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15th Amendment: Right to Vote Not Denied by Race

February 15, 2014 Leave a comment
ABOLITION OF SUFFRAGE QUALIFICATIONS ON BASIS OF RACE

  Adoption and Judicial Enforcement

  Adoption .–The final decision of Congress not to include anything relating to the right to vote in the Fourteenth Amendment, aside from the provisions of Sec. 2, 1 left the issue of African American suffrage solely with the States, and Northern States were generally as loath as Southern to grant the ballot to African Americans, both the newly-freed and those who had never been slaves. 2 But in the second session of the 39th Congress, the right to vote was extended to African Americans by statute in the District of Columbia and the territories, and the seceded States as a condition of readmission had to guarantee African American suffrage. 3 Following the election of President Grant, the ”lame duck” third session of the Fortieth Congress sent the proposed Fifteenth Amendment to the States for ratification. The struggle was intense because Congress was divided into roughly three factions: those who opposed any federal constitutional guarantee of African American suffrage, those who wanted to go beyond a limited guarantee and enact universal male suffrage, including abolition of all educational and property-holding tests, and those who wanted or who were willing to settle for an amendment merely proscribing racial qualifications in deter mining who could vote under any other standards the States wished to have. 4 The later group ultimately prevailed.

  The Judicial View of the Amendment .–In its initial appraisals of this Amendment, the Supreme Court appeared disposed to emphasize only its purely negative aspects. ”The Fifteenth Amendment,” it announced, did ”not confer the right . . . [to vote] upon any one,” but merely ”invested the citizens of the United States with a new constitutional right which is . . . exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.” 5 But in subsequent cases, the Court, conceding ”that this article” has originally been construed as giving ”no affirmative right to the colored man to vote” and as having been ”designed primarily to prevent discrimination against him,” professed to be able ”to see that under some circumstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding States had not removed from their Constitutions the words ‘white man’ as a qualification for voting, this provision did, in effect, confer on him the right to vote, because . . . it annulled the discriminating word white, and this left him in the enjoyment of the same right as white persons. And such would be the effect of any future constitutional provision of a State which would give the right of voting exclusively to white people. . . .” 6  

  Grandfather Clauses .–Until quite recently, the history of the Fifteenth Amendment has been largely a record of belated judicial condemnation of various state efforts to disenfranchise African Americans either overtly through statutory enactment or covertly through inequitable administration of electoral laws and toleration of discriminatory membership practices of political parties. Of several devices which have been voided, one of the first to be held unconstitutional was the ”grandfather clause.” Beginning in 1895, several States enacted temporary laws whereby persons who had been voters, or descendants of those who had been voters, on January 1, 1867, could be registered notwithstanding their inability to meet any literacy requirement. Unable because of the date to avail themselves of the exemption, African Americans were disabled to vote on grounds of illiteracy or through discriminatory administration of literacy tests, while illiterate whites were permited to register without taking any tests. With the achievement of the intended result, most States permitted their laws to lapse, but Oklahoma’s grandfather clause had been enacted as a permanent amendment to the state constitution. A unanimous Court condemned the device as recreating and perpetuating ”the very conditions which the [Fifteenth] Amendment was intended to destroy.” 7  

The Court did not experience any difficulty in voiding a subsequent Oklahoma statute of 1916 which provided that all persons, except those who voted in 1914, who were qualified to vote in 1916 but who failed to register between April 30 and May 11, 1916, with some exceptions for sick and absent persons who were given an additional brief period to register, should be perpetually disenfranchised. The Fifteenth Amendment, Justice Frankfurter declared for the Court, nullified ”sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.” 8 The impermissible effect of the statute, said the Court, was automatically to continue as permanent voters, without their being obliged to register again, all white persons who were on registration lists in 1914 by virtue of the previously invalidated grandfather clause, whereas African Americans, prevented from registering by that clause, had been afforded only a 20-day registration opportunity to avoid permanent disenfranchisement.

  The White Primary .–Indecision was displayed by the Court, however, when it was called upon to deal with the exclusion of African Americans from participation in primary elections. 9 Prior to its becoming convinced that primary contests were in fact elections to which federal constitutional guarantees applied, 10 the Court had relied upon the equal protection clause to strike down the Texas White Primary Law 11 and a subsequent Texas statute which contributed to a like exclusion by limiting voting in primary elections to members of state political parties as determined by the central committees thereof. 12 When exclusion of African Americans was thereafter perpetuated by political parties not acting in obedience to any statutory command, this discrimination was for a time viewed as not constituting state action and therefore as not prohibited by either the Fourteenth or the Fifteenth Amendments. 13 This holding was reversed nine years later when the Court declared that where the selection of candidates for public office is entrusted by statute to political parties, a political party in making its selection at a primary election is a state agency, and hence it may not under the Fifteenth Amendment exclude African Americans from such elections. 14 An effort by South Carolina to escape the effects of this ruling by repealing all statutory provisions regulating primary elections and political organizations conducting them was nullified by a lower federal court with no doctrinal difficulty, 15 but the Supreme Court, although nearly unanimous on the result, was unable to come to a majority agreement with regard to the exclusion of African Americans by the Jaybird Association, a county-wide organization which, independently of state laws and the use of state election machinery or funds, nearly monopolized access to Democratic nomination for local offices. The exclusionary policy was held unconstitutional but there was no opinion of the Court. 16  

