scholarly journals Peffer v. Stephens

2020 ◽  
Vol 7 (3) ◽  
pp. 647-678
Author(s):  
Shane Landers
Keyword(s):  
Civil Liberties ◽  
Fourth Amendment ◽  
The United States ◽  
Constitutional Rights ◽  
Technological Advancement ◽  
Court Of Appeals ◽  
The People ◽  
The Law ◽  
The Right ◽  
Constitutional Republic

The Fourth Amendment provides for the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Search warrants may only be issued upon a finding of probable cause. This core tenet of our constitutional republic becomes progressively flexible with every development in Fourth Amendment interpretation. In Peffer v. Stephens, the United States Court of Appeals for the Sixth Circuit delivered the latest blow to constitutional rights that restrict the State from engaging in unprincipled searches. In an issue of first impression, the Sixth Circuit held that a criminal defendant’s alleged use of a computer during the commission of a crime was adequate probable cause to justify a search of the defendant’s home and a seizure of the technological equipment inside. Such a shortsighted justification fails to consider technological innovation, economic policy, and historical civil liberties. Peffer v. Stephens is the latest proof of the parasitic relationship between the law and technological advancement. As technology evolves, the law struggles to keep pace and resultingly impedes economic development. With the exponential growth of technology in the 21st century, a visionary approach to search and seizure law is necessary to promote economic innovation and to refrain from further dismantling Fourth Amendment protections.

From Property Rights to Liberty Rights: We the Corporations, A Review Essay

2021 ◽  
Vol 95 (2) ◽  
pp. 335-340
Author(s):  
Laura Phillips Sawyer
Keyword(s):  
Civil Rights ◽  
Civil Liberties ◽  
Political Process ◽  
Constitutional Rights ◽  
Bill Of Rights ◽  
State Action ◽  
Unequal Treatment ◽  
The People ◽  
The Right ◽  
We The People

A long-standing, and deeply controversial, question in constitutional law is whether or not the Constitution's protections for “persons” and “people” extend to corporations. Law professor Adam Winkler's We the Corporations chronicles the most important legal battles launched by corporations to “win their constitutional rights,” by which he means both civil rights against discriminatory state action and civil liberties enshrined in the Bill of Rights and the Constitution (p. xvii). Today, we think of the former as the right to be free from unequal treatment, often protected by statutory laws, and the latter as liberties that affect the ability to live one's life fully, such as the freedom of religion, speech, or association. The vim in Winkler's argument is that the court blurred this distinction when it applied liberty rights to nonprofit corporations and then, through a series of twentieth-century rulings, corporations were able to advance greater claims to liberty rights. Ultimately, those liberty rights have been employed to strike down significant bipartisan regulations, such as campaign finance laws, which were intended to advance democratic participation in the political process. At its core, this book asks, to what extent do “we the people” rule corporations and to what extent do they rule us?

The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of “the Right of the People to Keep and Bear Arms”

2004 ◽  
Vol 22 (1) ◽  
pp. 119-159 ◽  
Author(s):  
David Thomas Konig
Keyword(s):  
Eighteenth Century ◽  
Great Influence ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Rights ◽  
Second Amendment ◽  
Federal Constitution ◽  
The People ◽  
The Right ◽  
Do So

The present essay seeks to work at the intersection of law and history, a meeting point where interpretation of the Second Amendment has been more characterized by collision than confluence. Analysis brought to bear on the historical meaning of “the right of the people to keep and bear arms” has coalesced around two competing normative interpretations: either that the amendment guarantees a personal, individual right to bear arms, or that it applies only collectively to the effectiveness of the militia. It is a premise of this essay that both these models are historically unsatisfactory, the products of present-day normative agendas that have polarized the debate into two competing and largely ahistorical models—a type of historians' fallacy that David Hackett Fischer has labeled the “fallacy of false dichotomous questions.” Fischer's description aptly describes the current controversy over the historical meaning of the Second Amendment: in addition to being “grossly anachronistic,” its two opposing positions “are mutually exclusive, and collectively exhaustive, so that the there is no overlap, no opening in the middle, and nothing is omitted at either end.” It is not without challenge on just these grounds, however, as a recent call for a “new more sophisticated paradigm” attests. This essay seeks to provide that new model and to do so by grounding the “right of the people to keep and bear arms” in eighteenth-century concepts of rights, not those of the twenty-first century, and to contextualize the right to bear arms in an eighteenth-century political struggle now largely ignored but well known to constitutional polemicists framing the Constitution and the Bill of Rights: Parliament's rebuilding of an English militia while denying the Scots the right to do so, despite Scotland's history and its claimed constitutional rights according to its coequal status in Great Britain. That struggle nevertheless remains a missing context that prefigured American debates over constituting and guaranteeing local militias in the coequal states of the federal union established by the United States Constitution in 1787 and 1788. Once the time came for seeking a written guarantee of local militia effectiveness in the federal Constitution, the language and substance of this transatlantic legacy had great influence. As experience, they gave political urgency to the drafting and ratification of the Second Amendment; as a theory of rights, they embodied an eighteenth-century individual right exercised collectively.

