Studied by 3 people
Civil Liberties
The protections from the abuse of government power. Think the amendments.
Civil Rights
Specifically describes protections from discrimination based on race, gender, or other minority status.
Selective Incorporation
Following the passage of the 14th amendment. The Supreme Court has selectively applied the bill of rights to state law on a case by case basis. The 3rd, 5th, and 7th have yet to be applied.
First Amendment Rights
The First Amendment guarantees freedom of speech, freedom of the press, freedom of petitioning the government, freedom of assembly, and freedom of religion.
Limits on Freedom of Speech
The most famous limit on free speech is the clear and present danger test. In the case of Schenck v. United States (1919), Justice Oliver Wendell Holmes argued that a person may not falsely scream "fire!" in a crowded theater, because doing so would likely result in panic. The court has also ruled that there is no constitutional protection for false defamatory speech (called slander when it is spoken and libel when it is in a more permanent form, such as print), obscenity, or speech intended to incite violence.
Since the 1940s, the court has followed the preferred position doctrine in determining the limits of free speech. The doctrine reflects the court's belief that freedom of speech is fundamental to liberty; therefore, any limits on free speech must address severe, imminent threats to the nation.
Schenck v. United States (1919) (Required Case)
Facts: During the First World War, the United States prosecuted thousands of dissenters. Near the end of the war, Charles Schenck, a Socialist, was arrested in Philadelphia for handing out leaflets calling on men not to enlist. Schneck was arrested and convicted of violating the Espionage Act of 1917. He appealed to the Supreme Court.
Issue: Schneck's attorney argued that the Espionage Act of 1917 violated the First Amendment.
Holding: In a unanimous decision, the Supreme Court ruled that Schneck's conviction was constitutional and that his speech posed "a clear and present danger" to the United States. Thus, the Court held that the First Amendment does not protect speech that creates a "clear and present danger," stating that free speech can be curtailed if the speech will "bring about the substantive evils that Congress has the right to prevent."
Tinker v. Des Moines (1969) (Required Case)
Facts: The mid-1960s saw the beginnings of anti-Vietnam War protests throughout the United States. In 1965, teenagers John and Mary Beth Tinker wore black armbands to school as a form of silent anti-war protest. After multiple warnings, the Tinkers were suspended for their actions. The ACLU helped the Tinker family take their case to the Supreme Court.
Issue: In West Virginia State Board of Education v. Barnette (1943), the Supreme Court had ruled that the First Amendment protects minors at school under certain circumstances. However, the court needed to consider whether the First Amendment and West Virginia State Board of Education applied to the Tinkers' protest.
Holding: In a 7-2 decision, the Supreme Court ruled that children in public schools were protected fully by the First Amendment as long as their speech did not violate specific, constitutional regulations. In this case, the court held that students in public schools could wear black armbands to school as a means of protesting the Vietnam War. The Court held that students can exercise their First Amendment rights in public school if those actions do not cause a "substantial disruption." The dissenting justices argued that although the speech was constitu-tional, specific locations, such as schools, were not an appropriate venue for anti-war protests.
Gitlow v. New York (1925)
This case created the "Bad Tendency Doctrine," which held that speech could be restricted even if it has only a tendency to lead to illegal action. Though this element of the decision was quite restrictive, Gitlow also selectively incorporated freedom of speech to state governments.
Bethel School District v. Fraser (1986)
This case gave public school officials the authority to suspend students for speech considered to be lewd or indecent. The Court held that schools have the right to regulate the use of explicit speech, obscene language was not covered by the First Amendment, and schools can punish a student if such speech fails to have educational value.
Hustler Magazine v. Farewell (1988)
In this much-publicized case, the court held that intentional infliction of emotional distress was permissible First Amendment speech—so long as such speech was about a public figure and could not reasonably be construed to state actual facts about its subject. In other words, parody is not an actionable offense.
Texas v. Johnson (1989)
Johnson established that burning the American flag is an example of permissible free speech, and struck down numerous anti-flag-burning laws. The Court held that political or symbolic speech could not be regulated by the government, even if offensive to some populations.
