We The People Legal Primer - Prison Book Program

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First Edition Condensed May 2004 the whole number shall be necessary to a choice. But no Section 2. The Congress and the several states shall have electors appointed by a state; and they shall meet in the person constitutionally ineligible to the office of President shall concurrent power to enforce this article by appropriate District and perform such duties as provided by the twelfth be eligible to that of Vice-President of the United States. legislation. article of amendment. Amendment XIII [1865] Section 3. This article shall be inoperative unless it shall have Section 2. The Congress shall have power to enforce this Section 1. Neither slavery nor involuntary servitude, except as been ratified as an amendment to the Constitution by the article by appropriate legislation. a punishment for crime whereof the party shall have been duly legislatures of the several states, as provided in the Amendment XXIV [1964] convicted, shall exist within the United States, or any place Constitution, within seven years from the date of the subject to their jurisdiction. submission hereof to the states by the Congress. Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, Section 2. Congress shall have power to enforce this article by Amendment XIX [1920] for electors for President or Vice President, or for Senator or appropriate legislation. The right of citizens of the United States to vote shall not be Representative in Congress, shall not be denied or abridged Amendment XIV [1868] denied or abridged by the United States or by any state on by the United States or any state by reason of failure to pay account of sex. —— Congress shall have power to enforce any poll tax or other tax. Section 1. All persons born or naturalized in the United States, this article by appropriate legislation. and subject to the jurisdiction thereof, are citizens of the United Section 2. The Congress shall have power to enforce this States and of the state wherein they reside. No state shall Amendment XX [1933] article by appropriate legislation. make or enforce any law which shall abridge the privileges or Section 1. The terms of the President and Vice President shall Amendment XXV [1967] immunities of citizens of the United States; nor shall any state end at noon on the 20th day of January, and the terms of Section 1. In case of the removal of the President from office deprive any person of life, liberty, or property, without due Senators and Representatives at noon on the 3d day of or of his death or resignation, the Vice President shall become process of law; nor deny to any person within its jurisdiction the January, of the years in which such terms would have ended if President. equal protection of the laws. this article had not been ratified; and the terms of their Section 2. Representatives shall be apportioned among the successors shall then begin. Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President several states according to their respective numbers, counting Section 2. The Congress shall assemble at least once in every who shall take office upon confirmation by a majority vote of the whole number of persons in each state, excluding Indians year, and such meeting shall begin at noon on the 3d day of both Houses of Congress. not taxed. But when the right to vote at any election for the January, unless they shall by law appoint a different day. choice of electors for President and Vice President of the Section 3. Whenever the President transmits to the President Section 3. If, at the time fixed for the beginning of the term of United States, Representatives in Congress, the executive and pro tempore of the Senate and the Speaker of the House of the President, the President elect shall have died, the Vice judicial officers of a state, or the members of the legislature Representatives his written declaration that he is unable to President elect shall become President. If a President shall not thereof, is denied to any of the male inhabitants of such state, discharge the powers and duties of his office, and until he have been chosen before the time fixed for the beginning of being twenty-one years of age, and citizens of the United transmits to them a written declaration to the contrary, such his term, or if the President elect shall have failed to qualify, States, or in any way abridged, except for participation in powers and duties shall be discharged by the Vice President then the Vice President elect shall act as President until a rebellion, or other crime, the basis of representation therein as Acting President. President shall have qualified; and the Congress may by law shall be reduced in the proportion which the number of such provide for the case wherein neither a President elect nor a Section 4. Whenever the Vice President and a majority of male citizens shall bear to the whole number of male citizens Vice President elect shall have qualified, declaring who shall either the principal officers of the executive departments or of twenty-one years of age in such state. then act as President, or the manner in which one who is to act such other body as Congress may by law provide, transmit to Section 3. No person shall be a Senator or Representative in shall be selected, and such person shall act accordingly until a the President pro tempore of the Senate and the Speaker of Congress, or elector of President and Vice President, or hold President or Vice President shall have qualified. the House of Representatives their written declaration that the any office, civil or military, under the United States, or