Jul 11, 2019 in Law

Constitutional Law

Chapter: Five.

1.   Why is it necessary to know how to research the law?

 Learning how to research enables one to find answers to legal questions and to impact the important knowledge on the various aspects of the judicial system. It is thus a very important skill for any citizen.

2.   What is the danger of relying on only textbooks to learn the law?

Textbooks on law are limited to a certain scope of study and it is more likely they will refer one to other sources. They are also not updated on current developments in the dynamic field of law.

3.   Discuss what information can be obtained from reading a legal opinion.

Information sources;

1.   Popular level: This level is meant for the lay person. They include law articles published in newspapers, magazines and other such publications that are basically meant for the public at large hence they are the most read. E.g.  Readers digest and Time magazine.

2.   Scholarly level: As the name suggests, they are written for readers who would be interested in more detailed information. This includes tabulated statistics, research papers , and sometimes the theory ,example Justice quarterly.

3.   Professional level: this will be written by a person who has specialized in a particular field hence has good knowledge of the subject matter, examples corrections today, FBI law enforcement bulletin.

v The most authoritative source of information is primary information-these are the

actual cases and the opinions handed down to the citizen.

v In a typical research, both are recommended sources.

4.   Why can legal research become frustrating?

Sometimes when there is poor citation or when the law changes and one has to keep updating themselves.

5. What are the benefits to actually reading and briefing a case that is relevant to your specific legal question?

It helps the reader to know whether the information has been shepardized.

It helps save precious time that could be used elsewhere.

The reader can be able to collect ideas that will help in tackling a case.

5.   Why is the newspaper a legitimate source of legal information?

The fact that a very big percentage of readers read about the law in newspapers makes it the most popular hence a legitimate source.

7. What shortcoming do you think the newspaper might have in providing legal information?

Newspapers have a likelihood of giving wrong information and thus being innacurate.The writer could be poorly educated on matters pertaining to law hence the errors. There is also limited space e.g. a column hence the author will not cover the topic extensively.

8. What problems could arise for any professional not keeping up with the law?

The law keeps changing and new laws are enacted every now and then. Professionals who choose to ignore reading journals and periodicals are left behind and will encounter problems at the case stage.

9. What legal sources are available in your profession or area of interest?

Ø  Primary sources are the raw data that encompass the United States Of America Constitution. the constitutions of the respective states. Congress statutes plus the appellate court decisions.

Ø Secondary sources are the more refined articles that the layman can associate with. They have been sorted, evaluated and analyzed data. Examples include;

   Legal encyclopedias e.g. American Jurisprudence 2d (AM.Jur.2d)

   Treatise or texts which are voluminous and usually expensive books.

   Legal periodicals e.g. Harvard law review.

   Legal dictionaries e.g. Oran's Law Dictionary for Nonlawyers, 2nd ed. (West Publishing Company, 1985).

10. What reasons are there for the general public to maintain a current awarenes of the law?

The Constitution basically provides a basic framework within which all laws, whether federal, state or local, must remain. State laws and congress statutes are all part of the law hence as we are all governed by this constitution, it is important that we keep up to date since no one is above the law.

It assists one to know of their rights and liberties and to be able to tackle a case comfortably.

Chapter six

1. Why was the Fourteenth Amendment necessary?

The issue of slavery had not been addressed in the constitution and bill of rights. Moreso, each state having its own rule of land could not be answerable to the federal government as Americans had had basic freedom under it. The Fourteenth Amendment was thus passed to address the two issues thus ensuring basic rights to all citizens.

2. Why has the entire Bill of Rights not been embraced by the Fourteenth Amendment?

There were only a few sections that needed to to be amended to be able to cater for all states.

3. Were the framers of the Constitution racist?

 Yes. President Abraham Lincoln had been elected on a promise to abolish slavery in the states, but he conceded that under the Constitution slavery was legal in the states where it had been established. More so, Supreme Court had ruled in Dred Scott v. Sand ford (1856) that even free

Black people (those who were not slaves) could not be citizens of the United States and that they "had no rights which a white man was bound to respect."

4. Why are people prejudiced? Do you recognize your own prejudices?

America is I democracy and so prejudice is common as citizens have a right to think what they want. The thoughts could translate imtobehaviours and problems then arise. Since it is an attitude, it will once in a while occur on basis of color. I do especially when it is uncalled for and completely unnecessary.

5.   Do you think quota laws improve things or worsen them? For whom?

Quota laws only worsen thins by segregating people according to color thus increasing racial prejudice. It is especially worse for the minority in that particular region hence it varies.

