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Running head: EVOLUTION OF CONSTITUTIONAL RIGHTS
Evolution of Constitutional Rights
Name
Institution
1
EVOLUTION OF CONSTITUTIONAL RIGHTS
2
The American constitution has empowered its citizens with inherent Rights in the form of Amendments.
With time, the said rights have lost the meaning that the founders anticipated them to have. One of these rights
vested under the Fourth Amendment, which was pursued by the founders of the country to protect citizens
against the law enforcement agencies. The Amendment is to the effect that law enforcement agencies have no
right to search and seize an individual’s property without a just cause or without a warrant. In addition, it
provides that any search warrant that enables any part of the government to search a person’s property or seize
property, the same must be based on probable cause. The role of the Fourth Amendment was the protection of
the property and individual rights that people enjoyed through the recognition and affirmation of rights free
from government tyrannical rule. However, the state of affairs today is that this right has been eroded to the
point where citizens do not enjoy this right.
The first manifestation of the erosion of the Fourth Amendment is the enactment of the Patriot Act,
which was passed after the twin tower bombings of 11th Septemebr 2001. The provisions of the law was that the
government could compel third parties who hold personal information belonging to other people to turn over the
same to the federal government when they are requested to do so. In such an event, the government will be in
possession of people’s personal information without even the owners knowing that the same was transmitted to
another party (Vile & Hudson, 2013). Because the same was provided by the law, people would have no
recourse of contesting the fact that their personal information was availed to the government without their
consent or notice.
Law enforcement has embraced the use of a tracking device known as GPS to monitor the movements of
people they suspect of committing crimes. A very good example was in the case of U. S. vs. Juan PinedaMoreno whereby federal agents, without probable cause sneaked into the defendant’s driveway and placed a
tracking device on his car. The agents monitored his activities with the car for four months, during which he did
not know of the presence of the tracking device on his car. Finally, the device led them to a site where
marijuana was grown. Based on these findings, they arrested him. When the manner in which the evidence was
EVOLUTION OF CONSTITUTIONAL RIGHTS
3
Acquired was contested, the court held that a driveway could not be considered private unless it had a form of a
blocked barrier or it was enclosed. Even the fact the defendant had put up a ‘no trespassing’ sign was
inconsequential to court in terms of considering it private. According to the court, the defendant had no
reasonable expectation of privacy when he left his car in the driveway from where the GPS tracking device was
placed.
Even though the defendant did not succeed in his appeal to the Ninth Circuit Court of Appeal, the Chief
Judge whose name was Kozinski brought to light the fact that by allowing the federal agents to get away with
placing the GPS tracking device on the defendant’s car, it was an erosion of the Fourth Amendment rights
provided to citizens (Hall & Feldmeier, 2012). According to him, these measures affected mostly the poor
people, who could not be able to put up protective barriers like their rich counterparts. The ruling of the court
was paving way for a state where the government undertook underhanded and clandestine behavior by the
government without any consequences and recourse.
The right to be protected from unlawful search and seizure has been eroded through the invasion of
privacy as perpetuated by agents from the Transportation Security Administration. They are accused of using
radiation body scanners as well as techniques of aggressive frisking at the country’s airports. Even though many
lawsuits have been commenced in a bid to stop the use of these means of searching people, the government has
countered the same with the assertion that the country has undergone so many terror attacks that there is need to
protect itself from any other attacks using any means necessary. It did not matter if the means used were in
breach of rights that citizens inherently have.
Today, law enforcement agencies can conduct secret wiretaps and searches at offices or homes without
ant probable cause. All they need is to assert that they are undertaking intelligence gathering in their intrusion.
The same agencies have the power to monitor whom and where people send their e-mails, the sites one visits on
the Internet and all the addresses one has in their e-mail. These are some of the activities that show that the right
the people are supposed to be enjoying of unlawful searches and seizure has been watered down. Additionally,
EVOLUTION OF CONSTITUTIONAL RIGHTS
4
The oversight role that the judiciary has over secret searches has been minimized. The Patriots Act is to the
effect that judges need to consent to secret searches once the government asserts that the most significant
purpose of the investigation is gathering of information that relates to terrorism.
