"The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."
In my opinion, the twelfth amendment is very clear and concise about how the President and Vice President are to be elected. The twelfth amendment gives great power to electors and Congress in choosing the President and Vice President. The election its self does not involve the citizens at all. This is because the Framers did not trust ordinary people to pick the right person for office. Therefore they decided to leave it up to the more "educated" and hand selected delegates.(which is an insult to me) Throughout the Constitution the notion of "we the people" is embraced up until the twelfth amendment whereby it is completely ignored.
My Opinion: This article is very interesting to me. I had no idea that this was even an issue. If what the maker of the video is saying is true then: 1) Dick Cheney is really bad at lying about where he is from.
2) Dick Cheney without a doubt violated the 12th amendment and
we had every right to call for an impeachment trial.
I am not sure why this issue was not made more public at the time but I feel very ignorant that I did not know.
"Flunking the Electoral College"
New York Times Editorial
Published: November 19, 2008
On Dec. 15, the United States will endure a quadrennial ritual born in the economics and politics of slavery and the quill-pen era. Members of the Electoral College are scheduled to meet in each of the 50 states and the District of Columbia to formally choose the next president.
There is no real doubt about how the electors will vote, but it is disturbing that they have any role at all in making this vital choice in the 21st century. The Electoral College is more than just an antiquated institution: it actively disenfranchises voters and occasionally (think 2000) makes the candidate with fewer popular votes president. American democracy would be far stronger without it.
There is no reason to feel sentimental about the Electoral College. One of the main reasons the founders created it was slavery. The southern states liked the fact that their slaves, who would be excluded from a direct vote, would be counted — as three-fifths of a white person — when Electoral College votes were apportioned.
The founders also were concerned, in the day of the wooden printing press, that voters would not have enough information to choose among presidential candidates. It was believed that it would be easier for them to vote for local officials, whom they knew more about, to be electors. It is hard to imagine that significant numbers of voters thought they did not know enough about Barack Obama and John McCain by Election Day this year.
And, while these reasons for the Electoral College have lost all relevance, its disadvantages loom ever larger. To start, the system excludes many voters from a meaningful role in presidential elections. If you live in New York or Texas, for example, it is generally a foregone conclusion which party will win your state’s electoral votes, so your vote has less meaning — and it can feel especially meaningless if you vote on the losing side. On the other hand, if you live in Florida or Ohio, where the outcome is less clear, your vote has a greatly magnified importance.
Voters in small states are favored because Electoral College votes are based on the number of senators and representatives a state has. Wyoming’s roughly 500,000 people get three electoral votes. California, which has about 70 times Wyoming’s population, gets only 55 electoral votes.
The Electoral College also makes America seem more divided along blue-red lines than it actually is. If you look at an Electoral College map, California appears solidly blue and Alabama solidly red. But if you look at a map of the popular votes, you see a more nuanced picture. More than 4.5 million Californians voted for Mr. McCain (roughly as many votes as he got in Texas), while about 40 percent of voters in Alabama cast a ballot for Mr. Obama.
One of the biggest problems with the Electoral College, of course, is that three times since the Civil War — most recently, with George W. Bush in 2000 — it has awarded the presidency to the loser of the popular vote. The president should be the candidate who wins the votes of the most Americans.
The best way to abolish the Electoral College is to amend the Constitution. Until that happens, a national popular vote movement is working to get states representing a majority of the electoral votes to agree to award their votes to the candidate who has the most votes nationally. That would effectively end the Electoral College. Several states, including New Jersey and Illinois, have already enacted popular vote laws, and others are considering it.
When the 2012 presidential election approaches, efforts to reform the electoral system will be viewed through a partisan prism, with a focus on which party they would help or hurt. With the next election still four years away, now is an ideal time to get serious about abolishing the Electoral College.
My Opinion: I completely agree with this article in that it is time to get rid of the electoral college. It may have been a good idea when the average citizen could not read or write and politics was far removed, but now days the American people are more than capable of picking their own President and Vice President. And if they are not and do not like who they have picked they have the power to pick someone new!
Sunday, October 25, 2009
Eleventh Amendment- State Soverign Immunity
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
In my opinion, the eleventh amendment prohibits states from being sued by their own residents, residents from another state or by any non US citizen. The only way this is possible is if the state waives it's immunity. (which is not going to happen) This amendment looks somewhat flawed to me especially after reading the tenth amendment. If the states and the people have all the powers not given to the federal government then it seems as though they are on the same level. But in the eleventh amendment to states are portrayed as untouchable. I am not sure how to fix this problem but keep a cohesiveness and authority that states have but there must be a way.
My Opinion: I chose this article because of the section that involves Connecticut suing Countrywide Financial for violating the state's consumer protection laws. Imagine if the rolls were reversed. What if the state gave out tainted swine flu vaccines causing a wave of illness in it's population. There would be no way for the citizens to sue the state for the damages they faced. It seems hypocritical for the states to be allowed to sue their citizens or the companies within their borders but the reverse is no where near legal.
"PROTECTING THE CONSTITUTIONALITY OF THE ADA"
U.S. Department of Jusice
Civil Rights Division
The Department has been actively engaged in defending the constitutionality of the ADA. The Department intervenes in private suits across the country to defend the constitutionality of the statute against challenges by state defendants. In early 2001, the Supreme Court limited the reach of the ADA by holding in Board of Trustees of the University of Alabama v. Garrett141 that a private individual may not, consistent with the Constitution, sue a State or state agency to enforce the employment discrimination protections in Title I of the ADA. The Court held that States are protected from such suits by sovereign immunity under the Eleventh Amendment. Following earlier decisions holding that Con-gress may remove States' immunity only when acting pursuant to its powers under the Four-teenth Amendment, the Court in Garrett held that Title I's prohibition of discrimination on the basis of disability went beyond Congress's authority under the Fourteenth Amendment. Thus plaintiffs may not sue a State directly to enforce Title I.
The Garrett opinion, however, does not bar all ADA actions challenging state and local government policies or practices. The Court made clear that the federal government may continue to sue States for injunctive relief and money damages under Title I, and that private individuals may sue state officials in their official capacities as long as the plaintiffs do not seek money damages. Also, the Garrett decision only prohibited Title I suits against state governments, not cities or counties, because sovereign immunity as embodied in the Eleventh Amendment does not apply to local governments. Moreover, the Court left open the question whether private individuals may sue States under Title II, as opposed to Title I.
Following the decision in Garrett, numerous lawsuits were brought against state and local governments under Title II of the ADA. The Department has intervened in scores of cases at all levels of the federal court system throughout the country to defend the constitutionality of Title II in these private suits. The cases involve a wide range of claims regarding courts, prisons, public transit, voting, public education, parking placards, licensing, and institutionalization. In defending the constitutionality of Title II of the ADA, the Department has argued that Congress had the authority to remove States' immunity because the ADA is an appropriate and constitutional means of remedying the history of pervasive discrimination against people with disabilities.
Since Garrett, the Supreme Court has addres-sed the application of Title II in two instances. In 2004, the Supreme Court issued a decision in Tennessee v. Lane,142 holding that individuals may sue States directly to require States to make their courts and judicial services accessible under the ADA. The plaintiffs alleged that the State of Tennessee and 25 of its counties violated the ADA by having inaccessible courthouses. They asked the federal court to order that the courts be made accessible and to award compensatory damages. One plaintiff, a wheelchair user who was charged with two misdemeanor offenses, alleged that he had to crawl up two flights of stairs to make a required court appearance. The other, a court reporter who is also a wheelchair user, alleged that many of Tennessee's courthouses and courtrooms had barriers that made it difficult for her to practice her profession. The Court held that Title II is an appropriate response by Congress to prevent denial of the right of access to state courts in light of the history of unconstitutional treatment by States of people with disabilities. The Lane decision left open the question of the constitutionality of Title II suits challenging state practices or policy in other areas of activity.
Following Lane, the Supreme Court in 2006 ruled unanimously in United States v. Georgia143 that a prisoner could proceed with his Title II claims for damages against the State of Georgia to the extent that his claims alleged independent violations of the Constitution. The Court's opinion did not address the extent to which individuals may enforce Title II against States to secure ADA rights in prison that are more expansive than those that are provided by the Constitution. The plaintiff, a prisoner who has paraplegia and uses a wheelchair, alleged that his cell was too small for him to maneuver his wheelchair, making it impossible for him to gain access to his bed, toilet, and shower without assistance, which was often denied. He also claimed that architectural barriers in the prison prevented him from using the library, attending religious services, and participating in a wide range of counseling, education, and vocational training programs. The Court remanded the case to the district court to determine which of his Title II claims would also allege constitutional violations.
As a result of the decision in United States v. Georgia, many Title II cases pending in appellate courts are being sent back to district courts to determine whether they can be upheld because they seek to enforce Title II rights that do not go further than those protected by the Constitution. The Department of Justice is continuing its nationwide effort to intervene in such cases and others to defend the constitutionality of Title II of the ADA.
My Opinion: Again, I do not agree that states are not held accountable for violations against their citizens. IF a state entity fails to comply to a federal act of the government giving certain rights the US citizens then it should be punished. It seems as though the Supreme Court has ruled that people can sue the state but are not allowed to seek monetary damages. What is going to keep the state from doing it again if it just gets a slap on the hand and a dirty look?
In my opinion, the eleventh amendment prohibits states from being sued by their own residents, residents from another state or by any non US citizen. The only way this is possible is if the state waives it's immunity. (which is not going to happen) This amendment looks somewhat flawed to me especially after reading the tenth amendment. If the states and the people have all the powers not given to the federal government then it seems as though they are on the same level. But in the eleventh amendment to states are portrayed as untouchable. I am not sure how to fix this problem but keep a cohesiveness and authority that states have but there must be a way.
My Opinion: I chose this article because of the section that involves Connecticut suing Countrywide Financial for violating the state's consumer protection laws. Imagine if the rolls were reversed. What if the state gave out tainted swine flu vaccines causing a wave of illness in it's population. There would be no way for the citizens to sue the state for the damages they faced. It seems hypocritical for the states to be allowed to sue their citizens or the companies within their borders but the reverse is no where near legal.
