Negative v. Positive Rights Define: Founders History: 20 th century expansion

America…a litigious society Conflicts in Rights Policy Entrepreneurs Cultural Conflicts

14 th Amendment- responds to Baron and radical Republicans 1868 Purpose… Section 1 Citizenship defined…issues? 3 Clauses (defined) Privileges and Immunities Due Process Equal Protection Supreme Court Limits…… No Immediate “incorporation” of BOR Limited to Direct State Action Plessy v. Ferguson (1896)

“Gradual” Incorporation Define: First case…Gitlow v. NY (1925) -speech Heller and McDonald cases and the 2 nd amendment most recent examples

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people The 9 th Amendment Issue-so how do we find out what they are? Options? In steps the Supreme Court Griswold v. CT (1966) 4 th & 9 th = PRIVACY Roe v. Wade (1973) makes the issue of the right to privacy more controversial-why?

First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

Religion: Establishment “vs.” Free Exercise Establishment- define…. Options Implications in School (Lemon TEST), at holiday time, and now in ACA Free Exercise- limited “compelling interest” CHURCH OF THE LUKUMI BABALU AYE v. HIALEAH EMPLOYMENT DIVISION v. SMITH Little Sisters of the Poor Home for the Aged v. Burwell

First amendment How to define….”Speech” When to “limit”…“Speech” Schenck to Brandenburg Exceptions Libel-Sullivan Obscenity-Miller Symbolic-Tinker, Cohen, Johnson v. Texas Commercial

Objectives Explain the difference between Negative and Positive Rights, and how they have evolved over time. Explain how the Court’s use of the 14 th Amendment changed over time resulting in the development of “Gradual Incorporation” with reference to relevant case histories. Evaluate the Court’s changing interpretations of those rights over time, citing relevant case histories.

Press and Assembly Limits on Prior Restraint Near v. Minnesota (1931) NY Times v. US (1970) Shield Laws-rights in conflict Assembly…. Content Neutral…. But “reasonable” TPM restrictions can be imposed NATIONAL SOCIALIST PARTY v. SKOKIE 1977 Association: NAACP case and the attempt of Alabama to gain membership lists Boys Scouts and the exclusion of Gay scout leaders

Second Amendment Heller vs. DC (2008) Chicago v. McDonald (2010)

Fourth Amendment What are “search warrants” THREE requirements to obtain one 1 2 3

Warrantless searches Incident to arrest In cars Plain view

Evidence Obtained without a proper warrant Impact of… Weeks v US (1914) Wolf v Colorado (1949) Mapp v Ohio (1961) Pulling back on the rule… Inevitable discovery Good faith Honest mistake

Drug testing as a “search” Government Employees? High School students

Electronic searches Impact of Olmstead (1929) Katz (1967) Patriot Act and roving taps (Internet too) Echelon

Elements of a Fair Trial Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or 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.

Amendment VI 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 by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Elements of a Fair Trial