Morse v. Frederick (2007)
This case was known as the "Bong Hits 4 Jesus" case, in which the Supreme Court limited students' free speech rights. The justices ruled that Frederick's free speech rights were not violated by his suspension over what the majority's written opinion called a "sophomoric" banner.
Freedom of Press
Criticism of the government and its politics is protected. When it comes to censoring the press, there are few instances in which the government can use prior restraint-crossing out sections of an article before publication.
An even more contentious issue involves the media's responsibility to reveal the sources of their information. The Supreme Court has ruled that reporters are not exempt from testifying in court cases and that they can be asked to name their sources. A number of states have enacted shield laws to protect reporters in state cases.
As mentioned earlier, libel and obscenity are not protected by the First Amendment. In the case of Miller v. California (1973), the court established a three-part obscenity test.
Would the average person, applying community standards, judge the work as appealing primarily to people's baser sexual instincts?
Does the work lack other value, or is it also of literary, artistic, political, or scientific interest?
Does the work depict sexual behavior in an offensive manner?
New York Times v. United States (1971) (Required Case)
Facts: In 1971, Daniel Ellsberg leaked the Pentagon Papers, a top-secret report on the country's role in Vietnam, to The New York Times. When the Times began summarizing the finding of the report in a series of articles, the government sued and sought a restraining order. When The Washington Post began publishing the Pentagon Papers, the government filed a lawsuit that went to the Supreme Court.
Issue: The government claimed that the release of the Pentagon Papers violated the Espionage Act of 1917 and that it had the right to use prior restraint—the suppression of harmful information.
Holding: In a 6-3 decision, the Supreme Court ruled that the newspapers could publish the Pentagon Papers, as the government had not met the burden of proof necessary to enact prior restraint. Dissenting justices noted that the court did not have enough time to adequately research information relevant to the case, as the Pentagon Papers spanned over 7,000 pages. With this holding, the Court established a "heavy presumption against prior restraint," including in situations that involve national security. Accordingly, the Court is unlikely to find cases regarding government censorship unconstitutional.
Near v. Minnesota (1931)
Near established that state injunctions to prevent publication violate the free press provision of the First Amendment and are unconstitutional. This case is important in that it selectively incorporates freedom of the press and prevents prior restraint.
New York Times v. Sullivan (1964)
If a newspaper prints an article that turns out to be false but that the newspaper thought was true at the time of publication, has the newspaper committed libel? This case said no.
Hazelwood School v. Kuhlmeier (1988)
In Hazelwood, the court held that school officials have sweeping authority to regulate free speech in student-run newspapers.
Freedom of Assembly and Association
The First Amendment protects the right of people to assemble peacefully. That right does not extend to violent groups or to demonstrations that would incite violence. Furthermore, the government may place reasonable restrictions on crowd gatherings, provided such restrictions are applied equally to all groups. In short, crowd gatherings must not unnecessarily disrupt day-to-day life. That is why groups must apply for licenses to hold a parade or street fair.
The court has also ruled that the combined rights of freedom of speech and freedom of assembly imply a freedom of association. This means that the government may not restrict the number or type of groups or organizations people belong to, provided those groups do not threaten national security.
Martin Luther King Jr.’s “Letter from a Birmingham Jail” (Required Document)
In April 1963, Martin Luther King Jr. was arrested in Birmingham, Alabama, for his role in helping to organize a series of marches and sit-ins to protest racial segregation. From his jail cell, King wrote an open letter to the city's African American religious leaders. This letter outlined many of his key ideas regarding the importance of nonviolent resistance in the form of peaceful assembly. His letter convinced many, and African Americans and their supporters continued to use nonviolent resistance to dismantle legal segregation throughout the South.
Thornhill v. Alabama (1940)
Labor unions have been controversial since the dawn of the Industrial Revolution-did their strikes constitute a form of unlawful assembly? In Thornhill, the court held that strikes by unions were not unlawful.
Cox v. New Hampshire (1941)
When a group of Jehovah's Witnesses was arrested for marching in New Hampshire without a permit, they claimed that permits themselves were an unconstitutional abridgment of their First Amendment freedoms. In Cox, the court held that cities and towns could legitimately require parade permits in the interest of public order.
