Chapter 2Chapter 2

The American Quest for The American Quest for Freedom and Justice: Our Freedom and Justice: Our

LawsLaws

The Declaration of IndependenceThe Declaration of Independence

Asserts that all individuals are created Asserts that all individuals are created equal and are entitled to unalienable equal and are entitled to unalienable rights of life, liberty and the pursuit of rights of life, liberty and the pursuit of happiness.happiness.

Government derives power from the Government derives power from the PEOPLE.PEOPLE.

American Creed: a body of beliefs about American Creed: a body of beliefs about equality, liberty and justice which most equality, liberty and justice which most Americans believe in.Americans believe in.

Americans demanded CIVIL RIGHTS Americans demanded CIVIL RIGHTS and CIVIL LIBERTIES from the English.and CIVIL LIBERTIES from the English. Civil Rights: claims that the citizens has Civil Rights: claims that the citizens has

the affirmative assistance of government.the affirmative assistance of government. Civil Liberties: an individual’s immunity Civil Liberties: an individual’s immunity

from governmental oppression.from governmental oppression. The Declaration of Independence broke The Declaration of Independence broke

our ties with England.our ties with England.

Types of LawTypes of Law

Social or Moral LawSocial or Moral Law Laws made by society and enforced Laws made by society and enforced

solely by social pressuresolely by social pressure Common Law:Common Law:

Precedents set by the judges in the royal Precedents set by the judges in the royal courts as disputes rosecourts as disputes rose

Case Law:Case Law:

Judicial precedents; no specific law exists, Judicial precedents; no specific law exists, but a similar case serves as a modelbut a similar case serves as a model

Statutory Law:Statutory Law: Legislated and written lawLegislated and written law May be passed at the federal or state levelMay be passed at the federal or state level At both levels includes constitutional and At both levels includes constitutional and

ordinary lawordinary law Constitutional law:Constitutional law:

Amendments and interpretations by federal courtsAmendments and interpretations by federal courts Ordinary law:Ordinary law:

Acts of congress, treaties with foreign states, Acts of congress, treaties with foreign states, executive orders, regulations, and interpretation of executive orders, regulations, and interpretation of the preceding by federal court.the preceding by federal court.

EquityEquity Demands that laws change as society Demands that laws change as society

changes, resorting to general principles changes, resorting to general principles of fairness and justice whenever existing of fairness and justice whenever existing law is inadequate.law is inadequate.

Requires “spirit of the law” take Requires “spirit of the law” take precedence over “letter of the law”precedence over “letter of the law”

Constitutional LawConstitutional Law

Constitution:Constitution: System of fundamental laws and System of fundamental laws and

principles that prescribe the nature, principles that prescribe the nature, functions and limits of a government or functions and limits of a government or other body.other body.

The US Constitution, ratified in 1789, The US Constitution, ratified in 1789, is the basic instrument of is the basic instrument of government and the supreme law of government and the supreme law of the land.the land.

Bill of RightsBill of Rights

The Bill of Rights refers to the first 10 The Bill of Rights refers to the first 10 amendments to the constitution, amendments to the constitution, which protect the peoples’ liberties which protect the peoples’ liberties and forbid the government to violate and forbid the government to violate these rights.these rights.

First AmendmentFirst Amendment

Guarantees freedom of religionGuarantees freedom of religion Guarantees freedom of speechGuarantees freedom of speech Guarantees freedom of the pressGuarantees freedom of the press Guarantees freedom of peaceable Guarantees freedom of peaceable

assemblyassembly Guarantees freedom of petitionGuarantees freedom of petition

Freedom of Religion:Freedom of Religion: Free to worship as we see fitFree to worship as we see fit No law can establish official churchNo law can establish official church No law can prevent free exercise of No law can prevent free exercise of

religionreligion Separates church and stateSeparates church and state Government must be neutral on Government must be neutral on

religious matters, favoring no religion religious matters, favoring no religion about anotherabout another

Freedom of Speech:Freedom of Speech: Pure Speech: protected by the First Pure Speech: protected by the First

