Constitutional law: Constitutional criminal procedure (Part 2)

In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand, and a constitutionally-protected interest cannot tolerate permissible activity to be chilled within the range of the vagueness (either because the statute is a penal statute with criminal or quasi-criminal civil penalties, or because the interest invaded by the vague law is a strict scrutiny constitutional right). There are several reasons a statute may be considered vague; in general, a statute might be void for vagueness when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. For example, criminal laws which do not state explicitly and definitely what conduct is punishable are void for vagueness. A statute is also void for vagueness if a legislature's delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions. Related to the "void for vagueness" concept is the "unconstitutional vagueness" concept. A law can be "void for vagueness" if it imposes on First Amendment freedom of speech, assembly, or religion. The "void for vagueness" doctrine applies only to criminal or penal laws (or quasi-criminal laws, for example laws that carry civil penalties), and laws that potentially limit "strict scrutiny" constitutional rights. The doctrine does not apply to private law (that is, laws that govern rights and obligations as between private parties), only to laws that govern rights and obligations vis-a-vis the government. The doctrine also requires that to qualify as constitutional, a law must: State explicitly what it mandates, and what is enforceable. Define potentially vague terms. Roots and purpose. In the case of vagueness, a statute might be considered void on constitutional grounds. Specifically, roots of the vagueness doctrine extend into the two due process clauses, in the Fifth and Fourteenth Amendments to the United States Constitution. The courts have generally determined that vague laws deprive citizens of their rights without fair process, thus violating due process. The following pronouncement of the void for vagueness doctrine was made by Justice Sutherland in Connally v General Construction Company (1926): he terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. The void for vagueness doctrine is a constitutional rule. This rule requires that laws are so written that they explicitly and definitely state what conduct is punishable. The vagueness doctrine thus serves two purposes. First: All persons receive a fair notice of what is punishable and what is not. Second: The vagueness doctrine helps prevent arbitrary enforcement of the laws and arbitrary prosecutions. There is however no limit to the conduct that can be criminalized, when the legislature does not set minimum guidelines to govern law enforcement.

Religious test. In several British North American colonies, before and after the 1776 Declaration of Independence, Jews, Quakers, Catholics, and/or Atheists were excluded from the franchise and/or from running for elections. The Delaware Constitution of 1776 stated that "Every person who shall be chosen a member of either house, or appointed to any office or place of trust, before taking his seat, or entering upon the execution of his office, shall ... also make and subscribe the following declaration, to wit: I, A B. do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.". This was repealed by Article I, Section II. of the 1792 Constitution: "No religious test shall be required as a qualification to any office, or public trust, under this State". The 1778 Constitution of the State of South Carolina stated, "No person shall be eligible to sit in the house of representatives unless he be of the Protestant religion", the 1777 Constitution of the State of Georgia (article 6) that "The representatives shall be chosen out of the residents in each county ... and they shall be of the Protestant religion". With the growth in the number of Baptists in Virginia before the Revolution, who challenged the established Anglican Church, the issues of religious freedom became important to rising leaders such as James Madison. As a young lawyer, he defended Baptist preachers who were not licensed by (and were opposed by) the established state Anglican Church. He carried developing ideas about religious freedom to be incorporated into the constitutional convention of the United States. In 1787, Article One of the United States Constitution stated that "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature". More significantly, Article Six disavowed the religious test requirements of several states, saying: "o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." But, in Maryland, Jewish Americans were excluded from State office until the law requiring candidates to affirm a belief in an afterlife was repealed in 1828. African Americans and poor whites. At the time of ratification of the Constitution in the late 18th century, most states had property qualifications which restricted the franchise; the exact amount varied by state, but by some estimates, more than half of white men were disenfranchised. Several states granted suffrage to free men of color after the Revolution, including North Carolina. This fact was noted by Justice Benjamin Robbins Curtis' dissent in Dred Scott v Sandford (1857), as he emphasized that blacks had been considered citizens at the time the Constitution was ratified: Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.

