PSCI 1040: EXAM 2
65 Cards in this Set
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Civil Liberties
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The legal constitutional protections against the government.
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The Bill of Rights
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The First 10 amendments to the U.S. Constitution
Demanded by Anti-Federalists who feared a strong central government.
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Barron v Baltimore (1833)
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The Bill of Rights did not protect citizens against state or local government intrusions
It only restricts actions of the national government
Congress shall make no law..
States can have own Bill of Rights
Now many are "incorporated" into state and local laws through the 14th Am…
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Gitlow v New York (1925)
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First Amendment protection of freedom of speech "incorporated" through the 14th amendment
14th amendment restricts state action
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Different arguments for incorporating Bill of Rights by the Supreme Court
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Total incorporation
only the First amendment
selective incorporation
Palko v. Connecticut (1937)
Cardozo: "implicit in the concept of ordered liberty"
Selective incorporation wins out
Third Amendment NOT incorporated
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The First Amendment
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Congress shall not make no law:
Establishing a religion
Prohibiting the free exercise of religion
Abridging the:
Freedom of Press
Freedom of Speech
Freedom of Assembly
Selectively incorporated to the states through the 14t…
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The Establishment Clause
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No official US religion
No religion can be prevented but cannot be mandated by government
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A separation of Church & State
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The Lemon Test: Lemon V Kurtzman (1971)
Have a secular legislative purpose
neither advance nor inhibit religion
avoid-excessive government entanglement
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The Establishment Clause
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School prayer is is unconstitutional
Eagle V Vitale (1962)
When is it permissible?
Not often
School Vouchers?
Yes if part of state's general educational undertaking
Zelman v. Simmons-Harris (2002)
The 10 Commandments?
yes, if displays both religious and secular message
Van…
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Free Exercise Clause
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Can have (just about) any religious belief
Sherbert v. Verner (1963)
A balancing act between freedom and order
Education & Religion
Wisconsin v. Yoder (1972)
Health and religion
Church of Lukumi Babalu Aye v. Hialeah (1993)
Law was not justified by a compelling governmenta…
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Free Exercise Clause
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Some religious practices may conflict with other rights or governmental interests, & then be denied
Peyote: Oregon Employment Division v. Smith (1990)
Ban on peyote applies to all not discriminatory due to religion
Religious freedom restoration Act requires "strict scrutiny" to r…
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Freedom of the Press
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Prior Restraint:
A governmental preventing material from being published that is censorship
Near v. Minnesota (1931) : State cannot shut down newspaper based on what it prints
May be punished after something is published, e.g., if libelous or slanderous
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Free speech
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Almost universally protected
Limited if it presents a "clear & present danger"
Schenck v. US (1919)
Limited by the direct incitement test
Brandenburg v. Ohio (1973)
Limited if obscene, libelous or slanderous
Miller v. California (1973)
Are violent video games protected form of fre…
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Obscenity
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No clear definition
But to go beyond the old "know it when we see it" definition, Miller v California stated
the whole work appeals "to a prurient interest in sex"
"patently offensive" sexual conduct
Lacks "serious literary, artistic, political or scientific value"
Local communities …
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Libel & Slander
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L: The publication of false or malicious statements that damage someone's reputation
S: the same thing, only spoken instead of printed.
Different standards for private individuals and public (politicians, celebrities) individuals
NY Times v Sullian (1964): only libelous if made w…
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Symbolic Speech
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Nonverbal communication such as burning a flag or wearing an armband
Texas v. Johnson (1989)
Generally protected along with verbal speech.
Tinker v. Des Moines School District
Key exceptions (like other forms of speech): Compelling governmental interest
US v. O'Brien (1968)
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Commercial Speech
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Communication in the form of advertising.
Generally the most restricted (regulated) form of speech.
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Regulation of the Public Airwaves
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Broadcast stations must follow FCC rules
Cable, satellite, and internet have blurred the lines
regulations of the internet becomes a free speech issue, rejected often by the court
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Right to Assemble
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Generally permissible, but must meet reasonable local standards.