"PROTECTING THE CONSTITUTIONALITY OF THE ADA"
U.S. Department of Jusice
Civil Rights Division
The Department has been actively engaged in defending the constitutionality of the ADA. The Department intervenes in private suits across the country to defend the constitutionality of the statute against challenges by state defendants. In early 2001, the Supreme Court limited the reach of the ADA by holding in Board of Trustees of the University of Alabama v. Garrett141 that a private individual may not, consistent with the Constitution, sue a State or state agency to enforce the employment discrimination protections in Title I of the ADA. The Court held that States are protected from such suits by sovereign immunity under the Eleventh Amendment. Following earlier decisions holding that Con-gress may remove States' immunity only when acting pursuant to its powers under the Four-teenth Amendment, the Court in Garrett held that Title I's prohibition of discrimination on the basis of disability went beyond Congress's authority under the Fourteenth Amendment. Thus plaintiffs may not sue a State directly to enforce Title I.
The Garrett opinion, however, does not bar all ADA actions challenging state and local government policies or practices. The Court made clear that the federal government may continue to sue States for injunctive relief and money damages under Title I, and that private individuals may sue state officials in their official capacities as long as the plaintiffs do not seek money damages. Also, the Garrett decision only prohibited Title I suits against state governments, not cities or counties, because sovereign immunity as embodied in the Eleventh Amendment does not apply to local governments. Moreover, the Court left open the question whether private individuals may sue States under Title II, as opposed to Title I.
Following the decision in Garrett, numerous lawsuits were brought against state and local governments under Title II of the ADA. The Department has intervened in scores of cases at all levels of the federal court system throughout the country to defend the constitutionality of Title II in these private suits. The cases involve a wide range of claims regarding courts, prisons, public transit, voting, public education, parking placards, licensing, and institutionalization. In defending the constitutionality of Title II of the ADA, the Department has argued that Congress had the authority to remove States' immunity because the ADA is an appropriate and constitutional means of remedying the history of pervasive discrimination against people with disabilities.
Since Garrett, the Supreme Court has addres-sed the application of Title II in two instances. In 2004, the Supreme Court issued a decision in Tennessee v. Lane,142 holding that individuals may sue States directly to require States to make their courts and judicial services accessible under the ADA. The plaintiffs alleged that the State of Tennessee and 25 of its counties violated the ADA by having inaccessible courthouses. They asked the federal court to order that the courts be made accessible and to award compensatory damages. One plaintiff, a wheelchair user who was charged with two misdemeanor offenses, alleged that he had to crawl up two flights of stairs to make a required court appearance. The other, a court reporter who is also a wheelchair user, alleged that many of Tennessee's courthouses and courtrooms had barriers that made it difficult for her to practice her profession. The Court held that Title II is an appropriate response by Congress to prevent denial of the right of access to state courts in light of the history of unconstitutional treatment by States of people with disabilities. The Lane decision left open the question of the constitutionality of Title II suits challenging state practices or policy in other areas of activity.
Following Lane, the Supreme Court in 2006 ruled unanimously in United States v. Georgia143 that a prisoner could proceed with his Title II claims for damages against the State of Georgia to the extent that his claims alleged independent violations of the Constitution. The Court's opinion did not address the extent to which individuals may enforce Title II against States to secure ADA rights in prison that are more expansive than those that are provided by the Constitution. The plaintiff, a prisoner who has paraplegia and uses a wheelchair, alleged that his cell was too small for him to maneuver his wheelchair, making it impossible for him to gain access to his bed, toilet, and shower without assistance, which was often denied. He also claimed that architectural barriers in the prison prevented him from using the library, attending religious services, and participating in a wide range of counseling, education, and vocational training programs. The Court remanded the case to the district court to determine which of his Title II claims would also allege constitutional violations.
As a result of the decision in United States v. Georgia, many Title II cases pending in appellate courts are being sent back to district courts to determine whether they can be upheld because they seek to enforce Title II rights that do not go further than those protected by the Constitution. The Department of Justice is continuing its nationwide effort to intervene in such cases and others to defend the constitutionality of Title II of the ADA.
My Opinion: Again, I do not agree that states are not held accountable for violations against their citizens. IF a state entity fails to comply to a federal act of the government giving certain rights the US citizens then it should be punished. It seems as though the Supreme Court has ruled that people can sue the state but are not allowed to seek monetary damages. What is going to keep the state from doing it again if it just gets a slap on the hand and a dirty look?
Tenth Amendment- State's Rights
"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."
In my opinion, the tenth amendment is very clear in what it states. If a power was not given to a branch of government then it is given to the states and the people residing in them. I believe that the line is blurred solely due to the Commerce Clause. The Supreme Court has greatly extended the reach of this clause and can seemingly apply it in most situations. We will continue to see issues like the ones below until a more concise interpretation is reached.
My Opinion: I chose this video because of the huge controversy that encircles it. The Constitution gives Congress the power to preside over matters of interstate commerce. The tenth amendment gives the states and the people the right to regulate all those issues not given to Congress and not banned from the states. The difficulty here is whether the gun affects interstate commerce even if it does not cross state lines. What if the bullets someone uses for it are made in a different state? Does it then fall under Congresses jurisdiction? This will ultimately be settled by the Supreme Court but I do not see it holding up.
"Pawlenty May Invoke The 10th Amendment To Block Minnesotans From Receiving Federal Health Care"
By Amanda Terkel on Sep 11th, 2009 at 10:41 am
Yesterday in a conference call with right-wing activists, Minnesota Gov. Tim Pawlenty (R) joined the tenther movement by questioning whether federal health care reform is constitutional. When a caller asked, “I want to know if any of the governors are willing to invoke the 10th Amendment if the health care bill is passed,” Pawlenty replied:
Depending on what the federal government comes out with here, asserting the 10th Amendment might be viable option, but we don’t know the details. As one of the other callers said, we can’t really even get the president to outline what he does or doesn’t support in any detail. So we’ll have to see. I’d say that’s a possibility.
You’re starting to see more governors, including me, and specifically Gov. Perry from Texas, and most Republican governors express concern around these issues and get more aggressive about asserting and bringing up the 10th Amendment. So I think we could see hopefully a resurgence of those claims and maybe even lawsuits if need be.
This tenther argument is increasingly gaining steam with the far right. State lawmakers in both Florida and Georgia have brought up legislation that would allow their states to opt-out of any federal health care system. Even federal lawmakers like Sens. Tom Coburn (R-OK) and Jim DeMint (R-SC) and Rep. Michele Bachmann (R-MN) are saying that health care reform may be unconstitutional.
Tenther claims are far from the mainstream. In their world, landmark federal programs such as Medicare, Social Security, the federal highway system, and rules regulating airplane safety are unconstitutional. In fact, the South “justified both secession and the Civil War on the theory that the Constitution is nothing more than a pact between sovereigns that each state is free to leave at will.”
Perry, whom Pawlenty mentioned as a kindred spirit in the tenther debate, has even raised the possibility that Texas could secede from the union. “There’s absolutely no reason to dissolve it,” he said a few months ago. “But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that.” Will Pawlenty also advocate secession for Minnesota?
My Opinion: This article as well is very recent and very controversial. Do you see a pattern? Is the federal government specifically given the power to control health care in the Constitution? In specific terms, no. However, again the Commerce Clause has been extended to reach into this area. I believe that if the states get what they want out of the health care reform no cries will be heard. If the reform does not live up to their standards I would anticipate a handful of states to push for some enactment of the tenth amendment. These efforts will not go unnoticed but may be in vain.
In my opinion, the tenth amendment is very clear in what it states. If a power was not given to a branch of government then it is given to the states and the people residing in them. I believe that the line is blurred solely due to the Commerce Clause. The Supreme Court has greatly extended the reach of this clause and can seemingly apply it in most situations. We will continue to see issues like the ones below until a more concise interpretation is reached.
My Opinion: I chose this video because of the huge controversy that encircles it. The Constitution gives Congress the power to preside over matters of interstate commerce. The tenth amendment gives the states and the people the right to regulate all those issues not given to Congress and not banned from the states. The difficulty here is whether the gun affects interstate commerce even if it does not cross state lines. What if the bullets someone uses for it are made in a different state? Does it then fall under Congresses jurisdiction? This will ultimately be settled by the Supreme Court but I do not see it holding up.
"Pawlenty May Invoke The 10th Amendment To Block Minnesotans From Receiving Federal Health Care"
By Amanda Terkel on Sep 11th, 2009 at 10:41 am
Yesterday in a conference call with right-wing activists, Minnesota Gov. Tim Pawlenty (R) joined the tenther movement by questioning whether federal health care reform is constitutional. When a caller asked, “I want to know if any of the governors are willing to invoke the 10th Amendment if the health care bill is passed,” Pawlenty replied:
Depending on what the federal government comes out with here, asserting the 10th Amendment might be viable option, but we don’t know the details. As one of the other callers said, we can’t really even get the president to outline what he does or doesn’t support in any detail. So we’ll have to see. I’d say that’s a possibility.
You’re starting to see more governors, including me, and specifically Gov. Perry from Texas, and most Republican governors express concern around these issues and get more aggressive about asserting and bringing up the 10th Amendment. So I think we could see hopefully a resurgence of those claims and maybe even lawsuits if need be.
This tenther argument is increasingly gaining steam with the far right. State lawmakers in both Florida and Georgia have brought up legislation that would allow their states to opt-out of any federal health care system. Even federal lawmakers like Sens. Tom Coburn (R-OK) and Jim DeMint (R-SC) and Rep. Michele Bachmann (R-MN) are saying that health care reform may be unconstitutional.
Tenther claims are far from the mainstream. In their world, landmark federal programs such as Medicare, Social Security, the federal highway system, and rules regulating airplane safety are unconstitutional. In fact, the South “justified both secession and the Civil War on the theory that the Constitution is nothing more than a pact between sovereigns that each state is free to leave at will.”
Perry, whom Pawlenty mentioned as a kindred spirit in the tenther debate, has even raised the possibility that Texas could secede from the union. “There’s absolutely no reason to dissolve it,” he said a few months ago. “But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that.” Will Pawlenty also advocate secession for Minnesota?
My Opinion: This article as well is very recent and very controversial. Do you see a pattern? Is the federal government specifically given the power to control health care in the Constitution? In specific terms, no. However, again the Commerce Clause has been extended to reach into this area. I believe that if the states get what they want out of the health care reform no cries will be heard. If the reform does not live up to their standards I would anticipate a handful of states to push for some enactment of the tenth amendment. These efforts will not go unnoticed but may be in vain.
