Constitutional Law 203
Chapter 2-Outline
History Of the Adoption of the Constitution
1. Events Preceeding the Articles of Confederation
Prior to Constitutional Convention in 1787-
1. George III was King of England and was at war with France (1756-1763) called the Seven Years’ War , the French and Indians raids on the northern English colonies had the colonists living in fear and felt somewhat protected by the British troops, but they soon realized that they were better able to protect themselves then what British (regulars) were there
2. Becomes 13 Colonies: in 1733 it became 13 colonies when Georgia was founded, all of these colonies were models for self government of the time. Each colony had an assembly that was elected by popular vote. The assembly raised taxes for local purposes and execercised the police power of protecting the health , welfare and morals of its inhabitants. However most colonies had a governor which was appointed by the king who could override the acts of the assembly. The governors were paid salaries by the colonists so rarely the used their veto power. The governor appointed a council who could override the acts of assembly …..at the end of the day the acts of the colonial legislature including the governors counsel were subject to review by the Privy Council in England
3. The mercantile theory changes to imperialistic theory:
The mercantile theory held the colonies as places for the sale of goods from England (the mother country) and as the source for raw materials. The imperialistic theory which was the new policy held the colonies primarily as a means to greater financial, political and military power….this theory could only be achieved thru greater military and political control and direct taxation
A. Sugar Act 1764 –Proclamation of 1763: this closed the frontier west of the Alleghenies to further settlement and forbid further land purchases in that region…the Act levied a duty on molasses imported into the colonies and on other imports…this was a revenue act and it raised questions about Britans power to tax the colonies…
“defraying the expenses of defending, protecting and securing the colonies…”
B. Stamp Act of 1765: England had a increased its national debt of 130 million, from the Seven years war and they rationalized that part of that was from definding the colonits
:
A. Declaration Of Independence: In 1776 the 13 colonies in America signed the Declaration of Independence. This act broke us away from our ruler England. However it did not establish how our new country should be structured or governed. Each colony was allowed to police and protect itself. This signal act lead to the Revolutionary War against England. January 14, 1784 the United States won its freedom from England. The Declaration of Independence was a declaration of war. There was no new form of government in America, Colonists wanted George Washington to be king…..the founding fathers did not want that…that is the tyranny they escaped
B. Articles of Confederation: was the 1st written Constitution, they were ratified in 1781, this occurred during war time . the states remained sovereign and independent with Congress as the last resort for appeals of disputes. Congress was a unicameral body with each state only having 1 vote. Congress had the power to make treaties and alliances, maintain the militia and coin money. This central government lacked ability to levy taxes, regulate commerce and the great fear was that this type of government would lead right back to a tyranny.
C. US Constitution: In 1787 the United States Constitution was written and ratified in 1789. This sets forth the framework of the structure of our government. Congress is a bicameral legislature
The Constitution established 3 independent branches of government;
Legislative branch –make laws (Congress)-powers derived form Article 1 on the US Constitution
House of Representatives: the number of voting representatives in House is fixed at 435, it is based on the population in a State,,,thus represents the people
Main powers of House: to pass federal legislation that effects whole country, but must also be passed by Senate and further agreed to by President (unless both house & senate pass by 2/3 majority)
Exclusive power of House: impeach officials (who are tried by Senate;
Initiate revenue bills; elect president in case no majority of electoral ; college; each state represented proportionally by itss population, each state entitled to at least 1
Senate: represents the states; referred to a a deliberative body; it is a legislative chamber in the bicameral legislature; its powers are derived for Art 1 of US Constitution; each state has 2 senators regardless of population ; terms ar staggered 6 year terms.
Exclusive powers:
-consenting to treaties as precondition to their ratification
-consenting/confirming appointments to Cabinet secretaries, federal judges, other federal executive officials, military officials, regulatory officials, ambassadors, federal military
-trial of federal officials impeached by House
Executive branch- enforce the laws (President); elected as head of state and commander in chief of military; Art II vests executive power charges Pres with execution of federal law, with appointing federal executive, diplomatic, regulatory & judicial officers & concluding treaties with foreign powers with advice and consent of Senate; can grant federal pardons and reprieves; can convene or adjourn either or both houses’ of congress under extraordinary circumstances
Judicial branch- to judge when a law has been broken (Supreme Court)
-Art III requires the establishment of a US Supreme Court and permits Congress to create other federal courts and place limitations on their jurisdiction.
-Art III federal judges are appointed by President with consent and advice of Senate to serve until they resign, impeached, convicted, retire or die.
Federal Courts have 3 levels of Courts
-US Supreme Court: of last resort; operates under discretionary review (they decide what they hear by issuing writ of certiorari
-US Court of Appeals: intermediate federal appellate courts, mandatory review must hear all appeals
-US District Courts: general federal trial courts
D. Bill of Rights : In 1791 The Bill of Rights was written
The Bill of Rights refers to the first ten amendments to the U.S. Constitution. These rights protect the people’s liberties and forbid the government to violate and individual’s rights. These right are really the foundation of our current criminal justice system. Each of the ten Amendments are listed below and a brief explanation of how they effect our current criminal justice system is explained after the right.
