The SECOND AMENDMENTacknowledges that a“well regulated Militia” is “necessary to the security of a free State” and guarantees “the right of the people to keep and to bear Arms.” For deca
Trang 1states soon realized that government by the will
of the majority not only achieved democracy, it sometimes achieved majoritarian tyranny The system of checks and balances created by the original Constitution was insufficient to avoid the pitfalls of absolute power endemic to the English form of government that the American colonists had overthrown A bill of rights was needed to serve as a bulwark between individual liberty and arbitrary government power
As with each of the 26 amendments to the Constitution, the Bill of Rights was proposed by
a two-thirds majority in both houses of Congress and ratified by three-fourths of the states as required by Article V The Bill of Rights, which comprises the first ten amendments to the Constitution, contains both procedural and substantive protections In some instances, these protections guarantee the right to do, say, or believe something without government in-terference In other instances, these protections guarantee the right to refrain from doing, saying,
or believing something without government coercion
The first three amendments provide sub-stantive protections The FIRST AMENDMENT
guarantees FREEDOM OF SPEECH, press, RELIGION, assembly, and petition The free speech clause protects“thoughts that we hate” (United States v
Schwimmer, 279 U.S 644, 49 S Ct 448, 73 L Ed
889 [1929] [Holmes J., dissenting]) Such thoughts can be expressed verbally, as in a racially derogatory remark, or in writing, as in a Marxist-Leninist pamphlet denouncing the U.S
government, and still receive First Amendment protection The First Amendment also protects certain symbolic expression, such as burning the U.S flag in protest over government policy (Texas v Johnson, 491 U.S 397, 109 S Ct 2533,
105 L Ed 2d 342[1989]) The Supreme Court has ruled that no political speech may be curtailed by the government unless it presents
aCLEAR AND PRESENT DANGERof imminent lawless action (Brandenburg v Ohio, 395 U.S 444, 89
S Ct 1827, 23 L Ed 2d 430[1969])
The free press clause prohibits the govern-ment from censoring news stories in the print and electronic media merely because the content is critical of the government However, the Founding Fathers did not agree on the definition ofCENSORSHIP
A majority of the Founding Fathers adhered
to the English COMMON LAW view articulated in
the eighteenth century by SIR WILLIAM BLACK-STONE, who equated a free press with the doctrine of no PRIOR RESTRAINT This doctrine provides that a publication cannot be sup-pressed by the government before it is released
to the public Nor can publication of something
be conditioned upon judicial approval before its release
While the English common law prohibited prior restraint, it permitted prosecution for libelous and seditious material after publication Thus, the law protected vituperative political publications only insofar as the author was prepared to serve time in jail or pay a fine for offending the sensibilities of the wrong person
A minority of the Founding Fathers adhered
to the view articulated byJAMES MADISON, who said:
The security of the FREEDOM OF THE PRESS
requires that it should be exempt, not only from previous restraint of the executive, as in Great Britain; but from legislative restraint also; and this exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws
Madison was concerned that authors would
be deterred from writing articles assailing governmental activity if the government was permitted to prosecute them following release
of their works to the public
In Near v Minnesota, 283 U.S 697, 51 S Ct
625, 75 L Ed 2d 1357 (1931), the Supreme Court incorporated the doctrine of no prior restraint in First Amendment JURISPRUDENCE, when it ruled that under the free press clause there is a constitutional PRESUMPTION against prior restraint that may not be overcome unless the government can demonstrate that censor-ship is necessary to prevent a clear and present danger of a national security breach In New York Times v United States, 403 U.S 713 92
S Ct 2140, 29 L Ed 2d 822 (1971), the Court applied this presumption against the United StatesJUSTICE DEPARTMENT, which had sought an
INJUNCTIONto prevent the publication of classi-fied material revealing the secrecy and decep-tion behind U.S involvement in the Vietnam War If this classified material, also known as the Pentagon Papers, had threatened U.S troops by disclosing their location or move-ment, the Court said, publication would not have been permitted
The Supreme Court’s interpretation of the free press clause has also gone a long way
Trang 2toward adopting Madison’s sentiments against
subsequent punishments for publishers of
materials criticizing public officials In a series
of cases, the Supreme Court has held that the
First Amendment protects media outlets from
being held liable in civil court for money
damages merely because a published story
contains an inaccuracy or falsehood about a
public official The Supreme Court has ruled
that the media are immune from libel actions
brought by public officials unless the PLAINTIFF
can demonstrate that a particular story was