Ninth Amendment- Enumeration Clause
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In my opinion,the ninth amendment says that the rights of the people are not limited to just those stated in the Constitution. The Framers knew that they could not possibly cover every right that citizens should posses so they added the ninth amendment to expand our rights. Not only do we have the ones listed but unspoken ones as well. I believe this to be a very important amendment. It provides the foundation for new cases to be decided.
My Opinion: I chose this video because I think it highlights the fact that privacy is something we all value. US citizens are very adamant about protecting it. Even though this is the case, it is not specifically written into the Constitution. Could it be time for a new amendment? I think so.
"Privacy and the Ninth Amendment"
by Paul Varnell
First published September 14, 2005, in the Chicago Free Press.
Lambda Legal Defense and Education Fund recently developed a list of some 30 questions it hoped would be asked of Supreme Court Chief Justice nominee John G. Roberts, Jr., and, presumably, the as yet unnamed associate justice nominee.
Among them were: Is there a Constitutional right to privacy? Can the government make it a crime for gay people to have sex? and Do gay people have a right to equal protection under the law?
Roberts will probably not discuss his views on most substantive issues since he would lose votes no matter how he answers. But those are good questions that point to the still-developing area of people's rights against government interference. Lambda unfortunately neglects to educate the gay public about the basis for these rights, so a radical rethinking may be invited.
The right to privacy is an umbrella term for a bundle of different rights and immunities such as the right to be secure from intrusion in a person's body, in his (or her) home, and in his most intimate relationships. The core concept is the right to personal autonomy, the right to be left alone. As the old adage had it: A man's home is his castle. The winds may blow through it, the rain may pour through the roof, but the King of England may not enter.
“Privacy” is not mentioned in the Constitution, but elements have been found in several specific guarantees in the first ten amendments, most convincingly in the Fourth Amendment's guarantee of security “in their persons, houses, papers, and effects,” in the Fifth Amendment's guarantee of private property rights and its prohibition of taking “life, liberty, or property,” without due process.
Are there other “unenumerated” rights against government interference that individuals retain? There are. How do we know that? The Constitution says so. Where does it say that? In the Ninth Amendment. What does it say? It states in its entirety, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Having set up an “energetic” federal government with the Constitution, the Framers felt a need to reassure people that their new government could not become tyrannical and that they retained all the traditional rights of Englishmen plus additional rights to prevent potential abuses. Although they listed several, they realized that no list could be complete. Hence the Ninth Amendment.
"“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”"Some advocates of government control over people's social and economic lives have tried to evade the Ninth Amendment, saying it just repeats the Tenth Amendment. But that is flagrantly dishonest. The Ninth Amendment refers to “rights”—i.e., immunities against government—retained by “the people”—i.e., individual persons. By contrast the Tenth refers to “powers”—i.e., governing authorities—reserved for “the states.”
In recent years as courts began trying to expand certain privacy or personal autonomy rights, particularly in the social and sexual sphere, they cautiously began to mention the Ninth Amendment, which one author called “The forgotten Ninth Amendment” and Justice Goldberg in his 1965 Griswold (birth control) concurrence said “may be regarded by some as a rediscovery.”
Although the Ninth Amendment must have some substantive content, judges have been terrified to base decisions on it alone. Currently, it seems to be viewed at most as a kind of nagging reminder to judges to hunt for specific privacy and autonomy rights elsewhere in the Constitution. The appeal is usually to the First, Fourth and Fifth Amendments, often in tandem with the Fourteenth Amendment's specification that “nor shall any State deprive any person of life, liberty, or property, without due process of law.”
But slowly, by engaging in expansive readings of those other amendments, the Supreme Court seems to be approaching, by the back door as it were, the original intent of the Ninth Amendment—that there are a lot of rights not explicitly stated.
At some point the courts should simply acknowledge that they have been going about things backwards. Instead of trying to find a constitutional basis for every specific privacy or autonomy or liberty right, they should begin with the assumption that people have a right to do whatever (peaceful, consenting) they desire and require the government to assert some specific constitutional authorization to prohibit it.
Thus, it seems obvious that private homosexual activity should not be the subject of legal attention. The Constitution gives no government power to prohibit homosexual activity because it is no one else's business what goes on in my home or someone else's home.
And it seems clear that my ongoing intimate relationship with some other willing adult partner is none of the government's business either, but so long as it extends certain privileges to contracting heterosexual couples, the Constitution provides no basis for denying “equal protection of the laws” to me and my contracting partner.
Such a reversal of the burden of proof for the legitimacy of government policies would restore a healthy modesty among government authorities and free citizens to conduct their lives for well or ill according to their own personal tastes and aspirations.
My Opinon: I chose this article because it brings up the question of privacy. The author admits that the right to privacy is not specifically stated in the Constitution. However, they go on to try to deduce it from the fourth amendment. As much as I would like to think that I have a right to privacy I do not believe that the Constitution gives me one. I do believe that privacy is something that our society has adopted as being "the right thing to do". My privacy is given to me by my fellow citizens but not by my government. (aren't my fellow citizens essentially my government?)
In my opinion,the ninth amendment says that the rights of the people are not limited to just those stated in the Constitution. The Framers knew that they could not possibly cover every right that citizens should posses so they added the ninth amendment to expand our rights. Not only do we have the ones listed but unspoken ones as well. I believe this to be a very important amendment. It provides the foundation for new cases to be decided.
My Opinion: I chose this video because I think it highlights the fact that privacy is something we all value. US citizens are very adamant about protecting it. Even though this is the case, it is not specifically written into the Constitution. Could it be time for a new amendment? I think so.
"Privacy and the Ninth Amendment"
by Paul Varnell
First published September 14, 2005, in the Chicago Free Press.
Lambda Legal Defense and Education Fund recently developed a list of some 30 questions it hoped would be asked of Supreme Court Chief Justice nominee John G. Roberts, Jr., and, presumably, the as yet unnamed associate justice nominee.
Among them were: Is there a Constitutional right to privacy? Can the government make it a crime for gay people to have sex? and Do gay people have a right to equal protection under the law?
Roberts will probably not discuss his views on most substantive issues since he would lose votes no matter how he answers. But those are good questions that point to the still-developing area of people's rights against government interference. Lambda unfortunately neglects to educate the gay public about the basis for these rights, so a radical rethinking may be invited.
The right to privacy is an umbrella term for a bundle of different rights and immunities such as the right to be secure from intrusion in a person's body, in his (or her) home, and in his most intimate relationships. The core concept is the right to personal autonomy, the right to be left alone. As the old adage had it: A man's home is his castle. The winds may blow through it, the rain may pour through the roof, but the King of England may not enter.
“Privacy” is not mentioned in the Constitution, but elements have been found in several specific guarantees in the first ten amendments, most convincingly in the Fourth Amendment's guarantee of security “in their persons, houses, papers, and effects,” in the Fifth Amendment's guarantee of private property rights and its prohibition of taking “life, liberty, or property,” without due process.
Are there other “unenumerated” rights against government interference that individuals retain? There are. How do we know that? The Constitution says so. Where does it say that? In the Ninth Amendment. What does it say? It states in its entirety, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Having set up an “energetic” federal government with the Constitution, the Framers felt a need to reassure people that their new government could not become tyrannical and that they retained all the traditional rights of Englishmen plus additional rights to prevent potential abuses. Although they listed several, they realized that no list could be complete. Hence the Ninth Amendment.
"“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”"Some advocates of government control over people's social and economic lives have tried to evade the Ninth Amendment, saying it just repeats the Tenth Amendment. But that is flagrantly dishonest. The Ninth Amendment refers to “rights”—i.e., immunities against government—retained by “the people”—i.e., individual persons. By contrast the Tenth refers to “powers”—i.e., governing authorities—reserved for “the states.”
In recent years as courts began trying to expand certain privacy or personal autonomy rights, particularly in the social and sexual sphere, they cautiously began to mention the Ninth Amendment, which one author called “The forgotten Ninth Amendment” and Justice Goldberg in his 1965 Griswold (birth control) concurrence said “may be regarded by some as a rediscovery.”
Although the Ninth Amendment must have some substantive content, judges have been terrified to base decisions on it alone. Currently, it seems to be viewed at most as a kind of nagging reminder to judges to hunt for specific privacy and autonomy rights elsewhere in the Constitution. The appeal is usually to the First, Fourth and Fifth Amendments, often in tandem with the Fourteenth Amendment's specification that “nor shall any State deprive any person of life, liberty, or property, without due process of law.”
But slowly, by engaging in expansive readings of those other amendments, the Supreme Court seems to be approaching, by the back door as it were, the original intent of the Ninth Amendment—that there are a lot of rights not explicitly stated.
At some point the courts should simply acknowledge that they have been going about things backwards. Instead of trying to find a constitutional basis for every specific privacy or autonomy or liberty right, they should begin with the assumption that people have a right to do whatever (peaceful, consenting) they desire and require the government to assert some specific constitutional authorization to prohibit it.
Thus, it seems obvious that private homosexual activity should not be the subject of legal attention. The Constitution gives no government power to prohibit homosexual activity because it is no one else's business what goes on in my home or someone else's home.
And it seems clear that my ongoing intimate relationship with some other willing adult partner is none of the government's business either, but so long as it extends certain privileges to contracting heterosexual couples, the Constitution provides no basis for denying “equal protection of the laws” to me and my contracting partner.
Such a reversal of the burden of proof for the legitimacy of government policies would restore a healthy modesty among government authorities and free citizens to conduct their lives for well or ill according to their own personal tastes and aspirations.
My Opinon: I chose this article because it brings up the question of privacy. The author admits that the right to privacy is not specifically stated in the Constitution. However, they go on to try to deduce it from the fourth amendment. As much as I would like to think that I have a right to privacy I do not believe that the Constitution gives me one. I do believe that privacy is something that our society has adopted as being "the right thing to do". My privacy is given to me by my fellow citizens but not by my government. (aren't my fellow citizens essentially my government?)
Eighth Amendment- Cruel and Unusual Punishment
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted".
