The Constitutional Language of Liberty

Professor Heidi Jo Green, Political Science

Common Law

Administrative Law

Judicial Holdings: Stare Decisis

A Brief Overview of the United States Legal System

Justice John Roberts

Chief Justice Graduate of Harvard Law School

1979 Appointed by President George

W. Bush to the Circuit Court of Appeals for Washington, D.C. (2003- 2005)

Nominated by President George W. Bush and confirmed to the United States Supreme Court in 2005

Third youngest Chief Justice-age 50 (*Justice John Jay-age 44 in 1789 and Justice John Marshall-age 45 in 1801)

Justice Ruth Bader Ginsburg

Graduate of Columbia Law School 1959

Appointed by President Jimmy Carter to the Circuit Court of Appeals for Washington, D.C. (1980 – 1993)

Nominated by President Bill Clinton and confirmed to the United States Supreme Court in 1993

Second woman nominated to the Court (*Justice Sandra Day O’Connor)

Justice Sonia Sotomayor

Graduate of Yale Law School 1979 Appointed by President George

H.W. Bush to the District Court of the Southern District of New York (1992 – 1998)

Appointed by President William Clinton to the Second Circuit Court of Appeals (1998 – 2009)

Nominated by President Barack Obama and confirmed to the United States Supreme Court in 2009

First Hispanic Justice on the Court

Justice Elena Kagan

Graduate of Harvard Law School 1986

Dean of Harvard Law School (2003- 2009)

United States Solicitor General (2009 – 2010)

Nominated by President Barack Obama and confirmed to the United States Supreme Court in 2009

Justice Stephen Breyer

Graduate of Harvard Law School 1964 (*LL.B. bachelor of laws)

Appointed by President Jimmy Carter to the First Circuit Court of Appeals (1980 – 1994)

Served as Chief Justice of the First Circuit Court of Appeals (1990 – 1994)

Nominated by President Bill Clinton and confirmed to The United States Supreme Court in 1994

Justice Anthony Kennedy

Graduate of Harvard Law School 1961 (*LL.B. bachelor of laws)

Appointed by President Gerald Ford to the Ninth Circuit Court of Appeals (1975 – 1988)

Nominated by President Ronald Reagan and confirmed to the United States Supreme Court in 1988

Justice Antonin Scalia

Graduate of Harvard Law School 1960 (*LL.B bachelor of laws)

Appointed by President Richard Nixon as Assistant Attorney General (1974 – 1977)

Appointed by President Ronald Reagan to the Circuit Court of Appeals for Washington, D.C. (1982 – 1986)

Nominated by President Ronald Reagan and confirmed to the United States Supreme Court in 1986 (*longest serving member of the court)

Justice Samuel Alito, Jr.

Graduate of Yale Law School in 1975

Appointed by President Ronald Reagan as United States Attorney for the District of New Jersey (1987 – 1990)

Appointed by President George H.W. Bush to the Third Circuit Court of Appeals (1990 – 2006)

Nominated by President George W. Bush and confirmed to the United States Supreme Court in 2006

Justice Clarence Thomas

Graduate of Yale Law School 1974 Nominated by President Ronald

Reagan as the Assistant Secretary of Education for the Office of Civil Rights (1981 – 1982)

Served as Chairperson of the Equal Employment Opportunity Commission under President(s) Ronald Reagan and George H.W. Bush

Nominated by President George H.W. Bush and confirmed to the United States Supreme Court in 1991

Second African-American Justice on the Court (*Justice Thurgood Marshall)

Left Moderate RightLiberal: Middle: Conservative:

Bader-Ginsburg Roberts ScaliaSotomayor Kennedy Alito, Jr.Kagan Breyer Thomas

Court’s Current Composition: Leans 5 to 4 in favor of the Conservatives

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.

First Amendment

Interpretation Question: Is speech “free” under any circumstance? What if the speech leads to violent actions?

Brandenburg v. Ohio (1968) Facts: A Ku Klux Klan leader was arrested under Ohio law for

making a speech at a Klan rally. Decision: Free speech is protected unless it is “inciting or

producing imminent lawless action and is likely to incite or produce such action.”