Lloyd Corporation v. Tanner (1972)
This case allowed the owners of a shopping mall to throw out people protesting the Vietnam War. The key element here is that malls are private spaces, not public. As a result, protesters have substantially fewer assembly rights in malls and other private establishments.
Boy Scouts of America v. Dale (2000)
Private organizations' First Amendment right of expressive association allows them to choose their own membership and expel members based on their sexual orientation even if such discrimination would otherwise be prohibited by antidiscrimination legislation designed to protect minorities in public accommodations. As a result of this case, the Boy Scouts of America were allowed to expel any member who was discovered to be gay.
Freedom of Religion
The Constitution guarantees the right to the free exercise of religion, meaning that the government may not prevent individuals from practicing their faiths.
The Constitution also prevents the government from establishing a state religion (the establishment clause). The establishment clause has been used to prevent school prayer, government-sponsored displays of the Christmas nativity, and state bans on the teaching of evolution.
In deciding whether a law violates the establishment clause, the court uses a three-part test, called the Lemon test after the case Lemon v. Kurtzman (1971).
Does the law have a secular, rather than a religious, purpose?
Does the law neither promote nor discourage religion?
Does the law avoid "excessive entanglement" of the government and religious institutions?
Engel v. Vitale (1962) (Required Case)
Facts: In the early 1960s, a group of Jewish families in New York brought suit against their children's school district for imposing prayer in the classroom. The New Lork Court of Appeals upheld school prayer before the families took the case to the Supreme Court.
Issue: The families argued the school prayer violated the First Amendment's establishment clause.
Holding: In a 6-1 decision (one justice was ill and another recused himself based on the fact he was not a member of the court during oral arguments), the court ruled that school prayer violated the First Amendment's establishment clause. The lone dissenting justice argued that forbidding prayer in school denied children the nation's "spiritual heritage."
Wisconsin v. Yoder (1972) (Required Case)
Facts: The Amish faith discouraged higher education so as to preserve the Amish way of life. In the carly 1970s, Wisconsin fined three Amish families $5 for taking their children out of school after the eighth grade. The Amish families appealed the case, and after the state supreme court ruled in the families favor, the state took the case to the Supreme Court.
Issue: In a conflict between the free expression of religious belief and state laws regarding compulsory education, who wins?
Holding: In an 8-1 decision, the Supreme Court ruled that Amish families taking their children out of school after the eighth grade was protected by the First Amendment's free exercise clause. The single dissenting justice argued that allowing parents to take their children out of school sets a dangerous precedent.
Abington School District v. Schempp (1963)
Given the court's ruling in Engel, it's not surprising that in Abington they decided that the establishment clause of the First Amendment forbids state-mandated reading of the Bible, or recitation of the Lord's Prayer in public schools.
Epperson v. Arkansas
In line with the establishment clause, Epperson prohibited states from banning the teaching of evolution in public schools.
Employment Division v. Smith (1990)
This case determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. In short, states may accommodate otherwise illegal acts done in pursuit of religious beliefs, but they are not required to do so.
The Second Amendment
The Second Amendment to the Constitution, which protects citizens' rights to keep and bear arms, has led to a debate over whether the Constitution protects citizens rights to bear arms under all circumstances, or only when those citizens serve in "well-regulated militias." Thus far, the Supreme Court's rulings on the Second Amendment have upheld the individual right to keep and bear arms, while allowing for wide variations in gun laws from state to state and in large cities. Future court decisions are likely to revolve around concerns about public safety and the ways in which governmental regulation of firearms may promote or interfere with public safety and individual rights.
McDonald v. Chicago (2010) (Required Cases)
Facts: In 2008, Otis McDonald, a Chicago resident, wanted to purchase a handgun for self-defense. However, he could not buy one due to the city's laws restricting new handgun registrations. McDonald and a group of other Chicago residents sued the city.
Issue: Lawyers representing McDonald argued that Chicago's laws violated the Fourteenth Amendment's due process clause. As McDonald had not committed a crime, the city had no right to deny him the right to own a handgun.
Holding: In a 5-4 decision, the Supreme Court used the Fourteenth Amendment to incorporate the Second Amendment to the states, striking down gun control laws in Chicago and other cities. The Court held that states do not have the power to impede their citizens' rights to keep and bear arms granted by the Second Amendment. Dissenting justices argued that the case was not the right vehicle for incorporation, as self-defense is not mentioned in the Second Amendment.
