Flex Your Rights

Know your rightsLaw enforcement plays an essential role in our society by protecting the rights of individuals. There are many, many law enforcement officials out there making sure that we are safe and that those who wrongly use force against us are brought to justice.

But the fact is: Police also abuse the positions of power the state has granted them. They try to trick or intimidate people who do not know their basic rights to give up those rights. This is especially true in poor, urban minority neighborhoods because in those areas cops are under increased pressure from budding politicians to reduce drug and gang-related crime. The Washington Post writes: "According to the U.S. Bureau of Justice Statistics, minorities are more likely to be searched when arrested. The bureau's stats show that 'stop and frisks' are occurring at record rates...particularly where minorities and low-income people live."

Enter Flex Your Rights, a nonprofit seeking to "educate the public about how basic Bill of Rights protections apply during encounters with law enforcement." Together with filmmakers Rubin Whitmore II and Roger Sorkin, they have produced a documentary about the 10 Rules for Dealing with Police. It's best to write these rules down and carry them with you, so that you can consult them during an encounter with the police:

  • Always be calm and cool.
  • You have the right to remain silent.
  • You have the right to refuse searches.
  • Don't get tricked into waiving your rights.
  • Determine if you're free to go.
  • Don't do anything illegal.
  • Don't run.
  • Never touch a cop.
  • Report misconduct: Be a good witness.
  • You don't have to let them in.

Also, be sure to check out the creators’ first film BUSTED: The Citizen's Guide to Surviving Police Encounters. Here are all four parts. You may want to consider buying the DVD and showing it at your school, sharing with friends, etc.

Part 1:

Part 2:

 

Part 3:

 

Part 4:

 

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Gans and Kendall examine how 2nd Amendment gun-rights cases give originalists problems. The easy way to incorporate the 2nd Amendment is through substantive due process. But many originalists reject substantive due process. While the authors acknowledge that the Privileges or Immunities clause historically would accomplish the goals of...

Mark Stevens provides a primer on due process issues. First, he examines why due process is neccesary. He then discusses some of the issues that arise from due process. He also separates out which matters fall under substantive and which under procedural due...

"As the debate over the markup of the Stop Online Piracy Act continues on Capitol Hill, more technology heavyweights are calling for average netizens to register their discontent with the bill. Companies such as Reddit and Wikipedia are redoubling their efforts in opposing the measure, which aims to target online pirates in part by redirecting Web traffic from sites that host pirated content...

Mr. Somin examines a specific civil asset forfeiture case involving the Illinois Drug Asset Forfeiture Procedure Act, arguing that it utterly lacks due process. "One can certainly argue about how much process is 'due' in any given situation. But surely it is a violation of the Clause for the state to deprive an innocent citizen of valuable property for many months without any judicial...

"House lawmakers on Wednesday introduced a bill that would expand the ability of federal law enforcement to shut down foreign Web sites and services that use counterfeited or pirated content created by U.S. firms."

"Online piracy is a huge business. A recent study found that Web sites offering pirated digital content or counterfeit goods, like illicit movie downloads or bootleg software, record 53 billion hits per year. That robs the industries that create and sell intellectual products of hundreds of billions of dollars.

The problem is particularly hard to crack because the villains are often in...

Simon Lazarus argues that Obamacare passes a due process rational basis test. As a result, he claims, the only method conservatives possess to strike down Obamacare is a return to a Lochner reading of substantive due process. However, if they did, Lazarus claims conservatives would sacrifice their jurisprudence ideology to achieve a policy goal.

Anticipating the Supreme Court's hearing of McDonald v. Chicago, a Second Amendment case, Brian Doherty reviews the various arguments each side intended to present. According to Doherty, the lawyers on the McDonald side were prepared to...

This piece discusses the institution of the "Military Commissions Act of 2006 (MCA)" and its changes in the intervening years. "Modeled after the Uniform Code of Military Justice (UCMJ) - the code that the U.S. military uses to try soldiers, sailors, airmen, and Marines -- the MCA provides unprecedented rights to alien unlawful enemy combatants at trial. The MCA...

"A month ago, Google lobbyist Katherine Oyama absorbed one of the more unusual congressional tongue-lashings in years when she appeared before a hearing of the House Judiciary Committee. Rep. Tom Marino (R-Pa.) joked that Oyama had walked into a 'lion's den.'

