[SOUND] In addressing the question what functions does the Constitution perform? The first is it creates the national government. It gives power among the branches. Second, how it divides power to the national state governments, and third, how it protects individual rights. The text the Constitution does little in this regard but ten amendments to the Constitution were approved in 1791. These of course are the Bill of Rights. And it's worth briefly talking about what's contained in them. But also, what's not found in The Bill of Rights. The first amendment is probably the most familiar to everyone. It protects Freedom of Religion, Freedom of Speech, Freedom of the Press, Freedom of Assembly, the right to petition Government for a redress of grievances. It says Congress shall make no law respecting the establishment of religion or abridging the free exercise thereof. The idea is that we want a government that's secular, we want to protect the ability of people in their own lives to religious conscience and religious worship. The constitution and the first amendment then says, that there can be no infringement of freedom of speech or of the press. I don't think its coincidental that these, freedom of conscience, freedom of expression are found in the very first amendment to the constitution. The First Amendment also protects freedom of assembly, the ability of people to gather with others to express themselves and the right to petition Congress to address their grievances. I, of course, will be discussing in detail freedom of speech in the ninth part of my lecture, and freedom of religion in the tenth. The second amendment is one of the most controversial, perhaps now as much as any time in American history. Its wording is an enigma. It says a well regulated militia, being necessary to a free State, the right of the people to keep and bear arms shall not be infringed. Some believe that this is a key position safeguarding for individuals, a right to have guns. Others believe that it means what it says. It's a right to firearms, but only for the purpose of militia service. As I'll talk about in more detail later in the lectures, from 1791 when this was ratified until 2008, the Supreme Court always took the latter view. The court said the second amendment was just about a right to have guns for militia service. It didn't create a right of people to have firearms in their homes, their daily lives. But in June of 2008, in a case I'll talk about in detail, District of Columbia versus Heller, the supreme court said that the second amendment protects the right of individual with guns at least in their homes for the sake of security. This then raises the question of what type of regulation of guns will be permitted and what are unconstitutional? The second amendment is not absolute. No right in the constitution is absolute. The question, and it's one that is now being litigated in lower courts and debated in our public realm, what types of gun control are constitutional? What types of gun control are desirable? The third amendment reflects something very important about the constitution. It prohibits the government from quartering soldiers in people's homes. In other words, it prohibits the government from forcing people to house soldiers. If the Constitution were re-written today. If a new Bill of Rights was drafted today the third amendment wouldn't be there. Why is the Third Amendment in the Constitution? Because the King of England required that people house soldiers. That was seen as a great affront to privacy and control over property. And so at the time the Constitution was written in 1791 when the Bill of Rights was drafted and ratified, this seemed an important freedom to protect in the Constitution. The reason I think this is important is it reflects that everything in the Constitution is a reflection of the time at which it was adopted. If we were to draft a constitution today it would in so many ways be a different document. The 4th amendment is about searches and arrests. It says that there can't be unreasonable searches or seizures and more generally it says that a person should be searched, or seized, that is arrested only if there's a warrant issued by a judge and based on probable cause. This, too, reflects something very important about the framers and about the Constitution. The framers were very distrustful of police. Of executive power more generally. They didn't want the police to be able to search a person or a person's home unless there had been approval from a neutral judge. Unless that individual found a probably cause. Ultimately searches, arrest, always must be based on probable cause, usually based on a warrant but there are exceptions to that. The 5th Amendment is an unusual collection of rights. I've often had the sense that there was this group of rights and they didn't know any other amendment to put it in, so they put them together. So some deal with criminal trials says that a person can't be tried for a crime in federal court unless there's a grand jury that indicts. The grand jury is thought as a protection of individual freedom. Also, the 5th amendment contains the provision that a person can't be tried twice for the same crime, the prohibition of double jeopardy. But the 5th amendment also has provisions that have nothing to do, well one more that relates to criminal procedure, and that's the 5th amendment says that a person cannot be compelled to be a