AmendmentAmendment speech without accompanying actionspeech without accompanying action Speech Plus:Speech Plus:

Not protected under First AmendmentNot protected under First Amendment Example: picket linesExample: picket lines

Symbolic Speech:Symbolic Speech: Tangible forms of expressionTangible forms of expression

Freedom of the Press:Freedom of the Press: Generally forbids censorshipGenerally forbids censorship Obscene or libelous prints is not protectedObscene or libelous prints is not protected

Freedom of Peaceable Assembly:Freedom of Peaceable Assembly: Political, religious or social activityPolitical, religious or social activity Authorities cannot impose unreasonable Authorities cannot impose unreasonable

restrictions on assembliesrestrictions on assemblies Freedom of Petition:Freedom of Petition:

Allows citizens to communicate with their Allows citizens to communicate with their governmentgovernment

The Second AmendmentThe Second Amendment

The Second Amendment guarantees The Second Amendment guarantees the right to keep and bear arms as the right to keep and bear arms as necessary for a well-regulated militia.necessary for a well-regulated militia. Gun control actsGun control acts

The Fourth AmendmentThe Fourth Amendment

The Fourth Amendment requires The Fourth Amendment requires probable cause and forbids probable cause and forbids unreasonable searches and seizuresunreasonable searches and seizures

Searches:Searches: Police Officer typically need a warrant to Police Officer typically need a warrant to

search or seize property of private search or seize property of private citizencitizen

Plain viewPlain view

Exclusionary RuleExclusionary Rule No evidence may be admitted in a trial No evidence may be admitted in a trial

unless it was obtained with in the unless it was obtained with in the constitutional standards set forth in the constitutional standards set forth in the Fourth AmendmentFourth Amendment

The Fifth Amendment:The Fifth Amendment: Guarantees due process:Guarantees due process:

Notice of hearingNotice of hearing Full information regarding the chargeFull information regarding the charge

Opportunity to present evidence in Opportunity to present evidence in one’s own behalf before impartial one’s own behalf before impartial judge or juryjudge or jury

Presumed innocent until proven guiltyPresumed innocent until proven guilty Prohibits double jeopardyProhibits double jeopardy

Can’t be tried more than once for the Can’t be tried more than once for the same crime.same crime.

Second trial can occur, however, when the first Second trial can occur, however, when the first trial results in mistrial, jury cannot agree on trial results in mistrial, jury cannot agree on verdict, or when ordered by appellate courtverdict, or when ordered by appellate court

Fifth Amendment prohibits self-Fifth Amendment prohibits self-incrimination incrimination

Grand Jury:Grand Jury: Prior to being tried in Federal Court, a Prior to being tried in Federal Court, a

person must first be INDICTED (formally person must first be INDICTED (formally accused of a crime)accused of a crime)

The Grand Jury’s duty is to prevent The Grand Jury’s duty is to prevent people from being subjected to trial with people from being subjected to trial with out proof a crime was committed out proof a crime was committed

Due Process:Due Process: Occurs in the Fifth and Fourteenth Occurs in the Fifth and Fourteenth

AmendmentAmendment Requires timely notice of a hearing/trialRequires timely notice of a hearing/trial Informs accused of chargesInforms accused of charges Present evidencePresent evidence Impartial judge or juryImpartial judge or jury Innocent until proven guilty Innocent until proven guilty

Self Incrimination:Self Incrimination: People are not required to provide People are not required to provide

information that may convict theminformation that may convict them Miranda v. Arizona:Miranda v. Arizona:

Warned prior to custodial interrogation of Warned prior to custodial interrogation of their right to remain silent, what they say their right to remain silent, what they say can be used against them, right to counselcan be used against them, right to counsel

The Sixth Amendment:The Sixth Amendment: Establishes requirements for criminal Establishes requirements for criminal

trialstrialsspeedyspeedy PublicPublic Informed of chargesInformed of charges Confront witness against him or herConfront witness against him or her Subpoena witnesses for defenseSubpoena witnesses for defense Have counselHave counsel

Subpoena:Subpoena: Orders into court as witness person Orders into court as witness person

whose testimony is desired at trialwhose testimony is desired at trial HearsayHearsay

