Overriding questions to consider…

1. Overriding questions to consider… 1. How are the courts responsible for social change/civil rights? 2. How are the courts responsible for changing federalism? 3. How are the courts responsible for the expansion of civil liberties? 4. How has the role of the Court changed since the Founding?

2. A Commitment to Freedom • The listing of the general rights of the people can be found in the first ten amendments in the Constitution, also known as the Bill of Rights. • The 13th and 14th amendments have also added to the Constitution’s guarantees of personal freedom.

3. Civil Rights vs. Liberties • In general, civil liberties are protections against government. (ACLU) • They are guarantees of the safety of persons, opinions, and property from arbitrary acts of government. • Civil rights are constitutional guarantees to all people regardless of race, sex, religion, or national origin. (They protect certain groups of people not all Americans) • Interest Group involvement (NAACP, NOW)

4. The Modifying Effect of the 14th Amendment The 14th Amendment’s Due Process Clause provides that no State can “deprive any person of life, liberty or property, without due process of law…”. However, to include rights under that heading, the Supreme Court had to define the rights on a case by case basis, called the process of selective incorporation. Individual Rights

5. The History of Selective Incorporation • The bill of rights refers to the federal government • Made clear in Barron v. Baltimore (1833)-takings clause of the 5th Amendment only applies to the national government unless the state has a taking clause • 14th Amendment does mention states but not the specific rights being referred to (1868) • Hurtado v. CA (1884)-grand jury indictment still not incorporated Hurtado killed his wife, he wants a jury trial and is denied

6. Chicago RR v. Chicago(1897)-takings clause of the 5th • Chicago will pay 13,000 to take land from people, but just $1 to RR • RR sued and the takings clause is incorporated by the court • Principles are set up-even though court sides with Chicago

7. Gitlow v. N.Y. (1925) • Gitlow writes left wing manifesto to overthrow capitalism • Court incorporated freedoms of speech and press but not the whole 1st Amendment • Gitlow looses because he crosses the line but speech and press are now incorporated

8. Palko v. Connecticut (1937) • Conviction without confession 2nd degree murder and retried with confession for 1st degree murder • Double Jeopardy and 5th Amendment • Slow piecemeal process of selective incorporation • No selective incorporation for the full 2,3,5, 7, 8 amendments

9. Establishment Clause Guards against establishing a mandated religion. In effect, freedom from religion Free Exercise Clause Guards against the government interfering in the exercise of any religion. In effect, freedom for religion. Freedom of Expression1st and 14th Amendments Two guarantees of religious freedom:

10. Equal Protection Clause The 14th Amendment’s Equal Protection Clause declares that citizens are protected equally under the law. • Reasonable Classification • The government may reasonably classify, or draw distinctions, between groups of individuals. Government may not discriminate unreasonably, however. • The Supreme Court often uses two measures to determine the constitutionality of an action: The Rational Basis Test • The rational basis test asks: Does the classification in question bear a reasonable relationship to the achievement of some proper governmental purpose? The Strict Scrutiny Test • Sometimes more imposing standards are used, especially when a case deals with “fundamental rights” or “suspect classifications.”

11. The Meaning of Due Process

12. The 5th Amendment provides that “no person … shall be deprived of life, liberty, or property without due process of law…”. The 14th Amendment extends that restriction to State and localgovernments. Due process means that the government must act fairly and in accord with established rules at all times. Due process is broken down into two branches: Substantive due process—the fairness of the laws themselves Procedural due process—the fairness of the procedures used to enforce the laws The 5th and 14th Amendments

13. The Free Exchange of Ideas • Freedom of Speech and Press do not protect: • Libel, the false and malicious use of written words • Slander, the false and malicious use spoken words • Obscenity • Words that incite others to commit crimes

14. Seditious Speech Sedition is the crime of attempting to overthrow the government by force, or to disrupt its lawful activities by violent acts. Seditious speech is speech that urges such conduct. • Congress has enacted three major laws to prevent sedition and seditious speech: • The Alien and Sedition Acts—made scandalous or false criticism of the government illegal. Expired before Thomas Jefferson took office in 1801. • The Sedition Act of 1917—made it a crime to encourage disloyalty or spread anti-government ideas during a time of crisis. Upheld by the Supreme Court in instances of “clear and present danger.” • The Smith Act of 1940—forbade advocating violent overthrow of the government, and belonging knowingly to any group that does. The Supreme Court still upholds the constitutionality of the law, but over time has modified it so that it is difficult to enforce.

15. Prior Restraint In most cases, the government cannot curb ideas before they are expressed. It can punish ideas after they are expressed. • The Supreme Court has held in several cases that the guarantee of a free press does not allow the government to exercise prior restraint on publication except in grave circumstances. In Near v. Minnesota (1931), the Court protected the rights of even “miscreant purveyors of scandal.” • In New York Times v. United States, 1971, the government sought a court order to keep newspapers from printing “the Pentagon Papers” which had been stolen and leaked to the press. The Supreme Court found that the government couldn’t show that the papers endangered national security enough to justify prior restraint of publication.