under President is unable to discharge the powers and duties of his Section 4. The Congress may by law provide for the case of any state, who, having previously taken an oath, as a member office, the Vice President shall immediately assume the the death of any of the persons from whom the House of of Congress, or as an officer of the United States, or as a powers and duties of the office as Acting President. —— Representatives may choose a President whenever the right member of any state legislature, or as an executive or judicial Thereafter, when the President transmits to the President pro of choice shall have devolved upon them, and for the case of officer of any state, to support the Constitution of the United tempore of the Senate and the Speaker of the House of the death of any of the persons from whom the Senate may States, shall have engaged in insurrection or rebellion against Representatives his written declaration that no inability exists, choose a Vice President whenever the right of choice shall the same, or given aid or comfort to the enemies thereof. But he shall resume the powers and duties of his office unless the have devolved upon them. Congress may by a vote of two-thirds of each House, remove Vice President and a majority of either the principal officers of such disability. Section 5. Sections 1 and 2 shall take effect on the 15th day of the executive department or of such other body as Congress October following the ratification of this article. may by law provide, transmit within four days to the President Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of Section 6. This article shall be inoperative unless it shall have pro tempore of the Senate and the Speaker of the House of pensions and bounties for services in suppressing insurrection been ratified as an amendment to the Constitution by the Representatives their written declaration that the President is or rebellion, shall not be questioned. But neither the United legislatures of three-fourths of the several states within seven unable to discharge the powers and duties of his office. States nor any state shall assume or pay any debt or years from the date of its submission. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the obligation incurred in aid of insurrection or rebellion against the Amendment XXI [1933] Congress, within twenty-one days after receipt of the latter United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held Section 1. The eighteenth article of amendment to the written declaration, or, if Congress is not in session, within illegal and void. Constitution of the United States is hereby repealed. twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the Section 5. The Congress shall have power to enforce, by Section 2. The transportation or importation into any state, President is unable to discharge the powers and duties of his appropriate legislation, the provisions of this article. territory, or possession of the United States for delivery or use office, the Vice President shall continue to discharge the same therein of intoxicating liquors, in violation of the laws thereof, is Amendment XV [1870] as Acting President; otherwise, the President shall resume the hereby prohibited. powers and duties of his office. Section 1. The right of citizens of the United States to vote Section 3. This article shall be inoperative unless it shall have shall not be denied or abridged by the United States or by any Amendment XXVI [1971] been ratified as an amendment to the Constitution by state on account of race, color, or previous condition of conventions in the several states, as provided in the Section 1. The right of citizens of the United States, who are servitude. Constitution, within seven years from the date of the 18 years of age or older, to vote, shall not be denied or Section 2. The Congress shall have power to enforce this submission hereof to the states by the Congress. abridged by the United States or any state on account of age. article by appropriate legislation. Amendment XXII [1951] Section 2. The Congress shall have the power to enforce this Amendment XVI [1913] article by appropriate legislation. Section 1. No person shall be elected to the office of the The Congress shall have power to lay and collect taxes on President more than twice, and no person who has held the Amendment XXVII [1992] incomes, from whatever source derived, without office of President, or acted as President, for more than two No law, varying the compensation for the services of the apportionment among the several states, and without regard to years of a term to which some other person was elected Senators and Representatives, shall take effect, until an any census or enumeration. President shall be elected to the office of the President more election of Representatives shall have intervened. than once. But this article shall not apply to any person holding Amendment XVII [1913] the office of President when this article was proposed by the ––––––––––––––––––––––––––––––––––––––––––––––––– The Senate of the United States shall be composed of two Congress, and shall not prevent any person who may be THE BILL OF RIGHTS FOR CRIMINAL DEFENDANTS Senators from each state, elected by the people thereof, for six holding the office of President, or acting as President, during Bill of Rights, 1791. The United States Bill of Rights provides years; and each Senator shall have one vote. The electors in the term within which this article becomes operative from some of a criminal defendant’s protections against the federal each state shall have the qualifications requisite for electors of holding the office