AP US Government and Politics 2025
Unit One: Foundations of American Democracy
Big Ideas
Constitutionalism- The US Constitution creates a system for checks and balances between branches, dividing power between the federal and state governments to balance majority rule with minority rights.
Liberty and Order- Government laws and policies balancing order and liberty are based on the U.S. Constitution and have been interpreted over time.
Civic Participation in a Representative Democracy- Popular sovereignty, individualism, and republicanism are important considerations of US laws and policy, making the assumption that citizens will participate and engage in policies and politics.
Compelling Policy-Making Interests- Multiple institutions and actors interact to produce and implement possible policies.
Methods of Political Analysis- Using various types of analyses, political scientists measure how US political behavior, attitudes, and ideologies are shaped by a number of factors over time.
Declaration of Independence- Document formally announcing the American colonies’ separation from Great Britain, establishing the colonies as independent states.
Articles of Confederation- The first established document of the US government. Created a sovereign, national government and limited the rights of the states to conduct their own diplomacy and foreign policy.
Shay’s Rebellion- Farmers’ rebellion against the government over taxes, which is the reason officials began to dislike the AOC.
Connecticut/Great Compromise- compromise to have a bicameral legislature composed of the House of Representatives and the Senate.
Electoral college- Elects president, Congress elects president based on who they represent. Gives smaller states more power.
Bill of Rights- necessary to ratify the Constitution.
3/5s Compromise- Compromise that enslaved people would count as 3/5th of a person for population counts for representation.
Slave Trade Clause- Article 1, Section 9 of the Constitution stated that Congress could not prohibit the importation of people before 1808.
Fugitive Slave Clause- Part of the Constitution that required escaped enslaved people, who fled to another state, to be returned to their owners.
Amendment Process- 2/3s of both houses of Congress shall deem it necessary can propose amendments to the Constitution, or if 2/3 of the states call a convention to propose a change.
Contemporary issues- surveillance/privacy rights (US patriot act, civil liberties, Education)
14th Amendment- Birthright citizenship and equal protection under the law.
McCulloch v. Maryland (1819)- the court decided that the federal government had the right and power to set up a federal bank, and the states did not have the power to tax the federal government.
U.S. v Lopez (1995)- Possession of a handgun near a school is not an economic activity and doesn’t have a substantial effect on interstate commerce, and therefore cannot be regulated by Congress.
Vocabulary
Constitutionalism- Commitment to a system of government.
Popular Sovereignty- People get to vote on what they want, most popular thing wins.
Natural Rights- People are born with certain rights that are given to them by their creator. Life, Liberty, and Property- Hobbs
Social Contract- an agreement between the people and the government to give up some rights for protection, etc. People can overthrow the government if it is not serving them well because of this.
Limited Government- Government does not have full power and can only make decisions on certain issues. Inspired by the Enlightenment
Rule of Law- Restriction of the arbitrary (whim) exercise of power by subordinating (treating lesser) it to well-defined and established laws.
Republicanism- A System that replaces or accompanies inherited rule. Emphasis on liberty and rejects corruption. People elect leaders to represent them and create laws in the public interest. The
Grand Committee- A group of delegates, one from each state present at the constitutional convention, tasked with finding a solution to the representation dispute between large and small states.
Federalists- A person who advocates or supports a system of government in which states unite under central authority.
Anti-Federalists- People who opposed the ratification of the US Constitution, fearing it created a central government with too much power and threatened states’ rights and individual freedoms.
Confederal system of government- A political union of sovereign states that retain significant authority, granting minimal power to a weak central government.
Federal system of government- A System of government that divides and shares powers between central and regional governments.
Unitary system of government- A state governed as a single entity in which the central government is the supreme authority.
Checks and balances- The ability of each government branch to respond to the actions of the other branches, and change the acts of other branches.
Separation of powers- division of government responsibilities into distinct branches to limit any one branch from having too much power.
Access points- Any point in the government or policy-making process where citizens, interest groups, and other stakeholders can influence policy.
Impeachment- Process of bringing charges against a government official for wrongdoing. A trial may be held, and an official may be removed from office.
Federalist 51 Madison- The Structure of the government must furnish the proper checks and balances between the different departments.
Federalism- A system of government in which the same territory is controlled by two levels of government.
Exclusive Powers- Powers wielded by either the federal or state governments.
Expressed Powers- Powers of the national government explicitly listed in the Constitution
Supremacy Clause- designates the Constitution as the “supreme law of the land”. When there is a conflict between a state and the Constitution, the Constitution wins.
Reserved Powers- Powers reserved for the states, which allow states to legislate on matters such as education, healthcare, and transportation.
Concurrent Powers- Powers shared by both the federal and state governments.
Federal Mandates- requirements imposed by the federal government on state or local governments to perform specific actions tied to funding.
Federal Revenue Sharing- the dispensing of a portion of federal tax revenue to state and local governments to assist in meeting their monetary needs.
Federal Block Grants- A grant from the central government that a local authority can allocate to a wide range of services.
Federal Categorical Grants- money granted by the federal government to state and local governments with strict limitations on how it is to be spent.
Commerce Clause- refers to Article 1, Section 8, Clause 3 of the Constitution, to gives Congress the power to regulate commerce with foreign nations, among the states, and with Native tribes.
Necessary and Proper Clause- Congressional power encompasses all implied and incidental powers that are conducive to the beneficial exercise of an enumerated power.
Participatory Democracy- Citizens are active in and participate in decision-making.
Pluralist Democracy- Recognizes diversity, allowing competition and negotiation among groups to influence policymaking and government.
Elite Democracy- privileged control, and the majority of the citizens have limited authority.
Foundational Documents
Declaration of Independence
Outlined the reasons for the official break from British rule, emphasizing the principles of individual rights and government by consent. It is inspired by Enlightenment thinkers, particularly John Locke, who argued for natural rights and the social contract.
Three sections
preamble- Justification for leaving Britain. The purpose was to rally troops and get allies. People have natural rights, and it is the government that is supposed to protect those rights with the consent of the people (social contract, personal sovereignty). People can revolt and rebuild the government if they are being tyrannical.
List of grievances against King George III
Imposing taxes without consent.
Denying the right to trial by jury.
Dissolving colonial legislatures.
Maintaining a standing army in peacetime without the consent of the governed.
Quartering troops in private homes.
Restricting trade and commerce.
resolution for independence
Articles of Confederation
First constitution to create confederacy (central power) but allowed states to retain power, freedom, and independance and gave states all power not explicitly stated. it only had the legsilative branch as well. each state had one vote. needed central government for foreign trade. states in charge of creatintg thier own armies. could only fix issues between states and needed super majority to declare war or alter aoc unless all states agreed. many flaws but was recreated because it suckes.
No power over taxes, and had to request money from the states.
No federal court
Could not regulate trade
No executive branch
All states must agree to amend
Representation was equal among all states.
States had to raise their own army.
Could not solve disputes between states
States have sovereignty
9/13 states had to agree to pass laws
Constitution
recreated government with republican democracy solving issues of aoc.
Collected taxes without assistance from the states.
Supreme Court and lower courts were created.
Has the authority to regulate trade
Executive board created
president
vice president
select cabinet
Amendments happen when 2/3 of Congress or at a constitutional convention, and 2/3 states agree.
Bicameral legislator for representation.
Senate -2 per state
House of Representatives- based on population
Congress can declare war and provide armies.
Can regulate interstate commerce
Has power over states, but states can go against it as well.
If it is not explicitly stated to be a federal power, it goes to the states.
For a law to be passed, it must be passed by the Senate, the House of Representatives, and the president.
Articles
Introduction
When the country was created, the Founding Fathers created the Articles of Confederation, which unfortunately did not work. The Articles of Confederation divided the country instead of unifying it because it gave the majority of the power to the states and not the federal government, causing issues between the states, and did not allow the country to adapt to the needs of the people.. The Federalists and Antifederalists had to agree on how to unify the country, fixing the issues the Articles of Confederation created or avoided from a lack of national government. The Constitutional Convention was held and created the Constitution. The Constitution created a strong central government, allowing the United States to be able to unite.
Article 1
Article 1 discusses how Congress is supposed to be led. The regulations for both the House of Representatives and the Senate are outlined in Article 1, as well as their respective duties and responsibilities. As Congress, they are required to meet as a whole once a year, typically the first Monday of December unless said otherwise. Congress also participates in creating and passing laws, and even if the president vetoes a bill, it can be overridden. All votes for bills must be recorded, saying who voted yes or no for each thing. Congress has the power to collect taxes and regulate money, but it cannot tax native american tribes. With the taxes collected, they will establish roads, post offices, and raise and support armies. Congress will declare war and punish piracies and felonies. Congress will be paid by the treasury of the United States. There are no titles of nobility, and they must not take any money from the treasury; and vendors would not have to pay taxes for leaving their state. States cannot implement tariffs or go to war without the consent of Congress. Article 1 contributes to the operation of the government by deciding how the legislative branch works and how people become part of Congress.
Article 2
Article 2 discusses the executive branch, explaining how a person can become president and the powers they hold. A president's term lasts four years and is elected with their vice president. Each state will put people as electors who are not senators or representatives holding office or profiting from the United States, who will vote for president. The person with the most votes is the president. If the votes by the Electoral College are equal, the House of Representatives can elect a president. If there is no majority, then the states will each have one vote and pick from the top five candidates. Only natural-born citizens of the United States can be president, and they must be over thirty-five years old, as well as have been residents for fourteen years. If the president and vice president are unable to perform their duties, Congress can choose an acting president until a new president is elected. Presidents cannot change their pay during their term. Before entering office, they must take an oath to perform their duties to the best of their abilities. Presidents are the Commander-in-Chief of the army and have the power to grant reprieves and pardons except in the case of impeachment. Presidents do not have unlimited power and must have permission from Congress to make treaties and declare war. The President can appoint people to vacancies in the Senate. The president has to update Congress on the state of the union, especially in extreme times, and make sure laws are faithfully executed. The president and vice president can be impeached for conviction of treason, bribery, or other high crimes. This is important because the executive branch is a main part of the government.