printed or aired with knowledge that it was false
or in reckless disregard of its veracity, a
principle that has become known as the
“actual-malice” standard (New York Times v
Sullivan, 376 U.S 254, 84 S Ct 710, 11 L Ed
2d 686 [1964]) Finally, the media cannot be
punished with civil or criminal sanctions for
publishing pornographic material unless that
material rises to the level ofOBSCENITY(Miller v
California, 413 U.S 15, 93 S Ct 2607, 37 L Ed
2d 419[1973])
The First Amendment contains two religion
clauses One guarantees the free exercise of
religion In most instances, the free exercise
clause prohibits the government from
compel-ling a person to act contrary to his or her
religious beliefs For example, in Wisconsin v
Yoder, 406 U.S 205, 92 S Ct 1526, 32 L Ed 2d
15 (1972), the Supreme Court held that a state
cannot compel Amish parents to send their
children to school past the eighth grade when
doing so would violate their religious beliefs
However, in Reynolds v United States, 8 U.S
145, 25 L Ed 244 (1879), the Supreme Court
refused to exempt Mormons from a federal law
against bigamy, reasoning that POLYGAMY was
more a religious practice than a religious belief
The other religion clause in the First
Amendment prohibits the government from
establishing a religion The Framers drafted the
establishment clause to prevent the federal
government from passing legislation that would
create an official national church in the United
States as Great Britain had done with the
Anglican Church in England Since the early
1970s, the Supreme Court has applied the
establishment clause more broadly to strike
down certain forms of government assistance to
religion, such as financial aid Such assistance
will be invalidated unless the government
demonstrates that it has a secular purpose with
a primary effect that neither advances nor
inhibits religion nor fosters excessive entangle-ment between governentangle-ment and religion (Lemon
v Kurtzman, 403 U.S 602, 91 S Ct 2105, 29
L Ed 2d 745 [1971])
The Second and Third Amendments also provide substantive protections The SECOND AMENDMENTacknowledges that a“well regulated Militia” is “necessary to the security of a free State” and guarantees “the right of the people
to keep and to bear Arms.” For decades legal scholars had debated whether the Second Amendment contemplated an individual right
to bear arms, such that gun laws regulating possession and ownership of firearms should
be subject to court scrutiny under the so-called militia clause, or whether the Second Amend-ment instead contemplated only a collective right meant to protect those persons serving in a state militia In 2008 the U.S Supreme Court weighed in on the issue, concluding that the history underlying the adoption of Second Amendment demonstrated that it was designed
to protect an individual right to bear arms
The case began when Dick Heller, a special police officer authorized to carry a handgun while on duty at the FEDERAL JUDICIAL CENTER in the District of Columbia, filed a lawsuit seeking
to enjoin the city from enforcing a gun law that (1) made it a crime to carry an unregistered firearm and then (2) prohibited the registration
of handguns within the district While the city’s chief of police was authorized to issue licenses
to possess or own guns for one-year periods, the law also required residents to keep their lawfully owned firearms, such as registered long guns,
“unloaded and dissembled or bound by a trigger lock or similar device” unless they are located in
a place of business or are being used for lawful recreational activities In effect, no one in the city could possess a functional firearm in his or her own residence And the law applied not just to potentially dangerous persons like felons, min-ors, or the mentally infirm, but across-the-board
to all citizens (D.C Official Code, 2001 Ed §
7-2502 et seq.)
District of Columbia mayor Adrian
M Fenty raised two arguments in support of the city’s ban First, he argued that the Second Amendment ensures only that members of state militias are properly armed, not that private citizens can have guns forSELF-DEFENSEand other personal uses Second, even if the Second Amendment protects private ownership of fire-arms for non-militia purposes, Fenty claimed,
Trang 3the D.C legislature can constitutionally ban all handguns if it determines that rifles and shot-guns in the home are a reasonable alternative means of self defense The Supreme Court rejected both arguments
In a 5–4 decision, with Justice ANTONIN SCALIA writing for the majority, the Court said that the “Second Amendment protects an individual right to possess a firearm uncon-nected with service in a militia, and to use that firearm for traditionally lawful purposes, such
as self-defense within the home.” The Court declined to precisely define the legal standard future courts should apply in determining whether someone’s Second Amendment right had been infringed, but the Court did rule that the District of Columbia’s law violated the newly enlarged right to bear arms District of Columbia v Heller, —U.S.—, 128 S Ct 2783,
171 L Ed 2d 637 (2008)
In his dissenting opinion, Justice STEPHEN BREYERargued that the Court’s decision “threa-tens to throw into doubt the constitutionality of gun laws throughout the United States.”
