AP Gov (Unit 3)

Bill of Rights

• first ten amendments (compromise for anti-federalists)

• protect individual liberties

• Fundamental Rights

  • SCOTUS says its “implicit in the concept of ordered liberty”

civil liberties

• rights of citizens to be free from undue government interference in their lives

• set by Bill of Rights and legal precedents

• how society as a whole is protected

civil rights

The rights of citizens to be free of unequal or discriminatory treatment on the basis of race, gender, or membership in a particular demographic group

individual liberties

Constitutionally-established rights and freedoms protected by law from interference by the government

• how each individual is protected

Name the first ten amendments

1. Freedom of speech, assembly, petition

2. Right to bear arms

3. Right to refuse quartering of soldiers in wartime

4. Right to refuse unreasonable search and seizure (need warrants)

5. Right to due process, protection from self-incrimination (“I plead the 5th”), an indictment by a grand jury

6. Right to speedy public trial by an impartial jury, an attorney, and to confront witnesses

7. Right to a jury in civil cases (non-serious crimes)

8. No excessive fines, bail, cruel or unusual punishments

9. All non-enumerated rights are retained by the people

10. All rights not delegated to the federal government are the rights of the states or the people

1st Amendment: establishment clause

• “Congress shall make no law respecting an establishment of religion.”

• Prevents government from having a national religion, forcing a religion

• separates church from all state institutions (public schools, offices, etc.)

1st Amendment: free exercise clause

• prevents the federal government from interfering with its citizens’ religious beliefs and practices

• However, SCOTUS has limited this only if it interferes with secular law (like polygamy and drug use)

Lemon test

• A law is constitutional only if it has an explicitly secular purpose, and do not in any way entangle the government with religion (via restriction or endorsement)

• Therefore, the government can justify some religious support legislation as long as it isn’t advancing their beliefs (basically, treating it like a company)

  • Giving financial support to kids attending private religious schools

Engel v. Vitale (1962)

• Schools were encouraging students to participate in morning prayer

• SCOTUS rules that school-led prayer violates establishment clause

  • Students can still prayer on their own accord

Wisconsin v. Yoder (1972)

• Wisconsin sues Amish families for not sending their children to school past 8th grade

• SCOTUS rules that Wisconsin law violates free exercise clause of the 1st Amendment

Where do 1st Amendment protections not apply?

• non-government institutions (only the gov. is restricted)

  • you can still be fired for speech in a private university

  • catholic schools can still encourage morning prayer

• When speech incites illegal activity

• “Obscenity”

“clear and present danger”

• The one limit to free speech established by Schenk, has since been redefined as “direct incitement”

• government can only restrict free speech when it threatens national security and incites lawless action

defamation

• The act of damaging someone’s reputation by making intentionally false statements.

• printed medium=libel

• spoken defamation = slander

symbolic speech

• Nonverbal forms of speech protected by the First Amendment

  • picketing, wearing armbands, displaying signs, or engaging in acts of symbolic protest such as flag burning

• More protected as it is less likely to actually incite lawless actions

time, place, and manner restrictions

• Limit to expression based on how, when, and where an individual or organization expresses themselves

• A city can require that a group obtains a permit before protesting

  • Can also reserve some areas for protesting and prohibit protests in others

Schenck v. United States (1919)

• Two citizens arrested for spreading anti-draft sentiment

• SCOTUS rules that speech that creates a “clear and present danger” is not protected by the free speech clause of the 1st Amendment

Tinker v. Des Moines Independent Community School District (1969)

• Public school suspends two students for wearing black armbands that protested the Vietnam War

• SCOTUS rules that symbolic speech is protected by the First Amendment, and free speech is more important than “maintaining order”

obscenity

• type of unprotected speech vaguely defined by SCOTUS, though it’s generally accepted to be speech that consists of lewd, offensive sexual conduct, or other offensive actions without a clear artistic or literary purpose

prior restraint

• government censorship of materials before publication

• SCOTUS is heavily biased against this action ever since NY Times v. USA

New York Times Co. v. United States (1971)

• Nixon tries to prevent the NY Times from publishing the Pentagon Papers (revealed Johnson admin. lied to Congress about extent of US involvement in Asia) on the grounds that it threaten national security

• SCOTUS ruled that this violated 1st Amendment’s freedom of the press and established a “heavy presumption against prior restraint”

• Difference from Schenk:

  • Not about the consequences of publishing, but rather what can be published

  • Also, the Pentagon Papers did not directly threaten troops in Vietnam and therefore presented no danger

What is a limit to freedom of the press?

• Libel, or printed defamation, which citizens can seek reprisals for if it damages their reputation

• Publications that threaten the security of the US military are illegal

selective incorporation

• Judicial doctrine applying some protections of the Bill of Rights to the states, based on due process clause and privileges and immunities clause of 14th Amendment

• States don’t automatically have guaranteed rights as dictated in Bill of Rights

McDonald v. Chicago (2010)

• Chicago handgun ban challenged

• Does the 14th Amendment’s due process and privileges and immunities clause extend 2nd amendment to the states?