In my opinion, the eighth amendment protects citizens from serious punishments that if it were not in place would corrupt the legal system. According to this amendment the bail that is set needs to fit the crime and the accused. This means that if a 20 year old is arrested for under age drinking his/her bail should not be set at hundreds of thousands of dollars. In this case the crime and individual do not match the bail amount. In the same instance the fine should also meet this criteria. The cruel and unusual punishment clause is a little more difficult to interpret. People have very different ideas as to what this is implying. This is why the Supreme Court has changed its ruling on the issue over the years.
My Opinion: I chose this video because it raises the question of is torture punishment. I will have to say that I do not agree with Justice Scalia when he says that it is not. I do believe that torture is punishment because you wouldn't be
"Is the Death Penalty Cruel and Unusual?"
by John Barry
Wednesday, May 3, 2000
On May 2, 2000, the State of Arkansas put 28 year-old Christina Riggs to death for killing her two children. The execution method was lethal injection. According to a witness, the executioners planned to administer the shot through veins in her elbows, but when they had trouble finding one, Riggs gave them permission to inject through her hands. A confessed murderer, Riggs had admitted to smothering her two children when potassium chloride failed to kill them. While Riggs at first attributed the murders to depression, the prosecution argued that she had killed her children because they had become an inconvenience to her lifestyle. Witnesses had seen Riggs singing karaoke on several nights prior to her children's deaths. In 1967, a moratorium was placed on the death penalty as the Supreme Court debated its constitutionality. In 1972, the Supreme Court ruled that the death penalty violated the Eighth Amendment, which protects Americans from "cruel and unusual" punishment - largely because it was determined not to be applied fairly. In 1976 the Court ruled that, in certain cases, the death penalty was a legitimate punishment, and now, it is practiced in all but 13 states and the District of Columbia. Since 1977, 611 people have been executed in the United States. In the last year, executions in the U.S. have been carried out at an increasing rate, with more than half of the executions since 1976 having occurred in the last five years.
On One Hand...
Our criminal justice system has no basis for deciding whether an individual deserves or does not deserve to live. Because the death penalty is the one punishment that can never be reversed, it is always unjust - our courts should be proven incapable of error before using it. Despite one being carried out every 3.5 days - the current rate of executions in the U.S. - a plague of violent crime continues, proving that the death penalty is not working as a deterrent either. The death penalty is just one more way to get revenge in a society that is already consumed with violence. Many countries have already abolished the penalty. The United States, which has always taken a strong stand for fairness in criminal justice systems, should join those nations in denouncing capital punishment.
On the Other Hand...
Capital punishment is both constitutional and morally right. Prisons are used to reform criminals, but in certain cases - when guilt is unmistakable and the accused has a history of violent behavior - society has the right to demand the ultimate punishment. It doesn't make sense to give someone who has been convicted of murder the chance to commit another. But this happens all too frequently. This April, in Minneapolis, a 32 year-old man was arrested for the murder of a woman. The same man had been convicted of a third-degree murder in 1987. In Texas, Algernon Doby was captured after shooting a pregnant woman and killing her boyfriend, only seven months after Doby had been paroled for a previous murder. With such continual failures in our justice system, Americans deserve to know that murderers will face the same fate as their victims. This April, Congressmen Bill Delahunt (D-Mass.) and Ray LaHood (R-Ill.) introduced the Innocence Protection Act, the House version of Sen. Patrick Leahy's (D-Vt.) bill. It is designed to ensure that death-row defendants are completely represented and have access to DNA evidence. "We must be sure that every legal and technological method is provided to determine guilt in capital cases," said LaHood. LaHood supports capital punishment. According to Amnesty International, more than two countries a year on average have abolished the death penalty in law since 1976. Seventy countries, including Australia, Germany, and Spain, refuse to impose the death penalty for any crime. On March 22, in Beeville, Texas, a convicted killer already serving a life sentence was indicted Tuesday for murder in the death of the prison guard Daniel Nagle. Robert Lynn Pruit, 20, had been serving a life term for a murder committed when he was 30. An ACLU study released this months found that lawyers whose clients ended up on Virginia's death row were six times more likely than other lawyers to be disciplined in the course of their careers. One of every 10 defendants sentenced in Virginia was represented by a lawyer who at some point has lose their license, the study found. In 1992, Roger Keith Coleman was strapped into his electric chair while protesting his innocence. Coleman claimed he had an alibi and that a post-trial DNA test indicated that a second person was involved. But the Supreme Court of Virginia refused to hear the case because the lawyer filed a day late. There are currently 459inmates on Death Row in Texas. There are 368 in Florida. There are 29 in Virginia.
My Opinion: I do not believe that the death penalty in most cases is cruel and unusual punishment. If a man rapes a child and then gets sentenced to death, the raping of the child was far more cruel than a death by lethal injection. This however should go along the lines of excessive bail and fines. These need to be determined on a case by case basis and the punishment should fit the crime. I do believe however, that all options should be exhausted in the trial of those accused. There should be overwhelming evidence that the person is guilty because this decision can never be reversed.
In my opinion, the eighth amendment protects citizens from serious punishments that if it were not in place would corrupt the legal system. According to this amendment the bail that is set needs to fit the crime and the accused. This means that if a 20 year old is arrested for under age drinking his/her bail should not be set at hundreds of thousands of dollars. In this case the crime and individual do not match the bail amount. In the same instance the fine should also meet this criteria. The cruel and unusual punishment clause is a little more difficult to interpret. People have very different ideas as to what this is implying. This is why the Supreme Court has changed its ruling on the issue over the years.
My Opinion: I chose this video because it raises the question of is torture punishment. I will have to say that I do not agree with Justice Scalia when he says that it is not. I do believe that torture is punishment because you wouldn't be
"Is the Death Penalty Cruel and Unusual?"
by John Barry
Wednesday, May 3, 2000
On May 2, 2000, the State of Arkansas put 28 year-old Christina Riggs to death for killing her two children. The execution method was lethal injection. According to a witness, the executioners planned to administer the shot through veins in her elbows, but when they had trouble finding one, Riggs gave them permission to inject through her hands. A confessed murderer, Riggs had admitted to smothering her two children when potassium chloride failed to kill them. While Riggs at first attributed the murders to depression, the prosecution argued that she had killed her children because they had become an inconvenience to her lifestyle. Witnesses had seen Riggs singing karaoke on several nights prior to her children's deaths. In 1967, a moratorium was placed on the death penalty as the Supreme Court debated its constitutionality. In 1972, the Supreme Court ruled that the death penalty violated the Eighth Amendment, which protects Americans from "cruel and unusual" punishment - largely because it was determined not to be applied fairly. In 1976 the Court ruled that, in certain cases, the death penalty was a legitimate punishment, and now, it is practiced in all but 13 states and the District of Columbia. Since 1977, 611 people have been executed in the United States. In the last year, executions in the U.S. have been carried out at an increasing rate, with more than half of the executions since 1976 having occurred in the last five years.
On One Hand...
Our criminal justice system has no basis for deciding whether an individual deserves or does not deserve to live. Because the death penalty is the one punishment that can never be reversed, it is always unjust - our courts should be proven incapable of error before using it. Despite one being carried out every 3.5 days - the current rate of executions in the U.S. - a plague of violent crime continues, proving that the death penalty is not working as a deterrent either. The death penalty is just one more way to get revenge in a society that is already consumed with violence. Many countries have already abolished the penalty. The United States, which has always taken a strong stand for fairness in criminal justice systems, should join those nations in denouncing capital punishment.
On the Other Hand...
Capital punishment is both constitutional and morally right. Prisons are used to reform criminals, but in certain cases - when guilt is unmistakable and the accused has a history of violent behavior - society has the right to demand the ultimate punishment. It doesn't make sense to give someone who has been convicted of murder the chance to commit another. But this happens all too frequently. This April, in Minneapolis, a 32 year-old man was arrested for the murder of a woman. The same man had been convicted of a third-degree murder in 1987. In Texas, Algernon Doby was captured after shooting a pregnant woman and killing her boyfriend, only seven months after Doby had been paroled for a previous murder. With such continual failures in our justice system, Americans deserve to know that murderers will face the same fate as their victims. This April, Congressmen Bill Delahunt (D-Mass.) and Ray LaHood (R-Ill.) introduced the Innocence Protection Act, the House version of Sen. Patrick Leahy's (D-Vt.) bill. It is designed to ensure that death-row defendants are completely represented and have access to DNA evidence. "We must be sure that every legal and technological method is provided to determine guilt in capital cases," said LaHood. LaHood supports capital punishment. According to Amnesty International, more than two countries a year on average have abolished the death penalty in law since 1976. Seventy countries, including Australia, Germany, and Spain, refuse to impose the death penalty for any crime. On March 22, in Beeville, Texas, a convicted killer already serving a life sentence was indicted Tuesday for murder in the death of the prison guard Daniel Nagle. Robert Lynn Pruit, 20, had been serving a life term for a murder committed when he was 30. An ACLU study released this months found that lawyers whose clients ended up on Virginia's death row were six times more likely than other lawyers to be disciplined in the course of their careers. One of every 10 defendants sentenced in Virginia was represented by a lawyer who at some point has lose their license, the study found. In 1992, Roger Keith Coleman was strapped into his electric chair while protesting his innocence. Coleman claimed he had an alibi and that a post-trial DNA test indicated that a second person was involved. But the Supreme Court of Virginia refused to hear the case because the lawyer filed a day late. There are currently 459inmates on Death Row in Texas. There are 368 in Florida. There are 29 in Virginia.
My Opinion: I do not believe that the death penalty in most cases is cruel and unusual punishment. If a man rapes a child and then gets sentenced to death, the raping of the child was far more cruel than a death by lethal injection. This however should go along the lines of excessive bail and fines. These need to be determined on a case by case basis and the punishment should fit the crime. I do believe however, that all options should be exhausted in the trial of those accused. There should be overwhelming evidence that the person is guilty because this decision can never be reversed.
Seventh Amendment- Suits at Common Law
"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".
In my opinion,the seventh amendment expands the right to a trial by a jury to people involved in federal civil cases, not just criminal as in the fifth amendment. In these sort of cases one party is suing the other and seeking punative damages for some harm done to them or a court order banning the other party from doing something. In addition, to win the case the prosecution must not prove that the defendant is guilty beyond reasonable doubt but just more than 50 percent. Lastly, people must realize that the seventh amendment only gives people the right to a trial by jury in federal courts, not state courts.
