Rights You Thought Were Protected by the Constitution But Are Not

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KyJim

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Rights You Thought Were Protected by the Constitution But Are Not

I thought it would be interesting to list some “rights” a lot of folks think they have but which are not protected by the U.S. Constitution. In some cases, there may be a federal statutory right or court rule that provides protection. In other cases, state constitutions, statutes, and court rules may give additional protection. Anyway, here goes:

  • There is no constitutional right to appeal a criminal conviction. A statutory right to appeal a death sentence was established in 1889 with a general right to appeal a criminal conviction established by statute in 1911. See Abney v. United States, 431 U.S. 651, 656 (1977).
  • There is no constitutional right to a unanimous verdict in non-death penalty criminal trials. Apodaca v. Oregon, 406 U.S. 404 (1972) and Johnson v. Louisiana, 406 U.S. 356 (1972).
  • There is no constitutional right for states to require a twelve-member jury. The Supreme Court has upheld the use of a six-member jury. Williams v. Florida, 399 U.S. 78 (1970).
  • Most courts allow parties to use peremptory strikes; i.e., strike potential jurors for almost any reason (they can’t be based on race or sex for example). However, this is not a constitutional right. Ross v. Oklahoma, 487 U.S. 81, 88, (1988).
  • You have the right to counsel and you have the right to represent yourself at a criminal trial. You do not have a constitutional right to “hybrid counsel” where you have an attorney and also represent yourself. McKaskle v. Wiggins, 465 U.S. 168, 183 (1984).
  • There is no constitutional right of allocution at sentencing; i.e., to speak on your own behalf. Hill v. United States, 368 U.S. 424, 428 (1962).
  • The Fourth Amendment does not require a search warrant. It prohibits unreasonable searches. There is a strong preference for search warrants, however, and warrantless searches are limited. Three common exceptions are for (1) probable cause plus exigent circumstances, (2) certain safety related searches, and (3) searches by consent. There are a few other exceptions as well. Cases are too numerous to cite.
  • The federal government cannot try you for felonies unless a grand jury indicts you (does not apply to military trials). However, that right has not been incorporated by the due process clause of the 14th Amendment and is not applicable to the states. Hurtado v. People of State of Cal., 110 U.S. 516 (1884);
 
Practice becomes custom, custom becomes tradition, and tradition becomes "rights" in the eyes of many.

Just look at health care today.
(and that's ALL I am going to say on that, am only using the issue as an example)

The Bill of Rights says that there are rights that are not enumerated, so they do, clearly exist. But what you or I think might be one, might not be.

Thanks for the clarification on the "you ain't comin' in without a warrant!" point of view.

They can, and they will.
 
KyJim - I realize this hypothetical is highly unlikely, but my question is more of a how-things-work nature anyway- If the two statutory rights to appeal were repealed, could the courts find the right to appeal in the First Amendment's guarantee of a right to petition the government for a redress of grievances?

Is this a case of it may be there but no one has said so yet, or was it foreclosed already? Or some other way it wouldn't apply? That part of the First isn't covered much, at least for lay people and pop culture, and your post got me thinking and curious about it.
 
If the two statutory rights to appeal were repealed, could the courts find the right to appeal in the First Amendment's guarantee of a right to petition the government for a redress of grievances?
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I very much doubt it. The right to petition has never been viewed in this manner and I do not think it could be used to "override" the clear history of a lack of a constitutional right of appeal. However, if you're in the camp of a "living, breathing" constitution, you might be able to find a due process right to appeal based upon the fact there has been a statutory right to appeal for over 100 years now in the federal system. That's the sort of thing 44Amp alluded to.
 
KyJim said:
...I thought it would be interesting to list some “rights” a lot of folks think they have but which are not protected by the U.S. Constitution. In some cases, there may be a federal statutory right or court rule that provides protection. In other cases, state constitutions, statutes, and court rules may give additional protection...
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An excellent point and an excellent post. Too often, I believe, people focus on the Constitution as the sole reservoir of our legal rights. But the traditions of our Common Law legal system and our social and political processes are big parts of the equation.
 
The right to petition has never been viewed in this manner and I do not think it could be used to "override" the clear history of a lack of a constitutional right of appeal.
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What exactly IS the right to petition, then? Since we don't have federal ballot initiatives, I'm led to believe this isn't some right to collect signatures to get a pet issue on the ballot, and it has some other specific meaning.
 
JimDandy said:
What exactly IS the right to petition,...
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Perhaps start with Bor. of Duryea v. Guarnieri (Supreme Court, No. 09-1476, 2011), at pages 9 -- 10 of the slip opinion (emphasis added):
... This case arises under the Petition Clause, not the Speech Clause. The parties litigated the case on the premise that Guarnieri's grievances and lawsuit are petitions protected by the Petition Clause. This Court's precedents confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes. "[T]he right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government." Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 896897 (1984); see also BE&K Constr. Co. v. NLRB, 536 U. S. 516, 525 (2002); Bill Johnson's Restaurants, Inc. v. NLRB, 461 U. S. 731, 741 (1983); California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 513 (1972). Although retaliation by a government employer for a public employee's exercise of the right of access to the courts may implicate the protections of the Petition Clause, this case provides no necessity to consider the correct application of the Petition Clause beyond that context.
...

