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Chapter 2 Constitutional Limitations

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					           CHAPTER 2: CONSTITUIONAL LIMITATIONS

CHAPTER OUTLINE

I. INTRODUCTION

  a. Constitutional democracy: A system of government based on a constitution that

     limits the powers of the government

  b. Individual rights and liberties must be balanced against the need for social order

     and stability

II. THE RULE OF LAW

  a. 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

  b. Nullum crimen sine lege, nulla poena sine lege: “no crime without law, no

     punishment without law”

III. BILL OF ATTAINDER AND EX POST FACTO LAWS

  a. A bill of attainder is a legislative act that punishes an individual or group of

     persons without the benefit of a trial

  b. Four categories of ex post facto laws

     i. Every law that makes an action, done before the passing of the law, and when

         innocent when done, criminal; and punishes such action

     ii. Every law that aggravates a crime, or makes it greater than it was, when

         committed

     iii. Every law that changes the punishment, and inflicts a greater punishment,

         than the law annexed to the crime, when committed
       iv. 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

   c. The prohibition on ex post fact laws prevents legislation being applied to criminal

       acts committed before the statue went into effect

IV. THE SUPREME COURT AND EX POST FACT LAWS

V. STATUTORY CLARITY

   a. The Fifth and Fourteenth Amendments of the United States Constitution prohibit

       depriving life liberty or property without due process of the law

   b. A statue that fails to meet this standard is unconstitutional on the grounds of void

       for vagueness

   c. Due process insures clarity in criminal statues

VI. CLARITY

   a. 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

VII.   DEFINITE STANDARDS FOR LAW ENFORCEMENT

   a. 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

       i. Lack of standards my be applied in a discriminatory fashion

       ii. Broadly worded statutes are a threat in a democracy in which we are

          committed to protecting everyone from government harassment
VIII.   VOID FOR VAGUENESS

   a. 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

IX. STATE V. STANCO

   a. 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

X. EQUAL PROTECTION

   a. The United States Constitution originally did not provide for the equal protection

        of the laws

XI. THREE LEVELS OF ANALYSIS

   a. Criminal statutes typically make distinctions based on various factors including

        the age of the victims, and the seriousness of the offense

   b. Rational basis or minimum level of scrutiny test

   c. Strict scrutiny: Racial classification

   d. Intermediate scrutiny: Gender classification

XII.    WRITE V. SOUTH CAROLINA
   a. 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.")?

XIII.   FREEDOM OF SPEECH

   a. 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”

   b. Bill of Rights: First ten amendments to the United States Constitution that creates

        rights against the federal government

   c. Four functions served by freedom of expression

        i. Freedom of expression contributes to individual self-fulfillment

        ii. Freedom of expression ensures a vigorous marketplace of ideas

        iii. Freedom of expression promotes social stability

        iv. 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

   d. Limits to freedom of speech

        i. 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
      ii. Incitement to illegal action: A speaker is prohibited from inciting an audience

         to violence

      iii. Threat: A developing body of law prohibits threats of bodily harm directed at

         individuals

      iv. Obscenity: Obscene materials are considered to lack “redeeming social

         importance” and are not accorded constitutional protection

      v. Libel: Libel is a civil law rather than a criminal action. This enables

         individuals to recover damages for injury to their reputation

XIV. OVERBREADTH

  a. 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

XV.   HATE SPEECH

  a. 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

  b. Hate crimes: Penal offenses that are directed against an individual who is a

      member of one of these “protected groups”

XVI. VIRGINAL V. BLACK

  a. 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?
XVII. PRIVACY

  a. 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

  b. 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

  c. Number of constitutional provisions that together create the right to privacy

     i. First Amendment

     ii. Third Amendment

     iii. Fourth Amendment

     iv. Fifth Amendment

     v. Ninth Amendment

  d. The right to privacy guarantees that we are free to make the day-to-day decisions

     that define our unique personalities

  e. The right to privacy protects several core concerns

     i. Sanctity in the home

     ii. Intimate activities

     iii. Information

     iv. Public portrayal

XVIII. LAWRENCE V. TEXAS
    a. 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                                libel

bill of rights                                   minimum level of scrutiny

constitutional democracy                         nullum crimen sine lege, nulla poena

equal protection                                 sine lege

ex post facto law.                               obscenity

fighting words                                   overbreadth.

First Amendment                                  prima facie

habeas corpus                                    privacy

hate speech                                      rational basis test

incitement to violent action                     strict scrutiny

incorporation                                    true threats

intermediate level scrutiny                      void for vagueness

				
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