However, Scalia’s majority opinion was careful
to note that the Court’s RULING does not endanger long-standing laws that restrict the carrying of concealed weapons, that regulate gun sales, that prohibit unusually dangerous firearms, that ban the possession of guns by felons and the mentally disabled, and that ban possession of guns in certain locations, such as schools and government buildings
The THIRD AMENDMENT, which is an out-growth of the American Revolution, prohibits the government from compelling homeowners
to house soldiers without their consent Al-though the Supreme Court has never decided a case that directly involved the forced quartering
of soldiers, the Court of Appeals for the Second Circuit ruled that the Third Amendment’s protections apply to the National Guard (Engblom v Carey, 724 F.2d 28 [2d Cir 1982])
The Fourth, Fifth, Sixth, Seventh, and Eighth Amendments contain a mixture of procedural and substantive rights Most of the procedural rights pertain to CRIMINAL LAW As such, these rights offer protection against unconstitutional actions taken by government bodies and officials, such as law enforcement agencies and agents
These rights do not offer protection against action taken by private citizens unaffiliated with the government For example, the FOURTH
AMENDMENT prohibits the government from performing unreasonable searches and seizures and from issuing warrants on less thanPROBABLE CAUSE The procedural requirements of the Fourth Amendment protect homes, papers, and other personal belongings in which an individual can demonstrate a “reasonable expectation of privacy” (Katz v United States, 389 U.S 347, 88
S Ct 507, 19 L Ed 2d 576[1967])
The FIFTH AMENDMENT offers procedural safeguards to criminal defendants and suspects
It provides that no person shall be held
to answer for a capital or infamous offense unless first indicted by aGRAND JURY The Fifth Amendment further safeguards defendants from being “twice put in jeopardy of life or limb” for the “same offence.” It also prohibits the government from compelling someone to incriminate himself or herself The right to be apprised of many of these procedural protec-tions during custodial police interrogaprotec-tions, through what are known as Miranda warnings,
is derived from the Fifth Amendment (Miranda v Arizona, 384 U.S 436, 86 S Ct 1602, 16 L Ed 2d 694[1966])
TheSIXTH AMENDMENTprovides a panoply of procedural protections for criminal defendants Under the Sixth Amendment, defendants are entitled to notice of any criminal accusations against them The Sixth Amendment guarantees the right to a jury trial for all crimes more serious than aPETTY OFFENSE The Sixth Amend-ment guarantees the right to be represented by
an attorney during a criminal proceeding and entitles indigent defendants to a state-appointed lawyer when they are charged with a misde-meanor or more serious offense (Gideon v Wainwright, 372 U.S 355, 83 S Ct 792, 9 L Ed 2d 799[1963]) A defendant’s right to a speedy and public trial in which she or he can cross-examine adverse witnesses and subpoena favor-able witnesses is also protected by the Sixth Amendment
The protections offered by the EIGHTH AMENDMENT are more substantive This amend-ment forbids the governamend-ment from inflicting a punishment that is “cruel and unusual.” The Eighth Amendment also prohibits the govern-ment from setting bail in an excessive amount and from imposing a fine that is disproportion-ate to the seriousness of the crime Under the
CRUEL AND UNUSUAL PUNISHMENT clause, the Supreme Court has ruled that it is not necessarily unconstitutional for the government
Trang 4to execute a mentally retarded person (Penry v.
Lynaugh, 492 U.S 302, 109 S Ct 2934, 106
L Ed 2d 256[1989]) or a juvenile above the age
of 15 (Stanford v Kentucky, 492 U.S 361, 109
S Ct 2969, 106 L Ed 2d 306[1989])
Some of the protections offered by the Bill of
Rights apply to civil proceedings For example,
theSEVENTH AMENDMENT guarantees the right to
a jury trial in civil “Suits at common law.” In
CONDEMNATION proceedings, the Fifth
Amend-ment recognizes the power ofEMINENT DOMAIN,
by which the government may appropriate a
piece of property owned by a private citizen and
convert it to a public use Concomitantly, the
Fifth Amendment guarantees the right to “just
compensation” for private landowners when
the government exercises its power of eminent
domain
Due Process Clauses
Of all the liberties protected by the Bill of
Rights, none has been a greater source of
constitutional litigation than due process The
Fifth Amendment provides that no person shall
be deprived of“life, liberty, or property, without
due process of law.” The Supreme Court has
interpreted this provision to regulate actions
taken by only the federal government, not the
state governments (Barron v Baltimore, 32 U.S
[7 Pet.] 243, 8 L Ed 672 [1833])
Broadly speaking, the due process clause of
the Fifth Amendment guarantees litigants the
right to be informed of any legal action being
taken against them and the opportunity to be
heard during a fair proceeding in which they
may assert relevant claims and defenses
Specif-ically, many procedural protections have been
recognized by the Supreme Court as essential to
the concept of due process For example, in
criminal cases, the due process clause requires
that the prosecution prove its case BEYOND A
REASONABLE DOUBT before a conviction may be
obtained In civil cases, the due process clause
prohibits a court in one state from asserting
jurisdiction over a resident in another state
unless that resident has sufficient contacts with
the jurisdiction in which that court sits
The FOURTEENTH AMENDMENTalso contains a
due process clause Whereas the due process
clause of the Fifth Amendment regulates only
the federal government, the due process clause
of the Fourteenth Amendment regulates actions
taken by state governments During the twentieth
century, the Supreme Court interpreted the due process clause of the Fourteenth Amendment to make most of the liberties enumerated in the Bill of Rights applicable to the states
Through a series of decisions, the Supreme Court has ruled that certain liberties guaranteed
in the Bill of Rights are too fundamental to be denied protection by the state governments The right to bear arms, the right to be indicted by a grand jury, the right to a jury trial in civil cases, the right against excessive bail and fines, and the right against involuntary quartering of soldiers have not been made applicable to the states
