Criminal defendants find an unlikely friend in Justice Scalia

David G. Savage
Los Angeles Times
November 24, 2011

"The 6th Amendment to the Constitution says the 'accused shall enjoy the right … to be confronted with the witnesses against him.' To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those 'witnesses' who did not or cannot testify in court. He takes this view even if the witness is dead."

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Alarmed by these developments, trial judges are aggressively attempting to thwart jury nullification. The question now before the courts is, How far can a trial judge go before overstepping his or her authority and coercing a verdict?

But 93 U.S. senators, voting for the final bill, insisted that rewriting the Fifth and Sixth amendments in a Pentagon appropriations bill was nothing for Americans to worry about.

The National Defense Authorization Act (NDAA), which contains provisions that would rip holes in the Constitution, passed the Senate last week on a 93-7 vote.

The 6th Amendment Arraignment Clause guarantees that when a person is accused of a crime by the government, he must be notified of the specific charges against him.

"Does the president have the power to order the military to seize an American citizen on American soil, declare him an outlaw to the Constitution, and lock him up for the duration of the war on terror -- in other words, forever? That's the stark question the Supreme Court will be examining today, April 28, when it hears oral argument in Padilla v. Rumsfeld.

Padilla, an American born in...

Trials are on the verge of extinction. They have been replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers’ written submissions.

In a prior post surveying the impact of the Senate version of the NDAA bill..., I emphasized that the Feinstein Amendment made clear that the NDAA did not alter, one way or the other, the government’s power to detain citizens.

The Compulsory Process Clause is part of the 6th Amendment to the Constitution of the United States, and the first ten amendments, also known as the Bill of Rights.

The 6th Amendment Confrontation Clause protects one of the most standard and essential parts of a trial in the United States - the right to confront those who are testifying against you.

"The day after the Supreme Court ruled that detainees imprisoned at Guantanamo are entitled to seek habeas corpus hearings, John McCain called it 'one of the worst decisions in the history of this country.' Well.

Does it rank with Dred Scott v. Sanford (1857), which concocted a constitutional right, unmentioned in the document, to own slaves and held that black people have no rights...

"The 6th Amendment to the Constitution says the 'accused shall enjoy the right … to be confronted with the witnesses against him.' To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those 'witnesses' who did not or cannot testify in court. He takes this view even if the witness is dead."

You might have already thought that you had the right to challenge a witness who offers powerful evidence of your guilt. But until six weeks ago, that wasn't the case in many states.

The Sixth Amendment requires that 'the accused … be confronted with the witnesses against him.'

I gather that there has been some confusion as to whether S. 1867, the NDAA bill currently pending in the Senate, should be read as (i) requiring the use of military detention for US citizens in some circumstances....

This page considers the interplay between two provisions of the Bill of Rights: the First Amendment's guarantee of free speech and the Sixth Amendment's guarantee to criminal defendants of a fair trial by an impartial jury.

The Founders of our nation believed habeas corpus was so essential to preserving liberty, justice, and democracy that they enshrined it in the very first article of the United States Constitution.

Sixteen years as a state trial judge have left me with a deep respect for the professionalism and competence of the public defenders who handle felony cases for indigent criminal defendants in my courtroom.

The writ of habeas corpus is actually the lynchpin of a free society.

Roots of the modern right to counsel for the defendant who cannot afford to pay a private lawyer can be found more than a century ago.

The Sixth Amendment right to counsel is a critical component of the Bill of Rights in that it provides the accused with a lawyer who is trained in the legal process and can provide a safeguard against violations of the suspect's other Bill of Rights protections.

"As noted yesterday, House and Senate conferees were moving the National Defense Authorization Act (NDAA) forward to the final action in both chambers with compromise legislation that kept in controversial language that would allow for the indefinite detention of American citizens and legal residents of the United States."

"Given the opportunity to clarify existing law and confirm that American citizens are not subject to indefinite military detention at the order of the president — Congress punted.

After a debate in which key members seriously contemplated empowering the president to 'Gitmo-ize' Americans suspected of terrorist activity, the National Defense Authorization Act of 2012 leaves the question...

The Sixth Amendment guarantees criminal defendants the right to counsel, but that does not mean all defendants receive good representation. Too often, their defense is not even minimally adequate.

"There’s a reason Russia and Germany got totalitarian police states in the middle of the 20th century; this was the first time modern transportation and communications technologies gave governments the ability to exert that kind of control. And while we missed the rise of totalitarianism, the post-World War II...

Should someone be convicted of a crime if the jury cannot reach a unanimous verdict? Traditionally, juries had to reach a unanimous verdict to convict the defendant in a criminal trial.

For many Americans, a notice to appear for jury service is an annoyance.

The Supreme Court has held under the Sixth Amendment that juries in criminal cases are not required to be the traditional size of twelve persons (although they cannot consist of less than six persons).

