American Government Lecture Five

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American Government Lectures - [1 - 2 - 3 - 4 - 5 - 6 - 7 - 8 - 9 - 10 - 11 - 12]

In this class we focus on the Bill of Rights, with a review of the judiciary. When the U.S. Constitution was ratified in 1788, there was concern by many Americans that the document did not have enough protections against ever-growing government power. These concerns were well-placed, and many today on both sides of the political spectrum complain about how powerful and overbearing government has become.

The original Constitution established the basic structure of the federal government, but included very few protections for individual rights. Advocates of the Constitution, including Alexander Hamilton and James Madison, insisted that special safeguards for individuals against government power was unnecessary, because the Constitution granted only limited powers to the new federal (national) government. This new "United States" government could not infringe on individual rights because the Constitution did not give it the power to so infringe. But as the ratification debate ensued in various states, particularly the then-large states of Virginia, New York, and Massachusetts, supporters of the Constitution had to promise they would quickly amend the Constitution with a "Bill of Rights" to prevent the new United States government from growing too powerful.

The Bill of Rights

The first Congress after ratification of the Constitution, and after the election of George Washington as the first President, convened in New York City. (Washington, D.C., did not exist yet.) One of its first official acts, on March 4, 1789, was to pass ten amendments as a "Bill of Rights" and then send it to the states for ratification, so that it could become part of the U.S. Constitution. Here is what this Act was:

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Amendment I

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.

Amendment II

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.

Amendment III

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.

Amendment IV

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.

Amendment V

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 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.

Amendment VI

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.

Amendment VII

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.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

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.

It took about 2.5 years for these amendments to be ratified by three-quarters of the states in order to become part of the Constitution, on December 15, 1791.

The Ratification Process

The Bill of Rights were ratified the same way that any other amendment to the Constitution is ratified: pursuant to the procedures set forth in Article V of the Constitution:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress

In simple terms, the primary method is that two-thirds majority of Congress must first pass the amendment, and then three-quarters of the State legislatures must approve it, in order for it to become part of the Constitution. There are other ways to amend the Constitution, such as two-thirds of the States calling for a constitutional convention (like the original constitutional convention), but that has never been done. Many oppose ever calling a constitutional convention (Con Con), because it would likely do what the original Constitutional Convention did: rewrite the entire Constitution. There are not any more George Washingtons to preside over it, or Alexander Hamiltons to guide it.

So the Bill of Rights was passed by at least a two-thirds vote of the House of Representatives, and then at least a two-thirds vote of the U.S. Senate, and by the end of 1791 (more than two years later) it was ratified by at least three-quarters of the States.

Some amendments passed by more than two-thirds of both chambers of Congress were unsuccessful in obtaining approval by three-quarters of the States (38 States is three-quarters of the 50 States today).

The most famous example of a proposed amendment that was never ratified is the so-called "Equal Rights Amendment" (ERA), which was supported by the leaders of both political parties, by all of the media, and which passed Congress by almost unanimous votes. The ERA stated:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

After it swiftly passed legislatures in about 32 States, Phyllis Schlafly organized grassroots opposition to under the name "Stop ERA." The implications of ERA, particularly when applied by liberal courts, were to prohibit allowing sensible differences between men and women. If men were drafted into war, then women must be drafted into war. Abortion, even taxpayer-funded abortion, would become law in order to ensure that women could end pregnancies and be just like men. Marriage could no longer be limited to one man and one woman. ERA would give vast new authority to federal courts, over issues that have always been handled by local state courts. And so on.

In one of the most stunning political upsets in American history. ratification of ERA was halted at 35 States, 3 short of the 38 States needed to become part of the Constitution. Congress even extended the deadline for ratification from 1979 to 1982, but no additional States passed it, and a few States even rescinded their prior passage of it. On June 30, 1982, the last day of the ratification period set by Congress, the Stop ERA group held a victory party in D.C. - which your instructor attended.

Applying the Bill of Rights

Thousands of attorneys spend all their time applying the Bill of Rights to specific cases. The Bill of Rights was originally intended to apply against only the federal government, not state and local governments. But after the ratification of the Fourteenth Amendment after the Civil War, the U.S. Supreme Court began applying provisions in the Bill of Rights against the States. Today almost every provision of the Bill of Rights has been applied against state or local government.

This means every action by a government official, whether working for the federal, state or local government, must comply with the Bill of Rights. Every police stop of a motorist, every regulation of speech, and every criminal prosecution must abide by those ten Amendments.