United States v. Lopez (1995) (Required Case)
Facts: In 1992, high school senior Alfonso Lopez was arrested for taking a gun to school. He was tried and convicted for violating the Gun-Free School Zones Act of 1990. He appealed the decision to the Supreme Court.
Issue: Lopez argued that the Gun-Free School Zones Act of 1990 violated the Constitution, as the federal government did not have the power to regulate public schools. The federal government argued that the law was constitutional based on the commerce clause-firearms were interstate commerce.
Holding: In a 5-4 decision, the Supreme Court struck down the Gun-Free School Zones Act of 1990. The majority argued that merely carrying a gun did not qualify as commerce. The Court's holding affirmed the broad lawmaking power of Congress under the commerce clause, but ruled that the commerce clause does not grant Congress the power of firearm regulation. The dissenting justices argued that school shootings violently disrupt children's education, education being a crucial component for financial success later in life. In this way, they believed that guns in schools interrupted interstate commerce.
The Third Amendment
The most antiquated of all the amendments-though important at the time of its creation-the Third Amendment forbids the government from forcing citizens to allow soldiers to live in their homes at all during peace and only when allowed by law during war. It was a direct reaction to the British practice of using civilian support to conduct military operations.
The Fourth Amendment
The Fourth Amendment places restrictions on government agencies regarding criminal or civil procedural investigations and does much to protect an individuals "person, house, papers, and effects against unreasonable searches and seizures."
If a judge is convinced that a search is likely to uncover evidence of illegality-called probable cause-the judge issues a search warrant, which limits where the police may search and what they may take as evidence. Evidence found by police who disregard this procedure may not be admitted as evidence in trial. This is called the exclusionary rule.
As with all constitutional rights, however, there are exceptions to this rule.
In 1984, the Supreme Court established the objective good faith exception, which allows for convictions in cases in which a search was not technically legal either because it violated the warrant or because the warrant itself was faulty) but was conducted under the assumption that it was legal. The court has also determined that illegally seized evidence that would eventually have been found legally is also admissible in court. This principle is known as the inevitable discovery rule.
Finally, police may conduct an immediate search if they have probable cause to believe they will find evidence of criminal activity, especially when there are exigent circumstances-reason to believe that someone may be harmed or that evidence could disappear by the time they received a warrant and returned.
The Fifth Amendment
The Fifth Amendment does the most to protect an individual from the broad powers of the federal government. It provides a guarantee of a grand jury when a suspect is held for a capital or other "infamous" crime. It eliminates the possibility of a person being maliciously prosecuted for the same crime again and again by prohibiting double jeopardy. It establishes the right of the government to seize property for public use under the auspices of eminent domain but only if such seizure can be "justly compensated." The most significant attribute of the Fifth Amendment is its mandate that the federal government not deprive an individual of "life, liberty, or property by any level unless due process of law is applied." Rights granted to the accused are a fundamental protection against governmental abuse of power.
Gideon v. Wainwright (1963) (Required Case)
Facts: In 1961, Earl Gideon was accused of breaking-and-entering, destruction of property, and theft. During the trial, the judge did not appoint him an attorney, as the crimes Florida charged him with were non-capital offenses. A jury convicted Gideon of the crime. From prison, Gideon studied constitutional law and drafted a handwritten appeal to the Supreme Court.
Issue: Gideon argued that Florida had violated his Sixth Amendment right to an attorney.
Holding: The Supreme Court unanimously ruled that Florida had violated Gideon's right to an attorney. This ruling had the effect of incorporating the Sixth Amendment to the states, expanding the rights of the accused. Since Gideon, all defendants in jury trials must have the option of having an attorney represent them.
Other Important 5th Amendment Cases
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Protection from Self Incrimination
Also protected under the 5th Amendment is Self Incrimination. A defendant cannot be forced to testify at trial, and the jury instructed not to infer guilt when a defendant chooses to not testify. Furthermore, a defendant must be notified of the right to remain silent, the right to a lawyer, and their protection against self-incrimination at the time of their arrest.