Balance between freedom to assemble and order in society.
Hence, KKK and Nazis allowed to rally and march
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Right to Associate
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Freedom to join groups and associations without government interference
NAACP v Alabama (1958): membership lists
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Defendants' Rights
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Criminal Justice personnel are limited by the Bill of Rights
Rights contained in the fourth, fifth, sixth, seventh, and eighth amendments
Failure to follow the rules may invalidate a conviction, even though these protections are withering.
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Search & Seizure
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Fourth Amendment requires warrants & probably cause
Police may usually search:
an arrested person
things in plain view of the arrested person
things an arrested person may reach
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Probable Cause
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When Police have reason -- More evidence for than against --- to believe that a person should be arrested .
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Reasonable suspicion
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lower standard to justify a search
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Search and Seizure
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Without an arrest, a police officer must usually obtain a warrant
Open fields: Hester v. US (1924)
Thermal Imager: Kyllo v. US (2001)
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Exclusionary Rule
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evidence, no matter how incriminating cannot be introduced into trial if it was not unconstitutionally obtained.
Mapp v. Ohio (1961)
"Reasonable expectation of privacy "
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Fifth Amendment: Self Incrimination
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Protection from testifying against oneself
Individuals accused of a crime cannot be compelled to be a witness against him or herself in court
Miranda warnings
Miranda v. Arizona (1966)
Gradual withering of this protection
Berghuis v. Thompkins (2010): suspects must explicitl…
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6th Amendment: Courtroom Rights
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Right to counsel
The state must provide lawyers in most criminal cases
Gideon v. Wainwright (1963)
Speedy and Public Trial by Jury
Jury must be a cross-section of the community
Preemptory challenges to exclude individuals as long as they are not discriminatory
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Cruel & Unusual Punishment
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Protected under the 8th Amendment
The death penalty
Furman v Georgia (1972): A Moratorium declared
Gregg v. Georgia (1976): Declared constitutional
Generally reserved for Murder 1
Varies from state to state: recent limitations
Punishment fitting the crime
Strong punishments are acc…
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The Right to Privacy
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The right to private personal life free from the intrusion of government
Not explicitly stated in the Constitution
Implied by the Fourth & Ninth Amendments (as well as first and third amendments)
Brought to life by birth control cases
Griswold v. Connecticut (1965)
Led to constitutio…
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Abortion
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Limits, including 24-hour-wait and parental consent
Planned Parenthood v. Casey (1992)
Law outlawing "partial birth abortion" upheld
Gonzales v. Carhart et al. (2007)
Variation by state
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The Second Amendment
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Individual right to "keep and bear arms" upheld by Supreme Court
District of Columbia et al. v. Heller (2008)
Struck down Washington, DC ban on handgun possession for unregistered guns
One could not previously register to own handgun in DC
Already written into many state constitution …
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Civil Rights
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Policies designed to protect people against arbitrary or discriminatory treatment by government officials or individuals
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Racial Discrimination
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strict scrutiny
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Gender Discrimination
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medium (or intermediate) scrutiny
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medium (or intermediate) scrutiny
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rational-basis level of scrutiny
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Conceptions of Equality
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Equal opportunity (same chances) vs. equal results (same rewards)
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Early American Views of Equality
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The Declaration of Independence vs. the United States Constitution
Equality is not in the original Constitution
First mention of equality in the 14th Amendment .."equality protection of the laws"
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Slavery and the Constitution
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Reference "free" and all other Persons" in Article I, section 2
Dred Scott v. Sandford (1857)
The civil war
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The Constitution & Equality
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13th Amendment: end to slavery
14th Amendment: equal protection clause
15th Amendment: right to vote
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Resegregation
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The civil rights cases
Congress does not have the authority to restrict actions of private individuals
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Jim Crow laws
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Loop holes designed to deny civil rights
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Plessy v. Ferguson (1896)
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Declares inequality constitutional again, be declaring: separate but equal
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The Civil Rights Era
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Moving towards desegregation
Harry Truman desegregates the US Armed Forces after WWII
Leads to split in Democratic Party
The supreme Court whittles away at Plessy through law school/college cases
Segregation is declared unconstitutional
Brown V. Boards of Education (1954)
Court…
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Civil Right Act of 1964
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Made racial discrimination illegal unemployment, public accommodation, and housing
Upheld by supreme Court through Commerce Clause of Article I
Enforced by Civil Rights Division of Department of Justice through lawsuits
Created the Equal Employment Opportunity Commission (EEOC)
Monito…
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The Right to Vote
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Suffrage: The legal right to vote
Extended to African Americans through the 15th Amendment
But Jim Crow "loop holes" precluded the right to vote for a century
Voting Right Act of 1965
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Voter ID laws Right to vote
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May Restrict access to ballot box
Indiana law upheld as "neutral and nondiscriminatory"
Loop hole and their closing
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Poll taxes
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Small taxes used to pay for elections- if you paid them, you could vote.
