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at the reason for the delay (so as not to disadvan-

tage the defense when the prosecution asks for a

delay of the trial for its own advantage; however,

a delay can be made to secure absent witnesses

or for other practical considerations). The final

factors the Court considered important in decid-

ing whether a defendant’s right to a speedy trial

had been violated were: the time and manner in

which a defendant has asserted his/her right and

the degree of prejudice any delay has caused to

the defendant.

In cases where the reviewing court ﬁ nds that

a defendant’s right to a speedy trial was violated

(under any part of the four-point test), the Supreme

Court has adopted an ad hoc approach to balance

the rights of the accused with justice for the pub-

lic. In its outline of the four-point test, the Court

recognizes that these four points are merely some

of the factors that courts should take into account

in their determination as to whether a defen-

dant has been deprived of his right to a speedy

trial under the Sixth Amendment. The Court has

also pointed out that a failure of the defendant

to demand the right to a speedy trial cannot be

construed as a waiver of this right, but any acqui-

escence to a delay on the defendant’s part, when

it works to his/her advantage, should and can be

used against any later assertion that she has been

denied this right. Overall, in determining whether

a violation has occurred, the Court recommends

that courts should also look to the possible preju-

dices and disadvantages suffered by a defendant

during any delay.

In such cases where a violation has been

deemed to have occurred, the Supreme Court

has held that in these instances the only appro-

priate remedy would be for the indictment to be

dismissed and/or the conviction to be overturned.

After the reversal or dismissal of a criminal case

on the grounds that there has been a violation of

a defendant’s right to a speedy trial, no further

prosecution for the alleged offense can take place

again.

For more information: Ellard, Patrick. “Learn-

ing from Katrina: Emphasizing the Right to a

Speedy Trial to Protect Constitutional Guarantees

in Disasters.” American Criminal Law Review

44, no. 3 (2004): 1,207–1,238; Freedman, Warren.

The Constitutional Right to a Speedy and Fair

Criminal Trial. Westport, Conn.: Quorum Books/

Greenwood Publishing Group, 1989; Herman,

Susan N. The Right to a Speedy and Public Trial:

A Reference Guide to the United States Constitu-

tion. 3d ed. Westport, Conn.: Praeger, 2006; Mis-

ner, Robert L. Speedy Trial: Federal and State

Practice. Contemporary litigation series. Charlot-

tesville, Va.: Michie, 1983.

—Dale Mineshima-Lowe

right to bear arms (Second Amendment)

(1791)

The Second Amendment of the Constitution, part

of the Bill of Rights, establishes the right to

keep and bear arms. Scholars disagree over whom

the right applies to and exactly what it means.

The amendment reads: “A well regulated mili-

tia, being necessary to the security of a free state,

the right of the people to keep and bear arms, shall

not be infringed.” Because its meaning is strongly

contested, the Second Amendment continues

to be one of the most controversial parts of the

Constitution. Controversy stems from attempts to

interpret the meaning of each of the clauses, to

understand the original intent of the fram-

ers, and to interpret the contemporary relevance

of the amendment in the context of changes in the

nature of the militia, the increasing deadliness of

ﬁ rearms, and ﬁ erce debates over ﬁ rearms in U.S.

society. While two broad approaches—the collec-

tive rights perspective and the individual rights

perspective—have dominated interpretations of

the Second Amendment, newer approaches have

recently emerged.

According to the collective rights interpreta-

tion, the Second Amendment confers a collective

right to bear arms in a governmentally organized,

“well regulated militia,” not an individual right to

personal ownership. Emphasizing the first two

clauses of the amendment, advocates of this posi-

tion argue that the founders were not arguing

over the individual right to own and carry arms

but were concerned with giving states the right

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to have organized militias as a counterbalance to

federal power. Supporters of the collective rights

interpretation stress that the Second Amendment,

however interpreted, does not preclude gun reg-

ulation. Up until the 1970s, the majority of law

review articles tended to support this approach,

as have the courts.

The individual rights interpretation, emphasiz-

ing the last clause of the amendment, argues that

the Second Amendment establishes a constitu-

tionally protected right for individuals to own and

bear arms. Advocates of this approach sometimes

refer to it as the “standard model,” emulating the

standard model in physics and apparently trying

to put their interpretation beyond disputation.

This is now the dominant interpretation of the

Second Amendment in terms of the number of

law review articles. Many supporters of this per-

spective acknowledge that reasonable restrictions

may be imposed on gun ownership. This approach

received powerful support in 2001 when then

Attorney General John Ashcroft endorsed it in a

letter to the National Riﬂ e Association. The Jus-

tice Department subsequently reversed its long-

standing collective rights interpretation of the

meaning of the Second Amendment in two briefs

to the U.S. Supreme Court.

