Constitutional Law and Criminal Justice

Cliff Roberson

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000515886
• Edition: 3
• Topic: Sciences sociales
• Subtopic: Criminologie

Illuminating US constitutional concepts in plain language and clarifying nuances in the law, this third edition of Constitutional Law and Criminal Justice simplifies understanding of the United States judicial system for those without advanced legal training. It updates recent decisions by the Supreme Court of the United States and includes a discussion on the current makeup and policy of the Supreme Court.

Learning objectives and summary outlines of recent Supreme Court decisions, combined with practical examples and selected actual court documents, enhance students' understanding of the most important issues regarding the US Constitution and its application in the criminal justice system. The book begins with an overview of the Bill of Rights, followed by an examination of the components of the judiciary. It moves on to a discussion of due process; the First, Fourth, Fifth, Sixth, and Eighth Amendments; and the exclusionary rule. A unique chapter addressing civil liability and the criminal justice professional is especially relevant to students in criminal justice programs.

Concise and informative, this book is designed to be used in undergraduate courses in criminal justice and justice administration programs in universities and community colleges.

CHAPTER 1

US Constitution

DOI: 10.4324/9781003179375-1

LEARNING OBJECTIVES

After studying this chapter, you should be able to:

• Discuss the importance of the US Constitution.
• Understand that the US Constitution is the supreme law of the land.
• Explain the impact of the Constitution on criminal justice.
• Provide an overview of the US judiciary system.
• Discuss that the right to bear arms under the Second Amendment is not an absolute right.
• That the Fourth, Fifth, and Sixth Amendments are key amendments that have significant impact on the criminal justice system.
• Understand the issues involved with the use of the shadow docket.

INTRODUCTION

In 1787, rather than drafting a constitution, the framers at the Constitutional Convention in Philadelphia could have served as the first legislature and established a structure of government by statutes. As noted by Erwin Chemerinsky in his text, The Case Against the Supreme Court (2014), although the United Kingdom does not have a codified, written constitutional text in the first sense, it has a constitutional system. Unlike the US Constitution, a notable feature of the English system is its extreme flexibility. Radical changes can be made by ordinary legislation without the need for a special process of constitutional amendment. Chemerinsky also points out that in the Netherlands, the courts do not have the power to declare any legislative act unconstitutional. Yet the governments in these two countries are not totalitarian.

The key difference between a government established by legislation and one established by a constitution is that a constitutionally established government is far more difficult to change. A legislative created government can be modified by subsequent legislation. Probably the most defining characteristic of the US Constitution is that it is very difficult to alter. After each presidential election in which the winning candidate does not receive the highest number of votes, groups call for the elimination of the electoral college and the direct election of the president and vice president. The elimination of the electoral college, however, would require an amendment to the Constitution, and the amendment process is difficult.

Chemerinsky wonders why a society that is committed to majority rule would be governed by a document that is difficult to change. This is probably because when the framers created our constitutional government, they purposely made it difficult to change. They apparently wanted to limit the government to protect the values they cherished. Accordingly, our Constitution limits the ability of a majority to harm or undermine those values that the framers sought to instill in our government. Those values include regular elections, separation of powers, individual rights, and equality.

Lawrence Friedman (2005) explains the need for a constitution in his text A History of American Law (3rd ed.). He contends that some states started as chartered colonies and had gotten in the habit of living under the umbrella of a charter that guaranteed their liberties. Because of this, many leaders tended to look on a written constitution as a social compact or basic agreement among the citizens and between citizens and state, which set out their mutual rights and duties in a permanent form.

The US Constitution serves as a unifying document and boosts our feeling regarding the legitimacy of government and governmental actions. In addition, the Constitution protects minorities from the dictates of a bare majority. Without the Constitution, a president with a bare majority in both the Senate and the House could completely change our government. But with the Constitution, a change of governmental structure and policies needs a clear majority.

The US government is a federation. By design, the states are the primary guardians of the peaceful conduct of their citizens. Accordingly, most criminal laws are enacted by state actions and if the state actions do not violate the federal Constitution or federal law, a federal issue is not involved.

Most criminal cases are tried in state courts for violations of state criminal laws. The largest counties in the US each year try more criminal cases than are tried in all the federal courts. For example, Los Angeles County, California, and Harris County (Houston), Texas, each prosecuted more criminal cases than are prosecuted in all federal courts. In addition, the criminal jurisdiction of federal courts is limited by the US Constitution.

The Constitution

The US Constitution is the world’s oldest written active constitution. President Franklin D. Roosevelt (1937) during his “Fireside Chat” on March 9, 1937, stated that “Like the Bible, it [U.S. Constitution] ought to be read again and again.” Senator Henry Clay (1850), in a speech to the US Senate on January 29, 1850, stated that “it was made not merely for the generation that then existed, but for posterity—unlimited, undefined, endless, perpetual posterity.” Former Associate Supreme Court Justice Hugo Black reportedly carried a copy of the US Constitution with him virtually all the time (Epstein, Lee and Thomas G. Walker, 2020, pp. 1–2). [A copy of the US Constitution is attached as Appendix A.]

