The 6th Amendment

**This will be the last post in June, and we’re taking the month of July off. We’ll come back to blogging in August, and I’ll send you an email to remind you.**

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

You’re familiar with this amendment, even if it doesn’t sound familiar, you know that people get trials pretty quickly after they are charged with a crime. You know that in major crimes, people are tried by juries (although you may have to look up the word “impartial”). You probably know that the trial happens in the district where the crime happened. Did you know that there’s a specific part of a trial (called an arraignment) where the accused person is told exactly what the charges are against him or her? (You don’t need to answer that…) You know that whole schpiel about “You have the right to an attorney. If you cannot afford one, one will be appointed to you.”

The fifth and sixth amendments make up the Miranda Rights- the rights that are read to a criminal suspect before they can be interrogated. If you know nothing about them, I’m certain you’ve heard them on a cop show at one point or another.

Skim through this article : http://www.usatoday.com/news/opinion/forum/2011-05-26-Budget-cuts-crippling-courts_n.htm

Once you’ve read it, comment on how budget cuts could impact the citizens of America’s rights involved in the sixth amendment. Juries are affected by budget cuts, but one should also think that the “court appointed” attorneys don’t work for free- they work for the state  and are also affected. Do you think that these financial issues have any impact on the outcomes of cases? Explain your reasoning.

The Fifth Amendment

A quick run-down of the 5th Amendment:

Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same 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.

The Fifth Amendment is a complicated one, so I figure it could use some explanation. You have probably, at some point in your life or on TV, heard someone say, “I plead the fifth”. I shall, for the sake of understanding, break the amendment down into more explainable sections.

• “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time or War or public danger”
o A capital crime is a crime for which you can receive the death penalty or life in prison. So this amendment is basically saying that a person can’t go to trial for a capital crime unless their case has been presented to a Grand Jury. That’s a jury that looks at the evidence in the case and determines whether there is enough information to go to trial. The amendment is stating that the only time the government may override that amendment is when someone is serving in the military during wartime or a time of great danger. At that point they may go straight to trial.

• “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”
o You’ve probably heard of “double jeopardy”. That is a principle that refers to this amendment. It means that a person cannot be put on trial twice for the exact same crime. If a person murders two different people, they can be tried for both murders. But I can’t be tried twice for killing John Smith by drowning. There’s an interesting movie starring Ashley Judd called Double Jeopardy that is worth watching.

• “Nor shall be compelled in any criminal case to be a witness against himself”
o This section means that a person on trial for a crime cannot be forced by the prosecution to testify against him or herself. If the defense side decides that they want to put the person on the stand to testify, then the prosecution can question them, but at that point it was the defendant’s choice.

• “Nor be deprived of life, liberty, or property, without due process of law”
o This basically means that the government can’t just violate a person’s life, freedom, or stuff without putting them through “due process”- they have to be given the process of the law that applies to their crime (indictment, discovery, trial, etc.).

• “Nor shall private property be taken for public use without just compensation”
o This is saying that the government (nor any corporation, group, or individual) may not confiscate privately owned land without paying for it. You may have experienced a time when the government comes through and buys up all the land around where they are going to build a highway or road. When they do, they have to pay people what is called “fair market value”- what they would be paid for their house if they sold it on their own.

And now for the discussion:

a) Discuss the position of Bradley E. Manning (who is in trouble for violating the first amendment) and his friends in relation to the 5th amendment in relation to this (very short) article: Support of Leak Suspect is Called Before Grand Jury

OR b) Discuss how the fifth amendment affects your life and opinions on citizenship, beyond just the level of hoping you have to never say, “Oh shoot…I plead the fifth.”

4th Amendment

The 4^th Amendment (Searches 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.

The 4^th amendment is the amendment that makes it illegal for the police to search a house without a search warrant or for the police to tap phones without a cause. The rights in this amendment, again, get a little bit more fuzzy in regards to the rights of students, especially in public schools. The following is a summary of the court case Board of Education vs. Earls, and it discusses the drug testing of students who wish to be involved in extracurricular activities. Pay special attention to the role of choice in the case- that seems to be the primary reason the Supreme Court decided the way they did.

Board of Education v. Earls 536 U.S. 822 (2002)

“The Tecumseh, Oklahoma School District has a drug testing policy that requires all middle and high school students who wish to participate in extracurricular activities to undergo a urinalysis that tests for the presence of illegal drugs. At the time of this case, this policy had only been applied to activities sanctioned by the Oklahoma Secondary Schools Activities Association. The school district was sued by some students and parents in an attempt to have this policy vacated on Fourth Amendment grounds.

