3.1 - bill of rights

• Bill of rights: first 10 amendments to Constitution, protects civil liberties (prevents government from getting too close and powerful)

  • Exists because anti-federalists didn’t want the more powerful central government to become tyrannical and squash personal liberty so they said they wouldn’t ratify without a bill of rights that gave specific liberties the government can’t intrude upon

    • George Mason: anti-federalist delegate from Virginia

    • James Madison: wrote Constitution, federalist, thought no bill of rights was needed because government wouldn’t infringe on liberties anyway and listing specific ones would mean that something gets left out

      • Agreed to add bill of rights whenever the required number of states ratified, took inspiration for it from Mason’s Virginia Declaration of Rights

  • First amendment: freedom of religion, speech, press, assembly, petition

  • Second amendment: right to bear arms

  • Third amendment: protection from quartering soldiers

  • Fourth amendment: protection against unreasonable searches and seizures

  • Fifth amendment: rights of citizens when accused of crimes

  • Sixth amendment: process when citizen is accused of a crime and explains what protections they have

  • Seventh amendment: right to trial by jury

  • Eighth amendment: protects against cruel and unusual punishment

  • Ninth amendment: if there are rights not specifically mentioned, that doesn’t mean that they’re not protected

  • Tenth amendment: reserved powers (powers not given to federal government are left to states)

  • Bill of rights only applied to federal government (not states because anti-federalists were afraid of federal infringement), would be applied to states through fourteenth amendment (incorporation, case by case)

• Civil liberties: constitutionally established freedoms/guarantees that protect citizens against arbitrary government interference

3.2 - freedom of religion

• Focus on practice, not belief (can believe anything but practicing it is what is controversial)

• Balance between majority religious beliefs and free exercise of minority religion

• Establishment clause: government can’t establish national religion

• Free exercise clause: citizens can practice religion without interference

• Separation of church and state: from Jefferson’s letter

  • Johnson amendment: if church is tax-exempt then the pastors/priests can’t endorse political candidates, battle of how thick or thin the wall between church and state should be

• Engel v. Vitale: prayer in public schools, establishment clause

  • If prayer in public schools is constitutional, NY school did non-sectarian voluntary prayer every morning, SCOTUS said it violated establishment clause (need to uphold wall of separation, uphold individual liberty)

• Wisconsin v. Yoder: amish not going to school, free exercise clause

  • Compulsory education law requiring kids to stay in school but Amish practice says to remove from school to help at home, said law violated free exercise of their religion, SCOTUS said it violated free exercise clause (if stayed in school they might be exposed to things that went against religious values, uphold individual liberty)

• Not allowed to do illegal things for religion (against individual liberty and free exercise clause)

3.3 - freedom of speech

• The bar to censor speech is very high

• Tinker v. Des Moines: upheld right to symbolic speech

  • Iowa students wanted to wear black armbands to protest Vietnam war, school said they disrupted the learning environment

  • SCOTUS agreed and said the first amendment rights were violated, schools do have obligation to keep peace but this was only fear of disruption

• Symbolic speech is not absolute though (court has ruled both in favor of and against it at different times)

• How court decides whether to favor individual liberty or social order

  • Time, place, and manner (content-neutral regulations)

    • Don’t restrict what is said, restrict when and where and how things are said

    • Sign in room vs at school function

  • Defamatory, offensive, and obscene speech

    • Defamation is almost never protected

    • Defining offensive and obscene is hard

    • Usually hard for government to silence offensive speech

  • Clear and present danger

    • Speech can be silenced if it is dangerous

    • Ex: can’t shout “FIRE” in a crowded theater

    • Came from Schenck v. US

  • Brandenburg test: made it even harder for government to censor speech

• Schenck v. US

  • Schenk made pamphlets urging people to avoid being drafted, arrested for violating espionage act

  • SCOTUS said that his arrest was constitutional and no violation of free speech had occurred because pamphlets were promoting unlawful action which created a clear and present danger to society

3.4 - freedom of press

• Having a free press is important and the freedom of press should be protected (anti-federalist George Mason)