of President or acting as President during the government in a federal criminal case. Protections consist of the most numerous branch of the state legislatures. —— remainder of such term. two types: (1) rights that a defendant can exercise, and (2) When vacancies happen in the representation of any state in Section 2. This article shall be inoperative unless it shall have prohibitions and requirements of the government toward the the Senate, the executive authority of such state shall issue been ratified as an amendment to the Constitution by the defendant. The Due Process clause of the Fourteenth writs of election to fill such vacancies: Provided, that the legislatures of three-fourths of the several states within seven Amendment of the US Constitution applies these protections legislature of any state may empower the executive thereof to years from the date of its submission to the states by the to criminal defendants in cases brought by states. make temporary appointments until the people fill the Congress. Protections by amendment. The US Bill of Rights protects a vacancies by election as the legislature may direct. —— This amendment shall not be so construed as to affect the Amendment XXIII [1961] defendant as outlined as follows. election or term of any Senator chosen before it becomes valid Section 1. The District constituting the seat of government of First Amendment. Provision for: access to the courts. as part of the Constitution. the United States shall appoint in such manner as the Fourth Amendment. Prohibition against: unreasonable Amendment XVIII [1919] Congress may direct: —— A number of electors of search and seizure of persons or things. President and Vice President equal to the whole number of Section 1. After one year from the ratification of this article the Fifth Amendment. Provision for: grand jury indictments for Senators and Representatives in Congress to which the manufacture, sale, or transportation of intoxicating liquors infamous crimes. Prohibitions against: double jeopardy, District would be entitled if it were a state, but in no event more within, the importation thereof into, or the exportation thereof compulsory self-incrimination, and deprivation of life, liberty, or than the least populous state; they shall be in addition to those from the United States and all territory subject to the property without due process of law. appointed by the states, but they shall be considered, for the jurisdiction thereof for beverage purposes is hereby prohibited. purposes of the election of President and Vice President, to be A free primer. For imprisoned people only, – page 4 – who can reproduce it without permission.
First Edition Condensed May 2004 Sixth Amendment. Provision for: adequate notice of ····················································································· violate a specific constitutional clause? This would mean that accusation, assistance of counsel, speedy trial, public trial by ········ a state could require everyone to marry, or to have intercourse jury of peers, compulsory process for obtaining witnesses, and Justifications for Originalism. at least once a month, or it could take away every couple’s confronting adverse witnesses. • Originalism reduces the likelihood that unelected judges will second child and place it in a foster home. ... We find it Eighth Amendment. Prohibition against: excessive bail, seize the reigns of power from elected representatives. reassuring to think that the courts stand between us and excessive fines, and cruel or unusual punishment. legislative tyranny even if a particular form of tyranny was not • Originalism in the long run better preserves the authority of foreseen and expressly forbidden by framers of the State constitution and statute(s). In addition to these federal the Court. Constitution.” protections applying to state cases, the particular state’s • Non-originalism allows too much room for judges to impose constitution or statute(s) may offer even broader protections. ––––––––––––––––––––––––––––––––––––––––––––––––– their own subjective and elitist values. Judges need THE HISTORY OF LAW ––––––––––––––––––––––––––––––––––––––––––––––––– neutral, objective criteria to make legitimate decisions. The AN OVERVIEW OF STATE CONSTITUTIONS understanding of the framers and ratifiers of a constitutional Ur-Nammu’s Code, 2050 BC. The Sumerian King Ur- (Space limitations do not allow the reproduction clause provides those neutral criteria. Nammu founded and ruled the third dynasty of the ancient city of Ur. Ur-Nammu promulgated the oldest code of law yet or the analysis of the 50 state constitutions; thus, • Lochner v. New York (a decision widely considered as a known, consisting of a prologue and seven laws, although of this section provides only an overview of them.) bad non-originalist decision). such poor physical condition that scholars can decipher only Each of the 50 states has enacted its own constitution, and • Leaving it to the people to amend their Constitution when five of its articles. Archaeological evidence shows that an each state constitution contains a bill of rights to protect necessary promotes serious public debate about advanced legal system supported it. This system included: citizens from unnecessary governmental intrusion into government and its limitations. specialized judges, the giving of testimony under oath, the individual liberties. State constitutions may go further than the proper form of judicial decisions, and the ability of the judges to • Originalism better respects the notion of the Constitution US Constitution in the rights they explicitly extend to state order