My Opinion: I chose this video because of the last couple of sections were it shows the photos of the violator of the seventh amendment. I think it is imperative with any law that we understand it enough to apply it to today's controversies and identify violators. Just because someone is famous and in the public eye does not exempt them to following all of the Constitution's laws.
Tobacco Sees Way to Block A Big Lawsuit By Consumers
By GLENN COLLINS
Published: Monday, March 20, 1995
Lawyers for the seven American tobacco companies facing the largest class action suit in history said yesterday that their defense had been significantly strengthened by a Federal appellate court's ruling late last week on a case that pits hemophilia patients against drug companies.The lawyers said that the ruling by the United States Court of Appeals for the Seventh Circuit in Chicago, provides a precedent to invalidate the legal assault brought by a group of current and former smokers that could cost the tobacco companies billions of dollars in damages. That opinion, filed late on Friday, was studied intensely over the weekend by tobacco lawyers. The ruling reversed a lower-court decision permitting a class action by 10,000 hemophilia patients -- or their surviving families -- who had been infected by H.I.V., the virus that causes AIDS. The plaintiffs were suing five international drug companies that had supplied the patients with blood-clotting medicine, asserting that the companies knowingly distributed clotting products contaminated with H.I.V. The suit against the tobacco manufacturers contends that the companies, their related units and the Tobacco Institute, an industry group, had concealed knowledge that nicotine was addictive and had manipulated nicotine levels in cigarettes to keep customers addicted. The companies are the American Tobacco Company, the R. J. Reynolds Tobacco Company, the Brown & Williamson Tobacco Corporation, Philip Morris Inc., Liggett & Myers Inc., the Lorillard Tobacco Company and the United States Tobacco Company. On March 8, the tobacco companies appealed the ruling of a Federal District judge in New Orleans, Okla B. Jones 2d, who cleared the way last month for a class action, the first in a Federal court against the tobacco industry. The suit currently names four plaintiffs who, their lawyers said, would represent all Americans who are or once were addicted to cigarettes. The Seventh Circuit, where the drug companies were challenged, has no jurisdiction over the Fifth Circuit, where the tobacco class action, known as the Castano case after one of the plaintiffs, is proceeding. But "the two cases are very similar," said Prof. Kenneth Abraham, a specialist in insurance and tort law at the University of Virginia. "The decision of a Seventh Circuit appeals court doesn't have a binding effect on the Fifth Circuit, but it is likely to exercise a lot of gravitational force." Wall Street has followed the Castano case closely for its potential to cost the tobacco companies billions in liability damages, affecting not only the equity of the companies but their ability to do business. "Virtually all of the issues that we are concerned about in Castano are present in the blood case," said Daniel W. Donahue, senior vice president and deputy general counsel for R. J. Reynolds. "And the judge universally decided them in favor of the position that we take in Castano." He added: "I think we will look back on the Chicago ruling as a watershed event in the Castano case, from our perspective." A consortium of close to 60 law firms has gathered in New Orleans to represent the plaintiffs. "The tobacco companies are celebrating prematurely if they think this decision will lend them any measure of comfort in the Castano case," said Dianne M. Nast, a lawyer who presented the plaintiffs' arguments for both the tobacco and drug-company class actions. The ruling in the drug case is "specific to its own facts," she said, and both cases are "very different." She added that the drug ruling "in no way controls what happens in the Fifth Circuit," adding that a "strong dissent" to the Seventh Circuit opinion should further dilute the impact.The tobacco companies, which have never had to pay any monetary penalties because of a court ruling, deny that cigarettes are addictive, since so many Americans have stopped smoking.As many as 40 million current smokers, as well as an estimated 50 million people who have quit smoking, are eligible for inclusion in the tobacco class action, the plaintiffs' lawyers say. The lawsuit was filed last March in the United States Eastern District of Louisiana on behalf of Dianne Castano, who is the widow of a smoker, and three other plaintiffs. In both the tobacco and drug class actions, the plaintiffs had won approval for trial plans that deal with common issues of negligence first, in a class action in a single Federal court. In a secondary series of trials, potential damages could subsequently be assessed in other local courts. But the three-judge appeals panel in Chicago voted 2 to 1 to reverse, or decertify, such a class-action proceeding against the drug companies that had been approved in August by Federal Judge John G. Grady. The five companies named in the suit are Rhone-Poulenc Rorer Inc., the Armour Pharmaceutical Company, Miles Inc., the Baxter Health Care Corporation and the Alpha Therapeutic Corporation. In his opinion reversing the class action against the pharmaceutical companies, Judge Richard A. Posner of the appellate court wrote that Judge Grady had "exceeded his authority" and that issues of negligence against the companies could not be decided in a class-action trial because the 50 states have different laws on the subject. Thus, Judge Posner wrote, it would be impossible to adopt a single legal standard on the negligence issue. In addition, Judge Posner found that damages and other issues could not be weighed in secondary trials because these issues were closely interlinked with the initial determination of negligence. Therefore, a two-stage trial denied the right of the drug companies "to a jury trial in Federal civil cases, conferred by the Seventh Amendment," Judge Posner wrote, referring to the amendment to the Constitution that prevents defendants from being subjected to inconsistent results from more than one jury. David Shrager, the lead lawyer for the plaintiffs, told The Associated Press that he would seek a rehearing next week before the full seven-member appeals court.
In the tobacco case, the plaintiffs' lawyers filed a discovery plan last week with Judge Jones. The lawyers have said they will be looking for more "smoking gun" memos, akin to documents that emerged last year in Congressional hearings.
My Opinion: I chose this article because it is a very good example of a federal civil case. The plaintiff's are suing the tobacco companies to reclaim damages the feel were negligently passed on to them from the tobacco companies. They are trying to prove this based on a previous case dealing with drug companies and HIV sufferers. This is called common law. As always the tobacco companies are trying to figure a way out. The plaintiff's are seeking punitive damages as well which is a key aspect in any common law case.
In my opinion,the seventh amendment expands the right to a trial by a jury to people involved in federal civil cases, not just criminal as in the fifth amendment. In these sort of cases one party is suing the other and seeking punative damages for some harm done to them or a court order banning the other party from doing something. In addition, to win the case the prosecution must not prove that the defendant is guilty beyond reasonable doubt but just more than 50 percent. Lastly, people must realize that the seventh amendment only gives people the right to a trial by jury in federal courts, not state courts.
My Opinion: I chose this video because of the last couple of sections were it shows the photos of the violator of the seventh amendment. I think it is imperative with any law that we understand it enough to apply it to today's controversies and identify violators. Just because someone is famous and in the public eye does not exempt them to following all of the Constitution's laws.
Tobacco Sees Way to Block A Big Lawsuit By Consumers
By GLENN COLLINS
Published: Monday, March 20, 1995
Lawyers for the seven American tobacco companies facing the largest class action suit in history said yesterday that their defense had been significantly strengthened by a Federal appellate court's ruling late last week on a case that pits hemophilia patients against drug companies.The lawyers said that the ruling by the United States Court of Appeals for the Seventh Circuit in Chicago, provides a precedent to invalidate the legal assault brought by a group of current and former smokers that could cost the tobacco companies billions of dollars in damages. That opinion, filed late on Friday, was studied intensely over the weekend by tobacco lawyers. The ruling reversed a lower-court decision permitting a class action by 10,000 hemophilia patients -- or their surviving families -- who had been infected by H.I.V., the virus that causes AIDS. The plaintiffs were suing five international drug companies that had supplied the patients with blood-clotting medicine, asserting that the companies knowingly distributed clotting products contaminated with H.I.V. The suit against the tobacco manufacturers contends that the companies, their related units and the Tobacco Institute, an industry group, had concealed knowledge that nicotine was addictive and had manipulated nicotine levels in cigarettes to keep customers addicted. The companies are the American Tobacco Company, the R. J. Reynolds Tobacco Company, the Brown & Williamson Tobacco Corporation, Philip Morris Inc., Liggett & Myers Inc., the Lorillard Tobacco Company and the United States Tobacco Company. On March 8, the tobacco companies appealed the ruling of a Federal District judge in New Orleans, Okla B. Jones 2d, who cleared the way last month for a class action, the first in a Federal court against the tobacco industry. The suit currently names four plaintiffs who, their lawyers said, would represent all Americans who are or once were addicted to cigarettes. The Seventh Circuit, where the drug companies were challenged, has no jurisdiction over the Fifth Circuit, where the tobacco class action, known as the Castano case after one of the plaintiffs, is proceeding. But "the two cases are very similar," said Prof. Kenneth Abraham, a specialist in insurance and tort law at the University of Virginia. "The decision of a Seventh Circuit appeals court doesn't have a binding effect on the Fifth Circuit, but it is likely to exercise a lot of gravitational force." Wall Street has followed the Castano case closely for its potential to cost the tobacco companies billions in liability damages, affecting not only the equity of the companies but their ability to do business. "Virtually all of the issues that we are concerned about in Castano are present in the blood case," said Daniel W. Donahue, senior vice president and deputy general counsel for R. J. Reynolds. "And the judge universally decided them in favor of the position that we take in Castano." He added: "I think we will look back on the Chicago ruling as a watershed event in the Castano case, from our perspective." A consortium of close to 60 law firms has gathered in New Orleans to represent the plaintiffs. "The tobacco companies are celebrating prematurely if they think this decision will lend them any measure of comfort in the Castano case," said Dianne M. Nast, a lawyer who presented the plaintiffs' arguments for both the tobacco and drug-company class actions. The ruling in the drug case is "specific to its own facts," she said, and both cases are "very different." She added that the drug ruling "in no way controls what happens in the Fifth Circuit," adding that a "strong dissent" to the Seventh Circuit opinion should further dilute the impact.The tobacco companies, which have never had to pay any monetary penalties because of a court ruling, deny that cigarettes are addictive, since so many Americans have stopped smoking.As many as 40 million current smokers, as well as an estimated 50 million people who have quit smoking, are eligible for inclusion in the tobacco class action, the plaintiffs' lawyers say. The lawsuit was filed last March in the United States Eastern District of Louisiana on behalf of Dianne Castano, who is the widow of a smoker, and three other plaintiffs. In both the tobacco and drug class actions, the plaintiffs had won approval for trial plans that deal with common issues of negligence first, in a class action in a single Federal court. In a secondary series of trials, potential damages could subsequently be assessed in other local courts. But the three-judge appeals panel in Chicago voted 2 to 1 to reverse, or decertify, such a class-action proceeding against the drug companies that had been approved in August by Federal Judge John G. Grady. The five companies named in the suit are Rhone-Poulenc Rorer Inc., the Armour Pharmaceutical Company, Miles Inc., the Baxter Health Care Corporation and the Alpha Therapeutic Corporation. In his opinion reversing the class action against the pharmaceutical companies, Judge Richard A. Posner of the appellate court wrote that Judge Grady had "exceeded his authority" and that issues of negligence against the companies could not be decided in a class-action trial because the 50 states have different laws on the subject. Thus, Judge Posner wrote, it would be impossible to adopt a single legal standard on the negligence issue. In addition, Judge Posner found that damages and other issues could not be weighed in secondary trials because these issues were closely interlinked with the initial determination of negligence. Therefore, a two-stage trial denied the right of the drug companies "to a jury trial in Federal civil cases, conferred by the Seventh Amendment," Judge Posner wrote, referring to the amendment to the Constitution that prevents defendants from being subjected to inconsistent results from more than one jury. David Shrager, the lead lawyer for the plaintiffs, told The Associated Press that he would seek a rehearing next week before the full seven-member appeals court.