  • Need to have a free press so that we the people know what the elected government officials are doing so we know if we should reelect them into office

• Need to balance free press to right to fair trial and national security

• Prior restraint: government tries to prevent something from even getting published

  • If government can do that then the people don’t know what the government is doing (George Mason) so the standard for it is set really high

• NY Times v. US

  • The public had mixed opinions about the Vietnam war, Pentagon Papers (president was lying to the people and Congress, showed Nixon wasn’t close to winning war when he said that he was

  • ) were leaked to NY Times and Washington Post, Nixon tried to invoke prior restraint to protect national security

  • SCOTUS said that freedom of the press was more important than “national security” (he didn’t care about national security, he just didn’t want to tarnish his reputation)

3.5 - right to bear arms

• People in favor of gun co

• ntrol argue that the right to keep and bear arms is only people that are in the militia

• Militia means less now because we have large standing army but in founding times people thought that a standing army symbolizes tyranny

• Main question of debate: does the second amendment still apply in a time where we don’t really have militias

• DC v. Heller (non-required case): Heller (police officer) wanted to take his gun home for self defense but DC laws made it really hard to do that (can have a gun but it had to be locked so it was essentially useless)

• Heller said the strict gun laws violated his second amendment rights, SCOTUS agreed with Heller saying that even though the amendment talks about the right in terms of militia it doesn’t mean that it doesn’t apply for not militia, doesn’t apply for states because DC is a federal zone

• McDonald v. Chicago: applied Heller decision to the states

• SCOTUS has consistently upheld right to gun ownership

3.6 - individual freedom vs public order (amendments 2, 4, and 8)

• Eighth amendment: protection from cruel and unusual punishment

  • Lot of debate over whether or not the death penalty violates it

    • Furman v. Georgia: death penalty is unconstitutional (mostly had to do with unequal application based on race though), individual freedom

    • Gregg v. Georgia: death penalty doesn’t violate eighth amendment because it is a preventative for extreme crimes, social order

• Second amendment: right to bear arms

  • There was a lot of discussion and debate after Sandy Hook school shooting (2012), anti-gun interest groups lobbied Congress to pass stricter gun laws and Obama issued executive orders limiting gun access, NRA started counter-lobbying by saying it was an obsession with video games (not guns)

  • SCOTUS usually rules in favor of individual gun rights (McDonald v.Chicago)

• Fourth amendment: protection from unreasonable searches and seizures, need warrant to enter someone’s home (only issued by court when there’s a well-established probable cause)

  • Debate is about digital security

  • Patriot act: after 9/11 attacks, executive order allowing government to work with cell phone carriers to search for leads on suspected terrorists through metadata (how someone communicates but not the actual conversations)

3.7 - selective incorporation

• Selective incorporation: the process by which the bill of rights is applied to the states via the 14th amendment

  • Bill of rights originally only applied to the federal government so even though the federal government can’t infringe upon certain liberties the state government could

  • The southern states can just oppress the newly freed black citizens (after Civil War) even though the federal government could not

  • 14th amendment: states are also held to the same standard as federal when it comes to infringing the rights of citizens

  • Didn’t incorporate all the bill of rights at the same time, it had to be done case by case

• Reynolds v. US (non-required): example of SCOTUS upholding a state law

  • Reynolds (mormon) had a lot of wives (important practice of mormon culture) but Utah outlawed polygamy so Reynolds argued that his religion supported his many wives and that he had the free exercise of religion

  • SCOTUS ruled against Reynolds because a state can legislate against the practice of polygamy (not belief)

• McDonald v. Chicago: example of SCOTUS incorporating bill of rights to the states and striking down a state law

  • Applied Heller v. DC ruling to the states

  • Chicago rejects all registration of handguns (very strict gun control laws) so McDonald said that was not allowed

  • SCOTUS said that citizens of states should be allowed to own handguns without interference from government

3.8 - due process and the rights of the accused (amendments 4, 5, and 6)

• Civil liberties that you have when you are being accused for a crime

• Due process of law: fifth amendment, government has to follow rules just like the people do, means that the government can’t just put people in jail just because and they have to have a fair and proper trial before they get arrested, only applied to federal government at first