that a guilty party pay damages to a victim. The Code as a binding contract. residents. For example, the US Constitution does not explicitly allowed for the dismissal of corrupt officials, protection for the give citizens the right to use obscene speech and print • If a constitutional amendment passed today, we would poor, and a criminal system with the punishment proportionate obscene literature, but Oregon’s constitution specifically expect a court five years from now to ask what we intended to the crime. Although called “Ur-Nammu’s Code,” scholars protects obscenity as free speech. to adopt. generally agree that his son Shugli wrote it. While a state can give its citizens broader rights than those in • Originalism more often forces legislatures to reconsider Hammurabi’s Code, 1700 BC. The Babylonian king the US Constitution, it cannot narrow the rights set forth in the and possibly repeal or amend their own bad laws, rather Hammurabi came to power in 1750 BC, and he established US Constitution. For example, the US Supreme Court would than to leave it to the courts to get rid of them. the greatness of Babylon, the world’s first metropolis. His strike down a state constitutional provision that banned all Originalist Justices. officers developed a code of laws and had them carved on a firearms as violating the US Constitution’s Second Justice Hugo Black, Justice Antonin Scalia, huge rock column meant for public display. Historians know Amendment’s guarantee of the right to bear arms. Justice Clarence Thomas, and Judge Robert Bork. his laws as the first example of a ruler to publicly proclaim an entire body of law to the people. The expression “an eye for an State constitutions contain provisions that determine the way in Judge Bork on Originalism: “If the Constitution is law, then eye” has come to symbolize the principle behind Hammurabi’s which a state exercises its “police power”— meaning its right to presumably its meaning, like that of all other law, is the code –meaning that the bodily damage of the punishment pass laws that protect public morals, safety, and well-being. meaning the lawmakers were understood to have intended. If could equal but not exceed the bodily damage caused by the For example, a state exercises its police power when it the Constitution is law, then presumably, like all other law, the crime. Although some people may think that this code regulates schools and hospitals and sets licensing meaning the lawmakers intended is as binding upon all judges invented brutal punishments, it actually limited the more requirements for professionals, health standards for as it is upon legislatures and executives. There is no other extreme brutalities previously practiced under older laws. The restaurants and theatres, and vaccination requirements for sense in which the Constitution can be what article VI code contains 282 clauses regulating a vast array of school children. proclaims it to be: ‘Law....’ This means, of course, that a judge, obligations, professions and rights including commerce, And, like the US Constitution, state constitutions also contain no matter on what court he sits, may never create new slavery, marriage, theft and debts. Modern societies view the provisions specifying the procedures for their own amending. constitutional rights or destroy old ones. Any time he does so, punishments as barbaric. The law prescribed the death he violates not only the limits of his own authority but, and for ––––––––––––––––––––––––––––––––––––––––––––––––– penalty for their more serious crimes, such as: perjury in a that reason, also violates the rights of the legislature and the INTERPRETATIONS OF THE CONSTITUTION capital offense case, theft of an object from a temple, breaking people....the philosophy of original understanding is thus a and entering, or kidnapping. The law punished a thief with the Introduction. Five sources have guided the courts in their necessary inference from the structure of government cutting off a finger or a hand, punished a man who kissed a interpretation of the Constitution: apparent on the face of the Constitution.” married woman with the cutting off his lower lip, and punished 1. the text and structure of the Constitution, ····················································································· someone who defamed another with cutting out the person’s 2. the intentions of those who either drafted, voted to ········ tongue. propose, or voted to ratify the provision in question, Justifications for Non-originalism. The Ten Commandments, 1300 BC. According to the Bible, 3. prior precedents (usually judicial), • The framers at the Convention in Philadelphia indicated Moses received a list of ten laws directly from God. Known as that they did not want their specific intentions to control the Ten Commandments and written as part of the Book of 4. the social, political, and economic consequences of interpretations. Moses, they became part of the Bible. Many of the Ten alternative interpretations, and Commandments survive in Judeo-Christian cultures as • No written Constitution can anticipate all the means that 5. natural law. modern forms of “Do not kill,” “Do not steal,” and “Do not lie government might in the future use to oppress people, so about others.” Influence. Interpreters of the Constitution generally agree that judges must sometimes fill in the gaps. the first three of these sources provide appropriate guidance Draco’s Law, 621 BC. Draco, a Greek citizen, wrote the first • The framers had various, and often transient, intentions, for interpretation, but they certainly disagree as to the relative written laws of Athens (in