 6.   Is "separate but equal" possible?

This is completely illogical and the Jim Crow Laws were the list to say, racist. It was a bad show to the young black students as they felt discriminated.

7.   Can it be argued that government has "gone too far" by requiring thatpeople be treated equally? Can you think of instances in which different people might not be equally able to do a job?

No. We are all human first, and then the issue of color, religion, sex, comes after hence the government is on the right track.

1964, Omnibus Civil Rights Law banned discrimination in privately owned businesses when employing. 1972 Equal Employment Opportunity Act prohibited discrimination based on race, sex, religion, color or national origin in employment of any kind, private or public, state or federal, local.

All people can do the same job quite well under same conditions.

8.   What is your definition of the American Dream? Do you feel it is within your reach? Why or why not?

The American Dream refers to the belief that through hard work any person can have success  and ample material possessions. It is within my reach because the job market is doing good and demand is high. Working conditions are also favorable to achieve the dream.

9.   Can all people's dreams be possible?

Naturally, NO. Everyone has great ambitions but they never come to pass for all.

10. Can law shape attitude?

Law is limited to setting down the rules and punishing wrongdoers hence it can for example not set a law against for example people with a bad attitude towards a certain leader. In such cases people have their right to free thought and thus the law cannot change attitude.

 Chapter 7

1.   Discuss whether you personally believe that the First Amendment is the most important amendment.

It is the most important as it touches on the direct issue of the infringement of the right to opinion. Being allowed to speak out, specifically against the government, has remained a cornerstone the freedom Americans enjoy. This Amendment bars Congress from passing any laws that restrict freedom of speech, freedom of religion, freedom of the press or the right to assemble peaceably and to request that the government responds to citizen’s complaints. It is thus fundamental for this democratic nation.

2.   On a scale of one to ten, with one being "not important" and ten being "very important," how important do you think free speech is? Why?

NINE. America is a democracy and thus the liberty to speak or express opinions openly is an important aspect of this form of government. The people have the right to control the country and this can be done by them airing out their concerns in form of speech.

3.   Speaking from a historical perspective, why do you think the framers of the Constitution placed so much importance on the First Amendment?

A need arose to satisfy the needs of the people as they felt oppressed in their own country. The Free Speech Movement of student protestors in the 1960s and 1970s highlighted the importance of such freedoms e.g. the riot at the University of California caused by banning of political activity on campus. It became a catalyst for years of political unrest in most colleges and universities.

4.   Why should the government tolerate people speaking against or criticizing it?

   In a democracy, the people are the government hence they are allowed to contribute to or criticize issues on governance.

   There are repercussions such as the 1960s and 1970s university riots of citizens feel oppressed.

5.   Do you believe an amendment banning burning of the American flag should be passed? Why or why not?

Yes. The 1984 demonstration dubbed "The Republic War Chest Tour", Gregory Johnson and many demonstrators marched through the streets passing the message on the consequences of nuclear war. He was arrested for violating Texas law.The ensuing case was an emotional battle that saw a law that came to fail being passed. The Supreme Court declared the statute unconstitutional as illegal restriction on symbolic expression. I agree on the grounds that all proud Americans have "a mystical reverence" for the flag as justice Rehnquist wrote.

6.         Imagine that you are an attorney who has been asked to defend nude dancing as an act of expression that should be allowed in a small town bar. What would you say to represent your client's interests? Include an explanation of how nude dancing could ever be considered "speech."

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I would use the case in 1991 where the Supreme Court took up the question of nude dancing as a form of symbolic speech. In this case, nude dancers in the Kity Cat Lounge in Indiana were arrested for violating Indiana states public indecency law. A federal appeals court in Chicago had ruled the dancing was inherently expressive, communicating an emotional message of erotic and sensuality and that the ban violated the First Amendment. Chief Justice Rehnquist for the majority made it clear that, even considering the public indecency laws, nude dancing enjoyed some marginal First Amendment protection. This would help me build on a good defense on grounds that it was a violation to restrict nude dancing in the town.

7.   Discuss whether you think Nazi Germany could have gone as far as it did if there was a similar First Amendment present in Germany.

Their hands would be tied and their oppressive era trampled due to the uprising that would result from the Amendment. Their excessive use of force and torture especially on activists and putting people in concentration camps would have been a big violation.

8.         Should all schools, public and parochial, receive equal support from the government?

All citizen deserve equal government support regardless of their religion.

9.         Has government gone too far in prohibiting school prayer, prohibiting nativity scenes at public schools and the like? How do you feel about not permitting Christmas trees in public schools or prohibiting Christmas displays in government buildings or parks? If you were the principal of a public elementary school, on what basis would you decide whether to allow Christmas terminologies, displays and programs?