Last December a 'mutiny' occurred in a Montana courtroom. At least that’s what a stunned county deputy attorney called it.

Justice Anthony Kennedy turned a constitutional inquiry he once derided as 'formalistic and wooden' into one of his beloved Shakespearean dramas, suggesting that he has learned to stop worrying and love Justice Antonin Scalia's take on the Sixth Amendment.

When disputes arise over who has the freedom to do what, fundamental principles of fairness, or 'right reason,' as Roman philosopher Cicero phrased it, must come into play. ... For this task, the founders recommended trial by jury.

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...

Congress is pressing ahead with a massive $662 billion defense bill that requires military custody for terrorism suspects linked to al-Qaida, including those captured within the U.S.

This editorial on the Patriot Act asserts that no civil rights have been violated by the federal government under the Act and that the Act has been effective in preventing terrorist attacks. Rep. Sensenbrenner states that based on these two facts, the Patriot Act deserves to be renewed for the safety of the country and its people.



The case of Bullcoming v. New Mexico was a test of whether a five-vote majority would remain to protect the constitutional legacy of the Court’s seven-year-old ruling that for the first time demanded that live witnesses be summoned to court....

The Pentagon is learning that things work differently here in the United States than they do in Iraq. In this country, when the judiciary issues an order, the Pentagon is required to obey it.

We have previously reported on prior restraints on media coverage and the interplay between the First Amendment rights of free speech and press and other Constitutional rights. Prior restraints occur in different forms....

The 6th Amendment Public Trial Clause guarantees that people accused of crimes will be tried in public.

This article discusses the utility of the Patriot Act. Eland states that the act is not likely to prevent another terrorist attack, and that the government possessed enough powers to prevent an attack before the passage of the act. He ends his article suggesting that repeal of the Patriot Act and ending spying without warrants are necessary to restore the rule of...

Two New Orleans men who have waited in jail for nearly nine years without coming close to trial on a 2001 murder haven't had their rights violated by the delay, the 4th Circuit Court of Appeal has ruled in a 5-2 decision.

The 6th Amendment Right to Counsel Clause guarantees that if you are ever charged with a crime, you are entitled to the assistance of a lawyer, or 'counsel.'

The 6th Amendment Right to Trial by Jury Clause is the Bill of Rights' second mention of the right to trial by jury.

Here’s the best thing that can be said about the new detention powers the Senate has tucked into next year’s defense bill: They don’t force the military to detain American citizens indefinitely without a trial.

"Nearly every elected official in Congress voted for the National Defense Authorization Act, a bill placing domestic terrorism investigations into the hands of the US Military. We need to elect more politicians willing to vote 'Nay.'"

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. 

The 6th Amendment to the United States Constitution is a part of the American Bill of Rights, which is the first ten amendments to the Constitution.

"The Sixth Amendment to the U.S. Constitution reads in part as follows:

'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....'

Trial by jury is one of the essential prerequisites of a free society. As our American ancestors understood so well, it...

Even though plea bargaining pervades the justice system, I argue that the practice should be abolished because it is unconstitutional.

"If you wonder why House Republicans were so keen on ramming through an extension of the Patriot Act without hearings or debate, take a gander at the Heritage Foundation’s blog post and Web memo on the topic. I want to run through the latter in some detail, because I think it’s telling just how poorly the case against reform stands up to scrutiny in the rare...

The right to trial by a jury of one’s peers is a cornerstone of the individual freedoms guaranteed by the U.S. Constitution’s Bill of Rights.

"One of the ancient axioms of chemistry is, 'The dose makes the poison.' What may be beneficial in small doses can be harmful in large ones. A couple of aspirin can cure a headache, but a couple of hundred will kill the patient.

That insight applies in other areas, too. In wartime, you don't want the sort of president we had in, say, James Buchanan—who thought that while the South had...

If Obama does one thing for the remainder of his presidency let it be a veto of the National Defense Authorization Act....

There are three scenarios in which the government in theory might try to use military detention with respect to a citizen, and the current state of the law is unclear as to two of them.

The power assumed by the U.S. military and the Bush administration in the Padilla case constitutes what is arguably the most ominous and dangerous threat to the freedom of the American people in our lifetime.

I’m not at all convinced that the conference version of the NDAA is substantially better than the House or Senate version (or that either is better than nothing)… In this post, I’ll start with the question of non-battlefield detention authority.

"The American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC), a UN-aligned pressure group which advocates for U.S. membership in the International Criminal Court (ICC), has released an 'analysis' of our recent paper,...

That's the purpose of the Sixth Amendment — to protect the innocent from being convicted and punished.

Is trial by jury superior to any other kind? In other words, is it more likely to allow the truth to emerge and justice be done? Before answering this question, let us consider the traditional arguments for and against juries.

The Fifth, Sixth and Eighth Amendments of the federal Bill of Rights were designed to seize the heavy hands of federal power, to catalogue and to put beyond the reach of government the most essential rights of those accused by the federal government.

