1. Chapter 5
Civil Liberties

3. Bill of Rights First Ten Amendments
Passed by Congress is 1789, ratified by the states in 1791
Compromise between the Federalists and Anti-Federalists
Designed initially to LIMIT the powers of national gov.
Barron v. Baltimore

4. Incorporation Doctrine
14th Amendment
Applied Bill of Rights to the states
Due process (along with 5th amendment)
Gitlow v. New York
States not completely free to limit freedom of speech/political expression
Near v. Minnesota
States could not restrict freedom of press

5. Selective Incorporation
Not all Bill of Rights have been incorporated
Palko v. Connecticut
5th Amendment: double jeopardy
NOT a fundamental right/liberty

7. 1st Amendment: Freedom of Religion
Colonists STRONG dislike and distrust in established religion
Establishment Clause
“Congress shall make no law respecting an establishment of religion”
Free Exercise
Congress shall not prohibit the free practice of religion.

8. Establishment Clause Thomas Jefferson’s Wall of Separation
Engel v. Vitale
Nondenominational prayer in school unconstitutional
Lemon v. Kurtzman: Lemon test to determine constitutionality
1) Must have a secular purpose
2) Neither advances nor prohibits religion
3) Not foster gov entanglement with religion

9. Establishment Clause
Agostini v. Felton: public teachers used in parochial schools, not an excessive entanglement of church and state
Zelman v. Simmons-Harris: vouchers used in parochial schools

10. Free Exercise Clause NOT absolute freedom
When secular law conflicts with religion, free exercise is often denied
Employment division of Oregon v. Smith
Restrictions include
Snake handling
Polygamy
Illegal drug use

11. Freedom of Speech Alien and Sedition Act Lincoln and Civil War
1798 to ban any political criticism by the Jeffersonian Democratic-Republicans of the Federalist Congress
Made criticism of gov a federal offense
Acts expired before Court could rule on them
Lincoln and Civil War
Lincoln arrested editors who were critical of him

12. Freedom of Speech WWI and Anti-Government Speech Espionage Act
Schenck v. United States 1919
Distribution of anti-war pamphlets unconstitutional
Clear and present danger test
Brandenburg v. Ohio 1969
Advocacy of illegal action is legal unless imminent lawless action is intended or likely to occur

13. Protected Speech Prior restraint Symbolic Speech
New York Times Co. v. U.S.
aka Pentagon Papers (1971)
Symbolic Speech
Flying a communist flag, burning American flag, and wearing black armbands in protest of Vietnam
Hate and unpopular speech

14. Unprotected Speech Libel and Slander Fighting Words
New York Times v. Sullivan (1964): “actual malice”
Fighting Words
Chaplinsky v. New Hampshire
Obscenity and Pornography
Roth v. U.S.
“utterly without redeeming social importance”
Miller v. California (1973)

15. 2nd Amendment “a well-regulated militia” perspective
“the right to bear arms” perspective
Government should regulate (and restrict?) the ownership and use of guns
Citizens should be able to own guns with little to no restrictions from the government
McDonald v. Chicago--incorporation of 2nd Amendment onto the states

16. 2nd Amendment U.S. v. Miller
Upheld the National Firearms Act of 1934
1994 Violent Crime Control and Law Enforcement passed by Congress

17. 8th Amendment Death Penalty Furman v. Georgia Gregg v. Georgia
Put a short term end to death penalty
Gregg v. Georgia
Overturned Furman v. Georgia
Supreme Court exempted those under the age of 15 and those who are mentally retarded

18. Right to Privacy Abortion Birth Control Right to Die
Right to privacy implied by Bill of Rights
Right to use birth control or secure an abortion
Roe v. Wade
Birth Control
Griswold v. Connecticut
Right to Die
Individuals could terminate medical treatment if they could express, or done so in writing, their desire to terminate medical treatment if they become incompetent

19. Civil Liberties (Cont.)
Chapter 15 Part II Terms

20. A law that says someone is guilty of a crime without a trial
Bills of Attainder
A law that says someone is guilty of a crime without a trial
Ex Post Facto Law
(More Latin!)
“After the fact”--a law making something a crime after it has occurred
Example?
Selective Incorporation
Cool sponge illustration on p.479
Application of Bill of Rights to the States by using the due process clause of the 14th Amendment
1st, 2nd, 4th, 5th, 6th, 8th, 9th

21. Rights of the accused Gideon v. Wainwright
Background: man arrested for theft, didn’t have money for a lawyer, had to represent himself at trial
Result: Court found that the 6th Amendment applied to the states, each defendant needs a lawyer; if he cannot afford one, it’s provided by the state.
Miranda v. Arizona
Background: man accused of kidnapping and rape was questioned for two hours without a lawyer and confessed
Result: Court found that the 5th Amendment right to protection from self-incrimination applies. We now have the “Miranda Rights”

22. Search and Seizure cases
Mapp v. Ohio
Background: woman accused of crimes, shown a “warrant” and found pornography (which was then illegal)
Result: established “Exclusionary Rule,” that is, evidence illegally obtained will no longer be used in court.
Other questions regarding the 4th Amendment
Sobriety checkpoints
Wiretapping
GPS devices on cars

23. Terrorism vs. privacy
USA Patriot Act allows for government to surpass what we would expect about our personal privacy
How do/should we handle people arrested for terrorism:
in the US?
outside of the US?

24. Griswold v. Connecticut
The Right to Privacy
Not in the constitution
Constructed by combining different Amendments
the perfect example of Judicial Activism
Griswold v. Connecticut
Background: Planned Parenthood was distributing birth control, which violated a state law
Result: use of birth control allowable, created the right of privacy based on 1st, 3rd, 4th, 5th, 6th, and 9th Amendments

25. The Right to Privacy (cont.)
Roe v. Wade
Background: Texas law forbade abortions at any point of pregnancy. “Roe” sued to be able to have an abortion.
Precedent: without Griswold, the decision in Roe could not have worked
Result: abortion is legal
1st trimester specifically OK
3rd trimester specifically not OK
reinforced the right of privacy based on 1st, 3rd, 4th, 5th, 6th, and 9th Amendments
Issues: viability, 2nd trimester

26. The Right to Privacy (cont.)
Planned Parenthood v. Casey
Background: Pennsylvania law tried to restrict abortion with restrictions:
a doctor would inform the woman about the procedure and side effect of an abortion and the woman would then wait 24 hours
spousal notification is required
parental consent for those under 18
Result: abortion is still legal
Justice O’Connor said the spousal notification provision placed an “undue burden” on women and was unconstitutional
The Right to Privacy (cont.)

27. The Right to Privacy (cont.)
Lawrence and Garner v. Texas
Background: Texas law forbade heterosexual and homosexual sodomy. Two men were accused of violating the law and challenged its constitutionality.
Precedent: Bowers v. Hardwick (1986)
Result: law is unconstitutional and in short, consenting adults may do what they want in the privacy of their own homes. This case is now the current precedent.
The Right to Privacy (cont.)