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| What was the most important item of business when the first Congress under the new Constitution met in April of 1789? | The consideration of a proposal to add a bill of rights to the Constitution |
| Proposal for the Bill of Rights | Proposed by George Mason (Virginia delegate)= Was turned down with little debate in the earlier years of the Philadelphia Constitutional Convention in Sept. 1787 because of arguments by Alexander Hamilton and other Federalists that a bill of rights was irrelevant in a constitution providing the national gov. with only delegated powers (how could the national gov. abuse powers not given to it) |
| Arguments for the Bill of Rights | Despite earlier arguments against it by Federalists, when the Constitution was submitted to the states for ratification, Antifederalists (most of whom had not been delegates in Philadelphia) picked up on the argument of Thomas Jefferson |
| Bill of Rights: Thomas Jefferson's Argument | Said omission of a bill of rights was a major imperfection of the new Constitution |
| Bill of Rights: Why was it added to the Constitution | To gain ratification of the Constitution= Despite pro/con arguments, Federalists made an "unwritten but unequivocal pledge" to add a bill of rights and promise to confirm (in what became the 10th Amendment) the understanding that all powers not delegated to the national gov. or explicitly prohibited to the states were reserved to the states |
| 10th Amendment | All powers not delegated to the national gov. or explicitly prohibited to the states were reserved to the states |
| James Madison: Bill of Rights | Was a delegate to the Philadelphia convention= May have believed privately that a bill of rights was not needed= However, he recognized the urgency of obtaining the Antifederalists' support for the Constitution and the new govt. and thus (in 1789) fought for the bill of rights= Argued that the ideals it embodied would acquire the character of fundamental maxims of free Gov., and as they became incorporated with the national sentiment, counteract the impulses of interest and passion= Fought for a bill of rights because he recognized that it would increase the likelihood that the proposed new Constitution would be adopted |
| Madison and his fellow Virginia delegates: Analysis | Were practical individuals= May have considered anti-Bill of Rights arguments but they understood that as a practical political matter it was essential to end the fears of the less than enthusiastic supporters of the Constitution= Also thought it wise to get rid of a possible issue (the absence of the explicit protections a bill of rights would provide) that could be brandished by opponents of the new regime the first time a crisis occurred |
| Analysis: Adding of the Bill of Rights | Framers' actions illustrate 1st Principle of Politics (all political behavior has a purpose)= Framers were interested in abstract ideas= Their actions however were usually calculated to get achieve practical political purposes |
| Bill of Rights | House adopted 17 amendments, Senate adopted 12 of these= 10 of the amendments were ratified by necessary 3/4 of the states (made part of constitution on December 15, 1791)= These 10 were called the Bill of Rights= Its history/controversy of interpretation can be divided into 2 categories: CIVIL LIBERTIES and CIVIL RIGHTS |
| Civil Liberties | Protections of citizens from improper governmental action |
| When adopted in 1791, the Bill of Rights was seen as... | Guaranteeing a private sphere of personal liberty free of gov. restrictions |
| Bill of Liberties | (Jefferson said that a bill of rights is what people are entitled to against every gov. on earth) Bill of Rights (as Jefferson put it) can be called a "BILL OF LIBERTIES" because the amendments focus on what gov. must NOT do |
| Bill of Rights: Restraints | Bill of Rights is a series of though shalt nots/restraints addressed to governments= Some are SUBSTANTIVE and others are PROCEDURAL |
| Substantive Restraints | Limit on WHAT the gov. shall/shall not have power to do (EX: establishing religion, quartering troops in private homes without concent, seizing private property without just compensation) |
| Procedural Restraints | Deals with HOW the gov. is supposed to act (EX: even though the gov. has the substantive power to declare cetain acts to be crimes and to arrest/imprison person who violate its criminal laws, it may not do so except by fairly meticulous observation of procedures meant to protect the accused) |
| Best-Known Procedural Rule | A person is presumed innocent until proven guilty= This rule does not question the gov.'s power to punish someone for committing a crime= It questions only the way the gov. determines who committed the crime |
| Together, Substantive and Procedural restraints identify... | The realm of civil liberties |
| Civil Rights | Obligations imposed on gov. to guarantee equal citizenship and protect citizens from discrimination by other private citizens and other gov. agencies |
| Civil Rights: Apart of the Constitution | Did not become part of Constitution until 1868 with the adoption of the 14th Amendment |
| 14th Amendment | Addresses the issue of who is a citizen and provides for each citizen the equal protection of the laws= When this was passed, Civil Rights became apart of the Constitution |
| Civil Liberties vs. Civil Rights | (After 14th Amendment passed, distinction became easier to see) Civil Liberties issues arise under the "due process of law" clause = Civil Rights issues arise under the "equal protection of the laws" clause |
| 1st Amendment | Congress shall make no law respecting an establishment of religion or abridging the freedom of speech, or of the press, or the right of assembly and petition= Is the only amendment that addresses itself exclusively to the national gov. (meant to put limits on the national gov.) |
| 2nd Amendment | Provides that the right of the people to keep and bear Arms shall not be infringed |
| 5th Amendment | Says (among other stuff) that no person shall be twice put in jeopardy of life or limb for the same crime, that no person shall be compelled in any criminal case to be a witness against himself, that no person shall be deprived of life/liberty/property without due process of law, that private property cannot be taken without just compensation |
| Barron vs Baltimore | Settled the question of whether the Bill of Rights also limits state gov. (in 1833 in a way that seems odd to Americans)=In paving its streets, Baltimore city had disposed of so much sand/gravel in the water near John Barron's wharf that the value of the wharf for commercial purposes was virtually destroyed= Barron brought the city into court on the grounds that it had (under the 5th Amendment) unconstitutionally deprived him of his property= Chief Justice John Marshall disagreed with Barron's argument |
| Barron vs Baltimore: Marshall's ruling | Said if an agency of the national gov. had deprived Barron of his property, there would have been little doubt about Barron's winning his case but if the constitution of the sate of Maryland contained no such provision protecting citizens of Maryland from such action, then Barron had no legal leg to stand on against Baltimore, an agency of the state of Maryland |
| Dual Citizenship | Confirmed by "Barron vs Baltimore"= Idea that each American was a citizen of a national gov. and separately a citizen of 1 of the states= Meant that the Bill of Rights did not apply to decisions or procedures of state/local gov. (even slavery could continue because the BIll of Rights could not protect anyone from state laws treating people as property) |
| When did the Bill of Rights become a vital instrument for the extension of civil liberties | Only after the Civil War and the revolutionary 14th Amendment (still, it took another century for the Bill of Rights to really become useful) |
| Barron vs Baltimore: Was a case where what mattered? Why? | America's history= US states predated creation of the federal gov.= States joined Union voluntarily retaining many of their sovereign powers (in many other nations, subnational gov. were created by/for administrative convenience of the central gov.) |
| Defeat of the South in the Civil War: What question did it settle and raise | Settled forever the question of whether secession was an option for any state (after 1865, there was to be more "United" than "States" to the US)= But this left unanswered how much states were obliged to obey the Constitution and the Bill of Rights |
| 14th Amendment: 1st Clause meaning | Reading it, people might think it was perfectly designed to impose the Bill of Rights on the states and thus reverse "Barron vs Baltimore"= Says all person born or naturalized in the US and subject to the jurisdiction thereof, are citizens of the US and of the State wherein they reside= This provides for a single national citizenship, and at a minimum that means civil liberties should not vary drastically from state to state |
| 14th Amendment: What was its spirit | Nationalize the Bill of Rights by nationalizing the definition of citizenship |
| 14th Amendment: 2nd Clause | (Supports the interpretation of the 14th Amendment) No state shall make/enforce any law which shall abridge the privileges/immunities of citizens of the US nor shall any State deprive any person of life/liberty/property without due process of law |
| 14th Amendment: What did it seem like | Seemed like an effort to extend the Bill of Rights in its entirety to citizens wherever they might reside= However, this was not the Supreme Court's interpretation= Within 5 years of ratification of the 14th Amendment, the Court was making decisions as if the amendment was not adopted |
| Slaughter-House Cases: What did the Supreme Court determine | Determined that the federal gov. was under no obligation to protect the "privileges and immunities" of citizens of a particular state against arbitrary actions by that state's gov. |
| Slaughter-House Cases: Origin | 1867, a corrupt Louisiana legislature conferred upon a single corporation a monopoly on the slaughterhouse business in the city of New Orleans= The other slaughterhouses (facing bankruptcy) brought suits claiming (like John Barron) that this was a seizure of their property in violation of the 5th Amendment rights= But unlike Barron, they believed that they were protected now because they argued the 14th Amendment incorporated the 5th Amendment applying it to the states= The suits were all rejected |
| Slaughter-House Cases: Ruling | Court rejected all of the suits= Court 1st argued that the primary purpose of the 14th Amendment was to protect "Negroes as a class"= 2nd, the court argued (without trying to prove it) that the framers of the 14th Amendment could not have intended to incorporate the entire Bill of Rights |
| Civil Rights Act of 1875: Discrepancy | Attempted to protect blacks from discriminatory treatment by proprietors of hotels/theaters/other public accommodations= Supreme Court disregarded it own primary argument in the previous case and held the act unconstitutional saying that the 14th Amendment applied only to discriminatory actions by state officials operating under cover of law and not to discrimination against blacks by private individuals (even though these private individuals were companies offering services to the public) |
| 14th Amendment: Shadow | 14th Amendment remained shadowy until mid-20th century= The shadow was "Barron vs Baltimore" and the Court's unwillingness to nationalize civil liberties (i.e. interpret the civil liberties expressed in the Bill of Rights as imposing limitations not only on the fed. gov. but also on the states) |
| How/when did the Supreme Court begin to nationalize the Bill of Rights | Began nationalizing the Bill of Rights at the end of the 19th century by incorporating its civil liberties provisions into the 14th Amendment |
| Change in civil liberties during the first 60 years after the adoption of the 14th Amendment | The only change came in 1897 when the Supreme Court held that the due process clause of the 14th Amendment did in fact prohibit states from taking property for a public use without just compensation= This effectively overruled "Barron vs Baltimore" because it meant that the citizen of Maryland (or any state) was henceforth protected from a public taking" of property even if the state constitution did not provide such protection |
| Eminent Domain | Power of public agencies to seize private property= According to 5th Amendment, private owners must be paid "just compensation" by the gov. if it decides that it needs their property |
| In what way does "Barron vs Baltimore" still cast a shadow | In a broader sense, it casts a shaw because the Supreme Court had "incorporated" into the 14th Amendment only the property protection provision of the 5th Amendment and no other clause (let alone the other amendments of the Bill of Rights)= In other words, although due process applied to the taking of life/liberty/property, only property was incorporated into the 14th Amendment as a limitation on state power |