Constitutional Law in 1942–1943: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1942

1944 ◽  
Vol 38 (2) ◽  
pp. 266-288
Author(s):  
Robert E. Cushman
Keyword(s):  
United States ◽  
Supreme Court ◽  
West Coast ◽  
The United States ◽  
Japanese American ◽  
Circuit Court ◽  
Court Of Appeals ◽  
The Supreme Court ◽  
Set Up ◽  
The Right

On February 15, 1943, Wiley B. Rutledge, Jr., a judge of the United States Circuit Court of Appeals for the District of Columbia, took the seat on the Supreme Court vacated by the resignation in October, 1942, of Mr. Justice Byrnes. There were no other changes in the Court's personnel. Disagreement among the justices abated somewhat. In only a dozen cases of importance did either four or three justices dissent, as against some thirty cases in the last term. The Court overruled two earlier decisions, both recent; and the reversal in each case was made possible by the vote of Mr. Justice Rutledge.A. QUESTIONS OF NATIONAL POWER1. WAR POWER-CIVIL VERSUS MILITARY AUTHORITYWest Coast Curfew Applied to Japanese-American Citizens. In February, 1942, the President issued Executive Order No. 9066, which authorized the creation of military areas from which any or all persons might be excluded and with respect to which the right of persons to enter, remain in, or leave should be subject to such regulations as the military authorities might prescribe. On March 2, the entire West Coast to an average depth of forty miles was set up as Military Area No. 1 by the Commanding General in that area, and the intention was announced to evacuate from it persons of suspected loyalty, alien enemies, and all persons, aliens and citizens alike, of Japanese ancestry.

scholarly journals Furtive Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance

2018 ◽  
Author(s):  
Jeffrey Vagle
Keyword(s):  
Civil Liberties ◽  
The United States ◽  
Search And Seizure ◽  
Constitutional Democracy ◽  
Electronic Communications ◽  
Government Power ◽  
Surveillance Programs ◽  
Power Trust ◽  
Government Surveillance ◽  
The Right

Recent revelations of heretofore secret U.S. government surveillance programs have sparked national conversations about their constitutionality and the delicate balance between security and civil liberties in a constitutional democracy. Among the revealed policies asserted by the National Security Agency (NSA) is a provision found in the “minimization procedures” required under section 702 of the Foreign Intelligence Surveillance Act of 1978. This provision allows the NSA to collect and keep indefinitely any encrypted information collected from domestic communications — including the communications of U.S. citizens. That is, according to the U.S. government, the mere fact that a U.S. citizen has encrypted her electronic communications is enough to give the NSA the right to store that data until it is able to decrypt or decode it.Through this provision, the NSA is automatically treating all electronic communications from U.S. citizens that are hidden or obscured through encryption — for whatever reason — as suspicious, a direct descendant of the “nothing-to-hide” family of privacy minimization arguments. The ubiquity of electronic communication in the United States and elsewhere has led to the widespread use of encryption, the vast majority of it for innocuous purposes. This Article argues that the mere encryption by individuals of their electronic communications is not alone a basis for individualized suspicion. Moreover, this Article asserts that the NSA’s policy amounts to a suspicionless search and seizure. This program is therefore in direct conflict with the fundamental principles underlying the Fourth Amendment, specifically the protection of individuals from unwarranted government power and the establishment of the reciprocal trust between citizen and government that is necessary for a healthy democracy.

scholarly journals The Nexus between Fundamental Rights and Necessities of Life: A Case Study of Pakistan

2021 ◽  
Vol VI (I) ◽  
pp. 9-16
Author(s):  
Naseem Razi ◽  
Rashida Zahoor ◽  
Ghulam Abbas
Keyword(s):  
Fundamental Rights ◽  
Clean Water ◽  
Constitutional Rights ◽  
The People ◽  
The Right