All ten Amendments in the Bill of Rights are important, but the First and Fourth Amendments are litigated the most in courts. Other amendments are just as important but do not arise often in actual cases. For example, the Second Amendment protects an individual right to own guns, as held by the U.S. Supreme Court in D.C. v. Heller (2008). But only a few cases a year are decided based on the Second Amendment. Courts still allow government to regulate gun ownership, and courts almost never invalidate those regulations.

The Third and Ninth Amendments are almost never relevant to a case. The Seventh Amendment is often used but rarely discussed: it establishes a right to a jury trial in most cases, which is a fundamental right almost unique to the United States (95% of the jury trials in the world occur in the United States). This right is clear and there is not much to discuss about it, so lawyers rarely need to litigate about the meaning of the Seventh Amendment.

But many thousands of cases each year do depend on legal arguments about the meaning and scope of the First and Fourth Amendments. The First Amendment protects freedom of speech, which is probably the most important right in all of the Constitution. It is unique to the United States; England does not have a constitutional right to freedom of speech, even today. Each year the U.S. Supreme Court accepts several cases relating to freedom of speech, and it is a popular issue in lower courts.

First Amendment

The Free Speech Clause in the First Amendment does not mean that anyone can say anything he wants at any time. Some speech, such as threatening someone or falsely yelling "fire" in a crowded theater (thereby creating a dangerous panic), is not protected by the First Amendment. On the other side of the coin, movies and now video games are mostly protected as "free speech."

Courts have been expanding the scope of the Free Speech Clause in the First Amendment for 200 years.

The Establishment Clause

While there is support on both sides of the political spectrum, conservative and liberal, for a strong application of the Free Speech Clause to prevent government from interfering with what people say, there is a sharp disagreement between liberals and conservatives about the Establishment Clause in the First Amendment:

Congress shall make no law respecting an establishment of religion ....

Liberals insist that requires prohibiting classroom prayer, crosses on public property, a national day of prayer, the posting of the Ten Commandments, and other expressions of religion in public life. Conservatives reject that view, and observe that the Establishment Clause merely prohibits the federal government from establishing and funding a particular religion.

Notice that there is no statement about a "wall of separation between church and state" anywhere in the Constitution. That phrase was taken from a letter Thomas Jefferson wrote later, after the Constitution and Bill of Rights were adopted, to a small group of Baptists who were unusually opposed to any cooperation between churches and government. Jefferson was not even at the Constitutional Convention or involved in the drafting of the Bill of Rights, and the misuse of his letter illustrates a flaw in going beyond the text of a law to interpret it.

Fourth Amendment

The Fourth Amendment protects against unreasonable searches and seizures of people and their property. Because all criminal prosecutions, state and federal, require gathering evidence, nearly all criminal cases implicate whether government officials (the police) had the right to gather the evidence.

Search warrants are the basic way that government officials obtain the right to search personal belongings. But search warrants are time-consuming to obtain (a judge needs to review and sign one), and they first require proof of probable cause of wrongdoing in order to obtain one. Often searches or interrogations are done without obtaining a warrant first. And when a search warrant is obtained, it can still be challenged based on whether it was validly obtained, or whether the actual search exceeded the scope of the warrant.

Knowledge about the Fourth Amendment can make the difference between being sent to jail for years, or not being arrested at all. If a cop stops a teenager who is carrying a backpack, does the police officer have a right to search the backpack? If the teenager grants consent to the cop to search his backpack, then that ends the matter, and some cops are clever in obtaining consent. But if the teenager knows his Fourth Amendment rights and refuses to consent to search his backpack, then the cop will probably not search it because of the Fourth Amendment. If there is something illegal in that backpack, then that exercise of Fourth Amendment rights by the teenager can mean the difference between going to jail and never being arrested.

The U.S. Supreme Court decides only about 75 cases each year, but more than 10% of those cases concern the Fourth Amendment. In the last Term of the U.S. Supreme Court, eleven of its decisions mentioned the Fourth Amendment.

In the last Term the Court was sharply divided over whether police could secretly attach a GPS monitoring device to a suspect's car without a search warrant, and thereby monitor his movements electronically. The police could track exactly where the suspect went every day and night. Do you think the Fourth Amendment should be interpreted to protect against this government action, when done without first obtaining a search warrant?

In a case we discussed earlier, in which New Jersey Governor Chris Christie felt compelled to "commute" (lift) the 7-year prison sentence of a man (Brian Aitken) for having a gun in the trunk of his car, which he lawfully owned in Colorado before moving here, there was a Fourth Amendment issue of whether the police properly searched his trunk without his consent and without a search warrant.

When a search is done in violation of the Fourth Amendment, then the evidence obtained is declared inadmissible against the defendant in a criminal case. This is the "exclusionary rule," which is unique to the American justice system. It has resulted in many cases of criminals being freed. Indeed, not only is the evidence excluded from trial, but all other evidence discovered based on the illegally seized evidence is excluded too. In the 1970s and 1980s, this was often criticized for interfering with the prosecution of defendants known to be guilty.