| Further expansion of civil liberties through incorporation | No further expansion occurred until 1925 when the Supreme Court held that freedom of speech is among the fundamental personal rights and liberties protected by the due process clause of the 14th Amendment from impairment by the states= 1931, Court added freedom of the press to that short list of civil rights protected by the Bill of Rights from state action= 1934, Court added freedom of religion= 1939, Court added freedom of assembly= However, this was as far as the Court was willing to go= As late as 1937, the Court was still loath to nationalize civil liberties beyond the 1st Amendment (in that year, Court took one of most extreme turns backward toward "Barron vs Baltimore") |
| Selective Incorporation | 1-by-1 application of the provisions of the Bill of Rights |
| Supreme Court's feeling toward nationalizing civil liberties: 1937 | Was still against nationalizing civil liberties beyond the 1st Amendment as late as 1937 and in that year, the court took one of its most extreme turns backward toward "Barron vs Baltimore" (case dealt with Frank Palko) |
| Frank Palko | Was indicted by state of Connecticut for 1st degree murder but a lower court found him guilty of only 2nd degree murder and sentenced him to life in jail= Connecticut was unhappy and thus appealed the conviction to its highest court, won the appeal, got a new trial, and succeeded in getting Palko convicted of 1st degree murder= Palko appealed to Supreme Court on what seemed an open-and shut case of double jeopardy (being tried twice for the same crime) |
| Open-and-Shut case of double jeopardy | Tried twice for the same crime |
| Palko vs. Connecticut | (Case involving Frank Palko) Court agreed with Palko in that this case could be considered a case of double jeopardy= However, the justices decided that double jeopardy was not 1 of the provisions of the Bill of Rights incorporated into the 14th Amendment as a restriction on the powers of the states= Justice Benjamin Cardozo also rejected the argument made by Palko's lawyer that whatever is forbidden in the 5th Amendment is forbidden by the 14th also (Justice Cardozo said that there is no such general rule)= IMPORTANCE: Court felt that the only rights from the Bill of Rights that should be incorporated into the 14th Amendment as applying to the states as well as to the national gov. were those that were "implicit in the concept of ordered liberty"= Cardozo asked the questions "does double jeopardy subject Palko to a 'hardship so acute and shocking that our polity will not endure it? Does it violate those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?' (answer was NO [Palko was later executed for the crime because he lived in the state of Connecticut rather than in state whose constitution included a guarantee against double jeopardy]) |
| Cases like "Palko" did what? | Extended the shadow of "Barron" into its 2nd century despite adoption of the 14th Amendment= The Constitution, as interpreted by the Supreme Court, left standing the framework in which the states had the power to determine their own law on many fundamental issues= It left states with the power to pass laws segregating the races= The constitutional framework also left states with the power to engage in searches and seizures without a warrant, indict accused persons without benefit of a grand jury, deprive persons of trial by jury, force persons to testify against themselves, deprive accused persons of their right to confront adverse witnesses, prosecute accused persons more than once for the same crime (all these were implicitly identified in the "Palko" case as "not incorporated" into the 14th Amendment as limitations on the powers of the states (few states chose to use those kinds of powers, but some states did, and the authority to do so was there for any state whose legislative majority so chose) |
| For how long after the "Palko" case was the 19th-century framework sustained? When/why did it change? | Sustained for more than 30 years but signs of change came after 1954 in "Brown vs. Board of Education" when the Court overturned the infamous "Plessy vs. Ferguson" |
| Brown vs. Board of Education | Court overturned "Plessy vs. Ferguson"= The case showed that the Court was going to be expansive about civil liberties because in this case, the Court promised that it was actively going to subject the states and all actions affecting civil rights and liberties to STRICT SCRUTINY= (can be said that this case is responsible for the constitutional revolution in civil liberties even though the result weren't apparent until after 1961 [when the # of incorporated civil liberties increased]) |
| Plessy vs. Ferguson | Civil rights case involving the "equal protection" clause of the 14th Amendment but was not an issue of applying the Bill of Rights to the states |
| Constitutional Revolution in Civil Liberties | Was a movement toward nationalization, just like the federalism revolution= However, both revolutions required opposite motions on the part of the Supreme Court |
| Nationalizing the Bill of Rights: First Revolution | Dealt with COMMERCE= In the area of commerce, the Court decided to assume PASSIVE role by not interfering as Congress expanded the meaning of the commerce clause of Article I, Section 8 (this expansion has been so extensive that the national gov. can now constitutionally reach a single farmer growing 20 acres of wheat or a small restaurant selling barbecues to local "whites only" without the farmer or the restaurant being anywhere near interstate commerce routes) |
| Nationalizing the Bill of Rights: Second Revolution | Dealt with the Bill of Rights and the 14th Amendment (rather than the commerce clause)= Court had to assume an ACTIVE role, which required close review (not of Congress) of the laws of state legislatures and the decisions of state courts to apply a single national 14th Amendment standard to the rights and liberties of all citizens |
| Bill of Rights: Until 1961... | Only the 1st Amendment was fully/clearly incorporated into the 14th Amendment= After 1961, many other important provisions of the Bill of Rights were incorporated |
| Cases that expanded the 14th Amendment's reach | "Gideon vs. Wainwright" (is 1 of the most famous cases that expanded the 14th Amendment's reach [because it became the subject of a best-selling book and a popular movie])= "Mapp vs. Ohio"= "Miranda vs. Arizona" |
| Gideon vs. Wainwright | Established the right to counsel in a criminal trial (is among the most famous cases that expanded the 14th Amendment's reach [because it became the subject of a best-selling book and a popular movie]) |
| Mapp vs. Ohio | Court held that evidence obtained in violation of the 14th Amendment based on unreasonable searches and seizures would be excluded from trial ("EXCLUSIONARY RULE") |
| Exclusionary Rule | Proved to be very irksome/difficult/confusing to police and prosecutors because it meant that patently guilty defendants sometimes got to go free because the evidence that cleary damned them could not be used |
| Miranda vs. Arizona | Court's ruling required that arrested persons be informed of the rights to remain silent and have counsel present during interrogation (this is the basis of the "MIRANDA RULE") |
| Miranda Rule | Must read persons their rights (is familiar to most Americans from movies/TV police shows) |
| Benton vs. Maryland (1969) | Court had come full circle regarding the rights of the criminally accused (explicitly reversing the "Palko vs. Ferguson" ruling and thereby incorporating "DOUBLE JEOPARDY") |
| Supreme Court and Civil Liberties during the 1960s and early 1970s | Court expanded another important area of civil liberties: RIGHTS TO PRIVACY= When Court began to take a more activist role in the mid-1950s and 1960s, the idea of right to privacy was revived= In 1958, Court recognized "privacy in one's association" |
| "Privacy in one's association" | Was recognized by the Court in 1958 in its decision to prevent the state of Alabama from using the membership list of the National Association for the Advancement of Colored People (NAACP) in its investigations |
| Recent cases and the "right to privacy" | Legal questions about the "right to privacy" have been made in recent cases concerning birth control, abortion, homosexuality, assisted suicide |
| What does liberty require? Result | Liberty requires restraining power of gov.= Thus, general status of civil liberties can never be considered fixed/permanent |
| Bill of Rights: Provisions, interpretation, dispute | Every provision in Bill of Rights is subject to interpretation= In any dispute involving a clause of the Bill of Rights, interpretations will ALWAYS be shaped by the interpreter's interest in the outcome |
| Freedom of Religion | Bill of Rights begins by guaranteeing freedom= 1st Amendment provides freedom of religion in 2 clauses (the 1st is the "establishment clause" and the 2nd is the "free exercise clause") |
| 1st Amendment | Congress shall make no law [1] respecting an establishment of religion, or [2] prohibiting the free exercise thereof (the 1st clause is the ESTABLISHMENT CLAUSE and the 2nd is the FREE EXERCISE CLAUSE) |
| Establishment Clause | Interpreted strictly to mean that a virtual wall of separation exists between church and state |
| Wall of Separation | (A.K.A. Separation of Church and State) Important to American colonists (who sought refuge from persecution for having rejected membership in state-sponsored churches)= Concept of a wall of separation was Jefferson's idea |
| Wall of Separation: Interpretation | Much room to disagree on how high the wall is or of what materials it is composed of (EX: Bible reading, nondenominational prayer, moment of silence for meditation, pre-game prayer at public sporting events) |
| Wall of Separation: Interpretation and Supreme Court | Court reasoned that school-sponsored observations (even of an apparently nondenominational character) are highly suggestive of school sponsorship and thus violate the prohibition against establishment of religion= However, Court has been very permissive/inconsistent about the public display of religious symbols (EX: city-sponsored Nativity scenes in commercial/municipal areas)= Although Court consistently disapproved of gov.-financed support for religious schools (even when purpose has been purely educational/secular), it has allowed certain direct aid to students of such schools in the form of busing |
| Lemon vs Kurtzman | In 1971, after 30 years of cases involving religious schools, Court tried to specify some criteria to guide its decisions and those of lower courts (EX: Indicated that in a decision invalidating state payments for the teaching of secular subjects in parochial schools, the circumstances under which the Court might allow certain financial assistance)= Court (in its decision) established 3 criteria to guide future cases (is called the "Lemon Test" [is hard to pass but Court has shown willingness to let such cases pass]) |
| Lemon Test | (Lemon vs Kurtzman) Government aid to religious schools would be accepted as constitutional if [1] it had a secular purpose, [2] its effect was neither to advance/inhibit religion, and [3] it did not entangle gov. and religious institutions in each other's affairs |
| Viewpoint Discrimination | The denial of Court narrowly ruled that a student religious group at the Universit of Virginia could not be denied student-activities funds merely because it was a religious group espousing a particular viewpoint about a deity= Court called the denial "viewpoint discrimination"= Said it violated the free speech rights of the group |
| Viewpoint Discrimination: RESULT | Court's decision led to more conservative approach to the separation of church and state (EX: 1997, Court accepted practice of sending public-school teachers into parochial schools to provide remedial education to disadvantaged children |
| School-Voucher and Charter School Movements | (Have recently put the establishment clause under pressure) Vouchers (financed by public revenues) are supporting tuition to religious schools, where common prayer and religious instruction are known parts of the curriculum= Also, many financially needy church schools are actively recruiting students with tax-supported vouchers, considering them an essential source of revenue if they are to keep their school operating |
| What impression are Vouchers and Charter Schools creating? Supreme Court's response? | Creating impression that public support is aiding the establishment of religion= Court has refused to rule on the constitutionality of these programs |
| Pledge of Allegiance: Religion | Question of whether phrase "under God" in Pledge of Allegiance violates the establishment clause was brought to Court= The Pledge (written in 1892) had been used in schools without any religious references= 1954 (in midst of the cold war) Congress voted to change the Pledge in response to the "godless COmmunism" of the Soviet Union= Conversion was made by adding 2 key words so that the revised version read "I pledge allegiance...UNDER GOD....and justice for all" [emphasis added] |
| Ever since change of Pledge of Allegiance | Has been constant murmuring of discontent from those who object to an officially sanctioned profession of belief in a deity as a violation of the "religious freedom clause" of the 1st Amendment= When saying the Pledge, those who object to the phrase have often stayed silent during the recitation of the 2 key words |
| Michael Newdow | Father of a kindergarten student in CA elementary school= Forced the "Pledge issue" to surface when he brought suit against the local school district= Was an Atheist and argued that the reference to GOd turned the daily recitation of the Pledge into a religious exercise= Federal court ruled that although students were not required to recite the Pledge at all, having to stand/listen to others say "under God" still violated the 1st Amendment's "Establishment Clause" |