The Constitution of Pakistan 1973 protects its citizens by guaranteeing some fundamental rights. It is, however, a matter of great concern that these rights do not cover the "right to access the necessities of life like access to clean water, food, clothing, shelter, and medicine etc". It, thus, leads imperfection of the constitutional rights. Therefore, this study aims to highlight this gap by evaluating the constitutional fundamental rights in the light of the necessities of life. This study concludes that lack of access to the necessities of life has made the people least concern towards the national issues and development of the country. Hence, this paper recommends filling up this gap and to incorporate the "right to access to the necessities of life" in the Constitution 1973.

scholarly journals Book Review: Encyclopedia of American Civil Rights and Liberties: Revised and Expanded Edition, 2nd ed.

2018 ◽  
Vol 58 (1) ◽  
pp. 61
Author(s):  
Seth Kershner
Keyword(s):  
Civil Rights ◽  
Justice System ◽  
Civil Liberties ◽  
The United States ◽  
Occupy Wall Street ◽  
Wall Street ◽  
Unequal Treatment ◽  
The Past ◽  
The Right

Occupy Wall Street. Black Lives Matter. The #MeToo movement. Over the past decade, the United States has seen a surge in activism around civil rights, broadly defined as the right to be free from discrimination and unequal treatment in arenas such as housing, the workplace, and the criminal justice system. At times, as when activists are arrested at a protest, calls for civil rights can also be the occasion for violations of civil liberties—certain basic freedoms (e.g., freedom of speech) that are either enshrined in the Constitution or established through legal rulings. While civil rights are distinct from civil liberties, students often struggle to articulate these differences and appreciate the links between the two concepts. Complicating this distinction is the fact that historically reference materials have tended to cover either one or the other but not the two in combination. Combining these two concepts in one work is what makes a revised edition of the Encyclopedia of American Civil Rights and Liberties so timely and valuable.

Definition and content of the right to freedom of conscience

2021 ◽  
Vol 66 (05) ◽  
pp. 145-148
Author(s):  
Ниджат Рафаэль оглу Джафаров ◽  
Keyword(s):  
Human Rights ◽  
Human Behavior ◽  
The State ◽  
Human Beings ◽  
Freedom Of Conscience ◽  
Key Words Human ◽  
The People ◽  
The Law ◽  
The Right

It can be accepted that the classification of human rights, its division, types, and groups, is of particular importance. The syllogism for human rights can be taken as follows: law belongs to man; human beings are the highest beings on earth like living beings. Therefore, the regulation prevails. The right to freedom is conditional. Man is free. Consequently, human rights are dependent. Morality is the limit of the law. Morality is the limit and content of human actions. Therefore, the law is the limit of human activities. Morality is related to law. Law is the norm of human behavior. Thereby, human behavior and direction are related to morality. The people create the state. The state has the right. Therefore, the right of the state is the right of the people. The state is an institution made up of citizens. Citizens have the privilege. Such blessings as Dignity, honor, conscience, zeal, honor, etc., and values are a part of morality and spiritual life. Morality is united with law. Therefore, moral values are part of the law. Everyone has the right to freedom of thought and conscience. Space is about the law. Therefore, everyone has the right to opinion and conscience. Key words: human rights, freedom of conscience, conceptuality, citizenship

13. Intentional interferences with the person

2021 ◽  
pp. 327-356
Author(s):  
Kirsty Horsey ◽  
Erika Rackley
Keyword(s):  
Civil Liberties ◽  
The Law ◽  
The Right ◽  
False Imprisonment

This chapter considers intentional interferences with the person, including the so-called trespass to the person torts, the tort in Wilkinson v Downton and the Protection from Harassment Act 1997. Trespass is an ancient set of wrongs which mainly deals with the direct, and usually intentional, invasion of a claimant’s interest in his person, his land or his goods. It is the right itself which is protected, and not just the freedom from resulting damage, and much of the law of trespass is the basis of civil liberties today. This chapter considers the torts of assault, battery and false imprisonment, together with various defences. The principal use today of these torts relates not so much to recovery of compensation but to the establishment of a right, or a recognition that the defendant acted unlawfully. The chapter then considers the tort in Wilkinson v Downton which provides a remedy in cases of indirect intentional infliction of distress and the statutory tort of harassment (Protection from Harassment Act 1997).

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