"Milton Friedman once said that there is 'nothing so permanent as a temporary government program.' I would add to this: there is nothing so permanent as a war on terror. Ask the British or the Israelis or any other government which has decided to wage a similar war.

The 2001 signing of the PATRIOT Act marked the beginning of a 'temporary' and unofficial state of emergency for the...

"The issue: What does the Sixth Amendment right to a trial by jury in criminal cases mean? What is 'a jury'? Must a jury have 12 members, or will 6 do? How about 5? Must juries be unanimous to convict?

The 6th Amendment's Speedy Trial Clause guarantees that if you are accused of a crime, you will be tried quickly.

Trial by jury presents interesting problems for those who champion individual rights. In one particular instance, a jury may be an effective weapon against oppressive government. In another, it may be a vehicle for unjust prejudices.

A table comparing Patriot Act provisions with amendments from the Bill of Rights, specifically the 1st, 4th, and 6th Amendments. It shows the disconnect between constitutional rights and certain contentious parts of the Patriot Act.

America’s founders recognized that trial by jury in both criminal and civil cases offered unparalleled protection for their hard-won freedoms, both individually and collectively.

Chart or Graph

"Federal court statistics provide a common reporting framework across federal court jurisdictions. Therefore, we first examine the rates of hung juries in federal civil and criminal trials from 1980 to 1997...."

"They compared the characteristics for the cases in which the jury hung to cases in which the judge disagreed with the jury’s verdict. ... See Table 1.3."

The relationship between initial individual preferences of jurors and the final verdicts of the jury can be easily seen in Figure 1, based on data collected in the hung jury project of the NCSC.

Analysis Report White Paper

An econometric study of all felony cases filed in Denver, Colorado, in 2002, shows that public defenders achieved poorer outcomes than their privately retained counterparts, measured by the actual sentences defendants received.

"The Rome Statute and the International Criminal Court (ICC) are fundamentally incompatible with the political and constitutional principles of the United States. For example, the rights to trial by jury, a speedy trial, and the presumption of innocence are conspicuously absent from the ICC's legal due processes."

"What is conservative about President Bush's expansion of executive powers in the war on terror? Some conservatives blast the president's warrantless surveillance program, his designation of U.S. citizens as enemy combatants, and other recent controversies as attacks on limited government."

Providing an empirical picture of hung juries was the principle objective for this 4-year study by the National Center for State Courts (NCSC) with funding by the National Institute of Justice (NIJ).

This article considers three issues that have emerged as points of conflict in high-profile trials.

"This cycle of terrorist attack followed by government curtailment of civil liberties must be broken—or our society will eventually lose the key attribute that has made it great: freedom."

"Freedom in America rests on a sophisticated constitutional system of checks and balances. Unfortunately, since 9/11 freedom in America has been under assault by policymakers who repeatedly assert that the 'line between liberty and security' must be redrawn."

In its holding in Crawford v. Washington (2004) 124 S.Ct. 1354, the U.S. Supreme Court abandoned 24 years of Sixth Amendment precedent dating back to its earlier holding in Ohio v. Roberts (1980) 448 U.S. 56 (1980).

The First and Sixth Amendments may conflict with each other when the media asserts its right to report and comment, because the publicity about a criminal defendant has the potential to prejudice a jury.

12 Angry Men is one of my favorite films, a movie I’ve seen many times and have enjoyed sharing with family, friends, and students.

"Until recently, courts have not addressed the potential conflict between jury selection rules and the possibility that a jury would be called upon to impose the federal death penalty even in states without the death penalty. Earlier this year, however, the Court of Appeals for the Second Circuit confronted the question of whether there is an insurmountable tension...

"Concerns for security and freedom will always conflict to some degree. Therefore, Americans must understand that this is a new kind of 'War on Terrorism,' with no immediate end in sight, and that it is also a new kind of challenge to civil liberties. Thus, it is time for a fundamental rethinking of what U.S. citizens consider basic freedoms. Americans may decide...

One of the difficulties facing the Court in these decisions was the apparent inconsistency of its position: How is it possible for a person to be proved guilty beyond a reasonable doubt where a verdict of guilt is less than unanimous?

"In response to the attacks on American soil on September 11, 2001, the United States launched a 'War on Terror' to rid the world of international terrorist networks who posed a threat to innocent civilians and democratic civilization. The United States is currently detaining approximately 762 individuals in connection with this war."

In this article, the authors apply a psychological framework to legal debate surrounding the impact of race on the process of jury selection.

In this report the ACLU discusses the unconstitutionality and ineffectiveness of the Patriot Act. It points out instances in which the Act has been used against citizens, challenges made to the Act in court, and offers ways to change the Act to make it more effective but less infringing on Americans' rights.

"This report outlines the results of a stated preference discrete choice modelling study that sought to objectively understand the real privacy, liberty and security trade-offs of individuals so that policy makers can be better informed about individuals true preferences in this domain."