It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground. This Court has said that the right to speak and the right to petition are "cognate rights." Thomas v. Collins, 323 U. S. 516, 530 (1945); see also Wayte v. United States, 470 U. S. 598, 610, n. 11 (1985). "It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances." Thomas, 323 U. S., at 530. Both speech and petition are integral to the democratic process, although not necessarily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their government...
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Note also that the reference to access to the courts mentioned in the first paragraph quoted would, in context, be a reference to a right to pursue an action in court in the first instance -- not necessarily a right to appeal an adverse court decision. So you may sue, but if you initially lose, there's no right necessarily under the "right to petition" clause to continue the matter in court.
 
KyJim,

Excellent post. There are many intricacies of the law that many people do not understand, but some of those same people feel, "Oh, It's my right!" when it is not.

An interesting legal issue I know of here in NC, and it may be similar in other states, is that a criminal case can be presented to a Grand Jury more than once. Unfortunately many feel that if it comes back a "No Bill" the case is done, which is not always true.
 
There is no right, enumerated in the U.S. Constitution, to vote.
Voting is a privilege, but some of the several states have a right to vote in their constitutions.
 
a criminal case can be presented to a Grand Jury more than once
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That's probably true in most states. "Jeopardy" for double jeopardy purposes normally attaches when a petit jury is sworn. Sometimes a prosecutor may be slow to indict or even seek dismissal of an indictment in order to allow police to gather more evidence.
 
There is no right, enumerated in the U.S. Constitution, to vote.
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While I don't think there is an explicit provision that says, "You have the right to vote," there are sufficient references to it in the Constitution so that we can say there is a "right to vote" which may sometimes be legally abridged. For example, the 26th Amendment gives 18 year olds the right vote. The 14th Amendment has a section on voting rights. The 19th Amendment guarantees women the right to vote.
 
A good many rights presented in the COTUS are so fundamental that there was no need to spell them out.
The right to vote, for example, is assumed by statements such as "...chosen every second Year by the People of the several States,..."

Property and home ownership, likewise, in so much as what would it mean that "...right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." if the right to such things is not first assumed?
 
Brian Pfleuger said:
...Property and home ownership, likewise, in so much as what would it mean that "...right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." if the right to such things is not first assumed?
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But also property rights and ownership are well established at Common Law and statutory law essentially codifying Common Law principles.

So the bundle of rights, e. g., to exclude other, to use and enjoy, to own the produce of, etc., that I acquire in my title to my real property derive and are broadly protected against encroachment by others all are protected by "ancient" legal principles still recognized by our courts today.
 
I always forget what it's called. Articles of Inclusion or a Bill of Inclusion... something like that, that basically said - Everything that was before the Constitution that isn't prohibited by the Constitution still is- to paraphrase my understanding- were enacted after the Constitution was ratified wasn't it?

Edit to Add: And now I can't find the reference again, does anyone know what I'm talking about?
 
Amendment 17 also deals with voting.

The Senate of the United States shall be composed of two senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

April 8, 1913.
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Justice Scalia has stated that there is no constitutional right to vote and I'd be hesitant to try to get this court to acknowledge that there is one.

The states ability to restrict access to the ballot has been up held in resent years. If there was a belief in the courts that voting was a right, I'd imagine that those restrictions would be much more difficult to implement.

I believe that there is a right to vote. It is implicant in the type of government we have. It is also the only action that follows from the philosophy that governments get their just power from the consent of the governed.
 
Just had a thought, isn't voting one of the holy trinity of civil rights used to differentiate firearms from so called "Civil Rights" - isn't that trio (I think) Voting, Holding Office, and Serving on a Jury?
 
I'm literally handicapped right now due to a dog encounter and some minor hand surgery so I really can't research or type too well, but I would take Scalia's apparent comment with a huge grain of salt. He has also said it should be constitutional to put people in stocks in the public square for the public to throw rotten fruit at.
 
He has also said it should be constitutional to put people in stocks in the public square for the public to throw rotten fruit at.
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You mean it's not? There may be some medically necessary limit for how long they can stand in that position, but other than that....

ETA: Likewise the throwing of the rotten fruit would be assault, and possibly dangerous thus not allowable.. but the stocks themselves?
 
Maybe he didn't say anything specifically about fruit but that was a favorite pastime of villagers. :) He said this in relationship to the 8th Amendment ban on cruel and unusual punishment.

Found a quick reference to flogging and the 8th amendment:
Breyer said 200 years ago, people thought flogging at a whipping post was not cruel and unusual.

"And indeed there were whipping posts where people were flogged virtually to death up until the middle of the 19th century," he said. "If we had a case like that today I'd like to see how you'd vote." ...

Later, Scalia returned to the issue of flogging, saying it's "stupid" but "not unconstitutional, which is stupid. There's a lot of stuff that stupid that's not constitutional
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http://www.huffingtonpost.com/2010/11/12/scalia-breyer-spar-capital-punishment_n_783081.html

I simply cannot imagine the Supreme Court upholding flogging as constitutional.
 
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