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What are constitutional rights?

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Rights under the U.S. and Georgia Constitutions

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What are constitutional rights? 

A right is a constitutional right if it is written into the Georgia or U.S. Constitution. The U.S. Constitution outlines the basic rights of all citizens of the United States. Each state's constitution also outlines rights for its citizens.

 

If a state constitutional right conflicts with a U.S. Constitutional right, the U.S. right prevails. The state constitutions can add rights, but they can't take away any U.S. Constitutional rights. For example, the Georgia constitution includes the right to an education. This is not mentioned as being a right in the federal constitution.

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How are constitutional rights different from other legal rights?

Unlike other legal rights, other laws cannot change your constitutional rights. A legislative body cannot pass a new law that changes rights found in a constitution. Only a constitutional amendment can change the constitution. 

 

An amendment may be proposed either by: 

  • the Congress with a two-thirds majority vote in both the House and the Senate, or 

  • a constitutional convention called for by two-thirds of the State legislatures.

 

Constitutional rights are limits on the power of a government. They also limit the power of individuals acting on behalf of any government. Constitutional rights do not apply to a private person's actions against you. They also don't apply to your actions as a private person against others.

 

A government must always stay within the limits of constitutional rights. This is true even when making new laws. So, a government could not adopt a law prohibiting people from saying hurtful things. This law would limit the constitutional right of free speech.

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What are my basic constitutional rights?

Freedom of Religion

The First Amendment requires the federal government to be absolutely neutral in matters of religion. 

 

First, no law can limit your right to worship according to your particular religious belief. This means you have:

  • The absolute right to believe whatever you believe. 

  • The right to act according to your beliefs. This right is not absolute. Your right to act can be limited in some ways by the government. 

Second, the government cannot take actions which either:

  • Establish a religion, or

  • Promotes or favors any particular religion.

 

Freedom of Speech 

The First Amendment also gives you the right to free speech. Speech includes:

  • Talking, 

  • Writing,

  • Pictures and other forms of artistic expression,

  • Reading and listening to speech, and

  • Symbolic speech. Symbolic speech is when you use action to make a point. Examples of symbolic speech include:

    • Silent protests,

    • Wearing armbands,

    • Marching for a cause, or 

    • Burning a flag. 

 

There are limits on your freedom of speech. For example, the government can limit speech in cases where speech would:

  1. Create a clear and present danger, or

  2. Disrupt government activity.

 

The government can also regulate free speech: 

  • If the regulations are content neutral. This means that the government is not allowed to regulate a person’s speech based only on their viewpoint.

  • If the regulation is about time, place, or manner. An example of this type of restriction is a law that says that no loud music in a public area after 11 o'clock at night. A state or local government may justifiably restrict speech to protect citizens: 

    • to reduce crime, or 

    • to safeguard reasonable enjoyment of public areas. 

 

Some types of speech have less protections than others. For example:

  • Commercial speech. Speech that is intended only to make money is called commercial speech.

  • Slander and Libel. Slander or libel is speech that is not true and may injure others. Usually the injury is to a person's reputation. The First Amendment allows you to say whatever you like, but it does not protect you against liability for damages caused by slander or libel. 

  • Fighting Words. Fighting words are those that are likely to incite violence against you or others. These words are not protected by the First Amendment.

  • Obscenity. Obscene material is not protected by the First Amendment so it can be limited in some ways.

 

Freedom to Petition & Assemble

Both the U.S. and Georgia Constitutions guarantee your right to peaceful protest. You have both the right to gather with other people and to petition the government for change. However, the government can generally set reasonable restrictions on when, where and how people gather to protest. These restrictions can only be set to prevent danger or disruption of government activity. 

 

In general, smaller groups don’t need a permit to protest on public streets or sidewalks. But, you cannot block traffic or stop other people from using the sidewalks. 

 

The rules for when you need a permit are different across Georgia. If you are organizing a protest, check with the city or county to ask about permit rules. In general, you may need a permit when:

  • Your group exceeds a certain number of people. 

  • You are planning a march that will block traffic or close streets,

  • You have a large gathering at a park or public plaza, or

  • You plan to use microphones and speakers.

 

If a permit is required to protest, the procedures for getting a permit: 

  • must be clear and 

  • must be applied fairly to every applicant.

    • A permit cannot be denied because the event is controversial.

 

If there is violence or a disturbance of the peace, the police may legally disperse the crowd. If you do not disperse when you are ordered to, you may be arrested.  

 

Freedom of Association

Closely related to freedom of speech and assembly is freedom of association. This freedom is the right of individuals to associate with others for political, social, or economic reasons.

 

The First Amendment also protects the right of individuals NOT to associate with others. For example, private clubs or organizations may exclude individuals from membership. The government does not have the right to exclude people from government participation or employment for just any reason. For example, a public school cannot admit students based solely on their race or national origin, except in very rare instances.