  Literacy Tests .–At an early date the Court held that literacy tests which are drafted so as to apply alike to all applicants for the voting franchise would be deemed to be fair on their face and in the absence of proof of discriminatory enforcement could not be said to deny equal protection. 17 But an Alabama constitutional amendment the legislative history of which disclosed that both its object and its intended administration were to disenfranchise African Americans was condemned as violative of the Fifteenth Amendment. 18  

  Racial Gerrymandering .–The Court’s series of decisions interpreting the equal protection clause as requiring the apportionment and districting of state legislatures solely on a population basis 19 had its beginning in Gomillion v. Lightfoot, 20 in which the Court found a Fifteenth Amendment violation in the redrawing of a municipal boundary line into a 28-sided figure which excluded from the city all but four or five of 400 African Americans but no whites, and which thereby continued white domination of municipal elections. Subsequent decisions, particularly concerning the validity of multi-member districting and alleged dilution of minority voting power, were decided under the equal protection clause, 21 and in City of Mobile v. Bolden, 22 in the course of a considerably divided decision with respect to the requirement of discriminatory motivation in Fifteenth Amendment cases, 23 a plurality of the Court sought to restrict the Fifteenth Amendment to cases in which there is official denial or abridgment of the right to register and vote, and to exclude indirect dilution claims. 24 Congressional amendment of Sec. 2 of the Voting Rights Act may obviate the further development of constitutional jurisprudence in this area, however. 25  

Footnotes

[Footnote 1] Supra, pp. 1926-27. Of course, the equal protection clause has been extensively utilized by the Court to protect the right to vote. Supra, pp. 1892-1911.

[Footnote 2] W. Gillette, The Right to Vote: Politics and the Passage of the Fifteenth Amendment 25-28 (1965).

[Footnote 3] Id. at 29-31; ch. 6, 14 Stat. 375 (1866) (District of Columbia); ch. 15, 14 Stat. 379 (1867) (territories); ch. 36, 14 Stat. 391 (1867) (admission of Nebraska to statehood upon condition of guaranteeing against racial qualifications in voting); ch. 153, 14 Stat. 428 (1867) (First Reconstruction Act).

[Footnote 4] Gillette, supra n., at 46-78. The congressional debate is conveniently collected in 1 B. Schwartz, Statutory History of the United States–Civil Rights 372 (1971).

[Footnote 5] United States v. Reese, 92 U.S. 214, 217 -18 (1876); United States v. Cruikshank, 92 U.S. 542, 566 (1876).

[Footnote 6] Ex parte Yarbrough, 110 U.S. 651, 665 (1884); Guinn v. United States 238 U.S. 347, 363 (1915). A state constitutional provision limiting the right of suffrage to whites was automatically nullified by ratification of the Fifteenth Amendment. Neal v. Delaware, 103 U.S. 370 (1881).

[Footnote 7] Guinn v. United States, 238 U.S. 347 (1915).

[Footnote 8] Lane v. Wilson, 307 U.S. 268, 275 (1939).

[Footnote 9] See also supra, p. 120.

[Footnote 10] United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944).

[Footnote 11] Nixon v. Herndon, 273 U.S. 536 (1927).

[Footnote 12] Nixon v. Condon, 286 U.S. 73 (1932).

[Footnote 13] Grovey v. Townsend, 295 U.S. 45 (1935).

[Footnote 14] Smith v. Allwright, 321 U.S. 649 (1944).

[Footnote 15] Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948); see also Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949).

[Footnote 16] Terry v. Adams, 345 U.S. 461 (1953). For an analysis of the opinions, see infra, p. 1945.

[Footnote 17] Williams v. Mississippi, 170 U.S. 213 (1898); cf. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1960).

[Footnote 18] Davis v. Schnell, 81 F. Supp. 872 (M.D. Ala. 1949), aff’d 336 U.S. 933 (1949). On congressional action on literacy tests, see infra, pp. 1946-47.

[Footnote 19] Supra, pp. 1902-11.

[Footnote 20]   364 U.S. 339 (1960). See also Wright v. Rockefeller, 376 U.S. 52 (1964).

[Footnote 21] E.g., Whitcomb v. Chavis, 403 U.S. 124 (1971); White v. Regester, 412 U.S. 755 (1973).

[Footnote 22]   446 U.S. 55 (1980).

[Footnote 23] On the issue of motivation versus impact under the equal protection clause, see supra, pp. 1815-20. On the plurality’s view, see 446 U.S. at 61 -65. Justice White appears clearly to agree that purposeful discrimination is a necessary component of equal protection clause violation, and may have agreed as well that the same requirement applies under the Fifteenth Amendment. Id. at 94-103. Only Justice Marshall unambiguously adhered to the view that discriminatory effect is sufficient. Id. at 125. See also Beer v. United States, 425 U.S. 130, 146 -49 & nn.3-5 (1976) (dissenting).