Voting rights in the United States, specifically the enfranchisement and disenfranchisement of different groups, has been a moral and political issue throughout United States history. Eligibility to vote in the United States is governed by the United States Constitution and by federal and state laws. Several constitutional amendments (the Fifteenth, Nineteenth, and Twenty-sixth specifically) require that voting rights of U.S. citizens cannot be abridged on account of race, color, previous condition of servitude, sex, or age (18 and older); the constitution as originally written did not establish any such rights during 1787 thru 1870, except that if a state permitted a person to vote for the "most numerous branch" of its state legislature, it was required to permit that person to vote in elections for members of the United States House of Representatives. In the absence of a specific federal law or constitutional provision, each state is given considerable discretion to establish qualifications for suffrage and candidacy within its own respective jurisdiction; in addition, states and lower level jurisdictions establish election systems, such as at-large or single member district elections for county councils or school boards. Beyond qualifications for suffrage, rules and regulations concerning voting (such as the poll tax) have been contested since the advent of Jim Crow laws and related provisions that indirectly disenfranchised racial minorities. A historic turning point was the 1964 Supreme Court case Reynolds v Sims that ruled both houses of all state legislatures had to be based on electoral districts that were approximately equal in population size, under the "one man, one vote" principle. The Warren Court's decisions on two previous landmark cases—Baker v Carr (1962) and Wesberry v Sanders (1964)—also played a fundamental role in establishing the nationwide "one man, one vote" electoral system. Since the Voting Rights Act of 1965, the Twenty-fourth Amendment, and related laws, voting rights have been legally considered an issue related to election systems. In 1972, the Burger Court ruled that state legislatures had to redistrict every ten years based on census results; at that point, many had not redistricted for decades, often leading to a rural bias. In cases of county or municipal elections, at-large voting has been repeatedly challenged when found to dilute the voting power of significant minorities in violation of the Voting Rights Act. In the early 20th century, numerous cities established small commission forms of government in the belief that "better government" could result from the suppression of ward politics. Commissioners were elected by the majority of voters, excluding candidates who could not afford large campaigns or who appealed to a minority. Generally the solution to such violations has been to adopt single-member districts (SMDs), but alternative election systems, such as limited voting or cumulative voting, have also been used since the late 20th century to correct for dilution of voting power and enable minorities to elect candidates of their choice. The District of Columbia and five major territories of the United States have one non-voting member each (in the United States House of Representatives) and no representation in the United States Senate. People in the U.S. territories cannot vote for president of the United States. People in the District of Columbia can vote for the president because of the Twenty-third Amendment.

Brown v Davenport, (2022), was a case decided by the United States Supreme Court. The case concerned whether habeas relief may be granted if the Brecht v Abrahamson test alone is satisfied, or if the application of Chapman v California by the state courts was unreasonable because of AEDPA. The court held that federal courts can not grant habeas relief when state courts have already ruled on a prisoner's claim, unless the situation satisfies the test laid out in Brecht v Abrahamson, and the test laid out in AEDPA. Background In 2008, Ervine Davenport was convicted of first-degree murder. His conviction was challenged because during his trial he had been placed in shackles. His wrists, waist, and ankles were all restrained, but there was a curtain to prevent the jury from seeing the shackles. The state said that although the shackles were unconstitutional, they did not affect the jury's verdict. Michigan's Court of Appeals agreed with the state. The Michigan Supreme Court disagreed, however, after several jurors testified that they had seen the shackles or heard comments about them, and then sent the case back to the lower courts. The lower court again determined that the shackles did not affect the verdict, and the appellate court agreed with the state once again, and the Michigan Supreme Court denied an appeal. Davenport then challenged his conviction in the federal courts. The district court refused to hear the case. He then petitioned the U.S. Court of Appeals for the 6th Circuit, which agreed to hear the case. This appeals court cited the Deck v Missouri decision, and quoted from Holbrook v Flynn: "shackling is inherently prejudicial". The court found that the state had not met the burden of proof necessary to show that the jury was not influenced by the shackling, and provided habeas relief. The state attempted to have the decision stayed, but the court declined. … United States v Vaello Madero, (2022), was a United States Supreme Court case related to the constitutionality of the exclusion of United States citizens residing in Puerto Rico from the Supplemental Security Income program. In an 8 to 1 decision, the Court ruled that as Congress had been granted broad oversight of United States territories by Article Four of the United States Constitution, the exclusion of the territories by Congress from programs like Supplemental Security Income did not violate the Due Process Clause of the Fifth Amendment. Background. The Supplemental Security Income (SSI) program is a benefit for older or impaired citizens that are unable to take care of themselves. As established by Congress, the benefits are available to all citizens of the 50 states, the District of Columbia, and the Northern Mariana Islands, but does not cover residents of the other United States territories, including Puerto Rico. Jose Luis Vaello Madero was a recipient of SSI benefits while living in New York, and then moved to Puetro Rico in 2013. He continued to receive SSI benefits, but eventually the government discovered his new residence, terminated the SSI benefits and sought to recover approximately $28,000 he had improperly received while in Puetro Rico. A federal district judge and the United States Court of Appeals for the First Circuit found that this exclusion violated the equal protection principle of the Fifth Amendment to the United States Constitution's due process clause, which was first established in Bolling v Sharpe.