Four Supreme Court decisions, as well as

numerous lower court decisions, touching most

directly on the Second Amendment have all sup-

ported the collective rights interpretation. Three

of the Supreme Court cases dealing with Sec-

ond Amendment issues date to the 19th century:

United States v. Cruikshank, 92 U.S. 542 (1876);

Presser v. Illinois, 16 U.S. 252 (1886); and Miller

v. Texas, 153 U.S. 535 (1894). Advocates of col-

lective and individual rights interpretations have

both claimed support for their position in the only

20th-century decision, United States v. Miller

(1939). In that case, the Court ruled that a sawed-

off shotgun has no utility as a ﬁ rearm in a mili-

tia, thus supporting the view that the amendment

referred to militias rather than individuals. Some

legal scholars expect the Court to take up a Sec-

ond Amendment case in the near future.

More recent interpretations have attempted

to reconcile differences between collective and

individual interpretations. Constitutional scholar

Akhil Reed Amar has offered a “republican” read-

ing of the Second Amendment. He argues that

collective, or states rights, interpreters fail to give

enough weight to the Founders’ equation of the

militia with much of the adult, white male citi-

zenry, while he faults individual rights advocates

for ignoring that this was a right of all the “peo-

ple,” rather than persons, and of failing to note

that the phrase bear Arms has a military meaning

and does not refer to individual gun ownership for

activities such as hunting or protection. Amar sug-

gests that the Fourteenth Amendment (1868)

freed the Second Amendment from its connection

to the militia and established it as an individual

right. Disagreeing with Amar, Uviller and Merkel

argue that while the Second Amendment origi-

nally referred to an individual right to bear arms

in an organized, governmentally sponsored mili-

tia, they suggest that the amendment “fell silent”

with the decay of the old militia and its eventual

displacement by the National Guard. Thus, they

argue that the conditions under which the Second

Amendment made sense no longer exist and that

the amendment is now irrelevant, although they

acknowledge that it could become relevant again

under changing circumstances.

Columbine High School teacher Patty Nielson

speaks at a Senate policy committee hearing on

gun safety legislation, as Senator Tom Daschle

looks on, May 15, 2000, in Washington, D.C.

(Smith/Newsmakers)

right to bear arms 613

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The Supreme Court ﬁ nally resolved this debate

between individualist or a collective reading of

the Second Amendment in District of Columbia

v. Heller, ___ U.S. ___ (2008). In that case, Jus-

tice Antonin Gregory Scalia wrote for a 5-4

majority holding that the right to bear arms con-

ferred an individual right. How that decision will

affect gun laws is critical.

Moreover, the Second Amendment has never

been incorporated through the Fourteenth

Amendment to be binding on individual states.

This means that states are free to regulate, if not

ban, guns if they so wish.

For more information: Amar, Akhil Reed. For

the People: What the Constitution Really Says

about Your Rights. New York: Free Press, 1998;

Malcolm, Joyce Lee. To Keep and Bear Arms: The

Origins of an Anglo-American Right. Cambridge,

Mass.: Harvard University Press, 1994; Uviller, H.

Richard, and William G. Merkel. The Militia and

the Right to Arms, or, How the Second Amend-

ment Fell Silent. Durham, N.C.: Duke University

Press, 2002.

—Walter F. Carroll

right to counsel

The Sixth Amendment to the U.S. Constitution

guarantees anyone accused of a crime the right

to “the Assistance of Counsel for his defense.”

The Judiciary Act of 1789 confirmed this

guarantee in statute law, giving all parties in fed-

eral court the right to “manage and plead” their

cases with the assistance of counsel. Another fed-

eral statute, enacted in 1790, authorized federal

judges to appoint counsel for indigent defendants

in capital cases, and there is evidence that fed-

eral judges also did so in some noncapital cases.

Not until Johnson v. Zerbst, 304 U.S. 458 (1938),

did the Supreme Court require counsel to be pro-

vided to all indigent federal defendants, stating:

“The Sixth Amendment withholds from federal

courts, in all criminal proceedings, the power

and authority to deprive an accused of his life or

liberty unless he has or waives the assistance of

counsel.”

While many state constitutions contained lan-

guage similar to the Sixth Amendment, state inter-

pretations varied. Some states adopted statutes

requiring courts to provide counsel in at least some

criminal cases, while others did not. The Four-

teenth Amendment, ratiﬁ ed in 1868, required

states to provide due process of law in criminal

prosecutions but did not specify what that meant.

The Supreme Court did not consider the right to

counsel in state courts until Powell v. Alabama,

287 U.S. 45 (1932), a capital case also known as

the “Scottsboro Boys” case. Justice Sutherland,

writing for the majority, concluded that “the right

to the aid of counsel” was a fundamental aspect

of due process: “The right to be heard would be,

in many cases, of little avail if it did not compre-

hend the right to be heard by counsel.” In BETTS

V. BRADY, 316 U.S. 455 (1942), a closely divided

Supreme Court declined to extend this principle

to all state criminal cases, ruling that the state

was required to provide counsel in noncapital

cases only when “special circumstances” made the

appointment of counsel necessary for a fair trial.

