Government: Amendments and Goodies Study Guide

Julie Greiner

Noah Fields
Alex Barr

Malissa Marlow

Government Period 6

Government: Amendments and “Goodies” Study Guide

First Amendment

Formal title:Amendment the first Our snazzy nickname: RSPPA

The text, in all of its dry, antiquated glory: “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.”

What the hell does that mean?This amendment guarantees that Congress will curtail our freedoms of:

Religion- Two parts:

1. Establishment Clause- The government cannot establish a national religion. Since the late 19th century, this clause has also been used to support separation of church and state

Sorry, Tom Cruise. The White House ain’t gonna throw no scientology party soon.

2. Free Exercise Clause- The people are free to worship any religion of their choice, without governmental interference.

…But you can do your scientology crap anyway if you insist, Mr. Cruise. In your

bedroom. With the curtains shut. Puleez.

Speech- The people can say what they want.

“I’m mad as hell and I’m not gonna take it anymore!” yelled Jordan.

“That’s nice,” responded his teacher. “Sit down and write your essay or it’s

detention for you.”

Press- The government will not interfere with the news outlet, even if it says defamatory things about the government.

Kennedy was surprised to see himself on the cover of National Examiner, but when

he saw that the tabloids were now claiming he was sleeping with Marilyn Monroe, he

shrugged. “Ask not what Marilyn can do for me but what…”

Petition- The people may lobby complaints—and tomatoes—at the White House if they so please without fear of capital punishment.

But that doesn’t mean the rest of us won’t laugh at you for wanting to secede, Texas.

Assembly- The people may convene/rally/meet/party/hookup/what have you and collectively express their opinions, particularly to better society as a whole.

Care to join our Walk To End Hipsters?

That seems simple enough. Why the controversy?Oh, honey, you knew freedom had a cost. There has been constant squabble over the exact meaning of each of those clauses and how they should be applied. And, of course, there have to be limits to all of these laws, i.e.: you can speak your mind if you like us, but if you’re a Marxist, you better keep your damned mouth shut.

Let’s start with freedom ofreligion:

*Controversy over “separation of church and state” and the establishment clause entail:

-Is mandatory school prayer constitutional? (Engel v. Vitale (1961) says no.)

-Can the government fund nonpublic sectarian schools? Lemon v. Kurtzman(1971) created a “Lemon test” which said government could only intervene for secular purposes, without giving preference for a religion.

*Controversy over limits to freedom to worship:

-Religious worship cannot be a threat to the common good

The other four freedoms (“SPPA”) are often bracketed collectively as “freedom of expression.” This is perhaps our most controversial right. Some major controversies:

* Is freedom of expression protected if it endangers others? If so, what constitutes “danger”?

-Schenck v United States (1919) established that expression is not protected if it poses a “clear and present danger.” The classic (and trite) example is you can’t yell fire in a crowded theater.

-HazelwoodSchool District v. Kulmeier (1987) allowed the school district to censor articles in the student newspaper for the sake of the well-being of young students.

-You can’t say slander others if it causes damage to others, or you’ll get sued. However, New York Times v. Sullivan (1964) required that proof of “actual malice” as a result of the “defamatory falsehood” be demonstrated before damages were rewarded.

-Tinker v. Des Moines (1969) sanctioned nonviolent protest because it doesn’t endanger the rights of others.

-Feiner v. New York (1951) declared that you can’t start a riot.

* Can we say bad things about the government?

- The government has tried to censor our voices in the past in widely unpopular sedition acts (like John Adams’)

- Near v. Minnesota (1931) declared that government cannot use “prior restraint” to censor a newspaper article pre-publication unless it threatens national security.

* Is obscenity protected? What constitutes obscenity?

-Jacobellis v. Ohio(1964) reversed a fine on a movie theater for showing a controversial movie, declaring that it wasn’t obscene. It established that the government wouldn’t censor materials short of “hard-core pornography.” But when it came to defining “obscene”, the court was loosey goosey. Justice Potter Steward simply remarked, “I know it when I see it.”

-Miller v. California (1973) upheld a conviction for distributing pornography, but also established a (somewhat) more objective three part test to identify obscenity in future cases.

* Does campaign spending qualify as free expression? What about flag burning?

-Buckley v. Valeo (1976) declared campaign contributions a form of free expression and allowed candidates to donate unlimited amounts (we’re talking boatloads of cash) to their own campaigns.

-Texas v. Johnson (1989) protected flag burning as a form of free expression since it does not threaten the peace.