16. Hazelwood School District v. Kuhlmeier (1988)-Missouri • Schools can censor speech when there is a reasonable educational justification for the censorship • Principal wanted to eliminate two articles from the school newspaper • Student (Kuhlmeier took issue to court)

17. 1st Amendment Cases • Schenck v. U.S. (1919)-freedom of speech • Schenck urged young men to resist the draft and the Court said that his words did create a “clear and present danger” • 1st Amendment guarantees are not absolute • Brandenberg v. Ohio (1969)-laws that punish people for advocating social change violate the 1st Amendment • Inciting people to engage in violence is a change from the clear and present danger test • Derogatory remarks were made against African Americans and Jews

18. Tinker v. Des Moines (1969) • Freedom of Speech and Expression • Students wore armbands to protest the Vietnam War • Court ruled that students were allowed to wear the armbands because it did not disrupt the class work or rights of others

19. Buckley v. Valeo (1976) • Congress was trying to limit spending on primary funds • Placed limits on individual campaign expenditure • Court basically stated that too many limits on campaign expenditure violates free speech

20. Bethel v. Fraser (1986) • Schools discipline was constitutional • Libel must be proven to be known as defamatory and false and was repeated in malicious manner • shows high freedom of press • schools are situationally specific • school may limit speech if it interferes with the educational process

21. Reno v. ACLU (1997) • Tested the Communications Indecency Act that made it a crime to distribute indecent material over the internet • Court ruled that this act was not enforceable with the current technology

22. Morse v. Frederick –Free Speech (5-4)(2006) • -The Supreme Court tightened limits on student speech, ruling against a high school student and his 14-foot-long "Bong Hits 4 Jesus" banner. • -Joseph Frederick unfurled a homemade sign in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City. Frederick said the banner was a nonsensical message and that he intended the banner to proclaim his right to say anything at all. His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.

23. Obscenity not protected by the First Amendment • Roth v. U.S.(1957) • Obscene=“offending the average person, applying contemporary community standards” • Miller v. California (1973) • Developed the Miller Rule • the average person would, applying contemporary community standards, find that work appealed to the prurient interest • the work depicts in an offensive way sexual conduct defined by State Law • the work taken as a whole lacks serious literary, artistic, political or scientific value

24. Separation of Church and State A wall of separation? Church and government are constitutionally separated from one another. However, the government supports churches and religion in a variety of ways, including tax exemption.

25. The Supreme Court has had to consider many Establishment Clause cases that involve religion and education. Religion and Education

26. The Lemon Test The Lemon Test is based on Lemon v. Kurtzman, 1971. • Supreme Court picks cases involving state aid to private schools using this standard or three prong test. • The purpose of the aid must be nonreligious. • The aid can neither advance nor inhibit religion. • Aid must not excessively entangle the government with religion.

27. West Virginia Board of Ed. v. Barnette (1943) • Restricted mandatory flag salutes • Everson v. Board of Education (1947) • Federal aid could be provided for buses going to private school • Engel v. Vitale (1962) • Outlawed school prayer in schools • Wallace v. Jaffree (1985) • Moments of silence in place of prayer are unconstitutional

28. On last year’s AP TEST!  • Reynolds v. U.S. (1878) Polygamy ruled illegal • Oregon v. Smith (1990)-outlawed use of peyote as a religious practice because the substance was illegal in the U.S.

29. Lynch v. Donnelly, 1984— allowed the display of a nativity scene along with other nonreligious objects on public land County of Allegheny v. ACLU, 1989—prohibited an exclusively Christian holiday display Pittsburgh v. ACLU, 1989—allowed a multi-faith holiday display Other Establishment Clause Cases

30. Limits Actions that violate social duties or disrupt social order are not covered under the Free Exercise Clause. Examples: Bigamy Using poisonous snakes during religious ceremonies Schoolchildren who have not been vaccinated Free Exercise Upheld The Court has found many government actions to be counter to the Free Exercise Clause. Examples: Amish children cannot be forced to go to school after grade 8 Ministers are allowed to hold elective office Unemployment benefits cannot be denied to someone who quit their job because of religious beliefs The Free Exercise Clause

31. Private Property The rights of assembly and petition do not give people a right to trespass on private property. States can interpret their constitutions to require owners of private property, such as shopping centers, to allow people to petition on their property.

32. Freedom of Association • The guarantees of freedom of assembly and petition include aright of association—the right to associate with others to promote causes.

33. The 9th Amendment • “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” • The Ninth Amendment states that the American people possess rights that are not set out explicitly in the Constitution. • It has been used to protect rights as various as the rights of the accused to a woman’s right to abortion without undue interference by government.

34. The Right to Privacy The constitutional guarantees of due process create a right of privacy. • Established in Griswold v. Connecticut, 1965, which held that a law outlawing birth-control was unconstitutional. • In Stanley v. Georgia, 1969, the right of privacy was defined as “the right to be free, except in very limited circumstances, from unwanted governmental intrusion into one’s privacy.”