Because these constitutional guarantees remain inapplicable to state governments, the Supreme Court is said to have selectively incorporated the Bill of Rights into the due process clause of the Fourteenth Amendment
The Supreme Court has interpreted the due process clauses to have a substantive content in addition to their procedural content Procedur-ally, due process prescribes the manner in which the government may deprive persons of their life, liberty, or property In short, the procedural guarantees of due process entitle litigants to fair process
Substantively, the due process clauses of the Fifth and Fourteenth Amendments protect persons from legislation infringing on certain individual rights Such individual rights may be expressly enumerated in a constitutional provi-sion, as are the liberties that are enumerated in the Bill of Rights and have been incorporated into the due process clause of the Fourteenth Amendment Since Dred Scott v Sandford, 60 U
S (19 How.) 393, 15 L Ed 691 [1856]), where the Supreme Court recognized a slave owner’s property interest in his slaves, the due process clauses have been interpreted to protect other liberties that are not expressly enumerated in any provision of the federal Constitution
These unenumerated rights have been derived from Supreme Court precedent, com-mon law, history, and moral philosophy Such rights, the Court said, “represent the very essence of ordered liberty” and embody “prin-ciples of justice so rooted in the traditions and conscience of our people as to be ranked fundamental” (Palko v Connecticut, 302 U.S
319, 58 S Ct 149, 82 L Ed 288[1937]) Since the mid-1960s the Supreme Court has relied on the concept of SUBSTANTIVE DUE PROCESS to establish a general right to PRIVACYthat protects
Trang 5a woman’s decision to terminate her pregnancy under certain circumstances (Roe v Wade, 410 U.S 113, 93 S Ct 705, 35 L Ed 2d 147[1973])
Equal Protection Clause
The EQUAL PROTECTIONclause of the Fourteenth Amendment has been another bountiful source
of litigation Ratified during the aftermath of the Civil War along with theTHIRTEENTH AMENDMENT, which outlawed SLAVERY, and the FIFTEENTH AMENDMENT, which protected the right to vote from discriminatory infringement, the Four-teenth Amendment was designed to promote racial equality
Until the middle of the twentieth century, the Supreme Court interpreted the equal protection clause to permit state-implemented racial SEGREGATION Then, in Brown v Board of Education, 347 U.S 483, 74 S Ct 686, 98 L Ed
873 (1954), the Supreme Court declared that the institution of segregation is inherently unequal Almost immediately after issuing the Brown decision, the Court began striking down state-implemented racial segregation at a host of public accommodations, including golf courses, beaches, and public schools Pursuant to the Fourteenth Amendment, Congress has passed a number of civil rights statutes that protect African Americans and other racial groups from discrimination in the private sector Title VII of the Civil Rights Act of 1964 (Pub L No 88-352 [42 U.S.C.A § 2000e et seq.]), for example, prohibits racial discrimination in private employment
Persons of any race, creed, or ethnic origin may bring a claim against a state government for discriminating against them in violation of the Fourteenth Amendment The Supreme Court has also relied on the equal protection clause to invalidate state laws that discriminate on the basis of gender, state residency, and national citizenship, among other legislative classifica-tions In 1996 the U.S Supreme Court struck down a Colorado CONSTITUTIONAL AMENDMENT
that discriminated against homosexuals, because
it served no rational purpose (Romer v Evans,
517 U.S 620, 116 S Ct 1620, 134 L Ed 2d 855 [1996]) The Civil Rights Act of 1871 (17 Stat 13 [42 U.S.C.A § 1983]) authorizes individuals to enforce the provisions of the Fourteenth Amendment against state governments
Members of other minority groups, such
as persons who are elderly or disabled, are
protected from discrimination in both the public and private sectors by federal laws that Congress has passed pursuant to its constitu-tionally delegated powers The Americans with Disabilities Act (Pub L No 101-336 [codified
at 42 U.S.C.A §§ 12111 et seq.]) and the AGE DISCRIMINATIONin Employment Act (Pub L No 90-202 [codified at 29 U.S.C.A § 621 et seq.]) are two such laws
Supremacy Clause
The SUPREMACY CLAUSE in Article VI makes the Constitution, federal laws, and treaties “the supreme Law of the Land.” Under this clause, state courts may not interpret the Bill of Rights,
or any other constitutional provision, differ-ently than does the Supreme Court States may not provide less protection for individual liberties than is provided under the federal Constitution However, state courts do retain the power to afford their residents greater protection for certain liberties established by their own state constitution than is afforded by the federal Constitution (Prune Yard Shopping Center v Robins, 447 U.S 74, 100 S Ct 2035,
64 L Ed 2d 741[1980])
Other Constitutional Provisions
The Nineteenth, fourth, and Twenty-sixth Amendments provide that the right to vote shall not be denied to a U.S citizen on account
of gender, age (so long as the citizen is at least
18 years old), or the failure to pay aPOLL TAX The TWENTY-FIRST AMENDMENT repeals the EIGH-TEENTH AMENDMENT, which banned the manu-facture, sale, and transportation of intoxicating liquors, otherwise known as Prohibition The
SIXTEENTH AMENDMENTestablishes the congressio-nal power to lay and collect income taxes The Tenth and Eleventh Amendments attempt to preserve the federalist system created by the Constitution, whereby the state and federal governments share sovereignty and jurisdiction Recognizing the threat presented
by an omnipotent federal government, the
TENTH AMENDMENT reserves to the states all powers not delegated to the federal government The text of the ELEVENTH AMENDMENT restricts federal courts from hearing lawsuits against state governments brought by the residents of another state or the citizens of a foreign country The Supreme Court has also inter-preted the Eleventh Amendment to restrict federal courts from hearing lawsuits instituted
Trang 6by residents of the state being sued and lawsuits
initiated by the governments of foreign countries
FURTHER READINGS
Epstein, Lee and Thomas G Walker 2007 Constitutional
Law for a Changing America: Institutional Powers and
Constraints Washington, D.C.: CQ Press.