The government has done what is required of it by law by allowing freedom of expression and religious affiliation by prohibiting nativity scenes and prayer. Public schools, government offices and public parks are open to all citizens hence Christmas displays are a bot biased on opinion hence I support the move. I would allow on basis of the majority of students and ensure that it is thoroughly explained to all students the importance of observing such activities and that it is not mandatory.

 10. Discuss whether you think the United States government is hypocritical when, on the one hand, freedom of religion is guaranteed, but, on the other hand, Christianity is so obviously stated in the words of the Pledge of Allegiance, the fact that there is a clergyman assigned to the Congress and the like.

I believe, having full knowledge of the First amendment, the government is highly hypocritical.

It is quite clear that the rights of Muslims, Hindus, Jews and other religions have been violated. The fact that a clergyman is assigned to congress also violates the right to equal treatment regardless of religious affiliations.

 Chapter eight

1.   Why do you think gun control is such a volatile issue?

This is because there are many questions that arise from the statement of the amendment bearing in mind that guns endanger the lives of citizens to some extent.

2.   Do you think the government should control the possession of guns? Why or why not?

Yes for the obvious reason that since these are killer weapons, some people could use them for the wrong reasons. According to Zawitz (1995, p. 1), in the year 1993 approximately 582,000 murders, robberies and assaults were committed with firearms. License issuing should be regulated e.g. by doing background checks on potential buyers. The Brady Bill requires a waiting period of five days or a prior background check so that one can own a license to carry a handgun.

3.   Should the government restrict certain types of firearms? Why or why not?

Yes, it is necessary that certain lethal firearms that could also be sophisticated be unavailable to the public.In 1986 Congress banned the purchase and sale of all fully automatic weapons. Consequently, privately owned automatic weapons bought before that year were tobe registered, the owners however retained the weapons.

4.   Does the Brady Bill serve a legitimate function? Why or why not?

The law serves a pivotal role and has gone a long way in reducing weapon related crimes in society. It clearly states that one has to either go through a background check that determines whether they are fit to acquire the handgun. In some cases awaiting period set at five working days has been set. This is enough time for the seller to obtain relevant information from state agencies

5.   Considering the history behind the drafting of the Second Amendment, canany original interpretations reasonably be used today? If so, how?

Yes, the protection of territories can be applied to help curb crime in regions where crime is rampant.

 6.   In Great Britain police officers do not carry firearms because, among other reasons firearms are generally not a threat from the public. Discuss whether you think this could ever occur in the United States.

Bearing in mind the number of gun related assaults per a week in the United States Of America, it would be almost impossible to have unarmed officers patrolling. It would however be possible in particular relatively regions but this would bring in the question of fairness to all.

7.   Discuss whether you think gun control is crime control.

There is thin line between gun control and crime control. Careful and considerate control is the backbone of a safe society. Allowing people who have gone through the vetting process to possess guns reduces crime in their respective neighborhoods while people who have a history of crime should not handle handguns.

8.   Do you think the so-called "cooling off" period for gun permits is reasonable?

It comes out as a reasonable period for one to be assessed in behavioral aspect to determine whether they are capable of handling the weapon and use it appropriately.

9.   Does it make sense to regulate handguns and not rifles and shotguns in a similar manner? No. Shotguns are especially strong and can easily kill or cause fatal injuries. Legislation should be set to monitor the use of these lethal weapons.

10. Rewrite the Second Amendment as though you were asked to in order to address today's concerns.

The security of the state and its citizens being of paramount importance, a well regulated arms issuing system shall ensure that on application, all those deemed fit by the state will acquire a firearm for safety purposes and follow the regulations given.

 Chapter 9

1. Explain why the Fourth Amendment applies to the federal government

and also to state government.

 The United States Constitution was originally drafted at a time when the Fourth

Amendment only applied to federal government; however it is equally applied to

state government by the Fourteenth Amendment, it is correct to say that any government agent (state, federal, county or local) is regulated by the Fourth Amendment.

2. Explain the meaning of search and seizure.

After a search warrant has been obtained based on a probable cause, the police officers have acquired permission to check thoroughly within the confines of the house for evidence. Seizure means that the item/evidence which they were looking for has been found and they have a right to carry it to the station.

3. What is a stop? How does it differ from an arrest?

Stop-The police officer here briefly halts the suspect before a crime happens due to a sixth sense suspicion that the person is about to commit a crime.

Arrest-Here, with evidence clear, the police officer handcuffs the person for further questioning at the police station.