In the tobacco case, the plaintiffs' lawyers filed a discovery plan last week with Judge Jones. The lawyers have said they will be looking for more "smoking gun" memos, akin to documents that emerged last year in Congressional hearings.
My Opinion: I chose this article because it is a very good example of a federal civil case. The plaintiff's are suing the tobacco companies to reclaim damages the feel were negligently passed on to them from the tobacco companies. They are trying to prove this based on a previous case dealing with drug companies and HIV sufferers. This is called common law. As always the tobacco companies are trying to figure a way out. The plaintiff's are seeking punitive damages as well which is a key aspect in any common law case.
Sixth Amendment- Jury Trials
"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 where in 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".
In my opinion, the sixth amendment clearly lays out the framework for all criminal trials. First off, the accused are afforded the right to a speedy and public trial. There is no exact definition of speedy but I think the writers of this amendment wanted something that mentioned time so prosecutors and defendants alike could not drag their feet. The trial must be public. I think that this insures fairness. If the public did not know the facts of a case they would not be able to have an opinion about it and object if they thought the accused was being treated unfairly. It is a sort of check for the courts. The jury must be impartial (having no foreknowledge of the case or parties involved)and come from the state in which the crime was committed. Sometimes this is a hard thing to accomplish because people close to the incident (in the same state) are the ones to hear about it and form opinions first. In addition, the accused must be informed of the crime they are being charged with. This ensures that you do not walk into a court case blindly and try to defend yourself. The accused also have the right to physically see the witness who is testifying against them. In some cases this can greatly harm a trial. If the accused is a known thug and has criminal friends on the streets it could be hard to obtain a witness that is willing to stand up and testify against them. However, I believe it is necessary to ensure fairness. The accused is also allowed to have someone that will testify for them. Just because an arrest suggests you committed a crime, you have the right to sustain your innocence until you are proven guilty. Lastly, all parties in a court case are given the right to a lawyer. Many people can not afford one so the courts provide one for them. This is supposed to level the playing field but some feel that the lawyers forced to take these cases do not produce the same quality of work as to those that are being paid.
My Opinion: I chose this article because it is a perfect example of what can happen to witnesses in high profile cases when their identities are exposed. If someone is capable of committing a serious crime like hijacking planes and flying them into the World Trade Center, killing thousands, then they are more than capable of killing one person. The previously mentioned offense is so grave that they will do anything to drag the trial out, or seriously harm it all together. I believe that in cases like this there should be a trial by trial basis for the concealment of the identity of the witnesses. These are the cases that we desperately need to prosecute and to do this we must protect the witnesses who are willing to testify.
"Court Upholds Sixth Amendment Rights"
By ANNE GEARAN
The Associated Press
Monday, March 8, 2004; 1:33 PM
WASHINGTON - The Constitution guarantees a criminal defendant may confront his accusers, and that right means prosecutors can't use a wife's taped statement to police to try to undermine her husband at trial, the Supreme Court ruled Monday. The high court sided with a man convicted of assaulting an acquaintance he had accused of trying to rape his wife. Sylvia Crawford did not testify at Michael Crawford's trial, but prosecutors played a tape they claimed showed her story did not match his. Michael Crawford's lawyers had no opportunity to cross-examine Sylvia Crawford about the tape, a unanimous Supreme Court said. "That alone is sufficient to make out a violation of the Sixth Amendment," Justice Antonin Scalia wrote. The Sixth Amendment guarantees that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." All nine justices agreed to throw out Michael Crawford's conviction and return the case to the state court system in Washington. Seven justices also took the unusual step of squarely overruling an earlier case that laid out complex rules for when statements can be used without the opportunity for cross-examination. The 1980 case has needlessly complicated a fairly straightforward part of the Constitution, Scalia wrote. The Constitution's framers were wary of letting judges have too much power, he added. "By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable," Scalia wrote. While that "might be a small concern in run-of-the-mill assault prosecutions like this one," the framers had in mind the darker specter of state trials such as Sir Walter Raleigh's in 17th Century England, Scalia wrote. Raleigh demanded that the judges "call my accuser before my face," but they refused. Raleigh was sentenced to death for treason. Justices John Paul Stevens, Anthony M. Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer agreed with him. Chief Justice William H. Rehnquist and Sandra Day O'Connor dissented from the portion of the ruling that overturned the earlier case, and said the majority was complicating, not clarifying, the rules prosecutors should follow. "The thousands of federal prosecutors and the tens of thousands of state prosecutors need answers as to what beyond the specific kinds of 'testimony' the court lists is covered by the new rule," Rehnquist wrote. The Crawford case began in 1999, when Crawford and his wife went to find Kenneth Lee at his apartment in Olympia, Wash. The two men argued and fought, and Sylvia Crawford saw what happened. Michael Crawford got a cut on his hand that required 12 stitches to close, and he stabbed Lee in the stomach, seriously wounding him. The Crawfords fled the apartment and were arrested that night. They both gave statements to police, but only Michael Crawford said he thought he had seen Lee reach for a weapon before he was stabbed. Sylvia did not testify at her husband's trial because of the law protecting spouses from testifying against one another. Prosecutors used her statement to refute his claim that the stabbing was self-defense. In a closing statement to jurors, a prosecutor called the statement "damning evidence." The case is Crawford v. Washington, 02-9410.
My Opinion: I chose this article for a few reasons. The first is because it is a very real case in which the sixth amendment is valid. Also, the courts have ruled against the sixth amendment in other instances (mentioned above) but reversed their decision this time around. Our justice system does not always get things right but in this circumstance the did eventually. It is somewhat reassuring to me that the supreme court is willing to overturn previous rulings when they realize that earlier justices got it wrong. They are people too and are allowed mistakes as long as they correct them and learn from them.
In my opinion, the sixth amendment clearly lays out the framework for all criminal trials. First off, the accused are afforded the right to a speedy and public trial. There is no exact definition of speedy but I think the writers of this amendment wanted something that mentioned time so prosecutors and defendants alike could not drag their feet. The trial must be public. I think that this insures fairness. If the public did not know the facts of a case they would not be able to have an opinion about it and object if they thought the accused was being treated unfairly. It is a sort of check for the courts. The jury must be impartial (having no foreknowledge of the case or parties involved)and come from the state in which the crime was committed. Sometimes this is a hard thing to accomplish because people close to the incident (in the same state) are the ones to hear about it and form opinions first. In addition, the accused must be informed of the crime they are being charged with. This ensures that you do not walk into a court case blindly and try to defend yourself. The accused also have the right to physically see the witness who is testifying against them. In some cases this can greatly harm a trial. If the accused is a known thug and has criminal friends on the streets it could be hard to obtain a witness that is willing to stand up and testify against them. However, I believe it is necessary to ensure fairness. The accused is also allowed to have someone that will testify for them. Just because an arrest suggests you committed a crime, you have the right to sustain your innocence until you are proven guilty. Lastly, all parties in a court case are given the right to a lawyer. Many people can not afford one so the courts provide one for them. This is supposed to level the playing field but some feel that the lawyers forced to take these cases do not produce the same quality of work as to those that are being paid.
My Opinion: I chose this article because it is a perfect example of what can happen to witnesses in high profile cases when their identities are exposed. If someone is capable of committing a serious crime like hijacking planes and flying them into the World Trade Center, killing thousands, then they are more than capable of killing one person. The previously mentioned offense is so grave that they will do anything to drag the trial out, or seriously harm it all together. I believe that in cases like this there should be a trial by trial basis for the concealment of the identity of the witnesses. These are the cases that we desperately need to prosecute and to do this we must protect the witnesses who are willing to testify.