The Standards on Speedy Trial and Timely Resolution of Criminal Cases have three main purposes....

Historically, Anglo-American law has jealously guarded the right of an accused to have a speedy trial in a criminal prosecution. It is extended to defendants in federal cases by the sixth amendment to the Constitution.

"[These recommendations] focus on the proper safeguards, which should be employed when the government designates U.S. citizens or other persons lawfully present in the United States as 'enemy combatants' and detains them within the United States indefinitely without meaningful judicial review and access to counsel."

This purpose of this essay is to explore the monumental clash between the first and sixth amendments.

"This year, in Crawford v. Washington, the Supreme Court did a sharp aboutface, holding that a testimonial statement cannot be admitted against an accused, no matter how reliable a court may deem it to be, unless the accused has had an adequate opportunity to cross-examine the witness who made the statement."

The United States Constitution guarantees the right to trial by jury in both civil and criminal cases.This article will discuss the history of trial by jury as an aid to revealing what the framers and ratifiers of the Constitution meant when they guaranteed that right.

The Zenger trial is a remarkable story of a divided Colony, the beginnings of a free press, and the stubborn independence of American jurors.

"This note seeks to answer two basic questions. First, are President Bush’s Military Order and the rules promulgated under that Order constitutional even if they deprive civil liberties? Second, even if the Order and its rules are constitutional, will President Bush’s military commissions help win the war against terrorism?"

"The Founders of our nation understood that no idea was more central to our Bill of Rights -- indeed, to government of the people, by the people, and for the people -- than the citizen jury.

"Congress should

  • tighten the PATRIOT Act's requirements for advance judicial approval and judicial review;
  • impose a shorter-term sunset clause on all provisions of the PATRIOT Act;
  • exclude ordinary criminal activities from coverage of the PATRIOT Act;
  • establish rules that govern detention of citizens and noncitizens suspected of terrorist links; and...

"This article will first examine the Court’s reasoning in Ice and Melendez-Diaz, and it will then address the implications of those decisions for the Apprendi and Crawford lines of precedent, respectively."

What types of defense counsel (e.g., public defenders, privately retained attorneys, or assigned counsel) represent defendants in criminal cases and how do these defense counsel types perform in terms of securing favorable outcomes for their clients?

Video/Podcast/Media

The question before the Supreme Court was whether the admission of the deceased victim's statements violated the defendant’s rights under the Sixth Amendment’s Confrontation Clause.

The question in this case was whether Padilla’s counsel had an obligation under the Sixth Amendment (as applied to the States by the Fourteenth Amendment) to advise him of the immigration consequences of pleading guilty to a particular crime....

The Supreme Court here considers the limits of the Confrontation Clause in the wake of its decision in Crawford v. Washington.

The Court was asked to consider whether the Sixth Amendment right to counsel attaches to defendants brought before a magistrate and jailed, pending posting of bond, if prosecutors were not involved in the arrest or court appearance.

In this case, the Supreme Court considered whether a criminal defendant is protected by the Sixth Amendment right to counsel when he has not taken any affirmative step to invoke said right....

On June 23, 2008, the Supreme Court decided Rothgery v. Gillespie County. The Court was asked to consider whether a defendant’s Sixth Amendment right to counsel attaches at an initial hearing at which he is brought before a magistrate and jailed....

In this case, the Supreme Court considered whether delays caused solely by public defenders can constitute a violation of a criminal defendant’s Sixth Amendment right to a speedy trial on the theory that such delay is attributable to the state.

"Ali Al-Marri, a man suspected of being an Al-Qaeda sleeper agent, has been in U.S custody since 2001, held as an enemy combatant without being charged for any crimes. In a decision Monday, the 4th U.S. Circuit Court of Appeals ruled that the Federal Military Commissions Act does not repeal Al-Marri's right to challenge his detention in court. Cato legal scholar, Timothy Lynch, comments on the...

No recent piece of legislation has been more controversial than the NDAA, which passed the Senate last week and includes provisions that apparently grant the president unlimited power to detain American citizens arrested in connection to terrorism.

"Sen. Mike Lee, (R-Utah), explains why he voted against the National Defense Authorization Act."

The Supreme Court has relied on originalist arguments in ruling for defendants on issues of Fourth Amendment searches and seizures, Sixth Amendment confrontation and cross-examination, and Sixth Amendment jury-trial guarantees at sentencing.

Ron Paul lays out his argument against the NDAA, particularly the martial law provision.

This video describes the rights of jurors, including their right to question the legitimacy of the law related to the crime in which they are offering their judgment.

Sen. [Franken] spoke today to express his strong opposition to the detention provisions in the defense authorization bill.

During war there has always been a struggle to preserve Constitutional liberties. During the Civil War the right of habeas corpus was suspended. Newspapers were closed down. Fortunately, these rights were restored after the war.