The Constitution, however, is not a perfect document. There are issues with it. Supreme Court Justice Thurgood Marshall contended that it was defective from the start because the phrase “We the People” excluded both black Americans and women when it was adopted (Epstein, Lee, and Thomas G. Walker, 2020, p. 3). Historian Charles Beard (1925) stated that the Constitution was an economic document designed to protect the property interests of its writers.

The Constitution as originally drafted was designed to ensure a strong central government. The addition of the Bill of Rights established certain protections for individual rights and was promised to be added to the Constitution to help encourage the states to ratify it.

Federal Jurisdiction

As noted earlier, the Constitution limits the authority of the federal government. This is an especially important concept when examining criminal justice issues. Unless there is a federal issue involved, the state courts are the final decider. For example, robbery is a state crime unless it involves a federal issue such as a federal constitutional issue, a robbery committed on a military base, or theft of property owned or insured by the federal government.

This raises the question of why almost all criminal homicides end up in federal courts. The easy answer to that is because counsel for defendants frequently invoke federal jurisdiction by alleging violations of the individual rights guaranteed by the US Constitution, such as violations of the First, Fourth, Fifth, Sixth, and/or Eighth Amendments.

In some cases, a single criminal act may be a crime under both state and federal law, in which case both jurisdictions may prosecute the actor. Robbing a state bank that is federally insured constitutes both a federal and a state crime. It is a state crime to rob a bank and a federal crime to steal property insured by the federal government. This issue will be discussed later as to why the double jeopardy protection doesn’t prevent dual prosecution.

SUPREME LAW OF THE LAND

When there is a conflict between federal law and state law, which prevails? The rule that is that federal law prevails. Since federal jurisdiction is limited, any federal jurisdiction must be granted or implied by the Constitution. If federal law and state law do not conflict with each other, both laws are generally valid.

In McCulloch v. Maryland (1819), the US Supreme Court discussed the scope of the US Congress’s legislative power and how it relates to the powers of state legislatures. In its ruling, the Supreme Court ruled that the “Necessary and Proper” Clause of the US Constitution gives the federal government certain implied powers that are not explicitly enumerated in the Constitution and that the federal law is supreme over state law if there is a conflict between the two. For example, consider the case of Missouri v. Holland (1920). In 1918, Congress passed a statute, the Migratory Bird Treaty Act, which implemented a treaty with Great Britain. The treaty and act were designed to protected migratory birds and provided restrictions on the killing of ducks as they migrated to and from Canada. The State of Missouri, however, had a state law that regulated duck hunting within the state. A state statute conflicted with the treaty and the federal act since the state statute allowed the hunting of birds that were protected by the federal act. The State of Missouri challenged the enforcement of the act within its jurisdiction, arguing that the regulation of game was not expressly delegated to the federal government by the US Constitution and therefore was the purview of the states under the Tenth Amendment.

Holland was a US game warden. The Supreme Court upheld the federal Migratory Bird Treaty Act and stated that the power to make the treaty had been expressly delegated to the United States under US Constitution Article II, § 2 and Article VI. The Court noted that the treaty did not contravene any prohibitory words found in the federal Constitution, nor was the subject matter, the regulation of migratory birds, forbidden by some invisible radiation from the general terms of the Tenth Amendment.

The Supreme Court also noted in the case that the US Constitution made the “supreme law of the land” to consist of three things: (1) the Constitution, (2) the laws of the United States that are made in accordance with the Constitution, and (3) all treaties made or that shall be made under the authority of the United States. Accordingly, if any state constitution, law, or local ordinance conflicts with US Constitution validly enacted federal laws, or valid treaties, the state or local provision would be deemed unconstitutional.

WHY A SUPREME COURT?

A concise answer to this question is that the Court is needed to settle legal disputes involving federal questions. A second reason is to protect minority citizens from the majority. While a majority may protect itself through the political processes, it is those in the minority—individuals considered as such because of their political, social, racial, or economic beliefs or status—who need protection from the majority.

An Unwritten Constitution

Akhil Reed Amar (2012) in his text, American’s Unwritten Constitution, contends that there are two constitutions that we are governed by: the formal US Constitution and our unwritten constitution. Amar, a Yale law professor and noted researcher on constitutional issues, points out that our written Constitution does not enumerate all the rules and rights, principles, and procedures that govern the present-day United States. According to Amar, the eight thousand words in our written Constitution only begins to map out the basic ground rules that govern our government. He notes that the First Amendment prevents “Congress” from abridging various freedoms, but it does not expressly protect those freedoms from abridgment by the president or the states. In addition, the written Constitution does not mention the right of privacy that the Supreme Court has held to be a constitutional right. Other rights that exist that are not covered by the written Constitution are those embodied in the unwritten constitution like the Miranda warning, the exclusionary rule, the rule of law, separation of powers, and checks and balances.

Impact on Criminal Justice

Any study on the impact of the US Constitution on the criminal justice system will consist mostly of a study of selected amendments to the Constitution. Generally, the Bill of Rights is studied in separate segments. As noted by Amar (1998), students study the First, Ninth, and Tenth Amendments in an introductory course in constitutional law....