The Sixth Amendment
This amendment allows persons accused of a crime to be prosecuted by an impartial jury. Individuals have the right to be informed of their charges, to confront witnesses, to subpoena witnesses for their defense, and to have a lawyer for their defense. The Sixth Amendment forms the basis for habeas corpus, which protects against unlawful imprisonment and ensures that a person cannot be held indefinitely without being formally charged before a judge or in a court, or without a legal reason to extend their detention.
The Sixth Amendment also guarantees defendants the right to a speedy trial.
The Seventh Amendment
Statutory, or written, law has come to replace or supersede common law, which is based on past court decisions. The Seventh Amendment allows for trial by jury in common-law cases.
The Eighth Amendment
The Eighth Amendment states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The government is not required, however, to offer bail to all defendants.
The cruel and unusual punishment clause of the Constitution lies at the heart of the debate over the death penalty. The court has placed limits on when the death penalty can be applied; however, it has upheld the constitutionality of the death penalty when properly applied.
Important 8th Amendment Cases
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The Ninth Amendment
The Ninth Amendment reaffirms the principles of a limited federal government.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" means that rights not specifically mentioned in the Constitution are still protected— everyone has the right to brush their hair, for example— even though that right is mentioned nowhere in the Bill of Rights. Although somewhat vague in its premise, the Ninth Amendment has led to the implied right to privacy and other questions regarding individual rights not identified or even understood at the time of the creation of the Constitution.
The Implied Right of Privacy
The right to privacy is not specifically mentioned in the Constitution. However, in the 1965 Supreme Court case of Griswold v. Connecticut, the court ruled that the Bill of Rights contained an implied right to privacy. The court ruled that the combination of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments added up to a guarantee of privacy. The Griswold case concerned a state law banning the use of contraception; the Supreme Court decision overturned that law. Griswold also laid the foundation for the landmark Roe v. Wade case of 1973, which legalized abortion.
Important Right to Privacy Cases
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The Civil War (1861 - 1865)
The Civil War began, at least in part, over the issue of slavery (the debate over the relative powers of the federal and state governments was also a major cause of the war). The war was more clearly defined as a war about slavery in 1863, when President Lincoln issued the Emancipation Proclamation, which declared the liberation of enslaved people in the rebel states. The Civil War also influenced the civil rights process in a less direct and less immediate way, as it resulted in an increase in the power of the federal government. One hundred years later, the increased power vested in the federal government would be the means of imposing and enforcing equal rights laws in the states.
Thirteenth Amendment (1865)
The Thirteenth Amendment, ratified after the Civil War, made slavery illegal. With the exception of having committed a crime (that is, people in prison), this amendment also prohibited indentured servitude.
Fourteenth Amendment (1868)
The Fourteenth Amendment, ratified during Reconstruction, declared that all persons born in the U.S. were citizens and that all citizens were entitled to equal rights, which are protected by due process. The amendment was designed to prevent states in the South from depriving formerly enslaved persons of their rights. Its clauses guaranteeing due process and equal protection were later used by the Supreme Court to apply most of the Bill of Rights to state law. However, in the 1880s, the Supreme Court interpreted the amendment narrowly, allowing the states to enact segregationist laws. The Fourteenth Amendment also made African Americans citizens of the nation and of their home states, overruling the Dred Scott v. Sandford case (1857), which had ruled that enslaved people and their descendants were not citizens.
Fifteenth Amendment (1870)
The Fifteenth Amendment banned laws that would prevent African Americans from voting on the basis of their race or the fact that they previously were enslaved people.
Civil Rights Act of 1875
The Civil Rights Act of 1875 banned discrimination in public places such as hotels, restaurants, and railroad cars, as well as in selection for jury duty. The Supreme Court overturned portions of the Act in 1883.
Jim Crow laws and voting restrictions
As the federal government exerted less influence over the South, states, towns, and cities passed numerous discriminatory and segregationist laws. The Supreme Court supported the states by ruling that the Fourteenth Amendment did not protect Black Americans from discriminatory state laws, and that Black Americans would have to seek equal protection from the states, not from the federal government. In 1883, the court also reversed the Civil Rights Act of 1875, thus opening the door to legal segregation.
These segregationist laws are known collectively as Jim Crow laws.