But today the United States has far more people in jail than any other nation in the world, including communist countries. Prison sentences in the United States are typically much longer than anywhere else in the world, at taxpayer expense. 20-year sentences for non-violent crimes are increasingly common in America. Massive billion-dollar prison systems are repeatedly being built, often to house defendants who pose no threat to society. In Florida earlier this year, a woman was sentenced to 20 years in jail for merely firing a warning shot against her husband.[1] Prisons have become so overcrowded in California that the U.S. Supreme Court ordered the State to start releasing thousands of prisoners.

Federal Cases

You may recall that there are two general types of cases in federal court: "diversity" cases (between citizens of different states, with the amount in dispute more than $75,000) and cases that arise under federal law (e.g., criminal and civil rights cases). Here are the 2011 data about the types of cases filed in federal court (U.S. District Court and U.S. Bankruptcy Court):[2]

Type of Case Number of Cases
Criminal Cases 102,931
Civil Cases 289,252
Bankruptcy Cases 1,547,669

Among the civil cases, here are their categories:

Specific Kind of Civil Case Basis for Federal Jurisdiction Number of Filings 2011
tort actions diversity and >$75,000 78,175
personal injury actions diversity and >$75,000 73,749
prisoner petitions arises under federal law 53,611
civil rights actions arises under federal law 37,020
contract actions diversity and >$75,000 32,306
special bankruptcy actions arises under federal law 2,829
Total Number of Filings 289,252

Thousands of the prisoner petitions and civil rights actions concern the First and Fourth Amendments. Many also include claims brought under other amendments in the Bill of Rights, such as the Fifth, Sixth and Eighth Amendments. Some lawsuits brought by prisoners are based on the Cruel and Unusual Punishment Clause of the Eighth Amendment, but they rarely succeed.

In personal injury cases (e.g., lawsuits against manufacturers like car companies), plaintiffs often prefer to be in state rather than federal court. Can you think of why? (Answer: damage awards in state court tend to be higher). In criminal cases, defendants typically prefer to be in state court too. Do you know why? (Answer: federal courts tend to favor prosecutors more than state courts do; acquittal rates are much higher in state court, and sentencing is often more reasonable). But defendants usually do not have a choice: it is the plaintiff who chooses the court. However, if federal jurisdiction exists in the lawsuit as it was filed by a plaintiff, then a defendant can remove a case from state court and have it conducted in federal court.


Suppose you are in federal district court, and you lose. Do you have any further recourse? Yes, you can appeal the decision to a federal court of appeals. In New York, the Court of Appeals is the “Second Circuit.” In New Jersey, appeals are taken to the “Third Circuit,” which covers New Jersey, Pennsylvania, Delaware and the Virgin Islands. In Texas, federal appeals are to the “Fifth Circuit.” The largest federal Court of Appeals is the Ninth Circuit, which covers California, Oregon, Washington, Arizona and other western states. Congress has considered splitting it into two Circuits.

On appeal, you will find yourself before a three-judge panel. A vote of the majority of the three judges will decide your case. It takes a few months to submit legal memoranda on why you think the federal district court was wrong and hold “oral argument” before the three-judge panel. Do not be surprised if the questions at oral argument by the judges seem to favor your side, but a few weeks later they issue a written decision against you. Their questions may have merely been testing the strengths and weaknesses of the case. In controversial or difficult cases, it can be several months before you receive a decision.

If you lose before the federal court of appeals, then your last chance is to appeal it to the United States Supreme Court - with only about a 1% chance that it will accept your case.

The Chief Justice of the United States is the person who leads the U.S. Supreme Court. But his vote is not more than any of the other eight Justices on the Court. He does have the advantage of deciding who writes the opinion for his side in a case. Whichever side he is on (majority or dissent), he picks the person to write the decision of his side. In important cases, he may pick himself to write it. The most senior justice on the other side then picks who writes the opinion for that side.

The infamous Roe v. Wade decision that legalized abortion nationwide, and invalidated numerous state laws against abortion, was by a 7-2 vote. Court folklore is that Chief Justice Warren Burger was himself against abortion, but voted with the majority in order to be able to select the author of the opinion. He picked Justice Blackmun, a longtime friend of his. However, Justice Blackmun then wrote a dreadful opinion.

Each State also has its own Supreme Court to oversee the state court system. However, its name is not always “Supreme Court.” In New York, oddly enough, the “Supreme Court” is the name for the trial (lowest) level. The highest appellate court is called the “New York Court of Appeals.”