The landmark decision of GIDEON V. WAIN-

WRIGHT, 372 U.S. 335 (1963), rejected this

approach. The Supreme Court unanimously held

that states must provide counsel to all indigents

facing serious charges: “The right of one charged

with crime to counsel may not be deemed funda-

mental and essential to fair trials in some coun-

tries, but it is in ours.” Later cases applied this

principle to misdemeanor cases (Argersinger v.

Hamlin, 407 U.S. 25 [1972]), but only where the

actual punishment included incarceration, either

directly (Scott v. Illinois, 440 U.S. 367 [1979])

or as part of a suspended sentence (ALABAMA

V. SHELTON, 535 U.S. 654 [2002]). In 1967 the

right to counsel was also extended to most juve-

nile court proceedings (IN RE GAULT, 387 U.S. 1).

On the same day that Gideon was decided, the

Supreme Court extended the right to counsel to

the initial appeal, basing its decision on the Four-

teenth Amendment’s equal protection clause

as well as the due process clause. The Supreme

Court has declined to extend this right to other

appeals, although some states provide additional

legal assistance to indigent appellants.

614 right to counsel

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In 1970 the Supreme Court began to address

the issue of effective counsel, noting in McMann

v. Richardson, 397 U.S. 759, that “it has long

been recognized that the right to counsel is the

right to effective assistance of counsel.” But the

standard announced in Strickland v. Washington,

466 U.S. 668 (1984), changed little. To be consid-

ered ineffective, a lawyer’s performance must be

so unreasonably deﬁ cient that it “undermines the

proper functioning of the adversarial process.” As

late as 2000, a federal appellate court found that

even though a defendant’s lawyer slept through

“substantial portions” of his capital murder trial,

proof that this prejudiced the trial’s outcome was

also required for an ineffective assistance of coun-

sel claim (Burdine v. Johnson, 231 F.3d 950 [5th

Cir. 2000]). In recent years the Supreme Court

has looked more closely at ineffective counsel

claims, particularly in capital cases. In Wiggins

v. Smith, 539 U.S. 510 (2003), counsel’s failure to

investigate and present mitigating evidence in the

sentencing phase was held to be ineffective assis-

tance of counsel. In Rompilla v. Beard, 545 U.S.

374 (2005), a divided Supreme Court ruled that

counsel’s failure to obtain and review prosecuto-

rial materials also constituted ineffective assis-

tance of counsel.

Justice Sutherland noted in Powell v. Alabama

(1932) that the pretrial period includes the most

critical stages of the prosecution, and that defen-

dants are “as much entitled to such aid [of counsel]

during that period as at the trial itself.” As early

as 1959 (in Spano v. New York, 360 U.S. 315),

four of the nine Supreme Court justices agreed

that interrogating a defendant in the absence of

his lawyer was a denial of his right to counsel. The

Supreme Court adopted this view in M

IRANDA V.

ARIZONA, 384 U.S. 436 (1966), but based its deci-

sion primarily on the Fifth Amendment right

against self-incrimination rather than the

Sixth Amendment right to counsel.

The Supreme Court soon expanded the right

to counsel to other nontrial settings, including

the preliminary hearing, the arraignment, lineups

occurring after charges had been brought, plea

bargaining, and sentencing. During such “critical

stages,” where “substantial rights” of an accused

might be affected, due process required that the

“guiding hand of counsel” be available. In United

States v. Wade, 388 U.S. 218 (1967), a case deal-

ing with the right to counsel during lineups, Justice

William J. Brennan, Jr., wrote: “It is central to

that principle [right to counsel] that in addition to

counsel’s presence at trial, the accused is guaran-

teed that he need not stand alone against the State

at any stage of the prosecution, formal or informal,

in court or out, where counsel’s absence might der-

ogate from the accused’s right to a fair trial.”

Even so, the right to have counsel provided

by the state does not extend to all stages where a

person with resources may choose to have counsel

present. In cases decided primarily in the 1970s,

the Supreme Court has ruled that noncustodial

investigative questioning, lineups that precede

a formal charge, initial bail hearings, and most

parole hearings are not “critical stages.”

For more information: Baker, Liva. Miranda:

Crime, Law and Politics. New York: Antheneum,

1983; Bright, Stephen W. “Turning Celebrated

Principles into Reality.” The Champion (Janu-

ary/February 2003): 6–18. Available online. URL:

http://www.schr.org/indigentdefense/champion02.

htm. Accessed May 14, 2008; Carter, Dan T.

Scottsboro: A Tragedy of the American South.

Rev. ed. Baton Rouge: Louisiana State University

Press, 1979; Lewis, Anthony. Gideon’s Trumpet.