Secondhand informationSecondhand information Indigent:Indigent:

No means to hire counselNo means to hire counsel

The Eighth Amendment:The Eighth Amendment: Forbids excessive bail, excessive fines Forbids excessive bail, excessive fines

and cruel and unusual punishmentsand cruel and unusual punishments The Ninth Amendment:The Ninth Amendment:

Government powers are limited by the Government powers are limited by the rights of the people (don’t have right to rights of the people (don’t have right to invade the rights of the people)invade the rights of the people)

The Tenth Amendment:The Tenth Amendment: Made the Bill or Rights applicable to Made the Bill or Rights applicable to

statesstates

The Fourteenth Amendment:The Fourteenth Amendment: Requires each state to abide by the Requires each state to abide by the

Constitution and the incorporation Constitution and the incorporation doctrine of the Bill of Rights. It doctrine of the Bill of Rights. It guarantees due process and equal guarantees due process and equal protection under the law.protection under the law.

Criminal Law:Criminal Law: Rules and procedures for investigating Rules and procedures for investigating

crimes and prosecuting criminalscrimes and prosecuting criminals Regulates the constitution of courts.Regulates the constitution of courts. Regulates conduct of trials, and Regulates conduct of trials, and

administration of penal institutions.administration of penal institutions.

Felony:Felony: Serious crimeSerious crime Punishable by death or imprisonmentPunishable by death or imprisonment Sentence of more than one yearSentence of more than one year

Misdemeanor:Misdemeanor: Minor offenseMinor offense Punishable by fine or short term jail sentencePunishable by fine or short term jail sentence Sentence less than one yearSentence less than one year

Actus Reus: material elements of crimeActus Reus: material elements of crime Menus Rea: intentMenus Rea: intent

Civil Law and TortCivil Law and Tort Non-criminal restrictions placed on peopleNon-criminal restrictions placed on people Seeks restitution no punishmentSeeks restitution no punishment Known as TortKnown as Tort

Civil Rights Act (1983) US Code, Title 42Civil Rights Act (1983) US Code, Title 42Stipulates that anyone under the authority of Stipulates that anyone under the authority of

local or state law who violates another local or state law who violates another person’s constitutional rights, even though person’s constitutional rights, even though they are upholding the law, can be sued.they are upholding the law, can be sued.

Requirements for a Section 1983 action are:Requirements for a Section 1983 action are: The plaintiff must be deprived of a constitutional The plaintiff must be deprived of a constitutional

rightright The defendant must deprive the plaintiff of this The defendant must deprive the plaintiff of this

right while acting under the “color of the law”right while acting under the “color of the law” Strict liability: liable even if no harm was Strict liability: liable even if no harm was

intendedintended Intentional wrong: knew if was wrong and did it Intentional wrong: knew if was wrong and did it

any wayany way Negligence: did not set out to do harm by acted Negligence: did not set out to do harm by acted

carelesslycarelessly

Police Power:Police Power: Authority: the right to direct and commandAuthority: the right to direct and command Power: force by which other can be made Power: force by which other can be made

to obeyto obey Police Power: is derived from the US Police Power: is derived from the US

Constitution, US Supreme Court decisions, Constitution, US Supreme Court decisions, federal statutes, state constitutions, state federal statutes, state constitutions, state statutes, state court decisions and various statutes, state court decisions and various municipal charters and ordinancesmunicipal charters and ordinances

Police power is restricted by the Police power is restricted by the Constitution, Fourteenth Amendment Constitution, Fourteenth Amendment and the Courtsand the Courts

Conflict Theory:Conflict Theory: Marx & Engel’s Manifesto of the Marx & Engel’s Manifesto of the

Communist PartyCommunist Party Contends that certain behavior are Contends that certain behavior are

criminalized to keep the dominate class criminalized to keep the dominate class in powerin power

Consensus Theory:Consensus Theory: Contends that individuals within a Contends that individuals within a

society agree on basic values, on what society agree on basic values, on what is inherently right and wrong.is inherently right and wrong.