Article 3
Article 3 discusses the responsibilities of the judicial branch. The Judicial branch consists of the Supreme Court and inferior courts. Judges hold their offices during good behavior and shall be paid for contributions made during their time in office. Judges can have lifelong terms unless they are impeached. Their power extends to cases in law and equity under the Constitution. They shall deal with controversies between the US, States, and citizens against other citizens or other states. The Supreme Court has jurisdiction over both law and fact. All trials except for impeachment will have a jury, and the trial will be in the state where the crime was committed, but when not committed in a state, it should be where Congress decides. Congress can declare punishments for treason, but not attainder of treason. The judicial branch is important because it ensures that the laws that the other branches create are followed.
Article 4
Article 4 guarantees the states' right to their own power and having their own government, recognizing laws, getting rid of discrimination based on states, and having criminals serve punishment in the state where the crime was committed. Congress can make general laws, but the states choose how they act based on that. Citizens of states are entitled to the privileges of citizens in several states. If a person commits a crime and goes to another state must be returned to the state where the crime was committed and cannot be released with probation or community service. New states can be added to the union, but they must not be formed where another state already exists without consent from the state concerned. Congress has the power to make rules and regulations on land and property in the country. The US guarantees states in the union to have a republican form of government and protects them from invasion and domestic violence. Article 4 guarantees State rights and state power, which was very important to the antifederalists.
Article 5
Article 5 is the process of amending the Constitution and adding or changing an amendment. Any amendment to be put in the Constitution must be proposed and ratified. Any combination of proposal and ratification will successfully be added to the constitution. Four ways to amend the Constitution. It can be proposed by a ⅔ vote in both houses of Congress or 2/3s of the states calling a convention. Amendments can be ratified by a ¾ vote of state legislatures or a ¾ vote of state conventions. This allows for the majority of Congress to agree on amendments and allows them to add amendments whenever they believe it is necessary. This allows for the constitution to adapt as things happen, making it a living document.
Article 6
Article 6 demonstrates that the federal laws and the Constitution have the overall say over the land. This includes treaties and authority over the country, and judges in every state must be bound by the Constitution. Debt from the Confederation is absorbed by the federal government, and lawmakers are required to take an oath to support the Constitution. The founding fathers added that to the Constitution so the states would not argue who had to pay the debts still since it would be the federal government that dealt with the debts and could collect taxes from the people to pay those debts. The judicial branch must be bound by the Constitution because there needs to be some way of keeping things fair across the nation. That includes never requiring religion to be part of the government or testing officials on religion.
Article 7
Article 7 states that ratification requires nine states to agree and the unanimous consent of the states. It continues to mention all of the government officials who agreed to the ratification of the Constitution because the Articles of Confederation needed to be ratified. It is important because without Article 7, none of the articles of the Constitution would be upheld. That is because, without agreement to the Constitution, the United States of America would still be using the Articles of Confederation. Ratification allows the national government to have more power and be able to effectively run the country.
Amendments
Brutus 1
Brutus 1: A key anti-federalist essay that argues against the ratification of the Constitution, emphasizing the dangers of a strong national government and advocating for the protection of individual liberties. Can a federalist government be good for the us is what is being asked, or if they should give more power to the states. A necesary and proper clause is needed, and supremusy clauses are issues with him, so that is why the reserved rights clause is created. Taxes is also in issue with the federal government taking taxes from people because the states need to take taxes as well. he also mentions the same for courts because of being at the state and federal level. he also says a small territory is better because it will be too hard to deal with nations as spread out. After all, representatives need to know their people but cant if they are too spread out.
Federalist papers
Federalist Papers: A series of 85 articles written by Alexander Hamilton, James Madison, and John Jay that defend the principles of the Constitution and advocate for a strong federal government to ensure stability and protect the rights of citizens.
Federalist No. 10 (James Madison): Addresses the problem of factions (number of citizens united and actuated by some common impulse of passion or of interest who impose their beliefs on others), arguing that a large republic with a representative government is the best way to control the effects of factions, as it provides a greater diversity of interests and makes it more difficult for any single faction to dominate. Stopping factions would be terrible and destroy liberty, so we must allow them and limit their powers. Need a republic where we have representatives. Fractional power will be limited as we grow because it will not grow as much, and others will form as well, so they will be competing, meaning they will have to compromise to help the interests of the people.
Federalist No. 51 (James Madison): Explains the system of checks and balances and separation of powers within the proposed government, emphasizing how these structural features are designed to prevent any one branch from becoming too powerful and to protect liberty by enabling each branch to resist encroachments by others.
Unit 1: Foundations of American Democracy
Enlightenment inspired
Natural rights- people born with certain rights that are given
explain how democratic ideals are reflected in the Constitution and the Declaration of Independence
explain how models of representative democracy are visible across American political institutions, events, policies, and debates
compare and contrast Federalist and Anti-Federalist views on central government and democracy, as reflected in U.S. foundational documents
explain the relationship between parts of the Articles of Confederation and the debate over centralized government vs. individual state power
explain the long-term effects of the Constitutional Convention on the development of the American constitutional system
define and explain the implication of separation of powers and checks and balances
explain how societal needs affect the distribution of power between national and state governments, and explain how balance of power has been interpreted over time
explain how the distribution of power between the three branches of government and the national and state governments can impact policymaking
Unit 2: Interactions Among Branches of Government
describe the different structures, powers, and functions of each house of Congress, as well as how they affect the policymaking process
explain how congressional behavior is influenced by election processes, partisanship, and divided government
explain how the president can implement a policy agenda, as well as how the president’s agenda can create tension and confrontations with Congress
explain how presidents have interpreted and justified their use of formal and informal powers
explain how technology changed the president’s relationship with the national constituency and the other branches of government
explain the principle and process of judicial review, and describe how the exercise of judicial review (as well as life tenure) can lead to debate about the legitimacy of the Supreme Court’s power
explain how other branches of government can limit the power of the Supreme Court
explain how the bureaucracy carries out the responsibilities of the federal government
explain how the federal bureaucracy uses discretionary authority for making and implementing rules
explain how Congress uses oversight power over the executive branch, as well as how the president ensures that the executive branch carries out its responsibilities
explain the extent to which governmental branches can hold the bureaucracy accountable, particularly when there are competing interests between Congress, the president, and the federal courts
Unit 3
• To what extent do the U.S Constitution and its amendments protect against undue government infringement on
essential liberties and from invidious discrimination?
• How have U.S. Supreme Court rulings defined civil liberties and civil rights?
BIG IDEA: Liberty and Order
3.1 Explain how the U.S. Constitution protects individual liberties and rights.
“Give me Liberty or give me death,” was a battle cry of the American Revolution to signal opposition to a tyrannical
government. The Constitution created a stronger central government to maintain security in times of disorder and to
better manage uncertainties in a large, multistate economy. At the time of the ratification of the Constitution’s stronger
central (national, federal) government, some demanded built-in safeguards to limit government’s tendency to threaten
inalienable individual liberties. A critical compromise during this ratification process was when key Federalists agreed
that a Bill of Rights, similar to what many states had already adopted, would be debated in the first Congress under the
Constitution. These Federalists had been arguing that the original Constitution contained enough safeguards against
abusive government due to checks and balances and the supposed restriction that Congress could only expand its
powers that were “necessary and proper.”
The first amendments to the Constitution were proposed by the first Congress in 1789 based on the arguments by anti-
Federalists who feared potential governmental abuses under the Constitution. The first ten amendments were ratified by
at least 3⁄4 of the states by 1791. These first ten amendments are collectively known as The Bill of Rights and helped
make the U.S. Constitution an experiment in self-government with written promises of liberties. These promised
liberties connected back to the Declaration of Independence and its proclamation that government must protect the
inalienable rights of “Life, Liberty and the pursuit of Happiness”. How those liberties and rights have been interpreted
over time and in different periods of U.S. history have changed widely. The Constitutional system leans heavily on the
federal courts and especially the U.S. Supreme Court to help mediate these changing interpretations. Provisions of the
Constitution’s Bill of Rights are continually being interpreted to balance the power of government and the civil liberties
of individuals.
Civil liberties protect individual freedoms from government abuse. Among the protected civil liberties of the Bill of
Rights are rights to be protected from abusive law enforcement methods such as invasive searches and forced
confessions and the right to protect property from unfair governmental seizure “without just compensation.” Several of
these liberties are also political rights such as the protections of the rights to assemble, to speak in opposition to the
government, and to petition the government for change. Civil liberties are not mere platitudes or empty promises. As
stated in the AP US Government Course Description, “Civil liberties are constitutionally established guarantees and
freedoms that protect citizens, opinions, and property against arbitrary government interference.” Civil liberties form
the bedrock of civil society and individual protections from governmental abuse.
The Constitution’s Bill of Rights include the following:
Amendment One: 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.
Amendment Two: A well regulated militia, being necessary to the security of a free state, the right of the
people to keep and bear arms, shall not be infringed.
Amendment Three: No soldier shall, in time of peace be quartered in any house, without the consent of the
owner, nor in time of war, but in a manner to be prescribed by law.
Amendment Four: The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
Amendment Five: 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 Six: 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.
Amendment Seven: In suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any
court of the United States, than according to the rules of the common law.
Amendment Eight: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Amendment Nine: The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.
Amendment Ten: The powers not delegated to the United States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively, or to the people.
Provisions of the Constitution’s Bill of Rights are continually being interpreted to balance the power of government and
individuals’ civil liberties. As legislative, executive, and judicial actions change, so do their effect on individual
liberties and rights. Legislatures interpret civil liberties through the policy-making process. Legislatures, through their
oversight powers and budget authority, can strengthen and weaken civil liberties for individuals. Executive power
enables the president to enforce laws through various governmental agencies that can strengthen and weaken rights and
liberties. And the courts are constantly interpreting liberties and rights through contested disputes.
