Unit 1b: Constitutional amendments

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

Freedom of Religion Freedom of religion is protected by two clauses, the establishment clause and the free exercise clause. The establishment clause forbids the government from setting up a state religion or endorsing/supporting religion and from preferring one religion over another. Thomas Jefferson referred to the establishment clause as the “wall of separation between church and state.” The Supreme Court uses a three-part test (established in Lemon v. Kurtzman) to determine whether a government law or action meets the requirements of the establishment clause: The challenged law/government action must have a secular purpose. The primary effect of the law/action must be to neither advance nor inhibit religion. The operation of the law/action must not foster excessive entanglement of government with religion.

Freedom of Religion The free exercise clause protects the rights of individuals to worship or believe as they choose. Religious belief is protected, but religious action may not be. Example: even if your religion says you are free to have more than one wife, it is illegal to do so in the United States. The Supreme Court ruled that states must have a “compelling interest” before outlawing religious conduct. Example: Church of Lukumi Babalu Aye v. City of Hialeah

Freedoms of Assembly & Petition The freedom of petition allows citizens to criticize, sue, and lobby the government. The freedom of assembly and freedom of petition often go hand in hand—the Supreme Court has argued that the right to petition is the primary freedom, but often, there is no distinction between the two.

Freedom of Press The First Amendment also guarantees freedom of the press, protecting us from government censorship of newspapers, magazines, books, radio, TV, and film. Prior restraint refers to censorship before publication. Attempts to censor publications before they go to press are considered unconstitutional unless: Publication would cause a certain, serious, and irreparable harm. No lesser means would prevent the harm. The prior restraint would be effective in avoiding the harm.

Freedom of Speech The First Amendment protects the freedoms of speech and expression. Obscenity, defamation, commercial speech, fighting words, and hate speech are not protected by the First Amendment. If a speaker is advocating illegal activities, judges use the following tests to determine how to deal with them: Clear and present danger test: do the circumstances under which the speech was made present a clear and present danger of unlawful action? Balancing test: how do the rights of the speaker and the harm they are proposing balance out? Incitement test: is the speaker inciting or producing immediate lawless action from the audience or was the advocacy likely to produce such behavior? The unlawful action must occur within a short period of time.

The Fourth Amendment The Fourth Amendment protects you from unreasonable searches and seizures. A search or seizure is considered “unreasonable” if it is done without probable cause, meaning a reasonable belief a person has committed a crime.

Probable Cause & Reasonable Belief Reasonable belief can be based on much less evidence than is necessary to prove a person guilty at trial, but there must be more than a suspicion or hunch. Courts have allowed drug enforcement officials to use drug courier profiles to provide a basis for stopping and questioning a person or to help establish probable cause for arrest. Some argue that it is unfair to use factors such as these, arguing that individualized suspicion should be required to establish probable cause.

Probable Cause & Reasonable Belief Police may establish probable cause from information provided by other citizens, such as witnesses or victims. The police do not need probable cause to stop and question individuals whom they reasonably suspect to be involved in criminal activity. In such cases, the stopping can only be temporary and individuals do not have to answer questions.

Searches Without a Warrant Most searches or seizures must be done after a search warrant has been obtained. Exceptions are: Search incident to a lawful arrest Stop and frisk Consent Plain view Hot pursuit Vehicle searches Emergency situations Border and airport searches

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

Just Compensation Eminent domain: the power of the government to take private property for public use, following the payment of just compensation to the owner of that property. If the federal government takes an individual’s private property for public use, they must pay a fair price for it—typically, market value. In Kelo v. City of New London, the U.S. Supreme Court ruled that a city could seize private property for private commercial development, provided that the property would benefit more than a private group of individuals.

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

Grand Juries A grand jury is a group of 16 to 23 people who decide whether there is reason to believe a person has committed a crime and should stand trial. They do not have to have a unanimous verdict. They meet in secret. They do not determine a person’s guilt.

Double Jeopardy A person can not be tried again after an acquittal A person can not be tried again after they have been convicted A person can not receive multiple punishments for the same offense

Self-Incrimination Self-incrimination is giving evidence and answering questions that would tend to subject one to criminal prosecution. A suspect has the right to remain silent and cannot be forced to testify against himself. In Miranda v. Arizona, the Supreme Court ruled that officers must inform the accused of their rights before questioning begins. If a suspect is questioned but not told their rights, any statements they made can be excluded from the trial. However, if a person spontaneously gives the police information, those statements can be used in court.

Due Process Due process is the idea that every person involved in a legal dispute is entitled to a fair hearing or trial. Substantive due process: your basic freedoms must be protected during the trial. Procedural due process: the trial must run fairly and follow the law.

Just Compensation Eminent domain: the power of the government to take private property for public use, following the payment of just compensation to the owner of that property. If the federal government takes an individual’s private property for public use, they must pay a fair price for it—typically, market value. In Kelo v. City of New London, the U.S. Supreme Court ruled that a city could seize private property for private commercial development, provided that the property would benefit more than a private group of individuals.