Monday, October 26, 2009
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, 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.
12th Amendment - Electoral College
The way the electoral college works is simple; which is not to say that it does so efficiently. Elections are held in each state, where people vote in the state they are registered in for the candidate of their choosing; who is on a list of those who are running for president. In these elections; with one being held in each and every state through out the US of A; the candidate who wins the state in question also gets all the electoral votes the state has. In all this it should be made clear that to get all the electoral votes the candidate need not do anymore then win the popular vote of the state in question. This meaning he or she need not have a 50% majority, as 35% of the vote might suffice or have a margin of victory over his closest rival of literally one vote, which on the lighter side of the argument might have come because he or she had one more son or daughter to vote for him or her. This system as history has already proven on two occasions does lend itself to the possibility that the person who wins the electoral college and by virtue of which becomes president to do so in spite of not necessarily winning the popular vote. This in a way making it that the will of the people was not really respected as the candidate most Americans voted for did not get to occupy the house on Pennsylvania avenue also known as the White House, not because enough people did not vote for him but because they did so in the wrong states.
11th Amendment
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
11th Amendment - Exception
Congress has the power under the Fourteenth Amendment to the U.S. Constitution to abrogate the immunity of the state if it has made that intention unmistakably clear in the language of the statute at issue and other acts, said the court. It acknowledged that the U.S. Supreme Court had held in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003)],
11th Amendment - Problem
The text of the Eleventh Amendment limits the power of federal courts to hear lawsuits against state governments brought by the citizens of another state or the citizens of a foreign country. The Supreme Court has also interpreted the Eleventh Amendment to bar federal courts from hearing lawsuits instituted by citizens of the state being sued and lawsuits initiated by the governments of foreign countries. For example, the state of New York could invoke the Eleventh Amendment to protect itself from being sued in federal court by its own residents, residents of another state, residents of a foreign country, or the government of a foreign country (Unknown author)
10th Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
10th Amendment - The Local
J.C. Watts
Former Congressman (R.-Okla.); Chairman, The J.C. Watts Companies
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Tenth Amendment sets forth one of our most cherished rights, and for good reasons. When states and local communities take the lead on policy, the people are that much closer to the policymakers, and policymakers are that much more accountable to the people. Few Americans have spoken with their president; many have spoken with their mayor.
My experience in Congress has convinced me that empowering state and local government leaders to solve their own problems often leads to better policies. These leaders are closer to those affected by their decisions, and more likely to understand the nuances of their community's particular challenges. Solutions that work well in Boston may be completely inappropriate in Portland. It's hard to keep those distinctions in mind on the Hill.
The greatest virtue of the Tenth Amendment is that it embodies the wisdom of checks and balances. We tend to think of checks and balances in the context of our national executive, legislative, and judicial branches. Yet the tension between federal, state, and local governments is just as important. I value the virtues of the Tenth Amendment, but I have reservations about it as well. Equality of opportunity is an ideal that has become a touchstone of American life, but this amendment has often been at odds with it. There is no more significant example of this than slavery and the consequent legacy of segregation. The Tenth Amendment, often invoked under the banner of "states' rights," was one of the leading pretexts for perpetuating slavery. It isn't fair to equate the Tenth Amendment with slavery — Wisconsin, for example, invoked the amendment to protect abolitionists — but it is fair to say it was the fundamental legal barrier to ending it. Decades after slavery ended, the Supreme Court upheld segregation in Plessy v. Ferguson, one of the most disappointing decisions in our country's history. Louisiana cited the Tenth Amendment in defending its practice of discrimination. To harmonize this with the Fourteenth Amendment's equal protection clause, the Court created the oxymoron of "separate but equal." In truth, there was nothing equal about the separation reinforced by this ruling.
Former Congressman (R.-Okla.); Chairman, The J.C. Watts Companies
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Tenth Amendment sets forth one of our most cherished rights, and for good reasons. When states and local communities take the lead on policy, the people are that much closer to the policymakers, and policymakers are that much more accountable to the people. Few Americans have spoken with their president; many have spoken with their mayor.