Protecting these rights and liberties begins by knowing them. Thus, the content of Unit 3, is intended for students to
master their understanding of these rights and liberties in order to safeguard these rights and liberties.
Civil liberties: protection of individuals from abuse by the government. Civil liberties include the rights to speech, petition,
assembly, religious practice, gun ownership, fair trials, due process, and the protection against government sponsored religion,
unreasonable searches, and cruel and excessive punishments. Civil liberties originate from inalienable natural rights referred to in
the Declaration of Independence that are shared equally by each and every individual citizen. Civil liberties are codified in the U.S.
Constitution with our national Bill of Rights and similar statements found in all fifty state constitutions.
Political rights: protections to participate in the political process of shaping governmental policies. Political rights include the
rights to assemble, to speak in opposition to the government, and to petition the government for change.
Civil rights: protection of groups from discrimination by governmental and private actions. Civil rights protections can include
employment, voting, and housing protections based on gender, race, ethnicity, national origin, religion, and age. Civil rights
originate in the Declaration of Independence’s reference that all “are created equal” and were codified in the U.S. Constitution with
the Equal Protection Clause of the 14th Amendment.
Bill of Rights: first 10 Amendments of the Constitution that codify civil liberties that protect individuals from abuse by the
government. Among the civil liberties protected in the Bill of Rights include the rights to speech, petition, assembly, religious
practice, gun ownership, fair trials, due process, and the protection against government sponsored religion, unreasonable searches,
and cruel and excessive punishments. The 10th Amendment also guarantees powers to state governments with the Reserved Powers
Clause.
3.2 First Amendment: Freedom of Religion
The Bill of Rights contains many diverse protections. The Bill of Rights guarantees civil liberties which are protections
of individuals from government abuses. Some of these civil liberty protections are political rights like free speech, free
assembly, free press, and the right to petition (1st). Some of these Bill of Rights protections are due process rights that
protect individuals from the government’s law enforcement abuses such as forced interrogations (5th), trials without
assistance from a defense attorney (6th), and punishments that are cruel and unusual (8th). And the Reserved Powers
Clause of the 10th Amendment protects some rights of state governments. Some Supreme Court cases covered in Unit 3
also establish various privacy rights from the Bill of Rights such as the right for women to access abortion procedures.
In a number of other Supreme Court cases covered in this unit, students will learn about the ongoing role of the courts
to define the meaning of these rights while balancing individual freedom with laws and enforcement procedures to
establish a degree of public order and safety. The use of the Bill of Rights to protect and not to protect the rights of
political minorities is also evident in landmark Supreme Court case decisions that clarify (and sometimes reverses a
prior judicial precedent) an area of legal confusion.
The First Amendment’s freedoms of religion might provide the clearest example of the courts’ attempts to balance the
protection of minority rights with majority rule.
The freedoms of religion is split into two separate protections:
“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof”
The Establishment Clause guards against the creation of a government (state) sponsored religion such as the Church of
England that benefitted from tax revenues from the British government. While there are many examples of the
government interacting with religion (“In God We Trust” printed on U.S. currency would be one example), a series of
Supreme Court cases has navigated when religion (church) has to be separate from the state (government) and how the
government can sometimes have a relationship with religion and religious organizations.
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A landmark Establishment Clause case was Engel v. Vitale (1962). Engel was a case about a state educational board
that allowed for public school students to publicly recite prayers. The Court ruled that public school’s sponsorship of
prayer and religious activities violate First Amendment’s establishment clause.
In the Court’s case of Lemon v. Kurtzman (1971), the Supreme Court’s decision tried to establish clear rules regarding
cooperation between church (religion) and the state (government). These rules became known at the Lemon test. For a
government’s interaction with religion to be protected from Establishment Clause restrictions:
(1) The government’s action must have a secular (non-religious) purpose; (2) The government’s
action must not have the primary effect of either advancing or inhibiting religion; (3) The
government’s action must not result in an “excessive entanglement” with religion.
Public displays of religious art, symbols, and documents have consistently required the courts to determine whether the
objects are promoting religion (unconstitutional) or some other non-religious purpose (constitutional).
Public schools have been part of many court cases that defined the constitutionality of the relationship between
government and religion. Courts have ruled that public schools that have social clubs must allow religious clubs to meet
as long as the religious clubs are not school sponsored with public funds. But in 2022, a Supreme Court majority ruled
to “abandon” the Lemon test as a legal method to balance the separation between governmental action and endorsement
of religion. SCOTUS ruled this way in the case of Kennedy v. Bremerton School District (2022) provided a different
interpretation of the First Amendment’s Free Exercise Clause, the Establishment Clause, and the separation of church
and state than the Lemon test might have suggested. The case involved a public school’s football coach (Kennedy) who
was directed by school administrators of Bremerton (WA) School District to not engage in personal prayer with players
and students on the field after the completion of the game. The majority ruled that “historical practices and
understandings” should be considered in future cases about governmental attempts to suppress religious expressions.
Private schools have been the subject of Establishment Clause cases when legal questions arise as to whether the First
Amendment allows a private citizen a choice to use public funds for an education voucher at a private, religious school.
(SCOTUS narrowly approved this in a 2002 case.) In 2020, a SCOTUS ruling said teachers at private religious schools
can be considered as religious ministers and are not guaranteed protection of federal employment laws that protect ill
and older employees from discrimination.
The Free Exercise Clause is the other part of the First Amendment that protects religious liberties. In general, the
government generally protects the right to religious worship. But there are limits when that worship violates laws and
government regulations. The protection of religious liberties often depends on whether a government policy that
restricts a religious group’s exercise is neutral toward religion and is intended for a “compelling governmental interest.”
The Court faced a legal question about whether practitioners of ingesting an illegal hallucinogenic drug as part of
Native American religious ritual could face legal consequences for violating a state law. SCOTUS ruled that religious
practices could be legally penalized by state laws that are neutral toward religious activity and when enforcing such
laws is in the public’s interest. But, in a different case, religious owners of a private company (Hobby Lobby) were not
required to carry the contraception coverage mandated by the Affordable Healthcare Act because the company’s
owners held religious beliefs against the use of contraception. When some states banned large gatherings of people in
response to the covid-19 pandemic in 2020, SCOTUS did rule that religious liberty protections prohibited state
governments from restricting attendance at churches if the state did not restrict capacity of people in public
transportation hubs. In a 2023 SCOTUS case that contrasted to a more recent trend of protecting LGBT rights, a 6-3
U.S. Supreme Court majority ruled in a 2023 case that Colorado’s state public accommodation law violated the First
Amendment right to free expression for a website designer who did not want to create a wedding website for same-sex
couples in violation of her religious beliefs.
In the case Wisconsin v. Yoder (1972), the state government tried to require all students to attend public school until 16
with no exceptions for religious groups. The Court held that the state law forcing Amish students to attend school past
8th grade violates the First Amendment’s Free Exercise Clause. In this case, a minority group of Amish parents and
their right to “free exercise” triumphed over the wishes of a larger community.
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Establishment Clause: Part of the First Amendment’s religious protections stating that government cannot make laws “respecting
the establishment of religion.” This prevents government from creating an official religion as well as favoring one religion over
another or acting with bias against religions. The Establishment Clause is commonly linked with legal cases pertaining to the
separation of church and state (religion and government.)
Separation of Church and State: Commonly linked with the First Amendment’s Establishment that prevents excessive
cooperation between governmental actions and religious groups. This phrase was first used by Thomas Jefferson when describing
the Establishment Clause as “building a wall of separation between Church & State.” This principal was first used in a SCOTUS
case Everson v. Board of Ed (1947) and later in Engle v. Vitale (1962) in which SCOTUS ruled that school sponsorship of prayer
and religious activities violate First Amendment’s establishment clause.
Engle v. Vitale (1962): Background fact A state educational board allowed for public-school students to publicly recite prayers.
SCOTUS Holding (Decision) School sponsorship of prayer and religious activities violate First Amendment’s establishment clause.
The SCOTUS decision in Kennedy v. Bremerton School District (2022) provided a different interpretation of the First
Amendment’s Free Exercise Clause, the Establishment Clause, and the separation of church and state. A 6-3 split of SCOTUS held
the coach of a public school’s football team had a First Amendment Free Exercise right to pray during postgame events.
Free Exercise Clause: Part of the First Amendment’s religious protections stating that government cannot make laws “prohibiting
the free exercise” of religion. This prevents government from inhibiting religious practices unless those religious practices
contradict laws that are not directed specifically toward religious practice and that are enforced as a compelling governmental
interest. SCOTUS upheld the religious liberty protections of Amish families in the case of Wisconsin v. Yoder (1972) in which
SCOTUS ruled that forcing Amish students to attend school past 8th grade violates the First Amendment’s Free Exercise clause.
Wisconsin v. Yoder (1972): Background fact The state government tried to require all students to attend school until 16 with no
exceptions for religious groups. SCOTUS Holding (Decision) forcing Amish students to attend school past 8th grade violates the
First Amendment’s Free Exercise clause.
3.3 First Amendment: Freedom of Speech
The First Amendment contains our most cherished rights. The Declaration of Independence infers that these are among
the “inalienable” natural rights that were bestowed to humans and that government must protect. In addition to religious
liberties discussed in 3.2, the First Amendment protects civil liberties that are among the most fundamental political
rights in a democracy. While strong democracies feature fair and competitive elections, every democracy also needs to
allow its population to assemble in groups that are independent from government sponsorship and supervision. These
civil society groups allow people to speak. To speak about their lives and complain about problems in their lives and
the role government might play in these complaints. Sometimes these complaints are published in the newspaper press,
journals, books, and even in community social media groups. When these complaints are about government policy,
people in democracies are allowed to petition their government to make changes and try to hold their officials
accountable if changes are not made satisfactorily.