After praising representatives of drug giant Pfizer and the Motion Picture Association of America for their aggressive efforts to...

Handling enemy combatants in the war on terror raises interesting procedural due process questions. Mr. Gregory argues that procedural due process rights are necessary to ensure life and liberty and must be upheld even for an alleged terrorist. 

Radley Balko discusses the dangers of civil asset forfeiture in this article. He explains the legal reasoning behind civil asset forfeiture and illustrates the blatant abuse of this practice, including how police agencies have skirted reform efforts. He documents how this is a growing problem beyond police departments; prosecutors and nongovernment actors are dubiously benefiting from civil...

"Americans have seen their freedoms decline on almost every front over the past decade. We have been spied on by surveillance cameras, eavesdropped on by government agents, had our belongings searched, our phones tapped, our mail opened, our email monitored, our opinions questioned, our purchases scrutinized (under the USA Patriot Act, banks are required to analyze your transactions for any...

Ed Whelan reviews the Dred Scott decision and its influence on substantive due process in this piece from National Review Online. According to Whelan, "Chief Justice Taney's ruling in Dred...

Timothy Sandefur articulates the basic concept behind substantive due process. While identifying that some substantive rights are explicitly found in the Constitution and the Bill of Rights, Mr. Sandefur acknowledges the ambiguity regarding implicit rights. In addition, he explains that critics of substantive due process perpetuate a myth by tying the birth of...

Gay-marriage advocates have often used substantive due process claims to argue for the legality of gay marriage. Ms. Kaminer points out that the courts applied a rational basis test to anti-gay legislation. Despite ruling in favor of gay-marriage advocates, Kaminer points out that the precedent, by using rational basis as opposed to strict scrutiny, establishes gay...

After hearing Justice Scalia's position on McDonald v. Chicago, Blackman and Shapiro wonder if the Justice is losing his desire and ability to interpret the Constitution according to its original meaning. The authors take issue with Scalia's decision to restore the "...

Chart or Graph

"After the Supreme Court decision in Hamdan v. Rumsfeld, the Administration worked closely with Congress to create a framework to try unlawful enemy combatants before military commissions. Following extensive debate and many hearings on the topic, the Senate and House passed the Military Commissions Act of 2006 (MCA) by large majorities, and the President signed it...

This flowchart provides a visual step-by-step for courts to determine whether substantive due process protects a right or not.

Analysis Report White Paper

"A longstanding scholarly consensus holds that the Due Process Clause of the Fifth Amendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent...."

"Originalists have been unable to develop an account of what type of process should be considered due based on a framing-era understanding of due process. Their failure has important implications for originalism as a method of constitutional interpretation."

"The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be 'deprived of life, liberty or property without due process of law.' The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states."

This article examines what the framers of the 14th Amendment intended due process to protect. After examining multiple sources surrounding the adoption of the 14th Amendment, Siegan concludes that the 14th Amendment's due process clause was designed to protect economic liberty.

Hornberger discusses various Supreme Court cases concerning the protection of economic liberty provided by the Due Process Clause.

Randy Barnett argues that the oft-criticized Lochner case was decided correctly, but for the wrong reasons. He makes the argument that substantive due process arose from a poor decision rendered by the Supreme Court in Slaughterhouse which stripped the Privileges or Immunities clause of its teeth. This resulted in a broader reading of due process.

Blackman and Shapiro lay out an oringinalist interpretation of the Privileges or Immunities clause that would displace the messy jurisprudence of substantive due process. The authors claim that the court’s poor decision in Slaughterhouse necessitated the use of substantive due process.

"The Lochner cases modern notoriety, however, arose largely because the post-New Deal Supreme Court continued to treat the Lochnerian cases of Meyer v. Nebraska and Pierce v. Society of Sisters as sound precedent."

In substantive due process cases the court must determine whether the rights violated by the state are fundamental or non-fundamental rights. If fundamental, the case is reviewed under strict scrutiny. If the right is non-fundamental, the government needs only to demonstrate a rational-basis.

Matthew Segal explains how medical marijuana is protected by substantive due process.

Civil asset forfeiture allows law enforcement to seize private property possibly used in a crime. However, to seize and keep your property, the police need only probable cause - a significantly lower burden of proof. In fact, in roughly 80% of cases the respondents are not even charged with a crime.