| Michael Newdow: Supreme Court | On June 14, 2004 (50 years to the day after adoption of "under God" in the Pledge) Court ruled that Newdow lacked sufficient personal stake in the case to bring the complaint= This inconclusive decision by the Court left "under God" in the Pledge while keeping the issue alive for possible resolution in a future case |
| Free Exercise Clause | Protects the right to believe and practice whatever religion one chooses= Also protects right to be a nonbeliever |
| West Virginia State Board of Education vs Barnette | (Precedent-setting case involving FREE EXERCISE) Involved children of a family of Jehovah's Witnesses who refused to salute and pledge allegiance to the US flag on the grounds that their religious faith did not permit it= 3 years earlier, Court upheld such a requirement and allowed schools to expel students for refusing to salute the flag, but the entry of US into a war to defend democracy coupled with the ugly tretment to which the Jehovah's Witnesses' children had been subjected induced the COurt to reverse itself and endorse the free exercise of religion even when it may be offensive to the beliefs of the majority= Was 1 of the 1st cases to confront the possibility of another right that is NOT mentioned in the Constitution or the Bill of Rights: THE RIGHT TO BE LEFT ALONE (i.e. right to privacy) |
| Supreme Court and the free exercise of religious belief | Has been consistent/strict in protecting the free exercise of religious belief but has taken pains to distinguish between RELIGIOUS BELIEFS and ACTIONS based on those beliefs |
| Supreme Court: Case involving religious beliefs and actions based on those beliefs | 2 Native Americans were fired from their jobs for smoking peyote (an illegal drug)= Claimed they had been fired from jobs illegally because smoking peyote was a religious sacrament protected by the free exercise clause= Court disagreed with claim but Congress supported claim and went on to engage in an unusual controversy with the Court (involving the separation of powers and the proper application of the separation of church and state)= Congress reversed Court's 1990 decision with enactment of the "Religious Freedom Restoration Act" (RFRA) |
| Religious Freedom Restoration Act (RFRA) | (Enacted by Congress to reverse older Court's decision dealing with 2 Native Americans) Forbids any federal agency/state gov. to restrict a person's free exercise of religion unless the fed. agency or state gov. demonstrates that its action furthers a compelling gov. interest and is the least restrictive means of furthering that compelling gov. interest |
| "City of Boerne" Case | One of first applications of RFRA was to a case brought by St. Peter's Catholic Church against the City of Boerne, Texas which had denied permission to the church to enlarge its building because the building had been declared a historic landmark= Case went to fed. court on argument that the city had violated church's religious freedom as guaranteed by Congress in RFRA= Supreme Court declared RFRA unconstitutional (but on grounds rarely utilized/unique to this case) |
| Religious Freedom Restoration Act: Supreme Court | Court declared RFRA unconstitutional (on grounds rarely utilized/unique to the "City of Boerne" case)= Congress had violated the separation-of-powers principle, infringing on the powers of the judiciary by going so far beyond its law-making powers that it ended up actually expanding the scope of religious rights rather than just enforcing them= Court thus implied that questions requiring a balance of religious claims against public policy claims were reserved strictly to the judiciary |
| "City of Boerne" Case: Analysis/result | Settled some matters of constitutional controversy over the religious exercise and the establishment clauses of the 1st Amendment but it left much more unsettled |
| Freedom of Speech and the Press | (First Amendment) Says Congress shall make no law abridging the freedom of speech, or of the press |
| Because democracy depends on...and politics is basically....freedom of speech/press are... | Because democracy depends on an open political process and politics is basically talk, freedom of speech and freedom of the press are considered critical= Thus were both given prominence in the BIll of Rights equal to that of freedom of religion |
| Freedom of Speech: Supreme Court in 1938 | Freedom of Speech (which includes freedom of the press) was given much constitutional status when COurt established that any legislation that attempts to restrict these fundamental freedoms is to be subjected to a more exacting judicial scrutiny than are most other types of legislation= Court was saying that the democratic political process must be protected at almost any cost |
| Strict Scrutiny | Is what the higher standard of judicial review came to be called (i.e. democratic political process must be protected at almost any cost)= Implies that speech will be protected almost absolutely (however, only some types of speech are fully protected against restrictions [many forms are less than absolutely protected even though they are entitled to strict scrutiny]= 2 types of speech are "Absolutely protected speech" and "Conditionally protected speech") |
| Defense against efforts to place limitations on speech (oral or in print) | Is 1 absolute defense against efforts to place limitations on speech: the TRUTH= The truth is protected even when its expression damages the person to whom it applies= Of all forms of speech, political speech is the most consistently protected |
| Political Speech | Is most consistently protected form of speech= Was the activity of greatest concern to the Framers (even though they found it the most difficult provision to observe) |
| Alien and Sedition Acts | Within 7 years of ratification of Bill of Rights, Congress adopted "Alien and Sedition Acts" (made it a crime to say/publish anything that might tend to defame/bring into disrepute the gov. of the US)= Acts' intentions were to criminalize the conduct given absolute protection by the First Amendment= 15 violators were indicted and a few were convicted |
| The First Modern Free Speech Case | Arose immediately after WWI= Involved persons who had been convicted under the federal Espionage Acts of 1917 for opposing US involvement in the War= Court upheld the act and refused to protect the speech rights of the defendants on grounds that their activities (appeals to drafties to resist the draft) constituted a "CLEAR AND PRESENT DANGER" to security= Was the 1st/most famous test of when gov. intervention/censorship can be allowed |
| Clear and Present Danger | Criterion used to determine whether speech is protected/unprotected based on its capicty to present a "clear and present danger" to society |
| It was only after the 1920s that real progress toward... | Toward a genuinely effective First Amendment was made= Since then, political speech has been consistently protected by the courts even when it has been deemed "insulting" or "outrageous" |
| Political Speech: Supreme Court since 1920s | Court said that the constitutional guarantees of free speech/press do not permit a State to forbid/proscribe advocacy of the use of force/law violation except where such advocacy is directed to inciting/producing imminent lawless action and is likely to incite/produce such action= Statement was made in a case of a KKK leader [Charles Brandenburg] who was arrested/convicted of advocating "revengent" action against the president/Congress/Supreme Court/etc. if they continued to suppress the white Caucasian race= Court reversed state courts and freed Brandenburg while declaring "Ohio's Criminal Syndicalism Act" unconstitutional because it punished persons who "advocate, or teach the duty/necessity/propriety [of violence] as a means of accomplishing industrial or political reform" or who publish materials or voluntarily assemble to teach or advocate the doctrines of criminal syndicalism= Court argued that the statute did not distinguish "mere advocacy" from "incitement to imminent lawless action" |
| Buckley vs Valeo: Political Speech | Court's decision opened up another area of recent expansion of political speech: the participation of rich people/corporations in political campaigns |
| Buckley vs Valeo | Campaign finance reform laws of early 1970s (arising from Watergate scandal) sought to put sever limits on campaign spending, and many important provisions were declared unconstitutional on basis of a new principle that spending $ by or on behalf of candidates is a form of speech protected by the First Amendment= Issue came up again after passage of new/more sever campaign finance law (the "Bipartisan Campaign Reform Act" [2002]) in the "McConnel vs Federal Election Commission" case |
| McConnel vs Federal Election Commission | (In response to the "Bipartisan Campaign Reform Act") Court reduced the area of speech protected by the "Buckley vs Valeo" decision by holding that Congress was well within its power to put limits on the amounts individuals could spend, plus sever limits on the amounts of "soft money" that could be spent by corporations and their PACs= Court argued that the selling of access has given rise to the appearance of undue influence that justifies regulations impinging on First Amendment rights in order to curb corruption or the appearance of cooruption |
| First Amendment: Freedoms of Assembly and Petition | Are treated by First Amendment as equal to the freedoms of religion and political speech |
| Freedom of Assembly and Freedom of Petition | Closely associated with speech but go beyond it to speech associated with action |
| Since 1931, Supreme Court has sought to....actions that are... | Sought to protect actions that are designed to send a political message |
| Purpose of a symbolic act | Is not only to send a direct message but also to draw a crowd [to do something spectacular in order to draw spectators to the action and thus strengthen the message]= Thus Court held unconstitutional a CA statute making it a felony to display a red flag as a sign/symbol/emblem of opposition to organized gov. |
| Symbolic Actions: Limits vs protections | Although today there are limits on how far one can go with actions that symbolically convey a message, the protection of such action is very broad (EX: Burning of draft cards, wearing of black armbands to schools, burning of the American flag) |
| Burning of draft cards and wearing of black armbands to school | (Example of Symbolic Actions) Although Court upheld a federal statute making it a crime to burn draft cards to protect the Vietnam War on grounds that the gov. had a compelling interest in preserving draft cards as part of the conduct of the war itself, it considered the wearing of black armbands to school a protected form of assembly |
| Burning of the American flag | (Example of Symbolic Actions) 1984, at politicl rally held during the Republican National Convention in Dallas, a political protester burned a US flag in violation of a Texas statue that prohibited desecration of a venerated object= In a 5-4 decision, Court declared Texas law unconstitutional on grounds that flag burning is expressive conduct protected by the First Amendment= Congress reacted immediately with a proposal for a constitutional amendment reversing the Court's decision and when amendment failed to get necessary 2/3 majority in Senate, Congress passed the "Flag Protection Act of 1989"= |
| Flag Protection Act of 1989 | Congresses attempt to reverse Court's decision dealing with flag burning in Texas after it failed to get proposed constitutional amendment passed= Protesters promptly violated act andprosecution moved quick into fed. district court which declared new law unconstitutional= Court affirmed lower court's decision |
| Speech Plus | (Is closer to the original intent of the assembly and petition clause) Following speech with physical activity such as picketing/distributing leaflets/other forms of peaceful demonstration or assembly= Such assemblies are consistently protected by courts under the First Amendment= State/local laws regulating such activities are closely scrutinized and frequently overturned= Assemblies in public areas can also be restricted under some circumstances especially when the assembly/demonstration jeopardizes the health/safety/rights of others (this condition was basis of Court's decision to uphold a lower-court order restricting the access that abortion protesters had to the entrances of abortion clinics) |
| Assemblies on Private Property | An assembly on private property can be regulated (EX: directors of a shopping center can lawfully prohibit an assembly protesting a war/etc.) |
| Freedom of the Press | Freedom of speech implies/includes freedom of the press= With exception of broadcast media (is subject to federal regulation) the press is protected under the doctrine prohibiting PRIOR RESTRAINT |
| Prior Restraint | (Began with landmark case of "Near vs Minnesota") Effort by a gov. agency to block the publication of material it deems libelous/harmful in some other way; censorship= In US, courts forbid prior restraint except under the most extreme circumstances |