These are the fundamental political rights that the First Amendment guarantees to protect as civil liberties. The rights to
Free Assembly, Free Speech, Free Press, and Free Petition. Without the protection of these rights from government
abuse, the democratic culture of the United States withers.
The federal judiciary often is called upon to serve as the guardian of these rights. Courts often give these political rights
from the First Amendment a preferred position. This means that when a legal case involves a governmental attempt to
restrict these rights, courts are to assume that the government rationale must pass a very high bar test for the
government to be able to limit freedoms that Jefferson declared as “inalienable.” The courts can be particularly
reluctant to allow political majorities to interfere with these rights that can be used by political minorities to pushback
against oppression.
But these freedoms are not absolute. Courts have allowed the government to restrict these liberties on numerous
occasions in attempting to balance freedoms with government’s tendency to prefer order and security.
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Obscene speech, including child pornography, have no First Amendment protections and can be prosecuted.
Defamatory falsehoods (libel for written speech and slander for spoken speech) have no protection and the producers of
defamations can be sued for monetary damages. Copyright and trademark infringements as well as false advertising can
also be punished and restricted. And words used to threaten or to plot and commit crimes can be punished. In the
balance of liberty and order, courts consistently side with order and the restriction and punishment of these types of
speech.
Courts might have a preferred position to protect political speech, but the Supreme Court has also made landmark
decisions restricting political speech in some cases. In Schenck v. U.S. (1919), the federal government punished the
speech of a peace activist advocating for men to avoid the draft during the first World War. The Court’s majority held
that speech creating “clear and present danger” is not protected by the First Amendment. This exemplified the
boundaries of free speech as the Court majority held that speech “about the substantive evils that Congress has a right
to prevent” is not protected by the First Amendment and can be punished. Justice Oliver Wendell Holmes famously
stated in his opinion, “...Free speech would not protect a man in falsely shouting fire in a theater.” The ruling precedent
of this case established that speech can be limited if the government deems it to be dangerous.
In subsequent cases during the 20th century, the Court narrowed the scope of the government’s ability to define
dangerous speech. The Court currently allows the government to restrict speech that produces or is likely to incite
“imminent lawless action.” Thus, the Court still preserves the government’s ability to protect law-abiding order but in
fewer scenarios where the government can punish and restrict speech.
The Court is more comfortable with governments regulating time, place, and manner restrictions. Time, place, and
manner restrictions allow a local government to permit controversial public speech but in a place and time where law
enforcement can monitor crowds to prevent violence and disorder. The balance between liberty and order.
The Court has also extended free speech protections to symbolic speech and speech by public school students. In the
case Tinker v. Des Moines (1969), a school district restricted student symbolic speech when students were punished for
wearing black arm bands to school to protest against US war policies in Vietnam. The Court majority ruled that public
school students had First Amendment free expression rights to wear black armbands in school to protest the Vietnam
War.
However, in most subsequent Supreme Court case involving restrictions of speech by public school students, the Court
has ruled in favor of school restrictions of student speech by deciding in favor of administrators punishing disruptive
speech and trying to establish order to maintain the “fundamental values of public school education” (Bethel v. Fraser,
1986). This Supreme Court precedent of ruling in favor of government restrictions on student speech since Tinker also
includes punishment of student speech off of a school campus. The Court said this type of speech can be punished
when an administrator claims the off-campus speech disrupts the educational mission of a school (Morse v. Frederick,
2007). An exception to this trend of allowing the punishment of speech by public school students occurred in 2021
when SCOTUS ruled that vulgar online speech made by a cheerleader cut from her varsity team when the student was
away from school could not be punished by school authorities as if it were student speech at school.
In public, symbolic speech of burning an American flag in protest was protected by the Supreme Court in the case of
Texas v. Johnson (1989). In this case, the Court ruled that political speech cannot be restricted by the government
“simply because society finds the idea itself offensive or disagreeable.” In symbolic speech cases involving White
supremacist groups burning crosses, the Court has ruled that states can restrict groups using cross burnings with the
“intent to intimidate.”
While the Court prefers to protect the political rights of the First Amendment, these civil liberties are not absolute when
the Court also balances these freedoms with government attempts to establish order and security.
Symbolic speech: when a political message is conveyed without using spoken or written words. Symbolic speech legal cases have
involved acts such as the wearing of arm bands (Tinker v. Des Moines, 1969), the burning of an American flag (Texas v. Johnson,
1989) and the burning of a cross (Virginia v. Black, 2002).
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Tinker v. Des Moines (1969): Background fact A school district punished student’s symbolic speech against the US war policies
in Vietnam. SCOTUS Holding (Decision) Public school students had First Amendment free expression right to wear black
armbands in school to protest the Vietnam War.
Time, place and manner restrictions: reasonable regulations that a government can use to restrict speech include time, place and
manner constraints in which a government can direct a group of speakers where and when speech can take place so as to protect
public safety. Speech that disrupts public order and incites violence can be restricted by the government. Time, place and manner
restrictions mandate that government allows free speech liberties with the ability to protect public order.
Defamation: speech that causes reputational and monetary harm that can be punished through civil lawsuits. Libel is written
defamation that is published and slander is spoken defamation that is broadcast. In American courts, civil liability is based on an
intent of “actual malice” in the distribution of false information.
Clear and present danger: the legal standard from Scheck v. U.S. (1919) in which speech to encourage avoiding the military draft
was allowed to be punished for the possibility of causing a danger to national defense. This legal standard was later changed so that
government could punish speech that incited “imminent lawless action.” (Brandenburg v. Ohio, 1969).
Schenck v. U.S. (1919): Background fact The US government punished the speech of a peace activist advocating for men to avoid
the draft in World War 1. SCOTUS Holding (Decision) Speech creating “clear and present danger” is not protected by the First
Amendment and can be punished by the government.
3.4 First Amendment: Freedom of the Press
Freedom of the press is seen as a key feature of a democracy. News media are allowed to publish information about
government officials and policies. The public consumes this news information to learn more about these officials and
their policy positions and actions. The public uses this information to be able to reward these officials with support or
to criticize these officials with opposition as a way of holding the government more accountable.
Accessing information about government is a core component of the right to free press. Two different federal laws help
to promote governmental transparency so that journalists and citizens can access more information about the creation
and implementation of governmental policies. The federal Freedom of Information Act (1967) requires disclosure of
requested unclassified information and documents. The federal “Sunshine Act” 1976 requires federal agencies to open
their large meetings to access by the public and the press. All state governments now have some form of open meetings
acts and freedom of information acts to promote governmental transparency at the state and local levels of government.
A key Supreme Court case that safeguarded the freedom of the press was protecting the news media from defamation
and libel lawsuits in the case New York Times, Co. v. Sullivan (1964). In this case, the Court set a high legal bar for
plaintiffs to prove “actual malice” to win libel lawsuits against media outlets. This allowed for more aggressive
investigative journalism with less risk that the subject of the newspaper investigation could win a defamation lawsuit.
Easy to prove defamation lawsuits could cause the financial ruin of the media business that produced the news. During
his presidency, President Trump vowed to change libel laws to make it easier for plaintiffs to win defamation law suits
against media companies. These defamation laws did not change during the Trump administration.
Yet, freedom of the press can be limited in certain circumstances. The government can use prior restraint or censorship
to try to prevent publication of sensitive news when confronted by national security issues. But the legal bar for such
censorship is high. The Supreme Court clarified these limits in the case New York Times v. U.S. (1971). This case
involved the US government attempting to restrain the publication of classified information about the Vietnam War by
newspapers prior to publication. The Court’s decision in favor of the newspapers strengthened the First Amendment’s
protection of press freedoms by establishing a “heavy presumption against prior restraint” even in cases involving
national security. This case overturned the government’s attempt to block publication of the leaked Pentagon Papers in
the New York Times and Washington Post.
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Prior restraint: the attempt by government to restrict the distribution of written or broadcast speech. In the case of New York
Times v. U.S. (1971) SCOTUS strengthened the First Amendment’s protection of press freedoms by establishing “heavy
presumption against prior restraint” even in cases involving national security.
New York Times v. U.S. (1971): Background fact The US government attempted to restrain the publication of classified
information by newspapers prior to publication. SCOTUS Holding (Decision) Strengthened the First Amendment’s protection of
press freedoms by establishing “heavy presumption against prior restraint” even in cases involving national security.
3.5 Second Amendment: Right to Bear Arms
The Court’s varied interpretation of the 2nd Amendment’s “right to bear arms” has proven controversial. The 2nd
Amendment states,
A well-regulated militia, being necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.
But in Miller v. U.S. (1939), the Supreme Court decided that the federal government could prohibit and punish the
possession of certain types of weapons including sawed-off shotguns.
In 1968, Congress passed the Gun Control Act that established licensing for firearms dealers, prohibited the mail order
sales of firearms and prohibited felons from owning guns. The federal government’s criminal code also prohibits
licensed firearms dealers from selling hand guns to people under 21-years-old and from selling long guns (rifles and
shotguns) to people under 18-years-old. But unlicensed dealers face no age restrictions in the sale of long guns and
cannot sell hand guns to people under 18-years-old. There is no national gun permit required to purchase a firearm, but
licensed dealers must keep gun sales records for at least 20 years.