New York: Random House/Vintage, 1966.

—Barbara J. Hayler

right to die

The debate over the right to die is part of the

Supreme Court’s struggle to deﬁ ne liberty and the

right to privacy. While the Court has not held

that a right to die exists, it recognizes a liberty

interest in control over our bodily integrity and

the administration of medicine. The problem is

complicated by those who are incapable of acting

on their own behalf and those who wish to accel-

erate death.

The contemporary debate over a constitutional

right to die is part of a long-standing discussion

over euthanasia. Euthanasia is the purposeful and

right to die 615

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often dignified act of ending a human life. It is

differentiated from suicide by the role of a medi-

cal practitioner in relieving a person from suffer-

ing brought on by debilitating disease or late-stage

terminal illness. In modern times euthanasia

is accomplished through minimally disruptive

means such as the ingestion of powerful barbi-

turates. Although the Supreme Court has ruled

that the Constitution includes a right to refuse or

withhold medical treatment, it does not extend to

euthanasia.

Euthanasia is morally and politically controver-

sial. The policy debate involves many nuances as

revealed in emerging terminology. Active eutha-

nasia is where the physician administers the lethal

drug. Passive euthanasia typically involves medi-

cal cooperation with a hospitalized patient’s wish

to have life-sustaining treatment withdrawn at

some point—a matter increasingly addressed by

living wills. Physician-assisted suicide is where

a patient self-administers a lethal potion while

being medically attended. The term mercy killing

increasingly connotes incomplete consent, possibly

because of mental disability, to allow for assisted

suicide. Euthanasia can take two forms. Passive

euthanasia involves the withholding of medicine,

including nutrition. Active euthanasia involves

administering drugs to hasten death. The situa-

tions arise when life is unbearable or unrecogniz-

able to the patient. This may be due to complete

incompetence—including loss of brain function—

or a terminal illness.

In many of these instances, advocates have

worked to change state laws to allow for doctors’

assistance in ending life. Dr. Jack Kevorkian chal-

lenged the legal prohibitions to assisted suicide

and helped people end their lives. Opponents of

euthanasia raise several concerns. Some are reli-

gious—only God can take a life. Others make a

similar argument but focus on the biology; if the

heart beats and the patient can breathe—even

though through a machine—the patient lives.

These groups debate life deﬁ ned by its quality ver-

sus life deﬁ ned by its existence or deﬁ ned by forces

transcending the individual. In political terms,

the pro-euthanasia followers favor the autonomy

of the individual to control her bodily integrity,

while the latter group looks to society (and the

government) to create conditions that favor and

foster continuing life, sometimes referred to as a

“culture of life.”

Constitutional controversies follow from two

aspects of this debate. The first involves the

removal of various life support systems. This issue

is settled if the person is able to state a preference

or has stated one in an ironclad way. The Supreme

Court recognizes, as an aspect of liberty found in

the due process clause, a long-standing com-

mon law right to refuse medical treatment. Forced

feeding and ventilation are considered medi-

cal treatment. If the person cannot exercise that

choice, how then should that decision be made?

An incompetent patient is assigned a guardian—

usually a close family member such as a spouse or

parent—who acts on his behalf. He may also have

left instructions while competent. Other acquain-

tances may be able to speak to those wishes. States

have required that evidence of these previous

beliefs be clear and compelling. That is a demand-

ing legal standard. Those states choose to make

biological life the default position even if it means

opposing the apparent wishes of the patient.

The Court ﬁ rst confronted these issues in C

RU-

ZAN V. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH,

497 U.S. 261 (1990). Nancy Cruzan, a healthy 25-

year-old woman, suffered severe brain damage as

a result of a car accident. She slipped into a per-

sistent vegetative state; after it was clear that she

would not regain her mental faculties, her parents,

acting as her guardian, asked the hospital to with-

draw her feeding tube. The hospital staff refused.

The state of Missouri allowed for the removal

of medical support only under conditions where

there was clear and convincing evidence that the

patient had expressed a desire for this. The state

courts ruled that Nancy had not made such a dec-

laration clearly and convincingly.

In this case, the U.S. Supreme Court reiter-

ated the due process liberty right to refuse medi-

cal treatment but refused to bring it under the

umbrella of privacy rights. This leaves the right to

die as implied (but not stated) and strongest in the

case of a competent person who chooses to refuse

medication. But this case involved a mentally

616 right to die

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incompetent person, and the Court ruled that the

state law requiring clear and convincing evidence

of her previous views was reasonable. Conse-

quently, the Court left it to the states to deter-

mine the mechanism of how the liberty interest

is exercised in the case of an incapacitated/incom-

petent patient. This set the stage for Terri Schiavo.

In this gruesome case, Ms. Schiavo collapsed in

1990 and fell into a persistent vegetative state.