Ramirez v. Collier (2022), is a United States Supreme Court case related to the First Amendment to the United States Constitution and the Religious Land Use and Institutionalized Persons Act. Background. On July 19, 2004, 20-year-old John Henry Ramirez (born June 29, 1984), a former United States Marine, accompanied by two female acquaintances, murdered 46-year-old convenience store worker Pablo Castro outside a Times Market in Corpus Christi, Texas. Ramirez stabbed Castro a total of twenty-nine times, resulting in his death. The trio stole less than two dollars from Castro and fled the scene without entering the store. The two female acquaintances were captured a day later but Ramirez fled to Mexico and was not captured until 2008. He was convicted of murder and sentenced to death soon thereafter. Ramirez was originally scheduled to be executed in September 2020. That warrant was withdrawn. In 2021, Ramirez filed suit to challenge the Texas execution protocol under the Religious Land Use and Institutionalized Persons Act and the Free Exercise Clause of the First Amendment to the United States Constitution, seeking to have his minister be allowed to lay hands on his body and audibly pray during the execution process. The district court and the United States Court of Appeals for the Fifth Circuit both denied stays of execution, the latter over the dissent of Judge James L Dennis. Ramirez then filed a petition for a writ of certiorari. Houston Community College System v. Wilson (2022), is a United States Supreme Court case related to the First Amendment to the United States Constitution. Background. David Buren Wilson was elected a member of the Houston Community College System's board in 2013 who was censured for repeated incidences of what other members of the Board of Trustees deemed to be behavior that was not becoming of an elected official or beneficial to the HCC system. Wilson filed suit claiming that the censure was an offense to his First Amendment rights. Supreme Court. Certiorari was granted in the case on April 26, 2021. In a March 24, 2022 decision, the Supreme Court ruled that Wilson's First Amendment rights were not violated by his fellow board members' censure of him because the censure did not result in any hindrance of his ability to exercise his free speech in his capacity as an elected official and member of the public. The opinion cites the fact that the use of censure by elected bodies to address the behavior and actions of their members is a practice with a long history in the United States, and it also states that the censure itself constitutes an exercise of First Amendment rights by Wilson's colleagues on the board who voted to reprimand him.