Key Interpretation: “Freedom of speech” has a broad definition and is limited only by intent to produce and production of imminent harm to others.

Freedom of Speech

Interpretation Question: Does “freedom of speech” allow people to say things that are emotionally harmful to others?

Snyder v. Phelps (Westboro Baptist Church) (2010) Facts: The Westboro Baptist Church picketed funerals of

military service people with signs that included slogans like “Thank God for dead soldiers.”

Decision: The church members were protected in their speech.

Key Interpretation: “Freedom of speech” does include speech that is emotionally harmful to others.

Freedom of Speech

Interpretation Question: Is the “free exercise of religion” protected, even if animals are killed?

Church of the Lukumi Babalu Aye v. City of Hialeah (1992) Facts: A church was barred from practicing animal sacrifice by a

city ordinance in Florida. Decision: There was no “compelling government interest” in the

ordinance, so the city could not bar a religious practice. Key Interpretation: “Exercise of religion” is given broad latitude

unless the government has a compelling interest in barring any aspect of it and the law is made so that it does not exceed this government interest.

Freedom of Religion

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.

Second Amendment

Section 1. (for purposes of this presentation section 1 has been outlined; there are 5 sections)

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any

state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Fourteenth Amendment

Interpretation Questions: Is the 2nd Amendment incorporated into the 14th Amendment (such

that no state can take away someone’s 2nd Amendment rights)? What purpose does the right to bear arms serve?

McDonald v. Chicago (2009) Facts: The suit was filed to challenge a gun ban. Decisions: The 2nd Amendment is incorporated into the 14th

Amendment. The right to bear arms is “fundamental to the Nation’s scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”

Key Interpretations: The right to bear arms is for self-defense and is a protected right on the national and state levels.

Right to Bear Arms

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.

Fourth Amendment

Interpretation Questions: Does the 4th Amendment apply only to the ways one could encounter search and seizure in 1791 (when the Bill of Rights was ratified)? Can one expect privacy on public roads?

United States v. Jones (2012) Facts: Police applied a warrantless tracking device to Jones’s vehicle and

later arrested him of drug possession. Decision: The police violated Jones’s 4th Amendment rights because a

GPS device applied to a vehicle without a warrant is an unlawful search. Key Interpretations: The 4th Amendment applies to new technologies

(like GPS tracking devices). In our current day of increased methods of surveillance, people can still expect privacy, even on public roads.

Right Against Unreasonable Search and Seizure

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.

Fifth Amendment

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 defense.

Sixth Amendment

Interpretation Questions: Do the 5th and 6th Amendments apply to non-citizens? What rights do non-citizens have?

Wong Wing v. United States (1895) Facts: The Chinese Exclusion Act allowed for hard labor and deportation

without a jury trial for Chinese people not in the country legally. Decision: The hard labor provision is not valid because it would require

a jury trial under under the 5th and 6th Amendments. Deportation without a jury trial is permitted because it’s not a punishment.

Key Interpretations: Non-citizens have rights under the Constitution, even if they are not here legally, but they do not have the right to be here or to stay here.

Right to a Trial by Jury:non-citizenship

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.

Eighth Amendment

Interpretation Question: Are punishments “cruel and unusual” when required for adults and applied to juveniles?

Jackson v. Hobbs (2012) Facts: A 14-year-old received the standard adult punishment in

Arkansas of life in prison without parole for a robbery that ended in homicide.

Decision: The Supreme Court reversed the punishment and held that, under the 8th Amendment, juveniles (children under 18) cannot receive the adult’s maximum punishment or a punishment that other states do not commonly give juveniles.

Key Interpretation: Courts can determine what is “cruel and unusual” based on information like the convicted person’s age.

Right Against Cruel and Unusual Punishment

Questions? Concept of Judicial Interpretation In the end, what is Law? What is the Constitution? Living, breathing,

and evolving or Stagnant and needs to be re-written?

Conclusion