Hall, Kermit L 2002 Oxford Companion to American Law.
New York: Oxford Univ Press.
Posner, Richard A 1999 An Affair of the State Cambridge,
Mass: Harvard Univ Press.
CROSS REFERENCES
Abortion; Administrative Law and Procedure; Age
Discrim-ination; Commerce Clause; Congress of the United States;
Constitution of the United States; Criminal Procedure;
Custodial Interrogation; Disability Discrimination; Double
Jeopardy; Federal Budget; Federalism; Freedom of the Press;
Gay and Lesbian Rights; Incorporation Doctrine; Right to
Counsel; Sex Discrimination; Speedy Trial.
CONSTRUCTION
The process by which the meaning of an
ambiguous provision of a statute, written
docu-ment, or oral agreement is determined
A judge usually makes a construction of an
unclear term in a document at issue in a case
that involves a dispute as to its legal significance
The judge examines the circumstances
sur-rounding the provision, laws, other writings,
verbal agreements dealing with the same subject
matter, and the probable purpose of the unclear
phrase in order to conclude the proper meaning
of such words Once the judge has done so, the
court will enforce the words as construed
However, for language that is plain and clear,
there cannot be a construction
When ambiguous language is given its exact
and technical meaning, and no other equitable
considerations or reasonable implications are
made, there has been a strict or LITERAL
CONSTRUCTIONof the unclear term
A liberal or equitable construction permits
a term to be reasonably and fairly evaluated so
as to implement the object and purpose for
which the document is designed This does not
mean that the words will be strained beyond
their natural or customary meanings
A rule of construction is a principle that
either governs the effect of the ascertained
intention of a document or agreement
contain-ing an ambiguous term or establishes what a
court should do if the intention is neither express
nor implied A regular pattern of decisions
concerning the application of a particular
provision of a statute is a rule of construction that governs how the text is to be applied
in similar cases
The constitutionality of an ambiguous statute is a QUESTION OF LAW and a matter of construction within the province of the court
The meaning of the language of the statute must
be determined in light of its objectives, purposes, and practical effect as a whole If a statute is
so ambiguous that a judge cannot make a reasonable construction of its disputed provi-sions, and a reasonable person could not determine from reading it what the law orders
or prohibits, it is void for vagueness because it violates the guarantee of DUE PROCESS OF LAW Some states have codified terms that had
in the past been subject to repeated judicial construction The need for court proceedings to determine the real meaning of some terms has been eliminated by enactment of statutes that give specific meanings—such as specifying that
“calendar day” means a twenty-four hour period starting on midnight of one date and ending midnight of the next day
CROSS REFERENCES Canons of Construction; Judicial Action.