In 1993, Congress passed the Brady Handgun Violence Protection Act creating a national background check system
that licensed firearms dealers had to implement. No licensed dealer is allowed to transfer a firearm until the purchaser
has passed this criminal background check. In 2007, after a mass shooting at Virginia Tech University in which 32
people were fatally shot, Congress passed a federal law (National Instant Criminal Background Check System -NICS-
Improvement Amendments Act) that closed loopholes in the federal criminal background check system to more
efficiently prevent the purchase of fire arms by those with disqualifying mental health conditions. In 2022 the
Bipartisan Safer Communities Act was passed by Congress within a month of the mass shootings at a grocery store in
in Buffalo, NY and an elementary school in Uvalde, TX. This 2022 federal legislation increased federal funding for
mental health services in public schools. The law also expanded criminal background checks for firearm purchases by
those under 21 so that criminal and mental health records before a prospective purchaser turns 18 could be used to
disqualify the gun purchase. The law provided more federal funding to allow states to more effectively implement
state-level “red flag laws” meant to temporarily take firearms away from those who pose a threat to themselves and
others. The law also increased criminal punishment of straw purchases by those legal to purchase a gun with the intent
to transfer those firearms to those disqualified from purchasing guns under federal law. But the Bipartisan Safer
Communities Act did nothing to restrict the purchase or possession of AR-15 style rifles as had been imposed by
federal legislation from 1994 until this type of ban expired in 2004.
States and cities have always been allowed to regulate and restrict gun sales beyond federal code. Some states, like
California, Florida, and Illinois, prohibit sales of any firearm to people under 21. Ten states and the District of
Columbia impose a waiting period on the transfer of firearm after a purchase. Hawaii now has a 14-day waiting period
after all firearms purchases, and Illinois has a 72-hour waiting periods on all firearms. Some states also impose
regulations on purchases and transfers from unlicensed gun sellers. All states allow some version of conceal carry for
law-abiding gun owners, but some states have added regulations to obtain conceal carry permits and permit conceal
carry only for certain types of firearms. Fourteen states require some type of state license or permit for the purchase of
a gun. These state laws can vary depending on the type of firearm. The Illinois General Assembly banned the sale and
possession of new assault weapons like the AR-15 in 2023 after seven parade attendees were shot and killed during a
July 4th parade in Highland Park, IL in 2022. The law stated that owners of these assault weapons bought prior to 2023
would have to register these firearms through the State Police, but several county sheriffs announced that they would
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not help to enforce this provision of the law. Several owners of gun shops in Illinois filed a lawsuit in 2023 claiming the
state ban on assault weapons violated the Illinois and U.S. constitutions. Eight other states (including California, New
York, New Jersey, and Connecticut) have similar bans on firearms they have categorized as assault weapons similar to
the AR-15.
Despite the 14th Amendment’s Due Process Clause protecting the life, liberty, or property of state residents, state
restrictions of gun possession were upheld by the Supreme Court in U.S. v. Cruikshank (1876). In this case, the Court
reversed criminal convictions of those prosecuted for the Colfax massacre in Louisiana during which over 150 Black
men were killed in the worst violent attack related to an election in U.S. history. The U.S. government prosecuted
several perpetrators of the massacre for denying the freedmen their 1st and 2nd amendment rights. The U.S. Supreme
Court ruled that the neither the Bill of Rights nor the 14th Amendment’s Due Process Clause prohibited a state
government from allowing the violent suppression of civil liberties by individuals and White supremacist paramilitary
groups. The decision was a terrible defeat of federal efforts to protect the civil rights and civil liberties of freed men and
women. The Supreme Court did not begin interpreting aspects of the Bill of Rights as being applied to state
governments until 1925.
In District of Columbia v. Heller (2008), the Court used the 14th Amendment’s Due Process Clause to apply the 2nd
Amendment to local governments that prohibited the ownership of handguns. Justice Scalia wrote for the majority,
“There seems to us no doubt, on the basis of both text and history, that the 2nd Amendment conferred an individual
right to keep and bear arms.” This precedent was used to invalidate municipal laws that prohibited hand gun ownership
in those cities.
In dissent, Justice Stevens wrote:
The Second Amendment was adopted to protect the right of the people of each of the several States
to maintain a well-regulated militia. It was a response to concerns raised during the ratification of
the Constitution that the power of Congress to disarm the state militias and create a national
standing army posed an intolerable threat to the sovereignty of the several States. Neither the text
of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in
limiting any legislature's authority to regulate private civilian uses of firearms. Specifically, there
is no indication that the Framers of the Amendment intended to enshrine the common-law right of
self-defense in the Constitution.
The Court built on this new precedent on gun laws in McDonald v. Chicago (2010). The city government of Chicago
had enforced a law restricting hand gun possession by any city resident. The Court majority ruled that the 2nd
Amendment’s right to bear arms for self-defense in one’s own home is applicable to state and local governments
through the 14th Amendment’s Due Process Clause. Incorporating the 2nd Amendment’s right to bear arms as an
individual liberty meant that state and municipal governments could regulate hand gun purchases by law-abiding
citizens but could not prohibit hand gun ownership. Justice Clarence Thomas, concurred with the majority in
McDonald v. Chicago (2010) but on the basis that it was the Constitution’s Privileges and Immunities Clause from
Article IV, that protected citizens’ rights to bear firearms. In this concurrence, Thomas vehemently disagreed with the
Court’s majority in the 1873 Slaughter-House case which dismantled the application of the Privileges and Immunities
Clause to protect Black citizens’ civil rights and civil liberties against oppression by state governments after the Civil
War.
The study of the 2nd Amendment provides an understanding of how federalism can result in widely different policies
pertaining to firearms in different states with the national government providing a standard set of regulations across the
country. The 2nd Amendment also provides a case study in how the expansion of the Selective Incorporation Doctrine
applied to states and cities attempting to restrict possession of firearms by their residents.
Second Amendment: “the right to bear arms.” States and municipal governments were mandated by SCOTUS to extend individual
right to bear arms in its ruling in McDonald v. Chicago (2010).
McDonald v. Chicago (2010): Background fact A city government enforced a law restricting hand gun possession by any city
resident. SCOTUS Holding (Decision) The Second Amendment’s right to bear arms for self-defense in one’s own home is
applicable to state and local governments through the 14th Amendment’s due process clause.
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3.7 Explain the implications of the doctrine of selective incorporation.
To understand the significance of the changes resulting from the Selective Incorporation Doctrine, students of
government need to revisit the 1787 Constitutional Convention. The Framers may have abandoned the Articles of
Confederation in favor of the Constitution, but they did not dismiss state sovereignty. A system of federalism was
created with the national government to be supreme but state and local governments maintaining certain reserved
powers. This relationship within federalism was codified in the Constitution’s Supremacy Clause and the Tenth
Amendment’s Reserved Powers Clause.
The significance of the changes resulting from the Selective Incorporation Doctrine can also be understood by reading
the first five words of the Bill of Rights. The First Amendment begins with the five words, “Congress shall make no
law.” The Bill of Rights was added to the original Constitution because anti-federalists were concerned that the power
of the new national (federal, central) government could become tyrannical. Anti-federalists wanted constraints and
guarantees of protections of rights and liberties that many states featured in their state constitutions.
For most of the country’s history, the Bill of Rights only protected our civil liberties and political rights from being
infringed by the national government. This was clearly defined by the Supreme Court in the case Barron v. Baltimore
(1833). The Court made clear that the rights contained in the first ten amendments did not apply to the states.
According to this judicial precedent, the U.S. Congress could not violate your freedom of speech but the State of New
York could. It would take a Civil War, the 14th Amendment, and a series of changing Supreme Court precedents before
this confusion was settled.
The Supreme Court’s decision in the Dred Scott case led to a Civil War about the power of states to continue and
expand the institution of slavery. As the United States was in the final stages of winning that Civil War, three
amendments were added to rectify the precedent set in the Court’s Dred Scott decision. The 13th Amendment prohibited
slavery, the 15th Amendment guaranteed voting rights for Black people who had been enslaved and to all regardless of
race, and the 14th Amendment ensured citizenship as well as due process and equal protect rights for those who had
been enslaved and all state residents regardless of race.
The U.S. system of federalism and states’ responsibilities to protect rights changed forever with the passage of the
Fourteenth Amendment and a series of changing Supreme Court precedents.
The text from Section 1 of the Fourteenth Amendment seems simple enough:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
Yet, the incorporation of the federal government’s authority to oversee the “due process” and “equal protection” of all
citizens represents a significant change. Protections of the Bill of Rights have been selectively incorporated by way of
the Fourteenth Amendment’s Due Process Clause to prevent state infringement of basic liberties.
This change did not happen immediately. State government oppression of Black people who had previously been
enslaved was allowed by the Supreme Court in U.S. v. Cruikshank (1876). In this case, the Court reversed criminal
convictions of those prosecuted for the Colfax massacre in Louisiana during which over 150 Black men were killed.
The Supreme Court ruled that the neither the Bill of Rights nor the 14th Amendment’s Due Process Clause applied to
state governments. The decision was a defeat of federal efforts to make states protect the civil liberties and civil rights
of freed men and women, and the Court would not begin interpreting aspects of the Bill of Rights as being applied to
prevent state governments’ oppression of civil liberties until nearly 50 years later.
It was not until 1925, in the case Gitlow v. New York, when the Supreme Court applied the language of the Fourteenth
Amendment into a state dispute. In Gitlow, the Court ruled that the First Amendment took precedence in a state dispute
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over speech. A second revolution had begun because the national government and its courts could now be the final
arbitrator of rights and liberties. The national government could supervise state and local laws for constitutionality.
The extension of the Bill of Rights to the states is called the Selective Incorporation Doctrine. Incorporation could not
have occurred without the Fourteenth Amendment. The Fourteenth Amendment guaranteed to all citizens in all of the
states both the due process of law and the equality of opportunity granted to all. Furthermore, no state could abridge the
privileges or immunities given to citizens of the United States.
Virtually all of our civil liberties, as guaranteed in the Bill of the Rights, have now been applied and incorporated to the
states. To summarize, the Supreme Court applied and incorporated the Bill of Rights to the states using the Due Process
Clause of the Fourteenth Amendment on a case-by-case basis.
