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U.S. Constitution study guide: Difference between revisions
U.S. Constitution study guide (view source)
Revision as of 17:14, 26 December 2021
, 26 December 2021→Bill of Rights [Amendments 1-10]
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===Amendment 4 [unreasonable searches, warrants & probable cause]=== | ===Amendment 4 [unreasonable searches, warrants & probable cause]=== | ||
'''{{#tip-text:[Amendment 4 overview|Fourth Amendment: | '''{{#tip-text:[Amendment 4 overview|Fourth Amendment: | ||
* = protections against government abuse by "searching" and "seizing" people and their private materials | * = protections against government abuse by "searching" and "seizing" people and their private materials | ||
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''{{#tip-text:Fifth Amendment overview|Fifth Amendment: | ''{{#tip-text:Fifth Amendment overview|Fifth Amendment: | ||
* most importantly protects citizens from arbitrary (random) application of the laws ("due process") | * generally protects against abuse in criminal prosecutions | ||
* | * as well as importantly requiring the government to compensate for property "takings" | ||
* the 5th most importantly protects citizens from arbitrary (random) application of the laws ("due process") | |||
** "procedural law" is one of the most important protections in the Constitution | |||
** = that the "process" of the law must be followed in order for a law to be prosecuted | |||
* other protections and rights: | |||
** grand juries for indictment (criminal accusation) | ** grand juries for indictment (criminal accusation) | ||
** protects against self-incrimination | ** protects against self-incrimination and multiple charges for a crime | ||
** compensation for "takings" (seizure) of private property for public use}}''' | ** compensation for "takings" (seizure) of private property for public use}}''' | ||
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a ''{{#tip-text:presentment or indictment of a Grand Jury|Grand Jury | No person shall be held to answer for a capital, or otherwise infamous crime, unless on a ''{{#tip-text:presentment or indictment of a Grand Jury|Grand Jury | ||
* = tribunals of citizens, usually | * = tribunals of citizens, usually 12-23 (16-23 under current Federal law) who decide or authorize criminal charges (indictments) | ||
* grand juries require simple majorities, i.e. +50% (as opposed to courtroom juries which require unanimous, or 100%, agreement for conviction) | * grand juries require simple majorities, i.e. +50% (as opposed to courtroom juries which require unanimous, or 100%, agreement for conviction) | ||
* grand juries are designed to ensure public oversight of criminal prosecutions | * grand juries are designed to ensure public oversight of criminal prosecutions | ||
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* prosecutors have enormous powers to compel grand juries to act on their behalf, especially by | * prosecutors have enormous powers to compel grand juries to act on their behalf, especially by | ||
** holding them for extended periods of time | ** holding them for extended periods of time | ||
** controlling | ** controlling the jury's access to witnesses and information (providing, as it were, "only half the story") | ||
** compelling witness testimony, especially in "fishing expeditions" | |||
** = when prosecutors use a grand jury to gather new information and not to merely to decide to bring charges on something already known}}''', ''{{#tip-text:except in cases arising in the land or naval forces, or in the Militia|military law | |||
* = the Constitution here distinguishes civil from military law | |||
* i.e., the standards of behavior and criminality are different in the military than in civilian life | |||
* the Constitution here again makes an exception for greater governmental powers concerning times of emergency, threats to the public safety and war}}''', when in actual service in time of War or public danger; nor shall any person be subject for the '''{{#tip-text:same offence to be twice put in jeopardy of life or limb|"Double jeapardy" clause | |||
* "jeopardy" means in danger of punishment for a crime | |||
* protects against re-indictment of a crime that has already been prosecuted | |||
* especially so that a person who is acquitted (found innocent) of a crime will not be charged again for the same crime | |||
* or receive multiple punishments for a single crime | |||
** which is why prosecutors frequently make multiple charges (violation of the law) on a single criminal act | |||
** i.e. "multiple counts" = a single criminal act may constitution violation of multiple laws | |||
* thus the protection against "double jeopardy" is a protection against arbitrary application of the law | |||
