Overriding questions to consider

1
Overriding questions to consider

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

2
A Commitment to Freedom

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

3
Civil Rights vs. Liberties

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

4
Individual Rights

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

5
The History of Selective Incorporation

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

6

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

7
Gitlow v. N.Y. (1925)

• Gitlow writes left wing manifesto to overthrow
  capitalism
• Court incorporated freedoms of speech and press
  but not the whole 1st Amendment
• Gitlow looses because he crosses the line but
  speech and press are now incorporated

8
Palko v. Connecticut (1937)

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

9
Freedom of Expression1st and 14th Amendments
Two guarantees of religious freedom

• Establishment Clause
• Guards against establishing a mandated religion.
• In effect, freedom from religion

• Free Exercise Clause
• Guards against the government interfering in the
  exercise of any religion.
• In effect, freedom for religion.

10
Equal Protection Clause
The 14th Amendments Equal Protection Clause
declares that citizens are protected equally
under the law.

• Reasonable Classification
• The government may reasonably classify, or draw
  distinctions, between groups of individuals.
  Government may not discriminate unreasonably,
  however.
• The Supreme Court often uses two measures to
  determine the constitutionality of an action
• The Rational Basis Test
• The rational basis test asks Does the
  classification in question bear a reasonable
  relationship to the achievement of some proper
  governmental purpose?
• The Strict Scrutiny Test
• Sometimes more imposing standards are used,
  especially when a case deals with fundamental
  rights or suspect classifications.

11
The Meaning of Due Process
12
The 5th and 14th Amendments

• The 5th Amendment provides that no person
  shall be deprived of life, liberty, or property
  without due process of law.
• The 14th Amendment extends that restriction to
  State and local governments.

• Due process means that the government must act
  fairly and in accord with established rules at
  all times.
• Due process is broken down into two branches
• Substantive due processthe fairness of the laws
  themselves
• Procedural due processthe fairness of the
  procedures used to enforce the laws

13
The Free Exchange of Ideas

• Freedom of Speech and Press do not protect
• Libel, the false and malicious use of written
  words
• Slander, the false and malicious use spoken words
• Obscenity
• Words that incite others to commit crimes

14
Seditious Speech
Sedition is the crime of attempting to overthrow
the government by force, or to disrupt its lawful
activities by violent acts. Seditious speech is
speech that urges such conduct.

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

15
Prior Restraint

• In most cases, the government cannot curb ideas
  before they are expressed. It can punish ideas
  after they are expressed.

• The Supreme Court has held in several cases that
  the guarantee of a free press does not allow the
  government to exercise prior restraint on
  publication except in grave circumstances. In
  Near v. Minnesota (1931), the Court protected the
  rights of even miscreant purveyors of scandal.
• In New York Times v. United States, 1971, the
  government sought a court order to keep
  newspapers from printing the Pentagon Papers
  which had been stolen and leaked to the press.
  The Supreme Court found that the government
  couldnt show that the papers endangered national
  security enough to justify prior restraint of
  publication.

16

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

17
1st Amendment Cases

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

18
Tinker v. Des Moines (1969)

• Freedom of Speech and Expression
• Students wore armbands to protest the Vietnam War
• Court ruled that students were allowed to wear
  the armbands because it did not disrupt the class
  work or rights of others

19
Buckley v. Valeo (1976)

• Congress was trying to limit spending on primary
  funds
• Placed limits on individual campaign expenditure
• Court basically stated that too many limits on
  campaign expenditure violates free speech

20
Bethel v. Fraser (1986)

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

21
Reno v. ACLU (1997)

• Tested the Communications Indecency Act that made
  it a crime to distribute indecent material over
  the internet
• Court ruled that this act was not enforceable
  with the current technology

22
Morse v. Frederick Free Speech (5-4)(2006)

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

23
Obscenity not protected by the First Amendment

• Roth v. U.S.(1957)
• Obsceneoffending the average person, applying
  contemporary community standards
• Miller v. California (1973)
• Developed the Miller Rule
• the average person would, applying contemporary
  community standards, find that work appealed to
  the prurient interest
• the work depicts in an offensive way sexual
  conduct defined by State Law
• the work taken as a whole lacks serious literary,
  artistic, political or scientific value

24
Separation of Church and State
A wall of separation?

• Church and government are constitutionally
  separated from one another.