My experience in Congress has convinced me that empowering state and local government leaders to solve their own problems often leads to better policies. These leaders are closer to those affected by their decisions, and more likely to understand the nuances of their community's particular challenges. Solutions that work well in Boston may be completely inappropriate in Portland. It's hard to keep those distinctions in mind on the Hill.
The greatest virtue of the Tenth Amendment is that it embodies the wisdom of checks and balances. We tend to think of checks and balances in the context of our national executive, legislative, and judicial branches. Yet the tension between federal, state, and local governments is just as important. I value the virtues of the Tenth Amendment, but I have reservations about it as well. Equality of opportunity is an ideal that has become a touchstone of American life, but this amendment has often been at odds with it. There is no more significant example of this than slavery and the consequent legacy of segregation. The Tenth Amendment, often invoked under the banner of "states' rights," was one of the leading pretexts for perpetuating slavery. It isn't fair to equate the Tenth Amendment with slavery — Wisconsin, for example, invoked the amendment to protect abolitionists — but it is fair to say it was the fundamental legal barrier to ending it. Decades after slavery ended, the Supreme Court upheld segregation in Plessy v. Ferguson, one of the most disappointing decisions in our country's history. Louisiana cited the Tenth Amendment in defending its practice of discrimination. To harmonize this with the Fourteenth Amendment's equal protection clause, the Court created the oxymoron of "separate but equal." In truth, there was nothing equal about the separation reinforced by this ruling.
9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
9th Amendment
The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court 4 until it became the subject of some exegesis by several of the Justices in Griswold v. Connecticut. 5 There a statute prohibiting use of contraceptives was voided as an infringement of the right of marital privacy. Justice Douglas, writing the opinion of the Court, asserted that the ''specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.'' 6 Thus, while privacy is nowhere mentioned, it is one of the values served and protected by the First Amendment, through its protection of associational rights, and by the Third, the Fourth, and the Fifth Amendments as well. The Justice recurred to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment. (Information Found At Findlaw.com)
8th Amendment
8th Amendment - Tried As Adults
By MH
September 08, 2009, 11:25AM
On November 9, the U.S. Supreme Court will consider whether the Eighth Amendment's prohibition against cruel and unusual punishments is violated when a juvenile is sentenced to life imprisonment without the possibility of parole for a crime other than murder.
The issue before the nation's highest court is framed by two cases originating in Florida.
In one, Joe Harris Sullivan received such a sentence when he was 13 years of age upon his conviction for rape.
In the second case, Terrence Jamar Graham received the same sentence at 17 years of age after he had violated his probation in connection with an armed robbery conviction.
In its 2005 landmark decision in Roper vs. Simmons, the court held that executing juveniles violated the Eighth Amendment in that it was inconsistent with "the evolving standards of decency that mark the progress of a maturing society."
To support that conclusion, Justice Anthony M. Kennedy, writing for the majority, noted that 30 states had already abolished the death penalty for juveniles while an additional 20 states utilized it very sparingly.
Kennedy also underscored the fact that the death penalty has traditionally been reserved only for those whose extreme culpability makes them "the most deserving of execution."
Juveniles can never fall within this category, Kennedy reasoned, because of three critical differences between them and adults.
Citing language from an earlier case that had invalidated the death penalty for younger juveniles, Kennedy declared that the immaturity of juveniles in general and their susceptibility to misbehavior means that "their irresponsible conduct is not as morally reprehensible as that of an adult."
Kennedy next stated that juveniles' vulnerability and comparative lack of control over their immediate surroundings entitled them to a greater claim than adults to be forgiven for succumbing to negative influences in their environment.
Finally, he noted that juveniles' ongoing struggle with identity issues militates against concluding that even the most heinous crime committed by them is evidence of an irretrievably depraved character.
Given these diminished capacities of juveniles, neither of the two reasons generally offered for justifying capital punishment - exacting justice and deterrence - are furthered by its imposition on them.