In conclusion, there are many instances in which the erosion of the Fourth Amendment has been
manifested. In the first instance, the judiciary, which is the arm established to interpret the law in a just way has
participated in this erosion. They have made decisions, which have shown that the rights under the Fourth
Amendment can be breached without any recourse for the victims. In fact, some of the courts have interpreted
this right contrary to what the founders of the same intended. The permitted act of allowing law enforcement
agencies to mount GPS tracking devices without the requisite warrant is also another way in which the Fourth
Amendment has been eroded. Finally, the use of scanners as well as aggressive frisking in airports has also
infringed on the right that people have to be protected against illegal searches because they do not consent to be
treated in such a manner.
References
Hall, D., & Feldmeier, J. (2012). Constitutional law. Upper Saddle River, N.J.: Pearson.
Vile, J., & Hudson, D. (2013). Encyclopedia of the Fourth Amendment. Thousand Oaks, Calif.: CQ Press.
Constitutionalism and Rule of
Law 1
Constitutional Law: Governmental Powers and
Individual Freedoms
Second edition
Daniel E. Hall and John P. Feldmeier
Class Name
Instructor Name
Date, Semester
Constitutions and the
Rule of Law
• Law – latin lex, legare (to bind)
• Constitution – body of fundamental
principles by which a nation is
governed
Foundational Sources
Three Distinct Documents:
• Declaration of Independence
• Articles of Confederation
• U.S. Constitution
Articles of Confederation
• 1781-1789
• Basic structure of a confederation
• Problems under the Articles
Philadelphia Convention
• Delegates to the 1787 meeting
• Nature of the debates
• Federalists v. Anti-Federalists
• The Issue of Slavery
Ratification of the Constitution
• No need for unanimity among the states.
Nine out of thirteen sufficient
• Federalist Papers (articles of propaganda) used to
convince states to ratify.
The Early Court
1789-1800
❖ Few Cases
❖ A lot of turnover among the justices
❖ Chisholm v. Georgia (1793) effectively overturned by
the passage of the 11th Amendment
❖ Generally regarded as the weakest branch
The Marshall Court
(1801-1836)
❑ More active court
❑ Generally, decisions expanded the power of the
federal government
❑ Number of landmark rulings
– Marbury v. Madison (1803)
– McCulloch v. Maryland (1819)
– Gibbons v. Odgen (1824)
The Taney Court
(1836-1865)
➢ Decisions tended to favor state interests over
those of the federal government
➢ Most (in)famous decision
• Dred Scott v. Sandford (1856)
The Reconstruction Era
(1865-1900)
▪ Addressed post-Civil War challenges and
early issues of the Industrial Revolution
▪ Limited scope and effect of post-Civil War
Amendments
▪ Most notable cases
– Plessy v. Ferguson (1896)
– Civil Rights Cases (1888)
– Santa Clara Co. v. S. Pacific Railroad Co. (1886)
Pre-New Deal Era
(1900-1937)
❖ Limited government’s ability to regulate business
❖ Developed a theory of “liberty of contract”
❖ Frustrated FDR’s New Deal legislation
❖ Notable Case
– Lochner v. New York (1905)
The New Deal Era
(1937-1953)
❖ Began approving FDR’s New Deal legislation as being
constitutional
– Moment known as the “Switch in Time that Saved Nine”
❖ Allowed federal government to address conditions
brought by the Industrial Revolution and Great
Depression
❖ Notable Case
– West Coast Hotel v. Parrish (1937)
The Warren Court
(1953-1969)
❖ Dramatic expansion of civil liberties and individual
rights
❖ Noteable Cases
– Brown v. Bd. of Education (1954)
– Griswold v. Connecticut (1965)
– Miranda v. Arizona (1966)
The Burger Court
(1969-1986)
❖ Continued expansion of individual liberties in some
areas
– Roe v. Wade (1973)
– Expansion of protections against sex-based discrimination
❖ But in other areas more conservative rulings than the
Warren Court.