First Amendment – Establishment Clause, Free Exercise Clause; freedom of speech, of the press, and of assembly; right to petition
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.
This right articulates that a person can not be arrested for voicing their opinion based on religion, speech or assembling in a public place.
Second Amendment – Right to keep and bear arms.
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.
This right states that all people except convicted felonies can bear firearms. However many states prohibit people from carrying handguns without a license.
Third Amendment – Protection from quartering of troops.
This right states that all people except convicted felonies can bear firearms. However many states prohibit people from carrying handguns without a license. 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 right states that all people except convicted felonies can bear firearms. However many states prohibit people from carrying handguns without a license.
Fourth Amendment – Protection from unreasonable search and seizure.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This right protects people from being illegal searched. However there are several exceptions to this rule. They are the following
Search incidental to a lawful arrest
Plainview
Auto Exception
Consent
Exigent circumstances
Stop Question and frisk
Hot pursuit
Inventory
Fifth Amendment – due process, double jeopardy, self-incrimination, eminent domain.
No person shall be held to answer for any 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.
This right applies to a person being given a fair trial in court.
Sixth Amendment – Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel
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 where in 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.
This right applies to a person being given a fair trial in court also.
Seventh Amendment – Civil trial by jury.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by 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.
Applies to rights in a civil non criminal lcase.
Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Applies to unreasonable bail, fines or unfair punishment such as torture
Ninth Amendment – Protection of rights not specifically enumerated in the Bill of Rights.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Prevents the taking away of person’s rights. Prevents the government from having unlimited power.
Tenth Amendment – Powers of states and people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
If the power is not granted to the federal government the right is possessed by the state
The Fourteenth Amendment (Amendment XIV) to the United States Constitution is one of the post-Civil War Reconstruction Amendments, first intended to secure the rights of former slaves. It was proposed on June 13, 1866, and ratified on July 9, 1868.[1]
The amendment provides a broad definition of citizenship, overruling Dred Scott v. Sandford (1857) which had excluded slaves and their descendants from possessing Constitutional rights. The amendment requires states to provide equal protection under the law to all persons within their jurisdictions and was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954). Its Due Process Clause has been the basis of much important and controversial case law regarding privacy rights, abortion (see Roe v. Wade), and other issues.
Requires each state to follow the Constitution and the Bill of Rights.
Our Laws, Search and Seizures
Types of Law;
Social or Moral law- Laws made by society and enforced by social pressure.
Common Law- referred to the precedents set by the judges in the royal courts.
Case Law- refers to judicial precedents were a similar case was used.
Statutory Law- Legislated and written law passed at the federal or state level these include constitutional l, criminal and civil laws.
Equity Law-Laws change as society changes
Torts- Civil law
Criminal Law
There are three different classification of crime. However the third classification is a violation and not really considered a crime. The classifications are the following;
(a) Felony- Serious crime with the penalty of more then one year in jail or prison and or a fine.
(b) Misdemeanor- Punishable by a period in jail of one year or less and or a fine.
(c) Violation Punishable in jail for a period of fifteen days or less and or a fine.
Further definition of a crime- A crime is and offense against the public at larger, for which the state , as the representative of the public, will bring proceedings in the form of criminal prosecution.
To commit a crime and be proven guilty our legal system in the U.S requires the state to prove the following two requirements.
Actus Reus- The person has to have plan and conspired to commit the act
Mens Reus- The person must have a guilty mind. Meaning that he knowingly or willingly committed the act. There are four sub categories of mental acts;
Intentionally- the person has a clear foresight of the consequences of the action and wants the consequences to occur.
Knowingly- person knows or should known that the results of his or her conduct conduct are reasonable certain to occur.
Recklessly- Where a person for sees that a particular consequence may occur and proceeds with a given conduct not caring whether those consequences actually occur or not.
Negligently- Occurs when a person does not for see particular consequences of his or her actions.
Criminal law refers to when and individual commits a crime that is punishable by society. The act is defined as a crime by some form of legislation, such as the Penal Law. If the person is caught they can be arrested by the police or other law enforcement branch and taken to court.
Once in court they will be afforded the right to legal counsel and proceed to some form of a hearing in front of their peers or a judge. If found guilty they can be given a fine, imprison or both.
Arrest process chart
Person commits a crime— he is arrested by the police—- someone or group or institution is willing to be a complainant—the arrested person is brought to the local precinct searched a processed— the person is then taken to Central Booking and is awaiting to see a judge for what is called arraignment—- They are afforded legal council and are allowed to plead guilty or not guilty at arraignment—The person may be released on bail or sent to a jail to await trial— case goes to trial and a judge or jury will determine guilty or not—if found guilty a person can be sent to prison, fined placed on probation or a combination of things.
Civil Law
Refers to all non criminal restriction placed on individual. It seeks not punishment but restitution in the form of money or some form of value. The offense is called a tort.
Further definition of a tort- a tort is a civil action commenced and maintained by the injured person himself and it purpose is to compensate him for the damage he has suffered at the expense of the wrong doer.