"Court Upholds Sixth Amendment Rights"
By ANNE GEARAN
The Associated Press
Monday, March 8, 2004; 1:33 PM
WASHINGTON - The Constitution guarantees a criminal defendant may confront his accusers, and that right means prosecutors can't use a wife's taped statement to police to try to undermine her husband at trial, the Supreme Court ruled Monday. The high court sided with a man convicted of assaulting an acquaintance he had accused of trying to rape his wife. Sylvia Crawford did not testify at Michael Crawford's trial, but prosecutors played a tape they claimed showed her story did not match his. Michael Crawford's lawyers had no opportunity to cross-examine Sylvia Crawford about the tape, a unanimous Supreme Court said. "That alone is sufficient to make out a violation of the Sixth Amendment," Justice Antonin Scalia wrote. The Sixth Amendment guarantees that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." All nine justices agreed to throw out Michael Crawford's conviction and return the case to the state court system in Washington. Seven justices also took the unusual step of squarely overruling an earlier case that laid out complex rules for when statements can be used without the opportunity for cross-examination. The 1980 case has needlessly complicated a fairly straightforward part of the Constitution, Scalia wrote. The Constitution's framers were wary of letting judges have too much power, he added. "By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable," Scalia wrote. While that "might be a small concern in run-of-the-mill assault prosecutions like this one," the framers had in mind the darker specter of state trials such as Sir Walter Raleigh's in 17th Century England, Scalia wrote. Raleigh demanded that the judges "call my accuser before my face," but they refused. Raleigh was sentenced to death for treason. Justices John Paul Stevens, Anthony M. Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer agreed with him. Chief Justice William H. Rehnquist and Sandra Day O'Connor dissented from the portion of the ruling that overturned the earlier case, and said the majority was complicating, not clarifying, the rules prosecutors should follow. "The thousands of federal prosecutors and the tens of thousands of state prosecutors need answers as to what beyond the specific kinds of 'testimony' the court lists is covered by the new rule," Rehnquist wrote. The Crawford case began in 1999, when Crawford and his wife went to find Kenneth Lee at his apartment in Olympia, Wash. The two men argued and fought, and Sylvia Crawford saw what happened. Michael Crawford got a cut on his hand that required 12 stitches to close, and he stabbed Lee in the stomach, seriously wounding him. The Crawfords fled the apartment and were arrested that night. They both gave statements to police, but only Michael Crawford said he thought he had seen Lee reach for a weapon before he was stabbed. Sylvia did not testify at her husband's trial because of the law protecting spouses from testifying against one another. Prosecutors used her statement to refute his claim that the stabbing was self-defense. In a closing statement to jurors, a prosecutor called the statement "damning evidence." The case is Crawford v. Washington, 02-9410.
My Opinion: I chose this article for a few reasons. The first is because it is a very real case in which the sixth amendment is valid. Also, the courts have ruled against the sixth amendment in other instances (mentioned above) but reversed their decision this time around. Our justice system does not always get things right but in this circumstance the did eventually. It is somewhat reassuring to me that the supreme court is willing to overturn previous rulings when they realize that earlier justices got it wrong. They are people too and are allowed mistakes as long as they correct them and learn from them.
Thursday, October 22, 2009
Fifth Amendment- Grand Jury Trials, Double Jeopardy, Self Incrimination and Due Process
No person shall be held to answer for a capital, or otherwise infamous crime, unless on 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.
In my opinion,the fifth amendment protects the citizen's rights to a trial when someone is accused of a serious federal crime. In America we are innocent until proven guilty and are afforded a trial to prove either our guilt or innocence. This is not the case in many countries. In some countries if you are perceived to have committed a certain offense you are automatically jailed and thought of as guilty. There is the exception to this rule which is if the person accused is a member of the armed forces. I believe a trial is still granted but instead of a Grand Jury they use juries of military courts. However, according to this amendment, if the crime is one on the severe federal level then a special jury, a grand jury, will be appointed. This jury is made up of civilians but is given far greater investigative power than that of a normal, lower court, jury. Some states do not use Grand Juries but rather start cases such as these with inditements. This is one of the aspects of the Bill of Rights that has not been enforced by the fourteenth amendment. The fifth amendment also protects us from being tried twice for the same offense. If this were not the case we could be accused of murder and be aquitted in the first trial but spend then the prosecution turns around and tries us again. Potentially we could spend our entire life defending ourselves. In addition, American's are not forced to testify against themselves. This is lead to many changes of strategy by lawyers. They try to use this protection to their advantage. The fifth amendment is where the phrase "pleading the fifth" is derived. The fifth amendment also states that in non-federal cases citizens are guaranteed due process of law as well. This means that the courts are required to use all efforts to prove someone guilty and until then they are presumed innocent. Lastly, the fifth amendment protects us from having our personal property taken by the government without them first adequately compensating us for it. The fifth amendment is very important and protects many of the freedoms that Americans might sometimes take for granted.
My Opinion: I chose this video because it brings up the controversy of, is the fifth amendment section on not being compelled to testify against one's self helping or hurting? It seems to me as though the only people it is protecting are the guilty. Pleading the fifth is not supposed to be conceived as an admission to guilt but in most cases that turns out to be the case. I cannot think of a time (granted I do not follow every court case) when someone pleaded the fifth and later on it didn't come out that they actually committed the crimes they were accused of in one way or another. The problem, it seems, is that in making someone testify against themselves it would be almost impossible to get the truth. If they were the only ones who knew then it would be very easy to lie about any incrimnating evidence.
"Bobb: No Double Jeopardy Violation on Receiving and Possesing Child Porn"
In U.S. v. Bobb, No. 07-13252 (Aug. 6, 2009), the Court rejected a Double Jeopardy challenge to convictions for receiving and possessing child pornography.
The Court agreed with Bobb that in the abstract it could violate Double Jeopardy to prosecute a defendant for both "receiving" and "possessing" child pornography, because this would be multiple punishment for the same offense. The Court noted that it is impossible to receive a thing without also possessing it. The Court found no intent of Congress to punish the same conduct twice, under separate statutes.
However, Ball was charged with receiving child pornography on a separate date from the date on which he was charged with possessing additional child pornography. Thus, the indictment charged two separate and distinct offenses. Thus, the Double Jeopardy challenge ultimately fell short.
My Opinion: I chose this article based on its clear distinction of the law. Double jeopardy only protects someone from being tried twice for the exact same instance. This does not mean that if you are convicted of speeding that you can never be tried for speeding again. However, it means that you can not be tried for the same ticket again. If it were the other way around, serial killers would kill once, go to jail for a period of time and when they were released be untouchable by the law. Thankfully this is not the case.
In my opinion,the fifth amendment protects the citizen's rights to a trial when someone is accused of a serious federal crime. In America we are innocent until proven guilty and are afforded a trial to prove either our guilt or innocence. This is not the case in many countries. In some countries if you are perceived to have committed a certain offense you are automatically jailed and thought of as guilty. There is the exception to this rule which is if the person accused is a member of the armed forces. I believe a trial is still granted but instead of a Grand Jury they use juries of military courts. However, according to this amendment, if the crime is one on the severe federal level then a special jury, a grand jury, will be appointed. This jury is made up of civilians but is given far greater investigative power than that of a normal, lower court, jury. Some states do not use Grand Juries but rather start cases such as these with inditements. This is one of the aspects of the Bill of Rights that has not been enforced by the fourteenth amendment. The fifth amendment also protects us from being tried twice for the same offense. If this were not the case we could be accused of murder and be aquitted in the first trial but spend then the prosecution turns around and tries us again. Potentially we could spend our entire life defending ourselves. In addition, American's are not forced to testify against themselves. This is lead to many changes of strategy by lawyers. They try to use this protection to their advantage. The fifth amendment is where the phrase "pleading the fifth" is derived. The fifth amendment also states that in non-federal cases citizens are guaranteed due process of law as well. This means that the courts are required to use all efforts to prove someone guilty and until then they are presumed innocent. Lastly, the fifth amendment protects us from having our personal property taken by the government without them first adequately compensating us for it. The fifth amendment is very important and protects many of the freedoms that Americans might sometimes take for granted.
My Opinion: I chose this video because it brings up the controversy of, is the fifth amendment section on not being compelled to testify against one's self helping or hurting? It seems to me as though the only people it is protecting are the guilty. Pleading the fifth is not supposed to be conceived as an admission to guilt but in most cases that turns out to be the case. I cannot think of a time (granted I do not follow every court case) when someone pleaded the fifth and later on it didn't come out that they actually committed the crimes they were accused of in one way or another. The problem, it seems, is that in making someone testify against themselves it would be almost impossible to get the truth. If they were the only ones who knew then it would be very easy to lie about any incrimnating evidence.
"Bobb: No Double Jeopardy Violation on Receiving and Possesing Child Porn"
In U.S. v. Bobb, No. 07-13252 (Aug. 6, 2009), the Court rejected a Double Jeopardy challenge to convictions for receiving and possessing child pornography.
The Court agreed with Bobb that in the abstract it could violate Double Jeopardy to prosecute a defendant for both "receiving" and "possessing" child pornography, because this would be multiple punishment for the same offense. The Court noted that it is impossible to receive a thing without also possessing it. The Court found no intent of Congress to punish the same conduct twice, under separate statutes.
However, Ball was charged with receiving child pornography on a separate date from the date on which he was charged with possessing additional child pornography. Thus, the indictment charged two separate and distinct offenses. Thus, the Double Jeopardy challenge ultimately fell short.
My Opinion: I chose this article based on its clear distinction of the law. Double jeopardy only protects someone from being tried twice for the exact same instance. This does not mean that if you are convicted of speeding that you can never be tried for speeding again. However, it means that you can not be tried for the same ticket again. If it were the other way around, serial killers would kill once, go to jail for a period of time and when they were released be untouchable by the law. Thankfully this is not the case.
Monday, October 19, 2009
Fourth Amendment- Unreasonable Search and Seizures
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.
In my opinion,the fourth amendment prevents citizen's homes, belongings, and persons from being invaded without reason. It provides the basis that there must be some evidence that a person has committed a crime before a warrant is issued. Warrants can only be granted by a judge(oath or affirmation), and must be extremely detailed in what they allow. With out probable cause leading to a warrant, any search is considered invalid. This is a fundamental aspect of our society. If this law was not in place we would constantly live in fear of being wrongfully accused.
My Opinion: I chose this article because I of its controversial nature. I do not believe this plan is a violation of our fourth amendment rights. The police are not forcing themselves into people's houses with out warrants. They are merely asking parents for their permission to search their children's bedrooms. If the child is a minor living in their house then the parent or custodian has the legal authority in this situation. If the parent consents then I do not believe a violation has occurred. When people argue that parents can feel threatened by the police showing up at their doorstep I do not feel they have a valid claim. As citizens we have an obligation to know our rights and exercise them accordingly. If we fail to do so then that is our own problem, not that of law enforcement.
"Illegal Search and Seizure: Your Home is Still Your Castle"
The 10th Circuit Court of appeal has recently upheld the long held and cherished 4th Amendment right protecting us from illegal intrusions into our homes under illegal search and seizure law provisions in the Bill of Rights, which allows individuals to avoid self incrimination by leaving evidence of crimes found in their homes during illegal searches.
In Manzanares v. Higdon, officers came to the home of Manzanares in the investigation of a co-worker of Manzanares in a rape case. The officers arrived at Manzanares’ home at 5:50 AM in the morning.
