Constitutional Law

The Amendments have since been liberally construed and codified to ensure that those who stand at the greatest risk of losing their liberty are afforded maximum protection from what has been perceived the gravest danger of all: An overreaching government left unchecked. Of course, the framers could have little imagined the complex issues that would today riddle our courtrooms. They could not have foreseen how the "fighting words" exception to the First Amendment would be used to litigate against hate crimes. And they certainly did not foresee a day when forensic technology would demand answers to questions like whether compelled DNA sampling is a violation of Fourth Amendment search and seizure or Fifth Amendment freedom from self-incrimination. So below we revisit the Constitution to understand the bases of contemporary criminal law, which remains the cornerstone of American Justice.

Meaning ... even the Nazi party or Ku Klux Klan has the right to convene 'peacefully' in front of a Synagogue or a black university. Recent limitations have been imposed on hate-crimes for speech intended to and reasonably likely to incite violence against certain protected classes, such as racial and ethnic 'minorities' and homosexuals.

See Blueprint for a Murder, where a publisher was held accountable for detailing a murder plan; Also see The Matthew Shepard Story , where a gay-bashing homicide led to an exception for the use of language intended and reasonably likely to incite violence against protected classes, including minorities and homosexuals.

Meaning ... this one is still hotly contested, but the right to bear arms has not been deemed a fundamental liberty guaranteed to the states via the 14th Amendment equal protection clause.

Meaning ... the government can occupy private property under a theory of "eminent domain," where it is rationally related to the execution of national security, public welfare and military defense. Nonetheless, citizens are entitled to the just value of any damage or destruction that derives from this 'taking.' Of course, this hasn't come up much, since the United States has thus far waged its wars on other countries' soil.

Meaning ... citizens cannot be subjected to random searches by police or government officials simply because someone doesn't look like they 'belong' in a certain neighborhood or because they look 'suspicious.' This has largely arisen in cases involving racial profiling, where police were formally given great discretion based on their 'seasoned experience' to conduct warrantless stops and searches. Now, more specific reasons must be articulated to justify even a limited intrusion and where none are present, the fruits of the illegal search are deemed constitutionally 'tainted' and inadmissible.

Meaning ... a defendant is not required to take the stand in court. Moreover, the prosecution may not even allude to a defendant's failure to take the stand. To prevent the use of trials as 'fact-finding' expeditions by the government, the double jeopardy clause ensures that if the prosecution fails to produce sufficient evidence and the jury returns a verdict of not guilty or acquittal, the defendant walks away freely and cannot be retried, even if damning evidence is later discovered. Note that this does NOT pertain to civil trials.

See Getting Away with Murder, where the double jeopardy clause enabled a killer to walk free; For an example of how military jurisdiction facilitated two separate criminal trials for same crime, see The Green Beret Murder Mystery.

Meaning ... despite what you may have seen on TV, someone may not be detained by police or held in custody for hours on end with only cigarettes, threats and coffee for sustenance. In addition, police must inform potential suspects of their right to counsel (even if a suspect states that they already know their rights). Once a request for a lawyer is articulated, a moratorium on further questioning attaches, and any further admissions based on police questioning will not be held constitutionally admissible, unless specifically voluntary.

See In the Hands of a Child, where a young girl was held and interrogated by police without counsel until she confessed to a crime, without necessarily understanding the nature of the charge. See also Who Is The Lipstick Killer?, where the failure of government to compel favorable witnesses led a jury to convict a man on uncorroborated testimony.

Meaning ... while twenty dollars doesn't go as far as it used to, the right to a trial by jury remains a mainstay of penal justice. In fact, in order to waive this right, a criminal defendant must be interviewed by a Judge with counsel present--called a plea colloquy--and sign a sworn affidavit. Cases that have arisen under this issue have dealt with whether plea terms have been contractually honored and whether a defendant was competence to understand the nature of the right being waived.

See We The Jury, a probing examination of jury selection, profiling and practices, featuring candid interviews with prosecutors and defense attorneys.

Meaning ... even a criminal on death row cannot be caused to suffer unduly. In addition, sentences must be reasonably commensurate with the severity of the crime, which is why judges are given such wide discretion in sentencing.

See Justifiable Homicide, where the murder of a detested, abusive man who was hated by one and all led to a life sentence without parole; See also An Execution in Doubt, where a potentially innocent man was executed; See also Who is the Lipstick Killer, where failure to produce witnesses left an arguably innocent man-the first to finish a college degree from a jail cell-- to serve a life sentence; Lastly see Cruel and Unusual, for glaring cases of brutal police misconduct and excessive sentencing.

Meaning ... some states, like Vermont, Hawaii and California, choose to give greater protections than those recognized under the Constitution. Federal law does not forbid states from granting or expanding individual liberties beyond those constitutionally mandated.

Meaning ... states are permitted to pass laws, for instance zoning laws and health regulations, where the issue is not dealt with and pre-empted by Federal law. Smoking laws are an apt case in point.

Meaning ... the fundamental liberties enumerated in the Bill of Rights are extended to state courts through the due process or inclusionary clause (with the exception of the right to bear arms and the right to a grand jury). The Fourteenth Amendment was passed as a means to ensure that citizens from different states were afforded equal protection and would not face discrimination within their local judicial arena. Historically, this issue has come up to protect against local prejudice against "discrete and insular minorities."

See A Questionable Doctor, where a pariah in the community was charged and convicted and later exculpated for a murder on the basis of circumstantial evidence and local prejudice; See also The Hurricane Carter Story , where a young black athlete was falsely convicted for a triple homicide based on a questionable identification for nearly thirty years until the decision was finally overturned.