INVALID CRITICISM
While conservatives have criticized the holding in Roper as being driven by reliance on the laws of other countries, this is simply not true.
In fact, although Kennedy noted that the United States was the only country in the world that continued to authorize executing juveniles, he specifically reaffirmed the court's fidelity to the United States Constitution.
International unanimity against the practice only confirmed, he said, the court's conclusion that the death penalty is widely perceived as a disproportionate punishment for juveniles.
The resolution of the two Florida cases will depend on whether the court is ready to extend its reasoning in the Roper decision to those juveniles sentenced to life without the possibility of parole in non-capital cases.
Numerous influential organizations, including the American Bar Association and the American Psychiatric Association, have filed amicus briefs asking the court to do precisely that.
A 2005 study by Human Rights Watch found that 2,225 juveniles were serving sentences of life without the possibility of parole. Last month, the organization asserted that the actual number now exceeds that.
Though sequestered deep inside adult prisons, they constitute the most visible, nauseating proof of the barbaric manner in which the United States continues to treat accused children.
As has been so often the case with this ideologically divided Supreme Court, its ruling in the two Florida cases is going to depend on the vote of Justice Kennedy, the lone moderate on the bench.
On the plus side is Kennedy's robust reliance on the psychological differences between juveniles and adults in voting to strike down the death penalty for juveniles in the Roper case.
These very differences, even more persuasively reaffirmed in the ensuing four years, suggest that he will be sympathetic to the two young petitioners in the Florida cases.
Kennedy might even be persuaded to opine that life imprisonment without parole is unconstitutional for all juveniles, even those convicted of murder.
On the other hand, Kennedy previously voted in favor of the death penalty for older juveniles in a 1989 decision before changing his mind six years later in the Roper case.
So he may not be ready to extend the Roper rationale to instances of juveniles serving sentences of life without parole.
Given Kennedy's evolution on juvenile justice, it's also conceivable that he might vote to outlaw these sentences for younger teen-agers, but uphold them for older ones.
In such a scenario, Sullivan would win while Graham would lose.
Sadly, this country is light years away from recognizing that no child should ever be tried or imprisoned as an adult under any circumstances.
Hence, juvenile rights advocates can only hope that the Supreme Court uses the Florida cases to introduce another sliver of sanity into a legal field ruthlessly plundered by callous legislators, politically ambitious, heartless prosecutors and a continuingly apathetic public.
September 08, 2009, 11:25AM
On November 9, the U.S. Supreme Court will consider whether the Eighth Amendment's prohibition against cruel and unusual punishments is violated when a juvenile is sentenced to life imprisonment without the possibility of parole for a crime other than murder.
The issue before the nation's highest court is framed by two cases originating in Florida.
In one, Joe Harris Sullivan received such a sentence when he was 13 years of age upon his conviction for rape.
In the second case, Terrence Jamar Graham received the same sentence at 17 years of age after he had violated his probation in connection with an armed robbery conviction.
In its 2005 landmark decision in Roper vs. Simmons, the court held that executing juveniles violated the Eighth Amendment in that it was inconsistent with "the evolving standards of decency that mark the progress of a maturing society."
To support that conclusion, Justice Anthony M. Kennedy, writing for the majority, noted that 30 states had already abolished the death penalty for juveniles while an additional 20 states utilized it very sparingly.
Kennedy also underscored the fact that the death penalty has traditionally been reserved only for those whose extreme culpability makes them "the most deserving of execution."
Juveniles can never fall within this category, Kennedy reasoned, because of three critical differences between them and adults.
Citing language from an earlier case that had invalidated the death penalty for younger juveniles, Kennedy declared that the immaturity of juveniles in general and their susceptibility to misbehavior means that "their irresponsible conduct is not as morally reprehensible as that of an adult."
Kennedy next stated that juveniles' vulnerability and comparative lack of control over their immediate surroundings entitled them to a greater claim than adults to be forgiven for succumbing to negative influences in their environment.
Finally, he noted that juveniles' ongoing struggle with identity issues militates against concluding that even the most heinous crime committed by them is evidence of an irretrievably depraved character.