  • Selective incorporation: bill of rights getting applied to states (14th amendment’s due process clause)

• Fourth amendment: protection from unreasonable searches and seizures

  • Exlusionary rule: evidence gathered without a warrant for it can’t be used in trials, incorporated to states by Mapp v. Ohio

  • Current debate is about cell phone/digital privacy

    • Patriot act: after 9/11 attacks, gave government access to metadata

    • Riley v. CA: can’t search phones without a warrant

• Fifth amendment: trial details/protections

  • Incorporated to states by Miranda v. Arizona (Miranda rights- “you have the right to remain silent…”, can’t be witness in own incrimination in both federal and state custody)

  • Public safety exception: can take action without reading Miranda rights as long as you take action in defense of public safety

• Sixth amendment: right to an attorney (in criminal cases)

  • Incorporated to states by Gideon v. Wainwright (required)

3.9 - due process and the right to privacy

• Equal protection clause (14th amendment): allows for selective incorporation to apply bill of rights to the states

• Right to privacy is not explicitly found in the bill of rights (or anywhere in the Constitution)

• Court established right to privacy as an implicit right based on amendments:

  • 1, 4, 5, 9, 14

• Pierce v. Society of sisters:

  • OR had a law saying that parents had to send their kids to a public school in their assigned district so a Catholic school got less students because of it so they said it was unconstitutional because it took education out of the hands of the parents

  • SCOTUS agreed and said the child isn’t the creature of the state, set stage for court’s interpretation of right to privacy

• Griswold v. Connecticut:

  • Married couple can’t be denied contraceptives

  • Zones of privacy (shadows of enumerated rights that are in the light)

• Roe v. Wade:

  • Roe couldn’t get an abortion because of TX’s restrictive laws so she said that her rights were infringed upon

  • SCOTUS agreed and overturned abortion laws across US, right of personal privacy includes abortion decision but at some point the fetus is a person so you can be prevented from getting an abortion by state laws

    • 1st trimester: can’t restrict

    • 2nd trimester: can restrict if it relates to the mother’s health

    • 3rd trimester: can restrict unless not having abortion threatens mother’s health

3.10 - social movements and equal protection

• Civil liberties: guaranteed to Americans via the bill of rights/constitution

• Civil rights: ensure that all Americans have equal access to civil liberties, applied through 14th amendment (due process and equal protection clauses)

  • Connect civil rights with 14th amendment

• Civil rights movement for equality of black Americans: 1950s, where all other movements got inspiration

  • 13th amendment abolished slavery (and 14th and 15th amendments also made black citizens equal to whites) but southern states still marginalized African Americans (just like they did before the war) with things like Jim Crow laws

  • Martin Luther King Jr: advocated for civil rights by non-violent protests, argued explicitly on basis of Constitution

  • Movement started a lot by 14th amendment because Jim Crow laws tried to bypass its equal protection clause so people tried to fix that

  • Letter from a Birmingham jail: required foundational document, written by MLK as a response to priests that were complaining about what he was doing

    • The clergymen thought that black people shouldn’t be out parading illegally to protest and they thought that they should wait and allow sympathetic whites to take action

    • MLK said that only white people (not faced racism) can say wait because black people know that wait means never, racist laws have to be fought against in courts and on the streets because that’s the only way to bring the attention of the white majority to them

• Women’s rights movement: 1960s-1970s

  • 19th amendment: gave women the right to vote, women were still marginalized after its passing though

    • Ex: all male juries, pay gap, etc

  • National organization for women (NOW): founded to correct some of the wrongs

    • Emerged because of a book called The Feminine Mystique (by Betty Friedan): exposed drudgery/hopelessness that came with constant submission to predetermined societal roles (mothers, (house)wives, job was to please husband)

  • Civil rights act of 1964: banned discrimination based on gender, weakly enforced

  • Women’s right movement wanted to pass equal rights amendment: equal rights can’t be denied based on gender, fell short of required number of states