| Near vs Minnesota | (Landmark case for "Prior Restraint") Court held that except under the most extraordinary circumstances, the First Amendment prohibits gov. agencies from seeking to prevent newspapers/magazines from publishing whatever they wish |
| New York Times vs US | (A.K.A. Pentagon Papers case) Court ruled that the gov. could not even block publication of secret Defense Department documents furnished to the NY Times by an opponent of the Vietnam War who got the documents illegally |
| When did the Supreme Court restrain the press | 1990 case, Court upheld a lower-court order restraining the Cable News Network (CNN) from broadcasting tapes of conversations between the former Panamanian dictator Manuel Noriega and his lawyer (recorded by the US gov.)= Vote of 7-2, Court held that CNN could be restrained from broadcasting the tapes until the trial court in the Noriega case had listened to the tapes and decided whether the broadcast would violate Noriega's right to a fair trial |
| Conditionally Protected Speech | Refers to the 4 forms of speech fall outside the absolute guarantees of the First Amendment and thus outside the realm of absolute protection (Still enjoy considerable protection by the courts): libel and slander, obscenity and pornography, fighting words, commercial speech |
| Libel | If a written statement is made in "reckless disregard of the truth" and is considered damaging to the victim because it is "malicious, scandalous, and defamatory," it can be punished as libel |
| Slander | If an oral statement is made in "reckless disregard of the truth" and is considered damaging to the victim because it is "malicious, scandalous, and defamatory," it can be punished as slander |
| Libel and Slander | Not protected at all |
| Libel Suits | Today, most involve freedom of the press (and the realm of free press is enormous)= Recently, US courts have greatly narrowed the meaning of libel and made it very hard (particularly for politicians/other public figures) to win a libel case against a newspaper |
| Law of Libel | (Historically, newspapers were subject to this) Provided that newspapers that printed false/malicious stories could be compelled to pay damages to those they defamed |
| New York Times vs Sullivan | (Dealt with Libel) Court held that to be deemed libelous, a story about a public official had to be untrue and also had to result from "actual malice" or "reckless disregard" for the truth (MEANING: The newspaper had to deliberately print false and malicious material) |
| New York Times vs Sullivan: Result | To be deemed libelous, a newspaper had to deliberately print false and malicious material= In practice, is almost impossible to prove that a paper deliberately printed maliciously false info., and it is especially difficult for a politician or other public figure to win a libel case= Essentially, the print media have been able to publish anything they want about a public figure |
| In what recent case did the Supreme Court open up the possibility of public official's filing libel suits against the press? | 1985, Court held that the press was immune from libel only when the printed material was a matter of public concern (MEANING: In future cases a newspaper would have to show that the public official was engaged in activities that were indeed public)= This new principle has made the press more vulnerable to libel suits but it still leaves a huge realm of freedom for the press |
| Hustler Magazine vs. Falwell | Reverend Jerry Falwell (cofounder of the Moral Majority) lost his libel suit against "Hustler" magazine even though the magazine had published a cartoon depicting Falwell having drunken intercourse with his mother in an outhouse= Court rejected a jury verdict in favor of damages for "emotional distress" on the grounds that parodies (no matter how outrageous) are protected because outrageous is too subjective a test and thus would interfere with the free flow of ideas protected by the First Amendment |
| Why can "libel and slander" cases be difficult? What does this mean about cases involving pornography and obscenity | If "Libel and Slander" cases can be difficult because of the problem of determining the truth of statements and whether those statements are malicious and damaging, cases involving pornography and obscenity can be even more sticky |
| What is the problem with cases that involve "pornography and obscenity" | It is easy to say that pornography and obscenity fall outside the realm of protected speech, but it is impossible to draw a clear line defining where protection ends and unprotected speech begins [Court didn't confront this problem until 1957, and it did so with a definition of obscenity that may have caused more confusion then it cleared up] |
| Attempted "Solution" to the problem of cases that involve "pornography and obscenity" | Justice William Brennan (in writing the Court's opinion) defined "OBSCENITY" as "speech or writing that appeals to the "PRURIENT INTEREST" (i.e. books, magazines, films, other material whose purpose is to excite lust as this appears "to the average person, apply contemporary community standards")= Even so (Brennan added), the work should be judged obscene ONLY when it is "utterly without redeeming social importance" (Brennan's definition, instead of clarifying the Court's view, caused more confusion)= 1964, Justice Potter Stewart confessed that although he found pornography impossible to define, "I know it when I see it" |
| Analysis of all the attempts by the courts to define pornography and obscenity | All attempts to define pornography and obscenity have proved impractical because each instance required courts to screen thousands of pages of print material or feet of film alleged to be pornographic= The vague and impractical standards that had been developed meant ultimately that almost nothing could be banned on the grounds that it was pornographic and obscene |
| Describe the Court's effort to strengthen the restrictions on pornography and obscenity in 1973 | Court expressed its willingness to define pornography as a work that as a whole is deemed prurient by the "average person" according to "community standards", depicts sexual conduct "in a patently offensive way", lacks "serious literary, artistic, political, or scientific value"= This definition meant that pornography would be determined by LOCAL rather than national standards (thus, a local bookseller might be prosecuted for selling a volume that was a best seller nationally but was deemed pornographic locally)= This new definition of standards didn't help much either and shortly after 1973, the Court again began to review all such community anti-pornography laws, reversing most of them |
| Result of Court's inability to limit/define pornography and obscenity | Today, is widespread fear that Americans are free to publish any/all variety of intellectual expression (whether there is any "redeeming social value" or not)= However, this area of free speech is far from settled |
| Describe the battle against obscene speech in recent years | Has focused on pornography on the Internet= Opponents of this form of expression argue that ti should be banned because of the easy access children have to the Internet |
| Telecommunications Act | (1996) Legislation passed by 104th Congress on February 1, 1996= Was the 1st major effort to regulate the content of the Internet= Attached to this Act was an amendment called the "COMMUNICATIONS DECENCY ACT (CDA) |
| Communications Decency Act (CDA) | Was an amendment that was attached to the Telecommunications Act= Meant to regulate the online transmission of obscene material= Its constitutionality was immediately challenged in court by a coalition of interests led by the American Civil Liberties Union (ACLU) |
| Reno vs. ACLU | (1997) Court struck down the CDA ruling that it suppressed speech that adults have a constitutional right to receive and that governments may not limit the adult population to messages that are fit for children= Justice John Paul Stevens described the Internet as the "town crier" of the modern age and said that it was entitled to the greatest degree of 1st Amendment protection possible |
| Children's Internet Protection Act | (2001) Another attempt by Congress to limit children's access to Internet pornography= Required public libraries to install anti-pornography filters on all library computers with Internet access= Although the act made cooperation a condition for getting federal subsidies, it did permit librarians to unblock a site at the request of an adult patron= Law was challenged and in 2003 the Court upheld it saying that its provisions didn't violate library patrons' 1st Amendment Rights |
| US vs. Playboy Entertainment Group | (2000) Court's decision extended the highest degree of 1st Amendment protection to CABLE (NOT broadcast) tv= Court struck down a portion of the Telecommunications Act of 1996 that required cable TV companies to limit the broadcast of sexually explicit programming to late-night hours= In decision, Court noted that the law already provided parents with means to restrict access to sexually explicit cable channels through various blocking devices (also, such programming could come into the home only if parents decided to purchase such channels in the first place) |
| When can speech loose its protected position? | When it moves toward the sphere of action |
| Expressive Speech: Describe its protection | Expressive Speech is protected until it moves from the symbolic realm to the realm of actual conduct (to direct incitement of damaging conduct with the use of "fighting words") |
| Fighting Words | Speech that directly incites damaging conduct= Fighting words are those that, by simply saying them, inflict injury or tend to incite an immediate breach of the peace |
| Chaplinsky vs. State of New Hampshire | (1942) Court upheld the arrest and conviction of a man who had violated a state law forbidding use of offensive language in public (he called the arresting officer a "goddamned racketeer" and "a damn Fascist")= His arrest was upheld on the grounds that the 1st Amendment provides NO protection for such offensive language because such words "are no essential part of any exposition of ideas" |
| Dennis vs. US | (1951) Important case decided at height of the cold war= Reaffirmed the "Chaplinsky vs. State of New Hampshire" decision= Court upheld the infamous "Smith Act of 1940" (which provided criminal penalties for those who willfully and knowingly conspire to teach and advocate the forceful and violent overthrow and destruction of the gov.)= Court said that there is no substantial public interest in permitting certain kinds of utterances: the lewd and obscene, profane, libelous, insulting/"fighting" words |
| Since "Dennis vs. US" (1951), what has the Court done with respect to "Fighting Words" | Court has reversed almost every conviction based on arguments that the speaker had used "fighting words" (however, this doesn't mean that this is an absolutely settled area) |
| Political Correctness (PC) | Is a movement against words that might be seen as offensive to members of a particular group= The movement was prompted by increased activism (in recent years) of minority and women's groups |
| Response to "Political Correctness" (PC) | In response to this movement, many organizations have tried to impose codes of etiquette that acknowledge these enhanced sensitivities (these efforts to formalize the restraints on use of certain words in public are causing much concern over possible infringement on freedom of speech [but how should we determine what words are "fighting words" and thus fall outside protections of the freedom of speech]) |
| One category of conditionally protected speech is the... | Free speech of high-school students in public schools |
| Bethel School District (NO. 403) vs. Fraser | (1986) Court backed away from a broad protection of student free speech rights by upholding the punishment of a high school student for making sexually suggestive speech= Court's opinion held that such speech interfered with the school's goal of teaching students the limits of socially acceptable behavior |
| Hazelwood School District vs. Kuhlmeier | (1988) In its decision (which was 2 years after "Bethel School District vs. Fraser"), the Court took another CONSERVATIVE step by restricting students' speech and press rights even further by defining them as part of the educational process and not to be treated with the same standard as adult speech in a regular public forum |
| Universities and Free Speech | Many universities have tried to develop "SPEECH CODES" to suppress utterances deemed to be racial or ethnic slurs (however, universities find that the codes often produce more problems than they solve)= Speech codes at some universities have been struck down by federal judges as unconstitutional infringements of speech= Such concerns are not limited to universities (although universities have moved furthest toward efforts to formalize "politically correct" speech guidelines) |
| Large Corporations and Free Speech | Large Corporations (both public and private) have had similar developments to those in universities (i.e. speech codes)= Many successful complaints/lawsuits have been brought claiming that the words of employers or their supervisors create a "hostile or abusive working environment" |
| Meritor Savings Bank vs. Vinson | (1986) Court held that "SEXUAL HARASSMENT" that creates a "hostile working environment" includes "unwelcome sexual advances, requests for sexual favors, and other VERBAL or PHYSICAL conduct of a sexual nature" |
