law

! What two prominent theories about the underlying purpose of law are? ! What two competing value systems (models) are often identified

when discussing the purpose of the criminal justice process? ! What the basic purpose of the U.S. legal system is? ! What the scales of justice symbolize in law? ! When common law began, what it is based on, and what it is

synonymous with? ! What stare decisis requires? ! How the Constitution ensures individual liberty? ! Why U.S. law is said to be a living law? ! Where statutory law originates? ! The difference between a crime and a tort? ! What a legal citation is and what it includes? ! What the components of a legal opinion are? ! What six sections are usually included in a case “brief”? ! How to determine whether a case has been overturned or expanded on? ! What two main functions are served by courts? ! On what two levels the judicial system operates? ! Who officers of the court are? ! What doctrines govern whether a case will be heard in court? ! What the three components of the criminal justice system are? the

juvenile justice system?

Do You Know . . .

Can You Define? adversarial judicial

system affirm amicus briefs appellate jurisdiction brief caption case law codified law common law comparative law concurrent jurisdiction concurring opinion conflict theory consensus theory Crime Control Model

crimes dicta dissenting opinion Due Process Model exclusive jurisdiction general jurisdiction holding jurisdiction legal citation limited jurisdiction mootness ordinances original jurisdiction penal codes petition for certiorari procedural law

promulgate remand reverse ripeness doctrine Shepardizing social contract standing stare decisis status offenses statutory law string cites substantive law tort vacate venue

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Chapter 2 An Overview of the U.S. Legal System 31

Introduction This chapter describes the U.S. legal system and how it operates. Through under- standing how it operates comes an appreciation of the crucial role the U.S. Constitution plays in achieving the primary goals of the framers of the Constitu- tion—liberty, freedom, and fairness.

The chapter begins with a discussion of the theories about and purpose of the U.S. legal system and a definition of law and how it has developed throughout the centuries, followed by a look at the continuing need for law and a discussion of U.S. law as living law. This discussion is followed by a description of categories of law, often overlapping, found in the U.S. legal system and how to research the law when you need more information about a legal case or concept. Next is a discussion of the U.S. court system and the officers of the court. The chapter concludes with an expla- nation of the adversarial nature of the judicial system, a discussion of the various components of the U.S. legal system, and a look at the emerging influence of U.S. law beyond our borders.

Theories about and the Purpose of the Legal System Futurist Joel Barker defines a paradigm as a boundary or parameter that outlines a rule and is based on experience. Sociologist Max Weber contends that the primary purpose of law is to regulate human interactions—to support social function. Com- bining these two views leads to the concept that a society’s legal paradigm defines the behavioral boundaries of that culture.

As law evolves, different theories emerge to explain its development. People want to know not only what the law is but also why it exists as such. One theory is natural law, which suggests people should not create law in conflict with the natu- ral order. Legal positivists suggest law is strictly a response to what is occurring at the moment. Many other theories fill volumes that can be explored independently.

To present a solid base from which to develop an understanding of law and its development, this text focuses on the basic premise that throughout history law has regulated human interactions for different reasons: to protect society’s inter- ests, to deter antisocial behavior, to enforce moral beliefs, to uphold individual rights, to!support those in power, and to punish lawbreakers or seek retribution for wrongdoing.

Purpose of Law: Consensus Theory versus Conflict Theory Although many theories exist, two different views address the purpose of laws.

Consensus theory holds that individuals in a society agree on basic values and on what is inherently right and wrong. Laws express these values. Consensus the- ory dates back at least to Plato and Aristotle. Society, in general, agrees on what is right and wrong and makes laws to prohibit deviant behavior. Consensus theory was expanded on by French historian-philosopher Montesquieu (1689–1755). His philosophy focused on the social contract whereby free, independent indi- viduals agree to form a society and to give up a portion of their

consensus theory holds that individuals in a society agree on basic values, on what is inherently right and wrong, and that laws express these values

social contract a philosophy proposed by French historian- philosopher Montesquieu, whereby free, independent individuals agree to form a society and to give up a portion of their individual freedom to benefit the security of the group

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32 Section I A Foundation for Understanding Constitutional Law

individual freedom to benefit the security of the group. Later, Émile Durkheim (1858–1917) described social solidarity as the shared values of a society, its “collec- tive conscience.” The Durkheimian perspective saw punishment as revenge and a means to restore and solidify the social order.

A second prominent theory regarding the underlying purpose of the law, con- flict theory, is not as humanitarian. Conflict theory holds that laws are established to keep the dominant class in power. (Recall that the framers of our Constitution were the socially, politically, and economically powerful men in the New World.) The roots of this theory are found in Karl Marx (1818–1883) and Friedrich Engels’ (1820–1895) Manifesto of the Communist Party (1848):

The history of all hitherto existing society is the history of class struggles. Free- man and slave, patrician and plebeian, lord and serf, guild-master and journey- man, in a word, oppressor and oppressed stood in constant opposition to one another, carried on an interrupted, now hidden, now open fight, a fight that each time ended in either a revolutionary reconstruction of society at large, or in the common ruin of the contending classes.

Rather than regarding punishment as a way to provide social solidarity, Marx regarded punishment as a way to control the lower class and preserve the power of the upper class. This rationale has its roots in the Middle Ages, the Renaissance, the Reformation, and into the nineteenth century. During those times, society was divided into a small ruling class, a somewhat larger class of artisans, and a much larger class of peasants. Harsh laws kept the “rabble” under control.

Conflict theory is used by some sociologists and criminologists to explain how laws protect the interests and values of the dominant groups in a society:

Conflict theory holds that the administration of criminal justice reflects the unequal distribution of power in society. The more powerful groups use the criminal justice system to maintain their dominant position and to repress groups or social movements that threaten their position.! .! .! . Conflict theory explains the overrepresentation of racial and ethnic minorities in the criminal justice system in several ways.!.!.!. “[S]treet crimes” that are predominantly com- mitted by the poor and disproportionately by racial and ethnic minorities are the target of more vigorous enforcement efforts than are those crimes committed by the rich.! .! .! . [The result is] the overrepresentation of racial and ethnic minori- ties! among people arrested, convicted, and imprisoned. (Walker et al., 2012, pp.!118–119)

The Purpose of the Criminal Justice System: Crime Control versus Due Process Just as there are competing views on the purpose of law in our society, so too are there various views as to the purpose of our criminal justice system. Herbert Packer (1968) has offered a robust explanation of two competing value systems underlying the administrative purposes of the criminal process.

Under Packer’s paradigm, the operational value of “crime control” exists at one end of a spectrum and “due process” at the other end. The two extremes are meant to illustrate the tension between competing interests in the criminal justice system: the government’s ability to maintain an orderly society (crime control) and the

conflict theory holds that laws are established to keep the dominant class in power, in contrast to the consensus theory

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Chapter 2 An Overview of the U.S. Legal System 33

individual’s right to freedom and protection (due process). In reality, the actual criminal justice system operates somewhere between these two extremes because it seeks to balance its duty to both society and the individuals who comprise our population. The prevailing political and social climates are two factors that influ- ence where on the spectrum the system currently operates. Throughout our coun- try’s history, as these sociopolitical climates have shifted, the criminal justice system has responded by moving one way or the other, to favor efforts aimed at either more crime control or greater due process.

The Crime Control Model emphasizes the “repression of criminal conduct” and holds that the most important function of the criminal justice system is to bring criminal behavior under tight control (Packer, 1968, p. 158). This model requires efficiency of operation, meaning the criminal justice system must be capable of processing a high number of cases relatively quickly.

To achieve this goal, police powers to investigate and control crime must be high, and “technicalities” that limit police power should be reduced or eliminated. Under this model, the early part of the criminal justice process—the stages at which the police and prosecutors become involved—is the most crucial. As “gatekeepers” to the criminal justice system, the police are presumed to be sufficiently accurate and reliable in their fact-finding investigations to the point that once the “right” person is identified and arrested, the remaining steps in determining guilt and sanctioning the guilty (trial, conviction, disposition) are more or less just a matter of “going through the motions.” In fact, the crime control model dictates that the criminal justice system operate under a mechanism Packer refers to as the “pre- sumption of guilt,” meaning if someone is arrested and prosecuted, they are prob- ably guilty because “the preliminary screening process operated by the police and the prosecuting officials contain adequate guarantees of reliable fact-finding” (Packer, 1968, p. 162).

Packer compares the crime-control model of criminal justice to an assembly-line conveyor belt, in which cases must be continuously pushed through the system for the process to operate successfully (i.e., efficiently). As such, this model places a premium on speed, informality, uniformity, and finality. Appeals are to be mini- mized, again based on the presumption that those whose cases go to trial are prob- ably guilty and allowing an appeal to set a guilty person free because of a technicality is to thwart justice. The Crime Control Model concedes the possibility, indeed the probability, that mistakes will be made and that some innocent people might get caught up in the system. This allowance for error is made tolerable by the prevailing philosophy that it is better to cast a wide net and make sure the guilty are caught and punished, even if a few innocents are captured in the net as well, because crime control is the ultimate goal.

The Due Process Model, in contrast, emphasizes the rights of the individual and requires that the criminal justice system and its processes for enforcing the law be fair. This model rests on the presumption of innocence and holds that individual rights are not to be sacrificed for the sake of efficiency.

Packer makes it clear that the due process ideology is not the converse of crime control. Although the repression of crime remains an important goal under this model, it cannot come at the expense of sacrificing individual rights. On the due process end of the spectrum, it is believed that the fact-finding abilities of the police and prosecutors are prone to error. For example, error might be caused by

Crime Control Model emphasizes the “repression of criminal conduct” and holds that the most important function of the criminal justice system is to bring criminal behavior under tight control as efficiently as!possible

Due Process Model emphasizes the rights of the individual, rests on the presumption of innocence, and holds that individual rights are not to be sacrificed for the sake of efficiency.

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34 Section I A Foundation for Understanding Constitutional Law

police bias, coercion, or witness unreliability. “Facts” suggesting a suspect’s guilt may be exaggerated or entirely wrong, and because of the enormous stakes involved for the suspect—the coercive power of the state to deprive the accused individual of their freedom and, possibly, end their life—the criminal justice system’s foremost purpose is to prevent or eliminate mistakes that lead to wrong- ful conviction.

Packer likens the due process model to an obstacle course, with sufficient “for- midable impediments” and hurdles the criminal justice system must clear to push a case further along (p. 163). Guilt of a suspect must be determined in a formal, adversarial setting where adequate safeguards are in place to protect the accused. Due process focuses on legal guilt, which can only be determined by an impartial court and only after ensuring all procedural rules have been followed. This means despite factual guilt (crime control), a person cannot be held legally guilty of a crime unless the rules of criminal procedure are followed (due process). If the Constitution is violated, which is a serious breach of a safeguard, a person cannot be!convicted.

Packer (1968, p. 153) cautions: “These models are not labels Is and Ought, nor are they to be taken in that sense. Rather, they represent an attempt to abstract two!separate value systems that compete for priority in the operation of the crimi- nal process.”

The Challenge: Balancing Individual and Societal Rights Chapter 1 discussed the challenge facing the framers of the Con- stitution to balance the rights of individuals against the rights of society. Recollections of the tyranny of British rulers prompted the framers of the Constitution to build in many safeguards against any such tyranny in the United States. Nonetheless, to avoid anar- chy, a country of laws had to be established. Consider this chal- lenge: to meet the needs of the individual and the government—a strong, but not excessive, system of law and order.

Achieving a workable system that balances the rights and needs of individuals as well as those of the society being served is no small task. In fact, many have died here, and continue to die in

other countries, fighting for a system of government that provides the freedoms U.S. citizens now enjoy.

Some argue that in striving to balance individual and societal rights and needs, the system itself has become so complicated that justice is compromised. Although the Constitution appears complex, the many laws subsequently enacted to maintain the balance have created the massively intricate body of law. To those not educated in the law, it might appear that legal loopholes abound, when in reality the crucial balance is struck through the passage of new laws and the continual evolution of existing laws.

Because the Constitution is meant to be basic, it is, by itself, easy to begin to understand. Students of the Constitution need to grasp the “bigger picture” before looking at the developments that have occurred in the past 200 years. Details can get in the way of understanding the system and how it works.

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Chapter 2 An Overview of the U.S. Legal System 35

The Law Defined Laws are rules with the power of the government behind them. In the United States, these rules are created by legislative bodies empowered by the people to pass laws. The term promulgate means to make law through such legal process. These laws reflect what the citizenry holds important, and they support the norms of society by enforcing its rules through legal consequences that are in accordance with the tenets of the Constitution.

Development of the Law The development of societal rules began the first time people congregated. When people are together, a norm is established so individuals know what is expected of them relative to the group as a whole. Whether via de facto rules, which naturally develop, or de jure results, which are promulgated, some order must arise to pre- vent chaos. Law generally evolves through four phases:

1. People come together seeking collective security, to collectively gather food, and to satisfy other mutual needs.

2. They discover that they need rules to maintain order and their sense of security.

3. Inevitably some individuals break the rules. 4. Consequences are established for breaking the rules.

Of great influence on the U.S. legal system was early Roman law dealing with basic rules related to economic, religious, and family life contained in the Twelve Tables, written about 450 ".#.$. These rules were based on tradition and a quest for fairness. Another important period in Roman history was the rule of Emperor Justinian I (ruled %.&. 527–565). His Justinian Code distinguished public and private laws and influenced legal thought throughout the Middle Ages.

Another significant influence on the development of the U.S. legal system was the system of common law that evolved in England during the Middle Ages. Rather than smaller groups of people relying completely on local custom to determine their rules or law, the royal judges traveling through the territories began to apply a broader or national norm as cases were decided. In essence, the law became more common throughout the country.

Although initially unwritten, the decisions of the cases heard became the basis for how subsequent cases were decided. If a cur- rent case was similar enough to a preceding case, the current case was decided on the basis of the ruling in the previous case. Even- tually the cases were written down, and by 1300, recorded deci- sions were serving as precedent, making it easier to maintain the continuity of the developing legal system.

This system of common law is the basis for U.S. law, in which the decisions made in past cases are routinely examined when new cases are considered.

As English Parliament took over the role of promulgating law, the role of com- mon law courts changed. For example, offenses that once were considered personal wrongs, such as murder, rape, and burglary, were redefined by English judges as crimes against the state because such transgressions disrupted the security of the

promulgate to make law through a legal process

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common law early English judge-made law based on custom and tradition; a legal system that, as in the United States, decides present cases on past decisions

case law common law approach, so named because it is based on previous cases; as a term in U.S. law, it is synonymous with common law

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36 Section I A Foundation for Understanding Constitutional Law

entire community, not just the individual victimized. These redefinitions also made offenders subject to state control and punishment.

U.S. common law also took on the role of interpreting and defining existing law, building on itself to forge new law. And although common law still has the capacity to create law as well as interpret it, it also depends heavily on predictability through precedent. Courts continue to rely on prior cases—directly, by implication or conceptually—to maintain continuity. This conti- nuity results in current cases being decided in ways that relate to existing law (from past cases) and provides the U.S. system of law development a stronger, more predictable basis on which to deter-

mine future cases. This concept is termed stare decisis, a Latin term that literally means “let the decision stand.”

Although this doctrine has its roots in early English law, the court in Moore v. City of Albany (1885) set forth, “When a court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where facts are substantially the same.” When a legal principle has been determined by a higher court, lower courts must apply it to all later cases containing the same or similar facts. Of course, one side will argue that the facts are the same and, as such, stare decisis dictates that a certain ruling prevail. The other side will assert that the facts are not exactly the same, and so a different result should be reached. The doctrine of stare decisis does not, however, prevent the law from growing, changing, or even reconsidering itself in matters from which unde- sirable law resulted.

The Continuing Need for Law People need laws to know what behavior is socially and legally acceptable and to be able to deal consequences to those who do not follow the law. In any society laws should—must—be obeyed for the good of all. In a sense, obedience to the law is voluntary. At least in countries that enjoy freedom, people are permitted to carry on with life’s activities, for the most part, as each sees fit. People obey traffic laws because they should. They pay taxes because they should. However, people have freedom to decide, including the decision to not obey laws.

A critical issue arises when those making and enforcing the law act outside the law. Remember, the purpose of the Constitution remains to limit government power. The law itself controls government by restricting how and when govern- ment can and cannot interfere with citizens’ lives. The Latin phrase nulla poena sine lege translates to “no punishment without law.” Similarly, nullum crimen sine lege means “no crime without law.”

U.S. Law Lives Because the needs of any group change as that group itself changes, effective law should be flexible enough to respond to those changing needs, as introduced in Chapter 1. Human nature dictates that different needs are perceived at different times. For example, laws against witchcraft in colonial America are now perceived as unnecessary and inappropriate, as are laws permitting slavery or prohibiting

stare decisis a common law doctrine requiring that precedent set in one case shall be followed in all cases having the same or similar circumstances, thus ensuring consistency in the law; Latin for “let the decision stand”

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Chapter 2 An Overview of the U.S. Legal System 37

women to vote. Similarly, laws pertaining to the use of drugs have changed as soci- etal norms have changed, as evidenced by laws dealing with certain uses of mari- juana (deemed less serious than a decade ago) or the increasing strictness of laws dealing with driving under the influence. The constitutional amendments dealing with prohibition provide a concrete example of how law can advance and retreat as needs and expectations change.

Constitutional amendments are not easily or frequently added or removed. It takes two-thirds of each house of Congress, or conventions called by two-thirds of the state legislatures, to propose constitutional amendments. For an amendment to be ratified, three-fourths of the state legislatures or special conventions must agree. More than 7,000 amendments have been proposed in Congress, with only 33 of those passed and submitted to the states, where more fell short of the requisite vote.

When amendments are passed, they reflect true societal changes. Since the Bill of Rights was ratified in 1791, 17 amendments have been successfully ratified. Those considered most influential came after the Civil War:

! The Thirteenth Amendment (ratified in 1865) abolished slavery. ! The Fourteenth Amendment (1868) prevented the states from denying former

slaves equal protection and due process of law. ! The Fifteenth Amendment (1870) ensured the right to vote regardless of race. ! The Nineteenth Amendment (1920) extended the right to vote to women. ! The Twenty-First Amendment (1933) repealed prohibition, which was ratified

as the Eighteenth Amendment in 1919.

As you develop an understanding of what modern law is and how it developed from the needs of the earliest gatherings of people, it becomes obvious why it has reached its level of complexity. With more than 315 million people in the United States,1 and with the importance we place on pluralism, our needs are varied. A legal system that responds to such societal diversity and technological change becomes, out of necessity, complex. One of the complexities is that various categories of law exist, often overlapping in an effort to respond to society’s changing needs.

Categorizing Law Different aspects of the law interact in ways that may appear confusing at first. For clarity, go back to the basics: What is the purpose of law? To limit government power and to provide societal guidelines. Why is there so much law? To strive for justice and due process in a growing and increasingly complex society with many different viewpoints. To further clarify, it helps to categorize the law by asking: Who? How? and What?

Who? (Jurisdiction) This question is actually twofold: Who makes the law? and Who does the law affect?

Who makes the law is whichever group has jurisdiction, or authority, to pro- mulgate that law. It might be a legislative body, such as the elected or appointed members of the city council, county board, and state or federal legislatures. Or it

1 According to the U.S. Census Bureau U.S. Population clock, a projected 315,404,508 people were living in the United States at 1:30 '.(. Eastern Standard Time on February 27, 2013.

jurisdiction the authority of a legislative body to establish a law, the authority of a particular court to hear certain types of cases, or the authority a law has over a specific group of people

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38 Section I A Foundation for Understanding Constitutional Law

could be a court that makes decisions through case law or com- mon law. Who the law affects are the people over which the law- making group has jurisdiction.

Statutory law can also be referred to as codified law because it is set forth in organized, structured codes such as the U.S. Crimi-

nal Code or the criminal code of a specific state. Local jurisdictions, such as county or municipal levels, also enact their own specific codes, often referred to as ordinances. Of crucial importance is the fact that no statutory law, regardless of the level of jurisdiction, can violate the Constitution.

A group need not be elected to have authority to promulgate law. Legislative bodies have the authority to appoint administrative groups to make rules that have the power of law. The reason administrative agencies may do so is twofold. First, legislative groups do not have time to address every issue that arises. Second, they often lack the knowledge to adequately address every issue that arises. So they appoint people who have the time and expertise. Examples of administrative agen- cies include federal regulatory agencies such as the Food and Drug Administration. Examples of state agencies include the fire marshal’s office or the state police licens- ing board. Other examples include county, city, or other local groups, such as a metropolitan council, health department, or even a park board.

Remember that courts make law through their holdings that act as rules because of stare decisis. Whatever they have decided becomes the law and is relied on in subsequent cases. The fact that courts are making law, but for the most part are not elected to do so as are legislators, stirs debate. This is especially the case at the Supreme Court level and is why the ability of a president to appoint justices is so!powerful.

How? (Procedural) Substantive law establishes rules and regulations, as in traffic law. How the law is to be enforced is embodied in procedural law. For example, how and when police can stop people is governed by procedural law. The effects of substantive law being enforced in violation of law (i.e., by illegal procedure) can result in serious conse- quences for the government. For example, the exclusionary rule (discussed in Chapter 7) prohibits evidence obtained in violation of a person’s constitutional rights to be used in court, no matter how incriminating. This is why it is crucial for criminal justice professionals to know the law and know when it changes.

What? (Criminal or Civil) This question asks whether the wrong considered is a public wrong or a private wrong. In other words, who is the victim? The answer affects several critical factors.

Criminal law considers society the victim because whenever a crime is commit- ted, the act disrupts the community. Although one or possibly more than one victim is identifiable, if the community’s security is upset, all community members are considered victims. Society’s welfare has been violated. This is why the caption (name) of a criminal case is the government, representing the people, versus the defendant (e.g., United States v. Smith, State of Maine v. Jones). Wrongs that disrupt the status quo of the community are called crimes, and criminal laws are found in each state’s penal codes.

statutory law law set forth by legislatures or governing bodies having jurisdiction to make such law

codified law law specifically set forth in organized, structured codes such as the U.S. criminal code, state statutes, or local ordinances

ordinances laws or codes established at the local level, that is, the municipal or county level

substantive law establishes rules and regulations, as in traffic law

procedural law how the law is to be enforced, for example, how and when police can stop people

crimes acts defined by federal or state statute or local ordinance that are punishable; wrongs against the government and the people it serves

penal codes criminal codes or laws

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Chapter 2 An Overview of the U.S. Legal System 39

If a dispute involves only individuals and affects only them, it is considered a civil case, and the wrong is called a tort. These cases are captioned with the name of the aggrieved party bringing the legal action, generally referred to as the plaintiff, versus the individual accused of causing the harm, generally referred to as the defendant. Although there may be more than one plaintiff, as in the case of a class-action lawsuit, civil cases involve individuals, and the government usually is not involved.

A drunk driver causing a crash, for example, could be guilty of the crime of driving under the influence, as well as be held civilly liable for the injuries caused to others by the tort committed. This example also helps explain other differences between crimes and torts, including the burden of proof required and the desired outcome.

In a criminal action, the government must prove its case beyond a reasonable doubt, which one could view as to a 99 percent degree of certainty. It does not mean without any doubt because few decisions in life can be made with no doubts. This is the same standard applied to any of life’s major decisions—marriage, having children, divorce, taking a new job, or undergoing surgery. Facts are gathered, deci- sions reached, and action taken. The government is required to meet this high standard in proving its case because the consequences for the accused are so signifi- cant, including imprisonment or the ultimate sentence imposed, the death penalty. The system seeks to ensure, to the highest degree possible, that the government is right when the ultimate goal of the criminal justice system is punishment.

In a civil action, the plaintiffs have only to prove their case by a preponderance of the evidence, which means “more likely than not,” or to any level of certainty greater than 50 percent. This lower burden of proof exists in the civil arena for several rea- sons, a primary one being that the defendants do not face the same monumental loss of freedom as they do if they are found “guilty” in criminal court. Because the goal of the civil system is to right the wrong by making the victim or plaintiff “whole” again, civil damages are usually limited to financial awards or injunctions to return the plaintiff to where they were to begin with, for example, paying on a broken contract, removing a fence on someone else’s land, or paying to compensate for a wrongful injury. The civil system also acknowledges that individuals have!limited resources compared with the government and likely could not afford the experts often used during a criminal investigation, so their use would not be!warranted.

To return to the drunk-driving example, whereas the driver could be charged criminally because of the disruption caused to the community, the person injured in the crash could also sue civilly to recoup medical costs and compensate for! injuries sustained. One decision does not depend on the other. In the infamous O. J. Simpson case, the defendant was acquitted on the criminal charges because the government could not prove its case beyond a reasonable doubt, but the plaintiffs in the civil case were successful in proving their case by a preponderance of the!evidence.

A final note, as with the different standards regarding burden of proof, civil and criminal trials are governed by different procedural rules. Although the rules in both areas were developed to promote efficiency and predictability and to protect individual rights, the emphasis differs between the two types of trials

tort civil wrong by one individual against another, with the remedy most often being either an order by the court for particular action or compensation

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40 Section I A Foundation for Understanding Constitutional Law

based on the nature of risk to the accused. In a civil trial, the defendant’s money and reputation are at risk, and the federal courts are bound by the Federal Rules of Civil Procedure, which articulate such things as how a lawsuit must be initi- ated, under what conditions depositions can be taken, or how a claim can be dismissed before trial as a matter of law. In a criminal trial, however, the stakes are much greater for the individual, who may lose their freedom or even their life as the result of a conviction. Thus, in criminal trials there is a heavier emphasis on procedures that protect the defendant. We usually think of criminal procedure as the law surrounding the Fourth, Fifth, Sixth, and Eighth Amendments. And with such constitutional limits in mind, criminal procedural rules have been developed to address such things as the time of day a search warrant may be served, who may be present during a grand jury hearing, or how to schedule a pretrial conference.

Researching the Law Criminal justice professionals, including police officers, are expected to know the law and when it changes. And it will change throughout your education and your career. Knowing how to research the law is an important skill that enables you to find answers to legal questions and, perhaps more important, to better understand the judicial system. Although some departments have legal departments or city attorneys who try to keep officers updated through regular training, many agencies do not. Thus, the responsibility falls to the individual officers.

Basic legal research skills are as important as any of the more traditional job- related skills. As a student of the law and as a criminal justice practitioner, you are more likely to be looking for legal basics than for the detailed information found in legal briefs. Criminal justice professionals are not expected to be legal scholars or expert researchers after this short introduction, but it will be a stepping-stone for efforts to find and understand U.S. laws.

Sources of Information about the Law The most authoritative information source about the law is primary information— the actual cases and the opinions handed down. Sources of primary information for legal research include the U.S. Constitution, the constitutions of the 50 states, the statutes of the U.S. Congress and the statutes of the 50 state legislatures, as well as appellate court decisions of the federal and state courts. However, for the non- lawyer, it is usually easier to understand secondary information sources, which select, evaluate, analyze, and synthesize data contained in primary information sources. Among the important secondary information sources for legal research are periodicals, treatises/texts, encyclopedias, and dictionaries. These secondary infor- mation sources usually can be found in a general library or online. A helpful general resource is a Guide to Law Online, prepared by the Library of Congress Public Ser- vices Division (www.loc.gov/law/help/guide.php). Other useful sources of infor- mation include the U.S. Supreme Court’s official website (www.supremecourt .gov/) and www.oyez.org/, which offers audio recordings of oral arguments, access to full written opinions, breakdowns of how justices voted in cases, and biogra- phies, as well as a Google map feature to show the location of the case in question.

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Chapter 2 An Overview of the U.S. Legal System 41

An important note about the reliability of sources: Wikipedia and even lesser respected sites are never considered reliable sources for academic purposes. These sites should not be used to research the law, nor should they ever be referenced in academic papers.

With this overview of the sources of information available to research a case, consider next how to read a legal citation once it is found.

Reading Legal Citations Case citation is important to understand when researching the law or, for that matter, even writing a paper. Citations show the student exactly where to find an important point, right down to the page, and let the reader know immediately if the case is rele- vant to the problem they are researching.

Legal citations are usually followed by the date. For example, the official cite for the Miranda case is Miranda v. Arizona, 384 U.S. 436 (1966). Sometimes additional cites will be given. These are called string cites or parallel citations. The additional cites show where the case could be found in other commercial reporting services. A string cite for this case would be Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A more detailed explana- tion of how to read legal citations and string cites is provided in Appendix B.

Locating provisions of federal and state constitutions does not present a prob- lem. When it comes to case law, however, the situation is different. Millions of judicial opinions have been written in the United States, with thousands more published each year.

Reading Case Law You may find yourself challenged with attempting to read actual case law at some time. It is helpful to become familiar with some basic concepts and terminology you will encounter. To begin, the caption (title of the case) tells who is involved. It may be the government against a criminal defendant (State of Washington v. Smith), or it may be two individuals disputing an issue (Anderson v. Smith). The caption (title) is always italicized.

The parties to the action may be identified by different titles (defendant, plaintiff, petitioner, respondent), depending on the nature of the case. The particular court and level of legal action (whether it is an appeal, etc.) will determine whose name comes first in the caption. This is usually clarified within the first part of the case.

Most cases start in the trial court. The trial court has two basic responsibilities: to find out what happened and to determine which legal rules should be used in deciding the case. The trial court makes its decision on the basis of the facts pre- sented by the lawyers representing both parties (or by the individuals themselves if not represented by legal counsel), using the legal rules the judge determines are appropriate to apply to this case. The party that does not emerge victorious may appeal to a higher court on any number of issues. However, only legal issues will be reviewed on appeal because new evidence is not permitted. In fact, appeals are considered only by the appellate judges reviewing written arguments from the par- ties, along with case transcripts and opinions issued by the previous judge involved. (Not all cases produce opinions, particularly at the trial court level.)

legal citation a standardized way of referring to a specific element in the law

string cites additional legal citations showing where a case may be found in commercial reporting services

caption the title of a case setting forth the parties involved

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MYTH Appellate courts serve to recheck the factual issues of a case, allow witnesses not previously heard to testify, and use a second jury to verify that the trial court jury reached the right verdict.

REALITY Only trial courts determine the fac- tual issues of a case. An appellate court does not try factual issues, nor does it allow new evidence to be presented or witnesses to testify. It does not use a jury to reach its decision. An appellate court reviews the trial court record as well as briefs prepared by both the prosecution and defense, and it may allow brief oral arguments from both sides, after which it determines whether sufficient evidence exists to support the findings of the trial court and whether the trial court followed the rules of criminal procedure.

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42 Section I A Foundation for Understanding Constitutional Law

Although many issues may be presented in one case, they may not all be addressed by the court deciding the case. Whether to save time or perhaps even to avoid other issues within a case, a court may choose to answer only one issue in its opinion, leaving the others for future cases.

Court decisions are recorded as opinions, which include more than simply a statement of who won the court case. Opin- ions describe what the dispute was about, which legal rules were applied to the case, and what the court decided and why.

The holding of a case is the rule of law applied to the particular facts of the case and the actual decision. A court may affirm (support), reverse (overturn), or remand (return the case to the lower court). It may also vacate (set aside or annul) a case. An opinion may be written by one member of the court, or there may be many concurring and dissenting opinions. A concurring opinion is one written by a justice who agrees with the holding, but who gives additional or different reasons for voting with the majority. A dissenting opinion is written by a justice who dis- agrees with the holding and voted against the majority. Some landmark cases have eight or nine opinions.

Three skills are required to read case law. First, you must think in reverse. The opinion provides the result of the deliberations. You must isolate what the dispute involved, what the trial court decided, how it proceeded, and what happened on appeal. Second, you must untangle the interplay of the basic components of a judi- cial opinion. Each affects the others in a process that goes back and forth and around in what may appear to be circles. Third, not all the elements of the judicial opinion may be included. You must infer them from the decisions made.

Briefing a Case Once you locate a case, you will want to make some notes to help you decipher it. Because cases are usually rather long, the best way to do this is to outline, or brief, the case.

Traditionally, law is taught through case law. This is an arduous process by which issues and rules are dissected from court opinions. This discipline is necessary for those intending to become lawyers because case analysis is the cornerstone of understanding how and why cases are decided as they are and why the law in any particular area developed as it did.

Case law, also known as common law, depends on comparing one case with others. As difficult as the case analysis approach to learning law is, it definitely has its place. However, this complex approach can hinder understanding the basics of constitutional law as they apply to criminal justice—the focus of this!text.

You should, however, know what a case opinion looks like, as well as how a brief of that case might be used to analyze the issues and rules drawn from it. Opinions also provide judges with an opportunity to express thoughts on issues not essential to the court’s decision, looking at facts or issues other than those needed to determine the case. These are called dicta and are not binding on future courts. A dictum is a means for the majority to address other issues beyond the

holding the rule of law applied to the particular facts of the case and the actual decision

affirm agree with a lower court’s decision

reverse overturn the decision of a lower court

remand return a case to the lower court for further action

vacate set aside or annul a case

concurring opinion one written by a justice who agrees with the holding, but who gives additional or different reasons for voting with the majority

dissenting opinion written by a justice who disagrees with the holding and voted against the majority

brief an outline of a legal case that contains the case name and citation, a summary of key facts, the legal issues involved, the court’s decision, the reasons for that decision, and any separate opinions or dissents

dicta statements by a court that do not deal with the main issue in the case or an additional discussion by the court

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Chapter 2 An Overview of the U.S. Legal System 43

facts before them. Consequently, an opinion holds a great deal of information to be scrutinized.

Two famous, relevant cases illustrate opinions and the briefs that might be writ- ten from them. Marbury v. Madison (1803) was selected because it is the pivotal case of constitutional law granting the Supreme Court authority to review legislation to determine whether it is constitutional—and thus legal. Miranda v. Arizona (1966) was selected because it is perhaps one of the most famous constitutional law cases in criminal justice. The complete opinions for these two cases may be found online. Appendix C provides the briefs for these two cases.

A great deal more could be addressed regarding the legal process and how to decipher legal cases and their resulting opinions. However, this text was not intended to address these specific issues. The goal in this section is to provide the basic information to seek out the law as needed. One last skill is needed by those performing actual legal research: going beyond the case itself to determine if it is still a precedent or if it has been overturned or expanded—a process known as Shepardizing.

Shepardizing After a case has been researched, the current status of the case! should be determined because relying on a case that has been overturned or otherwise rendered invalid could prove disastrous.

The name comes from a legal service started by Frank Shepard (1848–1902), who began publishing lists of all the authorities citing a specific case, statute, or! other legal authority. In 1996, Shepard’s was bought by LexisNexis (a subsidiary of Reed Elsevier). In 1999, LexisNexis released an online version of Shepard’s Citations to provide a more efficient, faster, and current resource for legal research.

Shepardizing cases is almost the exclusive domain of attorneys and their clerks. It is improbable that criminal justice practitioners such as law enforcement officers will actually perform this step in the legal research process; however, it is important to know the procedure and the term. Appendix D provides an example of a page from Shepard’s to illustrate the complexity of the process and the amount of detail that can be obtained. For those readers desiring additional information on research- ing the law, Appendix E provides information relating to computerized legal research, a list of URLs to access criminal justice sources online, and step-by-step guidance on researching a law of interest.

The Court System Recall that Article 3 of the U.S. Constitution established the federal judicial system: “The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” In addition, the congresses of the individual states have established state supreme courts and inferior courts.

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Shepardizing using the resource Shepard’s Citations, a reference that tracks cases so legal researchers can easily determine whether the original holding has been changed through any appeals

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MYTH The majority of criminal cases filed go to court and are decided by a trial.

REALITY Few criminal cases actually make it to trial. The vast majority of criminal convictions—as much as 90 percent by some estimates— are the result of plea bargaining.

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44 Section I A Foundation for Understanding Constitutional Law

The types of cases a court can hear depend on its jurisdiction. The term jurisdic- tion refers to

! The authority of a legislative body to establish a law or a court to hear a case. ! The authority a law has over a specific group of people.

Three levels of jurisdiction exist: federal, state, and local. In addition, jurisdic- tion can be original or appellate. Original jurisdiction describes a court autho- rized to hear cases first, try them, and render decisions. Such courts are often called trial courts. Appellate jurisdiction describes a court authorized to review cases and to either affirm or reverse the actions of a lower court.

Courts may also have general or limited jurisdiction. As the names imply, courts with general jurisdiction may hear a wide range of cases; those of limited jurisdiction hear a much narrower range of cases. Further, courts may have exclu- sive or concurrent jurisdiction. Exclusive jurisdiction applies to courts that can hear only specific cases. Concurrent jurisdiction refers to two or more courts authorized to hear a specific type of case.

Finally, jurisdiction may refer to a geographical area. A more precise term to describe the geographic area in which a case may be heard is venue, the place a specific case may come to trial and the area from which the jury is selected.

Just as the U.S. Constitution established the federal court system, state constitu- tions establish their own court systems with many variations from state to state.

At either tier, three levels of courts function: a lower level or trial court, an appel- late court, and a court of last resort, or supreme court, as illustrated in Figure 2.1.

original jurisdiction courts authorized to hear cases first, try them and render decisions

appellate jurisdiction describes a court authorized to review cases and to either affirm or reverse the actions of a lower court

Supreme court

Appellate court

Trial court (original court)

Figure 2.1 Levels in the State and Federal Court System

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general jurisdiction courts having the ability to hear a wide range of cases

limited jurisdiction restriction of the types of cases a particular court might hear

exclusive jurisdiction courts that can hear only specific cases

concurrent jurisdiction two or more courts authorized to hear a specific type of case

venue the geographic area in which a specific case may come to trial, and the area from which the jury is selected

ad sw

or th

/C en

ga ge

L ea

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MYTH The judge is the only “courtroom actor” who can dispose of cases.

REALITY The prosecutor often functions in a judicial capacity and is autho- rized to negotiate guilty pleas before a case goes to trial.

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Chapter 2 An Overview of the U.S. Legal System 45

The U.S. legal system was designed to provide individuals with a fair and just trial conducted under fair rules of procedure in an atmosphere of objectivity. These levels exist to ensure that if either side thinks procedural rules were vio- lated, that side can appeal the case to a higher court. This appellate court can uphold the lower court’s finding, order a new trial, or overturn, reverse, or dis- miss the charge.

The State Court System Individual states establish a variety of lower courts with a variety of names. Figure! 2.2 illustrates the state court system. The Bureau of Justice Statistics (BJS) reports that the aggregate number of newly filed, reopened, and reactivated cases reported to the Court Statistics Project from the nation’s state trial courts was 103.5 million incoming cases in 2010 (LaFountain et al., 2012). The majority of cases (54 percent) involved traffic offenses, 20 percent were criminal cases, 18 percent were civil cases, 6 percent involved domestic relations, and the remaining 2 percent were juvenile cases.

Lower Courts Lower courts include municipal courts, inferior courts of limited jurisdiction, and county courts. Municipal courts hear ordinance violations, minor criminal cases, traffic cases, and sometimes more major cases. Their authority is usually limited to the city or county in which the court is located.

Inferior courts of limited jurisdiction include probate courts, family courts, police courts, justice of the peace courts, and traffic courts. A few states still have police courts, courts that try misdemeanor offenses and conduct preliminary exam- inations to decide whether evidence is sufficient to bring the case to trial in a higher-level court. Some states have established these inferior courts of limited jurisdiction to eliminate the expense and inconvenience of traveling to a county or district court.

County courts often have exclusive jurisdiction over misdemeanor cases and civil cases involving a limited amount of money. In some states, county courts are also probate courts and juvenile courts. Some states have combined various courts under the umbrella of the county courts.

Superior courts are the highest trial courts with general jurisdiction. More than 3,000 such courts exist in the United States. This is where most felony cases enter the system. Some states call them district courts, circuit courts, or courts of common plea. These courts may have an appellate department to hear and decide appeals from the municipal courts.

Intermediate Appellate Courts These courts were created in several states to reduce the caseloads of state supreme courts. Appealed cases generally go to the intermediate appellate court first.

State Supreme Courts State supreme courts are the highest courts in a state and are generally called supreme courts, although some states call them courts of appeals. These courts are given their power by the individual state constitutions and generally oversee the intermediate appellate courts and have few areas of original jurisdiction. If someone petitions the supreme court to review the decision of an appeals court, this is called a petition for certiorari. A lower court must abide by the decision of a higher court.

petition for certiorari request that the Supreme Court or a state supreme court review the decision of a lower court

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46 Section I A Foundation for Understanding Constitutional Law

State supreme court Court of final resort. Some states call it court of appeals, supreme judicial court, or supreme court of appeals. Oklahoma and Texas have two courts of last resort, one for civil matters and one for criminal.

Intermediate appellate courts Only 39 of 50 states have intermediate appellate courts between the trial court and the court of final resort. A majority of cases are decided finally by these appellate courts. Four states have two intermediate appellate courts.

Superior court Highest trial court with general jurisdiction. Some states call it circuit court, district court, or court of common pleas; in New York, it's called supreme court.

Probate court* Some states call it surrogate court. This special court handles wills, administration of estates, and guardian- ship of minors and incompetents.

County court* These courts, sometimes called common pleas or district courts, have limited jurisdiction in both civil and criminal cases.

Justice of the peace and police magistrate** Lowest courts in judicial hierarchy. Limited jurisdiction in both civil and criminal cases.

Municipal court* In some cities, it is customary to have less important cases tried by municipal magistrates.

Domestic relations court* Also called family court or juvenile court.

Drug court* Specializes in substance abuse matters.

Gun court Handles felony gun cases.

Figure 2.2 State Judicial System *Courts of special jurisdiction such as probate, family, or juvenile courts, and the so-called inferior courts such as common pleas or municipal courts may be separate courts or part of the trial court of general jurisdiction.

**Justices of the peace do not exist in all states. Where they do exist, their jurisdictions vary greatly from state to state. Note: In California all justice courts are municipal courts.

Source: From: SIEGEL/SENNA. Introduction to Criminal Justice (with CD-ROM and InfoTrac®), 10E. © 2005 Wadsworth, a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions. Adapted from American Bar Association, Law and the Courts. Chicago: American Bar Association, 1974, p. 20.

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Chapter 2 An Overview of the U.S. Legal System 47

The Federal Court System The federal court system consists of a number of specialized courts, a number of district courts with general jurisdiction, 12 circuit courts of appeals, and the U.S. Supreme Court (Figure 2.3).

Special U.S. Courts Congress has created several specialized courts that sel- dom involve the criminal justice system. They include the Court of Military Appeals, the Court of Claims, the Court of Customs and Patent Appeals, the Cus- toms Court, and the Tax Court.

U.S. District Courts The district courts are trial courts with general, original federal jurisdiction, that try both civil and criminal cases, the vast majority of which are civil cases. Each state has at least one district court. Some large states have four.

U.S. district courts with

federal jurisdiction only

(92 districts in 50 states, the District

of Columbia and Puerto Rico)

Administrative quasi-judicial

agencies (Tax Court,

Federal Trade Commission,

National Labor Relations

Board, etc.)

U.S. district courts with federal and

local jurisdiction

(Virgin Islands, Guam)

District Court in Patent Matters

Court of International

Trade Claims court

District appeals from state courts in 50 states

U.S. courts of appeals (11 circuits plus

DC circuit)

Supreme Court of the United States

Federal circuit court

Figure 2.3 Federal Judicial System Source: From: SIEGEL/SENNA. Introduction to Criminal Justice (with CD-ROM and InfoTrac®), 10E. © 2005 Wadsworth, a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions. Adapted from American Bar Association, Law and the Courts. Chicago: American Bar Association, 1974, p. 20.

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48 Section I A Foundation for Understanding Constitutional Law

The total number of district courts is 94 (92 in the states, 1 in the District of Columbia, and 1 in Puerto Rico).

U.S. Courts of Appeals Like the intermediate appellate courts at the state level, the U.S. Courts of Appeals were created to ease the caseload of the Supreme Court. Each state is assigned to 1 of 11 districts or circuits. The District of Columbia has its own circuit and court. These courts have jurisdiction over final decisions of federal district courts. They are the courts of last resort in most fed- eral cases.

The U.S. Supreme Court The U.S. Supreme Court is the ultimate court of appeal. Its chief function is as an appellate court. It receives petitions for certiorari from more than 6,000 cases a year but usually accepts fewer than 10 percent for review. More than a third of the cases received are from state supreme courts. The Supreme Court is restricted by an act of Congress to hear only certain types of appeals from federal appeals courts and state supreme courts. Basically, the cases must involve a federal or state statute alleged to be unconstitutional. There is no right to have a case heard by the Supreme Court. It hears only cases of extreme national importance to set important policy.

The Supreme Court has dealt with such controversial issues as abortion and school prayer. Bills have been introduced in Congress to prevent the Supreme Court from ruling on such “moral” issues, leaving it up to the individual states. The Supreme Court is the only court empowered to handle lawsuits between two states. Because of its extreme importance in shaping the country’s laws, the next chapter is devoted to the Supreme Court.

Officers of the Court The legal system does not consist simply of buildings. It is about people. It is there to serve people and does so through those who play important and varied roles in

the system. Those whose jobs are to carry out the administration of law are called officers of the court, and this assemblage of profession- als is commonly referred to as the courtroom work group.

Judges, sometimes called justices or magistrates, are elected in some states and appointed in others. Judges preside over trials and hearings and render decisions. They also oversee the selection of juries and instruct them during jury cases.

Lawyers represent one side or the other. In a civil case, the plaintiff’s lawyer represents the party bringing suit. In a criminal case, the prosecutor represents the state. The lawyer representing the accused or answering party is the defense attor- ney. The lawyers prepare and present their clients’ cases to a judge and sometimes to a jury.

Clerks of court schedule cases, officially record all business conducted by the!court, and receive and file all official documents related to a case, for exam- ple, summons and complaints. Sheriffs and marshals serve summons and other court documents and enforce court orders. Sheriffs function at the state level and! marshals at the federal level. Bailiffs are responsible for keeping the courtroom! proceedings orderly and dignified and for protecting everyone in the!courtroom.

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Chapter 2 An Overview of the U.S. Legal System 49

An Adversarial Judicial System After a person is charged with an offense, civil or criminal, sides are drawn—accuser v. accused. The accusing side has the burden of proof to establish guilt. The defen- dant is presumed innocent until this has been accomplished. It is expected that each side will assert their positions vehemently, not only so that their situation will be resolved but also so that truth will prevail. This is accomplished by having both sides provide the strongest legal response possible, a concept difficult to appreciate by those who lack understanding of the law. For example, a question frequently asked of defense lawyers is: “How can you defend someone accused of such a hor- rible crime?” The answer is that even the accused has a right to legal representation as aggressive as the law allows. It could be a matter of life and death.

The legal system established in the United States is termed an adversarial judicial system because only in an actual conflict will a judicial body hear the case. Theoretically, courts will not entertain “what if” questions. Actual people must have reached an impasse and require a binding decision by a court. In practice, however, the court has frequently relaxed this barrier, finding exceptions to it and applying it inconsistently. The abortion case Roe v. Wade (1973), for example, was decided long after the petitioner’s pregnancy had terminated and the controversy ended.

As designed, however, the system places one side against the other, whether the government against a private party or individual against individual. Although the!system encourages problems to be settled out of court, the system is prepared to be accessed when necessary.

The overall legal system is organized to provide parties to a case the most acces- sible tribunal. For example, a matter involving a local building code dispute is best taken up by a municipal board of adjustments and appeals or the city council. The violation of a state statute, however, is best dealt with by a state court.

All levels of jurisdiction have avenues of appeals so that matters may be heard by another body of decision makers. This system provides a degree of checks and balances and removes the element of personal involvement sometimes present at the local level.

Doctrines Governing What Cases Will Be!Heard In recognition of the fact that not every dispute warrants the attention and resources of the court, guidelines have been established to govern which cases the court will hear.

Standing To bring a case or to argue a legal issue in court, one must have standing, meaning an actual interest in the matter of dispute. It is not permissible for just anyone to bring a legal action unless they are actually a party to the matter intended to be adjudicated. Someone must have been legally wronged or accused of the wrongdo- ing to be involved in a legal case. For example, in Minnesota v. Carter (1998) the defendant had gone to the apartment of a third-party for the sole purpose of pack- aging cocaine. An officer, acting on a tip, went to the building and, looking through

standing having an actual interest in the matter of dispute

adversarial judicial system a legal system, such as that used in the United States, that places one party against another to resolve a legal issue, stipulating that only in an actual conflict will a judicial body hear the case

MYTH The victim, by filing charges against a defendant, is granted considerable say in how a crimi- nal case will be prosecuted.

REALITY In our adversarial justice system, a crime is considered an offense against the state and, therefore, it is the state, through the prosecutor’s office, that gets to determine if and how a case will be prosecuted. In criminal mat- ters, it is the government versus the defendant, and the actual crime victim is only a witness. Even in domestic violence cases, the trend is to prosecute without a cooperating victim.

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50 Section I A Foundation for Understanding Constitutional Law

a gap in the blind of the apartment window, observed Carter packaging cocaine. A warrant was obtained, the apartment was searched, and the defendant was arrested. The defense attorney moved to suppress the cocaine and other evidence seized from the apartment, arguing that the officer’s initial observation through the window was an unreasonable search violating Carter’s Fourth Amendment rights. The trial court held that because Carter was not an overnight guest, he was not entitled to Fourth Amendment protection. The State Court of Appeals held that Carter did not have “standing” to object to the officer’s actions. The State Supreme Court, however, reversed and held that the defendant did have “standing” to claim Fourth Amendment protection because he had a legitimate expectation of privacy. Finally, the case came before the Supreme Court, which reversed and remanded the case, ruling that Carter had no expectation of privacy, and thus, no standing to contest the alleged Fourth Amendment violation because he was in the apartment for only two hours, had never been there before, and was there for the sole purpose of packaging cocaine.

The state courts’ analysis of respondents’ expectation of privacy under the “standing” doctrine was expressly rejected in Rakas v. Illinois (1978). To claim Fourth Amendment protection, a defendant must demonstrate that he or she personally has an expectation of privacy in the place searched and that this expectation is reasonable.

People who are not a party to the action may still have an interest and are per- mitted to submit amicus (“friends of the court”) briefs arguing their perspective. However, these are only considered at the pleasure of the court and as merely thoughts of a nonparty.

Mootness Mootness exists when the issues that gave rise to a case have either been resolved or have otherwise disappeared so that a court decision would have no practical effect. An example of a case dismissed for mootness is one in which a group of students and their parents filed suit challenging the inclusion of two prayers and a hymn during a 1991 public high school graduation ceremony as unconstitutional. Although the federal district court rejected the challenge, the circuit court of appeals declared the practice unconstitutional under the Establishment Clause of the First Amendment. However, the Supreme Court remanded the case, instructing the court of appeals to dismiss it as moot because the students who filed the suit had already graduated. A court can use the mootness doctrine to avoid considering controversial constitutional issues.

Ripeness The ripeness doctrine is invoked when a case comes to court too soon. This doc- trine prevents the court from getting prematurely involved in a case that may even- tually be resolved through other means. For example, in National Park Hospitality Association v. Department of the Interior (2003) park concessioners challenged a rule made by the National Park Service that made a prior congressional act inapplicable to contract disputes. However, because the concessioners were challenging the rule before an actual contract dispute had arisen, the Supreme Court said the case was not yet ripe for a decision.

amicus brief a “friend of the court” brief submitted by a person not a party to the action but interested in the outcome

mootness exists when the issues that gave rise to a case have either been resolved or have otherwise disappeared

ripeness doctrine invoked when a case comes to court too soon, preventing the court from getting prematurely involved in a case that may eventually resolve through other means

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Chapter 2 An Overview of the U.S. Legal System 51

Ripeness may be an issue in disputes between Congress and the president, as was the case when President Jimmy Carter terminated diplomatic recognition of Taiwan as the legitimate government of China. In Goldwater v. Carter (1979) the Supreme Court found the case to be unripe because Congress had not yet actually objected. In his concurring opinion, Justice Lewis Powell stated that courts should decline on the grounds of ripeness to decide “issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse.” A similar situation existed when Congress attempted to stop President George W. Bush from invading Iraq before he had actually done so.