The sixth amendment guarantees the right to a speedy trial by jury in the district where the crime was committed and the opportunity to question witnesses. It's fundamental to modern justice.

This brief video explains how Founding Fathers viewed the right to trial by jury as vitally important. The video then goes on to explain how the jury relates to common law and tort suits.

Primary Document

Whether the trial by jury is to continue as your birth-right, the freemen of Pennsylvania, nay, of all America, are now called upon to declare.

Every citizen in the state, ought to acquire a knowledge of those laws, that govern his daily conduct, and secure the invaluable blessings of life, liberty and property.

When a nation, led to greatness by the hand of liberty, and possessed of all the glory that heroism, munificence, and humanity can bestow, descends to the ungrateful task of forging chains for her friends and children....

I rose yesterday to ask a question which arose in my own mind. When I asked that question, I thought the meaning of my interrogation was obvious.

"To resolve the grave issue at stake in this case, this Court should start with first principles. To begin with, the Constitution does guarantee the existence of the habeas writ. Second, the writ does extend to prisoners in facilities that are not on U.S. soil. Third, this Court can and should review the validity of any act of Congress that expressly or impliedly invokes one of the exceptions...

American political activist Lysander Spooner defends the concept of jury nullification in this essay.

Petitioners, who were found guilty of committing felonies, by less than unanimous jury verdicts ... claim that their convictions, upheld on appeal, contravene their right to trial by jury under the Sixth and Fourteenth Amendments.

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.

This document established the common law system of circuit judges in medieval England. Under the Assize of Clarendon, King Henry II did away with trials by ordeal and placed in their stead a judgment system that was essentially a roaming courtroom.

A defendant's constitutional right to a speedy trial cannot be established by any inflexible rule, but can be determined only on an ad hoc balancing basis in which the conduct of the prosecution and that of the defendant are weighed.

The constitutional right of a defendant to a speedy trial and by a jury of the district where the offense was committed relates to the time, and not to the place, of trial, and cannot be invoked by a defendant....

The petitioner...requested that counsel be appointed for him. The judge advised him that this could not be done as it was not the practice in Carroll County to appoint counsel for indigent defendants save in prosecutions for murder and rape.

Transcript of the Bill of Rights to the Constitution.

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.

Because the facts supporting petitioner’s exceptional sentence were neither admitted by petitioner nor found by a jury, the sentence violated his Sixth Amendment right to trial by jury.

"In the Authorization for Use of Military Force (AUMF), Congress empowered the President 'to use all necessary and appropriate force against those … he determines planned, authorized, committed, or aided the terrorist attacks … on September 11, 2001.' In Hamdi v. Rumsfeld,...

n this case, the general question has been argued at some length, whether a witness, without his own consent, can be called to testify to any fact pertinent to the issue between other parties....

The Court held that surrogate testimony of that order did not meet the constitutional requirement where the accused's right was to be confronted with the analyst who made the certification....

A conviction by a nonunanimous six-person jury in a state criminal trial for a nonpetty offense ... violates the right of an accused to trial by jury guaranteed by the Sixth and Fourteenth Amendments.

This case revolved around a juror, Edward Bushell, who refused to convict several religious dissenters in 17th century England. This opinion declared that Bushell's actions were not cause for punishment.

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.

The official text of the original Constitution.

The State's use of Sylvia's statement violated the Confrontation Clause because, where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.

Resolved, That the following acts of Parliament are infringements and violations of the rights of the colonists; and that the repeal of them is essentially necessary, in order to restore harmony between Great Britain and the American colonies.

Predominantly written by Thomas Jefferson, the Declaration of Independence formally and eloquently justified the independence of the United States from British monarch King George III.

Tocqueville's famous analysis of the American economic and political system, as he observed during his travels of the country in the 1830s.

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.

The English Bill of Rights passed in 1689. It laid out the rights of the citizens of England. It was a restatement of the Declaration of Right stated earlier that year.

The British government passed the English Habeas Corpus Act of 1679 in response to a public outcry about people being incarcerated unlawfully and for inordinate amounts of time before a trial.

"The case was thus:

An act of Congress-the Judiciary Act of 1789,1 section 14-enacts that the Circuit Courts of the United States

'Shall have power to issue writs of habeas corpus. And that either of the justices of the Supreme Court, as well as judges of the District Court, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of...

"1. A federal court may refuse to issue a writ of habeas corpus where the facts alleged in the petition, if proved, would not warrant discharge of the prisoner. P. 24.

2. Presentation to the District Court of the United States for the District of Columbia of a petition for habeas corpus was the institution of a suit, and denial by that court of leave to file the petition was a judicial...

The objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is that relative to the want of a constitutional provision for the trial by jury in civil cases.

Gannett Co. argued that removing the press from a trial constituted a violation of the Sixth Amendment right to a public trial, among other issues.