Current scheme. Acquisition of nationality. There are various ways a person can acquire United States nationality, either at birth, by naturalization, or through court decisions and/or treaties. Birth within the United States. Section 1 of the Fourteenth Amendment provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The language has been codified in the Immigration and Nationality Act of 1952, section 301(a). Regardless of the status of the parent, unless they are in the employ of a foreign government, birth within the territory confers nationality. The Supreme Court has not explicitly ruled whether children born in the United States to unauthorized migrants present in the country are birthright nationals, but it is generally presumed they are. Birth certificates from U.S. jurisdictions are typically acceptable proof of nationality. Through birth abroad to United States citizens. For children born abroad, a Consular Report of Birth Abroad may be requested to confirm entitlement as a national. Section 301(c) of the Nationality Act of 1952 extends automatic nationality at birth to children born abroad to two parents who are U.S. nationals, as long as one of the parents resided for any length of time in the United States or its possessions. Section 301(g) establishes that to attain automatic nationality for a child born abroad to a citizen and a foreign national, residency in the United States or its possessions is also required. Time served as active military service was considered equivalent to residence in the U.S. For children with one national parent, requirements vary, depending on when they were born, and whether the parents were married. Legitimate children. Automatic nationality is extended based upon the law applicable at the time of the child's birth: If a birth abroad occurred after May 24, 1934 but prior to December 23, 1952, the U.S. national parent must have resided in the United States or its possessions for ten years, with five of them after the age of fourteen. If a birth abroad occurred after December 24, 1952 but prior to November 13, 1986, the U.S. national parent must have been the legal and genetic or gestational parent, and have resided in the United States or its possessions for ten years, with five of them after the age of fourteen. If the birth occurred on or after November 14, 1986, the U.S. national must have resided in the United States for five years, two of them after the age of fourteen, previous to the birth of the child.

United States v Zubaydah, (2022), was a United States Supreme Court case related to the state secrets privilege. Background. Abu Zubaydah was captured by the United States in Pakistan in 2002 and has been alleged to be a member of Al Qaeda. While in custody he had been transferred to multiple sites, including several black sites operated by the Central Intelligence Agency (CIA), before he was transferred indefinitely to the Guantanamo Bay detention camp by 2003. While the information on these sites was classified, activities at one site in Poland became public knowledge after Zubaydah and his council requested an investigation in 2010 from Polish officials into his treatment while at a black site in Poland. The report found that Zubaydah had been subjected to waterboarding and other forms of torture at the black site under direction of two CIA contractors. Zubaydah sought disclosures from the two contractors in 2017 through federal courts to testify to their role in his detention. The CIA objected, claiming that any information regarding the black site was classified and could not be disclosed, even if the responses that Zubaydah sought did not reveal anything about the site's location. Zubayday countered that the site's general location in Poland had already been revealed to the public through other means. He prevailed in the district court and a panel of the United States Court of Appeals for the Ninth Circuit affirmed, over Judge Ronald M. Gould's dissent. Judge Daniel Bress, joined by 11 colleagues, dissented from the denial of rehearing en banc. Supreme Court. Certiorari was granted in the case on April 26, 2021. Oral arguments were heard on October 6, 2021. On March 3, 2022, a fractured Court reversed the Ninth Circuit in a mostly 7–2 vote. The majority decision was written by Justice Stephen Breyer, joined in full by Chief Justice John Roberts and in part by Justices Brett Kavanaugh and Amy Coney Barrett. Breyer acknowledged that while information about the CIA black site in Poland had been identified in public, the type of information that Zubaydah sought "would tend to confirm (or deny) the existence of a CIA detention site in Poland", and thus there was reasonable cause for the government to consider any further confirmation a matter of national security, since this potentially could expose the existence of black sites in other countries. Justice Clarence Thomas wrote a concurrence to the judgment which Justice Samuel Alito joined. Thomas agreed with the judgment of the majority, but believed that Zubaydah did not need the information he was requesting from the contractors to pursue his case. Justice Elena Kagan also wrote a concurrence, but stated the case should be remanded to the district court to review what information Zubaydah sought that could be separated from state secrets. Justice Neil Gorsuch wrote the dissent, joined by Sonia Sotomayor. Gorsuch argued that the fact that Zubayduh was held at a black site in Poland between 2002 and 2003 was now public knowledge and thus no longer a state secret, and was concerned about the over-classification of information by the government. He also stated, in agreement with Kagan, that the case should be remanded to district court to separate out what information could be obtained without evoking any state secret privilege.