[Footnote 24] Id. at 65. At least three Justices disagreed with this view and would apply the Fifteenth Amendment to vote dilution claims. Id. at 84 n.3 (Justice Stevens concurring), 102 (Justice White dissenting), 125-35 (Justice Marshall dissenting). The issue was reserved in Rogers v. Lodge, 458 U.S. 613, 619 n.6 (1982).

[Footnote 25] See Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 131, amending 42 U.S.C. Sec. 1973. The Supreme Court interpreted the 1982 amendments to section 2 in Thornburg v. Gingles, 478 U.S. 30 (1986), determining that Congress had effectively overruled the City of Mobile intent standard in returning to a ”totality of the circumstances” results test.

– See more at: http://constitution.findlaw.com/amendment15/annotation01.html#4

ABOLITION OF SUFFRAGE QUALIFICATIONS ON BASIS OF RACE

  Adoption and Judicial Enforcement

  Adoption .–The final decision of Congress not to include anything relating to the right to vote in the Fourteenth Amendment, aside from the provisions of Sec. 2, 1 left the issue of African American suffrage solely with the States, and Northern States were generally as loath as Southern to grant the ballot to African Americans, both the newly-freed and those who had never been slaves. 2 But in the second session of the 39th Congress, the right to vote was extended to African Americans by statute in the District of Columbia and the territories, and the seceded States as a condition of readmission had to guarantee African American suffrage. 3 Following the election of President Grant, the ”lame duck” third session of the Fortieth Congress sent the proposed Fifteenth Amendment to the States for ratification. The struggle was intense because Congress was divided into roughly three factions: those who opposed any federal constitutional guarantee of African American suffrage, those who wanted to go beyond a limited guarantee and enact universal male suffrage, including abolition of all educational and property-holding tests, and those who wanted or who were willing to settle for an amendment merely proscribing racial qualifications in deter mining who could vote under any other standards the States wished to have. 4 The later group ultimately prevailed.

  The Judicial View of the Amendment .–In its initial appraisals of this Amendment, the Supreme Court appeared disposed to emphasize only its purely negative aspects. ”The Fifteenth Amendment,” it announced, did ”not confer the right . . . [to vote] upon any one,” but merely ”invested the citizens of the United States with a new constitutional right which is . . . exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.” 5 But in subsequent cases, the Court, conceding ”that this article” has originally been construed as giving ”no affirmative right to the colored man to vote” and as having been ”designed primarily to prevent discrimination against him,” professed to be able ”to see that under some circumstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding States had not removed from their Constitutions the words ‘white man’ as a qualification for voting, this provision did, in effect, confer on him the right to vote, because . . . it annulled the discriminating word white, and this left him in the enjoyment of the same right as white persons. And such would be the effect of any future constitutional provision of a State which would give the right of voting exclusively to white people. . . .” 6  

  Grandfather Clauses .–Until quite recently, the history of the Fifteenth Amendment has been largely a record of belated judicial condemnation of various state efforts to disenfranchise African Americans either overtly through statutory enactment or covertly through inequitable administration of electoral laws and toleration of discriminatory membership practices of political parties. Of several devices which have been voided, one of the first to be held unconstitutional was the ”grandfather clause.” Beginning in 1895, several States enacted temporary laws whereby persons who had been voters, or descendants of those who had been voters, on January 1, 1867, could be registered notwithstanding their inability to meet any literacy requirement. Unable because of the date to avail themselves of the exemption, African Americans were disabled to vote on grounds of illiteracy or through discriminatory administration of literacy tests, while illiterate whites were permited to register without taking any tests. With the achievement of the intended result, most States permitted their laws to lapse, but Oklahoma’s grandfather clause had been enacted as a permanent amendment to the state constitution. A unanimous Court condemned the device as recreating and perpetuating ”the very conditions which the [Fifteenth] Amendment was intended to destroy.” 7  

The Court did not experience any difficulty in voiding a subsequent Oklahoma statute of 1916 which provided that all persons, except those who voted in 1914, who were qualified to vote in 1916 but who failed to register between April 30 and May 11, 1916, with some exceptions for sick and absent persons who were given an additional brief period to register, should be perpetually disenfranchised. The Fifteenth Amendment, Justice Frankfurter declared for the Court, nullified ”sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.” 8 The impermissible effect of the statute, said the Court, was automatically to continue as permanent voters, without their being obliged to register again, all white persons who were on registration lists in 1914 by virtue of the previously invalidated grandfather clause, whereas African Americans, prevented from registering by that clause, had been afforded only a 20-day registration opportunity to avoid permanent disenfranchisement.