Issues, problems & limits: | |||
* the protection against double jeopardy does not extend to multiple jurisdictions (places or levels of sovereignty, i.e, local, state and Federal law) | |||
* the "Separate sovereigns doctrine" holds that a single act that violates both a state or Federal law may, or other states' laws, be prosecuted separately | |||
** the doctrine was upheld by the Supreme Court in Gamble v. U.S. (2019) | |||
* problems with the separate sovereigns doctrine include: | |||
** it creates "overlapping" and not "separate" sovereignties | |||
** growth in Federal criminal law duplicates much state law | |||
** creates opportunity for prosecutorial abuse (prosecutions that are intended to target someone and not merely uphold the law) | |||
** raises questions about Governor or Presidential pardons, i.e., does a Presidential pardon for a crime also apply to a conviction for the same crime under state law?}}'''; nor shall be {{#tip-text: compelled in any criminal case to be a witness against himself|"witness against himself" | |||
* = protection against "self-incrimination" | |||
* a person charged with a crime is protected against providing testimony | |||
* known as "taking the Fifth" or "pleading the Fifth" | |||
= exercising one's right not to stand as witness against oneself | |||
* prosecutors may not use this exercise of the Fifth Amendment as evidence of guilt | |||
** i.e, refusal to give testimony against oneself is not an admission of guilt}}''', nor be {{#tip-text:deprived of life, liberty, or property, without due process of law|"Due Process Clause" | |||
* "due process" means that the law and protections in the Constitution must be followed completely for imposition of penalties ("deprived of life, liberty, or property") as a consequence of violating a law | |||
* = an important protection against arbitrary (random or select) application of the law and "fair" and "orderly" justice | |||
** ie., that the laws be carried out evenly and according to established legal rules and principles | |||
* the Fourteenth Amendment explicitly extended this protection to state law | |||
* a core application of this clause is that the government can not, for example, use evidence acquired without the Fourth Amendment protection against "unreasonable search and seizures" | |||
* the Court has categorized the Due Process Clause into: | |||
* procedural due process | |||
** = guarantees of fairness and appropriateness in a court proceeding | |||
** ex., a Court must have legal jurisdiction (authority) in order to prosecute a case | |||
** "process" means the laws, guarantees and protections must be followed | |||
* substantive due process | |||
** = protects the "substantial" or fundamental rights of individuals | |||
** even if those rights are not explicit in the law | |||
** ex., one's right to hold a job or a right to privacy | |||
** substantive due process is problematic in that it involves Court "creation" of rights not in laws drawn by the Constitution or legislatures}}'''; nor shall private property be taken for public use, without just compensation|"Just Compensation Clause" | |||
* = the government may seize property for "public use" | |||
** i.e., to build a park or a road | |||
* but the government must provide "just compensatation" for that property, i.e. must pay a fair price for it (usually a current "market" price, i.e, what someone else would reasonable pay for the property) | |||
* = an important protection against arbitrary rule, under which a government can just take someone's property | |||
** such power exists in many other countries, and their citizens are thereby subject to an arbitrary, or random/select, governmental power | |||
Issues, problems & limits: | |||
* the definition of "public use" has been extended beyond what traditionally was understood to be a specific common property (a road, bridge, railroad, park, school, etc.) | |||
** and in Kelo v. City of New London (2005) was allowed to include a general public benefit such to promote "economic activity" in an area by seizing properties and selling them to private interests with the intent to build something that would create economic activity (in "Kelo" this was a private "redevelopment" of an impoverished part of the city) | |||
** some states have codified (explicit law) "public use" to forbid such private transfers of property under the guise (pretension/purpose) of "public use" | |||
** however, "Kelo" is Federal law and has allowed for a "broad" or "expansive" interpretation of what constitutes "public use"}}'''. | |||
===Amendment 6[ ]=== | |||
{{#tip-text: | |||
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 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 defence. | 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 defence. | ||