Substantive due process has been used historically to protect property rights. Dr. Poulson highlights multiple cases from the late 1800's and early 1900's that protected property rights, particularly the right of contract.

Most legal histories claim the demise of Lochner inspired substantive due process came about during the New Deal. Anthony Sanders argues that these narratives focus on the federal courts. State courts used substantive due process to protect economic liberties long after this time period.

According to Peter Berkowitz, many of the important moral cases which come before the Supreme Court are decided upon the basis of the Fourteenth Amendment. Berkowitz then cites issues such as abortion and same-sex marriage as areas which hinge on the Due Process clause.

"The meaning of the Due Process Clause is investigated, with special emphasis on the little word 'due.' The author concludes that the text and structure of the Constitution as well as the intentions of the framers strongly support the view of the late Justice Hugo Black regarding the meaning of this Clause in the Fifth and Fourteenth Amendments."

Mr. Williams examines the historical attitudes towards due process during the adoptions of the 5th and 14th Amendments of the Constitution. Starting in ancient England, Mr. Williams meticulously surveys the historical record, painting a clear picture of the evolution of due process.

Contending that many of the debates over Constitutional originalism are fought over the tenets of the Fourteenth Amendment, George Thomas analyzes a variety of key cases which have made a major impact on this aspect of American law.

Video/Podcast/Media

"Using armed drones, President Obama has overseen the targeted killing of at least three U.S. civilians overseas — more than President Bush did in his eight years in office. Are the killings legal? Hina Shamsi, director of the ACLU's National Security Project, says Attorney General Eric Holder's defense on Monday of the Obama administration's policy authorizing the assassination of U.S....

"Attorney General Eric Holder Delivers Major Policy Speech at Northwestern Law, March 5, 2012."

Full transcript can be found here.

"Richard Epstein of the University of Chicago and Stanford University's Hoover Institution talks with EconTalk host Russ Roberts about the rule of law. Epstein lays out a minimalist definition and a more expansive definition when considering the protection that individuals might have when facing the power of the state or the sovereign. Applications include 'takings...

This podcast contains information on civil asset forfeiture, specifically in regard to Missouri. Despite Missouri's best attempts to rein in this practice, this podcast documents how police departments have circumvented the intended rules.

"If a free society depends upon an informed citizenry exercising oversight of its government, then more people need to know how to handle themselves in a police encounter. Is cooperation always the best course of action? Or are there times to assert the constitutional right to refuse consent to a search of one's home or belongings? A new documentary film answers...

"Thomas explains that the separation between civil and economic liberties began during the Franklin Roosevelt era, when various economic liberties seemed to be written out of the Constitution. He shows how recent Supreme Court decisions, such as in Kelo v. City of New London, which granted governments wider economic domain powers, and McDonald v. Chicago, which...

"In 2001, Ontario's Progressive Conservative government introduced legislation to allow the Crown to confiscate property that might one day be used in a crime, or that might have been purchased with the proceeds of a crime.

Before the bill was made law, and before hearings were held to get public input on the bill, Freedom Party of Ontario's Paul...

"Flex Your Rights' first film, BUSTED has become a cult classic. Humor and helpful tips combine to make this video a must-see for freedom lovers everywhere. Created by Flex Your Rights and narrated by retired ACLU director Ira Glasser, BUSTED realistically depicts the pressure and confusion of common police encounters.

In an...

"Down on the boardwalk, we interview a few young Americans to find out what they know about the Constitution of the United States. Can you answer the questions? Does it matter?"

"We ask moms on the street what they know about the Constitution. Can you answer the questions? Does it matter?"

"Under state and federal law, police departments can seize and keep property that is suspected of involvement in criminal activity. Unlike criminal asset forfeiture, however, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home, or other property. And according to a new report published...

"The rational basis test was basically concocted out of thin air by the Progressive movement, gradually, but applied to American law with no constitutional basis. That's why you have cases like [the eminent-domain case] Kelo or these licensing restrictions that prohibit people from earning an honest living."

Primary Document

Hamilton's language suggests two inferences. First, due process, in the legal sense, during the late 1700's was purely a procedural protection. On this view, the Fifth Amendment did not contain substantive protections. Secondly, simply by addressing the difference, Hamilton's argument demonstrates that the concept of substantive due process was forming in the late...

The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.