However, the government supports churches and
religion in a variety of ways, including tax
exemption.
25
Religion and Education

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

26
The Lemon Test
The Lemon Test is based on Lemon v. Kurtzman,
1971.

• Supreme Court picks cases involving state aid to
  private schools using this standard or three
  prong test.
• The purpose of the aid must be nonreligious.
• The aid can neither advance nor inhibit religion.
• Aid must not excessively entangle the government
  with religion.

27

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

28
On last years AP TEST! ?

• Reynolds v. U.S. (1878) Polygamy ruled illegal
• Oregon v. Smith (1990)-outlawed use of peyote as
  a religious practice because the substance was
  illegal in the U.S.

29
Other Establishment Clause Cases

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

30
The Free Exercise Clause

• Limits
• Actions that violate social duties or disrupt
  social order are not covered under the Free
  Exercise Clause.
• Examples
• Bigamy
• Using poisonous snakes during religious
  ceremonies
• Schoolchildren who have not been vaccinated

• Free Exercise Upheld
• The Court has found many government actions to be
  counter to the Free Exercise Clause.
• Examples
• Amish children cannot be forced to go to school
  after grade 8
• Ministers are allowed to hold elective office
• Unemployment benefits cannot be denied to someone
  who quit their job because of religious beliefs

31
Private Property

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

32
Freedom of Association

• The guarantees of freedom of assembly and
  petition include a right of associationthe right
  to associate with others to promote causes.

33
The 9th Amendment

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

34
The Right to Privacy

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

35

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

36
Slavery and Involuntary Servitude

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

37
The 13th Amendment in Action

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

38
The Right to Keep and Bear Arms

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

39
Security of Home and Person
The 3rd and 4th Amendments protect the security
of home and person.

• The 4th Amendment protects against writs of
  assistance (blanket search warrants) and
  unreasonable searches and seizures. It is
  extended to the States through the 14th
  Amendment.

40
Aspects of the 4th Amendment
Good Faith Exception an error in gathering
evidence so minor that it may be used in a
trial Overriding public safety can justify
questioning without mirandizing
41

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

42
The 5th Amendment

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

43
Types of Police Searches

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

44
Article I, Sections 9 10

• Writ of Habeas CorpusA court order which
  prevents unjust arrests and imprisonment
• Bills of Attainderlaws passed by Congress that
  inflict punishment without a court trial
• Ex Post Facto Lawsnew laws cannot apply to
  things that happened in the past

45
Grand Jury

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

46
Speedy and Public Trial
The right to a speedy and public trial was
extended as part of the 14th Amendments Due
Process Clause by Klopfer v. North Carolina, 1967.
The Speedy Trial Act of 1974 requires that the
beginning of a persons federal criminal trial
must take place no more than 100 days after the
arrest.
A judge can limit who can watch a trial if the
defendants rights are in jeopardy.
47
Trial by Jury

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

48
Right to an Adequate Defense
Some rights of the accused As provided by the
6th Amendment
49
Self-Incrimination

• The Fifth Amendment declares that no person can
  be compelled in any criminal case to be a
  witness against himself.
• A person cannot be forced to confess to a crime
  under extreme circumstances.
• A husband or wife cannot be forced to testify
  against their spouse, although they can testify
  voluntarily.

In Miranda v. Arizona, 1966, the Supreme Court
set an historic precedent when it would no longer
uphold convictions in cases in which the
defendant had not been informed of his or her
rights before questioning. This requirement is
known as the Miranda Rule.
50
Bail and Preventative Detention

• Bail is a sum of money that the accused may be
  required to deposit with the court as a guarantee
  that he or she will appear in court.
• The Constitution does not guarantee that all
  accused persons are entitled to bail, just that
  the amount of the bail cannot be excessive. (8th
  Amendment)

• Preventive detention is a law that allows federal
  judges to order that accused felons be held
  without bail if there is a danger that the person
  will commit another crime if released.