35. The right of privacy provoked controversy when it was applied to a woman’s right to an abortion, beginning with Roe v.Wade in 1973. • Hyde Amendment-1976-Federal Funding cannot be used for an abortion unless the mother’s life is at stake • Casey v. Planned Parenthood (1992) –reaffirmed Roe, but set up limits (24 hr. waiting period, parental consent, pamphlets) • 2000 Court Refused to allow states to ban partial birth abortions (20 wk. old fetus)

36. Slavery and Involuntary Servitude • The 13th Amendment, ratified in 1865, ended slavery in this country. It also protects against involuntary servitude, or forced labor. • Neither the draft nor imprisonment can be classified as involuntary servitude. • Unlike any other part of the Constitution, the 13th Amendment covers the actions of private individuals as well as that of the government.

37. Starting in 1968, the Supreme Court breathed new life into the 13th Amendment by upholding provisions in the Civil Rights Act of 1866, a little-known law that had escaped repeal in the late 1800s. In a series of landmark cases, the Supreme Court found that private citizens could not practice racial discrimination to exclude people on the basis of their color. They also expanded the law to include any group subject to discrimination based on their ethnicity. The 13th Amendment in Action

38. The Right to Keep and Bear Arms • The 2nd Amendment protects the right of each State to form and keep a militia. • The 2nd Amendment has as yet not been extended to each State under the 14th Amendment. Therefore, the individual States have the right to regulate arms in their own ways. • (Miller v. U.S.) (1939)

39. Security of Home and Person The 3rd and 4th Amendments protect the security of home and person. The 4th Amendment protects against writs of assistance (blanket search warrants) and “unreasonable searches and seizures.” It is extended to the States through the 14th Amendment.

40. Aspects of the 4th Amendment Good Faith Exception: an error in gathering evidence so minor that it may be used in a trial Overriding public safety can justify questioning without mirandizing

41. Weeks v. U.S. (1914) • Exclusionary rule can be applied for illegally obtained evidence in federal court • Mapp v. Ohio (1961)-Selective Incorporation of the 4th amendment-exclusionary rule applied to states • NJ v. TLO (1985)-searches can take place in school with a reasonable suspicion • Eased restrictions for school searches

42. The 5th Amendment • Gideon v. Wainwright (1963) • Guarantee of counsel for a felony charge in federal and state trials • Escobedo v. Illinois (1964) • Exclusionary rule extended to illegal confessions in state court proceedings • In Re Gault (1967)-juveniles are given “some of the due process guarantees of adults,” rt. to counsel, phone call, cross-examine, confront accuser, and to remain silent

43. Types of Police Searches • Plain View search and Plain Feel (reach, lunge or grab) • Consent • Hot pursuit • Exigent circumstances • Terry stop and Frisk (Terry v. Ohio-1968) • Vehicle Searches with probable cause • Search incident to a lawful arrest • Airports and Borders (High Security Areas) • Good Faith Exception Clause • Special Needs Administrative Searches

44. Article I, Sections 9 & 10 • Writ of Habeas Corpus—A court order which prevents unjust arrests and imprisonment • Bills of Attainder—laws passed by Congress that inflict punishment without a court trial • Ex Post Facto Laws—new laws cannot apply to things that happened in the past

45. Grand Jury • A grand juryis the formal device by which a person can be accused of a serious crime. • It is required for federal courts under the 5th Amendment. • The grand jury deliberates on whether the prosecution’sindictment,a formal complaint, presents enough evidence against the accused to justify a trial. • Only the prosecution presents evidence.

46. Speedy and Public Trial The right to a speedy and public trial was extended as part of the 14th Amendment’s Due Process Clause by Klopfer v. North Carolina, 1967. The Speedy Trial Act of 1974 requires that the beginning of a person’s federal criminal trial must take place no more than 100 days after the arrest. A judge can limit who can watch a trial if the defendant’s rights are in jeopardy.

47. Trial by Jury • Americans in criminal trials are guaranteed an impartial jury chosen from the district where the crime was committed. • If a defendant waives the right to a jury trial, a bench trial is held where the judge alone hears the case. • Most juries have to be unanimous to convict.

48. Right to an Adequate Defense Some rights of the accused: As provided by the 6th Amendment

49. Self-Incrimination • The Fifth Amendment declares that no person can be “compelled in any criminal case to be a witness against himself.” • A person cannot be forced to confess to a crime under extreme circumstances. • A husband or wife cannot be forced to testify against their spouse, although they can testify voluntarily. In Miranda v. Arizona, 1966, the Supreme Court set an historic precedent when it would no longer uphold convictions in cases in which the defendant had not been informed of his or her rights before questioning. This requirement is known as the Miranda Rule.

50. Bail and Preventative Detention • Bail is a sum of money that the accused may be required to deposit with the court as a guarantee that he or she will appear in court. • The Constitution does not guarantee that all accused persons are entitled to bail, just that the amount of the bail cannot be excessive. (8th Amendment) • Preventive detentionis a law that allows federal judges to order that accused felons be held without bail if there is a danger that the person will commit another crime if released.