The Rehnquist Court
(1986-2005)
❖ Also known as the “Republican Era” of the Court
– All justices but two appointed by Republican presidents
❖ Many conservative rulings that limited or reversed
rulings by the Warren Court
❖ Notable cases
– Planned Parenthood v. Casey (1992)
– Bush v. Gore (2000)
The Roberts Court
(2005-Present)
❖Still regarded as a conservative Court
❖Many 5-4 rulings
❖Too new to judge
Eighth Amendment’s Other Provisions
❑ Excessive bail provision
– Provides that amount of bail cannot be excessive
❑ Excessive Fine provision
– Provides that fines cannot be excessive
❑ Supreme Court has yet to formally apply these
provisions to the states through the Fourteenth
Amendment due process clause
– May run afoul of other constitutional standards, including equal
protection
Dividing Governmental
Power 2
Constitutional Law: Governmental Powers and
Individual Freedoms
Second edition
Daniel E. Hall and John P. Feldmeier
Class Name
Instructor Name
Date, Semester
Federalism’s Basic Structure
National (Federal) Level & State Level
Federal Powers
Article I
Article II
Article III
Power Reserved the States
Tenth Amendment
Expansive Powers of the Federal
Government
▪ Article I, §8 – Power to coin and borrow money,
establish a post office, establish and maintain
military forces, promote the arts and sciences,
and create immigration laws
▪ Article I, § 8, Clause 3 – Commerce Clause
▪ Article I, § 8, Cl. 18 – Necessary and Proper
Clause
▪ Article VI – Supremacy Clause
CIVIL WAR AMENDMENTS
➢ Thirteen, Fourteen, and Fifteenth Amendments
➢ Each have “enforcement clauses” allowing
Congress to enforce, by appropriate
legislation, the provisions of these articles
Forms of Federalism
❑Dual
❑Hierarchical
❑Cooperative
Dual Federalism
➢ Model of federalism whereby federal
government and state governments are
coequal sovereigns
➢ Tenth Amendment is read broadly and the
supremacy, necessary and proper, and
commerce clauses are read narrowly
➢ This model reflected relationship until the early
twentieth century
Hierarchical Federalism
❖ Model of federalism wherein federal government is
model of federalism that asserts that the national
government is supreme in the scheme
❖ The supremacy, necessary and proper, and
commerce clauses are read expansively, whereas
the Tenth Amendment is interpreted as not creating
any specific state powers
❖ Tenth Amendment is viewed as a truism, a negative
statement of state power
Cooperative Federalism
➢ Model of federalism whereby there is increased
interaction between the states and national
government (and local forms of government) in an
effort to effectively regulate and administer law and
programs
➢ Examples include the “war on drugs” waged during
the Reagan and George Herbert Walker Bush
administrations and the “war on terror” waged during
the George W. Bush administration
Separation of Powers
Framers’ objective: limit governmental
authority by dividing it (divide and
conquer)
Basic Constitutional Structure
▪ Article I establishes Congress and sets its authorities
– Two chambers — House of Representatives and Senate
▪ Article II establishes the Presidency and also sets forth
its authorities
▪ Article III establishes the Supreme Court and such
inferior courts as Congress may establish and sets
forth its power (Judicial Power)
Checks and Balances
Examples within the Constitution:
• Congress responsible for making law/Checked by President, who
may veto legislation
• President can veto legislation/Checked by Congress who can
override veto with a two-thirds majority
• Congress passes legislation/Checked by the judiciary who can
declare void those laws that conflict with the Constitution
Checks and Balances, cont.
Examples of Checks and Balances
• President conducts foreign affairs and negotiates
treaties/Senate must ratify treaties
• President is the commander-in-chief of the
military/Congress can make rules regulating the military
and is responsible for declaring war
• President nominates federal judges and other
governmental officers/Senate confirms the appointments
• The Judiciary reviews laws for their constitutionality/
Congress regulates the appellate jurisdiction of the courts
Basic Forms of State and Federal law
❖ The United States Constitution – highest form of law
❖ Federal laws or statutes – passed by Congress and found in the
United States Code
❖ Treaties – made in tandem with President and Senate
❖ Executive Orders – issued by President as way to governed
executive action
❖ Administrative Rules – standards set forth by executive agencies
Other forms of law
❖ Common Law – longstanding and traditional
doctrines and standards made by judicial authorities
that are sometimes used to fill in the gaps of
legislation and other legal standards
❖ Judicial Opinions – formal opinions of courts deciding
particular legal questions; used with the doctrine of
“precedent”
The Judiciary: Its Role and
Jurisdiction 3
Constitutional Law: Governmental Powers and
Individual Freedoms
Second edition
Daniel E. Hall and John P. Feldmeier
Class Name
Instructor Name
Date, Semester
Federal Judicial Jurisdiction
Article III, §1
“The judicial power of the United States shall be
vested in one Supreme Court, and such
inferior Courts as the Congress may from time
to time ordain and establish”
Article III, § 2, clause 2
In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State
shall be a Party, the Supreme Court shall have
original Jurisdiction. In all the other Cases before
mentioned, the Supreme Court shall have
appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations
as the Congress shall make.