The Components of the U.S. Legal System: The Big Picture Just as a complicated engine is made of many individual parts, the legal system has many components that must work together to produce the desired result. Thus far, this chapter has focused on the courts because this is where constitutional issues are decided. However, the courts are only one component of the U.S. system of justice, both at the adult and juvenile levels. The Constitution also directly affects what happens before a case comes to court (law enforcement actions) and after the court renders a decision (correctional officer actions).

Law enforcement officers, as the gatekeepers of the criminal justice system, must be thoroughly versed in the Fourth Amendment’s guarantee of the right to be free from unreasonable search and seizure. The Constitution applies to the police officer who wants to search the interior of a car stopped for a traffic violation as well as to searches conducted within the walls of a prison by a correctional officer.

Furthermore, these same constitutional constraints apply to nonsworn police, community service officers and animal control personnel, fire and building inspec- tors, community corrections workers (probation and parole officers), food and drug inspectors, and postal inspectors. The number of jobs in the governmental system is huge, and all those working in them are regulated by the Constitution. Finally, those constraints apply to all who work within the juvenile justice system as well, to which the discussion will now briefly turn.

The Juvenile Justice System More than 100 years ago, a separate juvenile justice system was created in the United States through the passage of the Illinois Juvenile Court Act of 1899. Soon thereafter, every state had designated a separate court system in which to handle cases involving youth. Reformers, believing that the punitive focus of the adult system was not in the “best interest of the child,” sought to establish a court whose purpose was to rehabilitate youthful offenders rather than to punish them. Ini- tially youths coming before the juvenile court had no due process rights whatso- ever. But as the juvenile court evolved, so too did youths’ rights. The result today is a juvenile justice system that closely parallels the adult (criminal) justice system and that handled an estimated 1,504,000 delinquency cases in 2009 (Puzzanchera et al., 2012, p. 6).

A particular distinction in how society seeks to regulate youthful behavior is seen in the establishment of status offenses, conduct prohibited by law simply

status offenses offenses deemed to be illegal when committed by juveniles because of their age, which are not unlawful for adults, such as smoking, drinking, and curfew violations

MYTH Juveniles are becoming more violent and criminally dangerous.

REALITY Juvenile violent crime peaked in 1994 and has been declining steadily since, with the prediction of a wave of juvenile super- predators never reaching fruition.

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52 Section I A Foundation for Understanding Constitutional Law

because the person engaging in the behavior is a minor (usually younger than 18). Examples of such offenses include smoking cigarettes, drinking alcohol, running away from home, and truancy. In 2009, juvenile courts petitioned and formally

disposed of an estimated 142,300 status offense cases, a 20 percent increase since 1995 (Puzzanchera et al., 2012, p. 72).

Beginning in 1980, a trend emerged to “get tough” on juvenile offenders, especially those committing more serious crime, with many states implementing legislative provisions to allow juve- niles to be tried in criminal courts, increasing sentencing options by juvenile courts and reducing juvenile court confidentiality.

Law Enforcement Many police departments have a separate juvenile division or at least a few juvenile officers. Many other departments have no such specialists, and all officers are responsible for both juvenile and adult offenders. The terminol- ogy usually differs, however. Juveniles are taken into custody; adults are arrested. Juveniles are accused of delinquent acts; adults are accused of crimes. Juveniles are directed to appear in court by a petition; adults are directed to appear in court by an information or indictment. Juveniles and adults may be kept in custody before appearing in court to protect the public or to ensure their court appearance. In the case of juveniles, this is called detention; adults are jailed. Adults usually have a right to bail; juveniles do not in most states.

Courts Juvenile court proceedings are less formal and may be private; adult proceedings are more formal and public. Juvenile identifying information is usually not released to the press; adult information is released. Juveniles have no constitu- tional right to a jury trial, but adults do (some states, however, have extended this right to juveniles). Both systems require proof beyond a reasonable doubt and the right to be represented by an attorney, and both allow appeals to a higher court. The initial appearance before a juvenile judge is called a conference; before a criminal judge it is called a preliminary hearing. In juvenile court, the adjudication hearing par- allels the adult trial. Juvenile court proceedings are quasi-civil and may be confi- dential; criminal court proceedings are open.

During a juvenile hearing, a youth may be adjudicated delinquent; in the adult court, the defendant is declared a criminal. In either court, if a guilty decision is rendered, a hearing to determine the outcome is held. In juvenile court, this is the dispositional hearing; in adult court, it is the sentencing hearing. In either system, the disposition or sentence cannot be cruel or unusual. Although controversy has always surrounded the death penalty, the controversy increases about whether it should be applied to juveniles. In the landmark case of Roper v. Simmons (2005) the execution of minors was held to violate the Eighth Amendment prohibition against “cruel and unusual punishment,” and the Supreme Court ruled it unconstitutional to impose capital punishment for crime committed by a defendant who was younger than age 18 at the time of the offense.

Corrections As noted, juvenile and adult correctional facilities are to be sepa- rated. Available juvenile sentences typically span the full range of correctional options, from fines and restitution, to probation and intermediate sanctions, to incarceration in a juvenile detention facility. Juveniles released from custody receive aftercare; adults receive parole or probation.

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Chapter 2 An Overview of the U.S. Legal System 53

The Changing Face of American Criminal Justice and Constitutional Law This brief overview of the criminal and juvenile justice systems has been provided to stress the importance of the Constitution at every juncture within these sys- tems. Whatever the role of government agents, their power is limited by the con- straints of the Constitution. This should never be viewed as a hindrance or something negative. Rather, this provides the government, and those it serves, with clear guidelines that maintain the purpose the framers of the Constitution had in mind more than two centuries ago. This system of reserved power benefits all concerned.

The Constitution is not just about history and theory. It applies to every crimi- nal justice practitioner. Each is expected to understand constitutional rights and to apply them in any number of situations, including many that have not previously arisen. Actually, U.S. constitutional law is being challenged in numerous unprec- edented ways because technology and travel make crossing international borders an everyday event for millions around the world. Returning to a concept intro- duced previously—that U.S. law is living and ever evolving—this chapter con- cludes with a look at how this blurring of jurisdictional boundaries affects constitutional law.

U.S. Criminal Justice beyond Our Borders As the entire world continues to become closer for reasons that include electronic communication, the Internet, and ease of travel, people find themselves increas- ingly interested in laws different from their own. The study of comparative law is just that, comparing and contrasting laws to expand understanding of law and legal theory. It is fascinating to delve into the historical development of legal systems and compare them with ours, finding some are quite similar and some vastly different.

Even more relevant to the study of the U.S. Constitution and criminal justice system is the impact of our Constitution and the laws of other nations when Ameri- cans are called on to provide services in foreign lands: “In a shrinking world with a global economy, terrorism, electronic communications, and jet aircraft, much crime is transnational, giving rise to a host of international criminal law enforce- ment tasks. American law enforcement is being ‘exported’ in response to increased international terrorism, drug trafficking, smuggling of illegal immigrants, viola- tions of U.S. securities laws, and money laundering, as well as the potential theft of nuclear material” (Cole and Smith, 2010, p. 173).

Because the Constitution serves as the primary roadmap for U.S. law enforce- ment, primarily involving U.S. citizens, entirely different rules, regulations, poli- cies, and procedures are considered when foreign governments are involved. It is not as simple as having U.S. law enforcement officials conduct their official duties the same elsewhere as they do at home.

Without more powers, any foreign official may be restricted to lawfully gather- ing data with no more authority than any other citizen or visitor would have. Coop- erative agencies such as the International Criminal Police Organization (INTERPOL) serve as clearing houses but cannot summarily grant expanded police powers.

comparative law comparing and contrasting laws to expand understanding of law and legal theory

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54 Section I A Foundation for Understanding Constitutional Law

The U.S. National Bureau of Interpol, the Interpol unit in the United States, oper- ates in Washington, DC, and directly involves multiple federal agencies and cooper- ates with foreign police entities, as their mission statement explains: “The U.S. National Central Bureau (USNCB) was authorized by statute (22 U.S.C. 263a) and operates within the guidelines prescribed by the Department of Justice, in conjunc- tion with the Department of Homeland Security. The mission of the U.S. National Central Bureau is to facilitate international law enforcement cooperation as the United States representative with the International Criminal Police Organization (INTERPOL), on behalf of the Attorney General.”

The authority by which U.S. law enforcement may act in any official capacity in a foreign country is the result of compacts, treaties, or other formal arrangements with those nations. Times of war bring additional rules regulating what is and is not permissible. Recently, the complexities of incorporating such laws as promul- gated by the Geneva Convention and Uniform Code of Military Justice have been scrutinized regarding such issues as the treatment of military prisoners at the Abu Ghraib prison in Iraq. The increased practice of combining military and private security during wartime has expanded the complexities of rules that apply during global conflict.

Because the Constitution is considered the basis of U.S. law and that which is considered just, those pursuing further studies of comparative, military, and law enforcement on foreign soil are best served by developing an initial understanding of the U.S. Constitution.

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Chapter 2 An Overview of the U.S. Legal System 55

In the United States, two prominent theories about the underlying purpose of law are consensus theory and conflict theory. Two models often discussed when articulating the underlying purpose of and values served by the criminal justice process are the Crime Control Model and the Due Process Model. The basic purpose of the U.S. legal system is to ensure fairness in balancing individual and societal rights and needs, while preventing excessive govern- ment power. This balance between individual and societal rights and needs is represented by the scales of justice.

Our legal system has its roots in the common law of England, the early English judge-made law based on custom and tradition and followed throughout the country. In U.S. law, common law is synonymous with case law. Stare decisis is a common law doctrine requiring that precedent set in one case shall be fol- lowed in all cases having the same or similar circum- stances, thus ensuring consistency in the law. The Constitution ensures individual rights by limiting government power. And although the law, in fair- ness, must be consistent, it is also flexible. U.S. law is considered a living law because it can change along with society.

In addition to common law, the legal system also relies on statutory (codified) law, which is promul- gated by legislatures or governing bodies. The U.S. legal system categorizes offenses into two specific areas: civil and criminal. Civil laws deal with personal matters and wrongs against individuals—called torts.

Criminal laws deal with wrongs against society— called crimes. An act may be both a tort and a crime.

A legal citation is a standardized way of referring to a specific element in the law. It has three basic parts: a volume number, an abbreviation for the title, and a page or section number. A legal opinion usu- ally contains (1) a description of the facts, (2) a state- ment of the legal issues presented, (3) the relevant rules of law, (4) the holding, and (5) the policies and reasons that support the holding. Most case briefs contain the case name and citation, a summary of key facts, the legal issues involved, the court’s decision, the reasons for that decision, and any separate opin- ions or dissents. Shepardizing a case involves using Shepard’s Citations, a reference that tracks cases so legal researchers can easily determine whether the original holding has been changed through any appeals.

When civil or criminal laws are broken, the courts’ two main functions are to settle controversies between parties and to decide the rules of law that apply in specific cases. The U.S. judicial system is two-tiered, consisting of state and federal court systems. Each tier includes specific levels of courts. The officers of the court are judges, lawyers, clerks of court, sheriffs, mar- shals, and bailiffs. Three important doctrines govern whether a case will be heard by the court: standing, mootness, and ripeness.

The juvenile justice system has the same three components as the criminal justice system: law enforcement, courts, and corrections.

Summary

Discussion Questions 1. Could a country such as the United States function

without a federal constitution? Would it be possible for each state to merely abide by its own constitution?

2. Why should the Constitution not include an overall criminal code specifying crimes and punishments that could apply throughout the United States?

3. Why is society considered the victim of a crime rather than the individual victimized?

4. Why must the legal system provide an appeal procedure?

5. Can you develop an argument against stare decisis? 6. Why should courts not be permitted to argue

“what if” questions? 7. Which underlying theory about the purpose of law

do you feel makes most sense—consensus or conflict theory?

8. If the basic purpose of the U.S. legal system is to ensure fairness in balancing individual and societal rights and needs, is that end best served by an adversarial system in which the person with the best lawyer often comes out on top? Does this

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56 Section I A Foundation for Understanding Constitutional Law

system of justice provide equal access to people of different socioeconomic classes?

9. Which operational end of the spectrum do you think our current criminal justice system is

positioned closer to: due process or crime control? Why?

10. What problems could arise for any law enforcement professional not keeping up with the law?

References Cole, George F., and Smith, Christopher E. The American

System of Criminal Justice, 12th ed. Belmont, CA: Thomson Wadsworth Publishing, 2010.

LaFountain, Robert C., Schauffler, Richard Y., Strickland, Shauna M., and Holt, Kathryn A. Examining the Work of State Courts: An Analysis of 2010 State Court Caseloads. Williamsburg, VA: National Center for State Courts, December 2012.

Marx, Karl, and Engels, Frederick. Manifesto of the Communist Party. London, 1848.

Packer, Herbert L. The Limits of Criminal Sanction. Stanford, CA: Stanford University Press, 1968.

Puzzanchera, Charles, Adams, Benjamin, and Hockenberry, Sarah. Juvenile Court Statistics 2009. Pittsburgh, PA: National Center for Juvenile Justice, May 2012.

Walker, Samuel, Spohn, Cassia, and DeLone, Miriam. The Color of Justice: Race, Ethnicity, and Crime in America, 5th ed. Belmont, CA: Wadsworth Publishing Company, 2012.

Cases Cited Goldwater v. Carter, 444 U.S. 996 (1979) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) Minnesota v. Carter, 525 U.S. 83 (1998) Miranda v. Arizona, 384 U.S. 436 (1966) Moore v. City of Albany, 98 N.Y. 396 (1885)

National Park Hospitality Association v. Department of the Interior, 538 U.S. 803 (2003)

Rakas v. Illinois, 439 U.S. 128 (1978) Roe v. Wade, 410 U.S. 113 (1973) Roper v. Simmons, 543 U.S. 551 (2005)

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CHAPTER 3 The U.S. Supreme Court: The Final Word

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Current Supreme Court justices pose for their official group portrait. Front row (L-R): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, and Associate Justice Ruth Bader Ginsburg. Back Row (L-R): Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan.

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58 Section I A Foundation for Understanding Constitutional Law

certiorari conservative judicial review

liberal opinion recesses

sittings strict construction

Can You Define?

Do You Know . . . ! Under what authority the Supreme Court operates? ! What the jurisdiction of the Supreme Court is? ! How the Supreme Court has effectively created most of its own

power and authority? ! Whether the Supreme Court can review acts of Congress? the

precedent case? ! Whether the Supreme Court can review cases that are pending in

state courts or that have been decided in state courts? the precedent case?

! Why appointments of Justices to the Supreme Court are lifetime? ! Whether the current Supreme Court is liberal or conservative?

Introduction The U.S. Supreme Court is uniquely American, and like U.S. law itself, its roots extend to the history of why the framers of the Constitution—representing those who came to this country in search of freedom, due process, and the possibilities of a better life—created the United States. Visitors to our nation’s capitol may be over- whelmed with symbols of the hope, dreams, and challenges of creating a new government two centuries ago. Two statues outside the National Archives in Wash- ington proclaim Study the Past and What Is Past Is Prologue.

This chapter has been included not because many of us will ever find ourselves appearing before the Supreme Court but because what occurs there affects each of us daily. Unfortunately, many Americans take this for granted. Criminal justice professionals cannot. The history of the Supreme Court, including those who make it up, combines with its role as defined by the Constitution to create this uniquely effective overseer of the legal system. Therefore, it is imperative that those studying law, and particularly constitutional law, have a working knowledge and under- standing of the role the Supreme Court and the Justices appointed to it play in the continuing saga of the country’s living law.

In the final analysis, the Supreme Court is about people. It is about nominees and those appointed to it. It is about individuals named in the cases that gain infamy by having been involved in something that turned out to have broad- reaching effects and those whose seldom-heard stories changed the course of his- tory. And it is about each person affected by the cases the Court hears and those they elect not to hear. Every U.S. citizen is affected by all the Supreme Court does.

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Chapter 3 The U.S. Supreme Court: The Final Word 59

In addition to influencing every U.S. citizen, the Supreme Court has had a pro- found influence on criminal justice and on law enforcement in particular. Spector (2003, p. 16) notes, “Over the past 50 years, the U.S. Supreme Court has molded law enforcement from a seat-of-the-pants job to a highly standardized profession.” He adds that in the past half-century a “flood of Supreme Court cases [has created] the foundation for virtually every action officers take today” (p. 21).

This chapter begins with a discussion of how the U.S. Supreme Court gets its authority and its jurisdiction and the powerful influence it has through judicial review and the ability to grant certiorari. Next the makeup of the Supreme Court is discussed, including a general discussion of Supreme Court Justices and a more specific look at the composition of the present-day court. This is followed by a dis- cussion of the political nature of the Supreme Court and public attitudes toward the Supreme Court. The chapter concludes with a description of some of the Court’s traditions and procedures, where its decisions may be found, and a final look at the power wielded by the highest court in this country.

Authority for the Supreme Court The law that emanates from the Supreme Court is the law of the land, and no other judicial or political body can overrule decisions it makes. Because U.S. law is a living law, conceivably the Supreme Court could overrule itself, which it has, in fact, done.

The constitutional establishment of authority is found in Article 3, which pro- vides a framework for the federal judiciary. The Federal Judiciary Act of 1789 estab- lished the first Supreme Court, and although the number of justices has varied, nine has remained the agreed-on number since 1869.

The Constitution itself is a rather brief document, intended to set forth the framework of the new government rather than to provide the lengthy specifics that others would find themselves having the responsibility of developing. It should not!surprise—or trouble—us that this article is brief and to the point as well. Article 3 states,

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Section 2 of Article 3 of the Constitution defines the jurisdiction (or boundaries) of the Supreme Court.

Jurisdiction of the Supreme Court Section 2. The judicial Power shall extend to all Cases, in Law and Equity, aris- ing under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambas- sadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States,

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MYTH The Constitution dictates that the Supreme Court consist of nine justices.

REALITY The Constitution does not enumer- ate the size of the Court, only that there shall be a Supreme Court and that the number of justices shall be determined by Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the number of justices at nine, and no subsequent change to the number of justices has occurred.

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60 Section I A Foundation for Understanding Constitutional Law

and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Juris- diction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Supreme Court has jurisdiction over two general types of cases: cases that reach it on appeal and cases over which it has original jurisdiction, meaning the case can actually start at the Supreme Court. Whether a case begins in the state or federal system, the path to appeal a case to the Supreme Court is the same, as shown in Figure 3.1.

Because the framers of the Constitution did not want any individual or body to have excessive authority, the Supreme Court has only specific authority itself. It may hear appeals from lower state and federal courts on issues that involve inter- pretation of either federal law or the applicability of the Constitution to the subject at hand. The Supreme Court can also hear appeals on cases dealing with treaties the United States has entered into, admiralty and maritime cases, or those involving certain public officials and political entities.

It should not be assumed, however, that the Supreme Court and inferior (lower) federal courts have carte blanche to do whatever they want. In the post– Civil War case Ex parte McCardle (1868), Congress reserved the right to limit the jurisdiction of federal courts, including the Supreme Court. This does not mean that Congress, or any legislature, can override the Constitution by promulgating unconstitutional law. It does mean that Congress retains the authority to deter- mine the types of cases these courts can hear, thus affecting their jurisdictional authority.

United States v. Klein (1871) supported the McCardle decision when the Supreme Court held that Congress, indeed, retains the power under Article 3 to determine which federal courts may hear certain types of cases. These two cases dealt with what types of appeals could be presented to federal courts. This is an excellent example of the natural tension the Constitution creates to prevent any one branch of government from exercising excessive power. These cases show how power with limitations is granted to Congress and the Court to ensure the balance sought by a free society through the Constitution.

The Constitution permits the Supreme Court original jurisdiction in cases dealing with foreign dignitaries or cases involving legal disputes between states,

with the rationale that a state court could not remain unbiased if its state was a party to the suit. All other cases the Court considers only on!appeal.

As noted by Goebel, “The brevity of the constitutional description left to Congress and the Court itself the task of filling in much of the substance and all of the details of the new judicial system. One early observer commented, ‘The convention has only crayoned in the outlines. It is left to Congress to fill up and colour the canvas’ ” (1971, p. 280). One of the most important ways in which the Court did so was! to establish judicial review of laws passed or of cases settled by lower courts.

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Chapter 3 The U.S. Supreme Court: The Final Word 61

Full judicial decision by the U.S. Supreme Court (majority and dissenting opinions) The Court affirms or reverses lower court decisions. (Note: The decision is not always a final judicial action; the case may be retried in the lower court.) There is no appeal process beyond the U.S. Supreme Court.

Decision-making conferences by the justices Four votes govern the acceptance or rejection of a case: (1) a decision and full opinion; (2) if the case is accepted, there may be a summary decision of a dismissal or affirmation of a lower court decision (per curiam); (3) if the case is rejected, no explanation (reconsideration is possible); and (4) a rehearing after an unfavorable decision is possible.

Prescreening (discussion of the case list) The chief justice places cases on a list, including informal pauper's petitions.

Discretionary decisions (special circumstances) A writ of certiorari or a writ of habeas corpus.

Decision making

State supreme court (State court of last resort) State supreme court cases that do not involve an issue of federal law are ineligible for hearing by the Court.

Federal courts (U.S. appellate courts) The U.S. Court of Appeals; the U.S. Court of Claims and the U.S. Customs Court.

Federal or state trial court cases (processing of case through federal or state court systems)

Mandatory decisions Hears direct statutory appeals in which the state is in conflict with the federal law or Constitution, and original jurisdiction disputes between states.

Figure 3.1 The Path of a Case to the U.S. Supreme Court Source: From SIEGEL. Introduction to Criminal Justice, 12E. © 2010 Wadsworth, a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions

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62 Section I A Foundation for Understanding Constitutional Law

Judicial Review The Supreme Court has tremendous power through the process of judicial review—the power of the Court to analyze decisions of other government entities and lower courts: “Judicial review is the doctrine according to which courts are

entitled to pass upon the constitutionality of an action taken by a coordinate branch of government” (Ducat, 2010, p. 3). That coordi- nate branch of g overnment is the legislature. And as Chief Justice Charles Evans Hughes put it during a speech in 1907 before the Chamber of Commerce in Elmira, New York, “We are under a Con- stitution, but the Constitution is what the judges say it is.” The Supreme Court can decide which laws and lower court decisions are constitutional.

Initially, the Supreme Court did not review state decisions. It is not surprising that lively debate has occurred over just exactly how far the Supreme Court may go in performing its job or what that job actually is. As with other parts of the Constitu- tion, the brevity leaves room for much interpretation, debate, and disagreement.

In 1803, the stage was set when the Supreme Court forcefully asserted its right to judicial review in Marbury v. Madison, taking advantage of the opportunity to define its own role. William Marbury had been appointed justice of the peace for the District of Columbia in 1801 by President John Adams, just before Adams left office. When Thomas Jefferson became president, his new Secretary of State, James Madison, would not acknowledge Marbury’s position. Marbury took the case to the Supreme Court, demanding that the new secretary of state recognize his appoint- ment. (See Appendix C for a brief of the case.)

Although admittedly a complex case, Chief Justice John Marshall recognized the opportunity to definitively state that, indeed, the Supreme Court had the power to declare an act of Congress (in this case, the Judiciary Act passed by Congress in 1789) unconstitutional. Chief Justice Marshall went so far as to say that it was the Supreme Court’s responsibility to overturn unconstitutional legislation because of its duty to uphold the Constitution. Chief Justice Marshall forcefully established the!Supreme Court’s authority as the final interpreter of the Constitution, and his words still ring: “If the courts are to regard the Constitution as superior to any ordinary act of the legislature, the Constitution and not such ordinary act must govern the case to which they apply. . . . It is emphatically the province of the judi- cial department to say what the law is.”

In stating that the Constitution is the supreme law of the land and that the justices are required to follow it rather than inconsistent provisions of legislation, the Supreme Court denied Marbury his commission. Some scholars describe Marbury v. Madison as the cornerstone of American constitutional law because for the first time the Supreme Court nullified a provision of federal law. Chief Justice Marshall established that judges are authorized to nullify any law that in their view violates the Constitution.

This case called attention to the conflict between judicial review and political democracy by asking, “Who makes the law—those elected by the people or those sitting on the Supreme Court bench?” The Court’s decision was seen as completely opposed to political democracy.

In short, the legal groundwork (precedent) was established authorizing the Supreme Court to maintain a position of the ultimate de facto lawmaker by deciding what legislation is and is not constitutional. Arguably, although Congress could

judicial review the power of a court to analyze decisions of other government entities and lower courts

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Chapter 3 The U.S. Supreme Court: The Final Word 63

regroup and promulgate additional legislation, the Supreme Court could declare it unconstitutional as well. The Supreme Court does, in fact, have awesome power.

The Supreme Court extended its review authority beyond fed- eral law to state laws through Fletcher v. Peck (1810) and again in Martin v. Hunter’s Lessee (1816), a case that established the power Congress had given the Supreme Court to hear cases involving federal law and constitutional issues. In Martin, the Supreme Court determined that it could reverse state court decisions that involved federal legal issues. This case involved a dispute over land ownership. When the Supreme Court heard the case and made a determination, the Virginia state courts refused to follow the Court’s decision, arguing that the Supreme Court had no authority to overrule the state court’s decision. Again, although the case is complex, the final determination was that the Supreme Court did have the authority to review cases dealing with federal law, even though the case is pending in a state court.

To clarify, Supreme Court Justice Oliver Wendell Holmes asserted that whereas Marbury v. Madison gave the Supreme Court the power to declare acts of Congress unconstitutional, it was even more important that, in the case of Martin v. Hunter’s Lessee, the Supreme Court had the authority and power to review and reverse state court decisions to ensure consistent interpretations of federal law.

Controversy over and Alternatives to Judicial Review Opponents of judicial review contend judges have too much power: “The main alter- native to judicial review is legislative supremacy, and the question is whether the courts have the power to overrule the decisions of elected legislators. Thus, today, opponents of judicial review call for the courts to give up the power to declare state or federal statutes unconstitutional” (Farber, 2003, p. 417).

Proponents of judicial review, on the other hand, argue there must be some watchdog to maintain the constitutionality of law, even if passed by elected bodies of government: “Essentially, judicial review is an attempt to solve a practical prob- lem: how to keep politicians from violating individual rights or undermining the overall system of government for short-term gains” (Farber, 2003, p. 443).

Admittedly, judicial oversight is not the only option available. The most basic alternative is for judges to simply refuse to overrule a law, albeit unlikely. Alterna- tive means of resolution could keep cases from finding their way to the courtroom. One often suggested alternative is mediation. Other alternatives include subgroups within legislatures to provide self-oversight, leaving an obvious potential conflict of interest. Another alternative is to have legislative bodies assess the actions of others. Some have even proposed an individual, such as the president, be the final arbiter. However, “If Congress is not to be trusted to be the sole judge of its own authority, and if the state governments are eliminated, that leaves only the Presi- dent as an alternative to judicial review,” and even presidential decisions may necessitate judicial oversight (Farber, 2003, p. 441).

The debate is not that there needs to be some form of final say as to what law is constitutional. The debate is over who should have that final say. And so, the issues set forth in Marbury v. Madison more than two hundred years ago persist.

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64 Section I A Foundation for Understanding Constitutional Law

Certiorari: Deciding Which Cases to Hear The Supreme Court’s decision to review a case is almost entirely discretionary. Rarely are cases heard by the Court simply because there is a right to have them heard. The Supreme Court may review a case if a federal appeals court requests that the Supreme Court to “certify” or clarify a legal point. It is also obligated to hear certain cases meeting the requirements for an “appeal of right,” although these types of cases occur infrequently.

The vast majority of cases heard by the Supreme Court occur through the writ of certiorari (certiorari is Latin, meaning “to be informed”), whereby the Court determines which cases are worthy of review on the basis of their national importance.

One of the primary reasons the Supreme Court will choose to hear a case is because it involves conflict among the circuits. The Court wants the law to be con- sistent across the nation, so when two circuits are in conflict, the Court will be more likely to grant certiorari. Another determining factor is whether the legal issue falls into the “cases and controversies” category, meaning the Court will hear only legiti- mate cases and will not give advisory opinions, unlike some state supreme courts. The Court will also not hear cases involving “political” questions, such as those involving issues that are “textually” committed to another branch of government or those in which there is a lack of “judicially discoverable and manageable stan- dards for resolving the question.” Finally, the case must involve federal law, the U.S. Constitution, or somehow otherwise fall within the jurisdiction of the federal courts. In determining which cases to hear, the justices are looking for cases involv- ing matters that directly influence the law and the nation, another example of how powerful this institution is. The justices alone determine on which cases a final decision will be made.

Staff attorneys begin the process of deciding which cases will be heard. A “dis- cuss list” is generated and considered during private meetings of the justices. Any case that does not have at least one justice expressing an interest in it is summarily denied. This accounts for the disposition of more than 70 percent of cases submit- ted. Known as the “Rule of Four,” at least four of the nine justices must vote in favor of granting certiorari for a case to be accepted for review. Even then, more than 90 percent of all cases submitted for certiorari are denied.

According to the Supreme Court’s official government website, the justices’ caseload has increased rapidly in recent years, and the current docket exceeds 10,000 cases per term: “Plenary review, with oral arguments by attorneys, is granted in about 100 cases per Term. Formal written opinions are delivered in 80 to 90 cases. Approximately 50 to 60 additional cases are disposed of without granting plenary review. The publication of a Term’s written opinions, including concurring opinions, dissenting opinions, and orders, approaches 5,000 pages. Some opinions are revised a dozen or more times before they are announced” (“The Justices’ Caseload,” 2013).

During fiscal year 2010 (October 1, 2009 to September 30, 2010), 5,910 new writs of certiorari were filed, adding to the 3,332 cases that were still pending from the previous term. During this session, 165 writs of certiorari were granted; 5,297 were denied; and 140 were dismissed, leaving 3,640 pending at the end of that term. Of the 5,910 cases filed, 2,449 were criminal cases; 783 were U.S. civil

certiorari Latin for “to be informed”

MYTH We have the right to be heard in the Supreme Court.

REALITY This statement is not supported by the Constitution, nor by congressional law, nor by the rules of the Supreme Court itself. According to Rule 17 of the Supreme Court (effective June!30, 1980), “[a] review on writ of certiorari is not a matter of right, but of judicial discretion.”

MYTH Every case that gets escalated to the Supreme Court gets heard or at least commented on.

REALITY The vast majority of cases submitted to the Court for review are denied.

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Chapter 3 The U.S. Supreme Court: The Final Word 65

cases; 2,513 were private civil cases; and 165 were administrative appeals. Of the 165 cases granted “cert,” 45 were criminal, 15 were U.S. civil, 86 were private civil, and 19 were administrative appeals (Sourcebook of Criminal Justice Statistics Online, Table 5.70.2010, n.d.).

The power that goes with granting certiorari is significant but so is not “grant- ing cert,” as it is also referred to.

Newspapers and online sources of law enforcement often erroneously report that when the Supreme Court denies “cert,” it is upholding the state’s ruling. For example, when the Supreme Court denied “cert” to hear an appeal from a decision of the Virginia Supreme Court (Virginia v. Harris, 2009), several headlines read, “Supreme Court Upholds Ban on Traffic Stops Based on a Caller’s Tip.” As Rut- ledge explains, “Under the rules as to what does and what does not constitute a holding of the Supreme Court, the fact that the state court ruling was not acted upon does not mean that the Supreme Court ‘upholds’ the state’s ruling. It means that the Supreme Court is not expressing either approval or disapproval, and nothing is to be inferred from the denial of review” (2010, p. 64). The Court has time to examine only about 1 percent of the approximately 8,000 cases it is asked to review each year and has repeatedly emphasized that it takes no official position on the remaining 99 percent of cases to which certiorari is denied, including the Virginia v. Harris case: “As the Court has repeatedly said, the fact of non-review ‘imports no expression of opinion upon the merits of the case,’ and no one should assign ‘any precedential value’ to the fact that a particular ruling of a lower court was not reviewed (Teague v. Lane [1989])” (Rutledge, 2010, p. 64).

The Supreme Court Justices The Supreme Court has one Chief Justice and eight Associate Justices, nominated by the President of the United States and confirmed by the Senate. Clearly, the fram- ers of the Constitution did not intend for undue influence to be applied to justices serving on the Supreme Court or on any inferior court, as stated in Section 1:

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a! Compensation, which shall not be diminished during their Continuance in!Office.

No one trying to influence the justices’ decisions can ever hold either their jobs or their paychecks over their heads.

Article 2 of the Constitution directs that the president of the United States shall nominate a judge for appointment to the Supreme Court, which the Senate must confirm. Article 2 also directs that federal judges, along with all other government officials, could be removed from their offices “on impeachment for and conviction of, treason, bribery, or other high crimes and misdemeanors.”

Impeachment is a complex process whereby the House of Representatives brings forth articles of impeachment and the Senate holds the trial. The process, which cannot be based on anything other than actual misconduct, has resulted in only one Supreme Court Justice being impeached (Samuel Chase in 1804), but because of the political motivations behind it, he was never actually convicted by

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MYTH When the Supreme Court denies certiorari, it is effectively uphold- ing the ruling of the court below it, thus setting precedent.

REALITY When certiorari is denied, the Court is expressing neither approval nor disapproval of the lower court’s ruling—it is simply refusing to consider the case. This has the effect of letting the lower court’s ruling stand, but it does not mean the Court agrees with the holding.

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66 Section I A Foundation for Understanding Constitutional Law

the Senate. Unless they engage in criminal conduct or obviously unethical actions, federal judges need not worry that their decision might cost them their jobs.

Nominating Supreme Court Justices is a particularly powerful responsibility. Although the president will have no authority over a justice once the justice is appointed, considerable research is conducted before the president recommends an individual. By scrutinizing a judicial candidate’s record, a president is likely to predict how someone might lean when deciding certain politically important issues. A conservative president will seek a conservative judge; a liberal president will seek a liberal judge. The power of a president to potentially mold the makeup of the Supreme Court is a most envied political privilege.

Since the origin of the Supreme Court in 1790, more than 100 justices have served, some liberal, some conservative. Smith (2003, p. 164) provides definitions of liberal and conservative modeled on the classifications in the Supreme Court Judicial Database. Liberal decisions are pro–person accused or convicted of a crime, pro–civil liberties or civil rights claimants, pro-indigents, pro–American Indians and antigovernment. Conservative decisions favor the government’s interest in prosecuting and punishing offenders over recognition or expansion of rights for individuals.

The 1960s saw a liberal Supreme Court under Chief Justice Earl Warren, with a focus on the rights of the accused. The expansion of criminal procedural rights was slowed in the 1970s and 1980s by President Richard M. Nixon’s appointments of conservatives Warren Burger and William H. Rehnquist. However, another Nixon appointee, Harry Blackmun, tended to the liberal side. President Gerald R. Ford’s single appointee, John Paul Stevens, tended to be moderate to liberal in his views, rather middle of the road, not greatly influencing the direction of the Court.

President Ronald Reagan’s three appointments shifted the Court toward a more conservative stance. Sandra Day O’Connor, the first woman to serve on the Court, was seen as moderate to conservative, usually voting to limit prisoners’ rights. Antonin Scalia and Anthony Kennedy were both considered very conservative. Also tipping the balance to the conservative side was the appointment of Rehnquist as Chief Justice.

When conservative David Souter was appointed by President George H. W. Bush to replace liberal William Brennan in 1990, the trend continued, with the Court increasingly favoring the state and law enforcement’s position over that of criminal defendants. The conservative nature of the Court was further bolstered when the first President Bush appointed Clarence Thomas (yet another conservative) to replace liberal Thurgood Marshall. President Bill Clinton’s 1993 appointment of Ruth Bader Ginsburg did little to change the existing “law and order” Court.

President George W. Bush in his second term appointed John Roberts, Jr., to the Court and appointed him to replace William Rehnquist as Chief Justice after Rehnquist’s death. Interestingly, Roberts was nominated by President George H. W. Bush in 1992, but no vote occurred before President Clinton took office. President George W. Bush succeeded with the appointment in 2005 and appointed Samuel Alito to replace retiring O’Connor. The conservative Rehnquist Court gained a reputation for consistently supporting expanded discretionary authority for state legislatures, prosecutors, police officers, and corrections officials, in sharp contrast to the rights-expanding performance of the Warren Court era (Smith, 2003).

liberal decisions that are pro–person accused or convicted!of a crime, pro–civil liberties or civil rights claimants, pro-indigents, pro–American Indians and antigovernment

conservative decisions that favor the government’s interest in prosecuting and punishing offenders over recognition or expansion of rights for individuals

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Chapter 3 The U.S. Supreme Court: The Final Word 67

The Current Supreme Court The views of the current Supreme Court are often guided and constrained by rul- ings of previous courts. The Warren Court (1953–1969) was liberal by majority, with rulings that generally expanded civil liberties, focused on due process, and tended to reflect empathy toward suspects and defendants who were mistreated by an abusive government. The Burger Court (1969–1986) was also considered liberal, despite the conservative leanings of its Chief Justice. Since 1986, however, the Court’s rulings have shifted to reflect a more conservative stance. For example, the majority of the Rehnquist Court (1986–2005) Justices were selected by Republican presidents who emphasized “law and order” crime control policies, and most of the justices appointed to the Rehnquist Court, three of whom remain on the bench (Scalia, Thomas, and Souter), brought a perspective of criminal justice from their experiences as lawyers on the staffs of county prosecutors, state attorney generals, or the U.S. Justice Department (Smith, 2003). The Rehnquist Court will perhaps be primarily remembered for its revival of federalism. This continued with Chief Jus- tice Roberts having been a deputy solicitor general arguing cases for the govern- ment and Justice Alito having been a federal attorney. Table 3.1 describes the makeup of the current Supreme Court.

On Saturday, August 7, 2010, Elena Kagan was sworn in as the 112th justice to serve on the Supreme Court, swearing to “administer justice without respect to persons, and do equal right to the poor and to the rich.” Baker (2010) suggests,

Succeeding Justice John Paul Stevens, the Court’s retiring liberal leader, Kagan, 50, presumably will not drastically change the philosophical balance on the divided Court. . . . Arguably, Kagan made a mark from the moment she took the oaths Saturday. She is the third woman on the Court, joining Justices Ruth Bader Ginsburg and Sonia Sotomayor. She is also the fifth Justice born after World War II, making that group a majority, and she brings down the average

Table 3.1 The Current U.S. Supreme Court

President appointing

Political party

Year nominated

Age at nomination Born

Years of previous judicial experience Views Home state

Antonin Scalia Reagan Republican 1986 50 1936 4 Very conservative Illinois

Anthony Kennedy Reagan Republican 1988 51 1936 12 Very conservative California

Clarence Thomas George H. W. Bush Republican 1991 43 1948 1 Conservative Georgia

Ruth Bader Ginsburg Clinton Democrat 1993 60 1933 13 Moderate New York

Stephen G. Breyer Clinton Democrat 1994 56 1938 14 More liberal Massachusetts

John G. Roberts, Jr.* George W. Bush Republican 2005 50 1955 2 Conservative New York

Samuel Alito George W. Bush Republican 2006 56 1950 16 Conservative New Jersey

Sonia Sotomayor Barack Obama Democrat 2009 55 1954 17 Liberal New York

Elena Kagan Barack Obama Democrat 2010 50 1960 0

Uncertain but tends toward liberal New York

*Chief Justice

Source: Adapted from the Supreme Court Historical Society.

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68 Section I A Foundation for Understanding Constitutional Law

age on the Court to 64 from nearly 69. And she is the first person since William H. Rehnquist, 38 years ago, to join the Court without experience as a judge.

Politics and the Supreme Court It is interesting to listen to laypeople discuss the Supreme Court and try to argue that it is too political or should not be politicized. Comments such as these show a misunderstanding of the Supreme Court. Make no mistake, the Court is a political body. The political nature of the Supreme Court is exactly why the Constitution gives the power of appointing justices to the president. The unique twist is that once appointed, justices are beholden to no one and truly are their own people. Although politics may have helped them get the job, that is where party lines end, as illustrated in the preceding discussion.

A president seeks nominees who have political views similar to his or hers and those of his or her party. This is common sense. The president is not likely to appoint justices who have vastly different views. Although ability is a factor in selecting justices, the appointment process, as well as the confirmation process, revolves around the appointee’s political views.

The confirmation process is difficult for any potential justice because during this process all questions are allowed, and politics become readily apparent. People may argue this is not fair; however, the U.S. legal process is not only fair but logical. The president is elected to perform a job that includes appointing Supreme Court Justices who will support the ideals of the president’s party. The argument that holds more weight is this: Once appointed, how are the justices held accountable? This argument becomes more of a “greater good” argument: Is it better for the greater good to have justices who cannot be influenced by anyone rather than put- ting them in a position to have to consider being reelected?

This system is not without fault. But given the number of justices on the bench and the process used, the system has proved itself to work extremely well, unless you happen to disagree with the justices’ politics. The Supreme Court creates policy through the decisions it makes. Issues are carefully considered by the entire Court, and changes to American law are never taken lightly. It is never one justice’s deci- sion alone, and although many decisions come down to a 5–4 vote, it can be said that some of the great legal minds in the country have given their best consider- ation to the decision.

During its first six years, the Roberts Court appears to have moved to the right, becoming the most conservative court since 1937, based on four sets of political science data. Scholars who study political science data and trends say that nearly every judicial decision can be assigned an ideological value: “Those favoring, say prosecutors and employers, are said to be conservative, while those favoring criminal defendants and people claiming discrimination are said to be liberal” ( Liptak, 2010, p. A6).

Justices are commonly informally categorized as being a judicial conservative, moderate, or liberal. It is popularly accepted that Chief Justice Roberts and Justices Scalia, Thomas, and Alito compose the Court’s conservative wing. In fact, these 4 justices are considered to be among the most conservative of the 45 justices to have sat on the Court since 1937 (Liptak, 2010). Justices Sotomayor, Ginsburg, and

MYTH Like Congress and the president, the Supreme Court is politically accountable to the citizens.

REALITY The Supreme Court is not directly politically accountable to the electorate. They cannot be “voted off” the bench because of their political views. One of the primary ways of ensuring that the justices remain insulated from outside political pressure was to grant them lifetime tenure.

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Chapter 3 The U.S. Supreme Court: The Final Word 69

Breyer are generally held to constitute the Court’s liberal wing. Although still rela- tively new to the Court, early speculation is that Justice Kagan’s ideological slant is, at the least, moderately liberal, based on her prior experience in the Clinton administration and her appointment as Solicitor General under the Obama admin- istration. Time will tell how her influence will affect the balance of the Court. Jus- tice Kennedy, generally thought of as a moderate conservative, is considered most likely to be the swing vote that determines the outcome of certain close cases (Robinson, 2010).

Since Roberts is only in his 50s, he is likely to head the Court for a “very long tenure.” If the Court continues on the course the past five years suggest, it is likely to elaborate further on the scope of the Second Amendment right to bear arms and to curtail affirmative action and protections for people accused of crimes.

And despite the conservative label, their views of constitutional law are quite different and predictable. Two of the newest members of the bench, Chief Justice Roberts and Justice Alito, tend to be cautious in their votes, reluctant to reject the Court’s own precedents and ruling in a way to preserve them. Justices Scalia and Thomas, on the other hand, tend to issue sweeping opinions calling for fundamen- tal changes in constitutional law. In most of the key cases their reasoning and view of the law has differed, but they have agreed on the outcome in several cases regarding these key constitutional principles—the right to abortion, affirmative action programs, presidential power in connection with the war on terror, and campaign-finance legislation.

When a new justice is placed on the Supreme Court, speculation abounds as to whether there will be a shift from one side of the political spectrum and whether the junior justice will maintain his or her existing ideological and political leanings. The past decade has seen four new justices, including one who has now become Chief Justice. “History has shown that Supreme Court Justices tend to evolve in their thinking once elevated to the Court” (Dwyer, 2009). Dwyer notes that when Sotomayor joined the bench, it considered some “interestingly diverse criminal procedure decisions” and discusses how Sotomayor may rule on constitutional issues involving police officers:

That answer is open-ended but if past history is any indication she will be a tough law and order judge who will not let the government run rampant over individual rights. If life experience is any influence then one must remember she grew up in the Bronx during a time when the Bronx was a lot tougher place to live than it is now, and then after law school she went on to be a prosecutor with the Manhattan District Attorneys’ Office.

A study for the Majority Staff of the Senate Judiciary Committee on her criminal justice record indicated that as a Second Circuit Court of Appeals judge she affirmed convictions 92 percent of the time and upheld police searches 90 percent of the time. The Majority Staff found that her appellate decisions “demonstrate(s) a consistent record of following the rule of law in upholding convictions and sentences in criminal cases.” (Dwyer, 2009)

Throughout the remainder of the text, cases decided by the current Supreme Court will include which judges concurred with the majority opinion and which dissented.

T!" c+$r-.) S+Cr-m" C*+r) 's c*.6id-re4 by 2(ny t= B" c*.9-$V(>%v"—, “l(U (n4 *rd-r” c*+r).

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70 Section I A Foundation for Understanding Constitutional Law

Public Attitudes toward the Supreme Court For the past 30 years the public has had a favorable opinion of the Supreme Court, as shown in Table 3.2.

Table 3.2 Public Opinion of the Supreme Court

“Very favorable opinion”

“Mostly favorable opinion”

“Mostly unfavorable opinion”

“Very unfavorable opinion” “Can’t rate”

1987 13% 63% 15% 2% 7%

1997 13% 64% 12% 6% 5%

2007 18% 54% 14% 3% 9%

2010 9% 49% 17% 8% 16%

Source: Adapted from Sourcebook of Criminal Justice Statistics Online.

In addition to having an overall favorable opinion of the Supreme Court, the public has also expressed considerable confidence in the Court over the past decades, as shown in Table 3.3.

Table 3.3 Public Confidence in the Supreme Court

“Great deal” of confidence

“Only some” confidence

“Hardly any” confidence (or “Very little”*) “None”†

1984 33% 51% 12% —

1991 38% 48% 13% —

1998 31% 50% 14% —

2005 41% 38% 18% 1%

2012 37% 38% 20% 2%

*In 2004, the wording was changed from “Hardly any” confidence to “Very little.” †In 2004, a fourth response option was added: “None.”

Source: Adapted from Sourcebook of Criminal Justice Statistics Online.

Traditions and Procedures Although there is certainly definitive authority regarding what the Supreme Court can hear, how the Court conducts its business is based largely on tradition, with respect for the process that has endured, along with the Constitution and the find- ings of the Supreme Court itself.

By federal statute, a term of the Supreme Court always begins on the first Mon- day in October, continuing until June or July. Terms are made up of sittings, when cases are heard, and recesses, during which the Court considers administrative matters at hand and the justices write their opinions. Usually each side has 30! minutes to present its arguments, with 22 to 24 cases presented at one sitting. The 10:00 ".#. entrance of the justices into the courtroom is announced by the marshal and is steeped in history and tradition, as described by the Supreme Court itself:

Those present, at the sound of the gavel, arise and remain standing until the robed Justices are seated following the traditional chant: “The Honorable, the

sittings periods during which the Supreme Court hears cases

recesses periods when the Supreme Court does not hear cases but considers administrative matters and writes opinions

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Chapter 3 The U.S. Supreme Court: The Final Word 71

Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Hon- orable Court!” (“The Court and Its Procedures,” no date)

As is customary in American courts, the nine justices are seated by seniority on the Bench. The Chief Justice occupies the center chair, the senior Associate Justice sits immediately to the Chief’s right, the second senior Associate Justice sits imme- diately to the left of the Chief Justice, and so on, alternating right and left by senior- ity. Since at least 1800, it has been traditional for justices to wear black robes while in Court.

The public is invited to observe the Supreme Court in session, although all Court discussions and decisions occur in private. This tradition has resulted in the Court being one of the most leak-proof organizations in Washington—those who work there abide by this honored tradition. The public can observe the Supreme Court from the visitors’ gallery, and when that is filled, additional visitors are ush- ered into an area at the rear of the courtroom where people are permitted to sit for as long as 15 minutes before others are allowed the seats. The remaining seats are reserved for lawyers who are admitted to the Supreme Court bar and members of Congress. Also, a chair is always left open for the president, should he or she wish to attend.

Strict protocol is followed, and the air of formality encourages the overall respect the Supreme Court demands and deserves. Although the general tradi- tions of courtesy, civility, and the utmost professionalism result in a subdued atmosphere most of the time, the scene can change when an emotionally charged case is heard or when Americans exert their First Amendment right to speak their mind, often in protest. The abortion issue draws protestors on the anniver- sary of the Roe v. Wade (1973) decision, and when related cases are heard, it can be anticipated that throngs of people on both sides of the issue will be present, as will the media.

During recesses, the justices sit at a large conference table and discuss each case. The most junior justice is required to present his or her view of that particular case first. This allows the most senior justices to control the decisions as the votes come in. The decisions reached are then cast into opinions.

Opinions An opinion is a written statement by the Court explaining its decision in a given case, usually including the legal issues or points of law involved, a statement of facts, and any precedents on which the decision is based. The Chief Justice assigns the writing of the opinion if he voted with the majority. The Justice may assign the case to himself. If the Chief Justice did not vote with the majority, the most senior justice voting with the majority assigns the writing of the opinion. Any justice is free to write an opinion, even if not assigned to do so. This opinion can be a concur- ring opinion (agreeing with the majority) or a dissenting opinion (disagreeing with the majority and the reasons underlying the disagreement).

Concurring opinions, a legal tradition dating back to the 1700s, give justices who did not author the opinion a forum to agree in part, or disagree in part, with

opinion a written statement by the court explaining its decision in a given case, usually including the legal issues or points of law involved, a statement of facts, and any precedents on which the decision is based

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72 Section I A Foundation for Understanding Constitutional Law

what was written. Often, justices will use concurring opinions to address why they agree with the outcome but not with the reasoning. Any opinion issued by a justice has the power to influence others by simple virtue of the fact that a Supreme Court Justice wrote it. These additional opinions might be viewed as “the rest of the story” beyond what the justice writing the majority opinion sets forth and give readers a glimpse into what the other justices were thinking.

Dissenting opinions are included along with the majority opinion to provide the bigger picture and the other perspectives. Although including dissenting opinions is a legal tradition dating back to the King’s Bench of Great Britain in 1792, there are more purposeful reasons for continuing the practice. Primarily, justices can use the opportunity to assert their opinions in hopes of influencing future decisions. Dis- senting opinions may be referred to in briefs written by other lawyers but carry no legal authority.

Interpretations The justices render decisions, and they interpret the Constitution. The interpretive principles used as the justices deliberate are crucial in accomplishing judicial review.

Strict construction means there is a rigid reading and interpretation of that law. Although there is no formal definition of the term, strict construction would not likely expand the specifically set forth law of the particular statute, particu- larly in expanding the intent of that law. Others may choose to interpret laws more liberally, often referring to the “spirit of the law” rather than the specific wording of the law.

A justice might interpret the law based on precedent by identifying analogous cases and using the same line of reasoning set forth in a previous opinion to decide a later legal issue. Alternately, a justice might interpret a case based on the text itself or even on how they interpret the intent of those who wrote the law or!Constitution.

The justices’ personal views regarding the civil rights of victims and criminals influence the day-to-day operations of the entire justice system because they shape the meaning of the Constitution. In addition, interpreting the Constitution is inherently subjective, influenced by the long-term political and social pressures of the times.

