RIGHTS TO LIFE, LIBERTY AND PROPERTY

Chapter 17

Citizenship Rights

When are they granted?

1868-14th Amendment-prior to this, each state determined citizenship

Includes various territories such as Guam, Puerto Rico

Does not include those born to foreign ambassadors

NATURALIZATION

A legal action conferring citizenship on an alien

Lawfully admitted aliens, 18+ and living in the U.S. for minimum of 5 years

Any state /federal court or INS can naturalize

DUAL CITIZENSHIP

Common for those who are from nations that do not allow right of expatriation(renouncing of citizenship) to one’s citizens

Children born abroad to U.S. citizens or children born in U.S. to citizens of a foreign nation

Rights of American Citizens Slaughter-House Cases(1873)-

privileges of U.S. citizens and those of state citizens

Court held that Federal gov only owed privileges in the Constitution or federal laws-to vote, to travel, to assemble

Exceptions always in times of war to guarantees of citizenship

Right to live and travel in U.S.

Can’t be limited by Congress, everyone wants to live in the U.S. but only citizens cannot be denied

Right to travel abroad

Can be regulated within due process Currently must have passport Travel to Cuba prohibited unless

special permission is granted

Rights of Aliens

Constitution protects rights of all persons so can’t deny the right of freedom of religion, speech, can’t be denied due process of law or equal protection under law(unless “enemy combatants”

Can exclude from welfare, etc., but not from emergency medical care, disaster relief, nutrition programs or public education(Plyler v. Doe 1982)

Admission to the U.S.

Congress regulates Immigration Act 1965-sets annual

ceilings of non-refugee aliens, limits on refugee aliens, limits from specific nations

Property Rights Framers stress that part of the role of

government is to protect the right to property ownership and to enjoy the ownership of that property

Property rights; Police Powers

Contract Clause-protects the agreements between individuals or businesses from intervention of government

Discarded over time; Supreme court states these can be modified by state law to avert social and economic catastrophe

Thus, establishing police power-inherent power of state to protect the public health, safety and welfare

Property Rights

Government Taking of Property

State and national have eminent domain power-taking of property for public use, with just compensation-5th Amendment

Regulatory taking: government regulation of property so extensive that gov is deemed to have gone too far in taking property, must reimburse losses

Government may regulate use of land without taking it and without compensation

Due Process Rights

What is meant by due process?

No fixed definition-rules and regulations that restrain government officials in the exercise of their power

Procedural and SubstantiveDue Process Procedural Due Process-government

must follow proper methods in how it applies the law or uses its power

Substantive Due Process-requirement that government act reasonably and that the substance of the laws themselves be fair and reasonable; places limits on what a government may do: contents of the law

Privacy Rights

Abortion rights Sexual orientation rights

Abortion Rights 1. Supreme Court ruling in Roe v. Wade

(1973) 2. Planned Parenthood v. Casey -

Rehnquist court upheld the view that due process clauses of the Constitution protect a woman’s liberty to choose an abortion prior to viability …however laws that restrict this liberty are ok

unless they place an “undue burden” on the woman

3. Stenberg v. Carhart-Court strikes down a Nebraska law that prohibits partial birth abortion

Carhart v. Gonzales (2003)-Robert’s Court decides that Congress’ law banning partial birth abortion does not place undue burden on a woman’s liberty to seek abortion

Sexual Orientation Rights

1986-Court refuses to extend any protection to relations among homosexuals

NOTE: Privacy, as substantive due process, still developing in con law

In Boy Scouts of America v. Dale-boy scouts could deny scout leadership to homosexuals based on right to associate/assemble as freedom of expression

Gender Rights

Rights of the Accused Freedom from Unreasonable Searches and

Seizures Exclusionary Rule Rights to Remain Silent The Miranda Warning

Fair Trial Procedures Right to Counsel Indictment TrialSentencing and Punishment

Double JeopardyThree Strikes and You’re OutThe Death Penalty

Rights of persons accused of crimes

Fourth Amendment Protection from unreasonable search and seizures

Seizures given less protection The Constitution only forbids

“unreasonable” search and seizures

Fourth Amendment and Search and Seizure

Warrantless search and seizure- Automobile exception The Terry exception Searches subsequent to a valid arrest Consent Border searches Plain view exception Exigent circumstances Foreign agents