2nd Amendment

• The right of the people to keep and bear arms shall not be infringed
• A well-regulated militia being necessary to the security of a free state
• District of Columbia v. Heller Supreme Court struck down a WashingtonD.C. ban on handguns
• The constitution will not disallow firearm bans on convicted criminals and the mentally ill
• Chicago v. McDonald concluded that the Chicago Handgun ban was unconstitutional because the incorporation doctrine of the 14th amendment allows the second amendment to apply to the states

4th amendment

Actual text, in all its boring, antiquated glory: “The right of the people to be secure in their persons, houses, papers, & effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probably cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

Excuse me? Basically, this means the police can’t bust into your home, search the place, and confiscate your things on a whim. No “I was in a bad mood and there weren’t any Donuts at Dunkin Donuts when I went for my break so I’m gonna take it out on this poor innocent family” junk. The police have to have a legitimate reason—a cause supported by oath or affirmation—with an official, judicially sanctioned document and everything. That document is called a warrant, and it has to specify exactly what the police are looking for and what they expect to find.

So where did this Amendment come from, anyhow?

I’m glad you asked! The American desire for a limit to unreasonable search and seizure had its origins way back when America was still a bunch of colonies. Back in these times, the British would conduct “general searches” of colonial homes frequently, usually without cause. They claimed they were looking for “smuggled goods” but the families whose homes they searched had no reason to be suspected of smuggling anything.

What next?

Well, in 1754, the British passed the Excise Act, which gave tax collectors unlimited powers to search the homes of the colonists with the goal of seizing “prohibited and uncustomed” goods. The colonists were not big fans of that. At all. That’s why, just two short years of searches and seizures later, Massachusetts enacted legislation barring the use of general warrants. A little bit later, in 1776 (quite the important year for us) the Virginia Declaration of Rights also forbade the use of general warrants. Even though Massachusetts essentially did the same thing in 1756, it is the Virginia Declaration of Rights’ ban against general warrants that most people believe set the precedent for the 4th amendment.

Sounds like the Virginia Declaration of Rights was super important.

How very astute of you to notice. It really was. Since it was drafted in 1776, right at the explosion of American independence, it is often considered the basis for many of amendments included in the Bill of Rights. On the subject of warrants, it said: “ that general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and opposite and ought not to be granted” Did you catch that? Searching and seizing without cause or evidence of a crime committed is “grievous and opposite and ought not to be granted.” That’s like the 18th century equivalent of a bitch slap.

So that’s that. No unreasonable searching and seizing. Got it. We’re done. Right?

Almost. Before we put the 4th amendment to bed we should probably address some of the ambiguity surrounding it. There are some known exceptions to warrant requirement—consent of the property owner, plain view property, open field, and exigent circumstances (law enforcement believes there is an immediate need for ACTION in order to SAVE INNOCENT LIVES). However, in some cases, the supreme court has ruled that searches and seizures are unreasonable even if a warrant was acquired and there was probable cause and limited scope. Even more interestingly, the court has allowed warrantless searches……where there is probable cause to believe that a criminal offense is being or has been committed. So, like every other law, no matter how black and white it seems, there is always a big, drab, gray area in the middle where the court must decide how to best handle the situation.

NOW are we done?

Hold your horses! We’ve still got a court case to go over. And don’t worry. It’s almost like a bedtime story. Only with suspected bombers, big scary men with guns, and porn. Just listen.

Mapp v. Ohio (1961) The Cleveland police revived a tip that a suspect in a bombing case was hiding out in the house of one Dollree Mapp. They forced their way into the house and searched her home, probably scaring Ms. Mapp half to death. When she asked the big scary men with guns where their warrant was to search her home, they arrested her for being “belligerent.” Ouch. They then continued to rifle through Ms. Mapp’s things and found no evidence of the suspect they came to look for. Woops. But they DID find some really nasty pornographic material. Woops on Ms. Mapp’s part. They actually prosecuted and found her guilty for owning these materials.

SO. That’s our little story. But here’s the questions. Was the search legal in the first place? And did they have the right to arrest Ms. Mapp for owning materials they found in a (possibly) illegal search? Hmm.

Well, the Supreme Court eventually overturned the conviction, on the grounds that a little thing called the Exclusionary Rule applied to this state matter. This Exclusionary Rule is a very important part of the 4th amendment, (actually established in another court case, Weeks v. U.S.) that says that evidence obtained through a violation of the 4th amendment is generally not admissible in a trial. Ms. Mapp can enjoy her porn in peace!