Where Supreme Court Decisions May Be Found Few people read the full text of Supreme Court decisions, relying instead on the news media for such information. These decisions may be found in newspapers and newscasts and in magazines such as U.S. News & World Report and Time. In addition, the Public Education Division of the American Bar Association, in cooperation with the Association of American Law Schools and the American Newspaper Publishers Association Foundation, publishes The Preview of United States Supreme Court Cases—an annual eight-issue subscription series that provides advance analysis of cases the Court is going to hear during that term. The first seven monthly issues publish from October to April and correspond to the Court’s

strict construction a rigid interpretation of a law not likely to expand the specifically set forth law of the particular statute, particularly in expanding the intent of that law

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Chapter 3 The U.S. Supreme Court: The Final Word 73

seven argument sessions. The final issue of each year is written after the Court’s term closes in June and contains a review of the cases heard during that term. Cases may also be found on the Internet and through Westlaw and Lexis.

The Power of the Supreme Court The Supreme Court is tremendously powerful. It is so powerful that it has been permitted to actually create much of its own immense authority. In No. 78 of The Federalist Papers, Alexander Hamilton referred to the Supreme Court as the “least dangerous” division of the federal government. Yet, in the cases of Marbury v. Madi- son and Martin v. Hunter’s Lessee, the Supreme Court was permitted to redefine its powers. Who could stop it? Perhaps diabolical in a sense, they are merely carrying out the true intentions of the framers of the Constitution. Who else could practically oversee the Bill of Rights?

It can be interpreted from The Federalist Papers that the Supreme Court was assigned to this awesome task. As Hamilton so stated, the interpretation of the Constitution was to become the “proper and peculiar province of the United States Supreme Court.” For what other reason would the framers of the Constitution have included a supremacy clause declaring that federal law would outweigh state law?

Any system, including that of the United States, must have a final point. Cer- tainly, many argue that “between here and there” are far too many resting points. For example, there is an effort by many to decrease the number of appeals available to condemned prisoners because of the time and expense involved in the current system. Nonetheless, in the end, the Supreme Court has the definitive say, even if it is by deciding not to hear a particular case.

In many ways, the policies and procedures by which the Supreme Court oper- ates reflect how the U.S. legal system all comes together, quite literally, at the end. It is the appeal of last resort for cases coming before it, reflecting the traditions and complexities of law and the discretion that strongly influences the direction the law takes. Interpretation, application, and review of the law give the Supreme Court tremendous power. However, not even the Court possesses total control over the U.S. legal system. Congress still promulgates law, and the president can still veto. The power of the president to appoint and Congress to endorse the makeup of the Court contributes to how the final picture will be painted.

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74 Section I A Foundation for Understanding Constitutional Law

Discussion Questions

Summary

1. Should any one court be given the final say? Why or why not?

2. Is there a negative side to appointment for life on the Court? Does this and the inability to lessen a justice’s salary really prevent influencing a Supreme Court Justice?

3. Do you think the Supreme Court is a de facto lawmaker? Why or why not?

4. Is it possible for the justices to provide a fair review of a case when they hear about it so briefly from the lawyers arguing it before them?

5. Should the Supreme Court accept so few cases? Does the fact the justices decide this totally in private concern you?

6. Do you think the current Supreme Court is carrying out the desires of the founders of our Constitution?

7. Explain where you see the real power of the Supreme Court. What makes the justices so powerful as individuals and as a group?

8. Do you believe the Supreme Court acted properly in the 2000 presidential election in Bush v. Gore (2000)?

9. If you were sitting on the Supreme Court, what sorts of cases would you look for to review?

10. What facts or circumstances might a justice focus on if he or she interpreted the Constitution using precedent as a guiding principle? What about if the!justice approached interpretation from the standpoint of the original intent of the authors of the Constitution?

The Constitution ordained in Article 3 that there shall be a Supreme Court. The Supreme Court has original jurisdiction in cases dealing with foreign dignitaries and legal disputes between states. All other cases are considered only on appeal.

The Supreme Court has effectively created most of its own power and authority through the process of judicial review. Two precedent cases confirmed this power. Marbury v. Madison (1803) established that the Supreme Court has the authority to nullify

and void an act of Congress that violates the Constitution. Martin v. Hunter’s Lessee (1816) held that the Supreme Court can review and reverse state court decisions and can review pending state cases.

Because justices decide matters vital to national interest, a Supreme Court appointment is a lifetime appointment so a justice may not be unduly influ- enced. The current Supreme Court is considered by many to be a conservative “law and order” court.

References Baker, Peter. “Kagan Is Sworn In as the Fourth

Woman,!and 112th Justice, on the Supreme Court.”!The New York Times, August 7, 2010. Retrieved March 1, 2013, from www.nytimes .com/2010/08/08/us/08kagan.html?_r=0.

“The Court and Its Procedures.” Washington, DC: Supreme Court of the United States website, no date. Retrieved March 1, 2013, from www .supremecourt.gov/about/procedures.aspx.

Ducat, Craig R. Constitutional Interpretation, 9th ed. Belmont, CA: Wadsworth/Cengage Learning, 2010.

Dwyer, Terrence P. “U.S. Supreme Court Year in Review: Cases and Faces from 2009.” PoliceOne. com!News. December 16, 2009. Retrieved March 1, 2013, from www.policeone.com/investigations/ articles/1979268-U-S-Supreme-Court-year-in- review-Cases-and-faces-from-2009/.

Farber, Daniel A. “Judicial Review and Its Alternatives:!An American Tale.” Lake Forest Law Review, October 2003, pp. 415–444.

Goebel, Julius, Jr. The Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Volume I, Antecedents and Beginnings to 1801. New York: The Macmillan Publishing Company, Inc., 1971.

“The Justices’ Caseload.” Web page on the U.S. Supreme Court website. Accessed March 1, 2013,!from www.supremecourt.gov/about/ justicecaseload.aspx.

Liptak, Adam. “Court Under Roberts Is Most Conservative in Decades.” The New York Times, July!24, 2010. Retrieved March 1, 2013, from www.nytimes.com/2010/07/25/us/25roberts .html?pagewanted=all.

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Chapter 3 The U.S. Supreme Court: The Final Word 75

Cases Cited Bush v. Gore, 531 U.S. 98 (2000) Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868) Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816)

Roe v. Wade, 410 U.S. 113 (1973) Teague v. Lane, 489 U.S. 288 (1989) United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) Virginia v. Harris, 558 U.S.___ (2009) Youngstown Sheet & Tube Co. v. Sawyer (1952)

Robinson, Robert R. “‘Still Chastened’: Assessing the!Scope of Constitutional Change under an ‘Obama Court.’” The Forum, Vol. 8, Issue 2, Article!3, 2010. Retrieved March 1, 2013, from http://papers.ssrn.com/sol3/papers .cfm?abstract_id=1610251.

Rutledge, Devallis. “Beware of False Headlines.” Police,!January 2010, pp. 64–67.

Smith, Christopher E. “The Rehnquist Court and Criminal Justice: An Empirical Assessment.” Journal of Contemporary Criminal Justice, May 2003, pp. 161–181.

Sourcebook of Criminal Justice Statistics. www.albany .edu/sourcebook/pdf/t5702010.pdf.

Spector, Elliot B. “50 Years of Supreme Court Decisions.” Law and Order, Fiftieth Anniversary Issue,!1953–2003, pp. 16–21.

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CHAPTER 4

A!" #$r%&'s (&r) &r *+,-r+!.ze/ 0) t12 U'0te/ St+t3 +n/ 4-5je6 t7 t12 8-r9s:i6 i&) t1$re; , +r2 c0,.<$'s ; t12 U'0te/ St+t3 +n/ ; t12 St+t2 = $r$0) t1ey >3 id2. N7 St+t2 ?h+!" @+k2 &r $'f&rc2 +ny l+A = 9cB ?h+!" +5CidD2 t12 EC0v0leg3 &r 0FF-'0,i3 ; c0,.<$'s ; t12 U'0te/ St+t3 ; *&r ?h+!" +ny St+t2 d$GC0v2 +ny #$r%&) ; !0f2, !0($rty, &r Er&p$rty, H0th&-I :u2 ErJcK ; l+A; *&r d$ny t7 +ny #$r%&) H0t10) 0ts 8-r9s:i6 i&) t12 eLu+" ErM e6 i&) ; t12 l+ws.

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Equal Protection under the Law Balancing Individual, State, and Federal Rights

The role of the jury cannot be overestimated in the U.S. legal system’s quest for due process.

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Chapter 4 Equal Protection under the Law 77

affirmative action American dream contextual

discrimination discrimination disparate impact disparate treatment disparity due process due process

of law

equal protection of the law

incorporation doctrine Jim Crow laws movant penumbra preemption prejudice privilege procedural due

process

racial profiling reverse discrimination right SAR substantive due

process summary judgment unenumerated rights zones of privacy

Can You Define?

! What the Thirteenth Amendment provides? the Fourteenth Amendment?

! How procedural due process and substantive due process differ? ! How the incorporation doctrine prevents states from infringing on

citizens’ rights? ! What the importance of Griswold is? ! How enumerated and unenumerated rights differ and the two types

of standards used by the Supreme Court to evaluate them? ! How discrimination differs from prejudice? ! What significance the Dred Scott decision had? ! What the Supreme Court held in Plessy v. Ferguson?

! What Jim Crow laws are? ! What legislation in the 1960s and 1970s prohibited discrimination? ! What the intent of affirmative action programs was? ! What violations of the Equal Protection Clause have occurred in the

criminal justice system? ! How a right differs from a privilege? ! What Fourteenth Amendment rights prisoners have?

Do You Know . . .

Introduction What can now be seen as an obvious shortcoming to the Constitution and Bill of Rights was their failure to abolish slavery; however, the Supreme Court’s ultimate decision to reverse itself, following ratification of the Thirteenth and Fourteenth Amendments, making slavery illegal, is important for more than the obvious rea- son. This is an example of our living law at work. Bearing in mind that law

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78 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

supports social norms, as hard as it is to imagine, not everyone objected to slavery at the time the Dred Scott case was decided in 1856. Social norms changed, and the Constitution and constitutional interpretations have accommodated them. In addition, although the Bill of Rights, as originally drafted and ratified, guaranteed American citizens basic freedoms that the federal government could not infringe on, it did not apply to the states, each of which had its own constitution and stat- utes. To ensure that the states did not deny the basic rights set forth in the Consti- tution and the Bill of Rights, Congress passed the Fourteenth Amendment. Keep in mind the Constitution was initially drafted to limit power of the federal gov- ernment, with later amendments extending this limitation to state and local gov- ernments as well.

This chapter begins with a brief look at the abolition of slavery through the Thirteenth Amendment and a discussion of the Fourteenth Amendment, which granted slaves citizenship and required that states abide by the federal Constitution and specific provisions in the Bill of Rights. This is followed by a discussion due process, an explanation of enumerated rights and incorporation, a deeper examina- tion of procedural due process and substantive due process, and a look at due process and privacy rights. Next is an examination of discrimination versus preju- dice, the roots of racial discrimination, and the struggle for equality. The issue of equal protection and discrimination within the criminal justice system is also explored. The chapter concludes with a look at how federal powers are checked.

The Thirteenth Amendment The Civil War resulted from a variety of issues, including differing interpretations of the Constitution resulting from the different norms of a still-developing country. The legal conflict with the emerging Constitution was that although the framers sought to prevent excessive federal authority, their desire to give states more author- ity over their own development resulted in problems the national government simply could not continue to overlook. Among the issues were state banks and money versus national banks and currency, federal aid versus state aid for improv- ing roadways and railways, and freedom versus slavery. During debates involving these issues, two theories as to the nature of the Constitution emerged, articulated during the 1830 Great Debate in the Senate between Robert Hayne of South Caro- lina and Daniel Webster of Massachusetts.

On the one hand, Hayne asserted that the Union created by the Constitution was merely a compact between sovereign states, a league of independent states, and as such, states may lawfully withdraw from the Union if they so wish. Webster, on the other hand, asserted that the Constitution established an indivisible Union with laws binding on the states, and states could not simply leave the Union.

These issues came to a head when Abraham Lincoln was elected president in 1860. That December, South Carolina passed a resolution to withdraw from the Union. Early in 1861, Florida, Georgia, Alabama, Mississippi, Louisiana, and Texas did the same.

President Lincoln was faced with the task of trying to keep the Union together. He had been elected on a promise to abolish slavery in the territories, but he con- ceded that under the Constitution, slavery was legal in the states where it had been established. Lincoln tried to assure the Southern states that he had neither the right

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Chapter 4 Equal Protection under the Law 79

nor the intent to interrupt their way of life. The Supreme Court had ruled in Dred Scott v. Sandford (1856) that even free Blacks could not be citizens of the United States and that they “had no rights which a White man was bound to respect.” The Southern states were not convinced, however, and the Civil War ensued (1861–1865).

The Civil War affected this country in ways no other war could. The casualties were enormous—at least 618,000 Americans died (Davis, 1988)—and the divisive- ness to the nation was deep, with impacts remaining to this day. It pitted American against American and sometimes brother against brother. It is a prime example of how important societal norms are and again showed the United States’ resolve to stand firm to the principles on which the country was founded, as so eloquently expressed by Lincoln in his Gettysburg Address, which began with this declaration:

Fourscore and seven years ago our fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal . . .

And ended with this promise:

We here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth in freedom, and that government of the people, by the people, for the people shall not perish from the earth.

While debating and passing bills regarding such critical issues of a new coun- try as conducting war, taxes, tariffs, and banking, Congress also sought to deal with the slavery issue. In April 1862, slavery was abolished in the District of Columbia and two months later in all the territories. In the summer of 1862, Lin- coln announced that unless the Southern states returned to the Union, he would call for an end to slavery in all rebelling states. In the Emancipation Proclama- tion, issued January 1, 1863, Lincoln declared free all the slaves in the rebelling states. In effect, this proclamation did little. Those in the South retained their slaves, as did those in slave states that remained loyal to the Union. What the proclamation did, however, was set a national tone that gained momentum toward abolishing slavery.

In January 1864, a resolution to amend the Constitution to abolish slavery throughout the United States was introduced in Congress. After a year of pro- longed discussion, the Thirteenth Amendment was approved by the required two- thirds vote in both houses of Congress and ultimately ratified by the states in December of 1865:

Neither slavery nor involuntary servitude . . . shall exist within the United States or any place subject to their jurisdiction.

Although the Thirteenth Amendment abolished slavery in 1865, after the Civil War, many Southern states continued discrimination by passing “Black Codes,” which forbade Blacks to vote, serve on juries, hold certain jobs, move freely, own firearms, or gather in groups. Racial turbulence ensued, and groups such as the Ku Klux Klan emerged in defiance and bigotry in many communities. To remedy this situation, Congress passed the Fourteenth Amendment, which gave Blacks citizen- ship, a status previously defined only by the states.

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80 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

The Fourteenth Amendment The Fourteenth Amendment is a significant addition to the Constitution, and although the amendment has five sections, Section 1 has had the most lasting sig- nificance through its creation of three important provisions concerning citizenship, due process, and equal protection.

The first sentence in Section 1 contains the Citizenship Clause and states that “all people born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” a decree that effectively overrode the Dred Scott decision (a case discussed later in this chapter). Southern states were required to ratify the Four- teenth Amendment before reentering the Union.

Citizenship, however, was not the only issue addressed in the Fourteenth Amendment. The more looming concern was that states remained able to infringe on due process and equal protec-

tion rights that federal government was prohibited from. The 1833 land dispute case of Barron v. Mayor and City Council of Baltimore illustrates the contradictions caused when different standards are applied to federal and state government. In this case, the plaintiff challenged the constitutionality of Baltimore taking his land for public use and not adequately compensating him, as mandated in the Fifth Amendment. The Supreme Court held that such a case involving local government had no place in federal court because the first 10 amendments to the Constitution (the Bill of Rights) were not applicable to state governments. Writing for a unanimous majority, Chief Justice John Marshall’s opinion held that each state was permitted to draft its own constitution, and that the federal Constitution was intended as a means to maintain a separation of powers. The Bill of Rights was meant to be a check on the new national government by limiting its control of state laws.

However, the Civil War had altered the perception that national and state governments needed to be considered so sepa- rately that one could do what the other was prohibited from doing. And as a result, the second sentence of Section 1 of the Fourteenth Amendment extended to the states many of the same limits placed on federal power by promulgating: “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.” Through the Due Process Clause and Equal Protection Clause, the Four- teenth Amendment thus sought to prevent both the federal and state governments from infringing on the majority of constitutionally guaranteed rights because abuse at either level could assault the liberties the Constitution sought to protect.

The Fourteenth Amendment prohibits the government at any level from unfairly or arbitrarily denying a citizen their fundamental and constitutionally protected rights to life, liberty, and property (due process of law) and requires that similarly situated people or classes of people be treated in similar ways under the law (equal protection of the law). These rights have been the basis of many modern cases in constitutional law.

due process of law prohibits the government from unfairly or arbitrarily denying a citizen their fundamental and constitutionally protected rights to life, liberty, and property

equal protection of the law requires that similarly situated people or classes of people be treated in similar ways under the law

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Chapter 4 Equal Protection under the Law 81

Due Process Due process is such an important concept of American law that no precise definition accurately suits it, although the gist of it is quite simple: basic fairness must remain part of the legal process. Due process provides rules and procedures to ensure fair- ness to an individual and to prevent arbitrary government actions, by which discretion left to an individual is removed in favor of an openness through which fundamental individual rights—the rights to life, liberty, and property—are protected.

Due process is further distinguished as procedural or substantive. Procedural due process refers to how laws are applied. Procedural due process applies in both the criminal and the civil arenas and comes into play whenever government seeks to interfere with a person’s liberty or a property interest. Substantive due process, on the other hand, requires that the laws themselves, in substance, be fair—not just how laws are enforced. Laws that unjustly limit a person’s freedom or property rights will be found to violate the right to due process. Examples include laws that have permitted segregation and the unjust taking of property by the government. Both types of due process will be discussed in more depth shortly. For now, it is sufficient to note that procedural due process and substantive due process work to ensure to everyone the fairness of law under the Constitution.

The various and specific ways in which the Due Process Clause affects criminal justice will be expanded on throughout the remain- der of the text, including how it regulates the activities of law enforcement officers as they strive to balance individual rights and liberties with the needs of society, for example, in the context of confessions, lineups, and so on. What is important to comprehend at this point is how the Due Process Clause (1) serves as the vehicle by which specific enumerated rights contained with the Bill of Rights are made applicable to the states (the doc- trine of incorporation) and (2) has been applied by the Supreme Court, through its interpretation of the term liberty, to develop a series of fundamental rights not spe- cifically enumerated in the Bill of Rights (e.g., the right to privacy).

Enumerated Rights and Incorporation Following ratification of the Fourteenth Amendment, courts were faced with the task of interpreting the Due Process Clause in ways that applied the fundamental provi- sions of the Bill of Rights, known as enumerated rights, to the states. This process of interpretation and application is referred to as incor- poration. The incorporation doctrine holds that those provisions of the Bill of Rights that are fundamental to the American legal system are applied to the states through the Due Process Clause of the Four- teenth Amendment, thereby preventing state or local governments from infringing on people’s rights when federal government would not be allowed to. Thought of another way, incorporation sets a minimum standard or a “Constitutional floor,” allowing state gov- ernments the opportunity to offer more protection to its people, but not less than what the Constitution commands.

Two general theories of incorporation exist: a selective approach and a “total incor- poration” approach. The total incorporation theory posits that the Fourteenth

due process provides rules and procedures to ensure fairness to an individual and to prevent arbitrary government actions; the Fifth and Fourteenth Amendments’ constitutionally guaranteed right of an accused to hear the charges against him or her and to be heard by the court having jurisdiction over the matter

procedural due process constitutionally guaranteed rights of fairness in how the law is carried out or applied

substantive due process constitutional requirement that laws themselves be fair

incorporation doctrine holds that those provisions of the Bill of Rights that are fundamental to the American legal system are applied to the states through the Due Process Clause of the Fourteenth Amendment, thereby preventing state or local governments from infringing on people’s rights when federal government would not be allowed to

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82 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Amendment should be interpreted such that the entirety of the Bill of Rights and all of the guarantees and protections therein are applicable to the states under the Due Pro- cess Clause. This theory was championed by Justice Hugo Black in Adamson v. Califor- nia (1947) when he wrote in his dissent that the Fourteenth Amendment required “total incorporation” of the Bill of Rights, nothing more or nothing less. This approach pro- vides that the “liberties” applied to the states are those explicit in the Constitution.

The total incorporation theory, however, has remained a relatively obscure interpretive stance among Supreme Court justices; the far more prominent theory has been that of selective incorporation.

The ad hoc or selective approach starts with the notion that if a right is implicit in the concept of ordered liberty, it is absorbed into the Due Process Clause and is, therefore, applicable to the states. In one of the first incorporation cases, Justice John Marshall Harlan stated, “There are principles of liberty and justice lying at the foundation of our civil and political institutions which no state can violate consis- tently with that due process of law required by the Fourteenth Amendment in proceedings involving life, liberty or property” (Plessy v. Ferguson, 1896). And in Palko v. Connecticut (1937), Justice Benjamin Cardozo asserted there were rights “so rooted in the traditions and conscience of our people as to be ranked as fundamen- tal,” meaning “essential to justice and the American system of political liberty.”

Presently, the test for determining what should be incorporated is based on the premise that if a right is “fundamental to the American scheme of justice,” it should be applied to the states through due process, a standard set forth by the Court in Duncan v. Louisiana (1968). In this case, the defendant, Gary Duncan, was driving his car when he noticed two of his cousins involved in a conversation with four boys on the side of the road. Duncan’s cousins, who are black, had been recently involved in racial incidents at their school. The four boys with whom they were speaking were white. Duncan stopped his car, got out, and encouraged his cousins to come with him and leave. Just before Duncan and his two cousins got into the car to leave, Duncan touched one of the other boys’ elbows. Duncan was later arrested and charged with assault. At trial, the four boys testified that Duncan slapped the white boy, whereas Duncan and his cousins testified that he merely touched the other boy. Duncan, who requested a jury trial and was denied, was found guilty of simple bat- tery by a judge and given a 60-day prison sentence and a $10 fine. The maximum sentence was two years imprisonment and up to a $300 fine.

Duncan appealed, claiming violations of his Fifth and Sixth Amendment rights, and the case reached the Supreme Court, which ruled in favor of appellant Duncan. In their analysis, the Court held that the test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal crimi- nal proceedings is also protected against state action by the Fourteenth Amend- ment is to assess whether the right is among the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” In Dun- can, the Court noted how “The guarantees of jury trial . . . reflect a profound judg- ment about the way in which law should be enforced and justice administered.” The Court emphasized that the right of a jury trial in serious criminal cases quali- fies for protection under the Due Process Clause of the Fourteenth Amendment and must be enforced against the states. The Court explained this through a thor- ough evaluation of the history surrounding trial by jury and explained the evils one is meant to protect against.

CASE IN BRIEF Duncan v. Louisiana (1968)

ISSUE Is the denial of a jury trial in a state criminal prosecu- tion, where a sentence of up to two years imprisonment is possible, a violation of the Sixth and Fourteenth Amendments of the U.S. Constitution?

RULING Yes, because the right to a jury trial is “fundamental to the American scheme of justice.”

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Chapter 4 Equal Protection under the Law 83

Duncan illustrates the “modern” test of incorporation of an enumerated right, and importantly, prescribes that the incorporated rights apply to the states in the same way that they apply to the federal government.

The differing incorporation theories are, today, largely of historical significance because most of the Bill of Rights has been incorporated. In fact, to answer the ques- tion of which rights within the Bill of Rights apply to the states, it is often easier to answer, instead, which do not. Of the first eight amendments, only two individual guarantees have not been made applicable to the states by the Supreme Court:

! The Fifth Amendment clause guaranteeing criminal prosecution only on a grand jury indictment.

! The Seventh Amendment guarantee of a jury trial in a civil case.

Previous editions of this text also included the Second Amendment, which guar- antees the right to bear arms, among the unincorporated amendments. However, in June 2010, the Supreme Court made a landmark decision, holding that the right of an individual to keep and bear arms, as protected by the Second Amendment, is incorporated by the Due Process Clause of the Fourteenth Amendment and, as such, applies to the states (McDonald v. Chicago, 2010).

The Third Amendment prohibiting the quartering of soldiers in private houses and the Eighth Amendment prohibiting excessive fines have yet to be addressed by the Court.

Before leaving the discussion of incorporation, it is fair to ask why an amend- ment was not passed that simply applied the Bill of Rights, in its entirety, to the states? The short answer to this immensely complicated, political, philosophical, and legal question is that the tremendous changes occurring in the norms of this emerging country had to be given ample time to evolve on their own. Interpreting the Constitution on the basis of societal norms—the essence of a “living law”—is what has allowed the Constitution to remain effective, and this would prove itself as the era of civil rights and liberties continued to emerge.

Procedural Due Process The Due Process Clauses of the Fifth and Fourteenth Amendments provide proce- dural safeguards. Procedural due process is required when the government seeks to deprive a person of life, liberty, or property. Procedural due process challenges the fairness of how a government action was carried out—the legality of the actual process—and not the substantive basis of the law itself.

Central to the discussion of procedural due process is the concept of interest; if a legitimate interest is not at stake, procedural due process will not apply. Life, liberty, and property are protected interests, but what, exactly, constitutes these interests? The Court has explained it this way:

While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much con- sideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to

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84 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. (Meyer v. Nebraska, 1923)

Liberty interests, which are highly protected, cover a broad spectrum. The Constitu- tion is the source for fundamental liberty interests. Lower-level liberty interests also exist and are government-created by state legislation.

Property interests also require procedural due process but, unlike liberty inter- ests, are not derived from the Constitution, instead being created and defined by state law (Board of Regents of State Colleges v. Roth, 1972). Real estate and personal property are examples. Supreme Court decisions have found property interests in welfare benefits, unemployment compensation, and professional licenses. Property interests receive procedural due process protection when the government has made it clear the interest will not be impaired except under certain conditions. To have a property interest in a government-created interest, one “must have more than an abstract need or desire for it” and “have a legitimate claim of entitlement to it” (Roth, 1972).

Procedural due process requires a person be given notice of the deprivation and a reasonable opportunity to be heard. Notice requires the conveyance all necessary information so the person can protect the interest. Depending on the interest at stake, the opportunity to be heard might be as elaborate as a trial or as simple as a chance to respond in writing (Boddie v. Connecticut, 1971). To determine how com- plex a procedure must be, the court will examine (1) the significance of the affected interest, (2) whether additional safeguards would reduce the risk of error, and (3) the public interest in resolving the matter efficiently so as to avoid administrative and fiscal burdens (Mathews v. Eldridge, 1976).

Substantive Due Process The Due Process Clauses of the Fifth and Fourteenth Amendments, in addition to guaranteeing procedural safeguards, also protect substantive rights and require that laws themselves, in substance, be fair. Substantive due process comes into play when a legislature enacts a law that interferes with individual rights because the Supreme Court has interpreted the Due Process Clause as guaranteeing that a per- son’s life, liberty, and property cannot be taken by the government without appro- priate justification, regardless of the procedures employed during the taking.

Although substantive due process is a concept related to the textual guarantees of the law, it also operates to protect those characteristics of life, liberty, or property not specifically mentioned in the Constitution. These rights are found in the sub- stance of the “liberty” aspect of the Due Process Clause, as stated by Chief Justice Warren Burger in Richmond Newspapers Inc v. Virginia (1980):

Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, this Court has acknowledged that certain unarticu- lated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. . . . Fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined.

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Chapter 4 Equal Protection under the Law 85

Rights not specifically listed or articulated in the Bill of Rights are known as unenumerated rights. They are no less important than specified rights but have been left to develop with our society. Among the unenumerated rights the Supreme Court has recognized are the right to privacy, the right to interstate and interna- tional travel, the right to vote, and freedom of association.

How these rights are determined and what level of judicial scrutiny should be applied to laws that interfere with them are the main questions associated with substantive due process.

Finding the Right to Exist Substantive due process began as a way to protect individual economic rights not textually guaranteed by the Constitution. In Lochner v. New York (1905), the Court determined that a freedom to contract existed via the liberty aspect in the Due Process Clause. When the New York legislature enacted a law that limited the number of hours a baker could work, the Court determined that was a violation of due process.

Substantive due process was also employed in areas of civil liberties where there was no specific enumerated right. For example, in Meyer v. Nebraska (1923), a case involving a state law that prohibited the teaching of a foreign language to grade school children, the Court simply determined a liberty interest existed in par- ent’s ability to control their children’s education.

The Griswold Approach to Finding Unenumerated Rights The notion that unenumerated rights existed went into a hiatus after the Meyer decision but was revived in Griswold v. Connecticut (1965), a case involving an 1897 Connecticut law that made it illegal to use, or counsel another to use, contraceptives. The Supreme Court, noting that a “right to privacy” in regard to marriage existed within the Fourteenth Amendment, found the Connecticut law to violate due pro- cess. However, rather than simply stating that a right to privacy existed, in Gris- wold, the Court tied this new right to those enumerated in the Constitution. In his opinion, Justice William Douglas explained the Court’s rationale:

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice—whether public or private or parochial—is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

Douglas expounded on the Court’s position by asserting that certain rights and liberties, even though not be specifically stated in the Constitution, exist because “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” (Gris- wold v. Connecticut, 1965). In astronomy, a penumbra is a type of shadow. Doug- las used astronomy as an example to show how certain rights in the Bill of Rights have other peripheral rights implied in or along with them. These peripheral rights are important and necessary to protect the specific, enumer- ated rights.

Through its various opinions in Griswold, the Court went on to explain that specific enumerated rights contained within the Constitution—namely guarantees provided within the First, Third, Fourth, Fifth, and Ninth Amendments—and their penumbras converged and overlapped to create zones of privacy, which are areas

unenumerated rights rights not specifically listed in the Bill of Rights

penumbra a type of shadow in astronomy with the principle extending to the idea that certain constitutional rights are implied within other constitutional rights

zones of privacy areas into which the government may not intrude

CASE IN BRIEF Lochner v. New York (1905)

ISSUE Does a New York state law forbidding a baker to work more than 10 hours in a day or 60 hours in a week violate the liberty protected Fourteenth Amendment?

RULING Yes. The Supreme Court decided the law is not reasonable and interferes with the right to contract found in the liberty aspect of the Due Process Clause.

CASE IN BRIEF Griswold v. Connecticut (1965)

ISSUE In the case of a married couple, can a state law restrict the counseling of contraceptives without violating the Constitution?

RULING No. A right to privacy is found in the penumbras of the enumerated rights protected by the Constitution. The Connecticut law interferes with that right and is therefore unconstitutional.

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86 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

safe from governmental intrusion. In the Griswold case, the fact that marital pri- vacy exists within the zones was evident to the Court, with Justice Douglas writ- ing that the intimacy of the marriage relationship involved a “right of privacy older than the Bill of Rights.” Consequently, the Connecticut law was struck down as unconstitutional.

Note that now, through Roe v. Wade (1973), the Court merely accepts that a “right to privacy” exists in the concept of liberty contained within the Fourteenth Amendment. This privacy right has been extended to many areas, including abor- tion, marriage, family life, sexual orientation, and the right to refuse medical care. We will return to privacy rights shortly, after finishing our examination of substan- tive due process and how the Supreme Court has interpreted the concept of liberty contained within the Fourteenth Amendment to identify nontextual rights.

Modern Substantive Due Process The penumbras method used by the Court in Griswold to identify unenumerated rights via the Due Process Clause has since fallen by the wayside. Now, the Court carefully describes the perceived right and examines the question of whether that right possesses ideals that are “deeply rooted in our history and traditions, or so fundamental to our concept of constitu- tionally ordered liberty, that they are protected by the Fourteenth Amendment” (Washington v. Glucksberg, 1997). If the right meets this standard, it is considered a fundamental interest.

When the Court finds that a fundamental liberty interest is at stake, it employs the strict scrutiny test, which looks at the law in question and determines whether it is narrowly tailored to serve a compelling government interest. As such, the onus

is on the government to defend the law by showing it is the least burdensome legislation and that the government interest is strong. Textually explicit (enumerated) rights, which are incorporated against the states, are almost always evaluated with strict scrutiny. Nontextual (unenumerated) rights, which exist via the “liberty” guaranteed by the Fourteenth Amend- ment to protect individuals from state interference, can also be evaluated under strict scrutiny if they are determined to be fundamental (generally those involving civil rights).

If the right is not deemed to be fundamental, the court will apply the rational basis test instead. This approach reverses the burden and places it on the person challeng- ing the law, who must show that it is not rationally related to any legitimate govern- mental goal, regardless of whether the law actually furthers it or not. These rights often lie in the areas of general economic or property liberties and social matters.

Initially the Supreme Court took an active role in the area of economic legisla- tion and highly scrutinized these laws, with early case analysis offering little defer- ence to legislatures in the area of economic liberties, despite the burden being on the government to show justification. Eventually the Court began to view state economic legislation in a different light. During the Great Depression, the Supreme Court decided Nebbia v. New York (1934), a case involving a New York law that, in an effort to save farmers, had set a minimum price for milk. In upholding the law, the Court wrote in its opinion,

With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized

MYTH The right to privacy is explicitly protected by the Constitution.

REALITY The Constitution does not expressly contain a right to privacy. However, aspects of the Constitution’s amendments show a belief that privacy is important and should be protected from the government. For example, the First Amendment protects privacy in the area of freedom of religion; the Fourth Amendment protects an individual privacy in one’s home; and the Fifth Amendment does not allow one to be compelled to testify against him or herself, showing an interest in protecting personal information. The right to privacy has been developed over many Supreme Court decisions in which the “liberty” guaranteed by the Fourteenth Amendment’s Due Process Clause has been interpreted broadly to guarantee a right to privacy.

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CASE IN BRIEF Washington v. Glucksberg (1997)

ISSUE Does a Washington state law prohibiting physician- assisted suicide violate the Due Process Clause because it impermissibly interferes with the liberty interest of a person to choose death over life?

RULING No. The liberty to be assisted in suicide by a physician is not a fundamental right or liberty which is “deeply rooted in this Nation’s history and tradition.” Although it is an aspect of liberty, it does not deserve high-level scru- tiny and must only be rationally related to the state’s interests.

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Chapter 4 Equal Protection under the Law 87

to deal. The course of decision in this court exhibits a firm adherence to these principles. Times without number we have said that the legislature is primarily the judge of the necessity of such an enactment, that every possible pre- sumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power.

Thus, the previous high-level scrutiny of economic legisla- tion seen in Lochner ceased after Nebbia. This important shift in scrutiny signaled the willingness of the Court to give a high level of deference to legislatures on the facts and basis for economic regulation. As long as there was a rational basis for the legislation, the law would stand. The Court would not substitute their social and economic beliefs for that of the legislature.

The Court, in United States v. Carolene Products Co. (1938), emphasized this shift away from high-level scrutiny for economic legisla- tion, with a footnote to the opinion expressing that some liberty interests would come under a higher level of scrutiny. This cemented the direction the Court would take; high-level scrutiny for those laws that infringe on fundamental rights, whereas those laws that are of an economic nature would only receive a low level of scrutiny.

The Debate The process of identifying liberties or rights that are not specifically written in the Constitution has not occurred without its share of debate. Proponents of the process believe that certain rights need to exist to give the enumerated rights their full force. Also, these liberties and rights are of special concern in that they have a profound impact on an individual. Detractors of the process, however, point to the Constitution as the explicit source of our rights and liberties, contending that the identification of rights not textually enumerated is simply wrong. No matter how the process is described, it nonetheless usurps the power of the legislature and becomes a subjective judicial exercise.

Due Process and Privacy Rights Since Griswold, the issue of privacy rights has expanded in ways the framers of the Constitution and the Bill of Rights could never have foreseen when they promul- gated an amendment to protect people’s liberty from undue government intrusion. Here we will examine two relatively innovative, yet controversial, techniques law enforcement has begun using to be more effective in detecting and solving crime yet that raise concerns about individual privacy rights: suspicious activity reports and familial DNA testing.

The Nationwide Suspicious Activity Reporting Initiative A suspicious activity report (SAR) is an official documentation of observed behavior that may be indicative of intelligence gathering or preoperational planning related to terrorism, criminal, or other illicit intention. SARs focus on what law enforcement agencies have been doing for years—gathering information regarding behaviors and

SAR (suspicious activity report) an official documentation of observed behavior that may be indicative of intelligence gathering or preoperational planning related to terrorism, criminal, or other illicit intention

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CASE IN BRIEF Nebbia v. New York (1934)

ISSUE Does a New York law that establishes a minimum milk price violate the Due Process Clause?

RULING No. The Supreme Court, in contrast to the previous Lochner case, decided that in the area of social and economic leg- islation, if the law is not arbitrary and has a reasonable relation to promoting public welfare, a state may adopt whatever economic policy it wishes to accomplish its stated purpose and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such a policy or, when it is declared by the legislature, to override it.

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88 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

incidents associated with crime and establishing a process whereby information can be shared to detect and prevent criminal activity, including that associated with domestic and international terrorism, for example, surveillance. The Nationwide Suspicious Activity Reporting Initiative (NSI) is a collaborative effort among federal, state, local, and tribal government agencies with counterterrorism responsibilities that seeks to establish a unified approach at all levels of government to gather, docu- ment, process, analyze, and share information about terrorism-related suspicious activities (Nationwide SAR Initiative: Technology Overview, 2012). The NSI makes local SARs available to federal, state, and local law enforcement agencies and to state and major urban area fusion centers. Pilot testing and evaluation of the initiative is cur- rently underway at police departments in Boston, Massachusetts; Chicago, Illinois; Houston, Texas; Miami–Dade, Florida; as well as in the Florida Department of Law Enforcement, the New York State Police, the Virginia State Police, and the Washing- ton, DC, Metropolitan Police Department (Nationwide Suspicious Activity Reporting (SAR) Initiative, 2009). Figure 4.1 illustrates the sharing of SAR information.

Although the information entered into the SAR database is vetted, civil rights advocates have questioned the initiative as another instance of “Big Brother.”

Familial DNA Database Searches Another relatively recent crime fighting technique is familial DNA analysis. Advances in DNA technology and the develop- ment of DNA databases have allowed investigators to search for genetically close matches to help solve crimes committed by relatives of people in the database. Siblings, parents, aunts, uncles, and cousins can be linked to crimes because their relative’s DNA closely resembles DNA found at a crime scene. The basic principle

Option 1: Requiring immediate action

Option 2: eGuardian

Federated Search

Fusion center

Departmental approval

Reporting

Storage

Vetting

Sharing

LEO

JTTF

Option 3: Shared spaces

Figure 4.1 Sharing SAR Information Source: Nationwide SAR Initiative: Technology Overview. Washington, DC: Bureau of Justice Assistance, May 2012, p. 2. See URL http://nsi.ncirc.gov/documents/NSI_Technology_ Fact_Sheet.pdf.

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Chapter 4 Equal Protection under the Law 89

“Drones Over U.S. Get OK by Congress” By S. Smithson (The Washington Times, February 7, 2012)

Look! Up in the sky! Is it a bird? Is it a plane? It’s . . . a drone, and it’s watching you. That’s what privacy advocates fear from a bill Congress passed this week to make it easier for the government to fly unmanned spy planes in U.S. airspace.

The FAA Reauthorization Act, which President Obama is expected to sign, also orders the Federal Aviation Administration to develop regulations for the testing and licensing of commercial drones by 2015.

Privacy advocates say the measure will lead to widespread use of drones for electronic surveillance by police agencies across the country and eventu- ally by private companies as well.

“There are serious policy questions on the horizon about privacy and surveillance, by both government agencies and commercial entities,” said Steven Aftergood, who heads the Project on Government Secrecy at the Fed- eration of American Scientists.

The Electronic Frontier Foundation also is “concerned about the implica- tions for surveillance by government agencies,” said attorney Jennifer Lynch.

The provision in the legislation is the fruit of “a huge push by lawmakers and the defense sector to expand the use of drones” in American airspace, she added.

According to some estimates, the commercial drone market in the United States could be worth hundreds of millions of dollars once the FAA clears their use.

The agency projects that 30,000 drones could be in the nation’s skies by 2020.

The highest-profile use of drones by the United States has been in the CIA’s armed Predator-drone program, which targets al Qaeda terrorist lead- ers. But the vast majority of U.S. drone missions, even in war zones, are flown for surveillance. Some drones are as small as model aircraft, while others have the wingspan of a full-size jet.

In Afghanistan, the U.S. use of drone surveillance has grown so rapidly that it has created a glut of video material to be analyzed.

The legislation would order the FAA, before the end of the year, to expe- dite the process through which it authorizes the use of drones by federal, state and local police and other agencies. The FAA currently issues certifi- cates, which can cover multiple flights by more than one aircraft in a particu- lar area, on a case-by-case basis.

The Department of Homeland Security is the only federal agency to dis- cuss openly its use of drones in domestic airspace.

U.S. Customs and Border Protection, an agency within the department, operates nine drones, variants of the CIA’s feared Predator. The aircraft,

IN THE NEWS

(Continued)

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90 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

which are flown remotely by a team of 80 fully qualified pilots, are used prin- cipally for border and counternarcotics surveillance under four long-term FAA certificates.

Officials say they can be used on a short-term basis for a variety of other public-safety and emergency-management missions if a separate certificate is issued for that mission.

“It’s not all about surveillance,” Mr. Aftergood said. Homeland Security has deployed drones to support disaster relief opera-

tions. Unmanned aircraft also could be useful for fighting fires or finding missing climbers or hikers, he added.

The FAA has issued hundreds of certificates to police and other govern- ment agencies, and a handful to research institutions to allow them to fly drones of various kinds over the United States for particular missions.

The agency said it issued 313 certificates in 2011 and 295 of them were still active at the end of the year, but the FAA refuses to disclose which agencies have the certificates and what their purposes are.

The Electronic Frontier Foundation is suing the FAA to obtain records of the certifications.

“We need a list so we can ask [each agency], ‘What are your policies on drone use? How do you protect privacy? How do you ensure compliance with the Fourth Amendment?’” Ms. Lynch said.

“Currently, the only barrier to the routine use of drones for persistent surveillance are the procedural requirements imposed by the FAA for the!issuance of certificates,” said Amie Stepanovich, national security coun- sel for the Electronic Privacy Information Center, a research center in Washington.

The Department of Transportation, the parent agency of the FAA, has announced plans to streamline the certification process for government drone flights this year, she said.

“We are looking at our options” to oppose that, she added. Section 332 of the new FAA legislation also orders the agency to develop

a system for licensing commercial drone flights as part of the nation’s air traf- fic control system by 2015.

The agency must establish six flight ranges across the country where drones can be test-flown to determine whether they are safe for travel in con- gested skies.

Representatives of the fast-growing unmanned aircraft systems industry say they worked hard to get the provisions into law.

“It sets deadlines for the integration of [the drones] into the national air- space,” said Gretchen West, executive vice president of the Association for Unmanned Vehicle Systems International, an industry group.

She said drone technology is new to the FAA. The legislation, which provides several deadlines for the FAA to report

progress to Congress, “will move the [drones] issue up their list of priorities,” Ms. West said.

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Chapter 4 Equal Protection under the Law 91

is that DNA profiles of people who are related are likely to contain similarities. Familial DNA database searches can lead to the identity of an individual who could be a sibling of the offender or the offender’s parent or child. This investigative technique is most commonly used in the United Kingdom. Civil rights groups have strongly opposed this technique as an invasion of privacy.

The preceding examples illustrate the continuing challenge of balancing indi- vidual and governmental rights and involve issues that may one day end up before the Supreme Court for a determination of constitutionality. However, one govern- ment activity that the Court has continually declared to be unconstitutional is discrimination.

MYTH DNA is only useful if a substantial amount of visible bodily fluid (blood, semen, etc.) is found at a crime scene.

REALITY This may have been true a decade ago, but with improved forensic techniques, a useful amount of DNA material may be found on a discarded cigarette butt or a sur- face touched by a suspect. Touch DNA, invisible to the naked eye, is genetic material found in skin cells that are left behind when a suspect touches something. A dozen cells are often enough to provide a testable sample.

“Familial DNA Hunt Brings Legal Questions” (United Press International, December 4, 2012)

SANTA ANA, Calif., Dec. 4 (UPI)—An investigative tech- nique called familial DNA searching has helped solved crimes in California but legal analysts warn it overlooks constitutional safeguards.

The technique—which was instrumental in leading to the arrest in Los Angeles of an accused mass murdered known as the Grim Sleeper— involves using DNA from crime scenes to search databases for people who are related to the source of the DNA.

Cold case investigators in Orange County did a familial search to iden- tify a man who raped and killed Lynda Susan Saunders and wounded another man in 1978. DNA retrieved from Saunders’ body of led investiga- tors to conclude last month the killer was James Lynn Brown, who commit- ted suicide in 1996, The Orange County Register reported Tuesday.

“This case would not have been solved without the familial searches because the suspect is deceased and his DNA sample never went into the data- base,” said Mary Hong, a forensic scientist at the Orange County Crime Lab.

However, Michael Risher, a lawyer with the American Civil Liberties Union of Northern California, told the newspaper the California Legislature has not authorized use of the technique, “so we have the search procedures conducted based on a memo that the Department of Justice developed.”

Risher said using familial search techniques overlooks constitutional protections, including a requirement that police obtain search warrants.

California Department of Justice spokeswoman Michelle Gregory said the state restricts use of familial searching to cases of homicide and sexual assault involving serious risk to public safety, and it may be used only when all other investigative leads have been pursued. She said the state can “per- form familial searches in a manner that balances the rights of individuals with society’s interest in solving crimes.”

California is one of three states where the technique is in use, the Register said.

IN THE NEWS

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92 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Discrimination versus Prejudice Most people have some preconceived notions, or prejudices, about specific people or groups of people. This might include members of minority groups and other categories, such as the elderly, teenagers, the disabled, professional athletes, homo- sexuals, and police officers. According to Moule (2009, p. 322), “Ethnic and racial stereotypes are learned as part of normal socialization and are consistent among many populations and across time.” These stereotypes frequently foster uncon- scious biases, which commonly lead to unintentional racism, “racism that is usually invisible even and especially to those who perpetrate it” (Moule, p. 321).

In a democratic society, individuals are free to think what they want. However, if these thoughts translate into socially unacceptable behaviors, problems arise, sometimes to the point where government is justified in intervening.

If prejudices are converted into acts, laws punish the actor and protect the victim.

The Roots of Racial Discrimination Racial discrimination has existed since before the time of colonial America and the Constitution. To people such as George Washington, Alexander Hamilton, and Thomas Jefferson, slavery was an accepted part of life.

Although the Thirteenth Amendment to the Constitution declared slavery illegal, it could not outlaw unequal treatment or change racial attitudes so prominent in Southern states. In 1896, the case of Plessy v. Ferguson was brought before the Supreme Court and heightened awareness of racial issues. Homer Plessy had refused to abide by a law that required black people to sit in a separate train car. Plessy, who took a vacant seat in a coach designated to accommodate passengers who were White, was

told to move but he refused. He was arrested and charged with vio- lating state law. Plessy, who was seven-eighths Caucasian and one- eighth African blood, and whose mixture of colored blood was not discernable in him, brought suit, arguing that “he was entitled to every right, privilege and immunity secured to citizens of the United States of the white race” and that the law violated his Thirteenth and Fourteenth Amendment rights. The Court ruled against Plessy:

If the two races are to meet upon terms of social equality, it must be the result of!.!.!. a voluntary consent of individuals.!.!.!. Legisla- tion is powerless to eradicate racial instincts!.!.!. and the attempts to do so can only result in accentuating the difficulties of the pres- ent situation.

Racial tension mounted as states passed laws to ensure that Whites could maintain their privileged status.

Jim Crow laws supposedly kept Blacks “separate but equal.” The compelling question became whether separate could ever really be equal.

The issue of separate but equal was eventually addressed head-on in Brown v. Board of Education of Topeka (1954), when a group of Black children sought admission to an all-White public school. The plaintiffs claimed they were being denied their constitutional right to equal protection and that the laws of separate but equal were

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Jim Crow laws laws that strictly segregated Blacks from Whites in schools, restaurants, streetcars, hospitals, and cemeteries

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Chapter 4 Equal Protection under the Law 93

in fact not equal. The Court agreed in Brown, holding that separate-but-equal schools were illegal. The momentum of the Brown decision prompted further legis- lation regarding equality and led to one of the greatest civil rights advances in our history, the 1964 Civil Rights Act.

The Struggle for Equality Through the tumultuous challenges of racism and segregation during the 1950s and 1960s, the United States continued its struggle with what equal really meant. Some chose to embrace equality, whereas others chose to resist any movement toward equality, sometimes to the point of participating in violence, such as that perpe- trated by the Ku Klux Klan. But the Supreme Court had spoken, and the tide of public opinion was turning toward a willingness to become a unified country with “equal protection for all.”

Racial discrimination has not been the only way segments of U.S. society have been made to feel disenfranchised. Gender discrimination is an issue our law has had to confront as well. As difficult as it is for today’s generation to imagine, women were not allowed to vote until 1920, 50 years after discrimination based on race was prohibited by the Fifteenth Amendment. Gender discrimination remained during the 1960s; for example, women often were denied equal pay for equal work.

It is 5 ".#. and you and your partner are respond- ing to a call of a suspicious person near a power plant. The caller, a plant employee, told the dis- patcher that there is a Middle Eastern male taking pictures of the power plant guard station and entrances and exits. The caller also explained that the same male had been seen in the area the previ- ous two days at the same time of day.

You arrive and see a minivan parked on the side of the road. You run the out-of-state license plate and notice there is someone sitting in the driver’s seat, so you and your partner get out of your squad to go talk to the driver.

He tells you that he is an engineering student with an interest in power plants. You ask him where he goes to school, and he replies that he is not enrolled anywhere right now.

Your partner notices an open notebook on the front seat of the van, with dates, times, and “num- ber of guards” written many times over on the visible page. There is also a laptop computer and several cell phones inside the minivan. In addition,

there happens to be a textbook, Power Plant Archi- tecture, on the floor in front of the passenger seat.

The driver provides you with an out-of-state driver’s license but does not have proof of insur- ance as required by state law. You issue him a cita- tion for that, write down all of the information you saw, and submit an intelligence report to your department’s intelligence unit.

! Should a person’s race, religion, or ethnicity ever be used as a basis for law enforcement action? Why or why not?

! Would your answer change based on the severity of the crime being investigated?

! Does the level of law enforcement action at issue change your response?

Constitutional Law in ACTION

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94 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Head-of-household rules granting higher pay applied only to men. Women also often found they would not be promoted, were excluded from certain professions, and were permitted to serve only limited roles in the military. Even educational oppor- tunities were denied women in some instances. But, as was the case with people of color who found themselves and their lives limited, eventually laws recognized a changing norm in society. For example, when the federal government brought suit against both Virginia and the Virginia Military Institute (VMI), challeng- ing the male-only admissions policy as a violation of equal pro- tection, the Supreme Court decision in United States v. Virginia (1996) held that the exclusion of females from the Institute was unconstitutional (Ducat, 2010).

The Rise of Affirmative Action Programs Many argued that these antidiscrimination laws were nothing but hollow promises that in reality did little to rid society of discrimination in employment and education

opportunities. In response, President Richard M. Nixon’s adminis- tration formed a coalition to address unequal treatment of minori- ties and women. The result was affirmative action programs.