CONSTRUCTIVE That which exists, not in fact, but as a result of the operation of law That which takes on a character
as a consequence of the way it is treated by a rule
or policy of law, as opposed to its actual character
For example, constructive knowledge is notice
of a fact that a person is presumed by law to have, regardless of whether he or she actually does, since such knowledge is obtainable by the exercise of reasonable care
Possession of the key to a safe-deposit box
is constructive possession of the contents of the box since the key gives its holder power and control over the contents
CONSTRUCTIVE DESERTION The end of marital cohabitation brought about when one spouse, by his or her conduct, forces the other to leave home
Constructive desertion takes place when a husband or wife intentionally forces the inno-cent spouse to leave the marital dwelling by acting in an offensive manner The misconduct
Trang 7must be so extensive as to make marital relations insufferable
Authority is divided on what constitutes justification for leaving the marital abode The narrow view is that only conduct that would be grounds for DIVORCEis adequate In application
of this view, cruelty, NONSUPPORT, ADULTERY, or other divorce grounds must be proved before the innocence of the fleeing spouse can be established Stringent requirements limit the doctrine; in some states a mere unjustified refusal to have sexual relations with one’s spouse for a certain length of time constitutes constructive desertion Similarly, if one spouse communicates venereal disease to the mate, this might constitute constructive desertion The prolonged nagging or drunkenness of a spouse
is not ordinarily viewed as misconduct that would justify marital dissolution based upon constructive desertion
CONSTRUCTIVE EVICTION The disturbance, by a landlord, of a tenant’s possession of premises that the landlord makes uninhabitable and unsuitable for the purposes for which they were leased, causing the tenant to surrender possession
Constructive eviction arises when a landlord does not actually evict but does something that renders the premises untenantable This might occur, for example, where a tenant vacates an apartment because a landlord turns off the heat
or water
The term is also used to mean the breach of
aCOVENANTof warranty andQUIET ENJOYMENTof real property, which prevents a purchaser from obtaining possession of property due to the existence of a paramount claim of title
CROSS REFERENCE Landlord and Tenant.
CONSTRUCTIVE TRUST
A relationship by which a person who has obtained title to property has an equitable duty
to transfer it to another, to whom it rightfully belongs, on the basis that the acquisition or retention of it is wrongful and would unjustly enrich the person if he or she were allowed to retain it
A constructive trust does not arise because
of the expressed intent of a settlor, one who
establishes a trust It is created by a court whenever title to property is held by a person who, in fairness, should not be permitted to retain it It is frequently based on disloyalty or other breach of trust by an express trustee (the person appointed or required by law to execute
a trust), and it is also created where no express trust is created but property is obtained or retained by other unconscionable conduct The court employs the constructive trust as a remedial device to compel the DEFENDANT to convey title to the property to the PLAINTIFF It treats the defendant as if he or she had been an express trustee from the date of the unlawful holding of the property in question A con-structive trust is not a trust, in the true meaning
of the word, in which the trustee is to have duties of administration enduring for a sub-stantial period of time, but rather it is a passive, temporary arrangement, in which the trustee’s sole duty is to transfer the title and possession to the beneficiary
The right to a constructive trust is generally
an alternative remedy TheAGGRIEVED PARTYcan choose between a trust and other relief at law, such as recovery of money wrongfully taken, but cannot obtain both types of relief
A constructive trust, as with an express trust, must cover specific property It cannot be predicated on mere possession of property, or
on a breach of contract where no ownership of property is involved
The court decides what acts are required of the plaintiff as conditions precedent to the securing of a DECREE (a court order that determines the rights of all the parties to the suit) For example, if the defendant has acquired title to property of the plaintiff by means of
FRAUD, the plaintiff will be required to return any consideration (inducement to enter into a contract) received from the defendant In addition, if the defendant has, during his or her period of wrongful retention of the pro-perty, spent money for the preservation or protection of the property, such as by paying taxes or the principal or interest on a mortgage, reimbursement might be required of the plaintiff If the defendant has made improve-ments or performed services in managing the property, some courts require the plaintiff to compensate the defendant to the extent of the benefits inuring to the plaintiff through the imposition of a constructive trust, particularly
in cases in which the defendant was not an
Trang 8intentional wrongdoer, but rather acted under
MISTAKEor ignorance
The decree establishing the constructive
trust requires the defendant to deliver
posses-sion and convey title to the property and to pay
to the plaintiff profits received or rental value
during the period of wrongful holding and
otherwise to adjust the equities of the parties
after taking an accounting
Mistake, Undue Influence, or Duress
If byMISTAKE OF FACTthe plaintiff conveys title to
the wrong person, or the wrong property is
conveyed to the intended person, or the plaintiff
is otherwise induced to act by reason of mistake,
the transfer can be set aside An alternative is to
obtain a decree which reforms the instrument
ofCONVEYANCEso that it expresses the intent of
the parties In these cases, the conveyance is not
void (without legal effect) The plaintiff actually
intends a transfer, but the circumstances which
cause the plaintiff’s mind to operate are such