Given these diminished capacities of juveniles, neither of the two reasons generally offered for justifying capital punishment - exacting justice and deterrence - are furthered by its imposition on them.
INVALID CRITICISM
While conservatives have criticized the holding in Roper as being driven by reliance on the laws of other countries, this is simply not true.
In fact, although Kennedy noted that the United States was the only country in the world that continued to authorize executing juveniles, he specifically reaffirmed the court's fidelity to the United States Constitution.
International unanimity against the practice only confirmed, he said, the court's conclusion that the death penalty is widely perceived as a disproportionate punishment for juveniles.
The resolution of the two Florida cases will depend on whether the court is ready to extend its reasoning in the Roper decision to those juveniles sentenced to life without the possibility of parole in non-capital cases.
Numerous influential organizations, including the American Bar Association and the American Psychiatric Association, have filed amicus briefs asking the court to do precisely that.
A 2005 study by Human Rights Watch found that 2,225 juveniles were serving sentences of life without the possibility of parole. Last month, the organization asserted that the actual number now exceeds that.
Though sequestered deep inside adult prisons, they constitute the most visible, nauseating proof of the barbaric manner in which the United States continues to treat accused children.
As has been so often the case with this ideologically divided Supreme Court, its ruling in the two Florida cases is going to depend on the vote of Justice Kennedy, the lone moderate on the bench.
On the plus side is Kennedy's robust reliance on the psychological differences between juveniles and adults in voting to strike down the death penalty for juveniles in the Roper case.
These very differences, even more persuasively reaffirmed in the ensuing four years, suggest that he will be sympathetic to the two young petitioners in the Florida cases.
Kennedy might even be persuaded to opine that life imprisonment without parole is unconstitutional for all juveniles, even those convicted of murder.
On the other hand, Kennedy previously voted in favor of the death penalty for older juveniles in a 1989 decision before changing his mind six years later in the Roper case.
So he may not be ready to extend the Roper rationale to instances of juveniles serving sentences of life without parole.
Given Kennedy's evolution on juvenile justice, it's also conceivable that he might vote to outlaw these sentences for younger teen-agers, but uphold them for older ones.
In such a scenario, Sullivan would win while Graham would lose.
Sadly, this country is light years away from recognizing that no child should ever be tried or imprisoned as an adult under any circumstances.
Hence, juvenile rights advocates can only hope that the Supreme Court uses the Florida cases to introduce another sliver of sanity into a legal field ruthlessly plundered by callous legislators, politically ambitious, heartless prosecutors and a continuingly apathetic public.
7th Amendment
7th Amendment - Copyright
The U.S. Supreme Court held that the Seventh Amendment guarantees the right to a jury trial on statutory damages due under the Copyright Act, 17 U.S.C. 101 et seq. Here, Columbia Pictures Television, Inc., sued the owner of several television stations for copyright infringement when he continued to broadcast Columbia's programs after his licenses had been terminated for nonpayment. The trial court granted plaintiff summary judgment on liability, and plaintiff exercised its option under the Copyright Act's 504(c) to choose statutory damages instead of actual damages. The trial court denied defendant's jury trial request and awarded plaintiff statutory damages. The Ninth Circuit Court of Appeals affirmed, holding that neither the Copyright Act nor the Seventh Amendment requires a jury trial on statutory damages. (informaton found at http://findarticles.com/p/articles/mi_qa3898/is_199806/ai_n8788232/)
6th Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
6th Amendment - Child witness
The Nevada Supreme Court said a defendant has a 6th Amendment right to confront an accuser even if the witness is a minor.
Prosecutors presented the child's statements through surrogates' testimony of a 3-year-old child to protect her from trauma and intimidation.
But the high court said the U.S. Supreme Court's Crawford decision in 2004 expanded the 6th Amendment to permit the defendant to confront any and all witnesses for the prosecution, regardless of their age.
Prosecutors presented the child's statements through surrogates' testimony of a 3-year-old child to protect her from trauma and intimidation.