| So far, what is the assumption favoring the regulation of hostile speech in universities and other workplaces? | That "some speech must be shut down in the name of free speech because it tends to silence those hurt/disparaged by it" even though a threat of hostile action (usually embodied in "fighting words") is not present |
| What have the courts been reluctant to do with respect to "Hostile Speech" | Courts have been reluctant to draw a precise line between the right to express hostile views and the protection of the sensitivities of minorities and women |
| Commercial Speech | Commercial Speech (e.g. newspaper or TV advertising) does NOT have FULL 1st Amendment protection because it CANNOT be considered POLITICAL SPEECH= Was initially considered to be entirely outside 1st Amendment protection (but has made gains during 20th century)= Some commercial speech is still unprotected and therefore regulated |
| What type(s) of Commercial Speech are still unprotected and thus regulated? | The regulation of false and misleading advertising by the Federal Trade Commission (FTC) is an old and well-established power of the federal government |
| Capital Broadcasting Company vs. Acting Attorney General | (1972) Court approved the constitutionality of laws prohibiting the electronic media from carrying cigarette advertising= (Is an example of a Commercial Speech that is not protected) |
| Board of Trustees, State University of NY vs. Fox | (1989) Court upheld a state-university ban on Tupperware parties in college dormitories= (Is an example of a Commercial Speech that is not protected) |
| City Council vs. Taxpayers for Vincent | (1984) Court has upheld city ordinances prohibitng the posting of all signs on public property, as long as the ban is total (so that there is no hint of censorship)= (Is an example of a Commercial Speech that is not protected) |
| Posadas de Puerto Rico Associates vs. Tourism Company of Puerto Rico | (1986) Court (in a heated decision written by Chief Justice William Rehnquist) upheld Puerto Rico's statue restricting gambling advertising aimed at residents of Puerto Rico= (Is an example of a Commercial Speech that is not protected) |
| Effort to expand the protection "Commercial Speech" enjoys under the 1st Amendment | Gains far outweigh the losses in the efforts to expand its protection= Scholar Louis Fisher says "this reflects the growing appreciation that commercial speech is part of the free flow of information necessary for informed choice and democratic participation" |
| Bigelow vs. Virginia | (1975) Court struck down a state statute making it a misdemeanor to sell/circulate newspapers encouraging abortions= Court ruled that the statute infringed on constitutionally protected speech and the right of the reader to make informed choices= (Is an example of the the success of the effort to expand the protection of Commercial Speech) |
| Virginia State Board of Pharmacy vs. Virginia Citizens Consumer Council | (1976) Court reversed its own earlier decisions upholding laws prohibiting dentists and other professionals from advertising their services= For the Court, medical-service advertising was a matter of health that could be advanced by the free flow of info.= (Is an example of the the success of the effort to expand the protection of Commercial Speech) |
| In a 1983 case, what did the Supreme Court do in terms of the protection of Commercial Speech | In a 1983 case, the Court struck down a congressional statute that prohibited the unsolicited mailing of advertisements for contraceptives |
| 44 Liquormart, Inc., and Peoples Super Liquor Stores, Inc., Petitioners vs. Rhode Island and Rhode Island Liquor Stores Association | (1996) Court struck down Rhode Island laws and regulations banning advertisement of liquor prices as a violation of the 1st Amendment= (Is an example of the the success of the effort to expand the protection of Commercial Speech) |
| Lorillard Tobacco vs. Reilly | (2001) Court ruled that a Massachusetts ban on all cigarette advertising violated the 1st Amendment right of the tobacco industry to advertise its products to all adult consumers= (Is an example of the the success of the effort to expand the protection of Commercial Speech) |
| In what way is the success of the recent effort to expand the protection of Commercial Speech important? | These instances of commercial speech are important in themselves but are even more significant because they indicate the breadth and depth of the freedom existing today to direct appeals broadly to a large public (to sell goods and services as well as to mobilize people for political purposes |
| 2nd Amendment | "A well regulated MILITIA, being necessary to the security of a free State, the right of the people to keep and BEAR ARMS, shall not be infringed"= Point and purpose of the 2nd Amendment is the provision for MILITIAS |
| Militias | (2nd Amendment) Were to be the backing of the government for the maintenance of local public order= "Militia" was understood at time of founding to be a military or police resource for state governments= Militias were specifically distinguished from armies and troops (which came within the sole constitutional jurisdiction of Congress) |
| The right of the people "to keep and bear Arms" is based on and associated with... | Participation in state militias |
| The reference to citizens' keeping arms in the 2nd Amendment underscored what fact? | That in the 1700s, state gov. could not be relied on to provide firearms to militia members, so citizens eligible to serve in militias (white males between ages of 18-45) were expected to keep their own firearms at the ready |
| Recent controversy with respect to "Militias" | Recent controversy has arisen concerning some citizens who have sought to form PRIVATE militias, unconnected with the gov.= However, Court made clear that the 2nd Amendment does NOT allow citizens to form their own militias free from gov. control= When a private militia tried to assert such a right, the Court denied it |
| Gun-Control Issue: Importance/Analysis | While much public controversy over this issue holds up the 2nd Amendment "banner", it is irrelevant to the modern Gun-Control Controversy (this point is underscored by fact that no gun-control law has ever been declared unconstitutional as a violation of the 2nd Amendment [including a local law that banned the possession of working handguns except for individuals who used handguns for their jobs, like police and security guards])= The Gun-Control Issue will be settled through the POLITICAL PROCESS, and NOT by the COURTS |
| The battle to apply the Bill of Rights to the states was fought over what? | Except for the 1st Amendment, most of the battle has been fought over the various protections granted to individuals who are...: Accused of a crime, Suspects in the commission of a crime, or Brought before the court as a witness to a crime |
| Due Process of Law | Fundamental "PROCEDURAL SAFEGUARDS...= (Taken together, Amendments... 4th + 5th + 6th + 8th... are the essence of the "Due Process of Law" (even though this fundamental concept does not appear until the last words of the 5th Amendment |
| Procedural Safeguards: Importance/Analysis | Although they may seem remote to law-abiding citizens, they help define the limits of governmental action against the personal liberty of every citizen |
| What do many Americans believe is responsible for setting many criminals free? Is this correct? | "Legal Technicalities" are responsible for setting many criminals free= This is TRUE (in fact, setting defendants free is the very purpose of the requirements that constitute Due Process) |
| What is the purpose of setting defendants free? | Setting defendants free is the very purpose of the requirements that constitute Due Process |
| What is one of America's traditional and most strongly held JURIDICAL values? | It is far worse to convict an innocent man than to let a guilty man go free |
| Civil Suits: Verdicts | Verdicts rest on "THE PREPONDERANCE OF THE EVIDENCE" |
| Criminal Cases: Verdicts | Guilt has to be proved "BEYOND A REASONABLE DOUBT" (a far higher standard) |
| Why were the provisions for Due Process added to the Bill of Rights? | In order to improve the probability that the standard of reasonable doubt will be respected |
| 4th Amendment | (Applied to the states through the 14th Amendment) People's right to be secure in their persons, houses, papers, etc., against UNREASONABLE "SEARCHES AND SEIZURES" and no WARRANTS shall be issued but upon probable cause supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized)= Purpose of 4th Amendment is to GUARANTEE the SECURITY of citizens against UNREASONABLE (i.e. "improper") SEARCHES AND SEIZURES |
| 4th Amendment: Supreme Court's 1990 summary | A search comprises the individual interest in privacy= A seizure deprives the individual of dominion over his/her person or property= (Question: how are we to define what is reasonable and what is unreasonable) |
| Mapp vs. Ohio | (1961) Illustrates beauty/agony of 1 of the most important of the procedures that have grown out of the 4th Amendment: EXCLUSIONARY RULE= Dollree (Dolly) Mapp was a Cleveland woman of questionable reputation (by some accounts), the ex-wife of 1 prominent boxer, and the fiance of an even more famous one= Acting on a tip that Dolly Mapp was housing a suspect in a bombing incident, many policemen forcibly entered Mapp's house claiming they had a warrant to look for the suspect= The police didn't find the suspect but did find some materials connected to the "Local Numbers Racket" (an illegal gambling operation) and a quantity of "obscene materials" which were in violation of an Ohio law banning possession of such materials= Although the warrant was never produced, the seized evidence was admitted by a court and Mapp was charged/convicted for illegal possession of obscene materials= When Mapp's appeal reached Court, issue of obscene materials had faded and the question before the Court was whether evidence produced under circumstances of the search of her home was admissible |
| Mapp vs. Ohio: Court's Ruling | Court's opinion affirmed the EXCLUSIONARY RULE: Under the 4th Amendment (applied to the states through the 14th Amendment), all evidence obtained by searches and seizures in violation of the Constitution is inadmissible (MEANS: Even people who are clearly guilty of committing a crime must NOT be convicted if the ONLY evidence for their conviction was obtained ILLEGALLY)= Justice Benjamin Cardozo expressed this idea when he wrote that "the criminal is to go free because the constable has blundered" |
| Exclusionary Rule | (1 of most important of the procedures that have grown out of the 4th Amendment [illustrated in "Mapp vs. Ohio"]) Prohibits evidence obtained during an illegal search from being introduced in a trial= Is the MOST SEVERE RESTRAINT ever imposed by the Constitution and the courts on the behavior of the police= Because it works so dramatically in favor of persons known to have committed a crime, the Court has since softened the application of the rule |
| Exclusionary Rule: Why is it a dramatic restriction? | Because it rules out precisely the evidence that produces a conviction= It frees those people who are KNOWN to have committed the crime of which they have been accused |
| Exclusionary Rule: In recent years, what have the federal courts relied on? Result? | A "DISCRETIONARY USE" of the exclusionary rule, whereby they make a judgment as to the "NATURE AND QUALITY OF THE INTRUSION"= IS thus hard to known in advance whether a defendant will/will not be protected from an illegal search under the 4th Amendment |
| 4th Amendment: Recent Issue involving the 4th Amendment | The controversy over mandatory drug testing (this type of testing is mainly used on public employees) |
| National Treasury Employees Union vs. Von Raab | (1989) Court upheld the US Customs Service's drug-testing program for its employees |
| Skinner vs. Railroad Labor Executives Association | (1989 [same year the Court upheld the US Custom's Services drug-testing program]) Court approved drug and alcohol tests for railroad workers if the workers were involved in a serious accident |
| After the Court approvals of the 2 "Drug-Testing" cases in 1989... | More than 40 federal agencies initiated mandatory employee drug tests= Pracitce of drug testing was reinforced by a presidential executive order widely touted as the "campaign for a drug-free federal workplace" |
| Response to the growing practices involving drug testing | Gave rise to public appeals against the general practice of 'SUSPICIONLESS TESTING" of employees= Regardless of any need to limit spread of drug abuse, doing so in this manner (i.e. by testing public employees) seemed patently unconstitutional in violation of the 4th Amendment |
| Vernonia School District vs. Acton | (1995) Court upheld a public school district's policy requiring that all students participating in interscholastic sports submit to random drug tests= Decision contributed to the efforts of federal/state/local agencies to initiate random and suspicionless drug and alcohol testing |
| What do the most recent cases over drug testing suggest? | That the Court is beginning to consider limits on the "war" against drugs |