"For more than 150 years, this law school has served as a training ground for future leaders; as a forum for critical, thoughtful debate; and as a meeting place to consider issues of national concern and global consequence. This afternoon, I am honored to be part of this tradition. And I’m grateful for the opportunity to join with you in discussing a defining issue of our time – and a most...

Transcript of the Bill of Rights to the Constitution.

Justice Black is one of the main critics of substantive due process. In his dissent in In re Winship, Black articulates a strict interpretation of due process rights that harkens back to ancient England. He argues that due process is purely procedural, involving only those procedural rights specifically enumerated in the US Constitution. In this...

Blackstone's work is considered the most authoritative statement of the pre-American Revolution common law. It influenced the American founding documents, and continues to be a persuasive legal authority in the United States and other common law jurisdictions.

This case revolved around several murders performed by an allegedly insane man. The case dealt with Due Process of law, but it also had implications for self-defense, for the opinion declared that "there is no constitutional right to be protected by the state against being murdered by criminals or madmen."

In this case, the Court upheld a Georgia law prohibiting oral and anal sex taking place in private between consenting homosexual adults. Writing for the majority, Justice Byron White asserted that the case "does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It...

"The horrible facts of this case are contained in the complaint that respondent Jessica Gonzales filed in Federal District Court. ... Respondent alleges that petitioner, the town of Castle Rock, Colorado, violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution when its police officers, acting pursuant to official policy or custom, failed to respond...

"An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians...

James Kent was an American legal scholar. Widely popular, his Commentaries consist of a series of lectures on the history of law, the American Constitution, federal and municipal law, and laws concerning persons and property.

The reader must not expect to find in these pages any novel views, and novel constructions of the Constitution.

"We may summarize our view of constitutional government by saying that its ultimate and essential objects are:

1st. To bring the active and planning will of each part of the government into accord with the prevailing popular thought and need, in order that government may be the impartial instrument of a symmetrical national...

In this speech, Justice Scalia explains why he believes in originalism as opposed to a living constitution. In the process, he argues that substantive due process is wrong for two reasons. First, it is not found in the text, so, as an originalist, he must reject it. Secondly, it allows judges to write rights into the constitution.

Composed before the U.S. Constitution, this document lays out the state of Delaware's view of due process. The document declares that all individuals are entitled "to be protected in the Enjoyment of Life, Liberty and Property," and as such,...

This opinion declared that "[a] State's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal...

Dred Scott was a slave who, because his owner had moved him to a free state for a period of time, sued for his freedom. The Court held that slaves were not citizens of the United States and therefore not entitled to constitutional protections. And since slaves were considered property, the Court held that their owners could not be deprived of them without due...

Written in 1906, this volume gives a glimpse into the due process mindset at the turn of...

The Fourteenth Amendment guarantees a right of jury trial in all criminal cases which, were they tried in a federal court, would come within the Sixth Amendment's guarantee of trial by jury.

This anti-federalist lists "unalienable or fundamental rights in the United States." He discusses due process, citing many significant procedural protections. However, he hints at a substantive due process understanding of the law. Specifically, that, "The people have a right to hold and enjoy their property." The enjoyment of property is found in multiple ...

In this case the officials of the Village of Newburgh's water facilities created an interruption to the water flow of a property owner. Chancellor Kent argued that the owner's right to due process under New York's constitution was applicable in this case and entitled him to "just compensation," given that a taking of private property had occurred: "It is a clear...

The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner's trial and conviction without the assistance of counsel violated the Fourteenth Amendment.

This case revolved around whether or not government officials could end a recipient's welfare assistance without advance warning. The Supreme Court determined that such a move was a violation of due process.

Petitioner Hamdi, an American citizen whom the Government has classified as an 'enemy combatant' for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig....

Justice Harlan outlines his argument for a broad understanding of substantive due process. He refuses to join the majority decision because it relied on the violation of other rights. He argues that due process rights are broad, found in natural law, but that a proper understanding of our history and societal values will prevent judicial activism using due process...

Furthermore, Adams argues that their grievance is not that they were taxed, but rather that the customs were imposed by a judge instead of a jury, which was contrary to the law of the land.

James Wilson, while arguing against the Bill of Rights, espouses a natural rights view. He claims that since the federal government was not granted any power to seize life, liberty or property, specific protections of rights granted by due process are unwarranted. His speech suggests that the theory behind substantive due process was already present during the...