  The White Primary .–Indecision was displayed by the Court, however, when it was called upon to deal with the exclusion of African Americans from participation in primary elections. 9 Prior to its becoming convinced that primary contests were in fact elections to which federal constitutional guarantees applied, 10 the Court had relied upon the equal protection clause to strike down the Texas White Primary Law 11 and a subsequent Texas statute which contributed to a like exclusion by limiting voting in primary elections to members of state political parties as determined by the central committees thereof. 12 When exclusion of African Americans was thereafter perpetuated by political parties not acting in obedience to any statutory command, this discrimination was for a time viewed as not constituting state action and therefore as not prohibited by either the Fourteenth or the Fifteenth Amendments. 13 This holding was reversed nine years later when the Court declared that where the selection of candidates for public office is entrusted by statute to political parties, a political party in making its selection at a primary election is a state agency, and hence it may not under the Fifteenth Amendment exclude African Americans from such elections. 14 An effort by South Carolina to escape the effects of this ruling by repealing all statutory provisions regulating primary elections and political organizations conducting them was nullified by a lower federal court with no doctrinal difficulty, 15 but the Supreme Court, although nearly unanimous on the result, was unable to come to a majority agreement with regard to the exclusion of African Americans by the Jaybird Association, a county-wide organization which, independently of state laws and the use of state election machinery or funds, nearly monopolized access to Democratic nomination for local offices. The exclusionary policy was held unconstitutional but there was no opinion of the Court. 16  

  Literacy Tests .–At an early date the Court held that literacy tests which are drafted so as to apply alike to all applicants for the voting franchise would be deemed to be fair on their face and in the absence of proof of discriminatory enforcement could not be said to deny equal protection. 17 But an Alabama constitutional amendment the legislative history of which disclosed that both its object and its intended administration were to disenfranchise African Americans was condemned as violative of the Fifteenth Amendment. 18  

  Racial Gerrymandering .–The Court’s series of decisions interpreting the equal protection clause as requiring the apportionment and districting of state legislatures solely on a population basis 19 had its beginning in Gomillion v. Lightfoot, 20 in which the Court found a Fifteenth Amendment violation in the redrawing of a municipal boundary line into a 28-sided figure which excluded from the city all but four or five of 400 African Americans but no whites, and which thereby continued white domination of municipal elections. Subsequent decisions, particularly concerning the validity of multi-member districting and alleged dilution of minority voting power, were decided under the equal protection clause, 21 and in City of Mobile v. Bolden, 22 in the course of a considerably divided decision with respect to the requirement of discriminatory motivation in Fifteenth Amendment cases, 23 a plurality of the Court sought to restrict the Fifteenth Amendment to cases in which there is official denial or abridgment of the right to register and vote, and to exclude indirect dilution claims. 24 Congressional amendment of Sec. 2 of the Voting Rights Act may obviate the further development of constitutional jurisprudence in this area, however. 25  

Footnotes

[Footnote 1] Supra, pp. 1926-27. Of course, the equal protection clause has been extensively utilized by the Court to protect the right to vote. Supra, pp. 1892-1911.

[Footnote 2] W. Gillette, The Right to Vote: Politics and the Passage of the Fifteenth Amendment 25-28 (1965).

[Footnote 3] Id. at 29-31; ch. 6, 14 Stat. 375 (1866) (District of Columbia); ch. 15, 14 Stat. 379 (1867) (territories); ch. 36, 14 Stat. 391 (1867) (admission of Nebraska to statehood upon condition of guaranteeing against racial qualifications in voting); ch. 153, 14 Stat. 428 (1867) (First Reconstruction Act).

[Footnote 4] Gillette, supra n., at 46-78. The congressional debate is conveniently collected in 1 B. Schwartz, Statutory History of the United States–Civil Rights 372 (1971).

[Footnote 5] United States v. Reese, 92 U.S. 214, 217 -18 (1876); United States v. Cruikshank, 92 U.S. 542, 566 (1876).

[Footnote 6] Ex parte Yarbrough, 110 U.S. 651, 665 (1884); Guinn v. United States 238 U.S. 347, 363 (1915). A state constitutional provision limiting the right of suffrage to whites was automatically nullified by ratification of the Fifteenth Amendment. Neal v. Delaware, 103 U.S. 370 (1881).

[Footnote 7] Guinn v. United States, 238 U.S. 347 (1915).

[Footnote 8] Lane v. Wilson, 307 U.S. 268, 275 (1939).

[Footnote 9] See also supra, p. 120.

[Footnote 10] United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944).

[Footnote 11] Nixon v. Herndon, 273 U.S. 536 (1927).

[Footnote 12] Nixon v. Condon, 286 U.S. 73 (1932).

[Footnote 13] Grovey v. Townsend, 295 U.S. 45 (1935).

[Footnote 14] Smith v. Allwright, 321 U.S. 649 (1944).

[Footnote 15] Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948); see also Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949).

[Footnote 16] Terry v. Adams, 345 U.S. 461 (1953). For an analysis of the opinions, see infra, p. 1945.

[Footnote 17] Williams v. Mississippi, 170 U.S. 213 (1898); cf. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1960).