Affirmative action programs, sometimes referred to as ethnic- and gender-preference programs, were designed to cure dis- crimination in hiring and eliminate past, present, and future discrimination using race, color, sex, and age as deciding criteria.

The idea was that minorities and women would no longer be discriminated against in employment and educational opportunities and, in fact, would be given extra consideration to meet goals and quotas. President John F. Kennedy first used the actual phrase affirmative action in his 1961 Executive Order 10925 requiring federal contractors to hire applicants without regard to their race, creed, color, or national origin. President Lyndon Johnson’s 1965 Executive Order 11246 used the same language. In 1967 Johnson expanded the Executive Order to include affirma- tive action requirements to benefit women (Sykes, 1995).

According to Brunner (2007), “From the outset, affirmative action was envi- sioned as a temporary remedy that would end once there was a ‘level playing field’ for all Americans.” Focused on education and jobs, policies required that active measures be taken to make certain that minorities had the same opportunities for promotions, salary increases, career advancement, school admissions, scholarships, and financial aid that had been dominated by White males.

The landmark case in this issue is Regents of the University of California v. Bakke (1978), in which the Supreme Court upheld in a 5–4 decision the Univer- sity of California’s use of race as one factor in determining admissions. Alan Bakke, a White male, had twice been denied admission to medical school, even though less-qualified minorities had been admitted. Bakke charged that the university’s quota system violated the Equal Protection Clause. In the Bakke decision, the Court stated, “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Con- stitution forbids.”

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Chapter 4 Equal Protection under the Law 95

The Court reviewed the medical school’s racial set-aside program that reserved 16 of 100 seats for members of certain minority groups. The Court’s rul- ing invalidated the program and reversed the state court’s injunction against any use of race whatsoever: “The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” The following are notable affirmative action cases ruled on by the Supreme Court since Bakke (Ducat, 2010, pp.!1171–1172):

! United Steelworkers of America v. Weber (1979)—The Court upheld a collective bargaining agreement that voluntarily aimed at overcoming a company’s nearly all-White craft workforce by requiring that at least half of the trainees in an in-plant training program be Black until the proportion of Blacks in the craft workforce matched the proportion of Blacks in the local workforce.

! Fullilove v. Klutznick (1980)—Congress’s enactment of a 10 percent quota of construction contracts to minority businesses was within its authority under either the Commerce Clause or Section 5 of the Fourteenth Amendment.

! Firefighters Local Union No. 1784 v. Stotts (1984)—Setting aside least seniority as a basis for laying off workers and substituting race was something not con- tained in an existing consent decree and was unjustified unless Black employ- ees could prove they individually had been victims of discrimination.

! Wygant v. Jackson Board of Education (1986)—The preferential protection of minority teachers from layoffs contained in a collective bargaining agreement was unconstitutional.

! Local 28, Sheet Metal Workers International Association v. EEOC (1986)—A federal court order imposing a 29 percent non-White membership goal (reflective of the proportion of non-Whites in the local workforce) on a union and its apprenticeship committee for discrimination against non-White workers in selection, training, and admission of members to union was upheld.

! United States v. Paradise (1987)—A requirement that 50 percent of promotions throughout Alabama state troopers were to go to Blacks, if qualified Blacks were available, was upheld.

In 1996, state universities in both Texas and California struck down race-based admissions. However, in 2003, in two significant decisions, the Supreme Court again upheld the use of race as one factor in admissions policies. Gratz v. Bollinger involved the University of Michigan’s undergraduate school, allowing 20 of 100 points for minority status. Citing the Bakke decision, the Supreme Court, in a 6–3 vote, upheld the right of universities to consider race in admission procedures to achieve a diverse student body. Argued the same day was Grutter v. Bollinger involving the University of Michigan’s law school admission policy, again allowing race to be considered. Although the vote was closer, 5–4, the policy of allowing race to be a factor in admissions was upheld: “The Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI or §1981.”

In these two Michigan cases, the Supreme Court ruled that although affirmative action was no longer justified as a means of redressing past oppression and

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96 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

injustice, it did promote a “compelling state interest” in diversity at all levels of society. As Justice Sandra Day O’Connor wrote for the majority, “In order to culti- vate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity” (Grutter v. Bollinger, 2003).

Through the decades, this subject has led to intense controversy. Those in favor of affirmative action say this is a necessary policy to ensure that all citizens have access to the American dream, the belief that through hard work anyone can have success and ample material possessions. Proponents also believe it helps bring equity to an imbalance in society. Opponents of affirmative action argue that such programs are, themselves, discriminatory.

In March 2013, the Court granted certiorari to Schuette v. Coalition to Defend Affirmative Action, a case that examines whether a state violates the Equal Protec- tion Clause by amending its constitution to prohibit race- and sex-based discrimi- nation or preferential treatment in public university admissions decisions. Schuette involves a Michigan law that bans affirmative action in the public college admission process, and the Court is scheduled to hear oral arguments in the fall of 2013. The Court has, however, decided Fisher v. University of Texas at Austin, a similar affirmative action case challenging whether colleges and universities can continue to apply admissions policies that extend special preference to minority applicants. On June 24, 2013, the Court vacated and remanded Fisher, noting that the lower court did not apply strict scrutiny and sending the case back to the appeals court for further review. The Court’s decision marks a provisional victory for Abigail Fisher, a White woman who alleged the university discriminated against her when its race-conscious admissions policy led to her application being rejected in 2008.

Justice Clarence Thomas, in his concurrence, went further than the majority opinion in declaring that the school’s admissions program “violates the Equal Pro- tection Clause because the University has not put forward a compelling interest that could possibly justify racial discrimination.” Among the several arguments he put forth against affirmative action in higher education admissions, two of Justice Thomas’ more interesting arguments were (1) that it is racial discrimination to use race as a factor in higher education admissions and (2) that these programs actually hurt the minority student. Acknowledging that the policy hurts White and Asian applicants by denying them admission, Justice Thomas added that the Black and Hispanic students admitted under the program are harmed even more because they are “far less prepared” than White and Asian students who are admitted. Cit- ing evidence in the scores and GPAs of the students, Justice Thomas notes that the less-prepared students are unable to make up the difference during their time at the school, keeping them in the lower levels of student performance.

A major philosophical point Justice Thomas made was that the university’s policy labels Blacks and Hispanics as inferior. It labels these students as being admit- ted based on their race, not on their ability. Furthermore, it labels every student this way because it is impossible to tell apart the student admitted on academic merit (e.g., GPA, SAT scores) and the one admitted as a result of “racial discrimination.” He writes, “When blacks [and hispanics] take positions in the highest places of gov- ernment, industry, or academia, it is an open question . . . whether their skin color played a part in their advancement.” That very question is “the stigma—because

American dream the belief that through hard work anyone can have success and ample material possessions

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Chapter 4 Equal Protection under the Law 97

either racial discrimination did play a role, in which case the person may be deemed ‘otherwise unqualified,’ or it did not, in which case asking the question itself unfairly marks those . . . who would succeed without discrimination.”

Reverse Discrimination Critics of affirmative action policies have contended that civil rights laws cannot remedy the effects of past discrimination. They assert that such policies lead to reverse discrimination because women or racial minorities are to be hired over White males who may be better qualified. Reverse discrimination consists of giv- ing preferential treatment in hiring and promoting women and minorities to the detriment of White males.

The question then becomes whether admission to a college on the basis of diver- sity is simply a nice way of saying the college is going to consider race. Something must guide the decisions of those who determine who will be hired, fired, or admit- ted to the college of their choice. Hess and Orthmann (2012, p. 488) note, “This issue [reverse discrimination] has separated Whites from minorities, men from women, and the advocates of affirmative action from those who believe in a strict ‘merit’ principle for employment and advancement. . . . A growing number of majority member workers are complaining bitterly about their own civil rights being abridged, and some are filing reverse discrimination suits in court.”

The majority position has been summarized as a concern that for every deserv- ing minority group member provided a job or promotion through preferential quotas, a deserving and often more qualified nonminority person is thereby deprived of a job or promotion. The courts themselves have been deeply divided over the constitutionality of the reverse discrimination that some believe is implicit in minority quotas and double standards.

Ricci v. Destefano (2009) involved the practice of the city of New Haven, Con- necticut, of using objective exams to identify firefighters best qualified for promo- tion to lieutenant and captain positions. When the results of the exam showed that White candidates had outperformed minority candidates, New Haven became embroiled in public debate. Black firefighters threatened lawsuits if the exam results were certified, and White and Hispanic firefighters threatened to sue if the results were not certified; so the city scrapped the results, a clearly race-based decision (Means and McDonald, 2009). The failure of the city to certify the results lead to a lawsuit by petitioners, White and Hispanic, who passed the exams but were denied a chance at promotions. They claimed discarding the test results discriminated against them based on their race in violation of Title VII of the Civil Rights Act. The defendants responded that had they certified the test results they could face Title VII liability for using a test that had a disparate impact on minority firefighters.

The district court granted summary judgment for the defendants, and the Sec- ond Circuit affirmed. A motion for summary judgment is a request to the court to review the evidence and, without a trial, reach a decision to dismiss a case against the movant (the party making the request) because there is no dispute of material fact that a jury need resolve and because there is legally insufficient evidence to support a verdict in favor of the nonmovant (Scarry, 2008). The Supreme Court, however, reversed and remanded the case, holding that the city’s action in discard- ing the tests violated Title VII.

reverse discrimination giving preferential treatment in hiring and promoting to women and minorities to the detriment of White males

summary judgment a request to the court to review the evidence and, without a trial, reach a decision to dismiss a case against the movant because there is no dispute of material fact that a jury need resolve

movant a party making a motion to the court

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98 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin (disparate treatment) as well as policies or practices that are not intended to discriminate but, in fact, have a disproportion- ately negative effect on minorities (disparate impact).

Writing for the 5–4 majority, Justice Anthony Kennedy said, “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.” In dissent, Justice David Souter said a ruling against the city could leave employers in a “damned-if- you-do, damned-if-you-don’t situation.”

The case drew national attention because Justice Sonia Sotomayor had been a judge on the appellate court that affirmed the city’s decision. Means and McDonald (2009, p. 21) point out: “Disparate treatment is relatively easy to recognize, and employers usually manage to avoid it. Ironically, it is this type of discrimination that New Haven ultimately committed in this case.”

The Civil Rights Act, the Fair Housing Act, the Voting Rights Act, as well as other legislation and numerous court decisions have, on paper, outlawed discrimination in this nation. However, generations of attitudes cannot be so easily changed, but because laws reflect desired social norms, movement toward equality continues.

Racial and Gender Equality in the Twenty-First Century Understanding this nation’s history helps explain why affirmative action pro- grams first developed. In the 1990s, however, such programs found themselves increasingly challenged as unconstitutional. Today, the tide may again be slowly turning as a new Supreme Court bench emerges, with older justices retiring and new ones being appointed. Although some more recent decisions by the Court have supported affirmative action programs, others are holding them more accountable than in the past. In Adarand Constructors v. Pena (1995), an affirmative action program was upheld by only a narrow 5–4 vote. Both Justices Antonin Scalia and Clarence Thomas stated they were against affirmative action. The more recent appointments to the Court will undoubtedly take this issue one direction or the other, although public sentiment seems to be turning against the concept. For example, the California Civil Rights Initiative (CCRI) forbidding the government to use ethnicity or gender as a criterion for either discriminating against or giving preferential treatment to any individual or group passed unani- mously. In 1996, California voters banned affirmative action, as did the Univer- sity of Texas.

Should affirmative action programs, even though they do treat some differently, continue? Only the results of future challenges will tell, but Justice O’Connor’s statement in Adarand Constructors best states the Court’s position now: “The unhappy persistence of both the practice and the lingering effects of racial discrimi- nation against minority groups in this country is an unfortunate reality, and gov- ernment is not disqualified from acting in response to it.”

Other Forms of Discrimination Religious discrimination has been addressed through various cases, including Anso- nia Board of Education v. Philbrook (1986).

disparate treatment intentional acts of employment discrimination based on race, color, religion, sex, and national!origin

disparate impact policies or practices that are not intended to discriminate but, in fact, have a disproportionately negative effect on minorities

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Discrimination against people with disabilities affects criminal justice in a number of ways, including who is hired (or not) and how the system treats those with dis- abilities. Most efforts to respond to issues of the disabled have come through legis- lation. Congress has responded with Title V of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990, both of which seek to remove barriers encountered by those living with disabilities.

Criminal justice agencies have responded to legislation by improving accessi- bility, such as by installing wheelchair ramps, wider doors, and height-appropriate counters, as well as accommodations for the vision and hearing impaired. As crimi- nal justice agencies seek to have their personnel be more reflective of the communi- ties they serve, they have opened opportunities for employment to those with disabilities. Not everyone has the physical attributes needed to be, for example, a police officer. But those with disabilities can fill many other positions. All that is needed is a respect for the law requiring reasonable accommodations for those with disabilities. In many ways the criminal justice system has been more accom- modating to those being arrested than to those who want to be a part of the crimi- nal justice team.

Discrimination because of sexual orientation is a challenge for the criminal jus- tice system regarding equal protection issues for victims, as well as how gay or lesbian criminal justice professionals are treated by their own agencies. The approach historically used by the American military was a “don’t ask/don’t tell” policy: Service people were not asked and did not have to tell, but they were dis- charged if their homosexuality was made public. This policy was held unconstitu- tional by a U.S. district court, and in September 2011 the policy was officially repealed. However, the criminal justice system has no such policy. Rather, those serving in this field are subject to the same laws pertaining to same-sex relation- ships but may also find themselves subject to the same discrimination as those who become victims of bias crimes.

Sexual-orientation discrimination and same-sex marriage are issues that con- tinue to garner attention on legislative floors and courtrooms, with changes occur- ring on both fronts so rapidly that attempts to provide current law finds itself almost immediately outdated. Two such cases were recently argued before the Supreme Court, with decisions on both handed down on the same day. Holling- sworth v. Perry (2013) involved challenges to the constitutionality of California’s Proposition 8, an amendment to that state’s constitution, voted on and passed by popular vote. Proposition 8 stipulated, “Only marriage between a man and a woman is valid or recognized in California.” However, the state still allowed “domestic partnerships” that gave same-sex couples the same rights and responsi- bilities as a heterosexual marriage.

The case began when two same-sex couples challenged Proposition 8 as uncon- stitutionally violating the Equal Protection Clause by defining marriage so as to exclude a certain class of people. When the state declined to defend the law in court, proponents of Proposition 8 stepped up instead. It was this issue of standing that captured the Court’s attention—whether those who were defending the law in court had a legal right to do so (recall the discussion on standing in Chapter 2). On June 26, 2013, in a 5–4 decision, the Court vacated and remanded, with Chief Justice John Roberts stating, “We have never before upheld the standing of a private party to defend a state statute when state officials have chosen not to.” Because the

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petitioners (those who were defending Proposition 8) had no legal standing—they were unable to demonstrate invasion or harm of a personal legal interest or that the outcome of the controversy would result in direct personal injury—the intermedi- ate appellate court did not have standing to hear the case either, and their decision held no legal force. The Court’s ruling, therefore, sent the case all the way back to the district court where the original decision that ruled Proposition 8 as unconstitu- tional stands, and where the injunction also stands.

Also decided on June 26, 2013, with similar results, was United States v. Windsor (2013), the Defense of Marriage Act (DOMA) case. DOMA was passed in 1996 and defined marriage as the union of one man and one woman for the purposes of fed- eral law. However, in a 5–4 decision, the Court held that DOMA unconstitutionally discriminates against same-sex couples who are legally married according to the laws of the state in which they reside. Recognizing that the authority to regulate and define marriage rests with the individual states, and noting that the respondent in this case held legal married status in a state that allowed same-sex couples to marry, the Court ruled that DOMA violates basic due process and equal protection principles and that same-sex couples who are legally married must be treated the same under federal law as married opposite-sex couples.

Laws pertaining to immigration and residency discrimination are also currently in the throes of debate and change.

The Immigration Issue “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore, Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!” are the immortal words of poet Emma Lazarus that appear at the base of the Statue of Liberty in New York. These words once reflected a welcoming philosophy of a country developed largely by immigrants.

Today, immigration issues challenge our past beliefs and some would say the future of the United States. By January 2009, an estimated 10.8 million illegal immi- grants resided in the United States, and they have become an increasing focus of controversy (Christie, 2010). The economy, possibly racism, and the September 11, 2001, attack on the United States, carried out by hijackers who entered the country on student or tourist visas, contribute to the changing political climate. Americans recognized the porous borders and lax enforcement of immigration laws as security threats, and in Congress, both parties have pushed for a tougher line.

In April 2006, hundreds of thousands of pro-immigration demonstrators mobi- lized on National Mall in Washington, DC, and in scores of cities across the country in a powerful display of grassroots muscle-flexing that organizers described as a “watershed moment,” marking a coming-of-age for Latino political power in the United States. Statements from demonstrators included these: “We decided not to be invisible anymore,” and “We deserve to be here. We work hard. We are immi- grants, but we are not terrorists.”

Courts have faced increasing struggles with constitutional interpretation. The Fifth and Fourteenth Amendments do not just protect citizens but use the broader term persons. The Supreme Court has stressed the text of the Fourteenth Amend- ment in striking down a number of state laws that differentiate between residents and nonresidents or between citizens and aliens.

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The Supreme Court has held that whether people are considered legal or other- wise, government does not have a legitimate interest in denying certain services. Laws requiring a one-year waiting period before new legal residents could receive welfare benefits were struck down in Shapiro v. Thompson (1969). In Plyler v. Doe (1982), the Court held that a Texas law denying public education to children of illegal immigrants was unconstitutional. And in Sugarman v. McDougall (1973) and Hampton v. Mow Sun Wong (1976), the Court held that state and federal laws pre- venting aliens from being given civil service jobs were illegal.

Beginning around 2007, state legislatures increasingly began passing laws to deal with immigration. Resentment began rising over the increasing problem of illegal immigration and by the stalling of a broad immigration bill in the Senate in June 2007. That bill, the End Racial Profiling Act (ERPA) of 2007, was referred to commit- tee in December 2007 and has remained there without any action. Nationwide, legis- latures adopted measures to curb employment of unauthorized immigrants and to make it more difficult for them to obtain state identification documents such as driver’s licenses. In October 2007, the Police Executive Research Forum (PERF) sur- veyed its members and, based on the concern shown over the immigration issue, conducted an “immigration summit” in November 2007, the results of which are published in Police Chiefs and Sheriffs Speak Out on Local Immigration Enforcement (2008). Of those surveyed, 51 percent reported that the immigrant population in their jurisdiction had increased “substantially,” by more than 10 percent (p. 8). Despite this growth, 71 percent of respondents said their jurisdiction did not have any policy, law, or mandate concerning enforcing immigration laws by local law enforcement (p. 11).

The immigration issue is not one of those issues that remained hidden and then surfaced suddenly and unexpectedly. The immigration issue is a freight train that has been barreling down the tracks toward us for some time, whistle blar- ing. Here’s one example of what I mean by that: For more than a year, anyone who has been attending PERF’s Town Hall Meetings, where police chiefs and other leaders are invited to speak out on any issue they choose, cannot help but have noticed that the immigration issue spontaneously becomes the hot-button issue whenever there is an open forum of police leaders. . . .

Some chiefs do not believe that local law enforcement agencies should spend much of their limited resources to take on what has essentially been the federal responsibility for illegal immigration enforcement in our communities. And many are concerned that tougher immigration enforcement on the local level will threaten the advances we have made in community policing over the last 20 years.

Some chiefs and sheriffs point to facts and figures indicating that illegal immigrants commit a sizeable portion of their local crimes, and these police executives think they have no choice but to work as closely as they can with federal authorities to arrest, prosecute, incarcerate and eventually deport these offenders. For these chiefs, immigration enforcement is primarily a matter of local crime control and public safety. (Wexler, 2008, p. iii)

The most recent Gallup Poll (June 16, 2010) reports broad public support for dealing with the illegal immigration problem, as reported in the Sourcebook of Crimi- nal Justice Statistics Online (2013). The poll asked, “Thinking about the situation in the U.S. today, how concerned are you about the effects of illegal immigrants?” Response options were “very concerned,” “somewhat concerned,” “not too con- cerned,” and “not at all concerned” (see Table 4.1).

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The Gallup Poll also asked, “How important is it to you that the government takes steps this year to deal with selected immigration policies,” with choices being “extremely important,” “very important,” “moderately important,” and “not that important” (Table 4.2).

Although the public clearly has concerns about illegal immigration and wants the “government” to control the borders and deal with the millions of illegal immi- grants, the question becomes How?

Several challenges face law enforcement agencies in jurisdictions with large immigrant populations, including

! Large numbers of people who do not speak English well (or at all). ! Immigrants’ reluctance to report crime. ! Fear of police. ! Effects of federal law enforcement actions. ! Confusion over whether and to what extent local police enforce

immigration laws. ! Misunderstandings based on cultural differences. ! Personal interaction between immigrants and police officers that damage good

will and trust (Lysakowski et al., 2009, p. 3).

To meet these challenges, Congress authorized the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which amended the Immigration and Nationality Act by adding section 287(g).

Table 4.1 Public Concern about the Effects of Illegal Immigrants (United States, 2010)

Question: Thinking about the situation in the U.S. today, how concerned are you about the effects of illegal immigrants? Very Concerned

Somewhat Concerned

Not Too Concerned

Not at all Concerned

Illegal immigrants might be putting an unfair burden on U.S. schools, hospitals and government services. 61% 23% 9% 5%

Allowing illegal immigrant to stay in the U.S. might be encouraging others to immigrate. 55% 25% 13% 6%

Illegal immigrants making low wages might make U.S. employers less willing to pay American workers. 53% 24% 15% 7%

Source: Sourcebook of Criminal Justice Statistics Online (2013), (Table 2.0028.2010).

Table 4.2 Public Opinion about the Need for Government to Deal with Certain Immigration Policies (United States, 2011)

Question: How important is it to you that the government takes steps this year to deal with selected immigration policies?

Extremely Important

Very Important

Moderately Important

Not that Important

Controlling U.S. borders to halt the flow of illegal immigrants into the U.S. 53% 29% 12% 7%

Developing a plan to deal with the large numbers of illegal immigrants who are already living in the!U.S. 43% 38% 13% 5%

Source: Sourcebook of Criminal Justice Statistics Online (2013), (Table 2.0026.2011).

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Chapter 4 Equal Protection under the Law 103

287(g) Section 287(g) was intended to strengthen immigration enforcement efforts by allowing local law enforcement agencies to partner with the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) through Memorandums of Agreement (MOAs) authorizing local police to function as immigration officers. The program grew quickly, and by February 2009, 950 law enforcement officers in 23 states had been trained by U.S. ICE agents. The program, however, was widely criticized by civil liberties groups, Hispanic citizens, and con- gressional auditors with claims that the program promoted racial profiling (“Gov- ernment’s 287(g) Program Criticized in Hearings in House,” 2009, pp. 5–7).

Despite efforts to quell critics by standardizing MOA used to enter into 287(g) partnerships, persistent reports of police and ICE noncompliance gradually led to the scaling back and reevaluation of the program. At the end of 2012, ICE announced it would not be renewing any of its agreements with state and local law enforce- ment agencies operating under the 287(g) program. Instead, it would be placing new focus on its Secure Communities initiative.

Secure Communities Secure Communities is a tool that uses an already estab- lished federal information-sharing partnership between ICE and the FBI to identify “removable aliens” or immigration violators who have been arrested and booked for a criminal offense:

For decades, local jurisdictions have shared fingerprints of individuals who are arrested or booked into custody with the FBI to determine if they have a criminal record. Under Secure Communities, the FBI, as mandated by statute, automati- cally sends these fingerprints to DHS to check against its immigration databases. If these checks reveal that an individual may be unlawfully present in the United States or otherwise removable due to a criminal conviction, ICE determines what, if any, enforcement action to take—prioritizing the removal of those indi- viduals who present the most significant threats to public safety as determined by the severity of their crime, their criminal history, and other factors, as well as those who have repeatedly violated immigration laws.

Secure Communities imposes no new or additional requirements on state and local law enforcement. The federal government, not the state or local law enforcement agency, determines what immigration enforcement action, if any, is appropriate (“Frequently Asked Questions,” no date).

A recent assessment of the program notes its success: “Secure Communities has facilitated ICE’s ability to identify and remove criminal aliens. Between October 2008 and the end of fiscal year 2011, the number of convicted criminals that ICE removed from the United States increased 89 percent, while the number of other aliens removed dropped by 29 percent. These trends are due in significant part to the implementation and expansion of Secure Communities” (Protecting the Homeland, 2012, p. 18).

Some communities and states, however, have felt that the federal government was not doing all they could, and should, to tackle the problem of illegal immigra- tion. This tension came to a head in April 2010, when Arizona passed a law crimi- nalizing illegal immigration.

The 2010 Arizona Immigration Law The law, Arizona S.B. 1070, makes Arizona the first state to criminalize illegal immigration by defining it as trespassing, spelling

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out that police may not “solely consider race, color, or national origin” in questioning people about their immigration status (Markon and Kornblut, 2010, p. A03). The law requires officers, while enforcing other laws, to check a person’s immigration status if there’s a reasonable suspicion that the person is here illegally. It also bans people from blocking traffic when they seek or offer day-labor services on streets and prohibits illegal immigrants from soliciting work in public places.

Since Governor Jan Brewer signed the measure into law, it has set off rallies in Arizona and elsewhere by advocates on both sides of the immigration debate. Some opponents have advocated a tourism boycott of Arizona. President Barack Obama and Attorney General Eric Holder have “blasted” the legislation, with Obama say- ing that it “threatened to undermine basic notions of fairness” (Markon and Korn- blut, 2010, p. A03). Civil rights groups argued that the legislation would promote racial profiling (discussed later in the chapter).

In May 2010, PoliceOne carried an article reporting, “Arizona’s tough new law cracking down on illegal immigration is dividing police across the nation, pitting officers against their chiefs and raising questions about its potential to damage efforts to fight crime in Hispanic communities” (Cooper, 2010). Within days, nearly 100 PoliceOne members had commented, with the “overwhelming majority” (92.5 percent) of the comments enthusiastically supporting the Arizona law (Wyllie, 2010). However, almost 98 percent did not live in a state that borders Mexico (“Police Readers Overwhelmingly Support,” 2010, p. 14).

The Pew Research Center also reports, “The public broadly supports a new Arizona law aimed at dealing with illegal immigration. Fully 73 percent say they approve of requiring people to produce documents verifying their legal status! if! police ask for them” (“Broad Approval for New Arizona Immigration Law,” 2010).

Although the broken-window theory is now one of the “gospels” of law enforce- ment administrators nationwide, many chiefs disavow the policy when it comes to immigration violations. Although living in the United States illegally is a crime, albeit not a serious one, it is a federal misdemeanor nonetheless: “Once you break the law long enough with impunity, the law quickly becomes irrelevant” (Griffith, 2010, p. 10).

Despite the seemingly widespread public support for the controversial legis- lation, in July 2010 the U.S. Justice Department filed a lawsuit challenging the constitutionality of Arizona’s new law. Such a lawsuit had been hinted at since May 2010, when Holder told ABC’s This Week program he was concerned that “you’ll end up in a situation where people are racially profiled, and that could lead to a wedge drawn between certain communities and law enforcement, which leads to the problem of people in those communities not willing to interact with people in law enforcement, not willing to share information, not willing to be witnesses where law enforcement needs them” (“Holder: Feds May Sue,”!2010).

The key difference between the federal law and the Arizona law is that the federal government wants to focus on the most dangerous immigrants: gang members, drug traffickers, and threats to national security, leaving alone those law-abiding immigrants without documentation (Christie, 2010). What started as a civil rights issue has become an issue of federal versus states’ rights, with the lawsuit contending: “In our constitutional system, the federal government has

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Chapter 4 Equal Protection under the Law 105

preeminent authority to regulate immigration matters. This authority derives from the U.S. Constitution and numerous acts of Congress.” Thus, at the heart of the matter is the concept of preemption, meaning if a state law stands as an obstacle to the purposes, objectives, and execution of the federal law, the Supremacy Clause preempts the state law. This may occur even if the state law is generally compatible with federal law. Although it is generally presumed that Congress, acting through federal law, does not intend to interfere with the police powers of a state, under the Supremacy Clause, the Court said in Gibbons v. Ogden (1824) that laws made by Congress under the Constitution are superior to state laws that conflict or interfere with the act. Consequently, as specifically noted in the lawsuit (see www.justice.gov/opa/documents/az-complaint.pdf, 2010, pp. 23–24), the federal government has based its suit against Arizona on (1)! violation of the Supremacy Clause, (2) preemption under federal law, and (3)!violation of the Commerce Clause.

The Arizona law was challenged by the federal government as unconstitutional on the theory that the state was intruding on the federal government’s superior power to enforce federal immigration laws, and this is the basis for the Court’s deci- sion. On June 25, 2012, the Court voted 5–3 (Kagan recused) in Arizona v. United States to invalidate three of the four provisions of S.B. 1070 because they either operated in areas solely controlled by federal policy or they interfered with federal enforcement efforts. Invalidated were the sections:

! making it a crime to be in Arizona without legal papers, ! making it a crime to apply for or get a job in the state, ! allowing police to arrest individuals who had committed crimes that could

lead to their deportation.

The Court left intact, but subject to later challenges in lower courts, a provision requiring police to arrest and hold anyone they believe has committed a crime and whom they think is in the country illegally and to hold them until their immigra- tion status could be checked with federal officials.

Courts have repeatedly upheld that the regulation of immigration and related enforcement responsibilities are federal matters (Dwyer, 2010). Guidance on this issue is provided by two U.S. Supreme Court decisions. In United States v. Brignoni- Ponce (1975) the Court ruled that police officers must have probable cause to arrest individuals for immigration enforcement purposes, and in De Canas v. Bica (1976) the Court held that any local statute directed at regulating immigration is a viola- tion of the Supremacy Clause: “State involvement in this area, except as specifically allowed under federal law (such as 287g programs) is preempted by the supremacy clause to the U.S. Constitution. The crux of the judge’s decision rests on the burden the law would place on legal resident aliens who may be unconstitutionally held as a result of this law” (Dwyer, 2010).

Attitudes change, and so does the law. Where barriers once did not exist, lines have been drawn. As the Court and all of society struggle with how to combine the richness that immigration has contributed to the United States with challenges brought on by changes over the past two centuries, the future cannot help but reflect our past. And this past reflects, in the words of the Pledge of Allegiance, “one nation . . . with liberty and justice for all.” As this text goes to press, the contro- versy continues.

preemption federal law supersedes state law; if a state law stands as an obstacle to the purposes, objectives, and execution of the federal law, the Supremacy Clause preempts the!state law

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106 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Equal Protection in the Criminal Justice System When examining the question of whether there is discrimination in the criminal justice system, it is important to distinguish discrimination from disparity: “ Disparity refers to a difference, but one that does not necessarily involve dis- crimination” (Walker et al., 2012, p. 26). Differences leading to disparity can be explained by legal factors related to an individual’s actions, including the serious- ness of the offence, aggravating or mitigating circumstances, or prior criminal record. Extralegal factors include race, ethnicity, gender, social class, and lifestyle, factors that are not legitimate bases for decisions by criminal justice officials because these factors do not relate to a person’s criminal behavior. Using any of these extralegal factors as the basis for action results in discrimination, “differential treatment of groups without reference to an individual’s behavior or qualifica- tions” (Walker et al., 2012, p. 27). The degree and prevalence of discriminatory treatment within the criminal justice system can be thought of as existing along a continuum between the extremes of pure justice and systematic discrimination, as illustrated in Figure 4.2.

At one extreme is pure justice, describing treatment in which no degree of racial or ethnic discrimination occurs at any point or time in the criminal justice process. At the other extreme is systematic discrimination, in which discrimination is perva- sive in every aspect of the criminal justice system. Walker et al. (2012, p. 274) sug- gest that, based on a review of research, the U.S. criminal justice system falls in the middle on the continuum, characterized by contextual discrimination, that is, discrimination that occurs in certain parts of the justice system but not necessarily all parts all the time: “Discrimination . . . is confined to certain types of cases, certain types of settings, and certain types of defendants.” Whatever it is called, the fact remains that minorities are disproportionately represented in all three components of the criminal justice system: number of arrests by law enforcement, number of minorities going to court, and number of minorities incarcerated.

Of increasing concern is the disproportionate minority contact (DMC) with minority youths in the juvenile justice system. The Juvenile Justice and Delin- quency Prevention Act of 2002 provides that if a state fails to address the overrep- resentation of minority youths in the juvenile justice system, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) may withhold 20 percent of the state’s formula grant allocation for the following year and expanded the requirement to include disproportionally at all points in the juvenile justice system (Solar and Garry, 2009, p. 1).

disparity a difference, but one that does not necessarily involve discrimination

contextual discrimination describes a situation in which racial minorities are treated more harshly at some points and in some places in the criminal justice system but no differently than whites at other points and in other places

Pure justice

Systematic discrimination

Institutionalized discrimination

Contextual discrimination

Individual acts of discrimination

Figure 4.2 Discrimination Disparity Continuum Source: From WALKER, et al. The Color of Justice: Race, Ethnicity and Crime in America, 5E, p. 26. © 2012 Wadsworth, a part of Cengage!Learning, Inc. Reproduced by permission. www.cengage.com/permissions.

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Chapter 4 Equal Protection under the Law 107

Discrimination in Law Enforcement Considering the wide amount of discretion granted to police officers, it follows that those in law enforcement may be accused of discrimination, whether on the basis of age, gender, or race. Hess et al. (2014, p. 25) note, “Discretion lets officers treat different people differently. This may be seen as discrimination and, in fact, some- times is. Some officers are harder on minorities, men, or juveniles. This may be conscious or unconscious discrimination, but it does make for inconsistent enforce- ment of the laws.”

The most frequently alleged form of discrimination by the police is racial dis- crimination. Some argue that minority overrepresentation in the criminal justice system begins with law enforcement and the discriminatory attitudes and practices some officers apply toward members of racial and ethnic groups. In fact, officers themselves admit that a citizen’s race and socioeconomic status can lead to unequal treatment and even unwarranted physical force by the police. The contention that police single out subjects solely on the basis of the color of their skin frequently leads to allegations of racial profiling. Racial profiling can be defined as the prac- tice of relying “to any degree on race, ethnicity, national origin, or religion in select- ing which individual to subject to routine or spontaneous investigatory activities or in deciding upon the scope and substance of law enforcement activity following the investigatory procedure” (“Racial Profiling Prohibition Will Be Debated in Con- gress,” 2007, p. 3).

Such an event may be called “DWB” (driving while Black), “DWA” (driving while Asian), or “DWM” (driving while Mexican). Regardless of the acronym used, the event signals the unethical and illegal practice of racial profiling.

The exact prevalence of the problem remains unclear because research findings thus far lack consensus on the extensiveness of discrimination in police stops, searches, and arrests. To help present a more complete picture, many agencies now require the collection of additional racial data about drivers and passengers involved in traffic stops.

Several research studies on what appears to be racial profiling have possible explanations for its existence other than discrimination. Roh and Robinson (2009, p.!137) studied traffic stops at both the macrolevel (whole department) and micro- level (individual officers) and found that both levels confirmed racial disparity in the frequency of traffic stops as well as the police treatment. The likelihood of being subjected to unfavorable police treatment was greater in beats where more Blacks or Hispanics resided or more police were deployed (Roh and Robinson, 2009). The spatial analysis at the macrolevel found that the areas with more frequent stops and more adverse stop outcomes were spatially clustered rather than dispersed, and the majority of the clusters spatially coincided with minority residential areas or police resource concentration areas, likely the result of policing “hot spots” (Roh and Rob- inson, 2009, p. 163).

Lundman and Kowalski (2009, p. 504) used data from a New Jersey Turnpike Speeding Survey, which reported that Black drivers, young drivers, and male driv- ers were all more likely to speed at high rates (15 mph or more above the speed limit) in 65 mph speed zones than were non-Black drivers, older drivers, and female drivers. Lundman and Kowalski (2009, p. 504) suggest, “More research is

racial profiling the process of using certain racial characteristics, such as skin color, as indicators of criminal activity

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108 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

needed to determine whether traffic stops for Driving While Black are in small part the result of Speeding While Black.”

Many criminal justice professionals suggest that a distinction should be made between profiling as a legitimate policing technique and the politically charged term racial profiling. Refer to racially biased policing instead.

It is possible criminal justice practitioners may encounter allegations of other forms of discrimination as well, sometimes even personally. The Court dealt with age discrimination in Massachusetts Board of Retirement v. Murgia (1976) by upholding a state law that prohibited uniformed police officers from working beyond the age of 50. The Americans with Disabilities Act of 1990, along with other legislation and case law, seeks to address disabilities discrimination.

A developing area of discrimination law affecting police officers deals with pregnancy policies. Acknowledging the importance of recruiting and retaining women to serve in law enforcement, policies are needed that support families and parenting without negatively affecting police operations (Kruger, 2006). The Federal

It was 2 ".#. and Officers Baylor and Breen were on patrol in an area of town where the resident population was predominantly African American. They drove past a parked car occupied by a White male driver and a Black female passenger, and Officer Baylor mumbled, “That guy doesn’t belong here.” However, being White in a Black neighbor- hood is not illegal and certainly is not enough to warrant any immediate action. So the officers decided they would simply stop and observe for a few minutes.

As the officers were turning their squad around, the passenger in the parked car got out and walked away from the vehicle. The driver pulled the car away from the curb but did not turn his headlights on. The officers followed. The driver continued for several blocks before turning on the headlights.

The officers decided to make a traffic stop on the car and driver to see what he was doing in that neighborhood, so they drove up close behind the car and activated their emergency lights. The driver pulled over and parked at the curb.

Officer Breen approached the driver, who immediately blurted out, “You are just stopping me ’cuz I am White!” During that brief moment, Officer

Breen recognized a strong odor of marijuana. The driver was later arrested after several kilograms of marijuana were found under the backseat.

The driver later tried to suppress the evidence, claiming there was no reason for the traffic stop other than his race, a claim supported by the fact that the squad camera recorded Officer Baylor’s previous statement. The camera also, however, recorded the fact that the driver went several blocks without his headlights on.

! In your opinion, is the traffic stop constitutional? Why?

! What are the objective facts in this scenario?

! Should objective facts be given more weight than subjective facts?

(The legality of traffic stops will be covered in detail in Chapter 8. Keep this scenario in mind.)

Constitutional Law in ACTION

MYTH Race can never be considered by law enforcement when deciding on a course of action.

REALITY Race is a legitimate and easy way to include or eliminate a person as a suspect quickly. It is a useful tool and exists as one descriptive factor among many, but it may never be used as the sole basis for a police encounter.

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Chapter 4 Equal Protection under the Law 109

Pregnancy Discrimination Act of 1978 and a series of developing court holdings are cited as sources for this developing area of law.

Discrimination in the Courts Discrimination also exists in some courts. Even before a defendant appears for trial, discrimination in the jury selection process may negatively affect the outcome of the case.

After the Civil War ended, the Equal Protection Clause of the Fourteenth Amendment was used as a legal tool to abolish statutes excluding African Ameri- cans from jury selection. In 1880, the Supreme Court cited the Equal Protection Clause in Strauder v. West Virginia (1879) when it struck down a statute explicitly prohibiting African Americans from serving on juries. To get around such rulings and continue excluding racial minorities from jury duty, some states passed new laws requiring all jury members to be landholders or pay real estate taxes. Although such laws appeared race and gender neutral and not overtly discriminating, only White males actually met these criteria.

Not until 1935, in Norris v. Alabama, did the Court acknowledge that virtual exclusion of African Americans from juries constituted an equal protection viola- tion. Nonetheless, little effort was made to correct the discrepancies, and African Americans remained noticeably underrepresented on juries, particularly in the South. Even during the civil rights revolution of the 1950s and 1960s, the Supreme Court did not extend its desegregation rulings to the subject of juries. Consequently, in Swain v. Alabama (1965), the Court found no equal protection violations in a county where 26 percent of eligible voters were Black, yet only 10 to 15 percent of the jury panels were Black. The Court denied that such a statistical pattern pre- cluded a fair jury-selection process, stating, “Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group.”

The Court, however, reversed its position in Batson v. Kentucky (1986), when it ruled the use of peremptory challenges to deliberately produce a racially unbal- anced jury was unconstitutional. In Batson, the defendant was African American, and the prosecutor in the first trial used the state’s peremptory challenges to remove all four prospective Black jurors, leaving an all-White jury that ultimately convicted Batson. The conviction was upheld by the Kentucky Supreme Court, but the U.S. Supreme Court overturned the lower courts’ rulings:

The State’s privilege to strike individual jurors through peremptory challenges is subject to the command of the Equal Protection Clause. Although a prosecutor ordinarily is entitled to exercise peremptory challenges “for any reason at all, as long as that reason is related to his view concerning the outcome” of the case to be tried. . . . The Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that Black jurors as a group will be unable impartially to consider the State’s case against a Black defendant.

The Court extended the Batson ruling in J.E.B. v. Alabama (1994), when it held that gender, as with race, could not be used as a proxy for juror competence. In this case, the state of Alabama, on behalf of a minor child’s mother, filed a

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110 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

complaint for paternity and child support. A jury pool of 36 potential jurors was assembled—12 males and 24 females. Two jurors were removed for cause, and peremptory challenges used by both sides removed 18 more. The result was an all-female jury, who found the petitioner to be the child’s father. The father appealed. The Supreme Court upheld the petitioner ’s challenge, stating, “Equal opportunity to participate in the fair administration of justice is fundamental to our democratic system. It not only furthers the goals of the jury system. It reaf- firms the promise of equality under the law—that all citizens, regardless of race, ethnicity, or gender, have the chance to take part directly in our democracy. When persons are excluded from participation in our democratic processes solely because of race or gender, this promise of equality dims, and the integrity of our judicial system is!jeopardized.”

Just as discrimination can affect court proceedings before a trial, it can also affect the stage after trial—sentencing. Prosecutorial discretion may also contribute to sentencing disparity. A common tactic used by prosecutors to secure a guilty plea is to offer the defendant a lesser charge. Consequently, the sentence received is based on the charges brought, not necessarily on the act committed.

It should come as no surprise then that great variation exists among the sen- tences received by offenders convicted of the same offense. In an effort to standard- ize sentencing and eliminate disparity, many state and federal sentencing guidelines have been established. In 1984, Congress passed the Sentencing Reform Act (SRA), the purpose of which was to achieve honesty, uniformity, and propor- tionality in sentencing.

Numerous studies have documented sentencing disparities among various races of offenders, with some of the disparity attributed not to the race of the defen- dant but, rather, to that of the victim. In one well-known study, Baldus et al. (1990) found defendants charged with murdering White victims were 4.3 times as likely to receive a death sentence as were defendants charged with killing Blacks. This result was later used by Warren McClesky, a Black man sentenced to death after being convicted of armed robbery and the murder of a White police officer in Geor- gia. McClesky claimed the state’s capital-sentencing process operated to deny him equal protection of the laws in violation of the Fourteenth Amendment. In McClesky v. Kemp (1987), however, the Supreme Court found no evidence of such racial dis- crimination and affirmed the judgments of the lower courts:

For this claim to prevail, McClesky would have to prove that the Georgia Leg- islature enacted or maintained the death penalty statute because of an antici- pated racially discriminatory effect. In Gregg v. Georgia (1976), this Court found that the Georgia capital sentencing system could operate in a fair and neutral manner. There was no evidence then, and there is none now, that the Georgia Legislature enacted the capital punishment statute to further a racially discrimi- natory purpose.

Eliminating racial discrimination was the major goal of the sentencing guide- lines movement that started in the 1970s. Today, according to a study by the National Center for State Courts, such sentencing guidelines have effectively reduced the negative impacts of extralegal factors, such as offender race, gender, and socioeconomic status, on the sentences handed down for criminal offenses (Ostrom et al., 2008).

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Chapter 4 Equal Protection under the Law 111

In July 2010 Congress passed a bill that changed a quarter-century-old law subjecting tens of thousands of Blacks to long prison terms for crack cocaine convictions while treating those caught with the powder form of the drug, mainly Whites, with far more lenient sentences. The bill modifies a 1986 law passed when crack cocaine use was rampant and considered a particularly vio- lent drug and that allowed a person convicted of crack cocaine possession to receive the same mandatory prison term as someone convicted of possessing 100 times the amount of powder cocaine. The new legislation reduces the 100–1 ratio to about 18–1 and eliminates the 5-year mandatory minimum for the first-time possession of crack.

Senator Patrick Leahy from Vermont praised the vote: “These disproportionate punishments have had a disparate impact on minority communities. This is unjust and runs contrary to our fundamental principles of equal justice under the law.” However, Representative Lamar Smith from Texas warned that the legislation “could expose our neighborhoods to the same violence and addiction that caused Congress to act in the first place” because crack cocaine is often associated with a greater degree of violence than other drugs (Ingram, 2010).

Whatever sentencing decisions are made by the courts, the corrections system must then execute. Consequently, any disparity or discrimination generated at the court stage is inherited by corrections.

Discrimination in Corrections What has been termed the due process revolution that emerged during the politically tumultuous 1960s and 1970s affected every area of the law. In addition to the civil rights movement, the plight of groups who had been in many ways ignored by the Bill of Rights—for example, children—gained national attention. The field of cor- rections changed forever in 1968, when, thanks to television and the media, many Americans had their first look inside prisons. And they were horrified.

The Attica Prison riot, followed by the New Mexico Penitentiary riot and a host of other uprisings in American correctional facilities, shocked the public. The deplorable conditions that spawned much unrest by inmates and the way law enforcement and correctional personnel were treating inmates reversed roles and made the government look like the criminals. Like every other segment of society in the United States during that period, corrections and the prison system were fac- ing vast changes, including the unprecedented granting of rights to prisoners. And with more than 1 million people now incarcerated in prison and an additional 4 million supervised in other correctional facilities, prisoners’ rights continue to greatly affect the judicial system.

Perhaps because few Americans ever saw what prison life was actually like, and maybe did not care, the plight of inmates was long ignored. However, once Ameri- cans learned of the atrocities happening in U.S. correctional institutions, they rec- ognized the need for due process there as well.

It comes as a surprise to many that prisoners have any rights at all. Historically, they had few or none. Once people were remanded to a correctional facility, what happened to them seemed to be of little concern:

During his term of service in the penitentiary, he is in a state of penal servitude to the State. He has, as a consequence of his crime, not only forfeited his liberty,

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112 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

but all his personal rights except those which the law in its humanity accords him. He is for the time being the slave of the State. He is civiliter mortuus; and his estate, if he has any, is administered like that of a dead man. (Ruffin v. Commonwealth, 1871)

The judiciary of that time also believed separation of government prevented them from interfering with executive agencies. From the 1820s through the early 1940s, prison administrators were essentially sovereign, enjoying enormous power and little accountability. In the 1940s, however, the attitude in the United States toward corrections began to change as a move toward rehabilitation, rather than strictly punishment, emerged. In Ex parte Hull (1941), one of the formative cases affecting the prisoner’s rights movement, the Supreme Court acknowledged that even prisoners had rights and that the previous and routine practice of censoring and discarding prisoners’ legal petitions to courts was unconstitutional. The Court also held, not totally dissimilar to the holding in Marbury v. Madison (1803), that court officials, not correctional officials, held the decision-making authority regard- ing what rights prisoners had.

The Court further ruled, in Cooper v. Pate (1964), that inmates could sue the warden for depriving them of their constitutional rights under Section 1983 of the U.S. Code, thereby opening the door for inmates to seek legal redress in court. And

although there was a brief flurry of frivolous lawsuits filed by prisoners (one inmate claimed his religion forbade him from eating “pungent” foods, such as anything cooked with onions or garlic), and such frivolities still continue although to a lesser extent, the system sought a balance, reflected in the cases dis- cussed in subsequent chapters.

It is important to differentiate between privileges and rights of inmates, and this is where the public gets confused.

Although there are different theories on what privileges benefit prisoners or prisons (e.g., television may be seen by the public as an unnecessary privilege,

whereas corrections officials view it as a way to keep inmates occupied and to prevent moral and behavioral problems result- ing from total boredom), these should not be confused with rights all Americans, even those incarcerated, have under the Constitution.

Correctional facilities are required by the Americans with Dis- abilities Act (ADA) to provide special accommodations, pro- gramming, and services to disabled inmates. The ADA gives inmates with disabilities legal leverage in obtaining special ben- efits. Not providing adequate services may lead to expensive,

time- consuming lawsuits. For example, sign language interpreters are usually required for hearing-impaired inmates.

Disciplinary Hearings The Fourteenth Amendment also covers due process rights during disciplinary hearings. Wolff v. McDonnell (1974) involved the claim that Nebraska’s disciplinary procedures, particularly those relating to loss of good time (credited reduction in time served on a sentence because of an inmate’s good behavior, participation in programs, and so on), were unconstitutional. As a result, the Supreme Court determined that disciplinary proceedings differed from criminal

MYTH Prisoners, by virtue of their incarceration, relinquish all constitutional rights.

REALITY Although prisoners do not have full constitutional rights, they do retain some, including:

• the Eighth Amendment’s protection against cruel and unusual punishment

• the Fourteenth Amendment’s due process right to access to court and administrative appeals

• the protection against unequal treatment on the basis of race, sex, and creed, according to the Equal Protection Clause of the Fourteenth Amendment

• limited First Amendment rights to speech and religion

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Chapter 4 Equal Protection under the Law 113

prosecutions such that prisoners were not owed the full due process rights to which a defendant on trial is entitled. The minimum requirements specified by the Court concerning disciplinary proceedings included the right to receive advanced written notice of the alleged infraction, to have sufficient time to prepare a defense, to pres- ent documentary evidence and to call witnesses on his or her behalf, to seek counsel when the circumstances of the case are complex or if the prisoner is illiterate, to have a written statement of the findings of the disciplinary committee, and to main- tain a written record of the proceedings.

Access to Court Access to court is another Fourteenth Amendment right issue. Since Cooper v. Pate (1964), a lengthy list of “access-to-court” cases has been gener- ated. The validity of a prisoner’s right-to-court access was solidified in Cruz v. Hauck (1971), when the court stated, “ready access to court is one of, perhaps the most fundamental constitutional right.” However, few resources were available to inmates faced with preparing a defense. In Bounds v. Smith (1977), the Court ruled that North Carolina must furnish each correctional institution with an adequate law library. Some states have even provided law libraries so extensive as to be envied by attorneys.

In Johnson v. Avery (1969), the Supreme Court had ruled it acceptable for inmates to help each other with legal work in case preparation, unless the correctional facil- ity provided other reasonable legal assistance. The libraries allowed an inmate with sufficient interest in learning the law to become a “jailhouse lawyer.” Some facilities have avoided the extensive use of jailhouse lawyers by establishing legal-assistance programs staffed by practicing lawyers or law students. More constitutional law affecting corrections is included in subsequent chapters.

In 2008, ICE launched a new effort to better identify, detain, and remove from the United States illegal aliens held in local jails, by integrating the FBI’s database with a similar DHS database. In 2008, the ICE screened all federal and state prisons for illegal immigrants, but covered only about 10 percent of the jails. The “cornerstone of the effort is expanding technology to allow local offi- cials to identify illegal aliens held in their jails so they can be removed from the country before being released into local communities” (“ICE Plans to Remove,” 2008, p.!6).

A Check on Federal Power Just as states may exceed their power, so too, can the federal government. An example of this is the Brady Bill or the Brady Handgun Violence Prevention Act, which became law after President Bill Clinton signed it in November 1993. The bill was named after James Brady, the press secretary to President Ronald Reagan who, during the assassination attempt on Reagan, was shot and permanently dis- abled. Some of the provisions of the bill were later deemed by the Supreme Court to be unconstitutional, for example, the five-day waiting period stipulated by the Act with the National Instant Check System (NICS) allowing for instant back- ground checks.