| Chandler et al. vs. Miller, Governor of Georgia et al. | (1997) Decisive 8-1 decision, Court applied the 4th Amendment as a SHIELD against "state action that diminishes personal privacy" when the officials in question are not performing high-risk or safety-sensitive tasks= Court felt that using random/suspicionless drug testing as a symbol to fight drug use was carrying the exceptions to the 4th Amendment too far |
| Indianapolis vs. Edmund | (2000) Court found unconstitutional for police to use trained dogs in roadblocks set up to look for drugs in cars= Unlike drunk-driving roadblocks (where public safety is directly involved) narcotics roadblocks "cannot escape the 4th Amendment's requirement that searches be based on suspicion of individual wrongdoing |
| Ferguson vs. City of Charleston | (2001) Court ruled that a public hospital cannot constitutionally test maternity patients for illegal drug use without their consent |
| Kyllo vs. US | (2001) Court found that police can't use thermal-imaging devices to detect suspicious patterns of heat emerging from private homes without obtaining the usual search warrant |
| 5th Amendment | No person shall be held to answer for a capital/infamous crime unless on a presentment/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 offense 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= 1st clause of the 5th Amendment is the right to have a GRAND JURY determine whether a trial is warranted= Also protects against DOUBLE JEOPARDY= The most significant (and familiar to Americans who watch TV crime shows) liberty found in the 5th Amendment is the guarantee that no citizen "shall be compelled in any criminal case to be a witness against himself" (i.e. protects against Self-Incrimination)= Also protects people against the taking of private property without just compensation (said in the 5th's "Takings clause") |
| Grand Jury | (5th Amendment) Is the 1st clause of the 5th Amendment= Is the right to have a grand jury determine whether a trial is warranted= Is considered the oldest institution known to the Constitution= Grand Juries are important in federal criminal cases= The provision for a grand jury is the 1 important civil liberties provision of the Bill of RIghts that was NOT incorporated by the 14th Amendment to apply to state criminal prosecutions (thus some states operate without grand juries) |
| States that operate without a Grand Jury | In such states, the prosecuting attorney files a "BILL OF INFORMATION" affirming that there is sufficient evidence available to justify a trial= If the accused person is to be held in custody, the prosecutor must take the available info. before a judge to determine whether the evidence shows probable cause |
| Double Jeopardy | (5th Amendment) "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb" is the constitutional protection of DOUBLE JEOPARDY (= being tried more than once for the same crime)= The protection from double jeopardy was at heart of the "Palko" case in 1937 (which also established the principle of selective incorporation of the Bill of Rights)= Took more than 30 years for the Court to nationalize the constitutional protection against double jeopardy |
| Self-Incrimination | (5th Amendment) Most significant liberty in the 5th Amendment and the most familiar to many Americans who watch TV crime shows= 5th Amendment guarantees that no citizen "shall be compelled in any criminal case to be a witness against himself" |
| Miranda vs. Arizona | (1966) Most famous case concerning self-incrimination (so important that Chief Justice Earl Warren asserted its results as going "to the very root of our concepts of American criminal jurisprudence" [="rule/law/collection of the rules and laws and principles that lead courts to make decisions/theory of law"])= Ernesto Mirand (23 years old) was sentenced to between 20-30 years in prison for kidnapping and rape of 18 year old woman (woman had identified him in a police lineup, and after 2 hours of questioning, he confessed [subsequently signing a statement that his confession had been made voluntarily, without threats or promises of immunity])= These confessions were admitted into evidence, served as basis for Miranda's conviction, and served as basis of the appeal of his conviction all the way to the Supreme Court= DECISION: (1 of most widely criticized decisions ever handed down by the Court) Earnesto Miranda's case produced the rules the police must follow before questioning an arrested criminal suspect (i.e. reading of a person's "MIRANDA RIGHTS")= The case advanced the civil liberties of accused persons by expanding the scope of the 5th Amendment clause covering coerced confessions and self-incrimination and also by confirming the right to counsel |
| Miranda Rights | Reading of a person's "Miranda Rights" is standard in every police station and on virtually every dramatization of police action on TV and in the movies= Although the Court under Warren Burger and William Rehnquist considerably softened the Miranda restrictions (making the job of the police a little easier), the "MIRANDA RULE" still stands as a protection against engregious police abuses of arrested persons |
| Dickerson vs. US | (2000) Court reaffirmed "Miranda" |
| Takings Clause | (5th Amendment) Another fundamental clause of the 5th Amendment= Extends to each citizen a protection against the taking of private property "without just compensation"= This part of the amendment is NOT specifically concerned with protecting persons accused of crimes= Is an important instance where the government and the citizen are ADVERSARIES |
| Eminent Domain | The right/power of any government to take private property for PUBLIC USE (with reasonable compensation awarded for the property)= This power is essential to the verty concept of sovereignty |
| 5th Amendment: Eminent Domain | The 5th Amendment neither invented eminent domain nor took it away= Purpose of the 5th was to put limits on that inherent power through procedures that require a demonstration of a public purpose and the provision of fair payment for the seizure of someone's property (this provision is now universally observed in all American principalities but it has not always been carefully/precisely/strictly followed/observed) |
| Berman vs. Parker | (1954) 1st modern case confronting the issue of public use= Involved a mom-and-pop gorcery store in a rundown neighborhood on the southwest side of the District of Columbia= The city gov. of Washington, D.C. (in carrying out a vast urban-redevelopment program in the 1950s) took the property as 1 of a large # of privately owned lots to be cleared for new housing and business construction= Owner of the grocery store and his successors after his death took the gov. to court on grounds that taking property from 1 private owner and eventually turning that property back (in an altered form) to another private owner was an unconstitutional use of the Eminent Domain= The store owners lost their case |
| Berman vs. Parker: Court's Argument | The "public interest" can mean virtually anything a legislature says it means= Simply put, since the overall slum clearance and redevelopment project was in the public interest (according to the legislature), the eventual transfers of property that were going to take place were justified |
| In which 2 cases (in 1984 and again in 2005) did the Court reaffirm its past decision in "Berman vs. Parker"? | "Hawaii Housing Authority vs. Midkiff" (1984); and "Kelo vs. City of New London" (2005) |
| 6th Amendment | In all criminal prosecutions, the accused shall enjoy the right to a SPEEDY AND PUBLIC TRIAL, by an IMPARTIAL JURY of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained/determined by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him (i.e. the defense must have an opportunity to confront/meet and cross examine witnesses); to have compulsory process for obtaining witnesses in his favor (i.e. right of the accused to have the court use its power to call upon witnesses in his/her favor), and to have the ASSISTANCE OF COUNSEL for his defense |
| "Right to Counsel" | (6th Amendment) Is a provision in the 6th Amendment that (like the "exclusionary rule" of the 4th Amendment and the "self-incrimination" clause of the 5th Amendment) is notable for freeing defendants who seem to the public to be patently guilty as charged= It extends beyond serious crimes to any trial (with or without a jury) that holds the possibility of imprisonment |
| Gideon vs. Wainwright | Involved a disreputable (i.e. "lacking respectability in nature, etc.") person who seemed patently guilty of the crime for which he was convicted= Clarence Earl Gideon (who was in and out of jails for majority of his 51 year life) received a 5-year sentence for breaking into and entering a poolroom in Panama City, Florida= While serving time in jail, Gideon became a fairly well qualified "jailhouse lawyer," made his own appeal on a handwritten petition, and eventually won the landmark ruling on the RIGHT TO COUNSEL IN ALL FELONY CASES |
| Right To Counsel: Court decisions in past few decades | The right to counsel has been expanded rather than restricted during past few decades when the courts have become more conservative |
| Expansion of the "Right to Counsel" | Although the "right to counsel" was initially met by judges assigning lawyers from the community as a formal public obligation, most states and cities have now created an office of public defender whose state-employed professional defense lawyers typically provide poor defendants with much better legal representation= And although these defendants cannot choose their private defense attorney, they do have the right to appeal a conviction on the grounds that the counsel provided by the state was deficient |
| Wiggins vs. Smith | (2003) Court overturned the death sentence of a Maryland death-row inmate holding that the defense lawyer failed to fully inform the jury of the defendants history of "horrendous childhood abuse"= (Example of the expansion of the "Right to Counsel" and the defendants right to appeal a conviction on grounds that the provided counsel was deficient) |
| 8th Amendment | Prohibits "EXCESSIVE BAIL," "EXCESSIVE FINES," and "CRUEL AND UNUSUAL PUNISHMENT" |
| 8th Amendment: Debate over 8th Amendment issues | Virtually all of this debate focuses on the last clause of the amendment: protection from "cruel and unusual punishment"= One of biggest challenges in interpreting this provision is that what is considered "cruel and unusual" varies from culture to culture and from generation to generation (and, sadly, it also varies by class and race) |
| What is the biggest issue in the inconsistency of class and race as constituting "cruel and unusual punishment" | Arises over the death penalty |
| Furman vs. Georgia | (1972) Court overturned several state death-penalty laws not because they were cruel and unusual but because they were being applied in a capricious (i.e. "random/careless/etc.") manner (that is, blacks were much more likely than whites to be sentenced to death, the poor more likely than the rich, and men more likely than women) |
| Gregg vs. Georgia | (1976) Following the Court's decision in "Furman vs. Georgia," many/majority of states revised their capital-punishment provisions to meet the Court's standards= Since 1976 (i.e. since this case), the Court has consistently upheld state laws providing for capital punishment (although it still reviews many death-penalty appeals each year) |
| Capital Punishment since 1976 | Between 1976-2000, states executed 683 people (most of executions occurred in southern states [with Texas leading at 239])= As of 2002, 38 states had adopted some form of capital punishment (was approved by 3/4 of all Americans) |
| Regulation of criminal conduct | Virtually all criminal conduct is regulated by the states= However, Congress has also jumped on the bandwagon by imposing capital punishment for more than 50 federal crimes |
| Describe the debate over the death penalty in recent years. Examples? | Despite seeming popularity of the death penalty, the debate has become more intense |
| "Deterrent Effects" of the Death-Penalty | Death-Penalty supporters praise the death-penalty's "DETERRENT EFFECTS" on other would-be criminals= Although studies of capital crimes usually fail to demonstrate any direct deterrent effect, the punishment's failure to act as a deterrent may be due to the lengthy delays (typically years and even decades) between convictions (a system that eliminates undue delays would surely enhance deterrence)= Supporters argue that deterring simply 1 murder/crime is more than ample justification for such laws |
| Besides the "Deterrent Effect" argument, what is the death penalty seen as? | A proper expression of RETRIBUTION, echoed in the biblical phrase "an eye for an eye"= People who commit vicious crimes deserve to forfeit their lives in exchange for the suffering they have inflicted |
| Constitutional objections to the Death Penalty often invoke/use/cite/involve... | 8th Amendment's protection against punishments that are "cruel and unusual" |
| How do supporters of the Death Penalty respond to the constitutional objections to the death penalty? | Say that the death penalty can hardly be considered violation of 8th Amendments protection against punishments that are "cruel and unusual" since it was commonly used in the 18th century and was supported by most early-American leaders= Also say that while the poor, men, blacks, and Latinos are more likely than others to find themselves sitting on death row, this fact reflects the reality that these categories of individuals are more likely to commit crimes |