The Disciplinary Board found that Gentile violated the Rule and recommended that he be privately reprimanded. The State Supreme Court affirmed, rejecting his contention that the Rule violated his right to free speech.

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.

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....

THE rise and growth of the Jury system is a subject which ought to interest not only the lawyer but all who value the institutions of England, of which this is one of the most remarkable, being until recently a distinctive feature of our jurisprudence.

An accused is entitled to a public trial, at least to the extent of having his friends, relatives and counsel present -- no matter with what offense he may be charged.

And after sometime spent therein the Speaker resumed the Chair, and Mr. Caldwell reported, that the Committee had according to order had under consideration the Governor’s Address, and had come to the following Resolutions thereupon....

A representation from the Committee of the County of Augusta was presented to the Convention, setting forth the present unhappy situation of the country....

At the annual town meeting, it was decided to appoint a committee to draw up instructions to their representatives, suitable for the emergency. Mr. Adams was placed at the head of this committee, and reported the following paper.

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.

In this speech to the First Congress, James Madison proposes twenty amendments to the United States Constitution.

It appears from the opinion of the District Judge denying habeas corpus that he believed petitioner was deprived, in the trial court, of his constitutional right under the provision of the Sixth Amendment....

By indefinitely postponing prosecution on the indictment over petitioner's objection and without stated justification, the State denied petitioner the right to a speedy trial....

Imagine that you were locked up in a room without food and water and then fined and imprisoned because you refused, as a juror, to convict the defendants in a criminal case. This was the fate of Edward Bushell, a seventeenth-century resident of London, England.

A Supreme Court decision involving the Confrontation Clause of the 6th amendment.

The Magna Carta was the first set of rules curtailing an English king's power. It was formulated and passed under King John's reign. Specifically, it curtailed his right to arbitrarily punish subjects. It has been revised many times over the centuries.

The free fruition of such liberties Immunities and priveledges as humanitie, Civilitie, and Christianitie call for as due to every man in his place and proportion....

The Constitution should be interpreted in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject....

The admission of the certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him.

Covington's identification and description of the shooter and the location of the shooting were not testimonial statements because they had a 'primary purpose . . . to enable police assistance to meet an ongoing emergency.'

The Molasses Act of 1733 was one of a series of acts called the Navigation Acts passed by the British Parliament meant to control the trade of its American colonies in a way that would be most profitable to the empire.

To authorize appropriations for fiscal year 2012 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year....

While the guarantees of freedom of expression are not an absolute prohibition under all circumstances, the barriers to prior restraint remain high and the presumption against its use continues intact.

Be it ordained by the United States in Congress assembled, That the said territory, for the purposes of temporary government, be one district....

The following Notes were written in Virginia in the year 1781, and somewhat corrected and enlarged in the winter of 1782, in answer to Queries proposed to the Author, by a Foreigner of Distinction, then residing among us.

We are told: 'It is a universal truth, that he that would excite a rebellion, is at heart as great a tyrant as ever wielded the iron rod of oppression.' Be it so. We are not exciting a rebellion.

The Kentucky Supreme Court denied Padilla postconviction relief on the ground that the Sixth Amendment’s effective-assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice....

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.

The right granted to an accused by the Sixth Amendment to confront the witnesses against him, which includes the right of cross-examination, is a fundamental right essential to a fair trial....

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....

The name of Milton is his monument. It is venerable, national, and sacred; and yet, with whatever glory invested, it is inscribed, and not unworthily, upon this volume.

Having considered as maturely as time will permit the circumstances of the said colonies, esteem it our indispensable duty to make the following declarations of our humble opinion, respecting the most essential rights and liberties Of the colonists....

It is a matter well known, and well understood, that by the laws of our country, every question which affects a man's life, reputation, or property, must be tried by twelve of his peers....

Coke advanced the proposition that the individual rights guaranteed by Magna Carta belonged to all, not just the nobles, and that laws contrary to those rights were invalid.

In 1964, Sam Sheppard was accused of killing his wife Marilyn. The case became a national sensation in the newspapers, and as a result, Sheppard believed that he had not received a fair trial by an impartial jury.

This Amendment reached only citizens and others within the United States or who were brought to the United States for trial for alleged offenses committed elsewhere, and not to citizens residing or temporarily sojourning abroad.

Under the Sixth Amendment, as made applicable to the States by the Fourteenth, the State, on petitioner's demand, was required to make a diligent, good faith effort to bring petitioner to trial in respondent's court.

"The plaintiffs in error and Thomas St. Clair were indicted jointly for the murder of Maurice Fitzgerald upon the high seas, on board of an American vessel....

I am sorry to be accessary to the loss of a single moment of time by the House.

"In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain....

In the present case the jury were suffered by the court's officer to separate without giving a verdict.

In light of the policies underlying the right to a speedy trial, dismissal must remain, as noted in Barker v. Wingo, ... 'the only possible remedy' for deprivation of this constitutional right.