"The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a 'Military Area,' contrary to Civilian Exclusion Order No. 34 of the Commanding General [p216] of the Western Command, U.S. Army, which directed that, after May 9, 1942, all persons of Japanese ancestry should be excluded...

A recent Supreme Court decision in which the Due Process Clause played a major role was Lawrence v. Texas. This case revolved around the anti-sodomy laws in one of the nation's largest states. The High Court held that "[t]he Texas statute making it a crime for two...

Lochner represents the height of economic freedom protected by substantive due process. The case arose because the owner of a bakery had violated New York state labor law, which stipulated "that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day." The court acknowledged the liberty of contract...

"I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent.

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be...

"This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of...

"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land."

This chapter in the Magna Carta...

While this case primarily revolved around the Second Amendment issue of gun ownership, the case was decided in regards to issues found in the Fourteenth Amendment. The main opinion was written by Justice Alito and declared that "the Due Process Clause of the...

"1. As a basis for attacking a discriminatory regulation of prices, under the equal protection clause of the Fourteenth Amendment, the party complaining must show that he himself is adversely affected by it.

2. A regulation fixing the price at which storekeepers may buy milk from milk dealers at a higher figure than that allowed dealers in buying from producers, and allowing dealers a...

The discussion now to suspend certain rights to due process is especially worrisome, given that we are engaged in a war that appears to have no end. Rights given up now cannot be expected to be returned.

In this case, the Society of Sisters, which ran a private religious school, brought suit against the state of Oregon for requiring that all children of a certain age attend public school. The Court ruled Oregon's law unconstitutional under the due process clause of the 14th Amendment.

The fact that the right of an accused person to have counsel for his defense was guaranteed expressly (as respects the federal Government) by the Sixth Amendment, notwithstanding the presence of the due process clause in the Fifth Amendment....

"Principles of Politics, first published in 1815, is a 'microcosm of [Constant's] whole political philosophy and an expression of his political experience,' says Nicholas Capaldi in his Introduction. In Principles, Constant 'explores many subjects: law, sovereignty, and representation; power and accountability; government, property and taxation; wealth and poverty...

Rehnquist establishes a test whereby courts can conclude whether rights are protected by substantive due process. First, Rehnquist claims fundamental rights must be "'deeply rooted in this Nation's history and tradition ... implicit in the...

This section of Edward Coke's Second Institute declares that every subject of the land has access to a quick, judicious process regardless of the individual's state or stature.

The Slaughterhouse cases arose "out of the efforts of the butchers of New Orleans to resist the Crescent City Livestock Landing and Slaughter-House Company in the exercise of certain powers conferred by the charter which created it, and which was granted by the legislature of that State." The butchers claimed the monopoly violated "the most important...

Nadine Strossen argues that civil asset forfeiture is unjust because, while criminal forfeiture defendants are granted due process, no such rights exist under civil forfeiture. According to Strossen the current civil forfeiture policy makes a mockery of the fundamental intent of due process. While the ACLU seeks the eventual abolishment of civil asset forfeiture,...

US v. Carolene Products signified the abandonment of substantive due process protections for economic rights. Justice Stone argued that the government only had to provide a rational basis for enacting economic regulation. From this, the...

Noted orator Daniel Webster articulates to the Supreme Court the legal theory behind substantive due process during the hearing of Dartmouth Trustees V. Woodward. First, Webster claims that New Hampshire's legislators do not possess the power to abridge...

"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."

While the Fifth Amendment...

Sir Coke interprets the 29th chapter of the Magna Carta, equating the law of the land with due process. For the vast majority of the discussion, Coke treats due process as a procedural right. For instance, he claims Magna Carta provides a right to trial by peers. However, he slightly hints at substantive rights during his discussion of monopolies as...

The Constitution of the United States established the federal governmental system currently in place with three branches of government. The premise of executive privilege developed from the separation of powers clause.

This case is generally said to have ended the Lochner era of Supreme Court decisions protecting economic liberties utilizing substantive due process reasoning. It upheld a "statute of the State of Washington ... providing for the establishment of minimum wages for women."

This section of Blackstone's famous law commentaries discusses the magna carta and its implications on the legal process of the land. Blackstone insists that English authorities have no right "to examine, or draw into question, determine or...

This is a detailed commentary on the procedures necessary to convict a man in England. Blackstone was one of the most respected legal minds of his generation, and hence, the vast majority of the Founding Fathers would have been...

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