witness against himself or herself. The privilege against self incrimination. But then are provisions of the fifth amendment that have nothing to do with the criminal justice system. It says the government can take private property for public use only that pays just compensation. If the government uses eminent domain power to take somebody’s property. The governments going to have to do it for a public purpose. And the government's going to have to pay for it just compensation. And one of those important parts that amendment says that the United States government cannot deprive any person of life, liberty, or property without due process of law. This is a key assurance that founded the Constitution. It's one that can be traced back to the Magna Carta. The majestic, the crucial notion of due process of law. The 6th Amendment of the Constitution focus entirely on the rights of criminal defendants. It says such things as the right to confront their accuser, they have the right to a speedy and public trial. The 7th Amendment is about the right to jury trial in civil cases. It says in the kinds of civil cases where jury trials where available in England, jury trials will be available in the United States, a civil case is a case for money, or a case for injunction a court order. The seventh amendment is interpreted to only allow jury trials in civil cases when its a claim for money. And is a claim for an injunction, a court order, that then has to be tried by a judge. The eighth amendment says, that there can not be cruel and unusual punishment. It also says there can not be excessive bail, or excessive fines. There is a great deal of litigation over these years. Over what's cruel and unusual punishment. At one point in 1972 in Furman versus Georgia. The Supreme Court said that the death penalty was inherently cruel and unusual punishment. Four years later in 1976 the Supreme Court reversed itself. In a case called Gregg v Georgia said the death penalty is Constitutional. But as recently as June 29th, 2015, two Justice on the Supreme Court, Steven Bryer and Ruth Bader Ginsberg argued that the death penalty is inherently cruel and unusual punishment. The Supreme Court, for the last decade or so, it said certain applications of the death penalty are cruel and unusual punishment. The court has said that imposing the death penalty on the intellectually disabled is cruel and unusual punishment. The court has said that imposing the death penalty for a crime committed by a juvenile is cruel and unusual punishment. The court has said that imposing the death penalty for the crime of child rape Is cruel and unusual punishment, that the death penalty could be used only for murder. The first case that I ever got to argue in the United States Supreme Court, involved the 8th Amendment, and the cruel and unusual punishment clause, is a case called Lockyer v Andrade. My client, Leandro Andrade was sentenced to life in prison with no possibility of parole for 50 years. You spend 152 video tapes from k mart stores in San Bernardino, California. You see this sentence in the California three strikes law even though he never committed a violent crime. Received a sentence, even though before California's City Strikes Law, no one in the history of the United States had ever received a life sentence for shoplifting. I was appointed to represent Andrade in the federal Court of Appeals. And the federal Court of Appeals said that a life sentence. 50 years to life for shoplifting 152 video tapes was cruel and unusual punishment. But I argued the case in the Supreme Court, lost 5-4, with the Supreme Court saying that states have great latitude to impose punishment Including a life sentence for shop lifting. Should the court have found this to be cruel and unusual? So the first eight amendments of the constitution list individual liberties. As I mentioned, the 9th amendment says the enumeration of some rights doesn't deny or disparage the existence of other rights. This was the reflection the framers believed in. They could never list all rights so just mentioning some doesn't mean that there aren't others. And the 10th Amendment, which I'll talk about later in these lectures, says that Congress can act, and the United States government can act only if there's authority in the Constitution. The state and local governments can do anything except what's prohibited by the Constitution. Those are the most important numerations of individual liberties in the Constitution, but of course there are other rights as well that came after the Bill of Rights. As I mentioned, the 13th Amendment, adopted in 1865, prohibits slavery and involuntary servitude. The 14th Amendment, one of the most important provisions of the Constitution. In Section 1 of the 14th Amendment says that no state can deprive any person of life, liberty, or property without due process of law. Applying to state and local governments the assurance of due process, that the 5th Amendment applies to the federal government. Section 1 of the 14th Amendment also says that no state shall deny any person equal protection of laws. The 15th Amendment, adapted a couple of years later, says that the right to vote shall not be denied on account of race or previous condition of servitude. In a democracy no right is more precious than the right to vote. Many of the subsequent amendments of the Constitution are expanding the right to vote. The 19th amendment, for instance, says that