Her parents challenged her husband’s right to be

her legal guardian. Several times a court ordered

Ms. Schiavo’s feeding tube to be removed, and the

order was either stayed or reversed at the behest of

her parents. The case revolved around a ﬁ ght over

who best represented her interests—who should

be her guardian—and also a profound disagree-

ment over the meaning of being alive. The ques-

tions became reduced to “whose life is it?” Who

can make a claim on it? Eventually, in 2005, the

husband prevailed.

The second aspect of the right to die contro-

versy involves the request by a patient to accel-

erate death or to escape a debilitating condition,

such as profound dementia. This is the Dr. Kev-

orkian story. Most states view the ingestion or

injection of drugs intended to bring about death

as different from the withdrawal of nutrition that

may also lead to death. Consequently, most states

outlaw this use of drugs. These laws are based on

a long tradition of opposition to suicide.

In 1997, the Supreme Court ruled on suits

against laws prohibiting assisted suicide in New

York (Vacco v. Quill, 521 U.S. 793 [1997]) and

Washington (Washington v. Glucksberg, 521 U.S.

702 [1997]). In both cases, the Supreme Court

upheld the laws. The Court reasoned that a long-

standing tradition rejecting suicide and assisted

suicide supported these laws. Many critics of the

right to die look to laws rejecting assisted suicide

as examples of how the state should exert an inter-

est in life and try to persuade the patient of the

possibility for a meaningful life. So far, only one

state has challenged this trend.

In 1994, Oregon passed the Death with Dig-

nity Act, which allows for doctors to assist their

patients to end their lives when death is immi-

nent. When the Oregon law reached the Supreme

Court, the Court did not address the constitu-

tional issues. Instead the Court focused on the

national Controlled Substances Act, which dealt

with trafﬁ cking illegal drugs. Oregon’s law did

not fall under this, and thus the Court upheld

the law. The right to die remained neither consti-

tutionally rejected nor accepted, but and a state

matter.

A liberty right in refusing medicine allows for

control over one’s body. Claiming a right to die

suggests a more active and interventionist right.

Critics fear that this right may turn into a duty:

Do not burden the system with those hopelessly

ill. Supporters of the right to die see it as ensuring

control over our lives and selves. Religious con-

cerns, individual autonomy, control over one’s life,

and a commitment to a “culture of life” are among

the large, competing themes that ensure that this

will remain a contentious issue. The Court has

implied a right to die through ratifying a right to

refuse medication, but it refuses to extend consti-

tutional protection to a robust right to die. The

Supreme Court has left the right to die debate to

the states.

For more information: Caplan, Arthur L.,

James J. McCartney, and Dominic Sisti, eds.

The Case of Terri Schiavo: Ethics at the End of

Life. Amherst, N.Y.: Prometheus Books, 2006;

Cohen-Almagor, Raphael. The Right to Die with

Dignity: An Argument in Ethics, Medicine, and

Law. Piscataway, N.J.: Rutgers University Press,

2001; Colby, William. Unplugged: Reclaiming

Our Right to Die in America. Chicago: American

Management Association, 2006; Dowbiggin, Ian.

A Merciful End: The Euthanasia Movement in

Modern America. New York: Oxford University

Press, 2003; Eisenberg, Jon B. Using Terri: The

Religious Right’s Conspiracy to Take Away Our

Rights. New York: Harper, 2005; Lavi, Shai. The

Modern Art of Dying: A History of Euthanasia

in the United States. Princeton, N.J.: Princeton

University Press, 2005; Rosenfeld, Barry. Assisted

Suicide and the Right to Die. Chicago: American

Psychological Association, 2004.

—Timothy J. Barnett and Martin Gruberg and

Douglas C. Telling

right to die 617

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right to petition the government

The “right of the people . . . to petition the Gov-

ernment for a redress of grievances” concludes

the First Amendment and overlaps with rights

to speech and assembly. While petitioning origi-

nally involved direct appeals to and responses

from the legislature, it now generally includes

any legal method of communicating political

opinions regarding government actions, whether

legislative, executive, or judicial: writing letters

to, e-mailing, or lobbying ofﬁ cials; organizing or

supporting popular referenda or ballot initiatives;

engaging in peaceful marches or protests; as well

as testifying before tribunals, ﬁ ling lawsuits, and

suing government.

The Supreme Court repeatedly describes peti-

tioning as “among the most precious liberties

safeguarded by the Bill of Rights,” implicit

in “the very idea of a government, republican

in form” (United States v. Cruikshank, 92 U.S.

542, 552 [1876], United Mine Workers of Amer-

ica v. Illinois State Bar Association, 389 U.S.

217 [1967], BE&K Construction Co. v. National

Labor Relations Board, 536 U.S. 516 [2002]).

In constitutional theory, petitioning constitutes

a nexus between expressive and political rights.