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Harper v. Virginia State Board of Elections (1966)
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Eliminates poll taxes for state elections
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White Primary
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only whites were allowed to vote in the party (Democratic) primaries
Smith v. Alwright (1944) : ended White Primaries
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Women and the Constitution
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History of gender discrimination
The Right to vote
19th Amendement (1920): extends suffrage to women
Gender equality through the Civil Rights Act of 1964
Title IX : Institutions of higher education that receive federal funds cannot discriminate against female stude…
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Reed v. Reed (1971)
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arbitrary discrimination based on gender unconstitutional
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Craig V. Boren (1976)
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limits scope of gender discrimination to level of medium scrutiny
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Sexual Harassment
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a violation of the Civil Rights Act of 1964
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Wage Discrimination
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equal pay for equal work
Equal rights amendment
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Other Civil Rights Groups
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The elderly
Not a suspect category, but they vote!
What about youth?
Not so much- "adult" civil liberties not always extended
Note drug testing of high school students
The disabled: ADA of 1990
All tend to be "rational-basis"
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Gay and Lesbian Civil Rights
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Private Acts
Bowers v. Hardwick (1986): private homosexual acts not protected
Lawrence v. Texas (2003)
Overturned Bowers
Private homosexual acts protected
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Same sex Marriage
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Defense of Marriage Act
US Constitutional amendement failed
State Constitutions amended to include traditional definition
Legal challenges on Court's docket
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Affirmative Action
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Early Affirmative Action
A policy designed to give special attention to or compensatory treatment for members of some previously disadvantaged group
Presidents Kennedy & Johnson
United Steelworkers of America v. Weber (1979)
Set-asides are constitutional
Only such example and an ex…
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Affirmative Action in Workplace
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City of Richmond v. Croson
In short, quotas and racial set-asides to redress past discrimination are now unconstitutional.
Violation of 14th Amendment's equal Protection Clause and Civil Rights Act of 1964
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Adarand Constructors v. Pena (1995)
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To be constitutional, affirmative action must be "narrowly tailored" to meet a "compelling governmental interest"
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Regents of the University of California v. Bakke (1978)
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Racial set-asides are unconstitutional
Race may be considered a "plus" in college admissions
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Hopwood
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Race may Not be considered in college Admissions, not even as a plus
State of Texas top ten percent
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Affirmative Action Today
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Thus, affirmative action today is unconstitutional and not a redress for past discrimination, but is important to promote diversity
yet another University of Texas case possibly to be heard
Fisher v. Texas upheld Grutter, but will the Supreme court?
University of Michigan consid…
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Grutter v. Bollinger
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Upholds Bakke: race may be considered a part of entire application; a "plus"
Why? Government has a compelling interest to promote diversity
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Study Guide: Final Exam