Another example of the legislature declaring legislation, or portions of legisla- tion, unconstitutional is United States v. Lopez (1995), in which the Supreme Court struck down a 1990 federal law aimed at banning firearms in schools, ruling 5–4

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114 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

that Congress had exceeded its power under the Commerce Clause of the US Con- stitution when it enacted the law. The U.S. Court of Appeals for the Fifth Circuit ruled that Congress had exceeded its power in enacting the law, and the Supreme Court agreed.

In another case, Jones v. United States (1999), the Supreme Court limited the reach of the federal arson law. Jones was convicted of throwing a Molotov cocktail into the home of his cousin and was sentenced to 35 years in federal prison. Jones appealed, arguing that the federal arson law did not apply to cases like his. The Supreme Court granted certiorari and ruled the law had, in fact, been misapplied. The federal law, as written, applies only to property used in interstate or foreign commerce, not to the arson of an owner-occupied private!residence.

Federalism Revisited Many citizens lament that the country is headed toward more and bigger gov- ernment. The founding fathers feared big government and built safeguards against it into the Constitution. However, a 20-year study by The Washington Post found, “The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how!many programs exist within it or exactly how many agencies do the same work. . . . After nine years of unprecedented spending and growth, the result is that the system put in place to keep the United States safe is so massive that its effectiveness is impossible to determine” (Priest and Arkin, 2010). The system includes some 1,271 government organizations and 1,931 private companies working on counterterrorism, homeland security, and intelligence programs in more than 10,000 locations across the country, generating 50,000 intelligence reports a year. The result is that many reports are routinely ignored. “These are not academic issues; lack of focus, not lack of resources, was at the heart of the Fort Hood shooting that left 13 dead, as well as the Christmas Day bomb attempt thwarted not by the thousands of analysts employed to find lone terrorists but by an alert airline passenger who saw smoke coming from his seatmate” (Priest and Arkin). Figure 4.3 illustrates the myriad counterterrorism command centers in the Washington area alone.

Another issue currently involving constitutional issues and federal powers, like the immigration issue, is the controversy over S.3194, the Public Safety Employer- Employee Cooperation Act of 2009, and the role of unions in public safety organizations.

The Public Safety Employer-Employee Cooperation Act of 2009 A battle is underway. On one side are local police chiefs and sheriffs who oppose legislation requiring state and local government to give police officers the right to bargain collectively. On the other side are organizations representing rank-and-file officers, including the National Association of Police Organizations (NAPO) and the National Fraternal Order of Police (FOP) who have been working to win

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Chapter 4 Equal Protection under the Law 115

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116 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

passage of such legislation. “Similar bills have been considered by Congress for more than a decade, but law enforcement organizations on both sides of the issue indicated that passage this year is a real possibility—or threat, depending on the point of view” (“House Passes Bill,” 2010, p. 3).

The controversial bill, S.3194 (the Public Safety Employer-Employee Coopera- tion Act of 2009), which began as H.R.413, would authorize the Federal Labor Rela- tions Authority (FLRA) to identify which states do not provide certain collective bargaining rights to first responders and then issue regulations establishing those rights. Police chiefs and sheriffs have voiced concern, warning that it would create a “one size fits all straightjacket on law enforcement agencies.” Mayors and city council members expressed anger over the federal government moving to take over local officials’ job of managing city finances.

In an effort to ensure that the bill would pass, the House attached it to the “must pass” funding bill financing the war effort. The bill passed, and the union declared victory. The Senate, however, rejected the bill 46–51, voting to send their original version of the bill, which does not include the collective bargaining requirement, back to the House. According to Neil Bomberg, program director for human development with the National League of Cities, opposition to the bill is not intended to be anti-union: “The reason we opposed this has nothing to do with collective bargaining. It has to do with another incursion of the federal govern- ment in the business of state and local governments” (Wolfe, 2010). Since April 13, 2010, the bill has sat, without progress, on the Senate Legislative Calendar under General Orders.

This issue, along with many others, will be debated in the months, and possibly years, ahead. How such issues are resolved will have a direct impact on law enforcement and the public it serves.

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Chapter 4 Equal Protection under the Law 117

Discussion Questions

Summary

1. Why was the Fourteenth Amendment necessary? 2. Why has the entire Bill of Rights not been

embraced by the Fourteenth Amendment? 3. Why are people prejudiced? Do you recognize your

own prejudices? 4. Do you think employment quota laws improve

fairness or worsen it? for whom? 5. Can it be argued that government has “gone too

far” by requiring all people to be treated equally? Can you think of instances in which different people might not be equally able to do a job?

6. Should inmates be allowed to file as many petitions as they please, or should a limit be placed so they

To ensure “liberty and justice for all,” two additional amendments to the U.S. Constitution were passed. The Thirteenth Amendment, ratified in 1865, abol- ished slavery. The Fourteenth Amendment, ratified in 1868, granted citizenship to all persons born or natu- ralized in the United States and subject to the jurisdic- tion thereof, and forbid states to deny their citizens due process of law or equal protection of the law; that is, it made certain provisions of the Bill of Rights appli- cable to the states. Procedural due process requires the law to be applied and executed fairly. Substantive due process requires that the laws, themselves, be fair.

The doctrine of incorporation holds that those provisions of the Bill of Rights that are fundamental to the U.S. scheme of justice—enumerated rights— are applied to the states through the Due Process Clause of the Fourteenth Amendment.

The ultimate importance of Griswold is that the Court will recognize unenumerated rights, and fun- damental unenumerated rights within the Due Pro- cess Clause. Enumerated rights are textually explicit rights incorporated against the states and almost always evaluated with strict scrutiny. Unenumer- ated rights, in contrast, are not explicitly stated in the Constitution or Bill of Rights but exist via the liberty guaranteed by the Fourteenth Amendment and are considered either fundamental (e.g., civil liberties), thus evaluated under strict scrutiny, or non- fundamental (e.g., economic or property liber- ties), which are evaluated under a rational basis test.

would be more selective in bringing up their grievances? Is there a potential for corruption in either scenario?

7. What are your views on the immigration issue? 8. What role do you think the Great Depression

played in the Supreme Court changing its level of scrutiny regarding economic legislation?

9. What is “right-to-work” legislation? Does it have the same affect on public employees and private employees?

10. Would you have a procedural due process claim if the state suspended your driver’s license? What facts would you need to show this violated due process?

Prejudice is an attitude; discrimination is a behav- ior. Racial discrimination in the United States has its roots in our nation’s history of slavery. The Dred Scott decision (1856) ruled that a freed slave did not enjoy the right to remain free in a territory where slavery was still legal. Plessy v. Ferguson (1896) showed the Court’s desire to avoid civil rights issues, declaring discrimina- tion to be outside the realm of the Court. Jim Crow laws strictly segregated Blacks from Whites in schools, restaurants, streetcars, hospitals, and cemeteries.

The Court did not directly confront civil rights until the 1950s and 1960s. The Equal Pay Act of 1963, the Civil Rights Act of 1964, the Equal Opportunity Act of 1972, and Title IX of the Education Amend- ments of 1972 prohibit discrimination based on race, color, religion, sex, or national origin in employment and education in public and private sectors at the federal, state, and local levels. Affirmative action was created to spread equal opportunity throughout the diverse U.S. population.

The Equal Protection Clause of the Fourteenth Amendment to the Constitution applies to racial pro- filing. Race-based enforcement of the law is illegal. The Equal Protection Clause also prohibits discrimi- nation in jury selection on the basis of race or gender.

A right is a legally protected claim, whereas a privilege is not necessarily legally protected. For prisoners, cases based on Fourteenth Amendment rights involve equal protection on the basis of race, gender, and the availability of facilities and services.

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118 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

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Christie, Bob. “Selective Enforcement at Heart of Arizona Immigration Lawsuit.” Associated Press, July 8, 2010. Retrieved April 16, 2013, from www .semissourian.com/story/1648015.html.

Cooper, Jonathan J. “Immigration Law Divides Cops Across U.S.” PoliceOne.com, May 17, 2010. Retrieved April 16, 2013, from www.policeone.com/border- patrol/articles/2065043-Immigration-law-divides- cops-across-U-S.

Davis, Burke. The Civil War: Strange and Fascinating Facts. New York: Random House Value Publishing, 1988.

Ducat, Craig R. Constitutional Interpretation, 9th ed. Belmont, CA: West/Thomson Learning, 2010.

Dwyer, Terrance P. “Understanding the Precedent for Judge Bolton’s Ruling on Ariz. 1070.” PoliceOne.com News, July 28, 2010. Retrieved April 16, 2013, from www.policeone.com/legal/articles/2147676- Understanding-the-precedent-for-Judge-Boltons- ruling-on-Ariz-1070.

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“Government’s 287(g) Program Criticized in Hearings in House.” Criminal Justice Newsletter, March 2, 2009, pp. 5–7.

Griffith, David. “America’s Broken Window.” Police, July 2010, p. 10.

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“House Passes Bill Requiring Collective Bargaining for State and Local Police, Fire and EMS Workers.” Subject to Debate, July 2010, p. 3.

“ICE Plans to Remove from Country More Illegal Aliens Held in Jails.” Criminal Justice Newsletter, May 1, 2008, p. 6.

Ingram, David. “Congress Passes Bill to Cut Federal!Sentences in Crack Cocaine Cases.” The National!Law Journal, July 29, 2010. Retrieved April!16, 2013, from www.law.com/jsp/article .jsp?id=1202464009761&Congress_Passes_Bill_to_ Cut_Federal_Sentences_in_Crack_Cocaine_ Cases&slreturn=20130317172633.

Kruger, Karen. “Pregnancy Policy: Law and Philosophy.” The Police Chief, March 2006, pp.!10–11.

Lundman, Richard J., and Kowalski, Brian R. “Speeding while Black? Assessing the Generalizability of Lange et al.’s (2001, 2005) New Jersey Turnpike Speeding Survey Findings.” Justice Quarterly, September 2009, pp. 504–527.

Lysakowski, Matthew, Pearsall, Albert Antony III, and Pope, Jill. Policing in New Immigrant Communities. Washington, DC: Office of Community Oriented Policing, June 2009.

Markon, Jerry, and Kornblut, Anne E. “Justice Department Considers Suing Arizona to Block Immigration Law.” The Washington Post, April 29, 2010, p. A03.

Means, Randy, and McDonald, Pam. “New Haven Firefighters Case . . . ’Reverse’ Discrimination: The Final Answer?” Law and Order, September 2009, pp.!18–22.

Moule, Jean. “Understanding Unconscious Bias and Unintentional Racism.” Phi Delta Kappan, January 2009, pp. 321–326.

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Nationwide Suspicious Activity Reporting (SAR) Initiative (NSI). Washington, DC: Bureau of Justice Assistance, June 11, 2009.

Ostrom, Brian J., Ostrom, Charles W., Hanson, Roger A., and Klieman, Matthew. Assessing Consistency and Fairness in Sentencing: A Comparative Study in Three States. Williamsburg, VA: National Center for State Courts, 2008.

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Chapter 4 Equal Protection under the Law 119

Cases Cited Adamson v. California, 332 U.S. 46 (1947) Adarand Constructors v. Pena, 515 U.S. 200 (1995) Ansonia Board of Education v. Philbrook, 479 U.S. 60

(1986) Arizona v. United States, 567 U.S. ___ (2012) Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) Batson v. Kentucky, 476 U.S. 79 (1986) Board of Regents of State Colleges v. Roth, 408 U.S. 564

(1972) Boddie v. Connecticut, 401 U.S. 371, 378 (1971) Bounds v. Smith, 430 U.S. 817 (1977) Brown v. Board of Education of Topeka, 347 U.S. 483

(1954) Cooper v. Pate, 378 U.S. 546 (1964) Cruz v. Hauck, 404 U.S. 59 (1971) De Canas v. Bica, 424 U.S. 351 (1976) Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) Duncan v. Louisiana, 391 U.S. 145 (1968) Ex parte Hull, 312 U.S. 546 (1941) Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561

(1984) Fisher v. University of Texas at Austin, 570 U.S. ____

(2013) Fullilove v. Klutznick, 448 U.S. 448 (1980)

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) Gratz v. Bollinger, 539 U.S. 244 (2003) Gregg v. Georgia, 428 U.S. 153 (1976) Griswold v. Connecticut, 381 U.S. 479 (1965) Grutter v. Bollinger, 539 U.S. 306 (2003) Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) Hollingsworth v. Perry, 570 U.S. ____ (2013) J.E.B. v. Alabama, 511 U.S. 127 (1994) Johnson v. Avery, 393 U.S. 483 (1969) Jones v. United States, 527 U.S. 373 (1999) Local 28, Sheet Metal Workers International Association v.

EEOC, 478 U.S. 421 (1986) Lochner v. New York, 198 U.S. 45 (1905) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) Massachusetts Board of Retirement v. Murgia, 427 U.S. 307

(1976) Mathews v. Eldridge, 424 U.S. 319 (1976) McClesky v. Kemp, 481 U.S. 279 (1987) McDonald v. Chicago, 561 U.S. 3025 (2010) Meyer v. Nebraska, 262 U.S. 390 (1923) Nebbia v. New York, 291 U.S. 502 (1934) Norris v. Alabama, 294 U.S. 587 (1935) Palko v. Connecticut, 302 U.S. 319 (1937) Plessy v. Ferguson, 163 U.S. 537 (1896)

Priest, Dana, and Arkin, William M. “A Hidden World, Growing Beyond Control.” Top Secret America: Washington Post Investigation. The Washington Post, July 19, 2010. Retrieved April 16, 2013, from http:// projects.washingtonpost.com/top-secret-america/ articles/a-hidden-world-growing-beyond-control/ or www.pulitzer.org/files/entryforms/WashPost_TSA_ Item1.pdf.

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“Racial Profiling Prohibition Will Be Debated in Congress,” Criminal Justice Newsletter, December 17, 2007, pp. 3–4.

Roh, Sunghoon, and Robinson, Matthew. “A Geographic Approach to Racial Profiling.” Police Quarterly, June 2009, pp. 137–169.

Scarry, Laura L. “Cause for an Arrest, or Protected Speech?” Law Officer, September 2008.

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Level. (NCJ 218861). Washington, DC: Office of Juvenile Justice and Delinquency Prevention, September 2009.

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Sykes, Marquita. “The Origins of Affirmative Action.” National NOW Times, August 1995. Retrieved April!16, 2013, from www.now.org/nnt/08-95/ affirmhs.html.

Walker, Samuel, Spohn, Cassia, and DeLone, Miriam. The Color of Justice: Race, Ethnicity and Crime in America, 5th ed. Belmont, CA: Wadsworth/ Thomson, 2012.

Wexler, Chuck. “Introduction,” in Police Chiefs and Sheriffs Speak Out on Local Immigration Enforcement. Washington, DC: Police Executive Research Forum. April, 2008, pp. i–iii.

Wolfe, Billy. “Failure of Bill a Relief to Some.” Charleston Daily Mail, July 27, 2010. Retrieved April!16, 2013, from www.dailymail.com/News/ Kanawha/201007260785.

Wyllie, Doug. “The Immigration Situation: P1 Members Speak Out.” PoliceOne.com, May 28, 2010. Retrieved April 16, 2013, from www.policeone .com/patrol-issues/articles/2073114-The- immigration-situation-P1-Members-speak-out/.

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120 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Plyler v. Doe, 457 U.S. 202 (1982) Regents of the University of California v. Bakke, 438 U.S.

265 (1978) Ricci v. DeStefano, 557 U.S. 557 (2009) Richmond Newspapers Inc v. Virginia, 448 U.S. 555 (1980) Roe v. Wade, 410 U.S. 113 (1973) Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790 (1871) Schuette v. Coalition to Defend Affirmative Action,

Docket!No. 12-682 (2013) Shapiro v. Thompson, 394 U.S. 618 (1969) Strauder v. West Virginia, 100 U.S. 303 (1879) Sugarman v. McDougall, 413 U.S. 634 (1973)

Swain v. Alabama, 380 U.S. 202 (1965) United States v. Brignoni-Ponce, 422 U.S. 873 (1975) United States v. Carolene Products Co., 304 U.S. 144 (1938) United States v. Lopez, 514 U.S. 549 (1995) United States v. Paradise, 480 U.S. 149 (1987) United States v. Virginia, 518 U.S. 515 (1996) United States v. Windsor, 570 U.S. ____(2013) United Steelworkers of America v. Weber, 443 U.S. 193

(1979) Washington v. Glucksberg, 521 U.S. 702 (1997) Wolff v. McDonnell, 418 U.S. 539 (1974) Wygant v. Jackson Board of Education, 476 U.S. 267 (1986)

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121

Freedom of religion is a cornerstone of not only the Constitution but U.S. ideology. However, in our post-9/11 society, many Muslim-Americans have experienced discrimination by and distrust from non-Muslims. Here, protesters gather at the “Today, I Am a Muslim, Too” rally to protest against a planned congressional hearing on the role of Muslims in homegrown terrorism, Sunday, March 6, 2011, in New York.

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—First Amendment to the U.S. Constitution

The First Amendment Basic Freedoms

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122 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

! What basic freedoms are guaranteed in the First Amendment? ! Whether rights guaranteed in the First Amendment are absolute? ! What freedoms are included in religious freedom? ! What the Establishment Clause guarantees? the Free Exercise

Clause? ! What freedom of speech guarantees U.S. citizens? ! What type of speech Congress has passed laws restricting? ! What the “imminent lawless action” test involves and when it is likely

to be used? ! Under what two conditions police officers’ speech is protected

under the First Amendment? ! Whether symbolic acts are protected under the First Amendment? ! What is included in freedom of the press? ! What basic freedoms prison inmates have?

Do You Know . . .

Can You Define? balancing test “clear and present

danger” test “clear and probable

danger” test Establishment Clause

Free Exercise Clause “imminent lawless

action” test judicial activism preferred freedoms

approach

prior restraint “rational basis” test strict scrutiny symbolic speech

Introduction Americans often know more constitutional law than they think. The media, despite criticisms about reporting, present so much about the law that the general public

cannot help but develop a sense of some basic legal tenets. This is certainly the case with the First Amendment.

Differences and difficulties in interpretation have character- ized much of the later history of the First Amendment. For example, despite the apparent absolute prohibition in the phrase “Congress shall make no law . . . ,” Congress has, in fact, passed laws in the public interest many times that restrict free- dom of religion, speech, and press. Keep in mind that the fram- ers of the Constitution intended to construct only the basic framework of U.S. law. General terms such as religion, speech, and press have generated great debate as U.S. law continues to grow and change.

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Chapter 5 The First Amendment: Basic Freedoms 123

In addition, federal agencies and prosecutors have initiated actions that have resulted in certain limitations on freedom of speech and press. In ruling on the constitutionality of various restrictions on these civil rights, the Supreme Court has at times tended to support either individual rights or society’s inter- ests. It sounds simple, but it is not. Private-versus-public inter- ests continue to be at odds while giving courts continual opportunities to provide solutions to best serve all involved, including those who will rely on past law to determine future decisions.

Since the early 1950s, the Supreme Court has sought a bal- anced approach whereby both private and public interests are weighed in each case, as illustrated in Figure 5.1.

The framers of the Constitution intended that it be interpreted. Interpretation plays an important role in constitutional law, and that is why those who drafted the document kept it so fundamental. The basic nature of the Constitution permits courts to continue to interpret law to allow it to grow with society.

This chapter provides an in-depth look at how the First Amendment has been interpreted over the years, beginning with freedom of religion, followed by free- dom of speech and freedom of the press. Next the right to peaceful assembly and freedom of association are discussed. The chapter concludes with a look at the First Amendment rights of prisoners.

What is good for me?

What is good for us?

Individual rights

Societal rights

Figure 5.1 Balancing Individual and Societal Rights

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124 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Freedom of Religion Freedom of religion is the first right set forth in the Bill of Rights. The colonists who fled religious persecution cherished their right to worship as they saw fit in their new country. Because religions differed from colony to colony, with Episcopalians predominating in one area, Presbyterians in another, and Congregationalists and Quakers in still others, the founding fathers wanted to guarantee every individual religious freedom:

The religious wars that battered Europe between the Middle Ages and the Enlightenment and the theological intolerance that blemished the reign of the Tudors and brought down the rule of the Stuarts in the English Civil War pro- vided ample testimony to the importance of not creating political cleavages along such emotional lines. The Establishment Clause was the fruit of a harsh European history lesson that taught that the solder of social cohesion was quite apt to melt under the heat generated by religious conflict. (Ducat, 2010, p. 1049)

Laws regarding religion in the newly independent America created a “crazy quilt” (Davis, 2010, p. 87). For example, Massachusetts allowed only Christians to hold public office, and Catholics were required to renounce papal authority to hold public office. New York’s constitution banned Catholics from public office. In Maryland, Catholics had full civil rights, but Jews did not. Several states had official, state-supported churches. According to Davis (2010, pp. 92–93), “While some of America’s early leaders were models of virtuous tolerance, American attitudes were slow to change. The anti-Catholicism of America’s Calvinist past found new voice in the 19th century. The belief widely held and preached by some of the most prominent ministers in America was that Catholics would, if permit- ted, turn America over to the pope. Anti-Catholic venom was part of the typical American school day.” He states that in Massachusetts an anti-Catholic mob burned a convent to the ground, and in Philadelphia anti-Catholic sentiment along with an anti-immigration mood resulted in the Bible Riots of 1844, in which houses were torched, two Catholic churches were destroyed, and at least 20 peo- ple were killed.

At about the same time, Joseph Smith founded Mormonism and met with the “wrath of the mainstream Protestant majority,” who tarred and feathered him, marking the beginning of a long battle between Christian America and Smith’s Mormonism. In 1960 Catholic presidential candidate John F. Kennedy made a major speech declaring that his loyalty was to the United States, not the pope, and in 2012 Mormon candidate Mitt Romney addressed the suspicions still directed toward the Church of Jesus Christ of Latter-day Saints. In addition, anti-Semitism has been practiced institutionally and socially for decades (Davis, 2010).

In the United States in the present day, particularly since the terrorist attacks of September 11, 2001, the country is experiencing a deep distrust of Muslims, as attested to by the controversy of building a mosque near the site where the Twin Towers once stood in New York City. However, “America can still be, as Madison perceived the nation in 1785, ‘an asylum to the persecuted and oppressed of every nation and religion.’ But recognizing that deep religious discord has been part of America’s social DNA is a healthy and necessary step” (Davis, 2010, p. 96).

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Chapter 5 The First Amendment: Basic Freedoms 125

Freedom of religion is a political principle that strives to forbid government constraint on people’s choices of beliefs. It requires also that people be free to act on their beliefs.

The concept of separation of church and state is an important legal issue related to freedom of religion. Such a separation is not necessarily present in other parts of the world, and its absence does not necessarily indicate the absence of religious freedom. Many governments attempt to control their society by controlling religion. Some dictatorships have banned certain religions altogether. The United States, however, has always held such basic freedoms in high regard.

To truly separate church and state is challenging. In fact, it cannot be done totally, even if that was the intent. Churches must conform to building and fire codes. Certain behaviors are not accepted anywhere, including churches. Although some separations are obvious, the line can easily become blurred. Ultimately, the government must decide whether a group claiming to be a religion actually is. The! First Amendment demands that in making these decisions, the government neither favors nor is hostile toward one religion over others. Government is to remain!neutral.

Freedom of religion is commonly discussed in terms of two clauses: the Establishment Clause and the Free Exercise Clause.

The Establishment Clause The Establishment Clause has been interpreted at various times to mean either that government cannot show preference to any par- ticular religion or that church and state must be completely sepa- rate. Emotional disputes have involved litigation over such issues as government assistance to religiously sponsored schools, devotional practices in public schools, and treatment of sectarians, whose religious convictions are not eas- ily accommodated by local law. The cases that follow illustrate how the Supreme Court has struggled with religious issues.

An early case regarding religious freedom was Hamilton v. Regents of University of California (1934). This case involved “conscientious objection” to war and pitted student members of a church against the state university they attended. The uni- versity required all freshmen and sophomores to complete six units of military training to attain full academic standing as a junior. The students petitioned the university regents to make the military training courses optional or to exempt them as conscientious objectors. Their petition was denied. The students, adhering to their convictions, declined to take the prescribed courses and were suspended. They filed suit, challenging the validity of the state constitution and claiming their suspension violated their constitutional rights. When the students lost and appealed, the Court again denied their request, handing down its opinion that under the state’s constitution the regents were entitled to include military courses in the required curriculum and that the petitioning students’ suspension for refus- ing to take these compulsory courses involved no violation of their rights under the U.S. Constitution.

The Supreme Court noted the regents’ order to take the prescribed courses did not obligate the students to serve in or in any way become a part of the U.S. military

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Establishment Clause clause in the First Amendment that states, “Congress shall make no law respecting an establishment of religion”

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126 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

establishment. The Court asserted, “Government, federal and state, each in its own sphere owes a duty to the people within its jurisdiction to preserve itself in ade- quate strength to maintain peace and order and to assure the just enforcement of law. And every citizen owes the reciprocal duty, according to his capacity, to sup- port and defend the government against all enemies.”

The Establishment Clause and separation of church and state was made applicable to the states in Everson v. Board of Education (1947), in which the Supreme Court held that a state statute allowing reimbursement to parents for money spent to transport their children to parochial schools on the public bus system did not constitute an establishment of religion. Citing the words of Thomas Jefferson—that the clause against the establishment of religion by law was intended to erect a “wall of separation between Church and State”— and! noting the reimbursement policy applied to parents of both public and parochial school students, the Court determined the policy did conform to the separationist intent of the clause and likened the statute to general public- welfare legislation.

In Engle v. Vitale (1962), the Court held that prayer, voluntary or otherwise, con- ducted in public school classrooms was unconstitutional. This decision was also the holding in Abington School District v. Schempp (1963) and Murray v. Curlett (1963), two cases heard together, regarding schools that began each day by reading Bible verses. In 1985 in Wallace v. Jaffree, the Court held that even a “moment of silence for meditation or voluntary prayer” was being used to encourage religious values and was unconstitutional.

Law challenging the Establishment Clause because of an incidental benefit must meet three standards: it must (1) have a primary secular purpose, (2) have a prin- ciple effect that neither advances nor inhibits religion, and (3) not generate exces- sive entanglement between government and religion, as set forth in Lemon v. Kurtzman (1971). In this case, Rhode Island was providing a 15-percent salary sup- plement to teachers of secular subjects in private schools. The Court invalidated the state’s attempt to subsidize costs of parochial school education by ruling that the statutes fostered an excessive entanglement between church and state in violation of the Establishment Clause.

Chief Justice Warren E. Burger stressed that programs that provided significant ongoing aid to parochial elementary and secondary schools injected an explosive political issue that caused division along religious lines, effectively guaranteeing yearly public debates and political conflicts. In Lemon, the Court found that secular and religious education were so tightly intertwined that to support one without supporting the other would be virtually impossible and that separating the two would involve the state so deeply in the religious institution’s administration as to impair its independence, generating an “excessive entanglement” in conflict with a central purpose of the establishment clause.

In 1980, the Court struck down a Kentucky law requiring the posting of the Ten Commandments in all classrooms (Stone v. Graham, 1980). The “Equal Access” law of 1984, however, gave students the right to hold religious meetings in public high schools outside class hours.

Aguilar v. Felton (1985) began an analytical change by the Court in holding that rather than the specific elements of Lemon, the Establishment Clause barred the City of New York from sending public school teachers into parochial schools to provide

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Chapter 5 The First Amendment: Basic Freedoms 127

remedial education to disadvantaged children pursuant to a congressionally man- dated program. The intense state monitoring of public employees who teach in religious institutions to ensure they were not including religion necessitated exces- sive government entanglement with religion, leading the Court to place a perma- nent injunction on state aid to parochial schools.

However, the Court’s decision in Agostini v. Felton (1997) took the opposite direction. At issue was a federally funded remedial education program in New York City, based on Title I of the Elementary and Secondary Education Act of 1965, aimed at economically disadvantaged and educationally deprived children, most of whom attended parochial schools. Public funds were used to purchase materials and supplies and to pay instructors, including those teaching in the private schools. In Agostini, the New York City Board of Education sought relief from the injunction resulting from Aguilar, contending that the cost of compliance severely restricted the money available to provide remedial instruction to the students who needed it.

In examining its own seemingly opposing interventions involving the time from Aguilar to Agostini, the Court acknowledged its Aguilar ruling had, in fact, been undercut by subsequent decisions, most notably Zobrest v. Catalina Foothills School District (1993), which held that public assistance could be used for an inter- preter for a parochial school student. The Court admitted the assumptions on which Aguilar had relied, such as excessive entanglement, had no support in more recent rulings.

This area of constitutional analysis continues to challenge both students and judges. The Court itself has not been able to define a clear set of rules to deter- mine outcomes of these cases, as illustrated by a series of decisions that gar- nered national attention from 2003 to 2005. In 2003, Alabama Supreme Court Justice Roy Moore refused to remove a statue of the Ten Commandments from the judicial building and was eventually removed from his position. The statue was put in a storeroom not accessible to the public. Although refusing to grant certiorari, supporters of Judge Moore pointed out that even the U.S. Supreme Court begins each session with the words, “God save the United States and this honorable court.”

Then in 2004, the Supreme Court granted certiorari to two similar cases that yielded vastly different rulings and illustrated how two competing theories influ- ence the Court’s interpretation of the Establishment Clause. McCreary County v. ACLU (2005) involved a lawsuit filed by the American Civil Liberties Union (ACLU) against three Kentucky counties for their displays of framed copies of the Ten Commandments on the walls inside courthouses and public schools. The ACLU argued that the displays violated the First Amendment’s Establishment Clause, and the Supreme Court agreed.

However, Van Orden v. Perry (2005) was a similar case filed in Austin, Texas, in which Thomas Van Orden sued Texas Governor Rick Perry because one of the 21 statues surrounding the capital building was a 6 " 3.5-foot monolith bearing the Ten Commandments. Van Orden felt the monolith violated the Establishment Clause and wanted it removed. A federal district court ruled for the state, and a federal appellate court affirmed. The Supreme Court granted certiorari and affirmed, with Chief Justice William H. Rehnquist stating, “We think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds. Instead our analysis is driven both by the nature of the monument and

CASE IN BRIEF McCreary County v. ACLU (2005)

ISSUE Does displaying the Ten Commandments in county courthouses and public schools violate the First Amendment’s Establishment Clause, which prohibits government from passing laws “respecting an establishment of religion”?

RULING Yes. An observer of such displays posted on walls inside public structures would likely have concluded that the government was endorsing religion.

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128 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

by our nation’s history. . . . Texas has treated her Capitol grounds monuments as representing the several strands in the state’s political and legal history. The inclu- sion of the Ten Commandments in this group has a dual significance, partaking of both religion and government. We cannot say that Texas’ display of this monument violates the Establishment Clause of the First Amendment.” Concurring, Justice Clarence Thomas stated, “In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense in seeing the monu- ment as he passes it.”

McCreary and Van Orden, which were decided on the same day, illustrate the challenges facing the Court with respect to this area of constitutional law and the!necessity to analyze each case based on its unique facts and circumstances. The McCreary decision adheres to standards set forth in the Lemon test and follows the! complete “wall of separation” theory, which insists that the government and religion are kept separate as much as possible. Government neutrality concerning religion is necessary. Van Orden, on the other hand, championed the theory that government and religion need not, and in fact cannot, be completely separated, noting how religion has been involved in government action and traditions for centuries; for example, the House and Senate each have paid chaplains, and the Supreme Court opens its sessions with a prayer.

The cases demonstrate the struggle between changing norms and constitutional interpretations. The United States was created as a place where all people could worship as they liked. A number of the founders were able to risk what they did because of the courage their faith provided as proudly proclaimed in much of the Constitution’s history. Andrew Jackson pointed out, “The First Amendment to our Constitution was designed to avoid these conflicts by avoiding these beginnings” (West Virginia State Board of Education v. Barnette, 1943).

The Free Exercise Clause The free exercise of religion involves both the freedom to believe and the freedom to act. In Davis v. Beason (1890), the Court described the First Amendment free exercise clause:

The First Amendment was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose

as may be approved by his judgment and conscience, and to exhibit his senti- ments in such form of worship as he may think proper, not injurious to the rights of others.

However, the freedom to act is not so protected, a distinction further clarified when the free exercise clause was made applicable (incorporated) to the states in Cantwell v. Connecticut (1940). In this case, three Jehovah’s Witnesses were convicted under a statute that forbade the unlicensed soliciting of funds on the representation that they were for religious or charitable purposes. While soliciting in a strongly Catholic neighborhood, the Jehovah’s Witnesses had played a phonographic recording that insulted the Christian religion and the Catholic Church in particular, leading to an altercation and a charge of breach of the peace against the Jehovah’s Witnesses. Through its ruling, the Court emphasized how religious beliefs cannot

CASE IN BRIEF Van Orden v. Perry (2005)

ISSUE Does the Establish- ment Clause allow a monument inscribed with the Ten Command- ments to be displayed on the state capitol grounds?

RULING Yes. The Establish- ment Clause is not violated simply because a monument has a religious message or promotes a message consistent with religious doctrine.

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Free Exercise Clause clause in the First Amendment that declares, “Congress shall make no law . . . prohibiting the free exercise [of religion]”

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Chapter 5 The First Amendment: Basic Freedoms 129

be regulated by the government and helped delineate how beliefs and acts differ with regard to First Amendment protection:

Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts—freedom to believe and freedom to act. The first is an absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection.

The Free Exercise Clause has taken some interesting paths as various issues have been presented to the Court. In West Virginia State Board of Education v. Barnette (1943), the Supreme Court held that states could not require children to pledge allegiance to the United States each school day. In his opinion, Justice Robert Jack- son said that everyone has a First Amendment right to not pledge allegiance because of the “freedom of thought and belief that is central to all First Amendment freedoms.”

In Lynch v. Donnelly (1984), a government-subsidized Christmas display of a crèche was found not an advancement or endorsement of religion, and therefore, permitted. In Wooley v. Maynard (1977), the Supreme Court held that a state could not punish someone for blacking out the part of his car’s license plate that set forth the state’s motto, “Live Free or Die,” holding that the government is not permitted to compel citizens to advertise government or religious beliefs or to comply with advertising or asserting them.

However, in balancing this assertion, the Court held in Wooley that printing “In God We Trust” on money did not violate the Constitution because money is passed among people, and therefore, does not indicate that a particular individual agrees with a religious or governmental belief, like a motto on a license plate might. Also money is transported in such a manner as to not be a public display. These decisions are being made in an effort to strike a fine balance that sometimes seems out of sync with either social norms or other law.

In Employment Division v. Smith (1990), the Supreme Court stated, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” In this case, two Native American drug counselors in Oregon lost their jobs because they used peyote, a hallucinogenic drug, as part of a religious ritual in the Native Ameri- can church. Some states allowed such a practice, but Oregon did not. The Court decreed, “Because respondents’ ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from use of the drug.”

Additional examples of how this ruling has affected other religious groups include the performance of autopsies despite families’ religious beliefs and the!requirement that members of the Amish community put orange reflectors on the backs of their buggies. When Congress passed and President Bill Clinton signed the!Religious Freedom Restoration Act (RFRA) in 1993, however, government inter- ference with religious practices was made more difficult.

CASE IN BRIEF Cantwell v. Connecticut (1940)

ISSUE Does the Free Exercise Clause protect an individual from state criminal prosecution when the person played a record that is offensive to some because of its religious viewpoint?

RULING Yes. The Free Exer- cise Clause, being fundamental to the concept of liberty, protects a person’s ability to profess reli- gious beliefs, even if others find such statements offensive.

CASE IN BRIEF Employment Division v. Smith (1990)

ISSUE Is the Free Exercise Clause violated by denying unemployment compensation to a person fired for using a sub- stance (peyote) that is banned by state law despite the fact it was used for a religious purpose?

RULING No. Personal religious beliefs do not excuse a person from complying with an otherwise valid law.

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130 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

It is often difficult to tell when a law attempts to regulate religious belief or conduct, but the distinction is important because it changes how the law is scruti- nized. Obviously, belief regulation is not allowed, but regulation of conduct can hap- pen. If the conduct is regulated because of specific religious attachments, that regulation will receive a high level of judicial scrutiny. Such was the case in Church of Lukumi Babalu Aye v. Hialeah (1993). In Lukumi, a church whose congregants prac- ticed the Santeria religion, which employs animal sacrifice as one of its principal forms of devotion, had leased land in Hialeah, Florida, and announced plans to establish a house of worship and other facilities there. Many local residents became distressed and angry at the prospect of a Santeria church in their community, and the Hialeah city council was pressured to hold an emergency public session to address the matter. The result of the emergency session was the adoption of Resolu- tion 87-66, which noted the “concern” expressed by residents of the city “that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and declared that “[t]he City reiterates its commit- ment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety.” At subsequent meetings, the city council approved several other emergency ordinances, including one that incorporated Florida’s animal cruelty laws and subjected to criminal punishment “[w]hoever . . . unnecessarily or cruelly . . . kills any animal”; and one that defined “sacrifice” as “to unnecessarily kill . . . an animal in a . . . ritual . . . not for the pri- mary purpose of food consumption,” and prohibited the “possess[ion], sacrifice, or slaughter” of an animal if it was killed in “any type of ritual” and there is an intent to use it for food.

The Church petitioners filed suit alleging violation of their rights under the Free Exercise Clause of the First Amendment. Although acknowledging that the city ordinances were not religiously neutral, the District Court ruled in favor of Hialeah, concluding, among other things, that compelling governmental interests in preventing public health risks and cruelty to animals fully justified the absolute prohibition on ritual sacrifice accomplished by the ordinances, and that an excep- tion to that prohibition for religious conduct would unduly interfere with fulfill- ment of the governmental interest. The Court of Appeals affirmed. However, the Supreme Court granted certiorari and, although acknowledging that such activity may offend some and noting that sport hunting was not regulated by the city ordi- nance, reversed the lower courts’ rulings and struck down the law. The Court stated that because the law was drafted pursuant to the religious group announc- ing their plan, its intent was to restrict the religious freedom of that specific group and, as such, was unconstitutional. Writing the majority opinion, Justice Anthony Kennedy declared: “Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the Nation’s essential commitment to religious freedom. The challenged laws had an impermissible object; and in all events, the principle of general applicability was violated because the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by reli- gious beliefs.”

Table 5.1 summarizes conduct not protected by the Freedom of Religion Clause. Courts have had to balance the requirements of the Free Exercise Clause against

society’s legal, social, and religious needs. For example, in St. Paul, Minnesota, after

CASE IN BRIEF Church of Lukumi Babalu Aye v. Hialeah (1993)

ISSUE Does a city ordinance that prohibits the ritual sacrific- ing of animals violate the Free Exercise Clause?

RULING Yes. Under a strict scrutiny analysis the Court determined that the ordinance infringed religious conduct without being justified by a compelling interest and not nar- rowly tailored to fit that interest. The case record shows that the reason for the ordinance was to “suppress elements of the Santeria worship service.”

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Chapter 5 The First Amendment: Basic Freedoms 131

a string of bank robberies, thefts, and crimes at a mall, the city implemented an ordinance prohibiting people from hiding their identity “by means of a robe, mask or other disguise.” Police used the ordinance as a prevention tactic. However, when officers ticketed a Muslim woman for wearing a veil as part of her religious prac- tice, the result was anger among the local Muslim community. The court ruled the ordinance unconstitutional.

Another area of controversy is court-ordered treatment that includes religion. In a series of cases, the Court has continued to deny certiorari, thus letting stand the previous rulings, in which judicially mandated involvement in Alcoholics Anony- mous (AA) or Narcotics Anonymous (NA) was determined to violate the Establish- ment Clause because of the religious components of these 12-step programs that reference God or a higher power. These cases include Griffin v. Coughlin (1997), which involved privileges being denied to atheist or agnostic prisoners who refused to participate in AA faith-based treatment, and Warner v. Orange County Dept. of Probation (1993), in which the defendant objected to the religious content of mandated AA participation.

Interpretations What, then, exactly did the authors of the First Amendment Freedom of Religion Clause intend? Did they mean, as Justice Hugo Black argued, that the statement “Congress shall make no law” meant just that, that Congress (and through the Four- teenth Amendment, the states) could not in any way, shape or form do anything that might breech the “wall of separation?” Did they mean that although government could not prefer one sect over another, it might provide aid to all religions equally?

Table 5.1 Conduct Not Protected by the Freedom of Religion Clause*

Conduct not protected Case

Multiple marriages in violation of state polygamy laws (crime of bigamy) Reynolds v. United States, U.S. Supreme Court (1879) 98 U.S. 145, 25 L.Ed. 244

Handling poisonous snakes in a public place in violation of state law as part of a religious ceremony

State v. Massey, North Carolina Supreme Court (1949) 229 N.C. 734, 51 S.E.2d 179

Requirements at airports, state fairs, and so on that religious, political, and other groups distribute or sell literature only from booths provided for that purpose

Heffron v. International Society for Krishna Consciousness, U.S. Supreme Court (1981) 452 U.S. 640, 101 S.Ct. 2559

Violation of child labor laws Prince v. Massachusetts, U.S. Supreme Court (1944) 321 U.S. 158, 64 S.Ct. 438

Air Force officer continued to wear his yarmulke (Jewish skullcap) after repeated orders to remove it. He was dropped from service. Affirmed for Air Force.

Goldman v. Weinberger, U.S. Supreme Court (1986) 475 U.S. 503, 106 S.Ct. 1310

Members of the Old Order Amish, who do not use motor vehicles but travel in!horse-drawn buggies, would not obey a state law requiring reflecting triangles on the rear of all slow-moving vehicles. Held not exempted from complying with this highway safety law.

Minnesota v. Hershberger, U.S. Supreme Court (1990) 495 U.S. 901, 110 S.Ct. 1918, vacating 444 N.W.2d 282

*The Freedom of Religion Clause could not be used as a defense for destroying government property [United States v. Allen ] (760 F.2d 447 [1985]); extortion and blackmail [United States v. Starks] (515 F.2d 112 [1975]); racketeering [United States v. Dickens] (695 F.2d 765, review denied 460 U.S. 1092 [1983]); refusal to testify before a grand jury [Smilow v. United States] (465 F.2d 802; see 409 U.S. 944 [1972]); refusal to be photographed after being arrested (United States v. Slabaugh (848 F.2d 113 [8th Cir. 1988]); putting a logging road through an area sacred to Native American tribes [Lyng v. Northwest Indian Cemetery Protective Association] (108 S.Ct. 1319 1988]); refusal to have children vaccinated [Jacobson v. Massachusetts ] (25 S.Ct. 358 [1905]); and refusal to participate in the Social Security system [United States v. Lee ] (102 S.Ct. 1051 [1982]), although in 1988 Congress enacted 26 U.S.C. § 3127, which permits members of certain religious groups, such as the Amish people, to elect to opt out of the employee portion of Social Security taxes.

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132 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Some scholars believe the historic record is confused and contradictory. At the core of the problem is one’s view of the Constitution and its role in U.S. govern- ment. Advocates of what they assert is the original intent believe the framers’ vision is as good today as it was 200 years ago. They believe any deviation from that view abandons the ideals that have made this country free and great, that judges should go strictly by what the framers intended and that any revisions must be made through the amendment process.

On the other side, defenders of judicial activism (allowing judges to interpret the Constitution and its amendments) say that amendments are not necessary. Judges should be allowed to interpret the Constitution and its amendments, and if law is changed, that is what the common law system permits. Such defenders believe that for the document to remain true to the framers’ intent, the framers’ spirit must reach a balance with modern society realities. They suggest the framers set out a series of ideals expressed through powers and limitations and deliberately left details vague so those who came after could apply the ideals to their world.

Freedom of Speech Freedom of speech is the liberty to speak openly without fear of government restraint. Implicit in this freedom is the right to hear others’ ideas. Speech includes not only spoken words but also nonverbal, expressive conduct that conveys the “speaker’s” beliefs, feelings, or intentions. Freedom of speech is closely linked to freedom of the press because this freedom includes both the right to speak and the right to be heard. In the United States, both freedoms, commonly called freedom of expression, are protected by the First Amendment.

A generation of Americans witnessed firsthand the influence free speech had during the Vietnam War, the civil rights movement, and elections across the coun- try. The downside may be that a generation of Americans takes such freedom for granted because of its continual existence. Over the decades, court opinions in free speech cases have come from numerous perspectives, including

! self-governance and the essential role that free speech plays in democratic decision making;

! freedom of speech is the only way to prove things false or true, as stated by Justice Oliver Wendell Holmes, Jr., in his dissent in Abrams v. United States (1919): “. . . the best test of truth is the power of the thought to get itself accepted in the competition of the market”;

! free speech promotes autonomy and self-development, for example through art and literature;

! the simple distrust of the government to regulate speech.

Being able to speak out, particularly against the government, remains a corner- stone of freedom in the United States. What free speech is there if not in opposition to those in power? No greater right do we have in this country than that of speaking our minds and being able to hear from others. However, even this right is not abso- lute, and there is some speech that falls outside the protections of the First Amendment.

Freedom of speech and the constitutional limits to it have been defined in prac- tice by Supreme Court rulings. The First Amendment right to free speech was the

judicial activism allowing judges to interpret the Constitution and its amendments

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Chapter 5 The First Amendment: Basic Freedoms 133

first guarantee to be made applicable to the states through incorporation in Gitlow v. New York (1925).

“The U.S. Supreme Court has consistently held that speech may not be prohib- ited simply because some may find it offensive. Virtually every time someone is arrested for this, assuming there is no other criminal behavior, the case is either dismissed before trial or the person is convicted at trial and wins on appeal” (Mayes, 2010).

Although it’s unlawful to shout “fire” in a crowded theater, some messages that may incite panic are actually protected speech. Fogel v. Collins (2008) involved a Grass Valley (California) police sergeant who received an anonymous phone call about a parked Volkswagen van that had a message that frightened the caller painted on the back window. The message, printed in block letters said, “I am a *@!%#$ suicide bomber terrorist! Pull me over! Please, I dare ya!” A second message read, “Allah praise the patriot act. . . . *@%#$ Jihad on the First Amendment! P.S. W.O.M.D. on board!” The rest of the van was decorated with slogans and painting, including a U.S. flag, which were not threatening. The investigating sergeant, who determined that the van belonged to 22-year-old Matthew Fogel, took photos of the van but believed the messages to be merely political satire. He called his captain who believed, in contrast, that a criminal act had been committed and ordered the sergeant to treat the matter as a bomb threat.

Although no bomb was found, the officers arrested Fogel and had the van towed. Fogel was charged with “willfully threatening to commit crime” and “use of offensive words in a public place which are inherently likely to provoke an immediate violent reaction.” The prosecutor declined to prosecute, and Fogel was released the next day. Fogel then filed a civil lawsuit against the Grass Valley Police Department, the sergeant, the captain, and other officers, alleging they violated his rights under the First, Fourth, and Fourteenth Amendments, as well as for false arrest and assault and battery. The defendants, the police department and the city filed a motion for summary judgment. The district court found that the police offi- cers could have believed the First Amendment did not protect the message and dismissed the case. Fogel appealed to the Ninth Circuit Court, which found that his messages taken in context were political rhetoric, not directed at anyone in particu- lar, and not a true threat; as such, his “speech” was protected. Political rhetoric criti- cizing the government is exactly what the First Amendment was intended to protect. Nonetheless, the Ninth Circuit affirmed the district court’s granting of summary judgment in favor of the officers based on qualified immunity, reasoning that at the time of the incident, not all police officers would have believed Fogel’s speech was protected by the First Amendment.

Given the same set of circumstances, some officers might treat such messages as a real threat whereas others might see it as a political message. A true threat is not protected speech; political hyperbole is. This distinction is what makes First Amendment cases difficult; they are fact dependent. Facts provide context: “In a similar situation, it is prudent for officers to consider the totality of the circumstances and the contextual display of the message. Err on the side of being safe if presented with circumstances regarding a suspect’s speech that appear to be a terrorist threat. Follow your agency’s protocol for dealing with bomb or terrorist threats” (Scarry, 2008a). Although this ruling applies only to officers in the Ninth Circuit, Scarry cautions that the Fogel case now “set[s]

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134 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

precedence and put[s] officers on notice that such speech is protected under the First Amendment.”

In United States v. Stevens (2010), the Supreme Court ruled that federal statute 18 U.S.C. § 48, which criminalized the commercial production, sale, or possession of depictions of cruelty to animals, was an unconstitutional abridgment of First Amendment free speech rights. In 2004, Robert Stevens was indicted under 18!U.S.C. § 48 for creating and selling three videotapes, two of which depicted pit bulls engaged in dog fighting. The third tape showed a pit bull attacking a domestic pig as part of the dog’s training to catch and kill wild hogs. Although Stevens’s criminal prosecution concerned only the three tapes, he had made $20,000 in 2.5 years from selling nearly 700 videos. And although Stevens was not accused of engaging in animal cruelty himself, nor of shooting the footage from which the videos were created, the footage in each video was accompanied by introductions, narration, and commentary by Stevens, as well as literature written by Stevens.

Stevens filed a motion to dismiss the indictment, arguing that the federal statute abridged his right to freedom of speech under the First Amendment. The district court denied his motion in November 2004, and in January 2005, Stevens was con- victed by a jury. Stevens appealed, and the Third Circuit vacated his conviction, holding that 18 U.S.C. § 48 did, in fact, violate the First Amendment. The court stated that dog fighting, or the use of dogs to hunt hogs, may be made illegal to protect animals from cruelty. However the law in question that prohibited the depiction of animal cruelty violated the First Amendment by creating a new cate- gory of speech not protected by the free speech provision of the amendment. Thus, because Section 48 is substantially overbroad, it is invalid under the First Amend- ment, affirming the Third District Court decision.

In another 2010 freedom of speech case, Holder v. Humanitarian Law Project, the Supreme Court upheld a portion of the USA Patriot Act that makes it a crime to provide “material support” to any group that has been designated by the Attorney General as a “foreign terrorist organization.” This case pitted free speech against national security, upholding previous rulings that the government can ban orga- nizations from providing material support to groups designated as terrorist groups, even if the support is in the form of training materials to peacefully resolve conflict.

In this case, two groups designated as terrorist organizations by the Attorney General, sought to provide “material support” to the Partiya Karkeran Kurdistan (PKK) and the Liberation Tigers of Tami Eelam (LTTE), which aim to establish inde- pendent states for Kurds in Turkey and Tamils in Sri Lanka, respectively. At issue was whether certain terms found within statute 18 U.S.C. 2339B(a)(1), which pro- hibits providing certain types of aid to known terrorist organizations, unconstitu- tionally violate the First and Fifth Amendments by restricting political speech and including overly vague provisions. The Humanitarian Law Project argued a strict scrutiny standard should be applied to the statute because it violates the Fifth Amendment because of vagueness and infringes on First Amendment rights to expression of political speech and freedom of association (Vernon and Wu, 2010). Strict scrutiny is the legal standard applied to due-process analysis of fundamen- tal rights, such as freedom of speech, in which the state must establish it has a compelling government interest that justifies and necessitates the law in question

strict scrutiny the legal standard applied to due-process analysis of fundamental rights, such as freedom of speech, in which the state must establish it has a compelling government interest that justifies and necessitates the law in question and that the law is narrowly tailored to fit that interest; a high standard and difficult to defend

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Chapter 5 The First Amendment: Basic Freedoms 135

and that the law is narrowly tailored to fit that interest. As such, strict scrutiny is a high standard and difficult to defend. However, the government maintained that the statute was constitutional, regulating conduct rather than speech, so the statute need only pass intermediate scrutiny.