The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws". It mandates that individuals in similar situations be treated equally by the law. A primary motivation for this clause was to validate the equality provisions contained in the Civil Rights Act of 1866, which guaranteed that all citizens would have the guaranteed right to equal protection by law. As a whole, the Fourteenth Amendment marked a large shift in American constitutionalism, by applying substantially more constitutional restrictions against the states than had applied before the Civil War. The meaning of the Equal Protection Clause has been the subject of much debate, and inspired the well-known phrase "Equal Justice Under Law". This clause was the basis for Brown v Board of Education (1954), the Supreme Court decision that helped to dismantle racial segregation. The clause has also been the basis for Obergefell v Hodges which legalized same-sex marriages, along with many other decisions rejecting discrimination against, and bigotry towards, people belonging to various groups. While the Equal Protection Clause itself applies only to state and local governments, the Supreme Court held in Bolling v Sharpe (1954) that the Due Process Clause of the Fifth Amendment nonetheless imposes various equal protection requirements on the federal government via reverse incorporation. Text. The Equal Protection Clause is located at the end of Section 1 of the Fourteenth Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Trial procedure. Compulsory process. U.S. Constitution amendment 6 provides: In all criminal prosecutions, the accused shall enjoy the right . . . to have a compulsory process for obtaining witnesses in his favor . . . . The Compulsory Process Clause guarantees the defendant the right to obtain favorable witnesses at trial. For example, the Clause prevents a jurisdiction from precluding defendants from calling their co defendants as witnesses. Similarly, the Clause prevents the government from deporting a witness whose testimony would have been both material and favorable to the defense. The right does not preempt reasonable procedural rules. Thus, the right does not prevent the preclusion of defense witnesses as a discovery sanction. Confrontation. U.S. Constitution amendment 6 provides: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . . In Crawford v Washington (2004), the Supreme Court held that the Confrontation Clause bars the "admission of testimonial statements of a witness who did not appear at trial" unless pursuant to one of the "exceptions established at the time of the founding." "When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements . . . so long as the declarant is present at trial to defend or explain it." In Davis v Washington (2006), the Court held that the Clause places no restrictions on nontestimonial statements. Crawford did not completely define the term "testimonial." But, Crawford held that, "whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Laboratory reports of forensic tests are also testimonial, conferring on the defendant a right to cross-examine the analyst who certifies them. Statements made during police interrogation are nontestimonial if circumstances objectively indicate "that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency" but are testimonial if circumstances objective indicate "that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." "he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred." One exception established at the founding is if the witness is "unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Another such exception is "forfeiture by wrongdoing," for example where the defendant intends to obtain and obtains the absence of the witness by wrongdoing. Still another exception is "the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Another possible exception is for dying declarations, for example statements made by a speaker on the brink of death while aware that he or she is dying.

Laissez-faire; from French: laissez faire, 'let do') is an economic system in which transactions between private groups of people are free from any form of economic interventionism (such as subsidies) deriving from special interest groups. As a system of thought, laissez-faire rests on the following axioms: "the individual is the basic unit in society, for example the standard of measurement in social calculus; the individual has a natural right to freedom; and the physical order of nature is a harmonious and self-regulating system." Another basic principle of laissez-faire holds that markets should naturally be competitive, a rule that the early advocates of laissez-faire always emphasized. With the aims of maximizing freedom by allowing markets to self-regulate, early advocates of laissez-faire proposed a impôt unique, a tax on land rent (similar to Georgism) to replace all taxes that they saw as damaging welfare by penalizing production. Proponents of laissez-faire argue for a near complete separation of government from the economic sector. The phrase laissez-faire is part of a larger French phrase and literally translates to "let  do", but in this context the phrase usually means to "let it be" and in expression "laid back." Although never practiced with full consistency, laissez-faire capitalism emerged in the mid-18th century and was further popularized by Adam Smith's book The Wealth of Nations. While associated with capitalism in common usage, there are also non-capitalist forms of laissez-faire, including some forms of market socialism.