This process of selective incorporation began in the Gitlow case of 1925 by guaranteeing that state governments could
not violate free speech rights of residents. The process continues to the present day with the Supreme Court extending
protections from the Bill of Rights to state and local governments as recently as 2020.
This difficult concept is best understood by looking at some examples of selective incorporation:
1st Amendment: Engle v. Vitale (1962) made a local government adhere to the Establishment Clause by ruling that a
public school’s sponsorship of prayer and religious activities violates the First Amendment’s Establishment Clause.
Tinker v. Des Moines (1969) made local government adhere to free speech protections ruling that public school
students had First Amendment free expression right to wear black armbands in school to protest the Vietnam War.
Wisconsin v. Yoder (1972) made state government adhere to the Free Exercise Clause ruling that a state law forcing
Amish students to attend school past 8th grade violates the First Amendment’s free exercise protections.
2nd Amendment: McDonald v. Chicago (2010) made a city government adhere to the 2nd Amendment’s right to keep
and bear arms for self-defense in one’s home. The city government of Chicago had enforced a law restricting hand gun
possession by any city resident. The Court majority ruled that the 2nd Amendment’s right to bear arms for self-defense
in one’s own home is applicable to state and local governments through the 14th Amendment’s Due Process Clause.
Incorporating the 2nd Amendment’s right to bear arms as an individual liberty meant that state and municipal
governments could regulate hand gun purchases by law-abiding citizens but could not prohibit hand gun ownership.
6th Amendment: Gideon v. Wainwright (1963) made a state court adhere to the 6th Amendment’s guarantee to the right
to counsel. The Court ruling said all states must guarantee the 6th Amendment right to an attorney in all felony cases for
the poor and the indigent accused.
Ramos v. Louisiana (2020) made state court guarantee that criminal convictions could not be obtained without a
unanimous jury.
8th Amendment: Timbs v. Indiana (2019) made a state court adhere to the 8th Amendment’s prohibition of applying
excessive fines when the state seized Timbs’s 2012 Land Rover based on asset forfeiture laws. The vehicle was valued
at $42,000. Timbs’s court fines amounted to $1,200 which he paid separately.
9th Amendment: Griswold v. Connecticut (1965) SCOTUS ruled the due process clause to protect the right of privacy
(as inferred from amendments including the 9th amendment) from infringement by state government. Roe v. Wade
(1973) made state governments protect the right of women to access abortion procedures. The Court’s decision in Roe
extended the substantive due process right to privacy to a woman’s decision to have an abortion. This Court decision in
Roe was later overturned in 2022 by the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization
(2022) In the Dobbs case, SCOTUS held that the Constitution does not confer a right to abortion and left decisions
about the regulation of abortion to legislatures. The SCOTUS majority reasoned in Dobbs that the Roe decision to
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recognize and protect abortion rights through a substantive right to privacy was not based on the text of the Constitution
or historic legal precedents.
In all of these cases individual rights and privileges that had once been excluded by state governments were now
preserved and protected by agents of the national government. The Selective Incorporation Doctrine shifted
responsibility to the national government in a dramatic way. Utilizing the language of the Fourteenth Amendment,
specifically that “no state...shall abridge...due process of law,” the national government now serves as protector of our
alienable right to “life, liberty and property.” Most of the time this has resulted in the national government imposing its
will on state and local laws to the contrary.
Selective Incorporation: SCOTUS used a case-by-case approach to apply the protections of parts of the Bill of Rights to states and
local governments based on the Due Process Clause of the Fourteenth Amendment. Under the Barron (1833) precedent, the Bill of
Rights had originally been interpreted to only apply to the national government. Selective incorporation extended civil liberties
more broadly to all fifty states and enlarged the scope and scale of the federal government to expand individual protections from
government abuse.
Due Process Clause (14th Amendment): used by the Supreme Court to incorporate (apply) the guarantees of much of the Bill of
Rights to the States. Used by SCOTUS to extend civil liberties more broadly to all fifty states and enlarged the scope and scale of
the federal government to expand individual protections from government abuse.
3.6 Explain how the Supreme Court has attempted to balance claims of individual freedom with
laws and enforcement procedures that promote public order and safety.
Provisions of the Bill of Rights are continually being interpreted to balance the power of government and the civil
liberties of individuals. The Fourth, Fifth, Sixth and Eighth Amendments provide constitutional protection of the rights
of the accused.
The Fourth Amendment protects
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause...
This right can be traced as far back as the Institutes of the Laws of England (1628) that stated, “For a man’s house is his
castle [and each man’s home is his safest refuge].” The castle doctrine, as it is called, has teeth. The exclusionary rule,
applied to the states in Mapp v. Ohio (1961), disallows any illegally obtained evidence from being used against a
defendant in court. The exclusionary rule provides a safeguard for our Fourth Amendment right to be free from
unreasonable searches and seizures. The exclusionary rule protects our castle. Courts consider cars and even cell
phones as castles these days.
The Eighth Amendment protects all of us from cruel punishments. The Eighth Amendment appears to be clear when it
states
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
But a long trail of Court precedent can be found attempting to unpack the practical meaning of these words. Most
recently, the Court has extended 8th Amendment protection from excessive fines to the practice of asset forfeitures by
state governments. In recent death penalty (capital punishment) cases, the Court ruled that it is unconstitutional to
execute someone with certain mental handicaps in Atkins v. Virginia (2002). The Court held in Roper v. Simmons
(2005), that to execute someone who committed a capital offense under the age of eighteen would be unconstitutional.
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In more recent cases, the Court has upheld various methods of execution used by states including lethal injection. As
more states limit capital punishment, pressure is building on the Supreme Court to follow suit.
It is worth noting that the basic rights of the people can conflict with government’s fundamental role to maintain order.
Personal liberties and collective security can be at odds with each other. This has become all the more apparent after the
events of September 11, 2001.
The national, state, and local governments responded to the 9/11 attacks with more security measures meant to protect
communities and that eroded some privacy and civil liberty protections. The Department of Homeland Security was
created by Congress and the Transportation Security Administration was created and made a part of this department.
Airport security moved from state and municipal control to the control of the central government’s TSA. But no U.S.
airplane has been destroyed by an act of terrorism since 9/11.
Suspected terrorists from around the world were detained and many were tortured during forced interrogations to see if
additional intelligence could be obtained to keep the homeland safe. Detainees were held in a U.S. Naval base on Cuba
(Guantanamo Bay) accused of plotting and carrying out acts of terrorism that killed more than 3,000 in the United
States. The Supreme Court ruled that detainees had legal rights to challenge their detention without some form of trial.
In 2009, President Obama and Congress attempted to resolve this with a system of military commission trials. More
than 20 of these detainees are still awaiting trials. But acts of terrorism on U.S. soil are rare.
Wars were fought in Afghanistan and Iraq. Trillions were spent in these efforts, more than 6,500 U.S. military
personnel were killed. More than 150,000 civilians died in those wars before the U.S. military mostly departed each
country. But acts of terrorism on U.S. soil are rare.
The USA Patriot Act (2001) gave federal law enforcement officers wider power to conduct warrantless searches in
pursuit of terrorists plotting violence in the United States. The 1978 Foreign Intelligence Security Act (FISA) as
amended by the 2007 Protect America Act allows the National Security Agency to collect and store internet and
satellite communications metadata from U.S. internet and communications companies. Individual privacy protection
has been eroded, but acts of terrorism on U.S. soil are rare.
When contemplating this tension between individual freedom and public safety, it should be recognized that the
Constitution provided for moments like this. The Constitution has not been changed but can still be used to strengthen
the national government’s capacity to heighten security. Congress was empowered in Article I to “provide for the
common defense.” The President, in Article II, was made the commander-in-chief and given implicitly energetic
powers to deal against foreign agents. And the Supreme Court, empowered by judicial review, has upheld most of the
provisions of such laws as the Patriot and USA Freedom Act (2001).
It should also be acknowledged that this tension existed prior to 9/11. It is a debate that harkens back to the
constitutional convention itself. Tensions between social order and individual freedom are reflected in interpretations of
the First Amendment that limit speech. Remember, the Supreme Court in Schenck v. United States (1919) limited
speech when it posed a “clear and present danger.”
The Court has also established “time, place and manner” (TPM) restrictions. Time, place, and manner restrictions allow
a local government to permit controversial public speech but in a place and time where law enforcement can monitor
crowds to prevent violence and disorder. The balance between liberty and order. Government policies toward the
regulation of speech are expected to:
• Be content neutral
• Be narrowly tailored
• Serve a significant governmental interest
• Leave open ample alternative channels for communication
Freedom of speech is not absolute. The demands of the Constitution—at times— require us to surrender our freedom to
act as we might naturally desire.
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Tensions between public order and civil liberties were very apparent during the governmental responses to the covid-19
pandemic in 2020. Based on federal Center for Disease Control and Prevention guidelines, many states and municipal
governments issued strict stay-at-home orders that closed public places including schools, restaurants, and theaters for
months. Some state governments also tried to limit private gatherings—including religious services— to any large
groups. In the liberty v. order tension about these policies, religious groups claimed violations of their free exercise
rights in the name of public safety.
As were communities slowly reopening after these lockdowns in 2020, the country erupted in protest of racism and
police abuse due to the publicized deaths of several African Americans at the hands of law enforcement officers across
the country. Protests drew hundreds in small communities and tens of thousands in large cities to draw attention to
reforms needed to reduce police abuse and address allegations of systematic racism. In the tension about liberty v.
order, governmental leaders relaxed their public safety policies that had prohibited large group gatherings to allow the
liberty of these protests.
With some issues, like the regulation of firearms, tensions between liberty and order are constant. Americans’ access to
legally purchase firearms has grown throughout the country in the last 50 years. All states allow some version of
conceal carry for some types of guns, and the Supreme Court has issued rulings in The District of Columbia v. Heller
(2008) and in McDonald v. Chicago (2010) nullify municipal government attempts to ban residents from possessing
guns.