| Death-Penalty Opponents: Argument | Point out that the death penalty has not been proved to deter crime (either in US or abroad [in fact, America is the only Western nation that still executes criminals])= Fact that American states execute criminals debases (rather than elevates) society by praising/extolling/honoring vengeance= As for the Constitution, foes say that although most of the founders surely supported the death penalty, they also allowed/permitted slavery and lived at a time when society was both less informed about and more indifferent to the human condition= Also say that execution is EXPENSIVE (more expensive than life imprisonment)= Also say that although most Americans do support the death penalty, people also support life without the possibility of parole as an alternative= Also, according to opponents, life sentence may be worse punishment than the death penalty |
| Opponents of the Death-Penalty say that if government is to serve as an example of proper behavior... | It has NO business in allowing/approving/sanctioning killing when incarceration (i.e. imprisonment) will similarly protect society |
| Opponents of the Death-Penalty say that modern Americans' greater civility should be reflected in... | How the society define individual rights |
| Describe the cost of execution (according to death-penalty foes) | Execution (according to death-penalty foes) is expensive (more expensive than life imprisonment) because the gov. must make every effort to ensure that it is not executing an innocent person= Curtailing legal appeals would make the possibility of a mistake too great |
| Opponents of the Death-Penalty: Race | People of color (who are more likely to face economic deprivation) are disproportionately more likely to be sentenced to death while whites charged with identical crimes are less likely to be given the ultimate punishment= Such disparity of treatment violates the principle of equal protection |
| Right to Privacy | The right to be left alone (which has been interpreted by the Court to entail free access to birth control and abortions)= This "RIGHT TO BE LEFT ALONE" is not found/mentioned anywhere in the Constitution or Bill of Rights= Court recognized "privacy in one's association" |
| Griswold vs. Connecticut | (1965) The sphere of privacy was seriously/earnestly drawn, when Court ruled that a Connecticut statute forbidding use of contraceptives violated right of MARITAL PRIVACY= Estelle Griswold (executive director of the "Planned Parenthood League of Connecticut") was arrested by state of Connecticut for providing info., instruction, and medical advice about contraception to married couples (she and her associates were found guilty as accessories to the crime and fine $100 each)= Court reversed lower court's decisions and declared the Connecticut law unconstitutional because it violated "a right of privacy older than the Bill of Rights, our political parties, and our school system= Justice William O. Douglas (in writing for the majority) said that this "right of privacy" is also grounded in the Constitution= A concurring opinion (written by Justice Arthur Goldberg) attempted to strengthen Douglas's argument by adding that "the concept of liberty embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution and is supported by many Court decisions and BY THE LANGUAGE AND HISTORY OF THE 9TH AMENDMENT |
| How is the "Right to Privacy" grounded in the Constitution | Is grounded in the Constitution because it fits into the "ZONE OF PRIVACY" (finding was made in Court's opinion in "Griswold vs. Connecticut") |
| Zones of Privacy | Is created by a combo. of: 3rd Amendment, 4th Amendment, 5th Amendment= Is how the right of privacy is grounded in the Constitution (since it fits into this "Zone of Privacy") |
| Roe vs. Wade | (1973) The Court's decision (which was the most important of all privacy decisions and was 1 of most important Supreme Court decisions in US history) confirmed and extended the right to privacy= This decision established a woman's right to seek an abortion and prohibited states from making abortion a criminal act= The BURGER COURT's decision in this case took a revolutionary step toward establishing the right to privacy |
| Describe the preference for privacy rights and for their extension to include "X" | The preference for privacy rights and for their extension to include the rights of women to control their own bodies (established in "Roe vs. Wade") was not something invented at random/in a vacuum by the Court= Most states did NOT regulate abortions in any way until the 1840s (when only 6 of the 26 states had any regulations governing abortion at all)= Also, many states began easing their abortion restrictions way before the 1973 "Roe vs. Wade" decision (although, recently, many states have reinstated some restrictions on the procedure) |
| Roe vs. Wade: Ruling's effect | By extending the umbrella of privacy, the ruling changed abortion practices in US and it stimulated and nationalized the abortion debate (groups opposed to abortion [EX: National Right to Life Committee] organized to fight the new liberal standard while abortion rights groups sought to maintain the protection)= In recent years, the legal standard shifted against abortion rights supports in 2 Cases ("Webster" and "Planned Parenthood") |
| Webster vs. Reproductive Health Services | (1989) Court upheld constitutionality of restriction on the use of public medical facilities for abortion (ruling opened the way for other states to limit the availability of abortion) |
| Planned Parenthood vs. Casey | (1992) Court upheld "Roe" decision but narrowed its scope (by refusing to invalidate a Pennsylvania law that significantly limits freedom of choice)= Court's decision defined the right to an abortion as a "LIMITED or QUALIFIED" right subject to regulation by the states as long as the regulation does not constitute an "undue burden" |
| Stenberg vs. Carhart | (2000) Court struck down Nebraska's ban on partial-birth abortions because the law had the "effect of placing a substantial obstacle in the path of a woman seeking an abortion" |
| Bowers vs. Hardwick | (1986) Michael Hardwick was arrested one morning in Atlanta, Georgia by a police officer who discovered him in bed with another man (the officer had come to serve a warrant for Hardwick's arrest for failure to appear in court to answer charges of drinking in public= 1 of Hardwick's unknowing housemates invited the officer to look in Hardwick's room where he found Hardwick and another man engaging in "consensual sexual behavior")= Hardwick was then arrested under Georgia's laws against heterosexual and homosexual SODOMY= Hardwick filed suit against the state (challenging constitutionality of the Georgia law) and won his case in the federal court of appeals= State of Georgia (in unusual move) appealed the court's decision to the Supreme Court |
| Bowers vs. Hardwick: Court's Ruling | Court reversed lower-court decision saying that "the federal Constitution confers NO fundamental right upon homosexuals to engage in sodomy" and there was thus no basis to invalidate "the laws of the many states that still make such conduct illegal and have done so for a very long time"= Court concluded its opinion with a warning that it ought not and would not use its power to "discover new fundamental rights embedded in the Due Process Clause= MEANING: The Court (under Chief Justice Rehnquist) was expressing its decision to severely restrict the expansion of the 9th Amendment and the development of new substantive rights= (The 4 justices who disagreed argued that the case was not about a fundamental right to engage in homo. sodomy but was about "the most comprehensive of rights and the right most value by civilized men: the RIGHT TO BE LET ALONE") |
| Lawrence and Garner vs. Texas | (2003) Court overturned "Bowers vs. Hardwick" by saying that gays are "entitled to respect for their private lives" as a matter of constitutional Due Process= As a result of the Court's decision, state legislatures no longer had the authority to make private sexual behavior a crime |
| Lawrence and Garner vs. Texas: Court's Ruling | (Decision added substance to the 9th Amendment "RIGHT OF PRIVACY) Drawing from the tradition of NEGATIVE LIBERTY, Court said that in our tradition, the State is NOT omnipresent (i.e. present everywhere/anywhere at any/all times) in the home, and there are other spheres of our lives/existence outside the home where the State should not be a dominant presence= Said that the UMBRELLA OF PRIVACY clearly/explicitly encompasses lesbians and gay men (and thus the petitioners are entitled to respect for their private lives)= State cannot demean their existence or control their destiny by making their private sexual conduct a crime |
| Right to Die | Area ripe for litigation/public discourse/debate= In 1990s, many highly publicized physician-assisted suicides focused attention on whether people have the right to choose their own death and receive assistance in carrying it out |
| Washington vs. Glucksberg | (1997) Court ruled that a Washington State law (that established a ban on "causing" or "aiding" a suicide) did NOT violate the 14th Amendment or any clauses of the Bill of Rights incorporated into the 14th Amendment (ruling provided a tentative/temporary answer to question of whether people have a right to choose their own death and receive assistance in carrying it out as well as the question of whether this "right" can become part of the "Privacy Right" or if this "right" is a new "Substantive Right")= MEANING: If a state can constitutionally adopt such a prohibition, there is no constitutional right to suicide or assisted suicide= However, Court left open the narrower question of "whether a mentally competent person who is experiencing great suffering has a constitutionally known/cognizable interest in controlling the circumstances of his/her imminent death" |
| Washington vs. Glucksberg: Analysis of Court's ruling | Court concluded its ruling/opinion by saying that "Americans are engaged in a serious and profound debate about the morality/legality/practicality of physician-assisted suicide"= Court then said that their holding permits this debate to continue, as it should in a democratic society= FACT: Never before has the Court more openly invited further litigation on a point |
| The War on Terrorism | In addition to Congressing passing the "Patriot Act", the president issued a series of orders allowing the National Security Agency to eavesdrop on domestic communications and the military to detain and try terrorism suspects |
| Patriot Act | Legislation enacted by Congress in response to the 9-11-2001 terrorist attacks on the US= Meant to make it easier for federal law enforcement agencies to investigate and prosecute suspected terrorists |
| Describe Civil Libertarians' reactions to the Patriot Act and the series of orders issued by President's as part of the War on Terrorism | Civil Libertarians feel that the gov.'s new surveillance and eavesdropping authority poses a threat to free speech and privacy= Critics have also declared that the open-ended military detention of terrorism suspects (along with the special military tribunals and procedures established by the president to try such suspects) violates many of the fundamental constitutional protections provided to those accused of criminal actions |
| In June 2004, what 3 cases (involving the president's antiterrorism initiatives and claims of executive power) did the Court rule in | "Hamdi vs. Rumsfeld" (2004); "Rasul vs. Bush" (2004); "Rumsfeld vs. Padilla" (2004)= In 2 of these cases, the Court appeared to place some limit on presidential authority= Justices were clearly influenced by revelations that US troops abused prisoners in Iraq= In these cases, the justices sought to make a statement against the absolute denial of procedural rights to individuals in the custody of US military authorities |
| Describe the Court's decisions in the 3 cases of June 2004 | Court ruled that presidential actions were subject to judicial scrutiny and placed some constraints on the president's unchecked/unrestricted power= However, Court confirmed/affirmed/recognized the president's single most important claim: "The unilateral power to declare individuals (including US citizens) "ENEMY COMBATANTS" who can be detained by federal authorities under adverse legal circumstances= ANALYSIS: Future presidents are likely to cite the Court's decisions as precedents for (rather than limits on) the exercise of executive power |
| Hamdan vs. Rumsfeld | (2006) Court's decision is most likely to be cited by future presidents as a precedent for (rather than limit on) the exercise of executive power= Salim Ahmed Hamdan (a Taliban fighter captured in Afghanistan in 2001 and held at Guantanamo since 2002) was scheduled for a special military tribunal/court= Such tribunals (operating outside both the civilian and the military court systems) were created by the Bush admin. to deal with suspected terrorists after 9-11 attacks and US invasion of Afghanistan= Hamdan challenged the propriety of the tribunals= DECISION: Court held that tribunals must either be authorized by statute or follow rules and procedures consistent with the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions= Court found that Bush's tribunals were not authorized by statute and were operating under procedures that provided defendants with fewer rights and safeguards than they would receive under the UCMJ= Thus, tribunals were declared invalid |