[Footnote 18] Davis v. Schnell, 81 F. Supp. 872 (M.D. Ala. 1949), aff’d 336 U.S. 933 (1949). On congressional action on literacy tests, see infra, pp. 1946-47.

[Footnote 19] Supra, pp. 1902-11.

[Footnote 20]   364 U.S. 339 (1960). See also Wright v. Rockefeller, 376 U.S. 52 (1964).

[Footnote 21] E.g., Whitcomb v. Chavis, 403 U.S. 124 (1971); White v. Regester, 412 U.S. 755 (1973).

[Footnote 22]   446 U.S. 55 (1980).

[Footnote 23] On the issue of motivation versus impact under the equal protection clause, see supra, pp. 1815-20. On the plurality’s view, see 446 U.S. at 61 -65. Justice White appears clearly to agree that purposeful discrimination is a necessary component of equal protection clause violation, and may have agreed as well that the same requirement applies under the Fifteenth Amendment. Id. at 94-103. Only Justice Marshall unambiguously adhered to the view that discriminatory effect is sufficient. Id. at 125. See also Beer v. United States, 425 U.S. 130, 146 -49 & nn.3-5 (1976) (dissenting).

[Footnote 24] Id. at 65. At least three Justices disagreed with this view and would apply the Fifteenth Amendment to vote dilution claims. Id. at 84 n.3 (Justice Stevens concurring), 102 (Justice White dissenting), 125-35 (Justice Marshall dissenting). The issue was reserved in Rogers v. Lodge, 458 U.S. 613, 619 n.6 (1982).

[Footnote 25] See Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 131, amending 42 U.S.C. Sec. 1973. The Supreme Court interpreted the 1982 amendments to section 2 in Thornburg v. Gingles, 478 U.S. 30 (1986), determining that Congress had effectively overruled the City of Mobile intent standard in returning to a ”totality of the circumstances” results test.

– See more at: http://constitution.findlaw.com/amendment15/annotation01.html#4

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Judge blocks warrantless searches of Oregon drug database

February 13, 2014 Leave a comment

(Reuters) – A federal judge ruled on Tuesday that U.S. government attempts to gather information from an Oregon state database of prescription drug records violates constitutional protections against unreasonable search and seizure.

 

The American Civil Liberties Union hailed the decision, in a case originally brought by the state of Oregon, as the first time a federal judge has ruled that patients have a reasonable expectation of privacy in their prescription records.

The ACLU had joined the lawsuit on behalf of four patients and a physician challenging U.S. Drug Enforcement Administration efforts to gain access, without prior court approval, to the state’s prescription database.

The Oregon Prescription Drug Monitoring Program database was created by the state legislature in 2009 as a tool for pharmacists and physicians to track prescriptions of certain classes of drugs under the federal Controlled Substances Act.

Some seven million prescription records are uploaded to the system every year, according to court documents.

The state mandated privacy protections for the data, including a requirement that law enforcement could only obtain information from the network with a warrant.

But the DEA claimed federal law allowed the government to access the database using only an “administrative subpoena”, which does not require a finding of probable cause for believing a crime has been committed or a judge’s approval.

U.S. District Judge Ancer Haggerty in Portland ruled that the DEA’s efforts to obtain Oregon’s prescription records without a warrant violate Fourth Amendment safeguards against searches and seizures of items or places in which a person has a reasonable expectation of privacy.

“It is more than reasonable for patients to believe that law enforcement agencies will not have unfettered access to their records,” Haggerty wrote in the summary judgment opinion.

“The prescription information maintained by (Oregon) is intensely private as it connects a person’s identity information with the prescription drugs they use,” Haggerty wrote.

(Reporting by Steve Gorman; Editing by Eric M. Johnson)

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Who gets to decide if someone can “plead the Fifth”?

February 13, 2014 Leave a comment

“The [New Jersey] Select Committee on Investigations voted on motions Monday that could force two recipients of subpoenas to comply with orders to produce documents.  The two recipients – Bridget Kelly and Bill Stepien, former top aides to Gov. Chris Christie – have refused to provide documents, citing their Fifth Amendment rights against self-incrimination.  The committee voted that the documents sought were ‘necessary, proper, and relevant.’ ”

 – Ted Mann, reporter for The Wall Street Journal, in a story February 10 about subpoenas issued by a state legislative committee looking into the closings of traffic lanes on the busy George Washington Bridge leading from New Jersey into New York, supposedly as a kind of political retaliation by the Christie administration.

“Ms. Kelly’s attorney, Michael Critchley, said that his client would contest the committee’s motion.  ‘We’ll let the court make a decision as to who’s right or wrong,’ he said.  Mr. Stepien’s lawyer, Kevin Marino, said he provided the committee ‘a detailed explanation’ of their ‘objections to the subpoena.’ ”

Reactions of lawyers, as quoted in the Ted Mann story.

WE CHECKED THE CONSTITUTION, AND…

The Fifth Amendment is one of the trickier parts of the Constitution’s Bill of Rights.  It says simply that a person may not be “compelled in any criminal case to be a witness against himself.”  But taking each of the most important words out of that, and saying with any confidence what they mean, can be a challenge to the most sophisticated legal mind.