Fifth Amendment

Formal title:Amendment the fifth Buzz word: Rights of Accused People

The text, in all of its dry, antiquated glory: “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.”

In English please?Um, actually that was English. But for those of us who aren’t fluent in 18th century English, a brief SparkNotes-ysynopsis is in order.

* Summary: (1) All citizens are guaranteed a trial before a Grand Jury for a felony, with exceptions for those serving in the army. (2) Moreover, citizens have several rights in court: (a) a person will not be accused of the same criminal action twice and (b) a person will never have to incriminate himself. (3) Finally, citizen’s natural rights to life, liberty, and property are protected. They can’t be taken away without “due process” or (in the case of property) fair compensation in return.

* Analysis: This amendment clearly has root in the ideas of the Magna Carta. In fact, some language is outright stolen from the document. (CAUTION: Just because the founding fathers plagiarized doesn’t mean that you can too, smart aleck.) The goal was to prevent a repeat of what the British inflicted upon Americans pre-independence. Colloquially, we often use the phrase “plead the fifth” to refuse to accuse oneself (musicians plead Beethoven’s Fifth), but this is but one part of the amendment. Citizens are presumed innocent until proven guilty and the justice system respects that. One example of this is how a defendant can appeal to a higher court if he is declared guilty, but a prosecutor cannot appeal a case to a higher court if he is declared innocent.

How have accused people’s rights fared in court? Good question; we’re glad you asked. In fact, there have been a number of important court cases.

* The Supreme Court has upheld states’ right of eminent domain, which allows states to claim private property for public usage (if they properly compensate the owner).

*There have been several cases related to self-incrimination:

- Miranda v. Arizona (1966) established the Miranda Warning, in which officers remind accused persons of their 5th Amendment rights before making arrests. It goes like this: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expenses.” Try saying that in one breath!

- Griffin v. California(1965) declared that an accused person cannot be convicted for exercising their right to remain silent.

-Oregon v. Elstad (1985) concluded that a self-incriminating statement given before the reading of the Miranda rights cannot be used against the defendant in court.

The 6th Amendment

Actual text, in all its dry, antiquated glory: “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 processes for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

You lost me at antiquated. Ok, ok. Here’s what all that really means, in plain English: It means that accused folks don’t have to wait until they have gray hair and wrinkles before they actually get to go to trial and hear their sentence. It means that when they do go to trial, anybody can walk into the courtroom and observe the proceedings if it tickles their fancy. It means that the trial will occur in the state and district where the crime was determined to have been committed. It means that the accused actually gets to know what crimes he has been charged with. It means that real live witnesses can come in person to testify against the accused, and that the accused gets to be present and hear their testimony. Finally, it means the accused has the right to seek out witnesses of his own who will hopefully help him plead innocence and that the accused has the right to his very own defense attorney, even if he can’t afford one himself. WHEW. That’s a lot.

That IS a lot. So, is there any more to it?

No, not really. No big origin story for this one. Just an amendment outlining reasonable procedure for criminal trials. I’m sure it was influenced by the Virginia Declaration of Rights or some other important document, but that’s not really important to know about in this situation.

So we’re done here?

Not exactly. There’s still a few things we should clarify about the rights the 6th amendment gives us common folk (or rather, us common folk who have committed a crime).

• The amendment grants the right to a “speedy” trial, but the Supreme Court has never explicitly ruled on any absolute time limit.
• The amendment also grants the right to a public trial, however, there are exceptions. In cases where excess publicity would undermine the defendant’s right to due process, public access can be limited.
• The amendment grants the right to a jury as well. However, this is not true for for petty offenses (prison time for these baby crimes is 6 months or less). Additionally, when minors are tried in juvenile court, they do not receive a jury.
• In terms of the jury itself, impartiality is a big deal. Each side of the case may question jurors to determine bias.
• The Jury must represent a fair cross section of the community. For example, in a case where a man is being accused of intentionally harming his pet cat, the jury cannot consist of all cat owners or of all people who despise cats.
• The notice of accusation must have an indictment which very specifically states the crime. I.e. “Ms. Scarlett, in the bathroom, with a lead pipe.”
• The accused must be able to challenge credibility of or cross examine the witnesses.
• Finally, the amendment guarantees the right to a lawyer or a right to self-counsel. Self counsel means you can represent yourself. Hint, if you’re ever a criminal, never choose self counsel.

Is there a court case here?