Hello and welcome back to the Civic Flame, a podcast where we take a deep dive into the US Constitution and look at how it is and is not shaping the government today. IÕm Amber, a professor of law and policy at Worcester State University, and today weÕre going to walk through some of the key features of the Bill of Rights. 00:00:30 What is the Bill of Rights The Bill of Rights is the first ten amendments to the US Constitution, and it covers a lot about what we call due process, that is, the process the government owes everyone who interacts with it. Now, usually, we do the Amendments and sections in order, but today, weÕre going to do it a little different. Because Amendments 6 and 7 both deal with lawyers, weÕre actually going to talk about 5 and 8 today, and leave 6 and 7 (six seven, for any of the parents of middle schoolers out there) for next week. Grab your stress blankets, and letÕs go! (transition) 00:01:17 Civil Liberties and what is Due Process As weÕve talked about before, the Bill of Rights is really a bill of civil liberties. The fundamental difference is that if itÕs a right, the government has to make sure you have access to something. If itÕs a liberty, they have to stay out of your way. Due process is a liberty, that is, a freedom from government. Why? LetÕs talk about it. 00:01:41 The Fifth Amendment The Fifth Amendment says, ÒNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.Ó Notice buried in here it says, you canÕt Òbe deprived of life, liberty, or property without due process of lawÓ? Yeah. ThatÕs a big deal because it means that with due process, the government can take your property, put you in jail, and even kill you. So due process is a pretty big deal. 00:02:46 What does due process require Okay, so what does due process require? It starts with the right to a trial. You get the presentment or indictment of a grand jury. Now, those of you who watch lawyerly shows like your Law and Orders or your She Hulks, youÕre familiar with the regular juries or petit (small) juries. These juries are the ones who hear a single case and determine the guilt/not guilt of whomever. 00:03:00 What are grand juries? A grand jury is a larger group. They donÕt hear the case, they meet sometimes over the course of several months and hear from a prosecutor. The prosecutor gives them evidence, suggests charges, and calls upon them to determine whether or not they have enough to bring charges against anyone. So, this starts out with meaning that you need to have some level of evidence against you before charges are brought and gets your case in the legal system. This takes lots of different forms and there are nuances by state and federal government and there can be differing involvement by judges and other legal actors, but for that, youÕll need to go to your first year of law school and take criminal and civil procedure. 00:04:00 What is double jeopardy? Next comes some pretty important things about double jeopardy. This essential means you canÕt be tried for the same crime twice. Now, this is where my students ask if IÕve ever heard of the OJ Simpson trialÑand my bones literally turn to dust because I watched all of that in high school. But this case comes up because OJ was found not guilty in the criminal trial and was then given a civil trial and found liable. This is something weÕll get into next time when we talk about lawyers (Amendment Six had to do with criminal trials and Amendment Seven has to do with civil trials). But hereÕs the thing, since itÕs two different crimes (civil and criminal) that means itÕs not actually the same crime twice. 00:05:30 What is the burden of proof? As weÕll discuss in the next two amendments, civil law and criminal law have some important differences, and one of those in the burden of proof. In a civil trial, the burden of proof is a Òpreponderance of evidence,Ó meaning that something has to look more likely that you did it. With criminal law, it has to be Òbeyond a reasonable doubt,Õ meaning there can be no doubt from a reasonable person that youÕre guilty. 00:05:51 What does it mean to Òplead the FifthÓ? Next comes the section youÕre likely most familiar with, which is that you cannot be compelled in a criminal case to be a witness against yourself. This Fifth Amendment was one of the key component of the famous case Miranda v Arizona. Miranda is decided in 1966 during the midst of the Warren Court, the only Court that was very liberal in US history, and the result it what we know today of as your Miranda rights. Among them include Òyou have the right to remain silent, anything you say or do can be used against you in a court of law, you have a right to an attorney, if you cannot afford one, one will be appointed to you. Do you understand thes rights?Ó Couple key things in here: do you understand these rights? That is important because you need to understand them for them to apply. The lawyer stuff weÕll get into next week. But the rest about the right to remain silent include your protections from self-incrimination. So, remember kiddos, what do we say when we are in police custody? Not a dang thing until your lawyer is present. 00:07:00 When does custodial interrogation start? Cases have come up since trying to explain at what point these protections kick in, factually. Typically, the court has decided that it is during Òcustodial interrogationÓ or whenever you are in police custody officially. This means that if the police stop you and ask you a question, your Miranda rights might not kick in because you are not in custody. So, you want to ask if youÕre being detained. If youÕre being detained, then you can invoke your rights. But, thatÕs another one where weÕll save the nuance for the real lawyers. 