The District Court hearing the suit granted the school District a Summary Judgement (a ruling without a full trial). On appeal, the Tenth Circuit Court of Appeals reversed the decision, holding that the testing of the students was a violation of the Fourth Amendment. They ruled that because the School District had failed to show that there was a drug abuse problem among a sufficient number of students who were to be tested and that the test was suspicionless, the testing program would not have an effect in reducing a problem with illegal drug use.

Justice Clarence Thomas wrote the opinion for the Supreme Court. In reversing the decision of the Appeals Court, he held that “a probable cause finding is unnecessary in the public school context because it would unduly interfere with maintenance of the swift and informal disciplinary procedures that are needed.” He ruled that there need not be suspicion of an individual or individuals for a search of students to be deemed reasonable. He noted the the “special needs” of public schools are beyond the needs of law enforcement. Relying on Vernonia School District v. Acton (1995), Thomas, he concluded that the students affected by the drug testing had a limited expectation of privacy because they voluntarily participated in extracurricular activities. Additionally, the results of the urinalysis were not used to penalize students academically or shared with law enforcement. For these reasons, the drug testing policy was not a significant intrusion on the student’s privacy expectations and therefore, was not a violation of the Fourth Amendment.

In summarizing the decision, Thomas wrote “Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh’s Policy is a reasonable means of furthering the School District’s important interest in preventing and deterring drug use among its schoolchildren.”

In dissent, Justice Ginsburg noted that the Superintendent of the School District had termed the District’s drug problem as “not … major.” She held that the testing was not reasonable and, therefore, a violation of the Fourth Amendment because the tests targeted a particular group of students that was not likely to be at risk from the use of illegal drugs” (http://www.fourthamendmentsummaries.com/cases/post_2000_cases.html).

So the court decided that, in this case, it was okay for the school to drug test its students because it was not all students- they were choosing to be drug tested by choosing to participate in extra-curricular activities. In regards to the 4^th amendment (stated at the top), do you agree or disagree with the Court’s decision? You may also choose to talk about other ways where the 4th amendment’s limits are getting fuzzy due to increased technology. (For example, if you carry an iPhone or SmartPhone, the police have a right to search it without a warrant, and contained in SmartPhones are often all of a person’s personal data including email, passwords, and sometimes even credit card information.)

3rd Amendment

The 3^rd Amendment: 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.

I’m not going to lie- this amendment is a hard one for me to write on. What application does this amendment, which was clearly written in the context of the Revolutionary War, have on us? In my 26 years of life, no leader of any military battalion has strolled up to my house and asked or demanded that I give his soldiers a place to sleep or eat, whether in peacetime or wartime. It’s typically a part of the English teacher’s job and personality to be able to read between the lines and find obscure meanings in things and I have issues with the 3^rd amendment.

I find one point of possible controversy in the amendment. It specifically addresses the military’s right to house soldiers in the houses of citizens. The end of the amendment, however, states that “in time of war”, the Congress can pass a law that allows the military to force their way into homes. SO, if this amendment allows Congress to pass laws allowing the military to physically make their way into the homes of Americans, does that apply to all general privacy? The last time the amendment was used in the Supreme Court, it was used in reference to prison guards being housed in people’s houses during the outbreak of a prison riot. There was controversy during the Bush presidency over wiretapping of phones for the purposes of terrorism control. People’s private phones were tapped and they considered it an invasion of privacy. Those doing the tapping, however, claimed that it was necessary to the security of the nation. If it was done for the safety of the whole, does that make it okay?

So there are 2 questions at play here. 1) What is the intent of the amendment? Were the writers really intending to be so specific about the military’s housing, or is there a deeper meaning relating to privacy? What could that mean for us? and 2) Is this relevant today, or is the amendment outdated and useless?

The 2nd Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Constitution and the Bill of Rights were written shortly after the conclusion of the American Revolution. The success of the American revolutionaries was due to the preparation and participation of local militias and individual volunteerism. Alongside the army were vast numbers of smaller militias who aided in the battles and helped lead to the defeat of the English. The success of the militias was wholly dependent on individuals’ willingness and capabilities to take up arms and fight the British.

The right to bear arms is often used in arguments to support points for which it may or may not have been intended. Looking at the way the amendment is phrased, you can pick out a couple of interesting things. If you look at it from a word nerd perspective, you may note that, when you take out the descriptive clauses, the sentence is actually stating that, “A well regulated militia shall not be infringed”. In that case, what the amendment is actually saying is that the government has the right to keep an army. The portion that states “being necessary to the security of a free State” is referring to the fact that keeping a militia is necessary in order to keep peace within the nation. So that leaves “the right of the people to keep and bear arms’ with which to be dealt.