Basic Elements
Federal Question Jurisdiction
Original v. Appellate Jurisdiction
Diversity of Citizenship Jurisdiction
Most cases heard through certiorari procedure
Case-and-Controversy Requirement
Courts of limited jurisdiction v. courts of general jurisdiction
No advisory opinions
Lower Courts’ Jurisdiction
• Article III: Congress may create “inferior Courts” –
known as constitutional courts or Article III courts
• Congress can control the jurisdiction of these courts
through legislation
Eleventh Amendment
& Sovereign 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
❖Methods of avoiding this provision
Doctrines of Justiciability
▪ Ripeness
▪ Mootness
▪ Political Question Doctrine
▪ The Younger Doctrine
▪ Standing
– Injury in Fact
– Causation
– Citizen and Taxpayer Standing
State Court Jurisdiction
❑ State courts may hear all state-law cases, whether
arising under ordinance, statute, regulation, state
constitution, or common law
❑ Governed largely by state constitution
❑ America’s state courts continue to be the largest
dispensers of justice
– Over 95% of all cases filed in, and resolved by, state courts
The Bill of Rights
8
Constitutional Law: Governmental Powers and
Individual Freedoms
Second edition
Daniel E. Hall and John P. Feldmeier
Class Name
Instructor Name
Date, Semester
Why a Bill of Rights?
➢ Concerns of states in ratifying the Constitution
➢ Madison’s promise
➢ Source of Individual Liberties
– Natural Law Theory
– Compact Theory
– United States v. Verdugo-Urquidez (1990)
Holding State and Local Governments
Accountable Under the Bill of Rights
❖The theory of incorporation
❖Original approach – no incorporation
❖Barron v. Baltimore (1833)
❖Gradual incorporation
❖14th Amendment Due Process Clause
Incorporated or Not?
❑ 1st Amendment: Totally incorporated
❑ 2nd Amendment: Totally incorporated
❑ 3rd Amendment: Not officially incorporated by Supreme Court
❑ 4th Amendment: Totally incorporated
❑ 5th Amendment: Incorporated except for guaranteeing criminal
prosecution only on grand jury indictment
❑ 6th Amendment: Totally incorporated
❑ 7th Amendment: Not officially incorporated
❑ 8th Amendment: Provision against “cruel and unusual
punishments” as been incorporated, but provisions regarding
“excessive fines” and “excessive bail” not officially
incorporated.
Rights Not Explicitly Mentioned But Still
Incorporated
Right to Privacy – Griswold v. Conn. (1965)
Right to Travel – Shapiro v. Thompson (1969)
Right to an Abortion – Roe v. Wade (1973)
Freedom of Association – NAACP v. Alabama (1958)
Right to Marriage – Zablocki v. Redhail (1978)
First Amendment Freedoms of
Expression, Association, and
Press
9
Constitutional Law: Governmental Powers and
Individual Freedoms
Second edition
Daniel E. Hall and John P. Feldmeier
Class Name
Instructor Name
Date, Semester
The Free Speech Clause
Promotes three common values:
• The idea that governmental power can be limited by
allowing individuals to critique and otherwise scrutinize their
public officials and policies,
• The notion that a democratic government functions best
when conflicting interests are allowed to compete in an
open marketplace, and
• The belief that individual expression is a necessary condition
for human health.
The Concept of a “marketplace of ideas.”
Basic Approaches to Freedom of Speech
Schenck v. United States (1919)
• Clear and Present Danger Test
Gitlow v. New York (1925)
• Bad tendency test
Dennis v. United States (1951)
• Probability test
Brandenburg v. Ohio (1969)
• Current Standard “speech must be directed to
inciting or producing imminent lawless action and
. . . likely to incite or produce such action.”
Freedom of Speech:
Other Considerations
❑ Content (of speech) v. Conduct
❑ Vagueness Doctrine
❑ Overbreadth Doctrine
❑ Ban v. Regulation
❑ Time, place, and manner regulation
❑ Strict Scrutiny Test – Is Government restriction on speech
necessary (narrowly tailored) to promoting a compelling
governmental interest
Other Considerations, Cont.
➢ Public v. Non-Public Forum
➢ Content and Viewpoint Neutrality
➢ Unprotected and Underprotected Forms of
Speech
–
–
–
–
–
–
–
Obscenity
Child Pornography
Fighting Words
Compare Offensive Speech and Hate Speech
Defamation
Slander and Libel
Commercial Speech
Central Hudson Test
Speech and Political Campaigns
❑ The Basic Problem: Excessiv …
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