00:07:30 AI data centers and the future of eminent domain The last but is about property being taken without just compensation. Some of the questions about eminent domain come here. Sometimes, the government needs to acquire private property, but theyÕre supposed to be required to pay you justly for it. This came up a lot during the railroad cases in the 1800s. Today, I would imagine itÕs going to come up more with data centers. Remember AI and other large scale computer generation systems rely on a lot of power and a lot of water. And states around the country have been saying no to data centers in their areas or on their farms. There are legal ways to make these places less extractive, right? We could demand that all new data centers put solar panels on their buildings and parking lots and do other things to make themselves at least neutral on the power grid. We donÕt, but this is a way to make them more affordable for local communities, because remember that at least one of the reasons a lot of our water and electric bills are high is because these companies use our resources and often donÕt pay or donÕt pay fairly. But even if we sort out the power issues, thereÕs still the water issue. Data centers require tons of water to cool them. This is where the eminent domain arguments might come more closely home in the future. So, thereÕs all sorts of rights here about the ways in which the government can coerce you or your stuff. While the Fourth Amendment outlines how evidence against you can be gathered, and the Fifth discusses what process you get when it is, the Eight Amendment covers what happens if you do go to jail. 00:08:30 What does the Eighth Amendment say? The Eighth Amendment says, ÒExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.Ó This one gets a bit controversial when it comes to things like what counts as excessive bail or excessive fines. There are many ways in our system where fines are excessive for petty criminal acts like theft of drug crimes, but not nearly enough for civil acts like Purdue Pharma being almost single-handedly responsible for the opiod epidemic or Johnson and Johnson selling cancer-causing baby powder (that while it has led to billions in potential fines, is still not enough). 00:09:41 To spot legal inequality look at how different groups are treated differently (see also: the Epstein Files) Whenever you think about what inequality looks like, you want to look at these spots where things are treated differently. And it is pretty sharp when it comes to the Eighth Amendment because our criminal justice system applies differently to poor people than wealthy people and to crimes more likely to be committed by poor people than crimes more likely to be committed by wealth people or organization (see also, the Epstein files). In 1901 or so, Clarence Darrow, at the time one of the most famous lawyers in the country, gave an address to the prisoners at the Cook County jail where he said, ÒyouÕre in jail because youÕre poor.Ó And while heÕs a prison abolitionist and IÕm not, he had some solid points about the wealth gap in jails. I highly recommend checking it out. The other issue that comes up with the 8th Amendment is cruel and unusual punishment. First question, does it have to be cruel AND unusual, or cruel or unusual? This is an interesting question because at the time of the writing of the Constitution, you could do things like brand people and put them in the stocks. So, it would not be considered unusual under an originalist reading of the Constitution. So, can we do it? I say yes for people who commit crimes against children. But the unusual part is one place where even a lot of originalist judges seem to leave their legal theory at the door. So, what about the death penalty? That is a place where a lot of folks engage in disagreements. Around the US states have different positions on the death penalty, but the federal government does allow it. Most similarly situated countries donÕt have the death penalty, and many wonÕt extradite criminals back to the US if theyÕre going to face it. But states donÕt really have that power (remember that Article 4 thing about full faith and credit and so on? It basically requires states to extradite criminals back to other states). Is the death penalty cruel? Maybe. Is it unusual? Not really. So, what exactly does the 8th Amendment say about it? ItÕs unclear. But if you go to the Innocence Project, they have plenty to say, including that aside from the legal questions, there have been a lot of innocent people murdered by the state, so that should give us pause. (transition music) 00:12:00 Thank you! On that unhappy note, next week, weÕll be getting into how you (hopefully) stay out of these situations in the first place: lawyers! As we work through the Bill of Rights and the 14th Amendment, hopefully, youÕll have a fuller understanding of your rights as the governmentÕs obligation to respect those rights (something I feel like we always need to remind the government about). In the meantime, follow us on BlueSky and Instagram, and like and share widely. Take care out there and keep the civic flame burning bright. (outro) The Civic Flame is a Dr Fun Sponge Media Project with writer Amber Vayo and sound producer Matt Munyon. Thanks for listening.