In what forums does a witness have that protection?  What does a witness (or a lawyer for a witness) have to say in order to gain the protection?  What kind of coercion amounts to compulsion?  What kind of evidence would put the individual at risk of prosecution?  How does one know what would be “incriminating” – that is, proof of a crime?  Is the claim limited only to what a witness might say, or something that could be learned from such statements? Does it apply only to what is said verbally, or does it also cover records?  And straddling all of those is the larger question: Who gets to define the answers?

Because the right at issue is constitutionally guaranteed, neither a criminal prosecutor, nor a grand jury investigating potential crime, nor a state legislative committee conducting an investigation of suspected wrongdoing, gets to provide the final answers.

Of course, a prosecutor or an investigating committee can short-circuit a claim of the Fifth Amendment privilege by giving the individual involved a promise of immunity if they agree to testify or to hand over records.  But that means anything that is produced under such a promise  – or leads derived directly from it — cannot be used to prosecute that individual.  (Even so, a promise of immunity can itself be tricky, because it may not assure absolute immunity if some independent evidence of crime were found against that same individual.)

Sometimes, of course, prosecutors and investigators will give someone a promise of immunity, or at least a promise of leniency, if that person is willing to provide vital evidence against someone else.  The Fifth Amendment does not shield one from the cooperation of a friend, neighbor, colleague, or associate; you can only invoke the privilege for yourself.

What is most complicated about “pleading the Fifth” is claiming that protection to head off a demand for records.  It is by no means clear that, if records are not really the personal papers of a specific individual, that the individual can claim the privilege for those papers, even if their revelation would be incriminating.  Again, the privilege is a personal one, not one that goes with one’s position, let us say.

If prosecutors or investigators identify on their own a specific set of papers, or a kind of document, and they can show that it is not personal to the individual who possesses it, the likelihood is that the Fifth Amendment protection would not apply.    That could well be what the New Jersey investigators have done with documents that they think will tell them something about the scandal over the George Washington Bridge traffic lane closures.  They already know about e-mail exchanges, for example, and they perhaps can get by with demanding the disclosure of the rest of the “thread” in such exchanges – especially if the writers of the e-mails composed them voluntarily.

But prosecutors or investigators cannot go on what is called a “fishing expedition,” by requiring an individual who is targeted by their investigation to identify the papers that would respond to what the investigation’s goal is.  The Supreme Court has ruled explicitly that an individual can “claim the Fifth” against a demand that he or she find the responsive papers, identify them, and then hand them over.  That is called, technically, the “act of production” and it is protected from compulsion.

If a subpoenaed individual refuses explicitly to comply with a demand for documents, that can set up a confrontation that is likely to wind up in the courts.  The investigator may seek to have that individual held in contempt, but only if the claim of privilege is outside what the Fifth Amendment protects.  The investigator can refuse to acknowledge that a document would be incriminating (as the New Jersey committee seems to have concluded about some of the papers it had demanded), but cannot actually compel its production unless the claim of privilege is found wanting by a court.

The risk for the investigator, of course, is that a court may be convinced that the demanded papers do, indeed, reveal potential criminal conduct, that they are thus covered by the Fifth Amendment, and that the only way their turnover can be demanded is by a grant of immunity.  That then may be an opening for a negotiation: What does a witness or a prosecutor have to swap in exchange for getting the documents?

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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12th Amendment: Election of President and Vice President

February 12, 2014 Leave a comment

As part of the National Constitution Center’s 27 Amendments (In 27 Days) project, each day we will look at a constitutional amendment. Through partnerships with leading scholars and universities, government agencies, media outlets, and more, the National Constitution Center will profile one amendment each day throughout the month of February.

Aaron Burr (Wikimedia Commons from the New York Historical Society)

Aaron Burr (Wikimedia Commons from the New York Historical Society)

Full Text of the 12th Amendment

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.

But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President—The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Note: Words in italics indicate provisions that were later dropped from the Constitution.

Synopsis:

After the disputed election of 1800, this amendment required separate designation of presidential and vice presidential candidates, each of whom must meet the same qualifications for eligibility as the president. Source:  U.S. Senate

Explanation:

This Amendment, which supersedes clause 3 of Sec. 1 of Article II, was adopted so as to make impossible the situation occurring after the election of 1800 in which Jefferson and Burr received tie votes in the electoral college, thus throwing the selection of a President into the House of Representatives, despite the fact that the electors had intended Jefferson to be President and Burr to be Vice- President.
The difference between the procedure which it defines and that which was laid down originally is in the provision it makes for a separate designation by the electors of their choices for President and Vice-President, respectively. As a consequence of the disputed election of 1870, Congress has enacted a statute providing that if the vote of a State is not certified by the governor under seal, it shall not be counted unless both Houses of Congress concur. Source: Library of Congress

Resources:

1. The Library of Congress Constitution Annotated. Contains a detailed history of the amendments, along with past and recent court cases. Here is a link to the section on the 12th Amendment.