Petitioning is sometimes described as a source of

rights to speech, press, and assembly. Likewise,

petitioning is linked to the development of popu-

lar sovereignty and rights to democratic partici-

pation and control of government, with roots in

English common law, Magna Carta, and the

English Bill of Rights of 1689.

The right to petition creates incentives and pro-

tections for individuals and groups to communi-

cate, act politically, and seek political change—by

conveying citizens’ opinions directly to governing

officials, placing issues on the political agenda,

and pressuring government to respond to politi-

cal problems. The petition clause helps channel

political information, goals, and grievances into

the political process and promotes government

accountability and responsiveness.

Drawing on their English heritage, some

American colonial charters included rights to

petition that were usually enjoyed more broadly

than voting rights. Colonial assemblies heard and

responded to petitions from women, Native Amer-

icans, felons, the indigent, and slaves, as well as

white male property owners. Much colonial legis-

lation consisted of responses to petitions on issues

as varied as religious establishment; debt; prop-

erty, and tax disputes; criminal appeals; emancipa-

tion; and public corruption. The Declaration

of Independence illustrates the revolutionar-

ies’ attachment to petitioning, asserting that the

patriots’ “repeated Petitions have been answered

only by repeated injury.” During the founding,

petitioning remained a prevalent concern, earn-

ing inclusion in the First Amendment.

Following the practice of many colonial legis-

latures, Congress initially attempted to respond

to all petitions, but this was not sustainable. The

right to petition and other expressive rights were

curtailed by the Sedition Acts of 1798 and 1918,

which prohibited writing, printing, uttering, or

publishing criticisms of the U.S. government. Peti-

tioning rights rose most prominently when aboli-

tionists ﬂ ooded Congress with antislavery petitions

in the 1830s, leading to congressional “gag rules”

that shelved these petitions. The Supreme Court

never heard any cases involving congressional

restrictions on petitioning.

The right to petition nearly always entails other

expressive rights, and the Court has not developed

a speciﬁ c approach to petition, but instead treats

petitioning in conjunction with speech and assem-

bly. In Cruikshank (1876), for example, the Court

conﬂ ated petition and assembly, holding that citi-

zens may “assemble for the purpose of petition-

ing Congress for a redress of grievances.” Even in

cases that directly implicate the right to petition,

including lobbying, suing, libel actions involving

government ofﬁ cials, and lawsuits against citizens

who speak critically on political issues before gov-

erning bodies (Strategic Lawsuits Against Public

Participation or “SLAPP” suits), the Court dis-

cusses petitioning only tangentially or in connec-

tion with other expressive rights.

Although the Court repeatedly asserts the cen-

trality of the right to petition, it also permits con-

siderable limitations on petitioning. In NAACP v.

Button, 371 U.S. 415 (1963), the Court afﬁ rmed

that the right to petition supports litigating, noting

618 right to petition the government

vi+904_EofUSConsti-v2.indd 618 3/20/09 2:18:25 PM

that lawsuits can be a form of political expression

and may provide minority groups with the abil-

ity to “petition for a redress of grievances.” In the

area of antitrust, the Court’s “Noerr-Pennington

doctrine” protects those who lobby or litigate from

prosecution under antitrust law (Eastern Railroad

Presidents Conference v. Noerr Motor Freight

Inc., 365 U.S. 127 [1961], United Mine Workers

v. Pennington, 381 U.S. 657 [1965], California

Motor Transport v. Trucking Unlimited, 404 U.S.

508 [1972]). In other cases, however, the Court has

limited the right to petition. It rejects arguments

that petitions require any form of government

response: the right to petition does not require

“government policymakers to listen or respond

to individuals’ communications on public issues”

(Minnesota Board for Community Colleges v.

Knight, 465 U.S. 271 [1984]). And, in McDonald

v. Smith, 472 U.S. 479 (1985), the Court held that

the right to petition is subject to limits, arguing

that defamatory statements in a petition to gov-

ernment are not immune from libel.

For more information: Higginson, Stephen A.

“A Short History of the Right to Petition Govern-

ment for the Redress of Grievances.” Yale Law

Journal 96, no. 1 (November 1986): 142–166; Law-

son, Gary, and Guy Seidman. “Downsizing the

Right to Petition.” Northwestern University Law

Review 93 (Spring 1999): 739–766; Mark, Gregory

A. “The Vestigial Constitution: The History and

Signiﬁ cance of the Right to Petition.” Fordham

Law Review 66 (May 1988): 2,153–2,231.

—Elizabeth Beaumont

right to remain silent

The right to remain silent when being questioned

by the police is now a constitutional protection,

and this right and others are recognized as a set

of civil liberties for those that are accused of a

crime, are being considered as a potential suspect

by the police, or are being detained as a possible

suspect in a crime.