Although multiple lower court rulings had sided in favor of the Humanitarian Law Project by finding the statute unconstitutionally vague, on June 21, 2010, the Supreme Court held, by a 6–3 vote, that the statute’s prohibitions on “expert advice,” “training,” “service,” and “personnel” were not vague, nor did they vio- late speech or associational rights as applied to the Humanitarian Law Project’s intended activities. Chief Justice John Roberts, writing for the majority, reversed the Court of Appeals on the vagueness claims and held that although strict scru- tiny apparently applied, even support in the form of intangibles such as human- rights training freed up resources that could then be reallocated to the group’s terrorist activities, a national security concern sufficient to trump the First Amendment interests of the plaintiffs. Thus, the Court affirmed in part, reversed in part, and remanded. Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor dissented.

The ruling was considered a victory for the Washington Legal Foundation (WLF), which filed a brief urging the Court to uphold the law. The Court agreed with WLF that the statute is not impermissibly vague and does not violate the First Amendment rights of individuals who wish to support humanitarian work con- ducted by terrorist groups. The Court held that the First Amendment does not prevent Congress from barring actions taken to aid terrorist groups simply because the actions may have an expressive component, when it does so based on a reason- able conclusion that the actions are likely to promote the groups’ terrorist goals.

The Supreme Court’s ruling on this issue will help determine how domestic citi- zens and organizations interact, if at all, with designated terrorist organizations in the future, as well as whether courts will interpret similar statutory provisions as content-based regulations of speech, or as regulations of conduct that only inciden- tally affect speech.

Symbolic Expression Black’s Law Dictionary (2006) defines symbolic speech as “conduct that expresses opinions or thoughts, such as a hunger strike or the wearing of a black armband.” The nature and context of the “speech” is important to determining what symbolic expression will be given the protection of the First Amendment; that is, was the conduct “. . . sufficiently imbued with elements of communication . . . ”? (Spence v. State of Washington, 1974). It is easier for the government to regulate or punish symbolic speech, not because of the speech itself but rather because the conduct expressing the message is proscribable. Regulation is aimed at the conduct, not the message, which is much easier to restrict.

Legal experts note, “Even though giving a police officer the finger may be a rude and ill-advised gesture, it is not against the law” (Mayes, 2010). In Clackamas, Oregon, Robert Ekas filed a federal lawsuit to defend what he says is his First Amendment right to express himself by flipping off police officers. Ekas stated, “I did it because I have the right to do it. We all have that right, and we all need to test it. Otherwise we’ll lose it” (Mayes, 2010).

symbolic speech a form of speech that expresses an idea or emotion without use of words, such as burning one’s draft card, bra or flag, or picketing

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136 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Because even how one chooses to dress and groom is expression, the length of an officer’s hair has been litigated by the Supreme Court in Kelley v. Johnson (1976). Justice Rehnquist held that in an organizational structure that necessitated uniformity, a requirement on hair length did not violate the officer’s constitutional rights because it was not arbitrary and had a “rational connection between the!reg- ulation . . . and the promotion of safety of persons and property.”

Symbolic speech was the focus in United States v. O’Brien (1968), in which the Court considered what actions would be considered constitutionally protected. The!case involved draft-card burning and was used by the Court to develop a four- part test when it supported the constitutionality of a law prohibiting such burning. Chief Justice Burger stated,

We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. . . . A government regulation is sufficiently justified if it is within the constitutional power of the government; if it furthers any important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

In this case, the Court held that the selective service requirement regarding draft cards met these requirements, and the conviction against O’Brien was upheld.

Lieutenant Johnston was in charge of the vice unit. Recently, one of his undercover officers acting as a prostitute was solicited by the police chief’s brother. The solicitor was arrested, but the charges were later dropped. A local television station made the arrest public. The chief’s brother is also a mem- ber of the local civilian review board, which inves- tigates allegations of police misconduct.

The lieutenant was upset by the charges being dropped because it is his belief that members of the board should be of the highest moral character and integrity. He also lives in the city and has an inter- est as a citizen regarding city government. Because of this he attended the next public meeting of the civilian review board, meetings he had attended numerous times in the past and at which he was well known by the regular attendees.

The topic of moral integrity came up during open forum. The lieutenant added to this discussion a rather forceful opinion regarding the chief’s brother and his arrest. After the meeting, the lieutenant was

approached by the brother and told, “I know who you are, and there will be payback.”

The next week the lieutenant was transferred to a much less-desirable position, with no reason given for the transfer. The lieutenant filed suit claiming that he was transferred because of his comments at the meeting, and that this violated his right to free speech.

! Was the lieutenant punished for speaking out at the meeting?

! Had the lieutenant not been employed by the city, would he have been punished for the same speech?

! Would your opinion change if the lieutenant were in uniform and made his statements as such, rather than as a city resident? Should it matter?

Constitutional Law in ACTION

CASE IN BRIEF United States v. O’Brien (1968)

ISSUE Is it a violation of the Freedom of Speech to punish a person for burning their draft card?

RULING No. The Court ruled that punishing this behavior was constitutional because it was aimed not at the message but, instead, at the conduct used to convey that message. The government had a compelling interest to protect in preserving the draft and punishing a person for destroying their draft card helped advance the government’s interest.

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Chapter 5 The First Amendment: Basic Freedoms 137

Many symbolic acts, although often highly controversial, fall under First Amend- ment protection, including flag desecration, cross burning, nude dancing, and the display of yard signs.

Flag Burning Two Supreme Court cases involving symbolic expression dem- onstrate the centrality of such issues and the danger in assuming easy answers to First Amendment dilemmas. In 1969, in Street v. New York, after an assassination attempt on a civil rights leader, Sidney Street burned a flag in protest and was arrested for “malicious mischief,” a New York law that made acting out verbally or symbolically a crime. The Warren Court did not act on the flag-burning issue in this case, holding only that his words were protected speech, but suggested that the burning of the flag could be prosecutable, even though it, too, was an act of protest.

The landmark case in which flag burning as symbolic speech was examined is Texas v. Johnson (1989). Gregory Johnson, a demonstrator at the 1984 Republican National Convention in Dallas, unfurled a U.S. flag and set it on fire. While the flag burned, the protesters chanted, “America, the red, white and blue, we spit on you.” Johnson was convicted of violating a Texas law prohibiting “the desecration of venerated objects,” including the national flag. The Supreme Court ruled, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Justice William Brennan, Jr., contended that noth- ing in the courts’ precedents suggests that the state may foster its own view of the flag by prohibiting expressive conduct relative to it. Justice Kennedy concurred, stating, “The ruling [was simply] a pure command of the Constitution. It is poi- gnant and fundamental that the flag perplexes those who hold it in contempt.” Four justices dissented, including Chief Justice Rehnquist, who wrote an emotional opinion stressing that millions of Americans have “a mystical reverence” for the flag. Public reaction to the ruling was strong and highly negative.

Members of Congress and political candidates continue to demand constitu- tional action to overrule the Court; some propose an amendment to the First Amendment to deny flag burning as free speech. In 1989, Congress passed a flag protection act that was short lived; on June 11, 1990, the Supreme Court declared the act unconstitutional as an unwarranted restriction on symbolic expression. This issue remains volatile, and efforts to enact flag-desecration amendments have continued.

Cross Burning and Bias or Hate Crimes In 1989, St. Paul, Minnesota, like a number of other cities, passed an ordinance against various forms of expression based on bias or hatred to send a message that crimes against people because of their race or religion would not be tolerated. Several months later, in June 1990, a teenager was arrested under the ordinance and charged with burning a cross at the home of the only black family in a St. Paul neighborhood.

A county district judge initially held the ordinance unconstitutional as a viola- tion of the First Amendment. The Minnesota Supreme Court, however, overturned this decision and upheld the ordinance, maintaining that it could be narrowly interpreted to ban acts of bigotry that arouse anger in others and still protect free speech. The state court said, “Burning a cross in the yard of an African American family’s home is deplorable conduct that the City of St. Paul may without question

CASE IN BRIEF Texas v. Johnson (1989)

ISSUE Is burning the U.S. flag a form of protected speech?

RULING Yes. The State of Texas used the law to restrict the freedom of speech (expression) by punishing a person’s message. The law did not meet “most exacting scrutiny” because the interest asserted was not compelling.

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138 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

prohibit. The burning of a cross is itself an unmistakable symbol of violence and hatred based on virulent notions of racial supremacy.”

The case was subsequently appealed to the U.S. Supreme Court, which held that the ordinance was unconstitutional (R.A.V. v. City of St. Paul, 1992). Justice Antonin Scalia delivered the Court’s acceptance of the Minnesota court’s narrowing of the ordinance to apply only to so-called fighting words, which Scalia termed constitu- tionally proscribable. Even so, the Court found the ordinance to be unconstitutional on its face because “it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.” Cross burning and other reprehensible acts, Scalia argued, could be prosecuted under a variety of existing statutes. These means were sufficient for St. Paul to prevent such behavior “without adding the First Amendment to the fire.”

Balancing what the Constitution means and what the public wants it to mean at the time is often difficult to effectively accomplish. What the Constitution means to one person is not always what it means to another person. This difference of opinion is why lawsuits occur and why the system is set up to decide which per- spective will prevail in a particular case. As the times, politics, and values of the United States change, so do legal arguments, holdings and precedents. In Virginia v. Black (2003), the Supreme Court held that a law banning cross burning as a hate crime itself is unconstitutional because the law presumes hate is the purpose. With- out more evidence to prove a hate crime, cross burning is deemed a protected form of speech.

Nude Dancing In 1991, the Supreme Court took up the question of nude danc- ing as a form of symbolic speech. The case involved nude dancers in the Kitty Cat Lounge in South Bend, Indiana, who were arrested for violating the state’s public indecency law. A federal appeals court in Chicago had ruled the dancing was inher- ently expressive, communicating an emotional message of eroticism and sensuality and that the ban, therefore, violated the First Amendment. Five Supreme Court Justices voted to reverse but were unable to isolate a single reason for the reversal. The essence of the ruling in Barnes v. Glen Theatre (1991) was that requiring dancers to wear at least pasties and a g-string did not violate their freedom of speech. It thus gave local prosecutors a new option to restrict totally nude entertainment in their communities.

Civil liberty lawyers, who had feared that the Court might apply a sweeping analysis that could challenge constitutional protection for many forms of artistic expression, were relieved by the Court’s relatively narrow approach. Chief Justice Rehnquist for the majority made clear that nude dancing enjoyed some marginal First Amendment protection. However, because of the state’s interest in promot- ing order and morality, nude dancing could be prohibited, just as could other forms of public nudity. He observed that the statute’s pasties and g-string require- ment was a modest imposition and the bare minimum necessary to achieve the state’s purpose.

Yard Signs Another area of expression some city ordinances seek to limit is use of yard signs. Many cities prohibit such signs altogether. Other cities have restric- tions on the size or number of signs that can be placed in a person’s yard or window.

Such restrictions were tested in City of Ladue v. Gilleo (1994), a case involving Margaret Gilleo, a resident of an exclusive suburb of St. Louis, Missouri. Gilleo put

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Chapter 5 The First Amendment: Basic Freedoms 139

up an antiwar sign in the second-floor window of her home that read “Peace in the Gulf.” Ladue’s city ordinance prohibits all signs within its boundaries except for real estate signs, road and safety hazards, inspection signs, public transportation markers, and business signs in commercially zoned areas. According to officials, the ordinance is intended to protect the community’s aesthetics. Lower courts ruled for Gilleo, saying Ladue was wrong in favoring some signs over others, for example, real estate signs over political protest signs.

The Supreme Court agreed. In June 1994, a unanimous Court ruled that cities may not prohibit residents from putting political or personal signs in their yards. Justice John Paul Stevens, writing for the Court, declared, “A special respect for individual liberty in the home has long been part of our culture and our law. That principle has special resonance when the government seeks to constrain a person’s ability to speak there.”

The fact that some of these cases made their way to any court, especially the Supreme Court, makes one wonder why? Often, differing political perspectives are involved, or an ongoing issue between a city, for example, and an individual seen as a “troublemaker.” Sometimes, government officials adhere to a strict interpreta- tion policy and do not anticipate the implications of their actions. Sometimes, gov- ernment believes the issue is worthy of the time and cost to pursue. Sometimes, the results are not anticipated, with law being promulgated that was not the govern- ment’s intention. These outcomes illustrate why any government employee needs a working knowledge of constitutional law.

Restrictions on Freedom of Speech An important understanding of the Constitution is that rights are not absolute, and this circumstance is the case with freedom of speech. In balancing personal interests and the public good, reasonable limits—that is, when government has a legitimate interest—are placed on where and when things can be said and, occasionally, on what can be said.

Whether symbolic or “pure” speech, the level of protection given to such speech—in other words, the level of government restriction dictating whether the speech is permissible or whether it is punishable—depends on what is being regu- lated. If the regulation or punishment is aimed at the actual content of the message, then strict scrutiny is the standard applied. If, on the other hand, the regulation is “content neutral,” meaning it restricts not the message or the viewpoint, per se, but rather how, when, or where the message can be delivered, then the courts will apply a midlevel analysis or scrutiny. This test examines whether: (1) the restriction is justified without reference to the content of the regulated speech, (2) the law is narrowly tailored to serve a significant government interest, and (3) open channels for the communication of the information exist (Clark v. Community for Creative Non- Violence, 1984). In some specific areas, the Court has developed a separate test, such as in the area of speech that advocates unlawful conduct.

Restrictions on speech have occurred most often in time of war and national emergency. The Alien and Sedition Acts of 1798 were the first efforts by Congress to specifically limit actual speech. These acts were passed when war with France threatened and the nation’s security was considered to be directly affected. They empowered the President to expel “dangerous” aliens and provided for indicting

MYTH As a free citizen, you may say whatever, whenever, and wherever you want without fear of punishment or restriction from the government.

REALITY Free speech, although a funda- mental right, is not absolute. The government may restrict or punish certain speech.

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140 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

those who should “unlawfully combine or conspire” against the administration by writing or speaking “with intent to defame” the government, the Congress, or the President. Although these laws were never tested in court and expired after several years, what the outcomes might have been if tested remain a source of scholarly legal debate.

The first specific test of how far government can limit speech occurred with the Espionage Act (1917) passed by Congress during World War I. This act made illegal interference with recruiting or drafting soldiers or any act that adversely affected military morale. The terms used were obviously broad in interpretation. In Schenck v. United States (1919), the Court upheld the conviction of a socialist indicted under the Espionage Act on the grounds that freedom of speech is not absolute. When Charles Schenck was charged with espionage for distributing flyers that encour- aged young men to resist the draft, his defense asserted such an act of expression was protected speech. Justice Holmes, however, disagreed, stating, “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured.” This case is an example of when the good of the greater whole outweighs the rights of the individual. Delivering the Court’s unanimous opinion, Justice Holmes went on to say,

The character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . 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.

The Court began to apply this “clear and present danger” test to subsequent cases involving freedom of speech. Another test of what speech is protected was Gitlow v. New York (1925), in which the Court held that “a state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, and incite to crime, or disturb- ing the public peace.” Benjamin Gitlow had been indicted under a New York State law that prohibited the advocacy of the overthrow of the government by force or violence. In 1940, Congress enacted the Smith Act, which declared advocating the overthrow of the government by force or violence to be unlawful. Being able to speak against the government has always been recognized as an important right of the people. However, as continuously noted, no right is absolute.

The Court continues to address what is and is not protected speech. In another speech case, leaders of the Communist Party were convicted under

the Smith Act and appealed on the grounds that the Act was unconstitutional. The Court upheld the Act’s constitutionality in deciding Dennis v. United States (1951) but not on the grounds of the “clear and present danger” doctrine. Instead, the majority adopted a standard put forward by Judge Learned Hand: “Whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” This standard has sometimes been called the “clear and probable danger” test, the interpretation being that when the government can show that a serious “evil” is at hand, the less probable the “evil” needs to be. In other words, the more serious the speech-advocated evil is, the less demanding the courts will be on the possible occurrence to limit the speech.

“clear and present danger” test the test of whether words are so potentially dangerous as to not be protected by the First Amendment

“clear and probable danger” test the test of whether the gravity of the evil discounted by its improbability justifies an invasion of free speech necessary to avoid any danger

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Chapter 5 The First Amendment: Basic Freedoms 141

In Brandenburg v. Ohio (1969), the Court adopted a new test—the “imminent lawless action” test. Although government has a justifiable interest in preventing lawless conduct, the mere discussion of such conduct would not necessarily cause imminent lawless action. In Brandenburg, the Court created a three-part test that the government must meet if certain communication is not to be protected by the First Amendment: (1) the speaker subjectively intended incitement, (2) in context, the words used were likely to produce imminent, lawless action, and (3) the words used by the speaker objectively encouraged and urged incitement.

This approach, modified by other cases, has been termed the balancing test, a position taken by the appellate courts to balance society’s need for law and order and for effective law enforcement against the privacy rights of individuals. Indeed, a crucial matter with respect to interpreting the Constitution and understanding the conflicting rights and obligations contained within is the con- cept of substantive due process—the tension between legitimate state interests (e.g., promoting the public health, welfare, and safety) versus legitimate individual liberty interests (e.g., right to privacy)—and how these interests must be balanced, a theme consistently addressed throughout this text.

Because courts are political institutions and the U.S. legal sys- tem is adversarial by design, every case requires a choice between competing social interests. Allowed discretion, judges weigh con- flicting social claims, determine each party’s rights and obligations and make choices to distribute benefits and burdens based on the judges’ values and attitudes: “This interest-balancing perspective readily translates into judicial self- restraint. When the constitutionality of a law is called into question, judges in a democratic society are duty-bound to respect the balance among interests struck by the statute for the logical reason that, having been passed by a majority of legislators, it presumably satisfies more rather than fewer interests” (Ducat, 2010, pp. 81–82).

When applying the balancing approach to First Amendment free speech cases, the Supreme Court strives to strike a balance between the value of liberty of expres- sion and the demands of ordering a free society. In Gertz v. Robert Welch, Inc. (1974), the Court stated, “Under the First Amendment there is no such thing as a false idea!. . . however pernicious an opinion may seem, we depend for its correction not on the conscience . . . but on the competition of ideas.”

The preferred freedoms approach, a position originally set forth by Justice Harlan F. Stone, has been important in constitutional law since World War II. This approach stresses that civil liberties have a preferred position among other consti- tutional values because they are requisite to a democracy. Under this concept, the burden lies largely with the government to prove that clear and present danger exists when a freedom is exercised. This concept tends to change the balance sought in judicial decisions, as shown in Figure 5.2.

Some Supreme Court Justices, notably Black and William O. Douglas, have argued that free speech is an absolute right, by definition, and not subject to balanc- ing. Justice Black, in Konigsberg v. State Bar of California (1961), stated, “I do not subscribe to that doctrine [the balancing approach] for I believe that the First Amendment’s unequivocal command that there shall be no abridgement of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in the field.”

“imminent lawless action” test a three-part test that the government must meet if certain communication is not to be protected by the First Amendment: (1) the speaker subjectively intended incitement, (2) in context, the words used were likely to produce imminent, lawless action, and (3) the words used by the speaker objectively encouraged and urged incitement; replaced the “clear and present danger” test

balancing test a position taken by the appellate courts to balance the needs of society for law and order and for effective law enforcement against the privacy rights of individuals

preferred freedoms approach a position that stresses that civil liberties are to take precedence over other constitutional values because they are requisite to a democracy

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142 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

In opposition to this view and in support of the balancing approach, Justice Harlan, in the same case, wrote, “We reject the view that freedom of speech and association . . . as protected by the First and Fourteenth Amendments, are ‘abso- lutes,’ not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.”

The difficulty of the absolute approach to free speech was shown in 1978, when a group of U.S. Nazis sought to hold a rally in Skokie, Illinois. The municipality denied them a permit on the grounds that the Nazi rally would incite hostility in the largely Jewish population, which included many survivors of Nazi concentra- tion camps. Lawyers from the ACLU represented the Nazis, arguing that Skokie laws limiting public demonstrations were unconstitutional. A U.S. Court of Appeals agreed with the ACLU, and the Supreme Court granted certiorari via an application to stay the injunction and ruled, per curium, that the state court must give strict procedural safeguards to a denial of First Amendment rights, which includes immediate appellate review (National Socialist Party v. Skokie, 1977). Although many Americans were outraged at the defense of those they considered enemies of free speech, this case illustrated constitutional freedom in action.

The importance of freedom of speech was highlighted during the Free Speech Movement of student protesters in the 1960s and 1970s. In the mid-1960s, the Uni- versity of California, Berkeley, banned political activity on campus. Students

When rights and needs conflict, preference is given to the First Amendment rights.

The rights of people seeking to

exercise their First Amendment

right to . . .

All other rights

Figure 5.2 The Preferred Freedoms Approach

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Chapter 5 The First Amendment: Basic Freedoms 143

wanted to raise money and recruit other students to do civil rights work, but Berkeley officials said they could not. The students rebelled, claiming their First Amendment rights were being denied. The ensuing riot at Berkeley became a cata- lyst for years of political unrest on the country’s college campuses. Ultimately, freedom of speech was established in most colleges and universities.

Exclusion of groups with political agendas who want to speak at shopping malls is also a controversial area because such malls, although standing on private property, are essentially public places. Since 1968, when the U.S. Supreme Court first said the public had some speech rights in malls, the issue has gone back and forth between civil libertarians and mall owners, with the current trend being that private property owners can restrict speech but not on the public sidewalks around the property.

Snyder v. Phelps (2011) was the highly publicized funeral protest case in which members of Westboro Baptist Church, who were openly critical of the military and its tolerance toward homosexuality, picketed the funeral of deceased Marine Lance Cpl. Matthew Snyder. Standing on public land approximately 1,000 feet from where the funeral was being held, the picketers peacefully displayed signs that read, “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America Is Doomed,” and “You’re Going to Hell.” Snyder’s family filed suit against Westboro for defamation, invasion of privacy, and the intentional infliction of emotional distress for display- ing such signs at the funeral.

A jury held Westboro liable for millions of dollars in compensatory and puni- tive damages. Westboro appealed, and although the District Court reduced the punitive damages award, it left the verdict otherwise intact. However, the Fourth Circuit reversed, ruling that Westboro’s statements were entitled to pro- tection under the First Amendment because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic!rhetoric.

The importance of Snyder v. Phelps is that it shows: (1) the First Amendment can protect someone from state tort liability for what they have said, (2) matters of “public concern,” which are defined as those relating to issues of social, political, or other community concerns, hold a high place in the protected speech area, and (3)!how contextual free speech issues are when determining what can and cannot be restricted in reference to “time, place, and manner.” An interesting side note: at the time of this opinion, 43 states and the federal government had laws restricting protests at funerals.

A continuing and intensely controversial area surrounds the abortion issue, and antiabortionists’ claim that their demonstrations outside abortion clinics are justi- fied, constitutional expressions of free speech. The courts, however, have set limits on such expression. In Madsen v. Women’s Health Center, Inc. (1994), a state court enjoined Madsen and other antiabortion protesters from blocking or interfering with public access to a Florida abortion clinic and from abusing, intimidating, or touching people who enter or leave the clinic. When the clinic returned to court and argued that protesters were still limiting access to the clinic, even greater restric- tions were ordered to provide a larger buffer zone around the clinic and even around the residences of clinic employees.

When Madsen and the other demonstrators challenged the injunction on First Amendment grounds, the Florida Supreme Court upheld the injunction in its

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144 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

entirety. The U.S. Supreme Court, however, granted the protesters’ petition for certiorari and found parts of the injunction in violation of the Constitution:

In sum, we uphold the noise restrictions and the 36-foot buffer zone around the clinic entrances and driveway because they burden no more speech than neces- sary to eliminate the unlawful conduct targeted by the state court’s injunction. We strike down as unconstitutional the 36-foot buffer zone as applied to the private property to the north and west of the clinic, . . . the 300-foot no-approach zone around the clinic, and the 300-foot buffer zone around the residences, because these provisions sweep more broadly than necessary to accomplish the permissible goals of the injunction. Accordingly, the judgment of the Florida Supreme Court is affirmed in part, and reversed in part.

Sometimes, multiple freedoms are at issue in a legal dispute, as in the preceding abortion issue, when not only freedom of speech but also freedom to assemble was involved. In another example, Rosenberger v. Rector and Visitors of the University of Virginia (1995), both freedom of speech and the Establishment Clause were involved (Ducat, 2010, p. 833). The University of Virginia, a state school, had a policy of using money from the Student Activity Fund (SAF), derived from mandatory student fees, to pay outside vendors to cover printing costs for a variety of publications produced by student organizations. The university, however, denied authorization for payment of printing costs for “Wide Awake,” a newspaper put out by a Chris- tian student group, on the grounds that the payments would implicate the school in promoting a religion.

Rosenberger, a founder of the Christian group, sued the university, arguing that the refusal of payment violated freedom of speech. Both the federal district court and the federal appeals court ruled in favor of the school, concluding that the payment withholding was necessary to comply with the dictates of the Estab- lishment Clause. Rosenberger then petitioned for certiorari, which the Supreme Court granted.

As part of its ruling, the Court declared that no violation of the Establishment Clause occurs when a public university grants access to its facilities, including com- puter and printing facilities, on a religion-neutral, first-come-first-served basis to a wide spectrum of student groups. Therefore, there is no difference of constitutional significance between a school using its funds to operate a facility where a religious student organization can itself use a computer, printer, or copy machine to generate speech with a religious content or viewpoint and a school paying a third-party contractor to operate the facility on its behalf. In delivering the opinion of the Court, Justice Kennedy stated,

Government may not regulate speech based on its substantive content or the message it conveys. . . . In the realm of private speech or expression, government regulation may not favor one speaker over another. . . . Discrimination against speech because of its message is presumed to be unconstitutional. . . .

There is no Establishment Clause violation in the University’s honoring its duties under the Free Speech Clause. The judgment of the Court of Appeals must be, and is, reversed.

Computers and technology continue to pose new challenges to the law and its interpretation. In Reno v. American Civil Liberties Union (1997), the Supreme Court

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Chapter 5 The First Amendment: Basic Freedoms 145

struck down part of the 1996 Federal Communications Decency Act (CDA) as a vague, overbroad restriction on speech. The law made a felony of displaying obscene or “indecent” material on a telecommunications device, in this case the Internet, so that it might be made available to minors.

Another case involving technology and restrictions on speech occurred when California attempted to pass a law prohibiting the sale or rental of violent video games to minors (Brown v. Entertainment Merchant’s Association, 2011). Members of the video-game and software industries brought suit against the California gover- nor, Edmund Brown, challenging the constitutionality of the law and arguing that it tread on speech that was shielded by the First Amendment. The Supreme Court agreed, with Justice Scalia delivering the opinion of the Court:

We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development. Our task is only to say whether or not such works constitute a “well-defined and narrowly limited clas[s] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of neces- sity we have described as a compelling state interest (it is not). Even where the protection of children is the object, the constitutional limits on governmental action apply.

California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive. See Church of Lukumi Babalu Aye, Inc. v. Hialeah. . . . As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achiev- ing the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.

What is indecent and what should be restricted as unprotected speech con- tinue to spur differences of opinion in and out of the courtroom, not because the courts are too conservative or necessarily prudish, but because society’s norms keep changing. What was once considered inappropriate, in poor taste, or even obscene a decade ago can now be heard nightly on prime-time television and viewed in movies that younger viewers are permitted to see. Determining the boundaries of unprotected speech is based on tradition and history, with certain “well defined and narrowly limited” classes of speech that fall outside the perim- eter of constitutional protection. A common theme in free speech cases is to pro- tect even the outer limits of speech, thereby ensuring that the “core” of the freedom is protected. If it is a close call, the Court will most likely rule in favor of protecting the speech.

CASE IN BRIEF Brown v. Entertainment Merchant’s Association (2011)

ISSUE Is it constitutional for a state to bar the sale of violent video games to minors?

RULING No. The First Amend- ment protects video games because, like songs, books, and movies, video games communi- cate a message. The state law is a content-based restriction on speech and cannot meet the strict scrutiny standard.

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In free speech areas such as fighting words, obscenity, picketing or demon- strating, symbolic speech, and loyalty oaths, the courts have also had to consider the various interests of society in their interpretations and applications of the Constitution.

The Supreme Court defines fighting words as those “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowl- edge, inherently likely to provoke violent reaction” (Cohen v. California, 1971) or “‘[words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace’” (Lewis v. City of New Orleans, 1974). It is important to note the higher level of tolerance expected in police officers: “Many state courts have imposed higher standards for words directed at police, reasoning that police offi- cers are expected to exercise greater restraint when foul, insulting language is directed toward them” (Gardner and Anderson, 2012, p. 224). However, direct and outright threats to an officer’s safety, speech that is likely to incite a surrounding crowd to violent action, or speech that in any way obstructs officers in performing their lawful duty has generally been viewed by the courts as falling outside consti- tutional protection.

Obscenity can be a challenging concept to understand and define. However, the courts have developed fairly precise guidelines regarding what legally constitutes obscene material. To qualify as obscene, it must be shown that the work (1) taken as a whole appeals to the prurient (lustful) interest in sex; (2) portrays sexual con- duct in a patently offensive way; and (3) taken as a whole does not have a serious literary, artistic, political, or scientific value (Miller v. California, 1973).

Various Supreme Court rulings have held that the First Amendment provides no protection to obscenity, child pornography, or speech that advocates the use of force to direct, incite, or produce imminent lawless action (Cohen, 2009). The Court has also ruled that the First Amendment does not fully protect speech that may be harmful to children, defamation (libel and slander), commercial speech,

Officer Tollivan is on patrol at 9:30 #.$. when he sees a group of teenagers gathered near a vacant house. Knowing that there has been a problem in the neighborhood with break-ins, he pulls his squad over and gets out to talk to the group.

As he gets out of the squad, the group starts to walk away. He calls out, “Hey, can I talk to you?” A girl in the group looks back and replies, “F*ck you, pig!” The girl continues to walk away. Officer Tollivan tells her to stop because she is under arrest for disorderly conduct, citing a state law that pro- hibits using “offensive, boisterous, obscene, or vulgar language.” He places her in handcuffs, puts

her in the back of the squad, and brings her to juve- nile detention.

! Does the arrest of the girl punish speech that is protected by the First Amendment?

! If this comment were directed at you, how would you feel?

! Should an officer have to tolerate this behavior because of the job he holds? Why or why not?

Constitutional Law in ACTION

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speech broadcast on radio and television, and public employees’ speech (Cohen, 2009). When cases arise under these circumstances, the issue becomes whether the speech in question meets the definition of the category of unprotected speech. As noted previously with obscenity, each of the preceding categories of speech has a unique definition.

United States v. Alvarez (2012), a case that highlights the need to narrowly define unprotected speech, involved the Stolen Valor Act of 2005 (18 U.S.C. 704(B)), which made it a crime to lie about being awarded military decorations or medals and imposed enhanced penalties for lies involving a Congressional Medal of Honor. In 2007, Xavier Alvarez was charged in the Central District of California with two counts of falsely representing that he had been awarded the Congressional Medal of Honor. Alvarez, who had never served in the armed forces, moved to dismiss on the grounds that the act violated his First Amendment right to free speech. The district court denied the motion to dismiss, and Alvarez pleaded guilty but reserved his right to appeal.

The case ascended to the U.S. Supreme Court, which ruled 6–3 on June 28, 2012, that the government cannot punish people for making false claims about military service or honors and that the First Amendment is written broadly enough to protect intentional untruths as long as they do not serve fraudulent purposes and the person stating such lies is not under oath in a court of law at the time. In writing the Court’s opinion, Justice Kennedy stated: “The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent’s statements anything but contemptible, his right to make those statements is pro- tected by the Constitution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment.”

This opinion illustrates well how many types of speech, even if morally repre- hensible, fall within First Amendment protection, meaning the government cannot limit or punish that type of speech. Importantly, the Court notes that “Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements.”

Since Alvarez, Congress has worked to revamp the Stolen Valor Act so that it meets the strict scrutiny requirement.

First Amendment Expression Rights of Public Employees Although no citizens, regardless of their work, forfeit their constitutional rights, how these rights are applied can be different, depending on the circumstances. A leading case in freedom of speech of public employees is Pickering v. Board of Educa- tion (1968), in which a high school teacher’s letter to the local newspaper’s editor criticizing the allocation of funds between academics and athletics at the local high school led to the teacher’s termination. The Supreme Court held that in the absence of proof of a teacher knowingly or recklessly making false statements, the teacher had a right to speak on issues of public importance without being dismissed from his position. An employee’s interest as a citizen in making public comment needs to be balanced against the employer’s competing interest “in promoting the efficiency of the public services it performs” (Pickering v. Board of Education, 1968).

CASE IN BRIEF United States v. Alvarez (2012)

ISSUE Does a federal law that makes it a crime to lie about receiving military medals or honors violate the First Amend- ment’s guarantee of the right to free speech?

RULING Yes. The Free Speech Clause of the First Amendment protects false statements.

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By Richard Simon (Los Angeles Times, September 13, 2012)

WASHINGTON—The House on Thursday passed a new Stolen Valor Act in response to a U.S. Supreme Court ruling that struck down an earlier law mak- ing it a crime to lie about military medals.

The court ruled in June that falsely claiming military honors, while “con- temptible,” was protected by the 1st Amendment. The new measure, passed 410 to 3, makes it a crime to fraudulently claim to be a medal recipient “with intent to obtain money, property or other tangible benefit.”

“The need to protect the honor, service and sacrifice of our veterans and military personnel is as strong today as it has ever been,’’ said Rep. Joe Heck (R-Nev.), the bill’s chief sponsor. A similar measure is awaiting Senate action.

The court ruling grew out of the prosecution of Xavier Alvarez, a former member of the Three Valleys Municipal Water District governing board in eastern Los Angeles County who boasted of receiving the Medal of Honor, but who never served in the military.

Proponents say the new measure would withstand constitutional challenge because it targets those who seek to profit from misrepresenting themselves as medal recipients. Violators could face a fine and up to a year in prison.

Gabe Rottman, legislative counsel in the ACLU’s Washington office, called the measure unnecessary. “Fraud is already illegal,” he said.

But he said the narrower House-approved measure is better than earlier proposals, which could have covered lying about military service “to impress a girl in a bar.”

Jonathan Turley, a George Washington University law professor, said the new law could run into a constitutional challenge depending on how prose- cutors define “other tangible benefit.”

Sen. Jim Webb (D-Va.), who’s sponsoring the Military Service Integrity Act, has said that lying about a medal to improve one’s credibility in a politi- cal campaign or to burnish a job resume would quality as tangible benefit.

“It’s going to come down to how prosecutors use the law,” Turley said. “What’s clear is that the vast majority of cases prosecuted under the original law cannot be prosecuted under this law because the government cannot criminalize the simple act of lying.”

Lawmakers believe that Justice Anthony Kennedy opened the door to a new law by writing:

“Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the government may restrict speech without affronting the First Amendment.”

“Lie about a Military Medal? A New Stolen Valor Act Targets Fraud” IN THENEWS

(Continued)

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Chapter 5 The First Amendment: Basic Freedoms 149

The 2006 law was passed in response to a proliferation of military impos- tors. In Illinois, one man attended Marine Corps functions posing as a retired colonel, claiming to have received the Purple Heart eight times as well as the Navy Cross. It turned out he never served in the Marines, according to a House Judiciary Committee report.

In 2003, 642 Virginia residents sought an exemption from state tax on mili- tary benefits by claiming to have received the Medal of Honor despite the fact that at the time, there were only four living Medal of Honor recipients in Virginia and 132 nationwide.

As established in Connick v. Myers (1983), “Employee speech has to be determined by the content, form and context of a given statement.” This balancing test will weigh in favor of the employee when the speech is made as a citizen on a matter of public concern. In such cases, the court looks at whether the government employer has an adequate justification for treating the employee differently than a regular citi- zen, requiring any speech restrictions to be based on the fact that such limitations are needed for the government employer to run an efficient and effective operation.

This balancing inquiry was further addressed in Garcetti v. Ceballos (2006), a case in which Ceballos, a supervising deputy district attorney in Los Angeles, became aware of evidence against the defendant that had been obtained through the use of a faulty warrant affidavit. Ceballos brought this information to the attention of his superiors and recommended dismissing the charges, but the prosecutors ignored Ceballos’s findings and opted to proceed with the criminal case. This prompted Ceballos to write and submit to the trial court a highly critical dismissal memorandum challenging the submitted evidence. The court, however, rejected Ceballos’s challenge.

Ceballos then claimed that, in the weeks and months following this challenge, he was subjected to a series of retaliatory actions by his employer, including reassign- ment to a less-desirable position, transfer to another courthouse, and denial of a promotion. Ceballos filed a lawsuit alleging this retaliation was based on his dis- missal memo in violation of his First and Fourteenth Amendment rights, but his claim was rejected by the Court: “The U.S. Supreme Court ruled for the employer by distinguishing the Pickering balancing criteria from that here where Ceballos’ speech was made pursuant to his official duties, in essence ruling it was speech made as part of his job and not made as a private citizen. The threshold inquiry after Garcetti is the extent to which an employee can be said to be speaking in connection with his/her employment” (Dwyer, 2010). Justice Kennedy, writing for the majority stated,

It is well settled that “a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expres- sion.” The question presented by the instant case is whether the First Amend- ment protects a government employee from discipline based on speech made pursuant to the employee’s official duties.

The Court’s decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions.

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150 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

We reject, however, the notion that the First Amendment shields from disci- pline the expressions employees make pursuant to their professional duties. Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.

The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. (Garcetti v. Ceballos, 2006)

The Court held “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Thus, the rule of Garcetti remains that an employee is protected only if the speech is unconnected to employment.

As a result of Garcetti, criticism of the “blue wall of silence” and public demand for greater police transparency has hit a “speed bump” because the ruling discourages officers from com-

ing forward with criticism of activities within the department (Dwyer, 2010). Any officer who speaks in public on an employment matter is not protected by the First Amendment.

In City of San Diego v. Roe (2004), police officer Roe videotaped himself stripping off an unofficial police uniform and masturbating. He then sold the video on the adults-only section of an online auction site, with his seller profile indicating he was a police officer. When this activity came to the attention of the San Diego Police Department (SDPD), an investigation followed and Roe was ordered to stop, but he did not fully comply, so he was terminated. Roe filed suit, alleging the department’s demand that he stop making and selling the videos, and his subsequent firing because of his refusal to comply, were violations of his First Amendment right to free speech. The case found its way to the Supreme Court, which ruled that although the conduct did not amount to a matter of public concern, it was con- nected to his employment with the SDPD and that the officer’s conduct negatively affected the department’s operation and, therefore, was not protected by the First Amendment (Scarry, 2008b).

This case illustrates the fine line public employees walk in matters concerning the First Amendment right to freedom of speech and expression.

Freedom of Speech and the Internet A plethora of First Amendment cases have arisen as the Internet continues to make virtually anything available to anyone. The Court began a more definitive review of Internet issues in Reno v. American Civil Liberties Union (1997). In this case, the Court struck down a law banning computer-generated or “virtual” child pornogra- phy. It acknowledged that in addition to the multifaceted means of disseminating information electronically, much broader community norms had to be considered. Congress responded to the Reno decision by promulgating the Child Online Protec- tion Act (COPA) of 1998, which would, in effect, nullify the Reno decision. However, in 2008, the Third Circuit affirmed a 2007 district court ruling that COPA does not survive “strict scrutiny” analysis and thus, is an unconstitutional violation of the First Amendment (American Civil Liberties Union v. Mukasey, 2008). The following

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CASE IN BRIEF Garcetti v. Ceballos (2006)

ISSUE Does the First Amend- ment protect the speech made by a government employee pursuant to his or her job?

RULING No. Speech by a government employee will be protected by the First Amend- ment when the speech is a matter of public concern and made as a citizen, not pursuant to one’s job.

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Chapter 5 The First Amendment: Basic Freedoms 151

year the Supreme Court denied certiorari (Mukasey v. American Civil Liberties Union, 2009), effectively leaving the appellate court ruling to stand.

As is the case with the printed and spoken word, obscenity will continue garnering both legislative and judicial attention as will business communication, privacy issues, and advertising matters will surely be addressed. For example, Congress is currently considering legislation to address the mounting problem of unrequested Internet advertising (spam). As the debate continues over what can be virtually made available to whom, in United States v. American Library Association (2003), the Court held that Congress could limit funding to libraries that did not filter Internet access to block obscene material and child pornography without violating the First Amendment.

The Right to Photograph Courts have long ruled that the First Amendment protects the right of citizens to take photographs in public places. However, even more than a decade since the 9/11 terrorist attacks, police officers and security guards view people photograph- ing federal buildings, bridges, and transportation hubs as potential terrorists and attempt to restrict them, often citing authority they do not have. Police and security guards have been called on to be “extra vigilant” and to encourage citizens to do the same. Taking photographs of likely terrorist targets is included in “suspicious behaviors” to watch for.

Police and security often restrict the taking of photographs, despite the public’s right to do so. The “disconnect” between policy and practice may be the result of a lack of guidelines about how to balance security concerns with civil liberties (Shin, 2010a, p. B02). The New York Police Department (NYPD) serves as an example of what an agency might do to close this gap. The NYPD directive on photographs says that pho- tography is “rarely unlawful” and that officers have “no right to demand to see photos or to delete them.” The directive allows that although New York is a potential terrorist target, it is also a major tourist destination and “practically all such photography will have no connection to terrorism or unlawful conduct” (Shin, 2010a, p. B02).

Videotaping also raises suspicion. It becomes especially controversial when citi- zens videotape police officers. Twenty years ago a private citizen videotaped the beating of Rodney King, causing a national uproar. When the four Los Angeles Police Department (LAPD) officers were found not guilty, riots broke out, leaving more than 50 dead and thousands injured. Since then, whether people have the right to videotape police officers has been a topic of debate.

In Maryland, motorcyclist Anthony Graber, wearing a helmet camera, recorded an incident where a plainclothes Maryland state trooper cut him off on an exit ramp and then drew his gun before announcing that he was a law enforcement officer. A! week later Graber posted the video recording on YouTube, and the law came down hard on him, charging him with four felony counts, including violating Maryland’s wiretap law. If convicted he could have faced 16 years in prison (Shin, 2010b). Instead the wiretapping charges were dropped and Graber faced only the traffic-related charges. Only Massachusetts and Illinois have laws making it illegal to audio record people without their consent, so those who tape police encounters can be prosecuted in those two states. However, although prosecutors across the country are claiming that videotaping police officers violates wiretap laws, to date no cases have come before the Supreme Court (Cohen, 2010).

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152 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Despite citizens having the right to videotape the police, officers also have rights. “No one can speak knowledgeably about a piece of video without viewing it through the prism of experience and training. It is not a question of whether a citizen has the right to videotape an incident, but a matter of ensuring that any officer involved has the right to due process and fair, objective treatment indepen- dent of subjective and sometimes ill-informed opinion based on a videotape show- ing but a vignette of a significant event” (Slocumb and Roberts, 2010).

Freedom of the Press Freedom of the press is integrally related to freedom of speech because speech is considered not only spoken words but any means of conveying information. As early as 400 %.&.'., the Greek poet Euripides stated, “The tongue is mightier than the blade,” and in 1839, Edward Bulwer-Lytton proclaimed, “The pen is mightier than the sword.” Thomas Jefferson once stated, “Wherever people are well informed, they can be trusted with their own government.” Freedom of the press protects the right to obtain and publish information or opinions without governmental control or fear of punishment.

Historically, freedom of the press has been attached to the general concept of censorship. In countries with extensive censorship, the right to publish news, infor- mation, and opinions is usually tightly restricted. The British government, for example, was able to restrict almost anything that arguably related to the govern- ment through use of the Official Secrets Act. Simply, anything the government wished to remain secret, would—period. Under such a law, for example, news of the Three Mile Island nuclear accident in the United States would not have been released had it happened in the United Kingdom.

Even in the United States, where censorship is light, the right to publish is not absolute. The constraints on freedom of the press in a free society are controversial and are constantly being redefined by the judiciary.

Governments have restricted the right to publish in two ways: by restraining the press from publishing certain materials and by punishing those who publish matter considered seditious, libelous, or obscene. The first kind of restriction, often called prior restraint, is rare in the United States and most other democratic countries. One of the first attacks on prior restraint can be found in John Milton’s essay Areop- agitica (1644), which was directed against the English licensing and censorship laws enacted in 1534 under Henry VIII. These laws were abolished in England in 1695, but the government was still able to take action on grounds of seditious libel against those who published material, whether true or false, and those who criti- cized government policies.

In the American colonies, prosecutions of this kind were made more difficult by a jury’s decision in New York v. Zenger (1735). John Peter Zenger, a New York news- paper publisher, wrote articles critical of the colonial governor. The jury acquitted Zenger on the grounds that his charges were true and, therefore, could not be con- sidered libelous. The Zenger trial is the first case in American law in which truth was asserted as a defense to an action for libel. Although Americans were denied this defense for two centuries following that trial under the common law of many jurisdictions, truth is now a constitutionally protected defense under the First Amendment (“The Trial of John Peter Zenger,” no date).

prior restraint a restriction on publishing certain materials

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Chapter 5 The First Amendment: Basic Freedoms 153

This restraint on federal government’s interference with freedom of the press was made binding on state governments via incorporation of the Fourteenth Amendment in Near v. Minnesota (1931), a case in which the Court ruled that no newspaper could be banned because of its contents, regardless of how scandalous they might be. Still, freedom of the press has frequently been denied in the areas of obscenity and pornography. The courts have, however, had some difficulty delin- eating appropriate standards of censorship.

For example, in Roth v. United States (1957), the Court ruled that obscenity is not a constitutionally protected freedom of speech. The standard to be used, as dis- cussed previously in the chapter, is “whether to the average person, applying con- temporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest, that is, having a tendency to excite lustful thoughts” (Miller v. California, 1973).

Restrictions on the press have often occurred during national emergencies. Censorship during World War I led to the first clear articulation of the limits to freedom of speech with which free press issues are closely tied. During World War!II, freedom of the press was greatly curtailed for security reasons, but the press willingly complied with censorship restrictions. Other than in wartime, censorship for national security reasons has been carefully limited.

In 1971, the U.S. government attempted to halt publication of The Pentagon Papers on the grounds that it could endanger national security. The Supreme Court ruled (New York Times v. Sullivan, 1964) that this case of prior restraint was uncon- stitutional, citing the Zenger trial as relevant. Other cases involving national secu- rity have concerned attempts to censor or halt publication of books about the Central Intelligence Agency. In 1983, when U.S. troops invaded Grenada, the press was initially barred from the island. The restrictions later imposed were thought to be unprecedented in U.S. practice and generated much controversy.

Control of the press during the Persian Gulf War (1991) was almost 100 percent. Many criticized the press for accepting conditions that made complete reporting impossible. After the war ended, the accuracy of some press reports was ques- tioned. Constraints on the press are always controversial.

In Minnesota, reporters promised anonymity to a political campaign worker who gave them information. Later, the editors of the papers revealed his name, and he sued them. The Supreme Court ruled in Cohen v. Cowles Media Company (1991) that the First Amendment does not give the press a constitutional right to disregard promises that otherwise would be enforced under state law. The case was returned to the Minnesota Supreme Court for reconsideration. Further complicating the issue, several previous decisions appeared to narrow the newspaper reporters’ right to withhold information given to them in confidence. In April 1991, a Washington Post reporter was held in contempt of court and jailed for refusing to identify a source.

Zenger had established the precedent that truthful statements were not to be considered libelous. The obvious corollary was that damages could be collected for false statements. In New York Times v. Sullivan, however, the Supreme Court held that public officials can win damages only if they can show that a statement defam- ing them was made with actual malice, that is, knowing it was false or recklessly disregarding whether it was false.

Other court rulings have extended the principle to include public figures not in government office, but involved in public controversy. In 1979, the Supreme Court

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154 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

held that a person who involuntarily receives publicity is not necessarily a public figure and, therefore, need not prove that the statements by the press were made with “actual malice” to obtain libel damages (Hutchinson v. Proxmire, 1979).

The Supreme Court has also held in Zurcher v. Stanford Daily (1978) that news- papers enjoy no special immunity from searches of their premises by police with warrants. In 1980, however, Congress passed a privacy protection act that required the police in most cases to obtain subpoenas for such searches. In 1979, in a contro- versial effort to curb prejudicial pretrial publicity, the Court ruled (Gannett v. DePasquale) that judges can bar the press and the public from criminal proceedings. In other cases, however, the courts have allowed televised proceedings.

The Supreme Court has further ruled that Americans have a free-speech right to pass out anonymous political pamphlets (McIntyre v. Ohio Elections Commission, 1995). In a 7–2 decision, the Court said, “‘Anonymous pamphleteering’ has a long and honorable history in this country that extends back to the authors of Federalist Papers and is deeply ingrained as the secret ballot. ‘Anonymity is a shield from the tyranny of the majority.’”

Balancing Freedom of the Press with the Right to a Fair Trial A delicate balance exists between the people’s right to know, the press’ right to publish (First Amendment), and the “public trial” rights of those accused of crimes (Sixth Amendment), as well as the needs of the agencies charged with investigating such crimes (Fourth Amendment). A free press, being vital to the functioning of a democracy, keeps citizens fully informed and able to discharge their civic responsi- bilities. However, in this country, defendants in criminal cases are guaranteed due process of law and a fair and impartial trial. These guarantees are jeopardized when the media publish detailed information before a defendant is tried.

The question is whether events reported in the press before the trial may unduly influence jurors. In Sheppard v. Maxwell (1966), the defendant, Dr. Samuel Sheppard, was accused of brutally murdering his pregnant wife in their home. The pretrial pub- licity was intensely prejudicial, and Sheppard was convicted of the crime. On appeal, the conviction was overturned, with the Court quoting the Ohio Supreme Court:

Murder and mystery, society, sex and suspense were combined in this case to such a manner as to intrigue and captivate the public fancy to a degree perhaps unparalleled in recent annals. Throughout the preindictment investigation, the subsequent legal skirmishes and the nine-week trial, circulation-conscious edi- tors catered to the insatiable interest of the American public in the bizarre. . . . In this atmosphere of a “Roman holiday” for the news media, Sam Sheppard stood trial for his life.

Other high-profile cases include the political, highly publicized trial of Oliver North, the highly publicized 10-day rape trial of William Kennedy Smith, the trial of Mike Tyson for raping a Miss Black America contestant, the trial of O. J. Simpson, and the Casey Anthony murder trial.

The court has a duty to protect those who come before it from undue adverse publicity. Failure to do so may result in a higher court declaring that the trial was unfair and overturning the conviction. In addition, media reports of criminal inci- dents can hinder police investigations.

MYTH Virtually no courtroom in the United States allows cameras inside to record the proceedings.

REALITY Every state has adopted rules to allow for cameras in the court- room. The rules vary from state to state, but coverage (sometimes live feeds) has become more prevalent.

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Chapter 5 The First Amendment: Basic Freedoms 155

By Charlie Savage (New York Times, May 15, 2013)

WASHINGTON—Under fire over the Justice Department’s use of a broad subpoena to obtain calling records of Associated Press reporters in connection with a leak investigation, the Obama administration sought on Wednesday to revive legislation that would provide greater protections to reporters in keep- ing their sources and communications confidential.

President Obama’s Senate liaison, Ed Pagano, on Wednesday morning called the office of Senator Charles E. Schumer, Democrat of New York, and asked him to reintroduce a version of a bill that he had pushed in 2009 called the Free Flow of Information Act, a White House official said.