| Hamdan vs. Rumsfeld: What principle did the court acccept? Result | (While invalidating Bush's type of tribunals...) The Court accepted the principle that the president could order persons he deemed unlawful combatants to be tried by military tribunals so long as the tribunals were lawfully constituted= RESULT: Accordingly, president Bush asked Congress to authorize the creation of special tribunals that would operate under the same rules and procedures as those declared unconstitutional by the Court (Congress accepted) |
| Hamdan vs. Rumsfeld: How will George W. Bush and future presidents look at this case? | They will point to the "Hamdan" decision as validating the power of the president to order those they deem dangerous to be tried outside the normal legal framework |
| Civil Rights | Became part of the Constitution with the adoption of the 14th Amendment in 1868= Is guaranteed to all citizens through "EQUAL PROTECTION OF THE LAWS" (i.e. Equal Protection Clause [part of the 14th Amendment]) |
| Result of the 14th Amendment's "Equal Protection Clause" | Equal Protection Clause (which guaranteed Civil Rights to each citizen through "equal protection of the laws") caused century of political movements/legal efforts to press for racial equality |
| Result of African Americans' quest for civil rights | Inspired many other groups (e.g. members of other racial/ethnic groups, women, people with disabilities, gay men and lesbians) to seek new laws/constitutional guarantees of their civil rights |
| What seemed to provide a guarantee of civil rights for the newly freed enslaved blacks? | 14th Amendment (passed by Congress/ratified by the states in aftermath of the Civil War), together with the 13th Amendment (abolished slavery) and the 15th Amendment (guaranteed voting rights to black men) |
| What did the general language of the 14th Amendment mean? | Meant that its support for civil rights could be far reaching= The simplicity of the EQUAL PROTECTION CLAUSE (of the 14th Amendment) left it open to interpretation |
| Equal Protection Clause | (14th Amendment) "No State shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws"= Is the provision of the 14th Amendment guaranteeing citizens "THE EQUAL PROTECTION OF THE LAWS"= This clause has served as the basis for the civil rights of Blacks, women, other groups |
| Supreme Court and Civil Rights aspects of the 14th Amendment | Was no more ready to enforce the civil rights aspects of the 14th Amendment than it was to enforce the civil liberties provisions |
| Civil Rights Act of 1875 | Court declared unconstitutional= Said it sought to protect black from discrimination by PRIVATE businesses, while the 14th Amendment (according to the Court's interpretation) was meant to protect individuals from discrimination ONLY in the case of actions by PUBLIC officials of state and local gov.= (Example of Court's hesitancy to enforce the civil rights aspects of the 14th Amendment) |
| Plessy vs. Ferguson | (1896) Court upheld Louisiana statute that required segregation of the races on trolleys and other public carriers (and, by implication, in all public facilities, including schools)= Homer Plessy (a man defined as "1/8 black") violated a Louisiana law that provided for "equal but separate accommodations" on trains and a $25 fine for any white passenger who sat in a car reserved for blacks or any black passenger who sat in a car reserved for whites= Court ruled that the 14th Amendment's "equal protection of the laws" was not violated by racial distinction as long as the facilities were equal (people generally pretended they were equal as long as some accommodation existed)= In its ruling, Court basically was saying that the use of race as a criterion of exclusion in public matters was not unreasonable (this was the origin of the "SEPARATE BUT EQUAL" rule (wasn't reversed until 1954 |
| "Separate But Equal" Rule | Doctrine that public accommodations could be segregated by race but still be equal= Established in "Plessy vs. Ferguson")= Reversed in 1954 |
| When did the Supreme Court begin to change its position on racial discrimination? How? | Before WWII= By strictly defining the criterion of equal facilities in the "separate but equal" rule= After WWII, modest progress resumed |
| Missouri ex re. Gaines vs. Canada | (1938) Court rejected Missouri's policy of paying qualified black's tuition to out-of-school law schools rather than admitting them to the University of Missouri Law School |
| Sweatt vs. Painter | (1950) Court rejected Texas's claim that its new "law school for Negroes" gave education equal to that of the all-white University of Texas Law School= Court's decision anticipated "Brown vs. Board of Education" by opening the question of whether any segregated facility could be truly equal |
| Smith vs. Allwright | (1944) Court struck down the southern practice of "white primaries" (which legally excluded blacks from participation in process of nominating candidates= Court said that primaries could no longer be considered as the private affairs of the parties, but were an integral/important part of the electoral process= RESULT: This ruling made parties an agency of the State, and thus any practice of discrimination against black was "state action within the meaning of the 15th Amendment" (i.e. not allowed under the 15th Amendment) |
| Shelly vs. Kraemer | (1948) Most important pre-1954 decision= Court ruled against the widespread practice of "restrictive covenants" whereby the seller of a home added a clause to the sales contract requiring the buyers to agree not to sell their home to any nonwhite, non-Christian, etc.= Court ruled that although private persons could sign such restrictive covenants, they could not be judicially enforced= REASONING: 14th Amendment prohibits any organ of the state (including the courts) from denying equal protection of its law |
| Analysis of the pre-1954 cases dealing with Racial Discrimination | None directly confronted principle of "separate but equal" and its legal/constitutional support for racial discrimination |
| Legal Defense Fund of the NAACP: Victories | Each victory was celebrated for itself and seen (it was hoped) as a TREND= Still, each victory was a small victory, not a leading case |
| What convinced the NAACP that the Supreme Court was not ready for a full confrontation with the constitutional principle sustaining segregation? | Massive effort by southern states to resist direct desegregation and prevent further legal actions against it by making a show of equalizing the quality of white and black schools |
| What did the NAACP believe was their only hope to fully confront the constitutional principle that sustained segregation? What convinced them? | Congress's continued unwillingness after 1948 to consider fair employment legislation convinced the NAACP that the COURTS were their only hope |
| By 1951, what did the NAACP decide to attack? Describe | Decided to attack principle of segregation itself as unconstitutional (an in 1952, instituted cases in South Carolina/Virginia/Kansas/Delaware/D.C.)= Strategy was to file suits simultaneously in diff. federal districts so that inconsistent results between any 2 states would more quickly lead to Supreme Court acceptance of at least 1 appeal= Of these suits, the Kansas case became the chosen one (seemed to be ahead of the pack in its district court and had the spacial advantage of being located in a state outside the Deep South) |
| Brown vs. Board of Education | (1954) Oliver Brown (father of 3 girls) lived in a low-income/racially mixed Topeka neighborhood= Every school-day morning, Linda Brown took a school bus to Monroe School for black children (about 1 mile away)= September 1950, Oliver Brown took Linda to the all-white Summer School (was closer to home) to enter her in 3rd grade (in defiance of state law and local segregation rules)= Were refused= Brown then took his case to NAACP which led to this Supreme Court case= Mid-1953, Court said that the several cases on their way up would be re-argued within context of a set of questions dealing with intent of the 14th Amendment= 1 year later, Court responded to those questions in one of most important decisions ever |
| Brown vs. Board of Education: Court's Ruling | Court (to surprise of many) basically rejected as inclusive all the learned arguments about the intent and the history of the 14th Amendment and committed itself to considering only the consequences of segregation: Court said that it believes that segregation of children in public schools solely on basis of race (even though the physical facilities and other "tangible" factors may be equal) deprives the children of the minority group of equal educational opportunities= Court concluded that in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal |
| Brown vs. Board of Education: The effect of the Court's decision | Altered the constitutional framework in 2 fundamental ways= FIRST: After "Brown," states would no longer have power to use race as a criterion of discrimination in law= SECOND: National gov. would hence forth have the constitutional basis for extending its power (thus far in doubt) to intervene with strict regulatory policies against the discriminatory actions of state or local governments, school boards, employers, and many others in the PRIVATE sector |
| Although "Brown vs. Board of Education" withdrew all constitutional authority to..."X"...this historic decision was..."Y" | Withdrew all constitutional authority to use RACE as a criterion of exclusion= However, this historic decision was merely a small opening move |
| Brown vs. Board of Education: In what way was this case merely a small opening move? | FIRST: most states refused to cooperate until sued and many brilliant schemes were employed to delay obedience (EX: paying tuition of white students to attend newly created "private" academies)= SECOND: Even as southern school boards began to cooperate by eliminating their DE JURE (="legally enforced") segregation, extensive DE FACTO ("in fact/in reality/actual") school segregation in the North and South remained as a result of racially segregated housing (which could not be affected by 1954 "Brown principles)= THIRD: Discrimination in employment, public accommodations, juries, voting, and other areas of SOCIAL and ECONOMIC activity was not directly touched by "Brown" |
| Brown vs. Board of Education: Describe the decade following the Court's decision. What did this mean? | Decade of frustration following "Brown" made it clear that adjudication (i.e. legal process that resolves disputes) alone wouldn't succeed= The goal of equal protection required POSITIVE (or AFFIRMATIVE) action by Congress and administrative agencies= Given massive southern resistance and generally negative national public opinion toward racial integration, progress would not be made through the courts, Congress, or agencies without intense, well-organized support (RESULT: # of peaceful civil rights demonstrations for voting rights and public accommodations increased greatly during 14 years following "Brown") |
| Brown vs. Board of Education: What began to SLOWLY increase after this case? | Organized civil rights demonstrations slowly began to increase= By 1960s, the many organizations that made up the civil rights movement had accumulated experience and built networks capable of launching massive direct-action campaigns against southern segregationists |
| By 1960s, the many organizations that made up the civil rights movement had built what? | The "Southern Christian Leadership Conference", the "Student Nonviolent Coordinating Committee," and many other organizations had built a movement that stretched across the South= This movement used the media to attract nationwide attention and support |
| March on Washington | (1963) Massive march in which Reverend Martin Luther King Jr. laid out the 1960s civil rights movement (that spread across the South) moral claims in his "I Have a Dream" speech |
| In 1960, what was the effect of the images of protester being beaten, attacked by police dogs, and set upon with fire hoses? | (Example of the 1960s civil rights movement [that spread across the South] which used the media to attract nationwide attention and support) Did much to win broad sympathy for the cause of black civil rights and discredit state and local governments in the South= In this way, the movement created intense pressure for a reluctant federal gov. to take more assertive steps to defend black civil rights |
| "De Jure" Segregation | Racial segregation that is a direct result of law or official policy |
| "De Facto" Segregation | Racial segregation that is not a direct result of law or gov. policy but is rather a reflection of residential patterns, income distributions, or other SOCIAL factors |
| Civil Rights Protest: Risks and Benefits | 1 of the "5 Principles of Politics" is that individuals have little incentive to participate in mass-action politics (for, how much difference could 1 person make by taking part in a civil rights protest?)= Participation was costly in terms of time and, in case of civil rights marchers, one's health/life was endangered= Thus, risks OUTWEIGHED the potential benefits, yet many still participated (WHY?!?!?) |
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