The rights contained within the warning, which

is mandatory for all police agencies to be read to

persons under criminal arrest, are derived from

several cases that were decided by the Supreme

Court. M

IRANDA V. ARIZONA, 384 U.S. 436 (1966),

and ESCOBEDO V. ILLINOIS, 378 U.S. 478 (1964), are

two of the more famous cases that allowed these

protections to be drawn from.

The Fourth, Fifth, and Fourteenth Amend-

ments to the Constitution support these rights

both implicitly and through judicial interpreta-

tions. The rights as deﬁ ned in Miranda are “You

have the right to remain silent. Anything you say

can and will be used against you in a court of law.

You have the right to speak to an attorney, and to

have an attorney present during any questioning.

If you cannot afford a lawyer, one will be provided

for you at government expense.” That warning is

now known among the law enforcement commu-

nity and populace as the “Miranda warning,” and

once the person has been “read their rights,” they

have been “Mirandized.” The restrictions of when

a law enforcement ofﬁ cer must give the warning

and in what circumstances are now well deﬁ ned as

when a person is placed in custodial interrogation.

There are some situations where the reading

of the warning is not necessary unless the sce-

nario calls for it and the officer intends for the

answers to his questioning to be utilized within

a criminal prosecution. These rights are com-

piled to avoid the situation where a person may

unintentionally incriminate himself, by allowing

them some aspect of personal freedom in that

they may refuse to answer questions, thus the

right to remain silent. The right to remain silent

begins at the very moment of the suspension of

freedom of movement, or at the time of arrest,

through to the end of any criminal proceedings

against the accused. In 1963, Ernesto Miranda, a

grade-school drop out, was arrested by the police

in Arizona for allegedly kidnapping and raping an

18-year-old woman of special needs who report-

edly had challenged intelligence levels. Miranda

was not informed that he had any rights to coun-

sel, to remain silent, or to refuse questioning; thus

Miranda signed a written confession, thereby

incriminating himself. Miranda was convicted and

his appeals went to the Supreme Court. At that

stage the case was enjoined by three others, one

being the Danny E

SCOBEDO V. ILLINOIS case. The

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Escobedo case involved a murder suspect who was

denied his right to counsel and not advised

that he could remain silent during the interro-

gations. Escobedo did not remain silent and he

confessed to his complicity in the crime and was

convicted. The decisions by the Supreme Court in

both cases threw out the confessions for basically

denying the defendant the rights aforementioned

and established that the police could not use state-

ments made by defendants while in police custody

unless the police had advised these defendants of

their rights.

In U

NITED STATES V. DICKERSON, 530 U.S. 428

(2000), the Supreme Court recognized that the

Miranda rules were constitutional and not advi-

sory in nature. Moreover, they worked for both

those under police scrutiny and those arrested. In

addition, the decision further cemented the prac-

tice within the eyes of the Court by deﬁ ning that

the Congress cannot alter or rule over the applica-

tions made by the Court, and thus the likelihood

that the Miranda rule will ever be overturned

is even smaller. Yet the trade-off is that a guilty

person can go free if there is a procedural error

within the arrest process. If seen through the

eyes of the Miranda case, if the prosecution can

corroborate information outside of the excluded

confession or other evidence about the crime in

question, then the person will more than likely be

convicted. Miranda never quite got his freedom,

in that a girlfriend of his testified that he had

admitted to her that he had committed the rape

and kidnapping. Miranda went to jail and never

quite got his life on track, as he was arrested sev-

eral times. Upon his release from jail, Miranda

was killed in a bar ﬁ ght by a man who was out of

jail allegedly because he was not read his rights

and suffered some self-incrimination. The man

that killed Miranda never self-incriminated him-

self in the Miranda murder and remained silent

on the issue, and thus was never convicted for the

crime of murder.

For more information: LaFave, Wayne R., Jer-

old H. Israel, and Nancy J. King. Criminal Proce-

dure. St. Paul, Minn.: Thomson/West, 2004.

—Ernest Gomez

right to trial by jury

In the United States every person accused of a

crime has a constitutional right to a trial by jury

under the Sixth Amendment. The right to a

trial by jury was later extended to defendants in

state courts under the due process clause of the

Fourteenth Amendment.

A trial by jury in the United States is applicable

in both criminal and civil cases, where the use of a

jury in a trial has often been viewed as an impor-

tant check against state power and is believed

to provide a fairer hearing for parties. The right

to a jury trial has always been dependent on the

nature of the offense with which the defendant

is charged; for example, petty offenses are not

covered by the jury requirement under the Sixth

Amendment. An exception to the petty offenses

and jury requirement was passed by the Supreme

Court with Blanton v. North Las Vegas, 489 U.S.

538 (1989), in which it ruled that “offenses for

which the maximum period of incarceration is

six months, or less, are presumptively petty . . . a

defendant can overcome this, and become entitled

to a jury trial, . . by showing that additional penal-

ties [such as monetary ﬁ nes] . . . are . . . so severe

[as to indicate] that the legislature clearly deter-

mined that the offense is a serious one.” The lack

of jury requirement also pertains to multiple petty

offenses that exceed six month imprisonment, as

well as proceedings in state juvenile courts.