While gun owners and buyers have significant liberties under the 2nd Amendment, governments at all levels are still
allowed to regulate gun sales and some possession in the name of public order.
The governments can prohibit access to military weaponry like grenades and automatic weapons. Possession of sawed-
off shotguns can be made illegal. In 2023, the Illinois General Assembly banned the sale and possession of new assault
weapons like the AR-15 in 2023 after seven parade attendees were shot and killed during a July 4th parade in Highland
Park, IL in 2022. Many owners of gun shops in Illinois filed a lawsuit in 2023 claiming the state ban on assault
weapons violated the Illinois and U.S. constitutions. Eight other states (including California, New York, New Jersey,
and Connecticut) have similar bans on firearms they have categorized as assault weapons similar to the AR-15.
The U.S. government can require gun dealers to be licensed and can restrict sales by these dealers based on age and
passing of criminal background checks. State governments can enforce additional restrictions like requirements for
permits to purchase guns, higher age restrictions and waiting day periods before one takes possession of a purchased
gun.
These types of firearm regulation policies reflect the balance between liberty and order.
Eighth Amendment: protection from cruel and unusual punishments. Capital punishment (the death penalty) has been ruled
unconstitutional and now constitutional by the Supreme Court. SCOTUS incorporated 8th Amendment protections from excessive
fines by states in 2019 when it limited state powers to collect asset forfeiture fines.
Fourth Amendment: protects individuals from unreasonable searches and seizures by law enforcement officers. When this
constitutional protection is violated, SCOTUS has ruled that the exclusionary rule in criminal cases means that evidence seized
through unreasonable searches must be excluded from being used against a criminal defendant. More restrictive interpretations of
the Fourth Amendment by federal courts in recent years have narrowed the use of the exclusionary rule.
Probable cause: objective circumstances or evidence that a crime has been committed or will be committed. To obtain a judge’s
approval for a search warrant, law enforcement often has to provide probable cause as the basis for a legally permissible search. A
law enforcement search of a vehicle does not require a search warrant but does require a law enforcement officer to articulate the
probable cause that led to the search in which evidence was seized for a criminal trial.
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3.8 Amendments: Due Process and the Rights of the Accused
A Punnett Square can be the best depiction of how the Bill of Rights helps to balance liberty and order in criminal trials
at the federal and state levels of government. Every criminal trial has four possible outcomes.
Actually Guilty Actually Not Guilty
Found Guilty
Found Not
Guilty
Rank the four possible outcomes from Best (1) to Worst (4)
Students can rank the four possible outcomes from Best to Worst. But the U.S. criminal justice system is established on
the principle that the absolute worst possible outcome in a criminal case is when an individual who is actually not
guilty is found guilty. Some may disagree this is the worst of the four possible outcomes. A problem in this scenario is
that a guilty person goes free. But the guilty person is also free when an actually innocent individual is found guilty.
Two bad outcomes result when an individual who is actually not guilty is found guilty. An innocent person is punished
while the guilty person goes free.
To prevent this worst case scenario of two bad outcomes resulting from the criminal case, procedures of criminal due
process rights are supposed to be followed by law enforcement officers and court officials from the beginning of an
investigation until the possible incarceration of a convicted criminal. One key principle in the country’s courts is that
criminal defendants are presumed innocent. Defendants are only to be found guilty of a crime beyond a reasonable
doubt.
The Bill of Rights also guarantees specific criminal due process protections:
The 4th Amendment comes into play during a criminal investigation prior to an arrest. Law enforcement officers are
expected to follow the 4th Amendment rights for individuals to be protected from unreasonable searches and seizures.
The Supreme Court’s case of Mapp v. Ohio (1961) extended 4th Amendment protections to include state and local
police who improperly use warrantless searches to find evidence of criminal conduct. Courts use the Exclusionary Rule
to punish law enforcement officers who seize incriminating evidence in violation of the 4th Amendment. The
Exclusionary Rule means that the government is not allowed to use improperly seized evidence against a criminal
defendant. Without the incriminating evidence, the government will often drop the criminal case against the defendant.
This can be a controversial result since a seemingly guilty defendant is released. But, while the Exclusionary Rule
protects the liberty of the accused criminal, it’s intent is to create an ordered police investigation conducted according
to the legal rules of criminal due process that prevents abusive law enforcement tactics.
Law enforcement often use search warrants signed by a judge due to probable cause evidence that a crime has been or
will be committed. Search warrants help to prevent unreasonable searches from occurring. However, there are many
legal exceptions that courts allow for law enforcement conducting warrantless searches. Constitutional searches of
motor vehicles commonly occur without warrants because courts allow police to conduct these searches based on some
kind of probable cause (smell or sight of an illegal substance). Police only ask vehicle occupants if police can search
the vehicle when no probable cause exists. That is why the request to search is made. Police can also conduct pat-down
searches when there is a reasonable suspicion that a person might be armed with a weapon. These pat-down searches
are rarely with warrants and can result in a further search if police use “in-plain-feel” reasoning to search pockets in
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clothing or inside bags due to feeling that contraband is inside. Use of reasonable suspicion is also a way that public
school officials can search school property (student lockers) for substances and items that are prohibited at school.
While there are limitations placed on the government’s use of technology to collect metadata from digital
communications, federal laws like the Patriot and USA Freedom Act (2001) and the Protect America Act (2007) allow
federal law enforcement to conduct more warrantless searches in order to prevent acts of terrorism.
The 5th Amendment is also intended to prevent abusive law enforcement tactics with its guarantee that a criminal
defendant has the right to remain silent.
“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.”
The right to remain silent applies to suspected criminals during a law enforcement investigation of a crime and during a
trial when a criminal defendant does not need to testify. According to criminal due process rules, a suspect or
defendant’s silence should not be a presumption of guilt.
This can be confusing when it’s assumed that an innocent person would want to speak to explain their alibi and other
evidence of innocence when suspected or accused of a crime. But the right to remain silent can be the best strategy for a
suspect or accused criminal to use to prevent being forced into a false confession. False confessions are a common way
that an individual who is actually not guilty can be found guilty during the criminal process. False confessions happen
more frequently than many think because aggressive police are sometimes too good at getting innocent people to
answer in a way that makes the innocent person appear to be guilty of the crime. Invoking one’s 5th Amendment right
to remain silent helps to prevent these types of false confessions.
The 5th Amendment also guards against double jeopardy situations in which an accused criminal is acquitted of the
crime but the government chooses to prosecute for the same charge. The protection from double jeopardy can become
particularly relevant for those accused of crimes that both the federal government and a state government are seeking to
prosecute.
The 5th Amendment’s Takings Clause protects against the government’s improper seizure of property. This defines
limits of the government’s Eminent Domain powers to take property for public use without fair compensation to the
property owners.
The 6th Amendment is also intended to prevent abusive law enforcement and trial tactics with its guarantees for
suspects and criminal defendants:
“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.”
The Miranda rule comes from the Supreme Court case Miranda v. Arizona (1966) in which the Court ruled that law
enforcement officers must notify criminal suspects of their 5th and 6th Amendment rights before interrogating those
suspects in custody. Confessions or evidence that is spoken during an improper interrogation of an individual can be
prevented from being used against the defendant in a criminal trial. The Miranda rule is another example of how
criminal due process rules are meant to prevent suspects from giving false confessions that lead to an individual who is
actually not guilty from being found guilty during the criminal process. There are exceptions to police and law
enforcement personnel needing to read these Miranda rights. If the person being questioned is not a suspect and is not
in police custody, Miranda rights do not need to be read before questioning that person. If there is a “public safety”
exception as the police are investigating a crime in progress, an unwarned interrogation of that person is allowed to take
place. With the “public safety” exception, confessions or evidence that is spoken during an interrogation without
Miranda warnings can still stand as direct evidence in court. But even without the Miranda warnings, anyone being
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questioned by police can always invoke these constitutional protections by refusing to answer questions and asking for
assistance from a criminal defense attorney.
Provision of a criminal defense attorney was the key issue in the Supreme Court’s Gideon v. Wainwright (1963) case.
Gideon involved a state court that denied an accused felon the right to an attorney at the criminal trial. The Court held
that all states must guarantee the 6th Amendment right to an attorney in all felony cases for the poor and the indigent
accused. So if an accused criminal is facing a felony charge, they are provided assistance from a criminal defense
attorney if they cannot afford their own attorney. This is another constitutional due process protection to keep an
individual who is actually not guilty from being found guilty in a court of law.
The 6th Amendment also protects due process rights such as the right to speedy and public trials as well as an impartial
jury. Many appeals cases have been heard by both federal and state courts to establish consistent judicial precedents
about these constitutional standards. But the reality of the criminal justice system in the U.S. is that a vast majority of
criminal cases never even get to trial because the accused plead guilty prior to a criminal trial. From traffic citations to
capital murder, accused criminals often plead guilty with the lure of a lighter punishment than the maximum. This
culture of American plea bargains helps to speed up a criminal justice system that could never provide a trial for all of
the crimes governments accuse us of committing. The bargain is that the accused gets a lighter punishment and the
government pays less in trial costs when defendants admit their guilt in pre-trial hearings. The cost is that millions of
defendants waive their right to challenge violations of their constitutional due process rights with lingering questions
about whether justice was really fulfilled by the criminal justice process.
Fifth Amendment: provides some criminal due process liberties including the protection from self-incrimination if being forced to
answer law enforcement questions or testify against one’s self at trial (right to remain silent) and protection from double jeopardy
to be charged with the same crime twice. Also provides protection against private property being taken away without just
compensation also known as eminent domain.