51
Cruel and Unusual Punishment

• The 8th Amendment also forbids cruel and unusual
  punishment. The Supreme Court extended the
  provision to the States in Robinson v.
  California, 1962.
• The 8th Amendment is intended to prevent, in the
  Courts opinion, barbaric tortures such as
  drawing and quartering and other excessively
  cruel punishments.

52
More 8th Amendment Cases

• Gregg v. Georgia (1976)
• Death penalty is not cruel and unusual punishment
• Roper v. Simmons (2005)
• Execution of people under the age of 18 is cruel
  and unusual

53
Segregation in America

• Segregation means the separation of one group
  from another.
• Jim Crow laws, passed in the late 1800s by
  several States, aimed at separating minorities
  from the white population. (Dejure Segregation)
• The separate-but-equal doctrine, upheld by Plessy
  v. Ferguson, 1896, provided that separate
  facilities for African Americans were legal as
  long as they were equal to those provided for
  whites.

54

• In 1954, the Supreme Court struck down
  separate-but-equal in Brown v. Board of Education
  of Topeka.
• Desegregation and integration programs progressed
  through the 1950s and 1960s.
• De facto segregation, segregation in fact even if
  no law requires it, has emerged in housing and
  schooling patterns in some areas of the country.

55

• Dred Scott v. Sanford (1857)
• Scott could not be free just because he traveled
  on free soil
• Slaves were not citizens
• Regents of University of California v. Bakke
  (1970)
• White male was admitted after challenging
  affirmative action at U of C.
• Admitted but did not overturn A.A.
• Gratz v. Bollinger (2003)- point system was
  unconstitutional, but affirmative action not
  outlawed

56
Gerrymandering and Equal Protection

• Baker v. Carr (1962)
• All districts must be contiguous and touching,
  malapportionment violated the 14th Amendment
• Westbury v. Sanders (1964)
• One person, one vote, all districts must be equal
  in population not area or size

57
Civil Rights Reconstruction to Today

• The Civil Rights Act of 1964
• Prohibited discrimination against any person on
  grounds of race, color, religion, national
  origin, sex, or physical disability in any
  federally funded programs.
• Forbid employers to discriminate against any
  person on grounds of race, color, religion, sex,
  physical disability, or age in job-related
  matters.

• The Civil Rights Act of 1968
• Often referred to as the Open Housing Act.
• Forbids anyone to refuse to sell or rent a
  dwelling to any person on grounds of race, color,
  religion, national origin, sex, or disability.

58
Affirmative Action

• Affirmative Action is a program that requires
  employers and educational administrators to take
  positive steps to remedy the effects of past
  discriminations by increasing minority
  participation in some institutions.
• Such rules requiring specific numbers of jobs or
  promotions for members of certain groups are
  called quotas.

59

• Equality of Opportunity-everyone should be given
  the same opportunities
• Equality of Results-making certain the people
  receive the same result (compensate for past
  discrimination)

60
The Question of Citizenship

• A citizen is a member of a state or nation who
  owes allegiance to it by birth or naturalization
  and is entitled to full civil rights.

61
Citizenship by Naturalization

• Naturalization is the legal process by which a
  person becomes a citizen of another country at
  some time after birth.

62
Recent Immigration Court Case

• Lopez v. Gonzalez and Toledo v. US (2006)
  Immigration Law (7-1 Thomas)
• -The Court rejected the government's
  interpretation of immigration law, ruling that a
  noncitizen is not subject to mandatory
  deportation for a drug crime that, while a felony
  in the state where the crime was prosecuted, is
  only a misdemeanor under federal law.

63
Gay Rights

• Bowers v. Hardwick-Georgia banned sodomy and
  Supreme Court affirmed ban (1986)
• Boy Scouts v. Dale-private groups can exclude
  gays from membership (2000)
• Lawrence v. Texas-state cant ban sex between
  homosexuals (2003)