ancient Greece). The code punished and often impossible to determine. Text often contains importance of each when they guide the courts in different many offenses with death; and thus, the English word ambiguities, and judicial precedents often exist which directions. Many interpreters consider the consequences of “draconian” (drah-KOH-nee-an) came from his name and support either side. In such cases, why not produce the alternative interpretations (#4 above) as irrelevant, even when means an unreasonably harsh law. These laws introduced the result that will best promote the public good? the other sources of guidance (#1 through #3) neutralize each idea of the state’s exclusive role in punishing persons accused other. Interpreters only infrequently suggest natural law (#5: • Non-originalism allows judges to head off the crises that of crime, instead of relying on private justice which citizens God’s law, higher law) as an interpretive guide, even though could result from the inflexible interpretation of a provision previously practiced. many of the framers of the Constitution recognized its in the Constitution that no longer serves its original Twelve Tables of Rome, 450 BC. (“Duodecim Tabularum” in appropriateness. purpose. The nation cannot rely upon the very difficult Latin) Experts consider the Twelve Tables of Rome as the amendment process to save us. The term “originalists” refers to persons who favor heavy most important codification of law in history. Twenty-five reliance on originalist sources (#1 and #2). The term “nonoriginalists” refers to persons who favor giving more more enlightened understandings on matters such as the patricians (pah-TRISH-anz) (the nobles) controlled all the • Non-originalism allows the Constitution to evolve to match hundred years ago during the early formation of Rome, the substantial weighting to precedent (#3), consequences (#4), or equal treatment of blacks, women, and other minorities. rights and privileges of the government in Rome. Patrician natural law (#5). In practice, disagreement between • Brown v. Board of Education (a decision widely considered judges kept the law in their collective minds and, thus, away originalists and non-originalists often concerns whether to as a bad originalist decision) from the plebeians (the common people). The plebeians (plihapply heightened judicial scrutiny to certain “fundamental BEE-anz) (or plebes (PLEE-beez)), on the other hand, had the • Originalists lose sight of the forest because they pay too rights” which the text of the Constitution does not explicitly burdens of paying taxes and serving in the military. much attention to trees. The nation ought to focus on the protect. larger purpose—the animating spirit—of the Constitution ... In about 450 BC, the plebes called a strike to protest the unfair Definitions. the protection of liberty. advantages of the patricians. The patricians capitulated and gave the plebes more control over the government and “Textualist” refers to an originalist who gives primary weight to • Nazi Germany (originalist German judges did not exercise allowed them to elect officials to represent them. Roman the text and structure of the constitution. Textualists often the power they might have otherwise had to prevent or citizens elected the Decemvirs (meaning “ten men”) and gave doubt the ability of judges to determine collective “intent.” slow down inhumane Nazi programs). them the unprecedented powers to draft the statutes of the “Intentionalist” refers to an originalist who gives primary weight Non-originalist Justices. Justice Harry Blackmun, Justice early Roman Republic. Three Decemvirs traveled to Greece to the intentions of the Constitution’s framers, members of William Brennan, Justice William O. Douglas, and Justice to learn about life and law there as well as in other Greek proposing bodies, and ratifiers. Richard Posner. communities. “Pragmatist” refers to a “non-originalist” who gives substantial Judge Richard Posner on Non-originalist Gap-filling: “A The Decemvirs then codified the customary Roman laws, weight to judicial precedent or the consequences of alternative Constitution that did not invalidate so offensive, oppressive, including some Greek elements, and put them on public interpretations, so as to sometimes favor a decision probably undemocratic, and sectarian law [as in the display. They invited all of Rome to read the statutes, to considered “wrong” from the originalist view but “right” because Connecticut law banning the use or distribution of personally consider them, to discuss them with friends, and to it promotes stability or in some way promotes the public good. contraceptives] would stand revealed as containing major bring any desired changes to public hearings. Thus, each “Natural law theorist” refers to a non-originalist who believes gaps. Maybe that is the nature of our, or perhaps any, written citizen had a fair say in the laws, which allowed the strongest that higher moral law ought to triumph over inconsistent Constitution; but yet, perhaps the courts are authorized to plug possible consent by every citizen. The Roman government positive law. at least the most glaring gaps. Does anyone really believe, in then inscribed the finished laws onto twelve bronze (or his heart of hearts, that the Constitution should be interpreted wooden) tablets – the “Twelve Tables of Rome” – and put so literally as to authorize every conceivable law that would not them on permanent public display in the Roman Forum (the A free primer. For imprisoned people only, – page 5 – who can reproduce it without permission.
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