4. What is a frisk? How does it differ from a search?

To frisk is when a police officer is suspicious after reasonable enquiry and suspects that the suspect may cause harm. He conducts a limited search of the person's outer clothing to protect themselves and the people around, note that in this case he is not looking for evidence. It defers from a search in that it is only meant to check for anything that might cause immediate harm while a search could help unravel concealed evidence.

5. Given one incident, at what point would a "stop and frisk" develop into a "search and seizure"?

A sample scenario is when a policeman detects funny behavior in a man he has just pulled over. The officer develops an interest and thus orders him to step out of the car slowly. He notices him the tension in his eyes and thus performs a light frisk which unveils two small plastic bags with a white powder .He asks him to open the trunk and it turns out he has more in the back. The police officer thus cuffs him and confiscates the bags as evidence to be tested and later used in court.

 6. What restrictions does the Fourth Amendment put on private security guards working at a department store?

Private security guards, such as store detectives are not controlled by the Fourth Amendment because they are not government agents while the Constitution was established to regulate the power of government and its agents.

Private security guards act on the authority of their employer and can thus stop, frisk even seize the person at will. They are however restricted not to break the code and do unnecessary stops and frisks

7. In what ways can government agents be discouraged from violating the Fourth Amendment?

   Constantly standing for your rights when approached by an officer who seems to suspect you while its quite clear he could be just looking to make a case.

   Reporting unlawful searches to relevant agencies

   Lobbying for police reforms to flash out the dirty officers thus act as a warning to the rest.

 8. Is it fair that a case be thrown out of court because the one piece of evidence that would surely prove the defendant was guilty was not admitted just because of a police error in obtaining it?

It is not fair logically and the prosecution in this case should find other ways of tackling the case. However, police should learn from such and do a thorough job to uphold justice.

 Chapter 10

1.   What are the disadvantages of a consent search?

   Since it must be voluntary, it does not guarantee officers entry even though concrete evidence could be held therein.

   The search can only be limited to a region specified by the person granting the permission.

   The fact that the person may revoke the permission anytime means that it could hinder investigations.

   It is only usually limited to during the day.

 

   In requesting for permission to search, it must not be stated in a threatening way or by use of force e.g. In Weeds v. United States (1921) police confronted the defendant with guns and the court ruled it was unlawful consent.

2.   Discuss the limitations of a frisk.

   Only a limited pat-down of the detainee’s outer clothing entirely for the safety of the arresting officer is lawful.

   It could inconvenience an innocent citizen.

   There is a high risk of the officer getting injured in the case of a violent suspect.

   It is only limited to looking for a weapon as a precautionary measure for the officer and the people around.

 

3. What or who determines when a search is reasonable?

Judge/magistrate; The detectives handling the case can after good reasoning and/or with information from other  forward the request to a judge/magistrate who after overseeing them take an oath agrees that its reasonable.

 3.   Discuss examples of what might be considered exigent circumstances.

These are circumstances which call for rapid response regardless of the law and they include;

  • Danger of physical harm to the officer or others in the case of explosives in a car e.g. the case of United States v. Johnson (1972) the court ruled a warrantless search of a suitcase  was necessary because there was probable cause to believe it contained a sawed-off shotgun.
  • Danger that the suspect could destroy the evidence in order to get away.
  • Driving while under the influence of a drug i.e. intoxicated.
  • Situations suspect is on the run i.e. Hot-pursuit
  • Individuals who require to be rescued e.g. unconscious individuals.

5. Should searches of motor vehicles differ from searches of homes? Why or why not?

`They should consider the big difference in the mobility of the two. It would be illogical for an officer to keep a motorist waiting at a check point as he gets a warrant of arrest as is the case in home searches.

 6. How would you define the term reasonable as it relates to searches?

It is a case which a rational person would consider to be sensible

and fair by  the current social standards.

7. Under what circumstances would the search of a person be considered reasonable?

  • In the event that by just looking, an officer can see an unconcealed illegal object.
  • The suspect issues threats
  • In the case of driving under the influence.
  • When there is prior information they could be carrying illegal objects.

8. When might a person not have a reasonable expectation of privacy?

In the event that an arrest warrant ahs been issued.

If they are arrested while in possession of contraband.

9. When are general searches constitutional?

This is when failure to perform the search could risk the lives of the public. It encompasses cases where explosives are held in bags, when its determined that the suspect plans to tamper with evidence, in the case of a suspect on the run and when its to save the life of an unconscious individual.

10. Discuss whether Internet data is protected by the Fourth Amendment.

All websites have their privacy laws and any account is password protected. However, agents can acquire a warrant to tap into ones account if they prove beyond reasonable doubt that information therein is important for an ongoing investigation. Fortunately this rarely happens and is only limited to national security issues.

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