that the court considers it unfair for the
transferee to retain the property
The same doctrine applies where the
plaintiff is induced to make the conveyance
through the exertion ofUNDUE INFLUENCE
(con-duct by a person that dominates and destroys
the free will of another) If the conduct of the
defendant goes beyond persuading the plaintiff
to convey—if it encompasses violence, threats
of violence or restraint, or other injury—there is
an even stronger case for charging the transferee
as a constructive trustee on the ground of
duress
Fraudulent Misrepresentation
or Concealment
The courts hold in numerous cases that a
transferee who uses fraud to obtain the transfer
of property is a constructive trustee Such
situations might involve an affirmative assertion
of the truth of a material fact or concealment of
the existence of a material fact when there was a
duty to speak The state of the defendant’s mind
is a material fact and might be a basis for a
constructive trust—such as when the defendant
promises to use the property for certain
purposes beneficial to the plaintiff but intends
at the time of the transfer to retain it for himself
or herself The defrauded party can also proceed
on the theory of setting aside the transfer, which
is substantially equivalent to obtaining a
constructive trust, or the defrauded party can sue for damages
Property Obtained by Homicide
If a person obtains property through a will or
INTESTACYby wrongfully and intentionally killing the owner, a constructive trust can be decreed as
to the property obtained The beneficiaries of the constructive trust imposed on the murderer are those persons who would have taken by intestacy or will or otherwise from the mur-dered person, as if the murderer had prede-ceased the victim
Statutes in many states prevent the mur-derer from acquiring or retaining the property
of the victim They vary from state to state, but most require that the excluded person must
be convicted of wrongfully and intentionally causing the death of the property owner None applies to negligent killing It is not necessary for the murderer to have committed the crime for the purpose of acquiring the property The statutes apply if the murderer commits suicide immediately after killing the property holder
They do not apply, however, to an insane murderer or to one who kills inSELF-DEFENSE
Gift by Will or Intestacy Based upon Broken Promise
If a property owner is induced to make an absolute gift to the defendant by will due to reliance on an oral promise by the defendant to apply all or part of the property to the use of another designated person and, after the death
of the TESTATOR, the defendant refuses to do as promised, he or she can be made a constructive trustee The same result will hold when the property owner is induced to die INTESTATE on the faith of an oral agreement by his or her heir
or next of kin
If the recipient by will or intestacy promises
to hold for others to be later described by the property owner and no description is commu-nicated to the recipient until after the death of the property owner, the recipient will hold as a trustee of aRESULTING TRUSTfor the heirs, next of kin, or residuary legatees or devisees of the property owner No trust will be established for the intended beneficiaries but such persons might take the property as the recipients of the resulting trust
If a will provides that a gift is to be made to
a recipient as trustee, but no description of the
Trang 9beneficiary appears in the will, and the recipient verbally agrees to hold it for beneficiaries who are orally or otherwise informally described to the recipient, the successors of theDECEDENTcan enforce a resulting trust in their favor against the recipient The courts rely on the argument that a property owner who wishes the property
to pass to others than the heirs at his or her death must give it to those others by a formally executed will
Breach of Express Trust by Disloyalty
If a trustee of an express trust acquires property
by a breach of trust—for example, by a violation
of an obligation to be loyal to the beneficiary—a constructive trust can be imposed on such property The constructive trust can be applied not only to the property originally obtained by disloyalty, but also to its products and proceeds
It can be used against persons who succeed the disloyal trustee as the owner of the products
of the disloyalty if they are not bona fide purchasers
It is immaterial that the trustee acted innocently because of ignorance or in the belief that the conduct was not disloyal It is unneces-sary to prove that the acquisition of the property
by disloyalty damaged the beneficiary, since it is sufficient to show the receipt by the trustee of property obtained by breach of his or her duty
In addition, the duty and the remedy exist with respect to persons who are in a CONFIDEN-TIAL RELATION This term has no exact definition but entails dominance and superiority of one individual over another because of such ele-ments as a close familiar relationship, an enduring practice of entrusting business matters
to the knowledge of a confidant, and differences
in age, health, and education
Breach of Duty in Direct Dealing with Beneficiary
The trustee has a duty to make a complete disclosure and to treat the beneficiary with the utmost fairness when there is a direct convey-ance, contract, or other transaction between them This duty extends to everyone who acts as
a fiduciary and to persons in a confidential relation, similar to the duty of loyalty in the administration of a trust It is a duty arising from the superiority and dominance of the fiduciary and the danger of overreaching or undue influence
The trustee or other representative can be declared a constructive trustee of any property obtained through a transaction where there was
a breach of the duty to make full disclosure and
to act fairly Such clearly inequitable conduct justifies the imposition of a constructive trust
If, therefore, a trustee purchases the interest of one of the beneficiaries under the trust for an inadequate price, without revealing facts that the beneficiary did not know concerning the value of the interest being sold, and later the trustee realizes a profit on the transaction, a constructive trust can be imposed to remove this gain from the trustee