The states also moved to deprive Black Americans of their voting rights by imposing poll taxes (a tax that must be paid in order to vote) and literacy tests. To allow poor, illiterate whites to vote, some states passed grandfather clauses that exempted from these restrictions anyone whose grandfather had voted. Grandfather clauses effectively excluded Black Americans whose grandparents had been enslaved people and therefore could not have voted.
Equal Pay Act of 1963
This federal law made it illegal to base an employee's pay on race, gender, religion, or national origin. The Equal Pay Act was also important to the women's movement and to the civil rights struggles of other minorities.
Twenty-Fourth Amendment (1964)
This outlawed poll taxes, which had been used to prevent Black people and poor white people from voting.
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation. It not only established new rights for Black Americans and other minorities, but also gave the federal government greater means of enforcing the law. The law banned discrimination in public accommodations (public transportation, offices, and so on) and in all federally funded programs. It also prohibited discrimination in hiring based on race and gender. Finally, it required the government to cut off funding from any program that did not comply with the law, and it gave the federal government the power to initiate lawsuits in cases of school segregation.
States that had previously ignored federal civil rights mandates now faced serious consequences for doing so.
Voting Rights Act of 1965
The Voting Rights Act was designed to counteract voting discrimination in the South. It allowed the federal government to step into any state or county in which less than 50% of the population was registered to vote, or in areas that used literacy tests to prevent voting. In those areas, the federal government could register voters (which is normally a function of the states).
Civil Rights Act, Title VIII (1968)
This banned racial discrimination in housing.
Civil Rights Act of 1991
This law was designed to address a number of problems that had arisen in civil rights law during the previous decade. Several Supreme Court decisions had limited the abilities of job applicants and employees to bring suit against employers with discriminatory hiring practices; the 1991 act eased those restrictions.
Brown v Board of Education (1954) (Required Case)
Facts: In 1951, a group of 20 families from Topeka, Kansas, filed suit against the city's board of education for enforcing school segregation. A District Court upheld school segregation as it did not violate Plessy v. Ferguson (1896). The families appealed the case to the Supreme Court, where the case was heard alongside four other school segregation cases.
Issue: Did the Fourteenth Amendment's equal protection clause apply to school segregation?
Holding: In a unanimous decision, the Supreme Court struck down school segregation nationwide. The Court held that "separate educational facilities are inherently unequal" due to the detrimental impact that racial segregation has on minorities. In fact, many justices had made up their minds long before hearing the case, as racial segregation was tarnishing America's image abroad. The ruling overturned the precedent set by Plessy, arguing that separation is harmful even when the "tangible qualities" of a situation are identical.
De Facto Segregation vs. De Jure Segregation
De facto segregation refers to racial separation that occurs in practice, often as a result of economic or social factors, rather than legal requirements. De jure segregation is legal separation enforced by law, such as laws that mandate separate schools for different races.
Affirmative Action
Affirmative action refers to policies that support members of disadvantaged groups through measures such as university admissions and employment. These actions are intended to counteract historical injustices and discrimination. People against affirmative action state it creates reverse racism which is illegal under the Civil Rights Act of 1964.
Nineteenth Amendment (1920)
Granted Women the right to vote.
Equal Right Amendment
Fought for by many women but failed to ultimately get passed. (1972 - 1982)
Title IX, Higher Education Act (1972)
This law prohibits gender discrimination by institutions of higher education that receive federal funds. Title IX has been used to force increased funding of women-only programs, such as women's sports. The Civil Rights Restoration Act of 1988 increased its potency by allowing the government to cut off all funding to schools that violate the law (and not just to the specific program or office found in violation).
As a result of these laws mandating equity in college athletics spending, colleges have eliminated many less popular men's sports, resulting in a backlash against Title IX and the Civil Rights Restoration Act.
Lilly Ledbetter Fair Pay Act of 2009
This law closed a loophole that limited suits on discriminatory pay based on the timing of the issuance of the first discriminatory paycheck. The Ledbetter Act expanded those limits to allow suits based on any discriminatory paycheck, an important adjustment for employees who learn of inequities in wages or salary only after they have persisted for some time.
Other Major Civil Rights Advances
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Important Federalism Cases
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How much does this make up on the test?
13% - 18%