Jurors are normally selected through the use of

voter registration and drivers’ licenses, and then

prescreened as prospective jurors for specific

cases, through answering questions regarding citi-

zenship, disabilities, understanding of the English

language, and whether there are any considerations

that would excuse them from serving on a jury.

These jurists are generally not legal professionals

but are ordinary citizens who collectively form a

panel that then forms a verdict regarding the case

from the evidence presented by both the prosecu-

tion and defense. Normally, a jury has comprised

12 individuals, and verdicts had to be unanimous,

according to traditions adopted by the Constitu-

tion from England. However, with the establish-

ment of the Fourteenth Amendment, extending

the right to trial by jury to defendants in state

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vi+904_EofUSConsti-v2.indd 620 3/20/09 2:18:26 PM

courts under the due process clause, the Supreme

Court reevaluated these requirements for una-

nimity and number of jurors. The Supreme Court

ruled that despite historical basis and precedent

mandating unanimity in federal jury trials under

the Sixth Amendment, the due process clause of

the Fourteenth Amendment did not incorporate

this and therefore did not require unanimity of

decisions in state jury trials, and there juries could

comprise six rather than 12 jurors.

Originally, the Constitution required that

defendants be tried by juries from the state in

which the crime was allegedly committed. The

Supreme Court upheld this requirement in Bea-

vers v. Henkel, 194 U.S. 73 (1904). Decisions

regarding the location of a trial were based upon

where the alleged offense occurred; if the offense

occurred across multiple districts, the trial may

then be held in any of those locations. Also in

cases where offenses were alleged to be commit-

ted outside of any state (for example, at sea), Con-

gress would determine the place of trial and jury.

Another important aspect of the right to jury

trial is the impartiality of the jury. To establish

impartiality, both the prosecution and defense are

allowed to question potential jurors to determine

any biases, challenging the inclusion of a particular

juror, with the court having ﬁ nal determination on

the validity of these challenges. An additional fac-

tor considered is the composition of a jury panel to

ensure that it represents a fair cross-section of the

community. In this regard, a defendant may estab-

lish that the requirement of impartiality has been

violated, if it can be shown that the jury panel

excludes a “distinctive” group from within the

community, which exclusion then has an impact

on the outcome of the case. The Supreme Court

established impartiality as a deciding factor in

Taylor v. Louisiana, 419 U.S. 522 (1975), where it

invalidated a state law that exempted women from

jury service, while it had not done the same for

men. A further example regarding impartiality of

juries arose in the Rodney King case (California,

1992). The infamous case raised questions about

prejudice and the racial biases of jurors, when

the jury (consisting mostly of whites without any

black jurors) acquitted the white police ofﬁ cers

of violently beating a black man (Rodney King),

despite an incriminating videotape of the action.

The decision in this case, while leading to fur-

ther questioning about the nature of juries in trial

cases, also led to violent riots and racial clashes.

Lastly, in a vast number of criminal cases,

defendants choose to resolve the case by nego-

tiation resulting in a plea bargain. Alternatively,

defendants may choose to waive their right to a

jury trial, in which case a bench trial (with the

judge deciding) is held. However, in U.S. federal

courts, there is no absolute right to waive a jury

trial, although in most states, the defendant does

have an absolute right to waive a jury trial without

the need for the prosecution or court’s consent.

For more information: Banaszak, Ronald, Sr.,

ed. Fair Trial Rights of the Accused: A Documen-

tary History. Westport, Conn.: Greenwood Press,

2002; Butler, Jeff E. “Petty Offenses, Serious Con-

sequences: Multiple Petty Offenses and the Sixth

Amendment Right to Jury Trial.” Michigan Law

Review 94 (1995): 872–897; Cortner, Richard C.

The Supreme Court and Civil Liberties Policy.

Palo Alto, Calif.: Mayﬁ eld Publishing, 1975; Hoff-

man, Morris B. “The Case for Jury Sentencing.”

Duke Law Journal 52 (2003): 951–1,010; Dripps,

Donald A. About Guilt and Innocence: The Ori-

gins, Development, and Future of Constitutional

Criminal Procedure. Westport, Conn.: Praeger,

2003.

—Dale Mineshima-Lowe

right to vote

The right to vote refers to the constitutional right

to choose elected ofﬁ cials among a range of candi-

dates with competing views. While the Constitu-

tion does not explicitly grant individuals the right

to vote, the United States Supreme Court has

ruled that it is a fundamental right protected by

this document.

Nowhere in the United States Constitution is

there an explicit declaration of the right to vote.

More speciﬁ cally, Article II, Section 1 grants to

the states the authority to determine how they will

allow for the selection of electors to choose the

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