The bill would create a federal media shield law, akin to ones most states already have, giving journalists some protections from penalties for refusing to identify confidential sources in federal law enforcement proceedings, and generally enabling journalists to ask a federal judge to quash subpoenas for their phone records.

Hours later, Attorney General Eric H. Holder Jr. appeared before the House Judiciary Committee for a hearing that covered a wide range of topics but repeatedly returned to the A.P. phone records. Lawmakers from both par- ties sought to grill him over why federal investigators secretly used a sub- poena this year to obtain a broad swath of toll records—logs of calls sent and received—for several A.P. bureaus and reporters, without advance notice.

“These requests appear to be very broad and intersect important First Amendment protections,” said the committee’s chairman, Representative Robert W. Goodlatte, Republican of Virginia. “Any abridgment of the First Amendment right to the freedom of the press is very concerning.”

Mr. Holder, however, repeatedly noted that he had recused himself because the F.B.I. had interviewed him as one of the officials who knew the information that was leaked to The A.P., which is believed to be about the foiling of a bomb- ing plot involving the Yemen branch of Al Qaeda in the spring of 2012. The decision to approve the subpoena was made by his deputy, James M. Cole.

“I was not the person who was involved in that decision,” he said. That answer, versions of which he gave in response to multiple questions

from Republicans about the leak investigation, did not satisfy committee mem- bers, several of whom said they wanted Mr. Cole to appear before the commit- tee and answer questions. Mr. Holder, however, cautioned that since the investigation was continuing, Mr. Cole might not be able to discuss the issue.

Mr. Holder also said that he did not put his recusal in writing, which drew widespread criticism from the lawmakers. Later in the hearing, he said that he had decided to examine whether it would be a better policy to always record when he was transferring his powers to his deputy for a specific matter.

“Criticized on Seizure of Records, White House Pushes News Media Shield Law” IN THENEWS

(Continued)

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156 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

The top Democrat on the committee, Representative John Conyers of Michigan, noted that he had sponsored a version of the Free Flow of Informa- tion Act that passed the House twice when it was under Democratic control. He said he would reintroduce his version, too, and he said he hoped that Republicans—who until recently had called for more aggressive investiga- tions of leaks—would support it.

The version the Obama administration is seeking to revive, however, is the one that was chiefly sponsored by Mr. Schumer, which was negotiated between the newspaper industry and the White House. It was approved by the Senate Judiciary Committee in a bipartisan 15-to-4 vote in December 2009. But while it was awaiting a floor vote in 2010, a furor over leaking arose after WikiLeaks began publishing archives of secret government documents, and the bill never received a vote.

In a statement confirming that he would reintroduce the legislation, Mr. Schumer referred to the controversy over the subpoena of A.P. calling records, saying: “This kind of law would balance national security needs against the public’s right to the free flow of information. At minimum, our bill would have ensured a fairer, more deliberate process in this case.”

It is not clear whether such a law would have changed the outcome of the subpoena involving the A.P.

The 2009 legislation would have created a presumption that when the government was seeking calling records from a telephone carrier, the news organization would be notified ahead of time, allowing it to fight the sub- poena in court. But the bill would also have allowed the government to seek a 45-to-90-day delay in notification if a court determined that such notice would threaten the integrity of the investigation.

Under the bill, the scope of protection for reporters would vary according to whether it was a civil case, an ordinary criminal case or a national security case.

The greatest protection would be given to civil cases, in which litigants seeking to force reporters to testify or trying to obtain their calling informa- tion would be required to show why their need for the information out- weighed the public’s interest in unfettered news gathering.

Ordinary criminal cases would work in a similar fashion, except the bur- den would be on the reporter seeking to quash the subpoena to show by a “clear and convincing” standard that the public interest in the free flow of information should prevail over the needs of law enforcement.

Cases involving the disclosure of classified information would be more heavily tilted toward the government. Judges could not quash a subpoena through a balancing test if prosecutors presented facts showing that the infor- mation sought might help prevent a terrorist attack or other acts likely to harm national security.

In his testimony, Mr. Holder said he supported Mr. Schumer’s bill. “There should be a shield law with regard to the press’s ability to gather

information and to disseminate it,” he said. “The focus should be on those people who break their oath and put the American people at risk, not report- ers who gather this information.”

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Chapter 5 The First Amendment: Basic Freedoms 157

The Effect of Media Coverage on Criminal Investigations In many departments police officers see reporters as enemies who jump at the chance to report law enforcement’s mistakes or brutal treatment of citizens. In real- ity, however, the two fields have much in common: “Both law enforcement agencies and the media are highly visible, powerful institutions. Both professions attract ambitious, strong-minded employees who possess a strong sense of justice and a desire to help others. Both professions are frequently criticized by the public they serve and are highly sensitive to that criticism. The professionals of both can be highly defensive and feel that they are poorly understood by their critics. Both professions are sometimes secretive about their operations and their methods for gathering information. Professionals in both endeavors see themselves as vital to the public welfare” (Garner, 2009, p. 52). Nonetheless, at times reporters’ First Amendment rights of freedom of the press can come into conflict with law enforce- ment’s responsibility to investigate crimes without violating a suspect’s Sixth Amendment right to a fair trial.

The Right to Peaceful Assembly Within the First Amendment is the “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This right is often claimed in conjunction with the right to freedom of speech, as seen in abortion protests. Combined with the Fourth Amendment’s guarantee to be free from “unreasonable searches and seizures” people do have an expectation they can gather to interact, speak among themselves and make their thoughts and ideas known.

The right to assemble does not necessarily require an intent to engage in some specific activity, although when it does, the activity cannot be illegal. In the 1999 case of Chicago v. Morales, the Court held that an “anti-loitering” ordinance was unconstitutional because its language was too vague in defining illegal loitering as “to remain in any one place with no apparent purpose.” In response to this ruling and with the intent of combating gang activity, Chicago legislators amended the definition to “remaining in any one place under circumstances that would war- rant!a reasonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to establish control over identifiable areas, to intimi- date others from entering these areas, or to conceal illegal activities.” By being more specific, Chicago leaders hope to constitutionally address the city’s gang problem without infringing on the rights of others to lawfully assemble.

The right to assemble is an integral part of U.S. culture that allows people to gather and express thoughts and ideas without government interference. Like any other right, however, it is not without limitations. Table 5.2 summarizes several types of property and the types of restrictions that lawfully may be placed on their use for peaceful assembly.

The right to peaceful assembly and, by implication, freedom to petition for redress of grievances was made applicable to the states via incorporation of DeJonge v. Oregon (1937). The freedom to petition was the focus of Duryea v. Guarnieri (2011), in which police chief Charles Guarnieri had filed a discrimination lawsuit against his employer, the Pennsylvania borough of Duryea, alleging that council members

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158 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

retaliated against him because he had successfully challenged a 2003 decision to fire him. Following Guarnieri’s reinstatement as chief in 2005, he alleged that the coun- cil had issued 11 new employment directives aimed at placing humiliating restric- tions on him, an action, which, in essence, violated his First Amendment right to petition. He further alleged the borough improperly withheld overtime pay from him and had improperly delayed issuing health insurance benefits.

In district court, a jury found for Guarnieri and awarded him $45,358 in com- pensatory damages and $52,000 in punitive damages. Duryea appealed to the Third Circuit, which upheld the verdict and ruled that the First Amendment protects public employees in filing grievances concerning any matter, even those of a per- sonal nature. The Supreme Court granted certiorari to determine whether public employees may sue their employers for retaliation, when the alleged reprisal is for the filing of grievances based on private matters rather than issues of public con- cern. The Court vacated and remanded the lower court order, and the opinion by Justice Kennedy held, “A government employer’s allegedly retaliatory actions against an employee do not give rise to liability under the Petition Clause unless the employee’s petition relates to a matter of public concern.”

Freedom of Association Closely related to the freedom of assembly is the freedom of association. The right to simply associate with others has been considered to fall under the First Amend- ment as well and other amendments, although no specific reference occurs any- where in the Bill of Rights concerning the right of association. This unenumerated but fundamental freedom was extended to the states through NAACP v. Alabama

Table 5.2 Types of Public and Quasi-Public Property

Property Use by public for communicating and demonstrating Restrictions that may be placed on use

Publicly owned streets, sidewalks, and!parks

Such property “has been used for purposes of (public) assembly, communicating thoughts between citizens and discussing public questions.”a

Reasonable regulations may be imposed to ensure public safety and order (e.g., traffic regulations).

Government buildings, such as courthouses and city halls

Property used for the business of government during business hours is open to the public at these times so that the public may ordinarily come and go as they wish.

Greater restrictions may be imposed to ensure the functioning of government or the regular use of the facilities by the public. They can accommodate only limited expressions of social protest.

Public hospitals, schools, libraries, and so!on

Use of these public facilities is ordinarily limited to the specific function for which they are designed.

Because these facilities need more order and tranquility than do other public buildings, they generally have more restrictions concerning use by the public.

Quasi-public facilities, such as shopping centers, stores, and other privately owned buildings or property to which the public has access

Many quasi-public facilities are as extensively used!by the public as are public streets, sidewalks and parks.

Private owners of quasi-public facilities have greater authority to regulate their property than does the government of public streets and parks.

Public property to which access by the public is limited and restricted

Government may limit and restrict in a reasonable manner the access by the public to jails, executive offices (mayor, police chief, and others), and other facilities that must be restricted to permit government to function effectively.

Such restrictions must be made in a reasonable and nondiscriminating manner.

aU.S. Supreme Court in Kunz v. New York, 340 U.S. 290 (1951).

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Chapter 5 The First Amendment: Basic Freedoms 159

(1958) and is evaluated by the courts in one of two contexts. In the first form, the right is evaluated in the context of intimate relationships (e.g., marriage, family, etc.) via due process and the right to privacy. The second context is the freedom of individuals to come together in groups, small or large, to engage in activities pro- tected by the First Amendment (such as freedom of speech and expression, freedom to practice their religion, etc.).

Wilson v. Swing (1978) was a case involving the First Amendment right of free- dom of association, in which a police sergeant was demoted to patrol officer for reasons that included his having an extramarital affair with another officer while off duty. Among the legal issues argued by the officer was that the rule “members and employees shall conduct their private and professional lives in such a manner as to avoid bringing the Department into disrepute” was unconstitutional because it was vague and overbroad. In this case, the Court did not feel the rule was either and held in favor of the employer.

In Roberts v. United States Jaycees (1984), the Supreme Court held that the right to freedom of association guaranteed by the First and Fourteenth Amendments did not include the right of a commercial association (the U.S. Jaycees) to deny women admission to the organization because of their gender. In a unanimous vote, the Court emphasized that the state had a compelling interest to eliminate gender dis- crimination and assure its citizens equal access to publicly available goods and services. In delivering the opinion of the Court, Justice Brennan wrote:

An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. . . . According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the major- ity. . . . Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educa- tional, religious, and cultural ends.

An interesting side note to Roberts is that this case also recognized the right to not associate with someone.

On June 28, 2010, in Christian Legal Society v. Martinez, the Supreme Court affirmed and remanded the Ninth Circuit’s decision that a public university law school (in this case, the Hastings College of Law in San Francisco, headed by acting Chancellor Leo Martinez) could deny school funding and other benefits to a reli- gious student organization (the Christian Legal Society [CLS]) because the group required its officers and voting members to agree with its core religious viewpoints. The CLS, headquartered outside Washington, DC, is a national network of lawyers guided by their Christian faith, with student chapters at law schools across the country. If members do not sign the CLS’s statement of faith, they cannot vote or hold office. CLS members must also sign a statement that they understand that any “sexually immoral lifestyle” is grounds for disqualification, including “all acts of sexual conduct outside of God’s design for marriage between one man and woman.” Greg Baylor, CLS attorney, argues that the case was not about discrimina- tion but about shared beliefs (O’Brien, 2010).

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160 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

The Hastings Law School had denied giving student group status to CLS based on the school’s “all-comer” policy, under which groups are required to accept any- one into membership, regardless of “status or beliefs” (Belz, 2010). The Supreme Court ruled in favor of the college. Justice Ginsburg wrote in the 5–4 majority opin- ion that the “all-comer” policy is “reasonable” and constitutional. The holding applies only to the Hastings-style “all comers” policy, which does not exist at any other public university.

This case reached the Supreme Court at a time in the nation’s history when our society and law are much more supportive of inclusion than of exclusion (O’Brien, 2010). Antidiscrimination laws that go far beyond what the Constitution might require have sprung up around the country. However, “The First Amendment also guarantees freedom of association, a fundamental right to gather with whomever we choose and collectively express ourselves” (O’Brien, 2010). Again a balance must be sought. Justice Samuel Alito, writing in dissent, stated,

The Court’s treatment of this case is deeply disappointing. The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS’s application for registration. Nor does the Court address the constitutionality of the policy that Hastings now purports to follow. And the Court ignores strong evidence that the accept-all-comers policy is not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimina- tion. Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups—groups to which, as Hastings candidly puts it, these institutions “do not wish to lend their name(s).”

CLS will have a chance to raise these points because the Supreme Court remanded the case to the lower court for further consideration.

The last area to consider in the discussion of basic rights is that of the First Amendment rights of prisoners in the correctional system.

First Amendment Rights of Prisoners A result of the “due process revolution” has been the extension of First Amendment rights to prisoners. Using a “rational basis” test, the Supreme Court has upheld prison regulations that are, as Justice Sandra Day O’Connor stated in Turner v. Safley (1987), “reasonably related to legitimate penological interests.” She listed in the opinion four criteria of the “rational basis” test, which continue to be the standard for analyzing First Amendment claims by prisoners and other constitutional claims as well: (1) there must be a rational connection between the regulations and legiti- mate interest put forward to justify it, (2) alternative means of exercising the right must remain open to prison inmates, (3) the regulations must have only a minimal impact on correctional officers and other inmates, and (4) a less restrictive alterna- tive must not be available.

It is worth briefly explaining here the difference between rational basis and strict scrutiny, a difference that affects how the Court treats freedom of speech issues involving content control. Rational basis means simply that a law or regula- tion must bear some relationship (i.e., be rationally related) to a legitimate gov- ernment interest. In other words, as long as there are facts that support the law as

“rational basis” test the standard for analyzing First Amendment claims by prisoners and other constitutional claims as!well

MYTH Prisoners have the same First Amendment rights as free citizens.

REALITY Although many of the same rights exist, the particular rights are evaluated differently because of the prison setting.

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Chapter 5 The First Amendment: Basic Freedoms 161

furthering a government goal, the law is valid. The burden with rational basis is on the challenging party, and usually the legislation stands. However, when the content of speech is regulated, as opposed to speech in a neutral way, a higher standard must be met for it to be legal when regulated, a standard of review known as strict scrutiny, which was introduced previously in the chapter. Recall that with strict scrutiny, the burden shifts to the state to show the law is narrowly tailored to fit a compelling government interest.

Free speech is a right of prisoners, and the burden is on the correctional institution to provide valid reasons for restricting this right. Prisoner correspondence has been the focus of much litigation, often because personal correspondence involves a nonincarcerated person who is protected by the First Amend- ment. In Prewitt v. State of Arizona ex rel. Eyman (1969), the Court justified the screening of inmate mail: “Mail censorship is a con- comitant of incarceration, and so long as the censorship does not interfere with the inmate’s access to the courts, it is a universally accepted practice.”

However, the court’s ruling in Procunier v. Martinez (1974) restricted the censor- ship of inmates’ mail, holding such practices to be permissible only in the event of a compelling government interest in maintaining security. This decision greatly enhanced prisoners’ abilities to communicate with the outside world. In Turner v. Safley, the Court upheld a restriction on prisoners from different institutions corre- sponding because of related gang problems and the potential for escape planning. In Shaw v. Murphy (2001), the Supreme Court reiterated that “incarceration does not divest prisoners of all constitutional protections . . . [but] the constitutional rights that prisoners possess are more limited in scope than the constitutional rights held by individuals in society at large.” In this case, the Court held that a prisoner’s rights are not heightened because the material being read by prison officials hap- pens to be legal advice.

Hearing is as much a part of free speech as is speaking or writing, and what individuals are allowed to hear and read has always been part of the First Amend- ment. This right has concerned corrections because of what might be included with other materials sent to prisoners. In Thornburg v. Abbott (1989), the Court held that although prisoners had a right to receive some periodicals, these publications did not have the same First Amendment protections as personal mail, and so periodi- cals deemed detrimental to the institution’s security and order could be banned. Using the “clear and present danger” standard, correctional officials are also required to justify any limitations on mail.

In Beard v. Banks (2006), Justice Breyer explained, “While imprisonment does not automatically deprive a prisoner of constitutional protections . . . the Constitution sometimes permits greater restriction of such rights in a prison than it would allow elsewhere.” Relying on a previous case (Turner v. Safley), Breyer further stated, “Under Turner, restrictive prison regulations are permissible if they are ‘reasonably related to legitimate penological interests.’” In this case, Banks claimed his First Amendment rights were violated by not having free access to nonreligious reading material, but the Court disagreed that “a Pennsylvania prison policy that denies newspapers, magazines and photographs to a group of especially dangerous and recalcitrant inmates violate[s] the First Amendment.”

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162 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Freedom of religion has also proved challenging for the correctional system. Prisoners have brought an increased number of lawsuits that claim their religious freedoms have been infringed on when the institution limited such areas as access to faith leaders, special dietary options compatible with their faith’s requirements, and opportunities to assemble with other prisoners of the same faith to worship. In Fulwood v. Clemmer (1962), a federal court ruled that Black Muslims must be recog- nized as a religion and members be permitted to worship in accordance with their faith. This ruling was also made in the case in Cruz v. Beto (1972), which concerned a Buddhist inmate who demanded the right to practice his religion. In such cases, the Court has refused to hold that “different” is synonymous with “clear and pres- ent danger.”

Disruptive activity in the name of religion, however, has not been permitted. In O’Lone v. Estate of Shabazz (1987), the Court refused to force a prison to alter an inmate’s work schedule so he could attend certain services, citing the facility’s restrictions based on security concerns as “reasonably related to legitimate peno- logical interest.” However, reasonable accommodations must be made for prisoners to practice their religious faiths.

An example of the tension within the legal system regarding how far correc- tional facilities must go to ensure the observance of inmate rights is the Religious Freedom Restoration Act (RFRA), discussed previously. RFRA aimed to protect religious practices from undue governmental restrictions and had broad applica- tions, such as the regulation of hiring and firing decisions based on an employee’s religious practices. The result of RFRA for corrections was an avalanche of lawsuits by inmates claiming their behavior was religious and, therefore, protected. Although some of these lawsuits were justified, many others were frivolous and unnecessarily clogged the court system. Eventually, in City of Boerne v. Flores (1997) the Supreme Court declared RFRA unconstitutional, ruling that Congress lacked authority to pass such a law and that, in so doing, had impinged on the power of the judiciary and the states.

Groups arguing for religious freedoms and groups supporting more control by correctional officials disagreed on how this legislation came to be and its demise. The repeal of RFRA does not mean that inmates do not have freedom of religion, but it has limited the types of activities that might be permitted under the name of religious freedom. From a practical standpoint, correctional personnel have a vested interest in promoting the pursuit of religion within their institutions for the positive benefits it yields in the faithful. Both sides have abused the system, and future cases will undoubtedly address this issue further.

In Shaw v. Murphy (2001), the Supreme Court ruled that prison inmates do not have heightened protection in their speech when that speech contains legal advice. The Supreme Court remanded the case, reminding the lower court that “because the ‘problems of prisons in America are complex and intractable,’ and because courts are particularly ‘ill equipped’ to deal with prison problems, courts have generally deferred to the judgments of prison officials in upholding these regula- tions against constitutional challenge.”

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Chapter 5 The First Amendment: Basic Freedoms 163

Discussion Questions

Summary

1. Is the First Amendment the most important amendment?

2. Is free speech a right that should be absolute? 3. Speaking from a historical perspective, why do

you!think the framers of the Constitution placed!so!much importance on the First Amendment?

4. Should the government tolerate people speaking against or criticizing it?

5. Should an amendment to ban burning the U.S. flag be passed?

6. Imagine you are an attorney asked to defend nude dancing as an act of expression that should be allowed in a small-town bar. What would you say to represent your client’s interests? Include an explanation of how nude dancing could ever be considered “speech.”

7. Discuss whether Nazi Germany could have gone as far as it did if a similar First Amendment had been present in Germany.

8. Should all schools, public and parochial, receive equal support from the government?

9. Should there be any restrictions on public (i.e., gov- ernment) employees’ freedom of speech? Should it matter if the employee is speaking as a citizen on a matter of public concern? If yes, what would com- prise an adequate justification from the employer to treat the employee differently than a regular citizen?

10. Discuss whether the U.S. government is hypocritical when, on the one hand, freedom of religion is guaranteed, but, on the other hand, Christianity is so obviously stated in the words of the Pledge of Allegiance, the fact that clergy are assigned to Congress, and the like.

The First Amendment prohibits Congress from making any laws that restrict freedom of religion, freedom of speech, freedom of the press, or the right to gather or assemble peaceably, and to request the government to respond to complaints from its citizens. However, no rights are absolute, so government can regulate them when social interests outweigh that of the individual.

Religious freedom includes the freedom to wor- ship, to print instructional material, to train teachers, and to organize schools in which to teach, including religion. The establishment clause of the First Amend- ment states, “Congress shall make no law respecting an establishment of religion.” That is, Congress can- not create a national church or prescribed religion. The Free Exercise Clause of the First Amendment declares, “Congress shall make no law . . . prohibit- ing the free exercise [of religion].”

Freedom of speech and expression includes the right to speak and the right to be heard. Congress has

passed laws to limit speech that advocates over- throwing the government by force. The “clear and present danger” test was replaced by the “imminent lawless action” test to determine when speech should not be protected by the First Amendment. As public employees, law enforcement officers’ speech is protected under the First Amendment only if it is (1)! a matter of public concern or (2) unrelated to employment.

Symbolic acts are included within the protection of the First Amendment.

Freedom of the press applies to all types of printed and broadcast material, including books, newspapers, magazines, pamphlets, films, and radio and television programs.

Prisoners’ rights based on the First Amendment involve censorship of mail, expression within the institution, association within the institution, religion, appearance, and visitation rights.

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Mayes, Steve. “Clackamas Man Exercises Free Speech Rights by Giving Cops the Finger.” The Oregonian, March 1, 2010. Retrieved May 15, 2013, from www.oregonlive.com/clackamascounty/index.ssf/ 2010/02/clackamas_man_exercises_free_s.html.

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Shin, Annys. “Traffic Stop Video on YouTube Sparks Debate on Police Use of Md. Wiretap Laws.” The Washington Post, June 16, 2010b. Retrieved May 18, 2013, from www.washingtonpost.com/wp-dyn/ content/article/2010/06/15/AR2010061505556. html.

Slocumb, Dennis J., and Roberts, Rich. “Opposing View on Cops and Cameras: Respect Officers’ Rights.” USA Today, July 15, 2010. Retrieved May 18, 2013, from http://usatoday30.usatoday.com/ news/opinion/editorials/2010-07-15-editorial15_ ST1_N.htm.

“The Trial of John Peter Zenger.” Philadelphia, PA: Independence Hall Association, no date. Retrieved!May 18, 2013, from www.ushistory.org/ us/7c.asp.

Vernon, Rebecca, and Wu, Frederick. “Humanitarian Law Project v. Holder (09-89); Holder v. Humanitarian Law Project (08-1498).” Legal Information Institute Bulletin, Cornell University Law School, 2010. Retrieved May 18, 2013, from www.law.cornell .edu/supct/cert/09-89

Cases Cited Abington School District v. Schempp, 374 U.S. 203 (1963) Abrams v. United States, 250 U.S. 616 (1919) ACLU v. Mukasey, 534 F. 3d 181 (2008) Agostini v. Felton, 521 U.S. 203 (1997) Aguilar v. Felton, 473 U.S. 402 (1985) Barnes v. Glen Theatre, 501 U.S. 560 (1991) Beard v. Banks, 548 U.S. 521 (2006) Brandenburg v. Ohio, 395 U.S. 444 (1969) Brown v. Entertainment Merchant’s Association, 131 S.Ct.

2729 (2011) Cantwell v. Connecticut, 310 U.S. 296 (1940) Chicago v. Morales, 527 U.S. 41 (1999) Christian Legal Society v. Martinez, 561 U.S. ___ (2010) Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520

(1993) City of Boerne v. Flores, 521 U.S. 507 (1997) City of Ladue v. Gilleo, 512 U.S. 43 (1994) City of San Diego v. Roe, 543 U.S. 77 (2004) Clark v. Community for Creative Non-Violence, 468 U.S.

288 (1984) Cohen v. California, 403 U.S. 15 (1971)

Cohen v. Cowles Media Company, 501 U.S. 663 (1991) Connick v. Myers, 461 U.S. 138 (1983) Cruz v. Beto, 405 U.S. 319 (1972) Davis v. Beason, 133 U.S. 333 (1890) DeJonge v. Oregon, 299 U.S. 353 (1937) Dennis v. United States, 341 U.S. 494 (1951) Duryea v. Guarnieri, 564 U.S. ____ (2011) Employment Division v. Smith, 494 U.S. 872 (1990) Engle v. Vitale, 370 U.S. 421 (1962) Everson v. Board of Education, 330 U.S. 1 (1947) Fogel v. Collins, 531 F.3d 824 (9th Cir. 2008) Fulwood v. Clemmer, 206 F. Supp. 370 (D.C. Cir. 1962) Gannett v. DePasquale, 443 U.S. 368 (1979) Garcetti et al. v. Ceballos, 547 U.S. 410 (2006) Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) Gitlow v. New York, 268 U.S. 652 (1925) Goldman v. Weinberger, 475 U.S. 503 (1986) Griffin v. Coughlin, 673 N.E. 2d 98 (1996), cert. denied, 519

U.S. 1054 (1997) Hamilton v. Regents of University of California, 293 U.S.

245 (1934)

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Chapter 5 The First Amendment: Basic Freedoms 165

Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981)

Holder v. Humanitarian Law Project, 651 U.S. (2010) Hutchinson v. Proxmire, 443 U.S. 111 (1979) Jacobson v. Massachusetts, 197 U.S. 11 (1905) Kelley v. Johnson, 425 U.S. 238 (1976) Konigsberg v. State Bar of California, 366 U.S. 36 (1961) Kunz v. New York, 340 U.S. 290 (1951) Lemon v. Kurtzman, 403 U.S. 602 (1971) Lewis v. City of New Orleans, 415 U.S. 130 (1974) Lynch v. Donnelly, 465 U.S. 668 (1984) Lyng v. Northwest Indian Cemetery Protective Association,

485 U.S. 439 (1988) Madsen v. Women’s Health Center, Inc., 512 U.S. 753

(1994) McCreary County v. ACLU, 545 U.S.844 (2005) McIntyre v. Ohio Elections Commission, 514 U.S. 334

(1995) Miller v. California, 413 U.S. 15 (1973) Minnesota v. Hershberger, 495 U.S. 901 (1990) Mukasey v. American Civil Liberties Union, 129 S. Ct. 1032

(2009) Murray v. Curlett, 374 U.S. 203 (1963) NAACP v. Alabama, 357 U.S. 449 (1958) National Socialist Party v. Skokie, 432 U.S. 43 (1977) Near v. Minnesota, 283 U.S. 697 (1931) New York Times v. Sullivan, 376 U.S. 254 (1964) New York v. Zenger, 17 Howell’s St. Tr. 675 (1735) O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) Pickering v. Board of Education, 391 U.S. 563 (1968) Prewitt v. State of Arizona ex rel. Eyman, 315 F. Supp. 793

(D.C. Ariz. 1969) Prince v. Massachusetts, 321 U.S. 158 (1944) Procunier v. Martinez, 416 U.S. 396 (1974) R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) Reno v. American Civil Liberties Union, 521 U.S. 844

(1997) Reynolds v. United States, 98 U.S. 145 (1879) Roberts v. United States Jaycees, 468 U.S. 609 (1984)

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)

Roth v. United States, 354 U.S. 476 (1957) Schenck v. United States, 249 U.S. 47 (1919) Shaw v. Murphy, 532 U.S. 223 (2001) Sheppard v. Maxwell, 384 U.S. 333 (1966) Smilow v. United States, 465 F.2d 802, vacated on other

grounds, 409 U.S. 944 (1972) Snyder v. Phelps, 562 U.S. ____ (2011) Spence v. State of Washington, 418 U.S. 405 (1974) State v. Massey, 229 N.C. 734, 51 S.E.2d 179 (1949) Stone v. Graham, 449 U.S. 39 (1980) Street v. New York, 394 U.S. 576 (1969) Texas v. Johnson, 491 U.S. 397 (1989) Thornburg v. Abbott, 490 U.S. 401 (1989) Turner v. Safley, 482 U.S. 78 (1987) United States v. Allen, 760 F.2d 447 (1985) United States v. Alvarez, 567 U.S. ____ (2012) United States v. American Library Association, 539 U.S.

194 (2003) United States v. Dickens, 695 F.2d 765, cert denied 460

U.S. 1092 (1983) United States v. Lee, 455 U.S. 252 (1982) United States v. O’Brien, 391 U.S. 367 (1968) United States v. Slabaugh, 852 F.2d 1081 (8th Cir. 1988) United States v. Starks, 515 F.2d 112 (1975) United States v. Stevens, 559 U.S. ___ (2010) Van Orden v. Perry, 545 U.S. 677 (2005) Virginia v. Black, 538 U.S. 343 (2003) Wallace v. Jaffree, 472 U.S. 38 (1985) Warner v. Orange County Dept. of Probation, 827 F. Supp.

261, 267 (S.D.N.Y. 1993) West Virginia State Board of Education v. Barnette, 319 U.S.

624 (1943) Wilson v. Swing, 463 F. Supp. 555 (M.D.N.C. 1978) Wooley v. Maynard, 430 U.S. 705 (1977) Zobrest v. Catalina Foothills School District, 509 U.S. 1

(1993) Zurcher v. Stanford Daily, 436 U.S. 547 (1978)

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166

CHAPTER 6

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The Second Amendment The Gun Control Controversy

The Second Amendment’s “right to bear arms” is a hotly debated issue in the United States. Private ownership of firearms in the nation exceeds 200 million, and every year about 4.5 million firearms are sold.

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Chapter 6 The Second Amendment: The Gun Control Controversy 167

castle law Commerce Clause demurrer dictum

militia Operative Clause Prefactory Clause prohibited persons

straw purchase Sunset Clause

Can You Define?

! Historically, who was included in the militia and what was required of them?

! What a central controversy over the Second Amendment has involved?

! Whether the number of militia groups in the United States is growing or decreasing?

! What opposing interpretations of the Second Amendment have clashed over the years?

! Whether the Supreme Court has interpreted the Second Amendment right to bear arms as an individual or a state right?

! If the Second Amendment has been incorporated into the Fourteenth Amendment and the case that determined this?

! What the Brady Law accomplished? ! What the Law Enforcement Officers Safety Act (LEOSA) allows and

what its three goals are?

Do You Know . . .

Introduction The Second Amendment protects the “right of the people to keep and bear arms.” However, the amendment also begins with a phrase explaining its purpose: that a “well-regulated militia” is “necessary to the security of a free state.” At a time when personal freedoms and concerns for self-protection are in political debate with whether more guns means more safety, the Second Amendment is being subjected to careful scrutiny.

What exactly does this brief but controversial amendment mean? Does this phrase mean that the people are allowed to bear arms only if they are part of a mili- tia or defending this country? Does it mean anyone can possess any gun any time? Can guns be used for national defense but not for self-defense? These questions are part of the ongoing debate over gun control and the Second Amendment.

This chapter begins with a brief historical background on the Second Amendment and a look at how interpretation of this amendment has fueled the debate concerning individual-versus-state rights in matters of gun control. Then the slow start regarding early case law and the Second Amendment is presented, followed by the Heller deci- sion and how this case represented a shift in the Court’s interpretation of Second Amendment rights. Next is a discussion of the incorporation of the Second Amend- ment, making it applicable to the states, and a look at some of the variation in state

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168 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

and local gun laws. Then federal regulations aimed at gun control are examined, followed by a discussion of the association between guns, crime, and violence. Cases governing the police response to gun possession reports are covered next. The chap- ter concludes with a consideration of the current gun control debate, gun control as a political issue, and whether finding common ground and a compromise is possible.

Historical Background The Second Amendment, like the rest of the Constitution, was drafted in a time when fear of tyranny from a strong central government was uppermost in the new Ameri- cans’ minds. During the colonial period and the country’s earliest years, a permanent army was not possible because of lack of funding and personnel, as well as organi- zational challenges. In many ways, the colonists were on their own and needed to be prepared, especially with Britain challenging their new country. The result: forma- tion of state militias. A militia was a group of citizens who defended their commu- nity as emergencies arose. Militias consisted mainly of able-bodied adult male civilians and some professional soldiers when available and necessary. Militias did not encompass the entire national population but did provide necessary protection and a sense of security.

If militia members were called to service, they were to bring their own arms and ammunition. The private populace’s arms made up the militia’s arms. Most states mandated that all male citizens between certain ages, for instance 18 to 45, be members of the militia. States directed that these males were to be armed and taught basic military skills and protocol. In Federalist Paper Number 46, James Madison emphasized to citizens they had “the advan- tage of being armed, which the Americans possess over the people of almost every other nation.”

Some suggest firearms are part of the U.S. fabric. Indeed, the U.S. attitude toward weapons arose from the practical need for the pioneers to protect themselves against any number of threats, as well as the philosophical belief that they needed to protect themselves from political tyranny. Today, however, a divide exists among citizens regarding guns and gun ownership. To many, a gun is a symbol of violence and aggression, but to others it symbolizes self-sufficiency, independence, and per- sonal safety. Such emotional imagery may stand in the way of intelligent debate.

The Debate: Interpreting the Second Amendment In 1794, the militia was composed of all free male citizens, armed with their own muskets, bayonets, and rifles. Now, the militia is generally considered to consist of National Guard units in every state, armed with government-supplied and govern- ment-owned sophisticated modern weaponry. How might the great differences in today’s militia from that in 1794 affect the interpretation of the Second Amendment?

Modern-Day Militias in the United States Confrontations between individuals and government continue to occur in this coun- try involving those some consider the equivalent of modern militia members, only

militia an armed group of citizens who defend their community as emergencies arise

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Chapter 6 The Second Amendment: The Gun Control Controversy 169

taking a stand for their own freedom. In 1992, at Ruby Ridge in Idaho, the FBI, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and U.S. marshals were involved in a standoff with an armed family who refused to obey conventional law and stated, “The tyrant’s blood shall flow. . . . Whether we live or die we will not obey you . . . war is upon our land.” The ensuing shootout, which ended with the deaths of two family members and one law enforcement official, was a hotly debated action.

In 1993, a seven-week standoff occurred in Waco, Texas, between the Branch Davidian religious group and the FBI and ATF. The siege initiated when the govern- ment attempted to force access to the Branch Davidian compound while investigat- ing allegations that included polygamy, child abuse, and illegal weapons possession. The ordeal ended with the deaths of 74 compound members, who chose to burn to death rather than surrender when the compound caught fire.

In 1996, an 81-day standoff occurred between the FBI and the Montana “Free- men,” who considered themselves a Christian patriot group. The Freemen claimed land as their own sovereign nation and refused to abide by laws with which they disagreed. The situation was resolved peacefully. However, the subject will no doubt continue to address the tension between the Constitution and individual rights. Some people today feel much like those more than 200 years ago—that the government has become too powerful and that individuals need to reclaim that power, often with the firearms they believe they are entitled to possess.

The number of hard-core hate groups currently active in the United States exceeds 1,000, up from 602 in 2000, and the overall number of active conspiracy- minded antigovernment “patriot” groups, including militias and other organiza- tions that view the federal government as part of a plot to take Americans’ guns and destroy their liberties while creating a “one-world government,” has risen from a mere 149 organizations in 2008 to an all-time high of 1,360 in 2012 (Potok, 2013).

By Robbie Brown (New York Times, September 11, 2012)

Five more people in southeast Georgia have been charged with helping an antigovernment militia accused of killing two people. District Attorney Tom Durden of the Atlantic Judicial Circuit said Tuesday that five suspects had committed burglaries, thefts and car break-ins to finance a militia called FEAR, or Forever Enduring Always Ready. Three other people suspected of membership in the militia already face the death penalty for the murder of a soldier and his girlfriend in December. Prosecutors say the militia was formed by former soldiers at Fort Stewart near Savannah. The group plotted several attacks, including poisoning the apple crop in Washington State, attacking a dam and assassinating President Obama. The five charged are Christopher Jenderseck, Adam Dearman, Timothy Joiner, Anthony Garner and Randall Blake Dearman.

“Georgia: More Charges in Militia Plot”

IN THE NEWS

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170 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Again, the need to balance individual rights with those of the government becomes apparent.

Balancing Individual and States’ Rights Two opposing interpretations of the Second Amendment have clashed in past decades and have revolved around the phrasing

of! this amendment into two parts: a Prefactory Clause and an Operative Clause. A! Prefactory Clause announces a purpose but does not necessarily restrict the Operative Clause. An Operative Clause identifies the action to be taken or prohib- ited. The debate surrounding the Second Amendment centers around the Prefac- tory Clause and the intentions of the founding fathers.

Individual Rights Proponents of “the right to bear arms,” including the National Rifle Association (NRA), endorse an individual-rights interpretation

that would guarantee that right to all citizens. Individual rights proponents see the amendment as primarily guaranteeing the right of the people, not the states. Although they concede that a state right is embodied within the amendment, that right is a product of the more central individual right. By guaranteeing the arms of the individuals who make up the militia, the Constitu- tion guaranteed the militia’s arms. The collective right that pre- serves the states’ militia is guaranteed only if the individual right is first!maintained.

The amendment is placed in close proximity to other individ- ual rights, although the states are not expressly mentioned until the Tenth Amendment. Madison’s notes state the amendments

were to relate first to private rights. Furthermore, arms were such a pervasive part of colonial life that five state conventions recommended an amendment to guaran- tee the right to bear arms.

Support for this view may be found in the Los Angeles riots that followed the not-guilty jury verdict in the Rodney King case. Citizens cheered the shopkeepers in Koreatown as they defended their property with weapons. A sobering lesson of the Los Angeles uprising for many people was that the police cannot protect every- one during a citywide emergency. Many gun owners, including a great many hand- gun owners, cite defense against crime as their main reason for owning a gun.

Likewise, some activist groups argue that an armed citizenry is the best defense against tyranny and that their thinking is in line with those who wrote the Second Amendment. This view, however, has not, until recently, been supported by the courts. The courts throughout history have consistently rejected the individual rights view in favor of the states’ rights interpretation.

States’ Rights The Commerce Clause of the U.S. Constitution (Article 1, Sec- tion 8, Clause 3) provides the legal foundation for much of the federal govern- ment’s regulatory authority, including firearms. Those favoring a states’ rights interpretation see the Second Amendment as protecting and modifying Article 1, Section 8 of the Constitution, which grants Congress the power “to provide for the calling forth of the Militia to execute the laws of the Union.” The purpose of the amendment is to “assure the continuation and render possible the effectiveness of

Prefactory Clause announces a purpose but does not necessarily restrict the Operative Clause

Operative Clause identifies the action to be taken or prohibited

Commerce Clause section of the U.S. Constitution (Article 1, Section 8, Clause 3) that provides the legal foundation for much of the federal government’s regulatory authority, including firearms

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Chapter 6 The Second Amendment: The Gun Control Controversy 171

such forces” (United States v. Miller, 1939). Furthermore, the Second Amendment contains a sort of mini-preamble, clearly proclaiming as its purpose the fostering of a “well-regulated Militia,” a purpose extraneous to one allowing individual posses- sion of weapons for use against fellow citizens. Consequently, the courts have consistently interpreted the Second Amendment as allowing states to regulate pri- vate gun ownership.

This interpretation is linked to the traditional Whig fear of standing armies. The amendment preserves the states’ power to defend against foreign and domestic enemies, and it reduces the need for a large standing army, which was seen as inherently contrary to preserving a free, democratic people.

Early Case Law Regarding the Second Amendment: A Slow Start Federal regulation of firearms possession was virtually nonexistent for more than 140 years after ratification of the Bill of Rights. The first notable case involving the Second Amendment was United States v. Cruikshank (1875), in which the U.S. Supreme Court, responding to a claim of a right to bear arms for a lawful purpose, ruled, “This is not a right granted by the Constitution. . . . The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than it shall not be infringed by Congress.”

Despite this decision, more than half a century passed before the federal govern- ment made an effort to regulate the possession of firearms, mainly because the Court had little reason to interpret the amendment. The National Firearms Act of 1934 was the first such effort at federal regulation. Section 11 of the Act forbade a person “who has not in his possession a stamp-affixed order (from the person requesting the fire- arm) to ship, carry or deliver any firearm in interstate commerce.”

One of the first important rulings on the Second Amendment involved this act. Jack Miller was convicted of violating the National Firearms Act by feloniously transporting a double-barreled, 12-gauge shotgun (having a barrel less than 18! inches) from Oklahoma to Arkansas (United States v. Miller, 1939). The district court granted the defense a demurrer, a request that a suit be dismissed because although the facts are true, they do not sustain the claim against the defendant. The United States appealed the demurrer and certiorari was granted. The Supreme Court interpreted the Second Amendment as providing for maintaining a militia: “With the obvious purpose to assure the continuation and render possible the effec- tiveness of such forces [as outlined in Article 1, Section 8 of the Constitution] the declaration and guarantee of the Second Amendment were made. It must be inter- preted and applied with that view in mind.”

This case indicates that the amendment protects only arms that bear some relation to preserving the militia. The Court held, “In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18!inches in length, at this time, has some reasonable relationship to the preserva- tion or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Although this decision held that a law prohibiting transportation of unregistered shotguns in interstate commerce was not unconstitutional, any precedent established by

demurrer a request that a suit be dismissed because the facts do not sustain the claim against the defendant

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172 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Miller is debatable because the case dealt with the possession of not just any gun but of a specific type of gun.

The decision was not intended to be a broadly sweeping deci- sion that designated which arms are protected and which are not. The Court also clearly stated its position on individual rights and the Second Amendment: “The right to keep and bear arms is not

a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing on that right.”

This position was reiterated later in Stevens v. United States (1971), when a federal circuit court held that the Second Amendment applies “only to the right of the state to maintain a militia and not to the individual’s right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.”

A Shift in Interpretation: The Heller Decision In the 70 years following Miller, lower federal and state courts interpreted the Sec- ond Amendment in more than 30 cases, and in every case except one, the courts held that the amendment referred to the right to keep and bear arms only in con- nection with a state militia. The aberrant decision came in United States v. Emerson (1999), when U.S. District Judge Sam R. Cummings went against all federal court precedent and restored a domestic abuser’s firearms, citing the Second Amendment as guaranteeing the individual’s right to keep and bear arms.

The Supreme Court has ruled on the amendment relatively few times compared with contests over other amendments. Until recently, United States v. Miller (1939) was the only Supreme Court case to specifically address the Second Amendment’s scope. Most of the adjudication has been at the federal district level and has seldom gone beyond the court of appeals. The Supreme Court has repeatedly denied cer- tiorari in cases in which the individual right to bear arms is at issue.

However, in District of Columbia v. Heller (2008), the Supreme Court took a stand on the controversy. Dick Heller was a special DC police officer who applied to reg- ister a handgun he wished to keep at home, but his application was denied. A District of Columbia law bans handgun possession. The law authorizes the police chief to issue one-year licenses but requires residents to keep lawfully owned fire- arms unloaded and disassembled or bound by a trigger lock or similar device.

Heller sued the city on Second Amendment grounds. The district court dis- missed the suit, but the DC Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunc- tional even when necessary for self-defense, violated that right. The Supreme Court affirmed, holding,

The Second Amendment protects an individual right to possess a firearm uncon- nected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

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Chapter 6 The Second Amendment: The Gun Control Controversy 173

The Amendment’s Prefactory Clause announces a purpose but does not limit or expand the second part, the Operative Clause. The Operative Clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

Heller was important because it marked the first time the Court had ruled that the Second Amendment protects an individual right to own guns. In reality, however, the ruling affected only the federal government and Washington, DC, by virtue of its federal nature, because, at that point, the Second Amendment had not yet been incorporated. Heller did, however, open the door to incorporating the amendment.

Incorporation of the Second Amendment In Presser v. Illinois (1886), the Court refused to incorporate the Second Amend- ment into the Fourteenth Amendment. Herman Presser was part of a citizen militia group of armed ethnic German workers, associated with the Socialist Labor Party. The group had been formed to counter the armed private armies of companies in Chicago. The indictment charged that Presser, on September 24, 1879, “did unlawfully belong to, and did parade and drill in the city of Chicago with an unauthorized body of men with arms, who had associated themselves together as a military company and organization, without having a license from the Governor, and not being a part of, or belonging to, ‘the regular organized volunteer militia’ of the State of Illinois, or the troops of the United States.” A motion to dismiss the indictment was overruled. Presser then pleaded not guilty, and, with both parties having waived a jury trial, the case was tried by the court. In refusing to incorporate the Second Amendment into the Fourteenth Amend- ment the Court stated,

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.

The Court found Presser guilty and sentenced him to pay a fine of $10. In dictum (the court’s side opinion) on a case that involved illegal search and

seizure, Justice William Douglas summed up the federal position on gun control (Adams v. Williams, 1972): “A powerful lobby dins into the ears of our citizenry that!these gun purchases are constitutional rights protected by the Second Amend- ment. . . . There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted.”

The Second Amendment remained unincorporated until 2010, when McDonald v. Chicago held that the right of an individual to “keep and bear arms” is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The decision cleared up the uncertainty left in the wake of Heller on the scope of gun rights in regard to the states.

dictum (plural dicta) statements by a court that do not deal with the main issue in the case or an additional discussion by the court

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CASE IN BRIEF District of Columbia v. Heller (2008)

ISSUE Is the Second Amend- ment violated by a provision of the DC code that bans the pos- session of functional handguns in the home?

RULING Yes. The Second Amendment protects an individual’s right to possess a functional handgun in one’s home and to use it for tradition- ally lawful purposes, regardless of any connection to the militia.

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174 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

After Heller, McDonald et al. challenged the City of Chicago and the Village of Oak Park laws that banned almost all handgun possession by private individuals, asserting the ban left them vulnerable to criminals. The Seventh Circuit previously had upheld the constitutionality of the handgun ban and, relying on precedent cases, affirmed that Heller explicitly refrained from voicing an opinion on whether the Second Amendment applied to the states. However, the Supreme Court held that “the Fourteenth Amendment incorporates the Second Amendment right, rec- ognized in Heller, to keep and bear arms for the purpose of self-defense.” The Court reversed and remanded, holding that the right to keep and bear arms is fundamen- tal to our scheme of ordered liberty and that it was clear that the framers of the Fourteenth Amendment deemed such a right as!fundamental.

The day the case was decided, Paul Helmke, president of the Brady Center and Brady Campaign to Prevent Gun Violence, issued the following statement:

We can expect two things as a result of today’s decision by the U.S. Supreme Court in McDonald v. Chicago: the gun lobby and gun criminals will use it to try

to strike down gun laws, and those legal challenges will con- tinue to fail.

We are pleased that the Court reaffirmed its language in District of Columbia v. Heller that the Second Amendment indi- vidual right to possess guns in the home for self-defense does not prevent our elected representatives from enacting com- mon-sense gun laws to protect our communities from gun violence. We are reassured that the Court has rejected, once again, the gun lobby argument that its “any gun, for anybody, anywhere” agenda is protected by the Constitution. The Court again recognized that the Second Amendment allows for rea- sonable restrictions on firearms, including who can have them and under what conditions, where they can be taken and what types of firearms are available.

Chicago can amend its gun laws to comply with this ruling while continuing to have strong, comprehensive and Constitutional gun laws, just as Washington, DC, has done. After the Heller decision, at least 240 legal challenges have been brought to existing gun laws, nearly all of which have been summarily dis- missed. There is nothing in today’s decision that should prevent any state or local government from successfully defending, maintaining, or passing, sensi- ble, strong gun laws. (“Statement of Paul Helmke,” 2010)

Variation in State and Local Gun Laws In Heller, Justice Antonin Scalia, writing for the 5–4 majority, noted, “Like most rights, the right secured by the Second Amendment is not unlimited. . . . Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the posses- sion of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as school and government buildings, or laws impos- ing conditions and qualifications on the commercial sale of arms.” Thus, despite the incorporation of the Second Amendment right to keep and bear arms, Heller left open two important questions: (1) what are the limits and contours of the right to own a

MYTH The Constitution asserts that the right to own a handgun cannot be limited or restricted in any fash- ion. A person can own any gun and carry it anywhere in anyway.

REALITY On the contrary, the Court’s ruling in Heller affirmed that some people can be prohibited from possessing a gun, some places may prohibit guns, and sales of guns may be regulated. The Court emphasized that nothing in the Heller opinion casts doubt on these facts.

CASE IN BRIEF McDonald v. City of Chicago (2010)

ISSUE Is the Second Amend- ment applicable to the states?

RULING Yes. The Fourteenth Amendment’s Due Process Clause has long been the vehicle for applying constitutional rights to the states, and because the right to keep and bear arms for self-defense is “fundamental to the Nation’s scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition,” the right should be applied to the states through it.

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Chapter 6 The Second Amendment: The Gun Control Controversy 175

gun (e.g., types of guns, magazine capacity, etc.), and (2) what test or level of scrutiny should be applied when evaluating these laws? It is in the effort to answer these questions that variation among state and local gun laws are identified.

One point of contention in contemporary gun control debate centers on what standard of review a court should use to evaluate laws that impose a burden on a person’s Second Amendment right. For example, in Gowder v. City of Chicago (2012), the federal district court analyzed an ordinance under a “text, history, and tradi- tion” approach to explain why the law was unconstitutional. In contrast, the court in United States v. Decastro (2012) used an analysis that reserved heightened scrutiny for those laws that substantially burden the right to bear arms. To show when a heightened form of scrutiny is unnecessary, the Decastro court explained that a “law that regulates the availability of firearms is not a substantial burden on the right to keep and bear arms if adequate alternatives remain for law-abiding citizens to acquire a firearm for self-defense.” In addressing the scrutiny requirement, Judge Diane S. Sykes observed in the now-vacated Skoien panel opinion:

The Second Amendment is no more susceptible to a one-size-fits-all standard of review than any other constitutional right. Gun-control regulations impose vary- ing degrees of burden on Second Amendment rights, and individual assertions of the right will come in many forms. A severe burden on the core Second Amendment right of armed self-defense should require strong justification. But less severe burdens on the right, laws that merely regulate rather than restrict, and laws that do not implicate the central self-defense concern of the Second Amendment, may be more easily justified. (United States v. Skoien, 2009)

States retain the right to impose stricter regulations related to firearms than those required by the federal government. Before looking at federal regulation of firearms, consider first how states differ in their laws pertaining to concealed carry, defense of one’s home and restrictions on the types of firearms legally allowed.

Concealed Carry Laws States vary in their laws regulating concealed carry, or carrying a concealed weapon (CCW), also called right-to-carry (RTC). Some states have laws that say carrying a concealed weapon is a citizen’s basic right. These states allow permits to be easily obtained, provided the gun buyer meets certain background requirements, includ- ing not having violated certain laws or been determined to be mentally ill. Some states also require the completion of classroom and range training courses. Other states limit CCW permits to when employment or personal safety justifies it.

Researchers at Johns Hopkins University Center for Gun Policy and Research provide examples reflecting the array of past and present legislation, including a Virginia law limiting people to buying only one handgun per month; a Washington, DC, law banning most new handgun sales to the public (since relaxed); and a Mary- land law prohibiting sales of low-cost, so-called Saturday-night specials. Although some states require licensing handgun owners or registering guns, or both, other states have sought to require the government to issue a permit unless they have a compelling reason not to.