2. Cornell Legal Information Institute. Includes information from Wex, a free legal dictionary and encyclopedia sponsored and hosted by the Legal Information Institute at the Cornell Law School. Wex entries are collaboratively created and edited by legal experts.

Learn more about this project at the Constitution Center’s website at: constitutioncenter.org/experience/programs-initiatives/27-amendments-in-27-days/

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Constitution Check: What does it mean that there is a right to “bear” guns?

February 6, 2014 Leave a comment

Lyle Denniston looks at two Second Amendment cases under consideration at the Supreme Court later this month that would clarify questions posed by the National Rifle Association.

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THE STATEMENT AT ISSUE:

There is “a growing line of court of appeals decisions that, while stopping short of holding that there is no Second Amendment right outside the home, consistently reach the same result by deeming any right to bear arms in public to be, at best, outside the Second Amendment’s ‘core’ and then balancing it away under an anemic form of intermediate scrutiny.”

 – Charles J. Cooper, a Washington, D.C., attorney for the National Rifle Association, in a brief filed at the Supreme Court on Monday, urging the Justices to strike down a law that bans minors from carrying a handgun in public, beyond the home.

WE CHECKED THE CONSTITUTION, AND…

The Second Amendment, at its core, spells out not one, but two, rights when it protects “the right of the people.”  There is a right to “keep” a gun, there is a right, to “bear” a gun.  There is an “and” between the two in the text, so that might well be taken as a significant indication that these are separate rights.

The Supreme Court in 2008 made it clear that the right to “keep” a gun is a personal right, and that it means one has a right to keep a functioning firearm for self-defense within the home.   But it has refused repeatedly since then to take on the question of whether that right exists also outside the home.  If there is a separate right to “bear” a gun (and the Court, in fact, did say in 2008 that the two rights were separate), it has not said what that means.

The National Rifle Association, and some of its members, are now pressing the Supreme Court to answer that question.  They are doing so in two cases testing whether the federal government and the states can restrict the rights of minors to possess a gun outside the home.   The Court is expected to take its first look at those cases later this month, to decide whether it will hear either or both of them.   The federal government, once again, is urging the Court to bypass those cases, as it has done with perhaps a half-dozen others seeking clarification of the Second Amendment’s scope.

In a case from Texas, the NRA’s lawyers have reduced to elementary constitutional logic the question of what a right to “bear” guns means: “The explicit guarantee of the right to ‘bear’ arms would mean nothing,” the NRA’s filing argued, “if it did not protect the right to ‘bear’ arms outside of the home, where the Amendment already guarantees that they may be ‘kept.’   The most fundamental canons of construction forbid any interpretation that would discard this language as meaningless surplus.”

While the NRA and its lawyers are sharply critical of the lower federal courts for failing to explicitly extend the Second Amendment beyond the confines of one’s home, there have been a couple of breakthrough decisions doing just that.  For example, the Seventh U.S. Circuit Court of Appeals based in Chicago did so when it ruled unconstitutional an Illinois law banning the carrying of guns in public, at least when that was for the purpose of self-defense.  That decision had seemed headed for the Supreme Court, but the state legislature chose to eliminate the ban and the appeal prospect vanished.

The lower courts that have declined to enlarge the right have seemed to be convinced that it would be a bold step to do so, and some have suggested that it should be up to the Supreme Court to make the ultimate decision on that point.  The Court might be expected to step in to resolve the issue, if it were convinced that there is actually a true split on it among lower courts.

In the new NRA cases now awaiting the Justices’ attention, separate groups of judges on the Fifth U.S. Circuit Court of Appeals, based in New Orleans, rejected NRA challenges to the federal and state laws restricting minors’ access to guns.   The case involving the Texas law is explicitly about a right to carry a handgun in public, at least for minors.   In that state, they may own a handgun, but without a license to carry it in public – for which they are ineligible because of their age – they may have such a weapon only at home.

One of the reasons why the Justices might find the NRA challenges more appealing cases to review is that, in both, the federal appeals court came very close to creating an entirely new category of individuals ineligible to “bear” arms, merely because of their age.   In both of the decisions at issue, the appeals court said it was “likely” that they were not protected at all under the Second Amendment, or under the separate parts of the Constitution that guarantee all individuals equal legal rights.

If the Justices do agree to return to the ongoing controversy over the reach of the Second Amendment, it is probably too late in the current term to add that to the docket.  If granted review, it would very likely go over to the next term, starting in October.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

 
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Fourth Amendment: Unreasonable Search and Seizure

February 5, 2014 Leave a comment

Fourth Amendment: Unreasonable Search and Seizure

By NCC Staff

As part of the National Constitution Center’s 27 Amendments (In 27 Days) project, each day we will look at a constitutional amendment. Through partnerships with leading scholars and universities, government agencies, media outlets, and more, the National Constitution Center will profile one amendment each day throughout the month of February.

Photo via Bruce Bortin/Flickr

Photo via Bruce Bortin/Flickr

Today, we look at an amendment that is seemingly in the news daily: the Fourth Amendment, which protects people from unreasonable searches and seizures.