  • Educational amendment act (title IX): guaranteed that women would have same opportunities as men in educational institutions that received federal funding

• LGBTQ community rights: 1970s-1980s

  • Homosexuality was still thought of as an illness and many states had laws discriminating against them

  • “Don’t ask, don’t tell policy”: Clinton promised to undo the fact that gay people couldn’t be in the military in campaign speeches, gay people can be in military as long as they don’t tell because no one would ask

    • Obama undid it by pushing Congress to pass a law saying that people of any sexual orientation can be in the military

• Right to life (opposed abortion): 1970s

  • Came after Roe v. Wade decision

  • Melded with Republican party by 1980 (fetus is a human being right after conception so it has equal protection of the laws)

  • Hatch amendment: restrict abortion, more restrictive abortion law (state or federal) would be the one that was binding/followed

• Equal protection clause supports lots of civil rights movements

3.11/3.12 - balancing majority and minority rights

• Government sometimes responds in favor of civil rights movements and sometimes against

• Plessy v. Ferguson: racial segregation was constitutional as long as the different facilities were equal (separate but equal doctrine) - restrict civil rights of minority

  • Activists said that the segregation of the south was not constitutional (especially in schools)

  • Black schools were much less advanced and funded than white schools

    • Their separation made blacks feel second class

• Brown v. Board of Education: school system segregation is unconstitutional - upholding minority rights

  • Overturned separate but equal

  • Racial separation is unequal (equal protection clause)

• Civil rights act (1964): illegalized discrimination based on race

  • All segregated facilities (not covered by Brown decision) had to be integrated

• Voting rights act (1965): illegalized discrimination against voters

  • Poll taxes/literacy tests that you had to go through in order to vote (to keep black Americans from voting because they were usually poor and illiterate)

  • 24th amendment: outlawed poll taxes

• Education amendments act (title IX): equality for women in school (and other federally funded programs)

  • Civil rights act (title XI) banned discrimination based on race, color, or national origin (no mention of gender) so women thought that they needed protection too

    • Title IX filled that gap

  • Led to rise of women’s sports in college

• Majority-minority districts: a district (based on census) where the majority of voters is a minority group

  • Districts are redrawn to make sure that everyone’s vote is equal and that districts can’t be drawn to dilute racial minority’s voting power based on voting rights act (Thornburg v. Gingles)

  • Shaw v. Reno: majority-minority districts based on race (racial gerrymandering) are unconstitutional, in favor of majority rights

3.13 - affirmative action

• Affirmative action: policies that favor groups that are usually discriminated against

  • Roots in Kennedy’s executive order saying that people need to treat all employees equally (actively seek minority employees)

  • Some white people think it’s anti-white discrimination

• Is it constitutional to have minority quotas in institutions? - no

• Is the Constitution colorblind? - yes(?)

• Some say the Constitution doesn’t mention race so it shouldn’t be invoked in racial questions

• Others say the Constitution forbids racial classifications only when they harm certain races but doesn’t forbid them if they help historically discriminated races

• De jure segregation: racial segregation by law, prohibited by Brown ruling

  • Ex: Jim Crow laws

• De facto segregation: racial segregation by personal choice, harder to consolidate

  • Ex: black people moving into northern cities, white people moving to suburbs

• SCOTUS generally rules against affirmative action

  • Regents v. Bakke: mandatory quotas are unconstitutional

    • University of CA med school reserved 16 of 100 seats for minorities and women (those groups could have lower qualifications and still beat white applicants that may be more qualified), Bakke (a white applicant) was denied admission and sued the school (violated 14th amendment because he was denied admission based on race alone)

    • SCOTUS said that mandatory quotas were unconstitutional (not affirmative action as a whole, race can be a factor but not the only factor)

  • Richie v. DeStefano: another example of SCOTUS ruling that the Constitution is colorblind

    • Firefighters took exam to be promoted in their department but none of the black ones scored well enough to be promoted so the city threw out all the scores and promoted no one so the high scoring ones sued

    • SCOTUS said that this case was not of de jure segregation and that the xam was a good measure of knowledge