Statute of Frauds
The STATUTE OF FRAUDS, an old ENGLISH LAW
adopted in the United States that requires certain contracts to be in writing, does not apply to constructive trusts The courts create constructive trusts, whether the evidence on which they are based is oral or written and whether the property involved is real or personal However, public policy favors the security of titles to property Therefore, reluctant to disturb record title or other apparent ownership, courts require the plaintiff to prove his or her case for a constructive trust by clear and convincing evidence In nearly all suits to establish con-structive trusts, the defendant appears to be the complete owner of the property, by virtue of deeds, wills, records, or otherwise As a result, the courts reject the plaintiff’s claim if the evidence is vague, conflicting, or dubious Breach of Unenforceable Contract to Convey Ordinarily the breach of an ORAL CONTRACT to convey realty by deed or will is not a basis for charging the defendant as a constructive trustee, where the defendant employs the statute of frauds as a defense and refuses to perform the contract The statute provides that contracts to convey interests in land are not enforceable when they are not in writing and no memoran-dum was signed by the seller To decree a constructive trust in such a case would usually constitute an evasion of the statute The plaintiff can be protected adequately by an award of damages that, in effect, mandates a return of any consideration paid for the promise to convey
With respect to the breach of some contracts, however, the constructive trust is occasionally used to preventUNJUST ENRICHMENT,
Trang 10as in the case of a contract to leave property by
will in return for personal services that have
been rendered, the value of which is not
computable in money
Breach of Oral Trust of Realty by Retention
of Property When the plaintiff conveys land
byABSOLUTE DEED(a document that transfers real
property without restriction) based on an oral
promise by the defendant to hold it in trust for
the plaintiff or for a third person, and the
defendant retains the property for his or her
own benefit, refusing to execute the trust
because it violates the statute of frauds, the
majority of courts refuse to make the defendant
a constructive trustee for the plaintiff or for the
intended beneficiary of the oral trust The
courts reason that to construct a trust in such
a case would circumvent the purpose of the
statute of frauds
A minority of courts grant the decree for a
constructive trust for the intended beneficiary
of the oral trust because they view it as
dishonest for the defendant to withhold the
land from the intended beneficiary by
employ-ing the statute
If the defendant obtains the land by
misrepresentation of the state of his or her
mind as to intended performance of the oral
trust or other false statement and later refuses to
perform the trust, the court will enforce a
constructive trust against him or her
If the defendant was in a confidential or
fiduciary relation with the plaintiff at the time
of the deed and the oral promise to hold in
trust, the defendant is usually made a
construc-tive trustee for the intended beneficiary of the
oral trust because the wrong entailed a violation
of the relationship by repudiation of the
promise
Product of Theft
The remedy of constructive trust applies to
PERSONAL PROPERTY that is stolen or
misappro-priated and used to purchase other property in
the name of the perpetrator A constructive
trust in favor of the aggrieved party can be
imposed on such property, so long as it remains
in the hands of the wrongdoer or any person to
whom the wrongdoer transfers it who is not a
bona fide purchaser In order to facilitate the
unimpeded flow of commercial transactions,
bona fide purchasers are not subject to the
application of a constructive trust
FURTHER READINGS Condon, Gerald M., and Jeffrey L Condon 2001 Beyond the Grave: The Right Way and the Wrong Way of Leaving Money to Your Children and Others New York:
HarperCollins.
Daly, Eugene J 1994 Thy Will Be Done: A Guide to Wills, Taxation, and Estate Planning for Older Persons.
Amherst, N.Y.: Prometheus.
Kull, Andrew 1998 “Restitution in Bankruptcy: Reclama-tion and Constructive Trust ” American Bankruptcy Law Journal 72 (summer).
Rapp, Geoffrey 2000 “Reconsidering Educational Liability:
Property-Owners as Litigants, Constructive Trust as Remedy ” Yale Law & Policy Review 18 (fall).
Sitarz, Daniel 1999 Wills and Trusts: Laws of the United States Carbondale, Ill.: Nova.
Weinrib, Laura 2002 “Reconstructing Family: Constructive Trust at Relational Dissolution ” Harvard Civil Rights-Civil Liberties Law Review 37 (winter) Available online at http://www.law.harvard.edu/students/orgs/crcl/vol37_1/
weinrib.pdf; website home page: http://www.law.harvard.
edu (accessed July 15, 2009).
CROSS REFERENCES Bona Fide; Clear and Convincing Proof; Fiduciary;
Misrepresentation; Personal Property; Unjust Enrichment.
CONSULAR COURT
A tribunal convened by public officials who reside
in a foreign country to protect the interests of their country for the settlement of civil cases based upon situations that happened in the foreign nation and which is held pursuant to authority granted by treaty
A consular court exercises criminal jurisdic-tion in some instances, but its determinajurisdic-tions are reviewable by the courts of the home government The last of the U.S consular courts in Morocco was abolished in 1956
CONSULAR LAW SOCIETY Founded in 1940, the Consular Law Society is
an association of lawyers serving consulates and/or embassies and other attorneys specializ-ing in related international affairs Its activities include the presentation of awards and the publication of occasional papers Membership is
by invitation
Committees of the society include Diplomatic and Consular Practice; Governments in Exile;
HUMAN RIGHTS; IMMIGRATION and Nationality;
Immunities; International Companies; Interna-tional and Comparative Law; InternaInterna-tional Dou-ble TAXATION;INTERNATIONAL COPYRIGHT Relations;
INTERNATIONAL LAW in U.S Courts; Neutrality;