“Unreasonable” search and seizure Outside of the exception in previous

list, search and seizure must accompany a valid search warrant

Constitutional requirements for a Constitutionally acceptable search Must describe the place to be searches Must describe what things are to be

seized

The Exclusionary Rule

Mapp v. Ohio (1961)-evidence obtained illegally can’t be used as evidence in a criminal trial as part of the main case against persons from whom it was seized

Purpose: to prevent police misconduct

Establishes the exclusionary rule but applies only to person the evidence was seized from

Right to Remain Silent

Fifth Amendment protection against self-incrimination

Grant of immunity-authorities want information rather that prosecution so grant immunity and therefore witness no longer can claim fifth since there will be no need to protect one’s self.

Miranda Warning

Miranda v. Arizona ((1966)-no conviction could stand if evidence had been obtained by police during “custodial interrogation” unless… Notified that they are free to remain silent Warned that what they say may be used

against them in court Told that they have a right to have counsel

present during questioning Permitted to terminate investigation at any

time

Criticisms of the Miranda Rule

Fugitives from justice go free unnecessarily

Fair Trial Procedures

Preliminary hearing and right to counsel 1. Judges have an obligation to ensure

that all persons subject to custodial interrogation are represented by lawyers

2. Right to counsel extends to all hearings for all offenses for which an accused could be deprived of liberty

The Indictment

1.Grand jury indictment is necessary in order to require anyone to stand trial for a serious crime

2. Jurors determine if enough evidence to charge

3. If they issue indictment they feel evidence warrants a trial

Indictment continued

4. Constitution guarantees the accused the right to be informed of the nature and cause of the accusation so that a defense may be prepared

4. Plea bargaining-pleading guilty to a lesser offense in return for not having to go to trial for a more serious charge(90% of cases)

Trial

1. obligation to give a speedy and public trial 2. impartial jury-requirements of due process

and equal protection = persons that are a cross section of community

3. Preemptory challenges cannot be used to keep people off juries based on race, ethnic origin or sex

4.defendant has right to obtain own witnesses; if no fifth is pleaded must

allow cross-examination5. Right to confront witnesses

The sentencing and the punishment

1. Eighth Amendment forbids levying of fines and inflicting of cruel and unusual punishment

2. federal court judges must follow sentencing guidelines as set down by the U.S.Sentencing Commission

The Death Penalty

Court halts capital punishment until states could administer it in “consistent fashion”

Since reinstatement in 1976, _____ executed and more that ______ are on death row.

Fifteen members of EU have outlawed death penalty

Growing concern over fairness of death penalty, 2/3 or all death sentences overturned, releases after DNA technology

Three Strikes and You’re Out

Public concern about crime is up, need for “toughness”

Scholars skeptical about three strikes idea, not sure it will cut crime

Appeals and Double Jeopardy Fifth Amendment prevents individual

from being tried again(if found innocent) Can still be tried by both federal and

state governments for the same crime(or by two states)

Double jeopardy does not forbid civil prosecution after acquittal in a criminal trial

Is Our System Really Just? Too many loopholes Too unreliable Too discriminatory Unfair to minorities

How Just is our Justice System

Too many loopholes? Overprotect the innocent and put too

much burden on the government—criminals go unpunished

Others argue that each stem in administration of criminal laws has been constructed to protect against particular abuses

Too Unreliable?

Trial by jury is the problem. Jury system allows for nullification and unpopular verdicts have led to state laws regarding jury system

Opposite this argument is that the jury system is good and provides a check on the actions of judges and prosecutors, does not systematically differ from those of judges, educates citizens

Too discriminatory?

Supreme Court has worked hard to enforce ideal of equal justice under the law

Poor people must have attorneys, not be imprisoned if can’t afford fines

Even civil cases, like divorce, discriminatory fees are banned

Unfair to Minorities

Tension exists between police and African American and Hispanic communities in the ghettos and barrios of large cities (California study)

Blacks consider the police to be enforcers of white law; there is an element of racial prejudice in police shooting at minorities

Action has been taken to recruit more minorities into polcie force