That portion of the amendment is the most quoted, contested, and sometimes abused. People argue the wording of that portion on both sides of the fence.

Those in favor of stricter gun control will state that “the right of the people to keep and bear arms” refers to the fact that the government, which is controlled by the people, has the right to maintain an army for the defense of the country and that it has nothing to do with an individual’s rights. They believe that allowing our citizens to continue to arm themselves is unnecessary and leads to higher rates of gun violence.

Those who favor the current gun laws or even looser ones claim that the “right to bear arms” is a fundamental American right to protect oneself and one’s property. They believe that action should be taken in order to, “recognize the right of honest citizens to carry firearms for self-protection; [write preemptive] bills to prevent attacks on gun owner rights by local anti-gun politicians, and  [fight] for legislation to prevent bankrupting of America’s firearms industry through reckless lawsuits” (NRA). They believe that they are fighting for freedom and will use force if necessary.

So who is right? Currently laws about gun control are made by each state. The federal government does not restrict your right to bear arms, but the state may enforce laws on how they are purchased. The supreme court (as of March 2^nd) was mixed in opinions on whether states should be allowed to make laws that severely limit an individual’s right to carry guns in public. (See this article.) Take a side- for or against the state’s ability to control gun usage- and give reasoning, relying heavily on the wording of the amendment, to defend your opinion.

Cohen, Jeff. “Gun Control, the NRA, and the Second Amendment.” 1 February 2000. NRA. 26 June 2010. Web. <http://www.nraila.org/>

The First Amendment

The First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The first amendment is possibly the most regularly cited, quoted, or alluded to item in the American Constitution. The Bill of Rights are the first 10 amendments to the constitution, and the first amendment acts as a flagship for the core freedoms that Americans treasure- the right to speak freely, practice your religion, and protest things you think are wrong without fearing the government.

It is commonly understood that there are certain situations in which, for the safety of the citizens, those rights are partly suspended. This becomes particularly prevalent in relation to the freedom of speech. A student in a classroom does not have the right to verbally abuse whomever she so desires in the name of the first amendment. A Farsi translator working to translate incoming messages from Iran does not have the freedom to speak openly about his workday.

An anonymous writer for the Daily Princetonian, the student newspaper at Princeton University, wrote an article addressing his perception of violations of the first amendment at Princeton University. The student describes a situation in which the administration decided to control which non-student groups should be allowed to come on campus and discuss controversial political issues. The administration cited the first amendment as the reason they should be allowed to censor the speakers- that the state should not interfere with the university’s ability to govern itself. The author states, “By making this assertion, Princeton redefines- indeed, perverts- the true meaning of academic freedom. This term…refers to the freedom…to take unpopular and provocative stands rather than to [limit] the freedom of the entire university to remain immune from any type of government interference” (Princeton). The student argues that the administration’s attempt to censor speakers on campus in the name of the first amendment is ironically violating the first amendment’s right to free speech, assembly, and the press.

While the Princeton student may have a point, he fails to acknowledge that the article itself is a demonstration of free speech. He is writing a negative editorial on the administration of Princeton University while sitting on the campus of Princeton University and writing from the platform of the Princetonian Publishing Company. It seems to me as if they are doing a pretty good job of allowing a free exchange of ideas and opinions.

The rights of students in schools, public, private, secondary, and post-secondary, are often questioned and debated. It was declared in the Supreme Court case Tinker vs. Des Moines that students do, in fact, have rights to speech within schools within reason, but that school administrators have the right to restrict complete freedom of speech in order to balance discipline and thought. This court case declared that students should be allowed to wear black armbands in protest of the war in Vietnam as long as the armbands created no disruption to the school day. It follows, then, that limitations to free speech within a school setting should be aimed toward disruptions to the school day, not toward academic inquiry and open-minded discussion.

In light of the Princetonian article and Tinker vs. Des Moines, what is your opinion on the first amendment rights of students? In what ways are they visibly restricted, and are those restrictions justifiable? Do you think that, as a student, you have more or less first amendment rights than you should?

Daily Princetonian Staff. “Princeton and the First Amendment.” The Daily Princetonian. 
Daily Princetonian Publishing Company. 10 May 2010. Web. 28 May 2010.

http://www.dailyprincetonian.com/2010/05/10/26135/

Tinker vs. Des Moines Independent School District Et Al. No. 21. Supreme Ct. of the 
U.S. 24 Feb. 1969.

**Over the next three days, we will look at examples of the First Amendment in action: positively and negatively. Your post on here may be about the question posed above, or it may be in defense of or argument against why a certain situation should be given the freedoms of the first amendment.