 

There are some limitations on the rights of individuals to associate. The right to associate does not extend to gathering for illegal or criminal purposes.

 

Right to Bear Arms

The Second Amendment guarantees to citizens the right to bear arms. Historically, this right was to make sure that each state could maintain a "militia." The courts have said that it specifically relates to establishing a state militia. The amendment does not ban laws limiting people's right to own guns and other weapons. There is a similar part of the Georgia Constitution that allows the General Assembly to "prescribe the manner in which arms may be borne."

 

Right to Privacy

You will not find a specific reference to a right to privacy in the U.S. Constitution. The courts found this right is implied through several amendments. These are mainly found in the Third, Fourth, and Ninth amendments. In 1904, Georgia was the first state in the country to recognize a right to privacy.

 

The courts have found a right to privacy in many areas of life, including:

  • Searches, 

  • Protection of records,

  • Drug testing,

  • Right to die,

  • Reproductive and family rights, and

  • Family relationships.

 

Equal Protection

Both the U.S. and Georgia constitutions put limits on the government to ensure that each person is treated fairly under the laws. Everyone must have equal protection under the law.

 

Keep in mind that these are restrictions on government action. They apply only to people acting on behalf of the government. 

 

This does not mean that the government can make no laws that affect different groups of people in different ways. For example, a farm aid bill gives farmers a benefit that it does not give non-farmers. This is allowed. But, any law that treats groups of people differently is unconstitutional if it:

  • has no rational basis,

  • improperly classifies people on a basis that is considered to be "suspect" by the courts (such as race), or

  • denies fundamental rights without a compelling reason.

 

These kinds of classifications violate the equal protection clauses of both constitutions.

 

Right to Vote

The U.S. Constitution barely mentions the right to vote. Indeed, for much of the country's history, many people did not have that right. For over 130 years, voting was mostly limited to white males aged 21 years and older. Even their right to vote was sometimes restricted. They sometimes had to pay a special tax, called a poll tax, or pass a literacy test.

 

Constitutional amendments have extended the right to vote. In 1870, the Fifteenth Amendment extended voting rights to men of all races. In 1920, the Nineteenth Amendment gave women the right to vote. In 1943, Georgia became the first state to lower the voting age from 21 to 18. State officials felt that those old enough to fight in World War II were old enough to vote. In 1971, the Twenty-sixth Amendment gave 18-year-olds across the country the right to vote.

 

Rights of People Accused of a Crime

The U.S. Constitution protects basic rights throughout the criminal justice process. The government cannot violate your constitutional rights. The government cannot violate your constitutional rights. The Constitution:

  • guarantees a fair process in all hearings

  • guarantees equal treatment under the law

  • provides for a pretrial hearing by a grand jury in felony cases

  • outlaws a second trial for the same crime (double jeopardy)

  • protects suspects from having to answer questions which could be used against them

  • guarantees fair proceedings when people are threatened by a loss of life, liberty, or property by the government

  • ensures compensation for people whose property is taken by the government

  • protects people from unreasonable police searches and seizures

  • sets requirements for search warrants

  • requires a speedy and public trial by an impartial jury

  • requires someone accused of a crime to be informed of the charges and evidence

  • requires that the accused be present when witnesses testify against him/her

  • provides for the accused to have a lawyer and call witnesses in defense

  • requires the courts to set reasonable and consistent bail

  • requires the courts to suit the sentence to the crime

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What can I do? +

Contents


What can I do if my constitutional rights are violated?

There are various ways that you can enforce your constitutional rights through the court system. Constitutional cases are very complicated. It is important to talk to an attorney to learn more about your rights. 

  • Declarative and injunctive relief. If you believe that a law is unconstitutional, you may be able to file a lawsuit against the government to: 

    • have the law declared unconstitutional and 

    • to stop the government from enforcing the law.

  • Defending criminal charges. You may be able to bring a constitutional claim as a defense in a criminal case, if:

    • You are arrested for violating a law you think is unconstitutional, 

    • You are arrested for something that you have a constitutional right to do, or

    • Your rights were violated during the criminal process.

  • Suing for damages. If you believe your constitutional rights have been violated, you can bring a civil rights case against the government. In order to bring this type of case, you must show:

    • You were deprived of a constitutional right,

    • The person who deprived you of the right was acting on behalf of the government, and

    • You suffered some kind of damage.

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Information

 

Legal Help

  • For help in Fulton, Clayton, Cobb, Gwinnett, or DeKalb County, contact Atlanta Legal Aid. Fill out the Atlanta Legal Aid online intake application or call 404-524-5811 (main line), 404-657-9915 (GA Senior Legal Hotline), to see if you qualify for legal assistance.
  • If you live in any other Georgia county, contact the Georgia Legal Services Program for help. Access the GLSP online intake application or call 1-833-457-7529 to see if you qualify for legal assistance.
Last Review and Update: Dec 03, 2020