The American Rule

Unlike most countries, in the United States the general rule is that each side pays its own attorneys fees, no matter who wins. In England and many other countries, the side that wins the case can recover his legal expenses from the losing side. Typically that is not allowed here, except where a special law allows it.

Americans have respect for someone's “day in court.” In the old days, someone who felt he was wronged would challenge his opponent to a duel. Within days they would meet at dawn somewhere and try to kill each other, often leaving one dead. That practice was stopped by prosecuting the person who survived, for having committed murder. Now this type of dispute is resolved by one person suing the other. Win or lose, at the end each side feels some relief for having their “day in court” to vent their grievance.

Trials are more common in state court than in federal court. In federal court today, just over 1% of cases reach a trial.[2] Federal cases are often settled or disposed of without a trial.

Appellate Court

Appellate judges have a very different job from trial judges. The appellate judges must establish rules that render justice in the case before them, and in all other cases having similar facts. They need to look beyond the dispute at hand and anticipate justice in future disputes also.

A classic problem is the “slippery slope.” That is what happens when someone steps onto a very slippery incline: they slide all the way down to the undesired bottom. An example in life is when someone takes illegal drugs for the first time. They are stepping on a slippery slope that will ruin their lives. Addiction results from the first use, and they soon slide to the bottom of society.

In the law, the slippery slope is when a court makes an exception that invites many more exceptions like it. Or when a court creates a new constitutional right that invites many more new rights like it.

An example is when “free speech” protection was extended to obscenities. In one case, a Vietnam protester wore a jacket in a courtroom that had an obscene word written on it, in reference to the draft. He was convicted for disturbing the peace and he appealed his case all the way to the U.S. Supreme Court. He ultimately won on free speech grounds. But once one protects obscenity as free speech, it became a slippery slope. Once one obscenity is protected, then many more obscenities inevitably follow,

This can also be seen in the Establishment Clause cases, where the Ten Commandments and other symbols of Christianity have been ordered by courts to be removed from public places. This has become a slippery slope; where does the purging of religion from public life stop? Its faulty logic leads to purging all religious references from public life: “In God We Trust” from our coins, and “under God” from our pledge of allegiance. Before long, society slides down to the bottom of the hill, and hostility to religion has triumphed.

It is best to stay off the slippery slope.

Stare Decisis

“Stare decisis” means “to stand by that which was decided.” For judges, it means they should decide similar cases in a similar manner. When a precedent is established, “stare decisis” means courts should abide by it. For the Supreme Court, “stare decisis” means it should adhere to its prior rulings.

In fact, the U.S. Supreme Court often changes its mind. In 1940, it held that a Jehovah’s Witness can be forced to say the Pledge of Allegiance, despite being contrary to his religion. Two years later, in 1943, the Supreme Court reversed itself and said no one should be forced to violate their own religious beliefs like that. In other cases, the Supreme Court has even reversed itself within a year.

In 1992, the Supreme Court had an opportunity to overturn its Roe v. Wade decision, which had declared a new constitutional right to abortion. But Justice Kennedy cast the deciding fifth vote against overturning it, saying that stare decisis compelled him to be consistent with Roe v. Wade. But on another controversial social issue, Justice Kennedy did write a decision that expressly overturned a prior decision, contrary to stare decisis.


Answer the first five questions, and then two of the remaining three:

1. What is your favorite part of the Bill of Rights? Explain.
2. Explain which amendments in the Bill of Rights primarily protect the rights of defendants.
3. Should federal courts apply all of the Bill of Rights, including the Establishment Clause, against state and local government? Discuss.
4. Suppose the police entered your home without a warrant, despite your objection, and searched your house. Which part of the Constitution did the police violate (unless there was an exception, like an emergency)? Explain briefly.
5. Is there any new amendment that you would like to see in the U.S. Constitution today, and what is the customary process for adding it?
6. There are 89 federal district courts in the United States. About how many civil and criminal cases, on average, would one district court have per year?
7. Do you think stare decisis should prevent the U.S. Supreme Court from overturning Roe v. Wade?
8. Is it too easy or too difficult to amend the U.S. Constitution? Explain, while mentioning the example of the ERA.

Extra credit (answer two of the following five questions):

9. "It is better for 50 guilty men to go free than for one innocent man to be unjustly convicted." Do you agree? Discuss.
10. Does the U.S. Constitution require a unanimous vote by all jurors in order to render a guilty verdict against a criminal defendant at trial? Should it?
11. What is your view of a "Con Con" - should one be held, or not? Discuss.
12. What is your view of the "exclusionary rule"?
13. Write about any topic in the lecture.

You can post your answers at American Government Homework Five.


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