After the Pennsylvania Convention ratified the new constitution on December 12, 1787, by a vote of 46 to 23, twenty-one members of the minority signed a dissenting address that appeared in the Pennsylvania Packet and Daily Advertiser....

This work contains records of the proceedings and discussion over the framing of the Constitution in 1787.

'Let me inform my fellow-subjects in America, that a resolution of the British Parliament can at any time set aside all the charters that have ever been granted by our monarchs.'

The provision for a Public Defender should be imbedded in our statutes. No law could be more economical – none more humane.

This cause was now tried, by a special jury, upon an amicable issue, to ascertain, whether the debt due from Spalding, and the right of action to recover it, belonged to the State of Georgia, or to the original creditors....

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.

The works of John Adams.

My last to you was of Oct. 8 by the Count de Moustier. Yours of July 18. Sep. 6. & Oct. 24. have been successively received, yesterday, the day before & three or four days before that.

Though you have doubtless heard most of the proceedings of the States General since my last, I will take up the narration where that left it, that you may be able to separate the true from the false accounts you have heard.

The mere passage of 19 months between the original arrests and the hearings on the later indictments is not ipso facto a violation of the Sixth Amendment's guarantee of a speedy trial.

The discharge of the jury from giving a verdict in a capital case, without the consent of the prisoner, the jury being unable to agree, is not a bar to a subsequent trial for the same offence.

The Virginia Declaration of Rights, drafted in 1776, heralds the inherent rights of man--rights the protection of which provides citizens the motivation to rebel against an unjust government.

This Supreme Court case dealt directly with the Common Law tradition of a trial by jury. Williams was tried for robbery in the State of Florida, but his trial consisted of 6 jury members, not the typical 12. Williams petitioned the Supreme Court, claiming that his Sixth Amendment rights were violated because of the smaller jury. Justice White explained that the...

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Education history in America is important to know. ITO traces how education has changed from the colonial period to present day America.
At Intellectual Takeout, we think it's about time freedom went viral. Before our generation is the opportunity to embrace freedom, to unleash each individual's potential, and to have a prosperous future. And yet it seems that almost everyone running our cities, states, and federal government is intent on destroying freedom and burying us in debt to pay for it. If you, like us, believe that...
In the genre of documentaries revealing the problems with public education, "Kids Aren't Cars" focuses on helping us understand how schools are modeled after a factory system and what we need to do to change them. Understandably, treating kids as if they are a product to be manufactured has had detrimental effects on children going through the system and the overall level of education in America...
"Many parents and taxpayers feel helpless because the problems can seem so monumental. 'Kids Aren't Cars' director Kyle Olson reviews what he learned in the filmmaking process and the small things individuals can do that will add up to make a big difference." Here's Kyle being interviewed on a few things you can do and share with friends, family, and educators: Part 1Part 2
We all know Facebook is awesome for keeping up with friends, sharing about your life, and even distributing ideas. One great new way to get people thinking is to take advantage of the new banner profile with the help of Intellectual Takeout. Here's what one of our banners looks like loaded up on a Facebook profile: If you haven't changed your banner profile, than Facebook is likely ...
Tired of business getting a bum rap? We are, too. Here's your chance to share on Facebook the good news that business is good, beautiful, and makes life better.
While many documentaries on the education system focus on various examples of failure, "Flunked" takes a bit different tack. While certainly acknowledging and exposing the failures of the system, "Flunked" also seeks out individuals and approaches that ARE working in education. The hope is that these points of hope may serve as examples for others working in education.  Here's the trailer:...
Okay, so your friends and family keep telling you to jump on the social media bandwagon, but you have no idea what the fuzz is about. Here’s the deal: The Internet gives liberty-loving folk like us an opportunity we have never had before: to make the case for individual liberty, limited government and free market economics instantly and globally. But with the vast amounts of information...