An Opinion is all I Ask

For your information:

As far as posting, you may relax. We have gone through the really controversial amendments, now it is my plan for the bit of school to go through the last 5 amendments in the Bill of Rights plus the amendments that are significant to your lives and everyone expects you to know them (13 and 19 are pretty important, among others). If you have a particular opinion or idea on how you’d like to see us learn those, please feel free to post it here. I’m in the process of planning that now.

Enjoy your last few days of summer!

Your opinion, please.

I’m going to keep this short because I have one minute to write a blog before it’s officially not posted on Sunday.

What do you think is the most significant or important event or situation that has happened this year involving our government? Include your reasoning and a link to a news story.

A Leak in the System?

You may or may not have been paying attention to the news lately, but there has been a lot of buzz over a reasonably new website called Wikileaks. The general basis of Wikileaks and its founder, Julian Assange’s mission is that it is journalism’s job to give the people all the information possible so that they can make informed decisions. Under this premise, they have set up a leak website. Assange is not a citizen of the United States, so he can avoid dealing with some issues with treason when military documents are released. What happens is that people who have access to secret information or documents (sources) contact Assange and Wikileaks with this information. As a confidential transaction, Wikileaks promises not to reveal the source of the information, and they post it. That protects Wikileaks because they are not the person who had the information and gave it away. They are just journalists using sources. It protects the person who gave the information away because the government cannot force a journalist to reveal his or her sources. That’s the simple explanation of how Wikileaks works.

There has been a lot of controversy over Wikileaks mainly because they recently released a diary detailing decisions made about the war in Afghanistan from 2004 until the present. Those against the actions of Wikileaks plead that it is dangerous to soldiers and detrimental to the actions of the government to have this information made public. They plead that there are certain pieces that must be kept secret for the military’s safety and effectiveness. The White House called the leaks “irresponsible” and said that they could threaten the security of the nation and the other countries that are helping with the war.

Those who support Wikileaks profess that open, candid journalism and digging into the secrets that governments try to hide are the best ways to keep these operations honest. They claim that freedom of information leads to more accountable governments making more careful decisions. Assange also insists that the information he leaks is not information that involves current decisions, and therefore does not put soldiers’ lives in danger.

Read some of the articles linked below (or do your own research).As a citizen of the United States, in light of specifically the First Amendment, what are your thoughts on the Wikileaks situation? Are Assange and the leaders of Wikileaks wrong in divulging dangerous information or are they pioneers in protecting our right to information? Why?

Wikileaks

Video of Julian Assange Explaining Wikileaks

White House Response Article

Sydney Morning Herald Article

The 5th Amendment: Cliff’s Notes

Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same 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.

The Fifth Amendment is a complicated one, so I figure it could use some explanation. You have probably, at some point in your life or on TV, heard someone say, “I plead the fifth”. I shall, for the sake of understanding, break the amendment down into more explainable sections.

• “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time or War or public danger”
o A capital crime is a crime for which you can receive the death penalty or life in prison. So this amendment is basically saying that a person can’t go to trial for a capital crime unless their case has been presented to a Grand Jury. That’s a jury that looks at the evidence in the case and determines whether there is enough information to go to trial. The amendment is stating that the only time the government may override that amendment is when someone is serving in the military during wartime or a time of great danger. At that point they may go straight to trial.

• “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”
o You’ve probably heard of “double jeopardy”. That is a principle that refers to this amendment. It means that a person cannot be put on trial twice for the exact same crime. If a person murders two different people, they can be tried for both murders. But I can’t be tried twice for killing John Smith by drowning. There’s an interesting movie starring Ashley Judd called Double Jeopardy that is worth watching.

• “Nor shall be compelled in any criminal case to be a witness against himself”
o This section means that a person on trial for a crime cannot be forced by the prosecution to testify against him or herself. If the defense side decides that they want to put the person on the stand to testify, then the prosecution can question them, but at that point it was the defendant’s choice.

• “Nor be deprived of life, liberty, or property, without due process of law”
o This basically means that the government can’t just violate a person’s life, freedom, or stuff without putting them through “due process”- they have to be given the process of the law that applies to their crime (indictment, discovery, trial, etc.).

• “Nor shall private property be taken for public use without just compensation”
o This is saying that the government (nor any corporation, group, or individual) may not confiscate privately owned land without paying for it. You may have experienced a time when the government comes through and buys up all the land around where they are going to build a highway or road. When they do, they have to pay people what is called “fair market value”- what they would be paid for their house if they sold it on their own.

In light of this amendment, what are the ways in which this amendment applies to your life? Sure, it applies in a theoretical, “I hope not, but that could happen to me” sense, but how else does the 5th amendment impact your role as an American, the way you live your life, or the confidence you have in your government?