CHAPTER 2: CONSTITUIONAL LIMITATIONS CHAPTER OUTLINE INTRODUCTION Constitutional democracy: A system of government based on a constitution that limits the powers of the government Individual rights and liberties must be balanced against the need for social order and stability THE RULE OF LAW The rule of legality: The first principle of American law and jurisprudence; an individual may not be criminally punished for an act that was not clearly condemned in a statute prior to the time that the individual committed the act Nullum crimen sine lege, nulla poena sine lege: ?no crime without law, no punishment without law? BILL OF ATTAINDER AND EX POST FACTO LAWS A bill of attainder is a legislative act that punishes an individual or group of persons without the benefit of a trial Four categories of ex post facto laws Every law that makes an action, done before the passing of the law, and when innocent when done, criminal; and punishes such action Every law that aggravates a crime, or makes it greater than it was, when committed Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender The prohibition on ex post fact laws prevents legislation being applied to criminal acts committed before the statue went into effect THE SUPREME COURT AND EX POST FACT LAWS STATUTORY CLARITY The Fifth and Fourteenth Amendments of the United States Constitution prohibit depriving life liberty or property without due process of the law A statue that fails to meet this standard is unconstitutional on the grounds of void for vagueness Due process insures clarity in criminal statues CLARITY Due process insures clarity in criminal statutes. This guards against individuals being deprived of life (the death penalty), liberty (imprisonment) or property (fines) without due process of law DEFINITE STANDARDS FOR LAW ENFORCEMENT Kolender v. Lawson: The void for vagueness doctrine was aimed at insuring that statutes clearly inform citizens of prohibited acts while simultaneously providing definite standards for the enforcement of the law Lack of standards my be applied in a discriminatory fashion Broadly worded statutes are a threat in a democracy in which we are committed to protecting everyone from government harassment VOID FOR VAGUENESS Judges appreciate the difficulty of clearly drafting statutes and typically limit the application of the void for vagueness doctrine to cases in which the constitutionally protected rights and liberties of people to meet, greet and congregate in groups, move about and express themselves are threatened STATE V. STANCO Is § 61-8-303(1), MCA, so vague that it violates the Due Process Clause found at Article II, Section 17, of the Montana Constitution? ?Stanko contends that § 61-8-303(1), MCA, is unconstitutionally vague because it fails to give a motorist of ordinary intelligence fair notice of the speed at which he or she violates the law, and because it delegates an important public policy matter, such as the appropriate speed on Montana's highways, to policemen, judges, and juries for resolution on a case-by-case basis EQUAL PROTECTION The United States Constitution originally did not provide for the equal protection of the laws THREE LEVELS OF ANALYSIS Criminal statutes typically make distinctions based on various factors including the age of the victims, and the seriousness of the offense Rational basis or minimum level of scrutiny test Strict scrutiny: Racial classification Intermediate scrutiny: Gender classification WRITE V. SOUTH CAROLINA Does the aggravating circumstance of a "difference in the sexes" violate equal protection in violation of United States Constitutional Amendment XIV, § 1 ("No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.")? FREEDOM OF SPEECH The First Amendment to the United States Constitution provides that ?Congress shall make no law?abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government fro a redress of grievances? Bill of Rights: First ten amendments to the United States Constitution that creates rights against the federal government Four functions served by freedom of expression Freedom of expression contributes to individual self-fulfillment Freedom of expression ensures a vigorous marketplace of ideas Freedom of expression promotes social stability Freedom of expression insures that there is a steady stream of innovative ideas and enables the government is able to identify and to address newly arising issues Limits to freedom of speech Fighting words: Words directed to another individual or individuals that an ordinary and reasonable person should be aware are likely to cause a fight or breach of the peace Incitement to illegal action: A speaker is prohibited from inciting an audience to violence Threat: A developing body of law prohibits threats of bodily harm directed at individuals Obscenity: Obscene materials are considered to lack ?redeeming social importance? and are not accorded constitutional protection Libel: Libel is a civil law rather than a criminal action. This enables individuals to recover damages for injury to their reputation OVERBREADTH The doctrine of overbreadth provides that a statute is unconstitutional that is so broadly and imprecisely drafted that it encompasses and prohibits a substantial amount of protected speech relative to the coverage of the statute HATE SPEECH Hate speech: Speech that denigrates, humiliates, and attacks individuals on account of race, religion, ethnicity, nationality, gender, sexual preferences or other personal characteristics and preferences Hate crimes: Penal offenses that are directed against an individual who is a member of one of these ?protected groups? VIRGINAL V. BLACK Does the Virginia statute constitute content discrimination in violation of the First Amendment? Is the Virginia statute overbroad in violation of the First Amendment in that it punishes both unprotected speech and a substantial amount of protected speech? PRIVACY The idea that there should be a legal right to privacy was first expressed in an 1890 article in the Harvard Law Review written by Samuel D. Warren and Louis D. Brandeis. The two authors argued that the threats to privacy associated with the dawning of the twentieth century could be combated through recognition of a civil action against individuals who intrude into individuals? personal affairs Griswold v. Connecticut: The United States Supreme Court proclaimed that although privacy was not explicitly mentioned in the United States Constitution that it was implicitly incorporated into the text Number of constitutional provisions that together create the right to privacy First Amendment Third Amendment Fourth Amendment Fifth Amendment Ninth Amendment The right to privacy guarantees that we are free to make the day-to-day decisions that define our unique personalities The right to privacy protects several core concerns Sanctity in the home Intimate activities Information Public portrayal LAWRENCE V. TEXAS Were the petitioners free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution KEY TERMS bill of attainder bill of rights constitutional democracy equal protection ex post facto law. fighting words First Amendment habeas corpus hate speech incitement to violent action incorporation intermediate level scrutiny libel minimum level of scrutiny nullum crimen sine lege, nulla poena sine lege obscenity overbreadth. prima facie privacy rational basis test strict scrutiny true threats void for vagueness
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