  • SCOTUS says yes, but didn’t set the scope of the 2nd amendment, restriction still possible

• Extended 2nd Amendment rights to all levels of government

• Previously, certain Constitutional protections (see selective incorporation) were excluded from the states and not automatically guaranteed

rule of law

• A government is based on the law and the law applies to all; no one is above it

Eight Amendment and SCOTUS

• 8th Amendment challenged by death penalty (is it cruel?)

• SCOTUS has upheld the death penalty, with minor restrictions (like no minors, mentally disabled, etc.)

• Solitary confinement and its duration is another debate

due process

the legal requirement that an individual’s rights must be respected by a state or government; protected at the federal level by the Fifth Amendment, and at the state level by the Fourteenth

Fourteenth Amendment

• explicitly guarantees certain rights against infringement by states, including citizenship, due process, and equal protection for all citizens

• before the Amendment’s 1868 adoption, these rights were protected at the Federal level by the Bill of Rights, but not explicitly at the state level

• Specific wording: “No state shall deprive” their citizens of rights without due process or deny them equal protection under the law

Incrementalism

the process of incorporating specific rights and provisions of the Bill of Rights to the state level on a case-by-case basis; compare to total incorporation

total incorporation

a doctrine that applies all the guarantees of the Bill of Rights to the state level without exception

• this doctrine has never been adopted by a Supreme Court majority opinion, although several dissenting justices have advocated for it

Gideon v. Wainwright (1963)

• Gideon denied an attorney

• SCOTUS rules that 14th amend.’s due process clause extends Sixth Amendment’s right to legal counsel to the states

  • state courts were responsible for providing a lawyer to a defendant who could not afford one

• selective incorporation

Miranda rule

• Set by Miranda v. Arizona (1966)

• Law enforcement required to communicate 5th and 6th amendment rights to people in custody

  • "Right to remain silent” etc.

• Does NOT apply to people not in custody and in “exigent circumstances” (public safety)

6th Amendment

• Right to legal counsel (attorney)

• Right to impartial jury

• Speedy and public trial

  • Defendant must know his charges

  • “speedy” is not well defined, but generally takes the form of faster trials or shorter waiting times to those who can’t afford bail and thus stuck in jail waiting for trial (case-by-case basis)

• Today, 90% of cases are settled by a plea-bargain before the trial, meaning 90% of defendants waive their right to a jury in favor of admitting to a lesser crime or lighter sentence

right to privacy

• Implied right upheld by SCOTUS in cases like Roe v. Wade

• Examples: Fourth Amendment’s prohibition of unwarranted searches of people’s homes implies a right to privacy

• Also implied by 14th Amendment’s due process clause

Thurgood Marhsall

• Pursued legal means to fight segregation

• Successfully argued in Brown v. BOE

• First African-American SCOTUS justice

Betty Friedan

• Author of The Feminine Mystique, a 1963 book that raised concerns about the status of women in society and fueled the women’s rights movement of the 1960s and 1970s

• First president of National Organization for Women

Letter from a Birmingham Jail (1963)

• MLK, 1963

• Criticized idea that civil rights protesters should wait for their demands to be met

• One has a “moral responsibility” to break unjust laws, no matter the consequences, to further the movement

• Nonviolent direct action creates the “creative tension” necessary to accomplish goals

Brown v. Board of Education of Topeka (1954)

• African-American families sue BOE due to segregated schools

• SCOTUS ruled that segregated education violated 14th amendment’s equal protection clause and was therefore unconstitutional

  • “separate but equal” is false

  • Overrules that aspect of Plessy and major blow to segregation, but it would take a few more cases for the system to be completely torn down

  • This case set the precedent needed to finally defeat segregation, though

Civil Rights Act of 1964

• Bans discrimination on the basis of race, gender, religion, etc.

• Employment Opportunity Commission to monitor and enforce the law

Title IX of of the Education Amendments of 1972

• Prevents public schools and universities from discriminating against females

Voting Rights Act of 1965

• Prevents discrimination in voting (such as literacy tests, poll taxes, and grandfather clauses)

affirmative action

• Efforts taken by universities or employers to give more opportunities to minorities

• Can take the form of quotas, “race-conscious” admission, or outreach to certain communities

• SCOTUS has deemed quotas to be unconstitutional, but has favored “race-consciousness”

what is the argument against affirmative action?

• the “colorblind” Constitution

  • The Constitution protects all races equally, there’s no need for affirmative action or other similar actions

Eminent Domain

“The right of the government to acquire private property, without the owner's consent, for public use in exchange for just compensation”