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Looking for an internship? If so, Intellectual Takeout has an opportunity for you. We have plenty of work to do as well as ideas to spread, and we need your help to get it done. If you're interested in an internship with Intellectual Takeout, you likely share our passion and you're excited about the possibility of working for a great cause. That said, you might have a few questions about what "...
The Association of American Educators (AAE) advances the teaching profession through personal growth, professional development, teacher advocacy and protection, as well as promoting excellence in education so that our members receive the respect, recognition and reward they deserve.
Are you concerned your child isn't getting the education necessary to compete in the global economy or even, perhaps, to carry on the lessons and learning of Western Civilization? If so, you have a number of choices. You could, of course, consider changing schools to a charter school, private school, or even homeschooling. If that's overwhelming for you right now, you can always supplement your...
Curiously, not a few individuals are realizing that their education (K-12 and even college) neglected to provide them with as much understanding of the world as they would like. At Intellectual Takeout, we believe that however you feel about your education, there is still much to be learned. To that end, we'd like to refer you to one book and a collection of "study guides" that serve as...
Sure, the idea of homeschooling is likely overwhelming. Indeed, homeschooling is a big commitment and a lot of work. That said, there's a reason why more and more parents are turning to homeschooling as the best option for their child(ren)'s education(s). Perhaps you are starting to realize that the public school system has changed a lot since you last attended it. Maybe you can't afford private...
Know your rights with Flex Your Rights guide to the "10 Rules for Dealing with Police."
In a highly regulated society such as ours, it's very easy to get yourself in trouble with the law. Learn more about how to protect yourself with the 5th Amendment and how to interact with the police.
Let's face it, most of us love to watch TV and movies. A wonderful way to spread ideas is to embrace our love of the cinema by hosting a movie night with friends and family.  There are numerous documentaries that do a fantastic job of sharing the ideas of liberty. You can pull a small group of friends together at your house or even consider asking a local restaurant or tavern to let you...
Watch "Waiting for Superman" to learn about the problems with the public education system.
Another movie that tells the story of the failing public school model in the United States is “The Lottery”. It takes its own unique look at the systems by focusing on the use of lotteries to choose which children will be plucked from failing public schools and put into more successful public charter schools. Here’s the trailer:  You can watch the whole movie right now with the help of Hulu...
While there are a variety of really good documentaries about the failing public school systems in America, "The Cartel" stands alone in its frontal assault on the teacher unions, particularly those in New Jersey. If you'd like to get an inside look into how some teacher unions operate and the effects they have on education, you'll want to watch "The Cartel."From the movie's website: "This movie...
How often do you hear conservatives being called a bunch of knuckle-dragging Neanderthals? Here's the reality: Conservatism, classical liberalism, and libertarianism have a rich, intellectual heritage reaching back many millennia. Our ideas are not just some historical relics from bygone eras; they are the very foundation of Western Civilization in general, amd the United States in particular....
Sadly (or happily for some), life goes on after college. So does the fight for freedom. Building friendships, networking, and growing the movement is critical after college. If our ideas are to be preserved and promoted, you need to stay involved. Plus, in a time when the individual seems to be ever more isolated and adrift, these groups can help plug you into social networks you can use....
Okay, so we don't expect you to drive a wooden stake into your flat screen. Plus, we're total hypocrites since we watch some TV. But here's the point: People waste a ton of time watching TV. If you're cool with government taking over your future, than keep watching Dancing with the Stars. If you consider yourself to be a free man or woman and want to live in a free society, then watch what you...
A great way to make a difference on your campus by spreading the ideas of individual rights, limited government, and free markets is to tutor. Plus, you can occasionally make a little bit of money. Depending on the subject matter, you will be discussing a variety of ideas, key thinkers, and theories. As anyone who has tutored knows, there are almost always opportunities to expand upon a topic....

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We've built Intellectual Takeout to provide you with quick, easy access to information. In time, we hope to become your one-stop-shop for the ideas of freedom. If your professor allows you to bring your laptop to class (if not, you can use an iPhone), we recommend keeping a tab open to Intellectual Takeout. As we continue to generate new content on the site, you will be able to fact check the...
When it comes to campus life injustices, student fees rank high on any list. On most campuses across the country a mandatory student fee is assessed to each student at the beginning of the year. A portion of this fee, which may be several hundred dollars, will go toward funding various political, religious, and interest groups.  A college requiring you to support groups espousing ideas which...
If you're not happy with the direction of the country and you want to take back your future, at some point you will have to do something. It's not enough to just know that we're going in the wrong direction. You actually have to step out and get involved. Most college campuses have conservative and libertarian student groups. Find one of them to join. Below is a list of some of the larger non-...
Now that you're at college and the initial excitement has worn off, maybe you're thinking that the course selection is a bit biased and you'd like some options. So how do you (the consumer) get the college (the business) to change up its offerings? It certainly won't be easy. Nevertheless it's something that should be done--particularly since you're footing the bill. A good, education in a free...
Whatever activism you choose to do on campus, you need to get your story out. A popular tactic used by the Left is to isolate and intimidate freedom-loving students. You're not alone and there are a lot of people in your city, state, and country that can probably support your efforts. They just need to know what is happening. Whenever you can, record in-class bias, discrimination against...
The reality is that most students (and people for that matter) won't speak out. It's called human nature and it was recognized in the Declaration of Independence: "...all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed." While you might feel alone when debating a teacher,...
In the land of the free and the home of the brave, speech codes are a particularly odious example of politically correct repression on many a college campus. In some ways, college campuses are the least free places for thinking and speech in America. Your best friend for fighting your school's repressive speech codes is the Foundation for Individual Rights in Education (FIRE). Here's a short clip...
Running for office isn't easy, even in college. Not everyone is cut out for it, either. For those of you who are, this completely non-partisan section is for you. If you are inclined to pursue student government, we're not going to spend time on telling you how to get elected. A good place to go for ideas and training is CampusReform.org. Rather, we want to help you in office, as a believer in...

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