But the high court said the U.S. Supreme Court's Crawford decision in 2004 expanded the 6th Amendment to permit the defendant to confront any and all witnesses for the prosecution, regardless of their age.
6th Amendment - Speedy Trial
A delay of at least one year in bringing a defendant to trial following arrest will trigger a presumption that the Sixth Amendment has been violated, with the level of judicial scrutiny increasing in direct proportion to the length of delay (United States v. Gutierrez, 891 F. Supp. 97 [E.D.N.Y. 1995]). The government may overcome this presumption by offering a "plausible reason" for the delay (United States v. Thomas, 55 F.3d 144 [4th Cir. 1995]). Courts generally will condone longer delays when the prosecution has requested additional time to prepare for a complex or difficult case. When prosecutors have offered only implausible reasons for delay, courts traditionally have dismissed the indictment, overturned the conviction, or vacated the sentence, depending on the remedy requested by the defendant. (Information from "http://law.jrank.org/pages/10299/Sixth-Amendment-Speedy-Trial.html")
5th Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
5th Amendment- Discussion
This amendment describes or rights and course of action against the judicial and the legislative enforcement. It serves the strong for what is known as the Miranda rights. Specifically the "right to remain silent" which is drawn directly from the passage, "nor shall be compelled in any criminal case to be a witness against himself." The 5th amendment also serves to strengthen the 4th amendment making clear that "[no person] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Mostly this Amendment serves to define actions within and around courts, such as the ability to not testify against oneself in a court of law and not being tried twice for the same offense (also known as double jeopardy). As all of the first ten Amendments do the 5th describes the basic "inalienable" rights of the citizens of the United States.
5th Amendment - Miranda rights
Miranda v. Arizona
In 1963, Ernesto Miranda was arrested in Phoenix, Arizona for stealing $8 from bank worker and charged with armed robbery. He already had a record for armed robbery, and a juvenile record including attempted rape, assault, and burglary. While in police custody he signed a written confession to the robbery, and to kidnapping and raping an 18-year-old woman 11 days before the robbery. After the conviction, his lawyers appealed, on the grounds that Miranda did not know he was protected from self-incrimination.
The case, Miranda v. Arizona, made it all the way to the Supreme Court, where the conviction was overthrown. In a landmark ruling issued in 1966, the court established that the accused have the right to remain silent and that prosecutors may not use statements made by defendants while in police custody unless the police have advised them of their rights, commonly called the Miranda Rights. The case was later re-tried, Miranda was convicted on the basis of other evidence, and served 11 years. He was paroled in 1972, and died in 1976 at the age of 34, after being stabbed in a bar fight. A suspect was arrested but chose to excercise his right to remain silent, and was released.
In 1963, Ernesto Miranda was arrested in Phoenix, Arizona for stealing $8 from bank worker and charged with armed robbery. He already had a record for armed robbery, and a juvenile record including attempted rape, assault, and burglary. While in police custody he signed a written confession to the robbery, and to kidnapping and raping an 18-year-old woman 11 days before the robbery. After the conviction, his lawyers appealed, on the grounds that Miranda did not know he was protected from self-incrimination.
The case, Miranda v. Arizona, made it all the way to the Supreme Court, where the conviction was overthrown. In a landmark ruling issued in 1966, the court established that the accused have the right to remain silent and that prosecutors may not use statements made by defendants while in police custody unless the police have advised them of their rights, commonly called the Miranda Rights. The case was later re-tried, Miranda was convicted on the basis of other evidence, and served 11 years. He was paroled in 1972, and died in 1976 at the age of 34, after being stabbed in a bar fight. A suspect was arrested but chose to excercise his right to remain silent, and was released.
4th 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.
4th Amendment-Discussion
Coupled with the 5th amendment this amendment gives us our basic protections from the enforcers of law. This paragraph should not be taken lightly as it gives as a buffer again from that syndrome described in the 2nd amendment. It gives us a measure of safety and security in the privacy of our own homes.
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