The American Quest for Freedom and Justice: Our Laws

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Chapter 2

• The American Quest for Freedom and Justice Our
  Laws

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The Declaration of Independence

• Asserts that all individuals are created equal
  and are entitled to unalienable rights of life,
  liberty and the pursuit of happiness.
• Government derives power from the PEOPLE.
• American Creed a body of beliefs about equality,
  liberty and justice which most Americans believe
  in.

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• Americans demanded CIVIL RIGHTS and CIVIL
  LIBERTIES from the English.
• Civil Rights claims that the citizens has the
  affirmative assistance of government.
• Civil Liberties an individuals immunity from
  governmental oppression.
• The Declaration of Independence broke our ties
  with England.

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Types of Law

• Social or Moral Law
• Laws made by society and enforced solely by
  social pressure
• Common Law
• Precedents set by the judges in the royal courts
  as disputes rose
• Case Law
• Judicial precedents no specific law exists, but
  a similar case serves as a model

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• Statutory Law
• Legislated and written law
• May be passed at the federal or state level
• At both levels includes constitutional and
  ordinary law
• Constitutional law
• Amendments and interpretations by federal courts
• Ordinary law
• Acts of congress, treaties with foreign states,
  executive orders, regulations, and interpretation
  of the preceding by federal court.

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• Equity
• Demands that laws change as society changes,
  resorting to general principles of fairness and
  justice whenever existing law is inadequate.
• Requires spirit of the law take precedence over
  letter of the law

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Constitutional Law

• Constitution
• System of fundamental laws and principles that
  prescribe the nature, functions and limits of a
  government or other body.
• The US Constitution, ratified in 1789, is the
  basic instrument of government and the supreme
  law of the land.

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Bill of Rights

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

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First Amendment

• Guarantees freedom of religion
• Guarantees freedom of speech
• Guarantees freedom of the press
• Guarantees freedom of peaceable assembly
• Guarantees freedom of petition

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• Freedom of Religion
• Free to worship as we see fit
• No law can establish official church
• No law can prevent free exercise of religion
• Separates church and state
• Government must be neutral on religious matters,
  favoring no religion about another

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• Freedom of Speech
• Pure Speech protected by the First Amendment
• speech without accompanying action
• Speech Plus
• Not protected under First Amendment
• Example picket lines
• Symbolic Speech
• Tangible forms of expression

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• Freedom of the Press
• Generally forbids censorship
• Obscene or libelous prints is not protected
• Freedom of Peaceable Assembly
• Political, religious or social activity
• Authorities cannot impose unreasonable
  restrictions on assemblies
• Freedom of Petition
• Allows citizens to communicate with their
  government

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The Second Amendment

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

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The Fourth Amendment

• The Fourth Amendment requires probable cause and
  forbids unreasonable searches and seizures
• Searches
• Police Officer typically need a warrant to search
  or seize property of private citizen
• Plain view

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• Exclusionary Rule
• No evidence may be admitted in a trial unless it
  was obtained with in the constitutional standards
  set forth in the Fourth Amendment
• The Fifth Amendment
• Guarantees due process
• Notice of hearing
• Full information regarding the charge

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• Opportunity to present evidence in ones own
  behalf before impartial judge or jury
• Presumed innocent until proven guilty
• Prohibits double jeopardy
• Cant be tried more than once for the same crime.
• Second trial can occur, however, when the first
  trial results in mistrial, jury cannot agree on
  verdict, or when ordered by appellate court

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• Fifth Amendment prohibits self-incrimination
• Grand Jury
• Prior to being tried in Federal Court, a person
  must first be INDICTED (formally accused of a
  crime)
• The Grand Jurys duty is to prevent people from
  being subjected to trial with out proof a crime
  was committed

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• Due Process
• Occurs in the Fifth and Fourteenth Amendment
• Requires timely notice of a hearing/trial
• Informs accused of charges
• Present evidence
• Impartial judge or jury
• Innocent until proven guilty

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• Self Incrimination
• People are not required to provide information
  that may convict them
• Miranda v. Arizona
• Warned prior to custodial interrogation of their
  right to remain silent, what they say can be used
  against them, right to counsel

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• The Sixth Amendment
• Establishes requirements for criminal
  trials speedy
• Public
• Informed of charges
• Confront witness against him or her
• Subpoena witnesses for defense
• Have counsel

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• Subpoena
• Orders into court as witness person whose
  testimony is desired at trial
• Hearsay
• Secondhand information
• Indigent
• No means to hire counsel

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• The Eighth Amendment
• Forbids excessive bail, excessive fines and cruel
  and unusual punishments
• The Ninth Amendment
• Government powers are limited by the rights of
  the people (dont have right to invade the rights
  of the people)
• The Tenth Amendment
• Made the Bill or Rights applicable to states

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• The Fourteenth Amendment
• Requires each state to abide by the Constitution
  and the incorporation doctrine of the Bill of
  Rights. It guarantees due process and equal
  protection under the law.

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• Criminal Law
• Rules and procedures for investigating crimes and
  prosecuting criminals
• Regulates the constitution of courts.
• Regulates conduct of trials, and administration
  of penal institutions.

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• Felony
• Serious crime
• Punishable by death or imprisonment
• Sentence of more than one year
• Misdemeanor
• Minor offense
• Punishable by fine or short term jail sentence
• Sentence less than one year
• Actus Reus material elements of crime
• Menus Rea intent

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• Civil Law and Tort
• Non-criminal restrictions placed on people
• Seeks restitution no punishment
• Known as Tort
• Civil Rights Act (1983) US Code, Title 42
• Stipulates that anyone under the authority of
  local or state law who violates another persons
  constitutional rights, even though they are
  upholding the law, can be sued.

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• Requirements for a Section 1983 action are
• The plaintiff must be deprived of a
  constitutional right
• The defendant must deprive the plaintiff of this
  right while acting under the color of the law
• Strict liability liable even if no harm was
  intended
• Intentional wrong knew if was wrong and did it
  any way
• Negligence did not set out to do harm by acted
  carelessly

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• Police Power
• Authority the right to direct and command
• Power force by which other can be made to obey
• Police Power is derived from the US
  Constitution, US Supreme Court decisions, federal
  statutes, state constitutions, state statutes,
  state court decisions and various municipal
  charters and ordinances

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• Police power is restricted by the Constitution,
  Fourteenth Amendment and the Courts
• Conflict Theory
• Marx Engels Manifesto of the Communist Party
• Contends that certain behavior are criminalized
  to keep the dominate class in power

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• Consensus Theory
• Contends that individuals within a society agree
  on basic values, on what is inherently right and
  wrong.

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