Many states have established “gun-free zones” around schools, hospitals, court- houses, venues for public gatherings, and other “sensitive” areas, with conspicuous

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176 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

signs prohibiting guns on the premises, violation of which is grounds for revocation of an offender’s concealed carry permit. How effective such signs are is debatable. It is likely that only law-abiding citizens will adhere to them. Advocates of gun-free zones believe such designations make people feel safer, whereas critics note that those wishing to commit egregious crime such as mass murder actually choose such areas because those inside are disarmed and therefore less able to fight back.

In United States v. Lopez (1995), the Supreme Court held 5–4 the federal law ban- ning guns near schools to be unconstitutional, effectively striking down the Gun-Free School Zones Act. Although Justice Department lawyers argued that the law was a legitimate extension of Congress’s power to regulate interstate commerce, Chief Jus- tice William H. Rehnquist found the law “has nothing to do with commerce or any sort of enterprise.” This overturning of the Gun-Free School Zones Act may not have much practical effect, however, because more than 40 states, exercising their right to pass laws controlling guns, have banned possession of handguns near schools.

Police departments commonly seek restrictions on their officers’ off-duty activi- ties. However, when such restrictions impinge on officers’ constitutional rights, obvious problems ensue. Such was the case in Edwards v. City of Goldsboro, N.C. (1999). In 1995, North Carolina enacted a concealed carry handgun bill that enabled citizens to carry concealed handguns after mandatory training and screening. Sergeant Kenneth Edwards, a 20-year veteran of the City of Goldsboro’s police department and a firearms instructor, had completed specific training to teach the concealed carry course. To run his own part-time business, he obtained a business license, scheduled instructional classes to be held during off-duty time at a private location, and submitted a request for off-duty employment.

The police chief, a vocal opponent of the concealed carry law, denied Edwards’s request for off-duty employment because of the issues that surround carrying a weapon. Edwards argued that the chief, motivated by personal and political rea- sons, had issued an illegal order prohibiting the officer’s expression and associa- tion. The Fourth Circuit Court of Appeals agreed, observing that the court must “balance the interests of the (public employee), as a citizen, in commenting upon matters of public concern, and the interest of the (government), as an employer, in promoting the efficiency and public services it performs through its employees.” The Court concluded the balancing test weighed in favor of Edwards: “We cannot discern any legitimate interest of the defendants in preventing a police officer of the city from conducting a concealed handgun safety course for the public that is a creature of state law.”

Castle Laws Castle laws are passed by states, and not all states have such laws. A castle law is a legal claim based on English common law that designates one’s place of residence (or, in some states, any place legally occupied, such as one’s car or place of work) as a place in which one enjoys protection from illegal trespassing and violent attack. It gives a person the legal right to use deadly force to defend that place (“A man’s home is his ‘castle’”), and any other innocent persons legally inside it, from violent attack or an intrusion that may lead to violent attack. Legally, use of deadly force that actually results in death may be defended as justifiable homicide.

One state with a castle law is Indiana, which has had a codified Castle Doctrine since 2006. Under this statute, a person is justified in using reasonable force against

castle law a legal claim based on English common law that designates one’s place of residence (or, in some states, any place legally occupied, such as one’s car or place of work) as a place in which one enjoys protection from illegal trespassing and violent attack

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Chapter 6 The Second Amendment: The Gun Control Controversy 177

any other person to protect themselves or a third party from what the person rea- sonably believes to be the imminent use of unlawful force. Furthermore, a person has no duty to retreat in his or her own home if they reasonably believe that that force, including deadly force, is necessary to prevent serious bodily injury to them- selves or a third party or the commission of a forcible felony. Finally, the statute provides that no person in Indiana shall be placed in legal jeopardy of any kind whatsoever for protecting themselves or a third party by reasonable means neces- sary (Indiana Code (IC) 35-41-3-2). Essentially, this doctrine establishes both a defense against criminal prosecution and immunity from civil liability for the use of force against an intruder in one’s own home (Eldridge, 2012).

In March 2012, in the wake of Barnes v. State (2011), the Indiana legislature modi- fied the law, making it legal under certain circumstances for a citizen to invoke the Castle Doctrine and use deadly force against anyone, including police officers, who “unlawfully” intrudes into the citizen’s home, curtilage, or motor vehicle, again with no duty to retreat. Eldridge (2012) cautions: “Ultimately, the implications of this extension of use of force to ‘castle defenders’ in the modern era will likely result in more violence exercised by people with less training and the further erosion of respect for the authority of our institutions, officers, courts, and the rule of law.”

Some states have “Make My Day” Laws, a nickname referring to the classic line spoken by character Harry Callahan (played by Clint Eastwood) in the 1983 film Sudden Impact, “Go ahead, make my day,” and first used by Colorado in passing a 1985 statute that protects people against any criminal charge or civil suit if they use force, including deadly force, against an invader of their home.

Other states have nicknamed their castle laws “Stand Your Ground” laws. Florida’s “Stand Your Ground” law, passed in 2005, expanded the definition of jus- tifiable self-defense and provided that anyone claiming to feel “threatened” no longer had an obligation to retreat, call police, or avoid use of deadly force. This law was at the center of the murder trial involving the shooting death of 17-year-old Trayvon Martin by block watch-coordinator George Zimmerman. Since it passed in Florida, at least 20 other states have enacted similar laws, intended to protect law- abiding citizens forced to fend off home invaders, muggers, and carjackers. The mere claim of fear provided the legal presumption that use of deadly force was justified.

Gun-control advocates immediately criticized the “Stand Your Ground” law when it was signed in 2005, with the Brady Campaign to Prevent Gun Violence handing out leaflets at the airport to warn visitors about the new law. The commu- nication director for the Brady Center called the law unnecessary, claiming, “There are some people in Florida who should be in jail who are not in jail because this new law was passed. It is frightfully dangerous to encourage the most aggressive people in society to take the law into their own hands” (Basu, 2010). The law has also com- plicated once-routine homicide prosecutions, with one prosecutor stating, “We have been forced to spend significant time and resources litigating for defendants charged with violent crime. The law has the great potential to be misapplied and could well protect violent criminals in specific cases” (Grimm, 2010). Defense attor- neys, however, often present the opposite view, stating that the law is fact-specific and can protect people from malicious prosecution (Basu, 2010).

Castle laws are significant in many cases involving the Fourth Amendment right to be free from “unreasonable” searches and seizures by law enforcement, as discussed in the following chapters.

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178 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Restrictions on Types of Firearms Although some weapons, such as fully automatic “machine guns” and those altered to be more conducive to criminal activity, such as sawed-off shotguns, have always been illegal for most people to own (law enforcement personnel and licensed collectors being the exception), what exactly constitutes a weapon or firearm has not been as easy to define. Some jurisdictions have included anything that explodes or projects anything, including paintball guns and bows and arrows, whereas others have sought to be more specific. The definition of “assault rifle” has generated its own share of debate with the Federal Assault Weapons Ban (a provi- sion of the Violent Crime Control and Law Enforcement Act of 1994).

MYTH A starter pistol or an “air gun” are not firearms and are not subject to federal or state laws.

REALITY Under the Gun Control Act of 1968, 18 USC Section 921 (a)(3), a firearm is “any weapon (including a starter gun) which will or is designed to or may be readily con- verted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; or any destructive device. Such term does not include an antique firearm.” As the ATF notes, a starter pistol is therefore a firearm, but an air gun is not because it uses compressed air, not an explo- sive agent, to expel a projectile. However, this is not to say state laws do not or cannot regulate or define air guns as firearms.

By Paul McEnroe and Glenn Howatt (Minneapolis/St. Paul Star Tribune, January 21, 2013)

They knew the house far too well. It was where Christian Philip Oberender, then 14 years old, had murdered his mother in a shotgun ambush in the fam- ily rec room in 1995.

Now, 18 years later, Carver County Sheriff Jim Olson was sending his deputies back to the home where Oberender still lives. Just two days earlier, Olson had scanned the day’s shift reports and froze when he tripped over Oberender’s name. A scan of a Facebook page then showed firearms spread out like a child’s trophies on a bed inside the home, along with notes about the Newtown, Conn., gunman who shot 20 children to death.

What Olson’s deputies found in the home in Watertown Township was chilling: 13 guns, including semi-automatic rifles, an AK-47, a Tommy gun, assorted shotguns and handguns, including a .50-caliber Desert Eagle.

Even more disturbing was the letter Oberender had written recently to his late mother, Mary: “I am so homicide,” it said in broken sentences. “I think about killing all the time. The monster want out. He only been out one time and someone die.”

Today, Oberender sits in a Carver County jail cell on a charge of being a felon in possession of firearms. And Olson, who investigated the 1995 murder as a young detective, finds his investigators at the center of a case that exposes the dangerous loopholes in the nation’s gun laws and Minnesota’s system of criminal background checks.

Even though Oberender killed his mother with a firearm, even though he was committed to the state hospital in St. Peter as mentally ill and dangerous more than a decade ago, he was able to obtain a permit to purchase firearms last May. That piece of paper gave Oberender, now 32, the ability to walk into any licensed Minnesota retailer and buy any assault weapon or pistol on the!rack.

“Murderous ‘Monster’ Acquires an Arsenal”

IN THE NEWS

(Continued)

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Chapter 6 The Second Amendment: The Gun Control Controversy 179

Dozens of other Minnesotans judged by a court to be mentally ill have also found that designation no barrier to obtaining deadly weapons.

A Star Tribune review of state court records found case after case in which individuals deemed mentally ill in judicial proceedings later wound up in possession of guns and accused of violent crimes.

At least 84 people have been charged since 2000 with illegal gun posses- sion or assault with a dangerous weapon even though they had previously been committed by a judge as mentally ill. Of that group, 29 were charged with multiple counts of weapons possession and nine were considered by a judge to be mentally ill and dangerous.

Additionally, the Minnesota Bureau of Criminal Apprehension (BCA) has more than 168,000 “suspense files”—records on Minnesotans who have been arrested since 1990 but whose files are so incomplete that the state can’t deter- mine if they should have the right to buy guns.

“The system failed in this case,” Olson said in an interview. “We are hav- ing discussions with the BCA to make sure there aren’t similar things like this hanging out there.”

Federal agents from the Bureau of Alcohol, Tobacco and Firearms are working with Olson’s investigators to sort out which guns Oberender might have bought from retailers using a permit he should never have possessed.

No Red Flags How did Christian Oberender succeed in obtaining a gun permit?

The answer lies in a combination of deceit on his part, failures in the state court system, and haphazard data collection by state agencies, according to interviews with law enforcement officials.

In Minnesota, a person seeking a permit to purchase an assault weapon or pistol must submit an application to the local police or sheriff’s department. There, the background check process begins with a query of the BCA’s sys- tem. If no disqualifications show up—such as a violent criminal record or mental illness commitment—the permit is granted.

No state permit is required to purchase a long rifle or a shotgun in Minnesota. Buyers going to a licensed retailer must pass a federal back- ground check at the counter—but those records can also be incomplete because they are supplied to the FBI by state agencies.

Minnesota’s gun laws don’t require an applicant to provide a fingerprint or a Social Security number to verify identity.

“This was one of our concerns during the ‘Conceal and Carry’ debate in Legislature 10 years ago and it was beaten down like everything else,” said Heather Martens, executive director of Protect Minnesota, a gun violence prevention organization.

Martens said Oberender’s case highlights the reluctance of lawmakers to tighten gun laws because they fear being accused of infringing on individual rights. “Public schoolteachers have to go through a complete background check, even including a fingerprint,” Martens said. “For buyers of assault

(Continued)

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180 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

weapons and pistols, law enforcement currently has only seven days to verify the person’s identity and criminal history—otherwise, a permit is automati- cally granted. We should at least allow police enough time to verify the per- son’s identity.”

At the BCA, a spokesperson said the agency’s database will catch closely matched names and aliases, but it would not snag a name like the one on Oberender’s application.

In Oberender’s case, the first glitch was that he simply transposed his first name and middle name on the gun permit application, apparently in an attempt to avoid recognition by the BCA’s database.

Additionally, when Oberender applied for his permit, records show, he lied about his mental health history, a move that triggered no red flag in the computers—the BCA’s system doesn’t contain any state commitment records of the mentally ill and dangerous.

“When we checked the record, there were no disqualifiers for a ‘Philip Christian Oberender,’” said Carver Deputy Jason Kamerud.

Last week, investigators also learned that Oberender’s juvenile record— where the murder of his mother is recorded—had not been attached to his criminal history at the BCA. Carver investigators are still puzzled over that.

In a statement, BCA spokesperson Jill Oliveira said, “There were no data submitted to the BCA about this individual; without it there can be no record.”

Loopholes The state’s criminal background system appears to contain another loophole for violent felons and persons found mentally ill and dangerous who want to escape scrutiny. Under state law, a person’s juvenile record is deleted from the BCA’s database when the individual turns 28 unless a judge says other- wise, Oliveira said. As a result, a person with a violent juvenile record—like Oberender—might still qualify to buy a gun if there were no felonies on his adult record.

State law requires the Minnesota Department of Human Services (DHS) to provide local law enforcement agencies with records of people who have been committed to institutional care for mental illness, if the applicant gives consent. But in general, the BCA said, a court order for civil commitment is classified as private data and is not available to the BCA.

“There is no way that BCA can have DHS’s commitment data,” Oliveira said in a statement. In addition, about half of those committed by a court are directed to community providers, not state facilities, thus leaving it to the courts, not DHS, to ensure that the records are sent.

It’s unclear whether Oberender’s mental health history was ever entered into any background check database.

In late 2011, DHS tried to streamline the process, opening an electronic portal for background checks used by law enforcement officials. Last year an estimated 32,000 checks were conducted, and about 500 people were flagged

(Continued)

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Chapter 6 The Second Amendment: The Gun Control Controversy 181

as potential risks. When that happens, the agency provides law enforcement officials with a deeper check on people who could be disqualified.

DHS also checks the state Supreme Court information system, currently the most accurate record of commitments, the agency said in a statement. “However,” it added, “without additional identifying information, it may be difficult to determine whether someone with a common name matches an entry in the system.”

“Want to Hurt People” Oberender received three years of intensive treatment for his mental illness as a juvenile, but in late 1998 was ordered committed as “mentally ill and dangerous” to the St. Peter state hospital. Mental health professionals wrote in court findings that they believed there was “a substantial likelihood that Oberender will engage in acts capable of inflicting serious physical harm to another.” There are apparently no public records of when he was released from St. Peter. In a 2003 interview with the Star Tribune, Oberender said he spent a year in a halfway house after his release and believed he was turning his life around thanks to “all kinds of treatment.”

The felony charge he now faces could put him in prison for up to five years, or it could lead a judge to send him back to St. Peter for psychiatric care.

Before his arrest, Oberender had been working as a skilled mechanic at a local sanitation hauling company.

David Peterson, a co-worker and friend, said he believes his friend must have been living two lives.

The two often spent time shooting guns behind Oberender’s home, at targets ranging from old television sets to junk cars and pop cans, all the while critiquing each weapon, he said. He said that Oberender told him that he bought most of his guns at two licensed retail stores in the area and that the weapons were all registered.

Oberender, he said, rarely mentioned his past, sharing only brief snippets about the murder.

Still, Peterson said he felt so comfortable with Oberender that he invited him to his home for social occasions and was planning on setting him up with a date. “He is an excellent, great friend,” Peterson said.

Then there was the other life, the one where a self-described “monster” lived inside the quiet young man.

“I think about killing all the time,” Oberender wrote. “Why god do I feel like this? The monster want to hurt people. Guns are too fast. The monster want it to be slow and painful. There is so much pain in my heart and soul. Me want other to feel it.”

Sheriff Olson read the letter after his investigators inventoried their evidence.

“It was chilling,” he said.

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182 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Federal Regulation and the Second Amendment Although until 2010 the Second Amendment was consistently interpreted to protect the states’ rights from federal intervention, the federal government passed several gun control laws before then. In 1938, the Federal Firearms Act was passed, requir- ing dealers shipping firearms across state lines and importers to be licensed by the federal government. In 1967, Congress passed the Omnibus Crime Control and Safe Streets Act, a portion of which made possession of firearms by convicted felons unlawful.

In 1968 after the assassinations of President John F. Kennedy, the Rev. Martin Luther King, Jr., and Senator Robert Kennedy, the Gun Control Act was passed, which banned federal licensees from selling firearms to prohibited persons, any- one they knew or had reasonable cause to believe was or had been:

! Under indictment for or convicted of a felony. ! A fugitive. ! A drug user. ! Adjudicated a mental defective or committed to a mental institution. ! Fit into other limited categories.

prohibited persons individuals to whom, under the Gun Control Act, selling a firearm is forbidden

Officer Weltz is sent to take a report of a domestic assault. When he arrives, the victim, Julie Johnson, explains that she and her husband, Jack Johnson, were having an argument over the bills. The hus- band became upset because he is out of work, and she was mad because he stopped looking for a job. He began drinking a lot of beer, and the argument continued.

During a particularly heated exchange, Jack slapped Julie on her cheek. After slapping Julie, Jack left the house. He was still gone when the officer arrived. Officer Weltz could see a red mark on Julie’s cheek, which was slightly swollen.

Officer Weltz’s department has started an initiative at prosecuting domestic violence more effectively. Part of this initiative is that the offi- cer is to ask the victim if the abuser/suspect has any guns. If so, the officer is to take them for “safekeeping” in an effort to keep any future abuse from involving the gun. Also, if later con- victed of domestic abuse, the abuser would not

be able to legally own a firearm because of fed- eral law.

Officer Weltz asks Julie if Jack owns any guns. She says that he owns a hunting rifle and a semiau- tomatic handgun. She shows them to Officer Weltz, who seizes them for safekeeping under his depart- ment policy. He brings them to the station where they are inventoried.

! Does the taking of the guns for safekeeping violate procedural due process?

! Would the length of time for “safekeeping” matter in making your decision?

! Do you think anyone can own any gun, or is the government allowed to regulate ownership to some degree?

Constitutional Law in ACTION

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Chapter 6 The Second Amendment: The Gun Control Controversy 183

The Supreme Court has ruled that the federal law that bars gun ownership by convicted felons does not apply to those convicted in foreign courts. In Small v. United States (2005), the Court overturned the conviction of a man who bought a gun in Pennsylvania after serving more than three years in a Japanese prison for smuggling guns into that country. Justice Stephen Breyer, writing for the majority, said the phrase “convicted in any court” applies only to convictions in U.S. federal or state courts, not to foreign courts.

The Gun Control Act also required the registration of “destructive devices,” including cannons, antitank guns, and bazookas, and prohibited importation of cheap, “junk” handguns, such as the $6 Saturday-night special that killed Sena- tor Kennedy.

In 1986, Congress banned the purchase and sale of all fully automatic weapons. All privately owned automatic weapons bought before 1986 were to be registered but would remain in their owners’ hands.

The Brady Act On November 30, 1993, President Bill Clinton signed the Brady Handgun Violence Prevention Act, and on February 28, 1994, the Brady Act went into effect. The law was named to honor Jim Brady, the press secretary to President Ronald Reagan, who was shot during a 1981 assassination attempt on the President. Despite the endorsement of four former presidents (Nixon, Ford, Carter, and Reagan) and the active support of President Clinton, seven years were required for the Brady Bill to get through Congress and become law.

The purpose of the law was to prevent prohibited persons from obtaining handguns. The act imposed a national five-day waiting period and required local law enforcement to conduct criminal background checks on all handgun purchas- ers. The mandatory waiting period, however, was merely an interim provision and expired on November 30, 1998. It was replaced by the permanent provision of a mandatory, computerized National Instant Criminal Background Check Sys- tem (NICS), which provides information for criminal background checks on all firearm purchasers.

Until February 2004, the NICS did not include a review of ter- rorist watch lists, according to the Government Accountability Office (GAO). However, being named on such a list is not one of the disqualifying criteria under federal gun control laws. The ter- rorist watch list was added so that federal officials might deter- mine if terror suspects might be disqualified from buying a gun on other grounds listed in the federal gun control laws.

In 1997 the Supreme Court ruled 5–4 in Printz v. United States that the federal government was not empowered to require state or local law enforcement agencies to run background checks on prospective gun buyers. According to the Court, the background- check provision violated the principle of separate state sover- eignty. Justice Scalia, writing for the narrow majority, stated, “The federal government may neither issue directives requiring the states to address particular problems, nor command the states’ officers, or those of their political subdivisions, to administer or

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184 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

enforce a federal regulatory program. Such commands are fundamentally incom- patible with our constitutional system of dual sovereignty.”

By November 1, 1998, the Brady Act was modified so applicants can receive immediate clearance to purchase a gun. The issuing law-enforcement agency can contact the FBI by computer and either receive clearance or be denied the permit. Unless federal computer records indicate that a purchaser is under indictment or information for, or has been convicted of, a felony; has a dishonorable discharge; has illegal alien status; or possesses any other possible disability, the purchaser may be approved at the time.

Although acknowledging that any background check is better than no back- ground check, critics of the instant check system say it sacrifices safety for conve- nience because many centralized records are kept only at the state level, and many more records, such as mental health records, may not be computerized. Also, rele- vant records may not be identified in time, if at all.

The Brady Act does not prohibit states from enacting their own, longer waiting periods. The constitutionality of this act continues to be challenged. Some jurisdic- tions interpret the law differently. For example, the City of Kenneway, Georgia, passed a law in 1982 mandating the head of each household to own at least one firearm and have ammunition to “protect the safety, security and general welfare of the city and its inhabitants.” However, because of what others say is an escalating number of deaths and injuries resulting from guns, including those involving youths, other jurisdictions are becoming increasingly strict.

The Violent Crime Control and Law Enforcement Act of 1994 In September 1994, Congress passed and President Clinton signed into law the Violent Crime Control and Law Enforcement Act of 1994. This act banned the manufacture of 19 different semiautomatic guns with multiple assault-weapon

A state law has been passed that forbids a person to carry a gun “ready to use”—loaded, immediately accessible (i.e., easy to reach), and uncased. Police officers are exempted from the law, as is a person on his or her own property (owned or rented), or in his or her home, or in his or her fixed place of busi- ness (i.e., does not apply to taxi drivers, delivery drivers, or other mobile offices workers), or on the property of someone who has permitted the person to be there with a ready-to-use gun. Even carrying an unloaded gun in public, if it is uncased and immediately accessible, is prohibited, other than by police and other excepted persons.

! Is this law constitutional?

! Do you think this law proposes a heavy burden on a person’s right to possess a gun?

! What impact does the fact that this law regulates gun possession outside of one’s home have on its constitutionality?

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Chapter 6 The Second Amendment: The Gun Control Controversy 185

features, as well as copies or duplicates of such guns. Such weapons served no legitimate sporting or hunting purpose but are the firearms of choice for terrorists, drug dealers, and gang members. The act also prohibits transfer to or possession of handguns and ammunition by juveniles, prohibits possession of firearms by people who have committed domestic abuse, and provides stiffer penalties for criminals who use firearms to commit federal crimes.

Despite strong support, the ban expired with a Sunset Clause (a set ending time for legislation that is not renewed to prevent old law from remaining on the books) in 2004, when after significant debate, Congress did not renew it. That same year, federal legislation was passed, allowing off-duty and retired police officers to carry concealed weapons, another controversial issue.

The Law Enforcement Officers Safety Act In 2004, the Law Enforcement Officers Safety Act (LEOSA) was enacted. This federal law allows a “qualified law enforcement officer” and a “qualified retired law enforcement officer” to carry a concealed firearm in any jurisdiction in the United States, regardless of any state or local law to the contrary, with two exceptions. Two types of state laws are not overridden by the federal law, those being “the laws of any state that (1) permit private persons or entities to prohibit or restrict the posses- sion of concealed firearms on their property; or (2) prohibit or restrict the possession of firearms on any state or local government property, installa- tion, building, base or park.” LEOSA- qualified persons must obey whatever state laws apply on those two points. They are free to disregard all other state and local laws that govern the carrying of concealed firearms.

The International Association of Chiefs of Police (IACP) strongly opposed the legislation, concerned about officer and citizen safety, use of force and firearm-training standards, offi- cer identification and eligibility issues, supervision of retired police, liability, and a firm belief that states and localities should determine who is eligible to carry firearms in their communities.

Wethal (2010, p. 30) notes, “Since the Act was established in 2004, many states, agencies and officers have struggled with comprehension and implementation of the law.” This results partly from its unclear language about who is qualified. Some agencies fear liability could result from issuing a certificate pur- suant to federal law, but Wethal (p. 35) asserts, “Those who properly apply the law will not have to worry about lawsuits.”

Other Proposed Federal Legislation When legislation is proposed, it first goes to committee. If approved, it is intro- duced in the House of Representatives (H.R.) and given a number. If passed by the House, the legislation goes to the Senate (S.) and is given a new number. Its status can be tracked through GovTrack.us.

Recent legislation has been proposed to curb terrorists’ access to firearms. The Denying Firearms and Explosives to Dangerous Terrorists Act (H.R.2159)

Sunset Clause a set ending time for legislation that is not renewed to prevent old law from remaining on the books

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186 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

aims to prohibit those who are on the terror watch list from purchasing firearms (Ward, 2010).

Another proposed law, the Gun Show Background Check Act (S.843), seeks to correct an oversight in the Federal Gun Control Act of 1968 exempting gun sales and transfers between private individuals. The act would require all vendors at gun shows to hold a federal firearms license (FFL) and to conduct a background check to determine whether purchasers are prohibited from purchasing and possessing a gun. At the 5,200 traditional gun shows held annually across the country, many vendors do not posses such licenses, allowing otherwise “prohibited persons” to obtain guns legally (Ward, 2010). Other pending legislation includes S.150, the Assault Weapons Ban of 2013; H.R.1369, the Firearm Risk Protection Act of 2013, requiring liability insurance to purchase a firearm); and S.54, the Stop Illegal Trafficking in Firearms Act of 2013.

In July 2010 a forum was held before the subcommittee on Crime and Terrorism and Home Security on the proposed Gun Show Loophole Closing Act of 2009 (H.R. 2324). A Virginia Tech survivor, Colin Goddard, testified about his experience on April 16, 2007, when he was shot four times. Goddard also showed footage of his undercover investigation of gun shows, highlighting how easy it was to buy guns from unlicensed sellers who collect no tax, complete no paperwork, conduct no background checks, and do not even require buyers to show a driver’s license. At the forum, Goddard was joined by Tom Mauser, whose son was killed at Colum- bine (Colorado) High School with guns bought at a gun show (Castellano, 2012).

Guns, Crime, and Violence As of 2010, an estimated 300 million firearms were privately owned by civilians in the United States, of which, about 100 million were handguns (Agresti and Smith, 2013). Data from the U.S. Department of Justice’s Bureau of Justice Statistics indi- cates that a total of 478,400 fatal and nonfatal violent crimes were committed with a firearm in 2011, and that firearm violence accounted for roughly 70 percent of all homicides from 1993 to 2011 (Planty and Truman, 2013). According to the Crime in the United States 2011, offenders used firearms in 67.7 percent of the nation’s mur- ders, 41.3 percent of robberies, and 21.2 percent of aggravated assaults. The Brady Center website includes the following statements (“About Gun Violence,” 2013):

! One in three people in the United States know someone who has been shot. ! The U.S. firearm homicide rate is 20 times higher than the combined rates of

22 countries that are our peers in wealth and population. ! Although guns can and have been used successfully in self-defense in the

home, a gun in the home is 22 times more likely to be used to kill or injure in a domestic homicide, suicide, or unintentional shooting than to be used in self-defense.

! Firearm homicide is the second-leading cause of death (after motor vehicle crashes) for young people ages 1 to 19 in the United States.

! In 2007, more preschool-aged children (85) were killed by guns than police officers were killed in the line of duty.

! Nine out of 10 Americans agree that we should have universal background checks, including 3 out of 4 NRA members.

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Chapter 6 The Second Amendment: The Gun Control Controversy 187

! Since the Brady Law was initially passed, about 2 million people have been blocked from purchasing a gun as a result of a background check. About half of those were felons.

! Unfortunately, our current background check system only applies to about 60!percent of gun sales, leaving 40 percent (online sales, purchases at gun shows, etc.) without a background check.

The Police Executive Research Forum (PERF) looked at the gun control issue as seen at the local level, which is where the IACP firmly believes it belongs (Wexler, 2010). The PERF conducted two surveys and then held a summit to report and dis- cuss the findings. The main participants were chiefs of police, but also invited to the summit were representatives of the two major gun groups and the Brady Center because, “you don’t make peace with your friends” (Wexler, 2010). Local police linked gun crime most closely to drug and gang issues, with nearly two-thirds of responding agencies identifying these two factors as “very important” in causing their local gun crime.

A survey conducted by Mayors Against Illegal Guns, an association of more than 500 mayors, found that nearly half of the guns that crossed state lines and were used in crimes in 2009 were sold in just 10 states: Georgia, Florida, Virginia, Texas, Indiana, Ohio, Pennsylvania, North Carolina, California, and Arizona. According to the Mayors’ report, those states have more relaxed gun laws, suggesting that “criminals and gun traffickers may favor certain states as the sources of guns” (“Report: 10 States Sell Half,” 2010),

Lott, in the best seller More Guns, Less Crime (1998), set forth the argument that citizens carrying guns makes us a safer nation. This same argument is presented in The Bias against Guns (2003, p. 3), in which Lott asserts, after examining how crime rates change over time in relation to concealed carry laws: “Gun control disarmed law-abiding citizens more than criminals, which meant that criminals had less to fear from potential victims. Guns not only make it easier for people to harm others, guns also make it easier for people to protect themselves.”

Donohue (2003, p. 399) presents an opposite finding: “Our best, albeit admit- tedly imperfect, statistical evidence indicates that increases in permit rate growth may lead to slight increases in crime.”

Research by Kovandzic and Marvell (2003, p. 363) found little evidence that increases in the number of citizens with concealed-handgun permits reduce or increase rates of violent crime: “There is little, if any, relationship between the num- ber of RTC permits and violent crime. That is, the level of gun carrying by citizens neither deters nor exacerbates crime.” Similar findings were reported by the Centers for Disease Control and Prevention (CDC), whose independent task force of public health officials and other scientists reviewed 51 evaluations of gun laws and “found insufficient evidence to determine the effectiveness of any of the fire- arm laws” (Hann et al., 2003).

Unlike the average citizen, law enforcement officers are well trained in gun safety, yet their training does not exempt them from becoming victims of gun violence. Data from the FBI indicates that of the 72 law enforcement officers feloniously killed in 2011 in the line of duty, most (63) were killed with firearms, and of these, 50 were killed with handguns (Law Enforcement Officers Killed and Assaulted, 2011). Furthermore, 46 of these officers were wearing body armor when they were killed with firearms.

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Nowicki (2010, p. 6) notes a “disturbing trend” emerging: “The number of occurrences of multiple officers being killed by one perpetrator, called ‘cluster kill- ings,’ is on the rise. Clusters of multiple officers provide a potentially target-rich environment, which appears to be fueling shooting rampages.” Such cluster killings included the four officers shot in Seattle, Washington; four in Oakland, California; three in Pittsburgh, Pennsylvania; and two in Crestview, Florida (Long, 2009). Pennsylvania, the state with the most gun-related officer deaths in 2009, also has some of the strictest gun laws in the country, whereas other states such as Louisiana, Oklahoma, and Kentucky have little oversight and had few, if any, officer gun deaths in 2009 (Long, 2009). People on both sides of the gun-control debate cite statistics such as these to prove their points.

Cases Governing Police Response to Gun Possession Reports Although courts, including the Supreme Court, support efforts of law enforcement to control guns used in crimes, they have been reluctant to relax search-and-seizure requirements of government in cases merely because they may involve weapons. Because in most states carrying a properly licensed handgun is legal, a report that a person has a handgun, with no additional information regarding criminal activity, may not create reasonable suspicion that a crime is being or will be committed, thus justifying a Terry stop.

Officer Jazinski is called to a local gas station on a report of a man with a gun. The dispatcher tells Jazinski that the caller sees a man putting gas in his car, the man appears very angry, and he has a handgun in a holster on his belt.

The officer arrives and finds the man described by the caller. The man also has a handgun, in a holster, and on his side. By this point, the man has started to argue with others pumping gas.

Officer Jazinski approaches the man, orders him to put his hands up, quickly handcuffs him, and takes the man’s gun from his holster. The man is belligerent with the officer but complies with all the orders and eventually calms down.

The man tells Officer Jazinski that he has a per- mit to carry the handgun. The man also adds that he is in fact angry because he had a bad day at work, and this led to a verbal argument with other customers.

Checks are run and the man is found to have a permit to carry. Your state allows anyone with a permit to carry the handgun concealed or out in the open. The man is in compliance with all appli- cable laws. There was no crime at the gas station either. He is un-handcuffed and given his gun. He gets into his car and leaves.

! Are the actions by the officer constitutional?

! Is the fact that the man is arguing with custom- ers when the officer arrives important?

! What if the man was not arguing with others and was not belligerent when approached by the officer?

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Another disturbing trend is the increase in the number of people who willfully, in public, attempt to instigate confrontations with the police by openly carrying a gun. Fortunately for officers, these encounters are often recorded.

A unanimous Supreme Court ruling in Florida v. J.L. (2000) established that “in order for an anonymous tip to be reliable enough to justify police action, even when a firearm is reported, it must do more than simply describe a suspect’s appearance and location.” Writing for the Court, Justice Ruth Bader Ginsburg stated, “Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions, [but] an automatic firearms exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful car- riage of a gun.”

Likewise, in Pennsylvania v. D.M. (2000), the Supreme Court held that an anony- mous tip with a physical description and location that a person had a gun was not enough for reasonable suspicion without anything else to cause suspicion.

The Current Gun Control Debate Both those for and those against gun control effectively argue that any statistical evidence is biased, uses flawed research, is used to prove a specific point, or some- how is used to endorse a political point. The plethora of research provides ample data to be interpreted as people wish, and even elected officials have vastly differ- ent views of what the law is and should be. Data regarding most controversial issues are to be carefully scrutinized, which is certainly the case with research asso- ciated with firearms.

In Opposition to Gun Control Various philosophies prevail in the gun control opposition camp. Some focus on the issue of constitutionality and rigorously defend individuals’ rights to keep and bear arms, whereas others reflect a more passive resignation, believing such legislation is merely a paper tiger that offers no real bearing on any crime control efforts.

A common argument among gun control opponents is the claim that such laws will only put guns where they do not belong—in criminals’ hands. The NRA and other advocacy group have captured this philosophy about gun control with phrases suggesting “If guns are outlawed, only outlaws will have guns” and “Guns don’t kill people, people do.” They also note that violent crime has been decreasing.

The founding fathers wrote the Second Amendment to protect citizens’ right to defend themselves against oppression, whether at the hands of another individual or those of tyrannical government. The right to keep and bear arms is a critically important constitutionally protected right; therefore, any laws restricting the keep- ing and bearing of arms in any way are clearly therefore unconstitutional.

In Support of Gun Control Advocates of gun control often refer to the issue as “crime control”—not “gun con- trol.” Historical analysis shows that the amendment was written to protect colonists

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from England’s King George III’s military forces and contains nothing that could be construed today as prohibiting gun control.

Many advocates of gun control criticize the ability of some to circumvent the law. The Brady Campaign to Prevent Handgun Violence points out that despite legislation now banning the sale of assault weapons, thousands of these firearms are presently privately owned and for sale at gun shows because of grandfather clauses in the laws.

To counter the argument that violent crime has been decreasing in the country, gun control advocates contend that the decrease may be attributable to many fac- tors other than legislation, including an increased numbers of police in the com- munity; implementation of new, more aggressive and more effective police tactics; and the crackdown on illegal drug trafficking.

Gun Control as a Political Issue Thus far, the judiciary has left most gun control laws to the states to be determined through the political process. Chief Charlie Deane of Prince William County, Virginia, calls the gun issue the “third rail of policing.” If politicians touch it, they don’t last long (Guns and Crime, 2010). This lack of involvement has concerned many leaders in law enforcement. The executive director of PERF, Wexler (2010, p.!iii), notes,

It seems that the United States has become anesthetized to gun violence. While the 1999 Columbine school massacre in Colorado resulted in widespread demands for action to prevent such tragedies from occurring, it seemed that more recent incidents . . . no longer prompted many calls for reform, because people no longer expect that any reforms will be made.

Even though violent crime in the United States has declined sharply since the 1990s, our nation still endures far higher homicide rates than do other countries— for example, 46 killings per day in the United States compared with only 8 killings per day in the entire European Union, which has a population 60 percent larger than the United States.

Prospects for reform at the federal level have improved somewhat. In 2009, Washington showed little or no appetite for taking on gun crime issues. Currently, in the wake of the Newtown, Connecticut, school shooting, gun control has become a more prominent topic among legislators and citizens alike. The struggle to find common ground, however, remains a challenge.

Finding Common Ground— Is a Compromise Possible? Despite all the controversy over gun control, where the courts stand is without question. Gun control by the states is not constitutionally prohibited, and under most circumstances, legislation by the federal government is not prohibited.

The history of the courts suggests that they will defer to the discretion of the states on almost all matters concerning gun control. Thus far, the only actions

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Chapter 6 The Second Amendment: The Gun Control Controversy 191

the! courts may find constitutionally offensive are a complete nationwide ban on firearms and acting on reports of gun possession without further evidence.

The controversy over the effectiveness of existing gun control legislation and the need to add to that body of legal work has spread into many different occupational venues, pulling in a variety of advocates and opponents from a wide range of professions. The CDC now keeps statistics on gun-related injuries and deaths. These statistics include types of weapons, ammunition used, whether the weapon was stolen, information when youths are involved, and the relationship between the first person to own the weapon and the victim or assailant. Educators, physicians, the clergy, and community groups are con- cerned as well.

The president of the Brady Campaign to Prevent Gun Violence, Helmke, sug- gested that enforcing the laws on the books isn’t the answer. He advocates search- ing for the middle ground: “The Supreme Court said that near-total gun bans like DC’s were off the table, but it also said that ‘any gun, anywhere, anybody, any time’ is also off the table. Justice Scalia said that the right is not unlimited: You can have restrictions on who buys guns, what kind of guns they are, where they take them, how they’re sold, where they’re stored. That’s the middle ground we should be looking at. This isn’t Second Amendment trench warfare anymore. It should be about finding out what works” (Guns and Crime, 2010, p. 32). Helmke suggests that most can agree that illegal trafficking needs to stop and that we need to focus on problem dealers, look at multiple sales, and strengthen the ATF and give it the appropriate resources.

Boston Commissioner Edward Davis notes that the issue is not about taking people’s guns. The issue is finding what’s reasonable: “I think it’s great that the National Shooting Sports Foundation and the NRA are at the table here. We need to continue the conversation with both of these organizations about what can work and what is acceptable. There may have been some aggravation in this discussion today simply because the law enforcement representatives are literally stepping over the bodies in the street. But I think most law enforcement officials aren’t on one side or the other of the gun debate. We’re looking for reasonability” (Guns and Crime, 2010, p. 33).

Wexler (p. 35) notes in the conclusion of the report that all sides agree on the need for mandatory sentencing for those who make “straw purchases” of guns. A straw purchase is when a buyer uses an intermediary (the “straw man”) to pur- chase a firearm(s) from a licensed firearms dealer and then sell the weapon(s) to individuals who cannot legally buy guns themselves, such as felons and the severely mentally retarded. Wexler suggests that enacting mandatory minimums would help break the impasse and get this issue off dead center: “A public debate on such a proposal would bring the issue of violence back into the news. We need to put an end to the apathy regarding the shootings and killings that happen every day in major U.S. cities” (p. 35).

straw purchase an illegal transaction when a buyer uses an intermediary (the “straw man”) to purchase a firearm(s) from a licensed firearms dealer and then sells the weapon(s) to individuals who cannot legally buy guns themselves, such as felons and the severely mentally retarded

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Discussion Questions

Summary

1. Should the government control the possession of guns or be able to restrict certain types of firearms? What about large capacity magazines?

2. Does the Brady Act serve a legitimate function? 3. Considering the history behind the drafting of the

Second Amendment, can any original interpretations reasonably be used today? If so, how?

4. In Great Britain, police officers do not routinely carry firearms because, among other reasons, firearms are not considered the public threat they are elsewhere. Could this ever occur in the United States?

5. Would having severe penalties for gun violations help reduce gun violence? Should the law make the reward not worth the risk?

6. What makes more sense to you: restricting guns altogether or restricting who has access to guns?!In other words, should legislation and enforcement efforts focus on the gun or on the individual?

7. Is a “cooling off” period for gun permits reasonable?

8. Does regulating handguns but not rifles and shotguns make sense?

9. Most “mass casualty” shootings are over quickly, even before police can arrive. In light of this reality, does it make sense to allow citizens to arm themselves?

10. Rewrite the Second Amendment as though you were asked to address contemporary concerns.

Historically, the militia was considered to be the entire adult male populace of a state. They were not simply allowed to keep arms but were at times required to do so by law. A central controversy over the Second Amendment is whether people have a right to bear arms as individuals rather than only as part of a militia. The number of militia groups in the United States increased dramatically from 2008 to!2009.

The two opposing interpretations of the Second Amendment involve whether the amendment guar- antees individuals’ rights to keep and bear arms or whether it guarantees the states freedom from fed- eral government infringement on this right. Judicial decisions over time reveal changes in how the Court has viewed Second Amendment guarantees. In United States v. Miller (1939) the court recognized a state right rather than an individual right to bear arms. In 1971 the courts ruled that there was no express right of an individual to keep and bear arms (Stevens v. United States). Both decisions have since been reversed.

In a landmark decision, the Supreme Court stated in District of Columbia v. Heller (2008) that the Second Amendment protects an individual’s right to possess

a firearm unconnected with service in a militia. In McDonald v. Chicago (2010) the Supreme Court, hold- ing that the right to keep and bear arms was among those fundamental rights necessary to our system of ordered liberty, ruled that the Second Amendment does apply to the states and incorporated it under the Fourteenth Amendment.

The Brady Act, passed in 1993, contained the interim provision of a mandatory five-day waiting period on all handgun purchases. This provision was phased out and was replaced in 1998 with the perma- nent provision of an instant, computerized criminal background check of all handgun purchasers. Some states still impose a waiting period on firearms purchases.

The Law Enforcement Officers Safety Act, allow- ing “qualified” active and retired law enforcement officers to carry concealed weapons anywhere in the United States, has three goals: (1) to establish equal- ity between local LEOs and their federal counter- parts who already carry nationwide, (2) to create an unpaid homeland security force to help protect the nation, and (3) to allow qualified current and retired LEOs the means to defend themselves and their families against criminals.

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Chapter 6 The Second Amendment: The Gun Control Controversy 193

References “About Gun Violence.” Washington, DC: Brady

Campaign to Prevent Gun Violence, 2013. Retrieved May 21, 2013, from www .bradycampaign.org/?q=about-gun-violence.

Agresti, James D., and Smith, Reid K. “Gun Control!Facts.” Just Facts, February 11, 2013. Retrieved May 21, 2013, from www.justfacts.com/ guncontrol.asp.

Basu, Kaustuv. “‘Stand Your Ground’ Law Put to Test.” Florida Today, August 1, 2010, p. A1.

Castellano, Anthony. “Virginia Tech Survivor Colin Goddard Fights Back Against Guns.” ABC News, December 20, 2012. Retrieved May 21, 2013, from http://abcnews.go.com/US/virginia-tech- survivor-colin-goddard-fights-back-guns/ story?id=18022765#.UZvgH_co5mM.

Crime in the United States 2011. Washington, DC: Federal Bureau of Investigation. Uniform Crime Reports, 2011. Retrieved May 21, 2013, from www .fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2011/ crime-in-the-u.s.-2011.

Donohue, John J., III. “The Final Bullet in the Body of!the More Guns, Less Crime Hypothesis.” Criminology and Public Policy, July 2003, pp. 397–410.

Eldridge, Joanne. “The Castle Doctrine and Indiana’s Controversial New Law.” PoliceOne.com, July 20, 2012. Retrieved May 20, 2013, from www.policeone .com/legal/articles/5827610-The-Castle-Doctrine- and-Indiana-s-controversial-new-law/.

Grimm, Fred. “‘Stand Your Ground’ Works—For Criminals.” The Miami Herald, August 5, 2010. Retrieved May 21, 2013, from http:// criminallawbook.com/assets/stand-ground.pdf.

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Kovandzic, Tomislav V., and Marvell, Thomas B. “Right-to-Carry Concealed Handguns and Violent!Crime: Crime Control through Gun Decontrol?” Criminology and Public Policy, July 2003, pp. 363–396.

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194 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Cases Cited Adams v. Williams, 407 U.S. 143 (1972) Barnes v. State, 946 N.E.2d 572 (2011) District of Columbia v. Heller, 544 U.S.___ (2008) Edwards v. City of Goldsboro, N.C., 178 F.3d 231

(4th Cir. 1999) Florida v. J.L., 529 U.S. 266 (2000) Gowder v. City of Chicago, District Court, N.D. Illinois,

June 19, 2012. McDonald v. Chicago, 561 U.S. ___ (2010) Pennsylvania v. D.M., 529 U.S. 1126 (2000) Presser v. Illinois, 116 U.S. 252 (1886)

Printz v. United States, 521 U.S. 898 (1997) Small v. United States, 544 U.S. 385 (2005) Stevens v. United States, 440 F.2d 144 (6th Cir. 1971) United States v. Cruikshank, 92 U.S. 542 (1875) United States v. Decastro, 682 F.3d 160 (2012) United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Texas,

1999) United States v. Lopez, 514 U.S. 549 (1995) United States v. Miller, 307 U.S. 174 (1939) United States v. Skoien, 587 F. 3d 803 (Court of Appeals,

7th Circuit, 2009)

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242 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

many of them. More than 90 percent of those stopped and frisked were completely innocent: “Not only are most of the people innocent, but a vast majority are either Black or Hispanic. There is no defense for this policy. It’s a gruesome, racist practice that should offend all New Yorkers, and it should cease.”

Many police departments, on the other hand, maintain such stops are a valuable tool that turns up illegal weapons and drugs and prevents more serious crime. New York Police Commissioner Raymond Kelly contends that stop-and-frisk helped police solve 170 crimes (Rivera and Baker, 2010). The fact that police departments in the precincts with the largest minority populations use this practice to deter drug dealing and violent crime can result in misleading statistics.

Traffic Stops Although the operation of a motor vehicle on public roads is considered a privilege, the driver and occupants remain protected by the Constitution. Being stopped by the police for no or insufficient reason is considered unreasonable and, therefore, a consti- tutional violation of Fourth Amendment rights. Delaware v. Prouse (1979) established

[E]xcept in those situations in which there is at least clear articulable, reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

Officer Smith sees David Driver driving a car on Main Street. David goes right through a stop sign– controlled intersection without stopping, nearly colliding with another car. Officer Smith pulls David over.

During the stop, the officer has a hard time hearing David because of the traffic noise, so the officer has David step out of the car, and the two talk on the side of the road.

While talking to David, Officer Smith hears a radio call regarding an armed robbery. The descrip- tion of the car matches David’s, and the location of the robbery occurred at the spot where David ran the stop sign. The officer handcuffs David, frisks him for weapons, and has him sit in the squad car, telling David, “Just sit here for a few minutes while I try and sort this out.”

As David is getting into the squad, he blurts out, “You must know about the weed in my car. It’s

under the seat.” The officer finds a small amount of marijuana under David’s front seat.

After about 10 minutes, the officer learns infor- mation that shows it is unlikely David is the rob- ber. He has David step from the squad car, un-handcuffs him, and gives him a ticket for not stopping at the intersection and possessing a small amount of marijuana.

! Did Officer Smith arrest David? Why or why!not?

! Was the frisk justified? What facts support your conclusion?

Constitutional Law in ACTION

CASE IN BRIEF Delaware v. Prouse (1979)

ISSUE Is it constitutional to stop a car to do a random check of the driver’s license status when there is no probable cause or reasonable suspicion?

RULING No. A stop in this manner is unreasonable and violates the Fourth Amendment. An officer must at least establish reasonable suspicion that the driver is committing or has com- mitted a crime to make a seizure (i.e., a stop).

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Appendix E Legal Research 473

and other journal articles were likely researched to come up with the information in the article.

For example, you might use both sources to get an under- standing of how the scholar and the courts are interpreting the case.

Step 4. Decide how to access the resources. Online? A law library with access to Westlaw or LexisNexis? A library with print materials?

You might decide to use scholar.google.com, an excellent free source of court opinions of all levels, federal or state. Type your search topic (“search incident to arrest”) into the box and select the “legal opinions and journals” option below the search box. This site also shows with each case how and where it was cited (important to see if a case has been overruled or limited). This “how cited” feature includes law journals, too. Often, even if courts publish their opinions online, searching for them is hard. You either need to know the names of the parties or the date it was decided, making searching difficult and tedious.

Step 5. Access your source(s) and search using the terms (or even the case) you have identified.

For example, you might enter “search incident to arrest” and “Arizona v. Gant” into scholar.google.com. In the far left drop-down box, you would select “Minnesota courts.” Based on the results you get, you might want to add terms or take them away. Having too many terms can limit the results as much as having too few terms can, especially using the “and” search function.

Step 6. Interpret the results. Pay attention to the cases and what jurisdiction they are from. Make sure they are binding on your jurisdiction, that is, Minnesota State Supreme Court ruling for Minnesota research, not a Wisconsin state court. Also, pay attention to the federal appellate dis- trict, which affects the binding nature of the opinion.

Additionally, notice if the opinion is from an appellate level court where opinions become law. Trial level courts don’t make the law, they apply it.

Read the opinions using the suggestions given in this text. Pay special attention to the areas where the court gives the rule of law. It is usually

a paragraph or two citing cases and language from those cases that tell you what the applicable law is to the case at hand. This is the law the court then uses to make its determination. Look at the other cases mentioned in the opinion. These will give you other resources to use if you want to proceed further.

The results for Minnesota were limited, most likely because the Supreme Court ruling in Gant is fairly recent. Four pertinent cases did come up; however, only one of the four was a published opinion:

! State v. Lussier, 770 NW 2d (Minnesota Court of Appeals, 2009)—published

! State v. Iman—Minnesota Court of Appeals, 2010 (unpublished)

! State v. Weyaus—Minnesota Court of Appeals, 2011 (unpublished)

! State v. Norring—Minnesota Court of Appeals, 2009 (unpublished)

It appears from these rulings that the Minnesota Court of Appeals is taking a broad view of Gant, that is, the court is seeing that “reasonable to believe evidence of the crime of arrest might be found in the vehicle” as a concept holds validity so that as long as facts can be pointed to that in some way, even minimally, evidence might be in the car, it is reasonable to search the car for that evidence under Gant.

For example, in Iman, the court noted that he was arrested for assault with a deadly weapon (a baseball bat). He had jumped in his vehicle and fled the scene with the bat in the car and was stopped a short time later. These facts point to it being reasonable to believe that evidence of the assault (the bat) was still in the car.

Step 7. Because there are few (and unpub- lished at that) opinions, it would be a good idea to see how other courts are interpreting the law. You might go to the federal court of appeals that covers the area you researched because this is the law that applies in Minnesota to cases under the U.S. Constitution.

Doing an “advanced scholar search,” you may select the opinions of specific circuit courts. Minnesota is in the Eighth Circuit, and most of the Eighth Circuit cases were finding probable cause (PC) in situations where it was “reasonable

(Continued)

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