Intelligence Law School - Course 1: Lesson 3.6 Concluding Remarks on Constitutional Law


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LESSON 3: CONSTITUTIONAL LAW


3.6 Concluding Remarks on Constitutional Law


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Annotated Lecture Transcript

3.6 Concluding Remarks on Constitutional Law

Well, I’ll leave it there for the Fifth Amendment and for constitutional law, at least as far as this introductory course is concerned.

Remember the basic structure of the Constitution.

The first 3 Articles set up the powers of each branch of the government.

Ø  Article 1: Article I establishes the Legislative Branch and enumerates all of its powers.

Ø  Article 2: Article II establishes the Executive Branch and enumerates all of its powers.

Ø  Article 3: Article II establishes the Judicial Branch and enumerates all of its powers.

 

The Bill of Rights qualifies those powers by guaranteeing certain fundamental rights to the American people which limit how our government may use its constitutional powers against us.

The most important amendments in U.S. intelligence law are the First, Fourth, and Fifth Amendments.

 

Ø  The First Amendment: The First Amendment protects freedom of speech, assembly, religion, and the press. It also protects the right to petition the government for a redress of grievances.[1] 

Ø  The Fourth Amendment: The Fourth Amendment prohibits unreasonable searches and seizures.[2]

Ø  The Fifth Amendment: And, the Fifth Amendment forbids the government from depriving you of life, liberty, or property without due process of law.[3] 

 

There are other Articles and Amendments that are tangentially relevant to intelligence law, but these 3 are really the major ones you need to know like the back of your hand.

The other relevant Amendments are:

Ø  The Sixth Amendment;[4]

Ø  Eighth Amendment;[5] and

Ø  Fourteenth Amendment.[6]

 

Ø  The Sixth Amendment: The Sixth Amendment gives you the right to counsel in custodial interrogations.[7]

o   This is why you should always refuse to be interviewed by the police,[8] and always request an attorney upon any interaction with police.[9]

Ø  The Eighth Amendment: And after the 6th Amendment, we also have the Eighth Amendment, which prohibits cruel and unusual punishment—things like torture in interrogations.[10]

Ø  The Fourteenth Amendment: And finally, the Fourteenth Amendment,[11] which generally applies only to the states, but it contains the invaluable Equal Protection Clause that has been reverse incorporated to apply to the federal government via the Fifth Amendment’s Due Process Clause.

 

While these rights establish the floor—the bare minimum of rights to be afforded to United States persons—Congress is always free to give the people more rights through statute.

The bulk of the rights and protections Americans enjoy are found in statutes enacted by Congress.

These statutes are the subject of the next lesson: Lesson 4: Introduction to Statutory Law.

 

Footnotes

[1] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”).

[2] U.S. Const. amend. IV (“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.”).

[3] U.S. Const. amend. V (“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 offense 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.”) (emphasis added).

[4] U.S. Const. amend. VI (“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.”).

[5] U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

[6] U.S. Const. amend. XIV (“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.

 

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

 

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”).

[7] U.S. Const. amend. VI (“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.”).

[8] There is a great video on YouTube that I think should be mandatory viewing for all Americans. It is called “Don’t Talk to Cops, Part 1.” This phenomenal lecture was given by criminal law professor James Duane from Regent Law School. It is truly excellent. As a law professor, my hat goes off to Professor Duane. His students are lucky to have such a dynamic and expert presenter teaching them matters of such monumental significance. The video is on YouTube. You really should watch it TODAY! It may very well save your life someday. See Professor James Duane, Don’t Talk to Cops, Part 1, at www.youtube.com/watch?v=i8z7NC5sgik.

Most innocent Americans don’t realize that agreeing to be interviewed by the police is one of the biggest mistakes a person can make. They also don’t realize until it’s too late that answering police questions is often a devastating mistake that can never help them and can also never be undone. Once they’ve answered even a single question, they’ve opened themselves up to a charge of “lying to investigators” even if they told the truth. All police have to do once they have a statement is find any evidence at all that contradicts that statement and they have enough for a major felony prosecution carrying a sentence of 5 years in prison—7 years if the investigation had anything to do with terrorism. Even if you were telling the truth you will probably be convicted because it will be your word against the word of usually two upstanding police officers looking polished and professional on the stand. Even if they don’t decide to prosecute you on a bogus charge of lying to investigators, they can use the leverage gained by being able to threaten you with a bogus charge of lying to investigators to force you to spy on your friends and loved ones. The tactic is frequently used against the friends and family members of American First Amendment targets. You should watch Professor Duane’s video “Don’t Talk to Cops – Part 1” on YouTube. As I said before, the advice might just save your life, or at least your freedom someday. See Professor James Duane, Don’t Talk to Cops, Part 1, at www.youtube.com/watch?v=i8z7NC5sgik.

[9] There is also another excellent video on YouTube put together by the Flex Your Rights Foundation. It is called BUSTED: The Citizen’s Guide to Surviving Police Encounters. It is approximately 45 minutes long and shows you how to handle several different police encounters—automobile stops, Terry Stops, and police at your door asking for consent for a search. The video shows first shows how most people react in these situations and explains the legal significance of each mistake. The video then shows the correct way to handle each encounter, giving an explanation of the legal significance of each move or statement made by the actor being interviewed by police. See Flex Your Rights Foundation, BUSTED: The Citizen’s Guide to Surviving Police Encounters, available at www.youtube.com/watch?v=yqMjMPIXzdA&feature=related.

[10] U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

[11] U.S. Const. amend. XIV (“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.

 

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

 

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”).

 


© 2012 David Alan Jordan. All rights reserved.