women shall not be denied the right to vote. It wasn't adopted until 1920 for the extend to the right to vote to women. Other constitutional amendments prohibit poll taxes for requiring a fee in order to vote, and extend the right to vote to those who are 18 years and older. So over the course of American history there's been a great expansion in terms of who has the right to vote. So the third major thing the Constitution does is protect individual liberties. But it's also worth noting what's not contained in the Constitution and the Bill of Rights. Let me get to this by asking two questions. The first is, which provisions of the Bill of Rights apply to state and local governments? And the answer at the time the Constitution was written in 1787, when the Bill of Rights were adopted in 1791 Was none of them. The Bill of Rights were thought just to limit what the federal government could do. Every state had its own constitution. It was thought that's what would protect people from their state governments. It wasn't until the late 19th and well into the 20th century that the supreme court found that the 14th amendment applies to state and local government to keep provisions of the bill of rights and I will discuss this later in the lecture. The second question to think about is what rights in the constitution protect people from private infringements? For instance, what provisions of the constitution apply to a private corporation? What rights apply to private universities? And the answer is virtually none. The constitution is meant to be a limit on the government. Private conduct generally does not have to comply with the constitution. The only exception to this is the 13th amendment. Which prohibits slavery and involuntary servitude. It says that people cannot be or own slaves. But other than this, all of the protections of individual liberties in the Constitution apply to government actors, but don't generally apply to private actors. Let me illustrate with a couple of examples. Before I took my current job, I was professor at Duke Law School in Durham, North Carolina. Imagine I would have given a speech criticizing the president of Duke University. Or I guess I say if I were again to have given a speech criticizing the president of Duke University. And he would order me fired for that speech. I could not have sued him or Duke University for violating my first amendment free speech rights, since Duke is a private university, the Constitution of the first amendment simply do not apply to it. But now I'm at the university of California Irvine, a public school. If I were to give a speech criticizing the president of the University of California, Janet Napolitono and she would order me fired, I could sue her. I would sue her because since it's a state university the first amendment applies. My other example here comes from a true story, of a conversation I had with my oldest two children. We were in a grocery store together, 23 years ago, when they were nine and six. At the time, Diet Coke was giving away free baseball cards. And three cards were pictured on the outside of the package. As we went up and down the aisles of the grocery store, my two kids were arguing over who was going to get the extra baseball card. Finally I said, Be quiet. I don't want to hear anything else about baseball cards till we leave the grocery store. My then-nine-year-old turned to me and said, You can't me to be quiet. I've got freedom of speech. I was ready for him. I said freedom of speech means that the government can't tell you to be quiet. I'm not the government, so I can. To a T without missing a beat, he turned to me and said, well you're like the government to me so you shouldn't be able to tell me to be quiet. It's when i first knew that someday he was going to go to law school, and be a lawyer. He is now a federal prosecutor. These stories illustrate one of the most basic principals of constitutional law. The constitution's protection of rights, freedom of speech, due process. Equal protection. All apply against the government, not against private actors. Just recently, I was talking in a middle school to eighth graders who were studying the Constitution. And they were surprised to know that since they were in a public school, they had some free speech rights. Not much, but some. But if they were in a private school, they'd have no free speech rights. If they were in a public school they couldn't be suspended or expelled until some form of due process, but if they were in a private school they could be suspended or expelled without due process. Because they're in a public school, a teacher couldn't search your backpack without meeting the fourth amendment requirements. For searches in schools. If they were in a private school, they would have no protection at all. The Constitution applies just to the government. Now laws, statutes adopted by Congress of the states, might protect us from private behavior. Other laws might be adopted through the courts to protect us from private wrongs. But the Constitution applies only to the government. These are the three key purposes of the Constitution: to create the national government and divide power among its branches, to allocate power between the national government and the states, and to protect the individual liberties. This then leads to the second major question that I pose for this part of lecture Why achieve these functions through a Constitution?