Full Text of the Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Synopsis:

Applying to arrests and to searches of persons, homes, and other private places, this amendment requires a warrant, thereby placing a neutral magistrate between the police and the citizen. Source:  U.S. Senate

Explanation:

This amendment protects the people’s right to be secure in our “persons, houses, papers, and effects, against unreasonable searches and seizures” by the government. The Framers of the Constitution were especially concerned about “general warrants” which authorized broad searches of innocent citizens private papers without “particularly describing the place to be searched, and the person or things to be seized.”

Today, an unreasonable search or seizure can involve a clear violation of private property rights, like the police entering someone’s home without a warrant supported by probable cause of wrongdoing, or can be subtler, like a police officer using a thermal imaging device to reveal excessive amounts of heat being generated inside a house.

Resources:

1. The Library of Congress Constitution Annotated. Contains a detailed history of the amendment, along with past and recent court cases.

2. Cornell Legal Information Institute.  Includes  information from Wex, a free legal dictionary and encyclopedia sponsored and hosted by the Legal Information Institute at the Cornell Law School. Wex entries are collaboratively created and edited by legal experts.

3. U.S. Courts website. This resource allows you to understand what Supreme Court decisions clarify reasonable search and seizure, apply the precedents, and see examples.

 
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Common misunderstandings about Miranda warnings

February 5, 2014 Leave a comment

Scott Bomboy is the editor-in-chief of the National Constitution Center.

The Miranda warning comes from one of the biggest legal cases of the 1960s–and thanks to countless arrest scenes in TV and movies, it’s one of the best-known applications of the Fifth Amendment. But what you don’t know about Miranda could be more significant than you think.

 

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Ernesto Miranda arrest photo, 1963

Ernesto Miranda arrest photo, 1963.

 

Last year, there was a big debate about the Miranda warning and Boston terror suspect Dzhokhar Tsarnaev. Federal investigators said after Tsarnaev’s detention that he wouldn’t be read his Miranda rights under something called the “public safety exemption.”

 

Under the exemption, police can interrogate a suspect without advising him or her of Miranda rights if they believe the suspect could have information about an imminent threat to public safety.

 

That exemption allowed investigators to interrogate Tsarnaev while in custody, without informing Tsarnaev of his rights to a lawyer and his right to stay silent.

 

According to an AP report, after 16 hours of questioning, a representative of the United States Attorney’s office read Tsarnaev his Miranda warning, and the suspect stopped talking to investigators.

 

 

 

The “Miranda” in the Miranda warning was Ernesto Miranda. He was arrested in March 1963 in Phoenix and confessed while in police custody to kidnapping and rape charges. His lawyers sought to overturn his conviction after they learned during a cross-examination that Miranda wasn’t told he had the right to a lawyer and had the right to remain silent. (Miranda had signed a confession that acknowledged that he understood his legal rights.)

 

The Supreme Court overturned Miranda’s conviction in 1966 in its ruling for Miranda v. Arizona, which established guidelines for how detained suspects are informed of their constitutional rights.

 

The Miranda warning actually includes elements of the Fifth Amendment (protection against self-incrimination), the Sixth Amendment (a right to counsel) and the 14th Amendment (application of the ruling to all 50 states).

 

However, there are common misunderstandings about what Miranda rights are, and how they can protect someone under criminal investigation.

 

First, there isn’t one official Miranda warning that is read to a suspect by a police officer. Each state determines how their law enforcement officers issue the warning. The Supreme Court requires that person is told about their right to silence, their right to a lawyer (including a public defender), their ability to waive their Miranda rights, and that what they tell investigators under questioning, after their detention, can be used in court.

 

The Miranda warning is only used by law enforcement when a person is in police custody (and usually under arrest) and about to be questioned. Anything you say to an investigator or police officer before you’re taken into custody—and read your Miranda rights—can be used in a court of law, which includes interviews where a person is free to leave the premises and conversations at the scene of an alleged crime.

 

In fact, Ernesto Miranda came into a Phoenix police station voluntarily to answer questions in 1963 and also took place in a police lineup.

 

The police can ask you questions about identification, including your name and address, without a Miranda warning. And they can use any spontaneous expressions made by you as evidence—for example, if you say something without the prompting of police before you’re taken into custody.

 

Of course, you’re still protected by your Miranda rights—after you’re detained—even if you waive them after an arrest. At any time, during an interrogation, you can stop answering questions and ask for a lawyer.

 

In the case of Dzhokhar Tsarnaev, investigators probably felt they had enough evidence to charge him and win a case in court without any of the information Tsarnaev volunteered before he was read his rights.

 

As for Ernesto Miranda, though his original conviction was set aside by the Supreme Court ruling, he was retried and convicted, and was in jail until 1972–then in and out of jail several more times until 1976. After being released in 1976, he was fatally stabbed during a bar fight. His suspected killer was read his Miranda rights and didn’t answer questions from police. There was never a conviction in Miranda’s death.

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