At the outset, Manzanares was cooperative giving the police helpful information on the identity and location of the alleged rapist. For his trouble, the police continued to interrogate Manzanares. Finally, Manzanares had had enough and requested that the police leave his home. The police refused to leave. Instead they handcuffed Manzanares as they continued questioning him.
The jury in the 4th Amendment Illegal Search and Seizure suit brought by Manzanares, ruled in favor of Higdon on all counts. Manzanares filed a Motion for Judgment as a Matter of Law which was denied by the trial court. Manzanares appealed and the 10th Circuit ruled in his favor that his 4th Amendment rights were violated as a matter of law.
Search and Seizure Rights in Your Home
The officers argued that Manzanares was held as part of an investigative stop and/or to prevent Manzanares from interfering with the investigation. The Appellate Court would hear nothing of this. Central to the court’s argument is the fact that the seizure occurred in Manzanares home. Though Manzanares initially agreed to allow the police into his home, as soon as he withdrew his consent, the police were obligated to leave. Their failure to leave constituted an illegal arrest and seizure of Manzanares without probable cause.
In so ruling, the Court reiterated the long established protections of the home in stating, “ It has been clear for nearly thirty years that a warrantless entry into a home…is presumptively unreasonable. The Supreme Court has consistently reiterated the famous refrain that a man’s home is his castle and has preserved the home as the center of the Fourth Amendment’s protections.” The court stated that reasonable officers would have known that their refusal to leave upon withdrawal of consent constituted a seizure. The police had no warrant, no probable cause to believe a crime had been committed, and there were no extraordinary circumstances to justify their non-consensual presence in Manzanares’ home.
The court stated and the lesson to be learned here is that as soon as consent is withdrawn for law enforcement presence in your home, the officers are bound to leave the home. Failure to do so results in an unlawful seizure under the 4th Amendment and is actionable. Your home is indeed your castle and the 10th Circuit has ruled that it will be closely guarded against unlawful intrusion, even those under the pretense of lawful police investigative activity.
My Opinion: I chose this article because of its applicability. This is a situation that could present itself to any of us. Before reading this article I was not aware that I had to right to make the police leave if I did not want them there. Now it is clear to me and makes perfect sense. If they don't have a warrant and I am not under arrest then they are trespassing if I do not want them on my property. This is something that people need to have a good grasp about in order to protect their rights.
In my opinion,the fourth amendment prevents citizen's homes, belongings, and persons from being invaded without reason. It provides the basis that there must be some evidence that a person has committed a crime before a warrant is issued. Warrants can only be granted by a judge(oath or affirmation), and must be extremely detailed in what they allow. With out probable cause leading to a warrant, any search is considered invalid. This is a fundamental aspect of our society. If this law was not in place we would constantly live in fear of being wrongfully accused.
My Opinion: I chose this article because I of its controversial nature. I do not believe this plan is a violation of our fourth amendment rights. The police are not forcing themselves into people's houses with out warrants. They are merely asking parents for their permission to search their children's bedrooms. If the child is a minor living in their house then the parent or custodian has the legal authority in this situation. If the parent consents then I do not believe a violation has occurred. When people argue that parents can feel threatened by the police showing up at their doorstep I do not feel they have a valid claim. As citizens we have an obligation to know our rights and exercise them accordingly. If we fail to do so then that is our own problem, not that of law enforcement.
"Illegal Search and Seizure: Your Home is Still Your Castle"
The 10th Circuit Court of appeal has recently upheld the long held and cherished 4th Amendment right protecting us from illegal intrusions into our homes under illegal search and seizure law provisions in the Bill of Rights, which allows individuals to avoid self incrimination by leaving evidence of crimes found in their homes during illegal searches.
In Manzanares v. Higdon, officers came to the home of Manzanares in the investigation of a co-worker of Manzanares in a rape case. The officers arrived at Manzanares’ home at 5:50 AM in the morning.
At the outset, Manzanares was cooperative giving the police helpful information on the identity and location of the alleged rapist. For his trouble, the police continued to interrogate Manzanares. Finally, Manzanares had had enough and requested that the police leave his home. The police refused to leave. Instead they handcuffed Manzanares as they continued questioning him.
The jury in the 4th Amendment Illegal Search and Seizure suit brought by Manzanares, ruled in favor of Higdon on all counts. Manzanares filed a Motion for Judgment as a Matter of Law which was denied by the trial court. Manzanares appealed and the 10th Circuit ruled in his favor that his 4th Amendment rights were violated as a matter of law.
Search and Seizure Rights in Your Home
The officers argued that Manzanares was held as part of an investigative stop and/or to prevent Manzanares from interfering with the investigation. The Appellate Court would hear nothing of this. Central to the court’s argument is the fact that the seizure occurred in Manzanares home. Though Manzanares initially agreed to allow the police into his home, as soon as he withdrew his consent, the police were obligated to leave. Their failure to leave constituted an illegal arrest and seizure of Manzanares without probable cause.
In so ruling, the Court reiterated the long established protections of the home in stating, “ It has been clear for nearly thirty years that a warrantless entry into a home…is presumptively unreasonable. The Supreme Court has consistently reiterated the famous refrain that a man’s home is his castle and has preserved the home as the center of the Fourth Amendment’s protections.” The court stated that reasonable officers would have known that their refusal to leave upon withdrawal of consent constituted a seizure. The police had no warrant, no probable cause to believe a crime had been committed, and there were no extraordinary circumstances to justify their non-consensual presence in Manzanares’ home.
The court stated and the lesson to be learned here is that as soon as consent is withdrawn for law enforcement presence in your home, the officers are bound to leave the home. Failure to do so results in an unlawful seizure under the 4th Amendment and is actionable. Your home is indeed your castle and the 10th Circuit has ruled that it will be closely guarded against unlawful intrusion, even those under the pretense of lawful police investigative activity.
My Opinion: I chose this article because of its applicability. This is a situation that could present itself to any of us. Before reading this article I was not aware that I had to right to make the police leave if I did not want them there. Now it is clear to me and makes perfect sense. If they don't have a warrant and I am not under arrest then they are trespassing if I do not want them on my property. This is something that people need to have a good grasp about in order to protect their rights.
Third Amendment- The Quartering of Troops
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.
In my opinion, the third amendment was very important to the Framers at the time the Constitution was written. Before coming to America many of them were faced with this issue in England. They were forced to provide housing, food, etc. for soldiers and were never repaid for their services. With new found freedom in America and a chance to set up it's government, they were doing everything in their power to prevent the persecutions they felt in England from following them to America. It is obvious to most that this amendment is some what irrelevant today, or is it? Maybe the reason why the third amendment is overlooked is because the Framers were so concise in their wording and very adamant in their beliefs that this notion is completely accepted and therefore not challenged.
My Opinion: I chose this video because of the man's statement about kicking armed force recruiters off college campuses. I have never thought about this as applying to the third amendment. I always related it to someone's private residence. I do not agree with his statement that the third amendment would give college campuses this right. The recruiters are not being quartered on the campus but using it as a place of business just as many other organizations do.
"Does the Third Amendment of the Constitution of the United States mean anything anymore?"
A Google News search for "third amendment" returns seven articles, referring to amendments in Pakistan, India, the UAE, and Coatesville, Pennsylvania. None refer to the United States constitution.
In fact it would seem that the Third Amendment to the Constitution of the United States is one of the least controversial legal issues ever. The founding fathers objected, in the Declaration of Independence, to the billeting of British soldiers in civilian homes, and so were determined not to repeat the offense.
It may well be the only law that rabid opponents have accused neither William Jefferson Clinton nor George Walker Bush -- nor even Richard Milhouse Nixon or even Howard Brush Dean -- of violating as President, as Governor, as Boy Scout, or ever at all.
So if the presidential campaign of 2004 comes down to "Brush" vs. "Shrub" (which are anagrams!), at least both candidates will apparently be able to agree on not housing soldiers in the homes of unwilling Americans.
It is apparently not a violation to house soldiers in Saddam's old palaces, but it would be a hoot if someone made something out of objecting to it.
My Opinion: I chose this article because it was one of the only ones that came up when I researched the third amendment. The article and the search itself are a testament to how dated the third amendment is to today's politics. It makes complete sense why it is in the constitution but its relevance is far removed.
In my opinion, the third amendment was very important to the Framers at the time the Constitution was written. Before coming to America many of them were faced with this issue in England. They were forced to provide housing, food, etc. for soldiers and were never repaid for their services. With new found freedom in America and a chance to set up it's government, they were doing everything in their power to prevent the persecutions they felt in England from following them to America. It is obvious to most that this amendment is some what irrelevant today, or is it? Maybe the reason why the third amendment is overlooked is because the Framers were so concise in their wording and very adamant in their beliefs that this notion is completely accepted and therefore not challenged.
My Opinion: I chose this video because of the man's statement about kicking armed force recruiters off college campuses. I have never thought about this as applying to the third amendment. I always related it to someone's private residence. I do not agree with his statement that the third amendment would give college campuses this right. The recruiters are not being quartered on the campus but using it as a place of business just as many other organizations do.
"Does the Third Amendment of the Constitution of the United States mean anything anymore?"
A Google News search for "third amendment" returns seven articles, referring to amendments in Pakistan, India, the UAE, and Coatesville, Pennsylvania. None refer to the United States constitution.
In fact it would seem that the Third Amendment to the Constitution of the United States is one of the least controversial legal issues ever. The founding fathers objected, in the Declaration of Independence, to the billeting of British soldiers in civilian homes, and so were determined not to repeat the offense.
It may well be the only law that rabid opponents have accused neither William Jefferson Clinton nor George Walker Bush -- nor even Richard Milhouse Nixon or even Howard Brush Dean -- of violating as President, as Governor, as Boy Scout, or ever at all.
So if the presidential campaign of 2004 comes down to "Brush" vs. "Shrub" (which are anagrams!), at least both candidates will apparently be able to agree on not housing soldiers in the homes of unwilling Americans.
It is apparently not a violation to house soldiers in Saddam's old palaces, but it would be a hoot if someone made something out of objecting to it.
My Opinion: I chose this article because it was one of the only ones that came up when I researched the third amendment. The article and the search itself are a testament to how dated the third amendment is to today's politics. It makes complete sense why it is in the constitution but its relevance is far removed.
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