Sixth Amendment: provides some criminal due process liberties such as criminal trial rights. Protections include the right to a
public trial, a speedy trial, and the right to have an attorney. Until the incorporation of criminal due process rights to state and local
courts by SCOTUS in the 1960s, these protections only applied to the federal (national) government were little known. The right to
attorney, for instance, was not incorporated until 1963 SCOTUS ruling in Gideon v Wainwright.
Miranda rule (aka Miranda rights, Miranda warning): guarantees that state and local law enforcement officers notify suspected
criminals in custody of due process rights prior to interrogation. SCOTUS ruled in the case of Miranda v. Arizona (1966) that state
and local law enforcement must tell criminal suspects that they have the right to remain silent and the right to counsel before
questioning the suspect about a crime. SCOTUS ruled that information provided by a criminal suspect who has not been read these
Miranda rights could be excluded from being used as evidence in criminal trials. More restrictive interpretations of the Miranda
rule by federal courts in recent years have narrowed the use of the exclusionary rule as applied to self incrimination in these types
of criminal cases.
Due process rights: Procedural due process rights require government to treat criminal defendants fairly according to a set of fair
and consistent rules. (Substantive due process rights require government to allow individuals to make certain life choices such as
marriage and parenting without overly restrictive government interference.)
Gideon v. Wainwright (1964): Background fact A state court denied an accused felon the right to an attorney at the criminal trial.
SCOTUS Holding (Decision) All states must guarantee the 6th Amendment right to an attorney in all felony cases for the poor and
the indigent accused.
Exclusionary rule: When Fourth Amendment protections from an unreasonable search and seizure is violated, courts are supposed
to not allow evidence seized to be used against a criminal defendant at trial. This civil liberty protection against governmental
abuse was incorporated for state and local courts to follow in the SCOTUS ruling of Mapp v. Ohio (1961).
USA Patriot Act (2001): allow federal law enforcement to conduct more warrantless searches in order to prevent acts of terrorism.
This law was passed by Congress after the 9/11/2001 terrorist attacks allowing warrantless searches of bank accounts in which
financial institutions were not allowed to reveal that a search had taken place.
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Intelligence Reform and Terrorism Prevention Act (2004): allows the Central Intelligence Agency (CIA) and the Federal
Bureau of Investigation (FBI) to coordinate law enforcement information through the position of the National Intelligence Director.
This sharing of information between the CIA and FBI had not been allowed since abuses of this information related to the
Watergate Scandal during the Nixon Administration. This law was passed in 2004 as a result of failures to coordinate intelligence
related to investigations of possible terrorist activities prior to the 9/11/2001 terrorist attacks.
Foreign Intelligence Surveillance Acts Amendments (2008): Changes to the 1978 FISA that allowed for the federal government
to conduct warrantless searches of private telecommunication information without notification by telecom companies. Edward
Snowden revealed these types of surveillance programs before fleeing to Russia in 2013.
3.9 Amendments: Due Process and the Right to privacy
The Selective Incorporation Doctrine goes beyond the mere application of the Bill of Rights to the states. Any and all
rights, as defined by Congress and the Courts, have been equally applied to state governments. Here the best example is
the extension of privacy rights. Griswold v. Connecticut (1965) utilized the vague language of the Bill of Rights to
establish the right to privacy. The Court defended their discovery of privacy by arguing:
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed
by emanations from those guarantees that help give them life and substance. See Poe v.
Ullman, (dissenting opinion). Various guarantees create zones of privacy. The right of association
contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment,
in its prohibition against the quartering of soldiers “in any house” in time of peace without the
consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the
“right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” The Fifth Amendment, in its Self-Incrimination Clause,
enables the citizen to create a zone of privacy which government may not force him to surrender to
his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people.”
At issue in this case was a state prohibition denying access to contraceptives, even to married couples. The Court used
the reasoning that the Bill of Rights created a “penumbra” or zone that infers a right to privacy in parts of the 1st, 3rd,
4th, 5th and 9th amendments. The Court used this inferred constitutional right to privacy to decide in Griswold v.
Connecticut (1965) that the due process clause extended to a woman’s legal right to access contraceptive birth control
without prohibition of birth control by a state government.
This right to privacy was later extended to include women’s rights to access abortion procedures. In Roe v. Wade
(1973), a state government restricted women from getting abortions. The Court majority ruled that the right to privacy
should be extended to a woman’s decision to have an abortion. Thus, state’s strict prohibitions of access to abortion
procedures were nullified by the Court’s decision in Roe v. Wade.
After the Court’s decision in Roe, the Supreme Court’s ruling in Planned Parenthood v. Casey (1992) has had the most
impact on the legal status of different abortion policies in different states. Planned Parenthood v. Casey was a case
about a state’s attempts to add regulations to its abortion policies. These regulations included requiring women to sign
informed consent forms before an abortion is performed, a 24-hour waiting period prior to an abortion procedure,
consent of a parent for minors choosing an abortion, and married women notifying their husbands about their intent to
have an abortion prior to the procedure. In its decision in this case, the Court reaffirmed its precedent from Roe that the
right to privacy protects women choosing abortion procedures. The Court majority held that state regulations of
abortion procedures cannot impose an “undue burden” or a “substantial obstacle” to women seeking abortions. In this
ruling, the Court upheld all of the state’s regulations except the requirement that married women notify their husbands
prior to an abortion procedure.
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For nearly 50 years since the SCOTUS decisions in Roe and Casey upheld the legal standard that a woman’s right to
access an abortion procedure was a protected right to privacy that was an inherent constitutional right even if those
exact words did not appear in the Constitution. During those five decades, an initially scattered political response to the
Court’s expansion of the substantive due process right to privacy became the major issue driving U.S. political
polarization by the time SCOTUS eradicated the legal right to access abortion in its 2022 ruling in Dobbs v. Jackson
Women’s Health Organization as two new SCOTUS justices with anti-abortion views had replaced two SCOTUS
justices who supported decisions to protect the rights to access abortion.
The Dobbs case was about a Mississippi state law written to reduce access to abortion to the first 15 weeks of a
pregnancy from the previous limit of the first 20 weeks of a pregnancy that federal courts had mandated. A 6-3
SCOTUS majority in the Dobbs case held that the Court’s decisions in Roe v. Wade (1973) and Planned Parenthood v.
Casey (1992) were overruled. In the Dobbs case, the Court majority reasoned that the Roe and Casey decisions to
recognize and protect abortion rights through a substantive right to privacy were not based on the text of the
Constitution or historic legal precedents and that the Constitution did not confer a right to access abortion. The majority
decision held that its decision to not recognize privacy rights as related to accessing abortions did not apply to the
substantive due process rights the Court had recognized to access birth control (Griswold) or the protection of same-sex
relations and marriage (Lawrence and Obergefell). But in a decision that concurred with the other five justices in the
majority, Justice Clarence Thomas wrote that he would rule to invalidate the holdings in those previous substantive due
process rights cases.
Justice Stephen Breyer wrote for the Court’s dissenting minority that the Court’s majority decision in Dobbs “says that
from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to
term, even at the steepest personal and familial costs.”
More than a dozen states, such as Oklahoma, Arkansas and Mississippi, had changed their state laws in expectation of
the SCOTUS decision to overturn the Roe precedent so that nearly all abortion procedures were banned in those states
with the rare exception of when the life of the pregnant woman was at risk. Other states, like Indiana, changed state
abortion law shortly after the 2022 Dobbs decision to severely restrict access to abortion procedures. In Indiana,
accessing abortion was made illegal unless the life of the mother was at risk and in some cases of pregnancies that
result from rape and pregnancies that result from incest. In all of these states, the Republican Party held majority
control of both the state legislatures as well as the governors’ office.
In some states, such as Illinois and Colorado, where the Democratic Party held majority control of both the state
legislatures as well as the governors’ offices, abortion policy was changed to ensure legal access to an abortion
throughout a pregnancy in anticipation of the Court undercutting the right to privacy. Kansas has abortion rights
protection as part of its state constitution and held a policy referendum after the Dobbs decision in 2022 to give citizens
a choice to vote to remove or to protect this constitutionally protected right to access abortion procedures. The electoral
effort in Kansas to remove this protection to access abortions fell 18 percent short of the needed majority in that
referendum election. Michigan voters had a referendum to include “reproductive freedom” in their state’s constitution
on their November, 2022 ballots, and more than 56% of voters approved this new protection there.
The U.S. House of Representatives, under majority control by Democrats, also responded to the Court’s decision in
Dobbs by passing two different abortion bills in the lower chamber in 2022. One bill passed with the intention to
legally protect the right to access abortions in all states and granted legal protections for health care providers to
perform abortions throughout the U.S. All but one Democrats voted in favor of the legislation and no Republican
representatives voted to pass that legislation. The other bill passed with the intention to legally protect the travel rights
of those seeking to leave a state in which abortion is restricted to a state in which an abortion procedure is still
accessible. All Democrats voted in favor of the legislation and three Republican representatives voted to pass this
legislation. Neither bill passed the U.S. Senate process as neither bill had at least 60 supportive Senators to get pass the
Senate’s filibuster rule. Similarly, a bill to protect access to contraception was passed by the House in 2022 with 195
opposing votes by House Republicans, but the bill did not get at least 60 supportive Senators to get pass the Senate’s
filibuster rule. However, a bill (Respect for Marriage Act) to mandate that states legally recognize same-sex marriage
rights did pass both the House and the Senate in 2022 and was signed into law by President Biden.
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President Biden also responded to the to the Court’s decision in Dobbs by issuing an executive order in July to advise
hospital doctors that, regardless of state laws, they would be legally protected to terminate pregnancies for those
experiencing an “emergency medical condition” under existing federal law (Emergency Medical Treatment and Labor
Act.) Biden also issued an executive order for the Department of Health and Human Services to protect access to birth
control and contraception under the Affordable Care Act as well medication to induce abortions with drugs that had
been approved by the Food and Drug Administration. In December of 2021, the Food and Drug Administration had
announced that medication to terminate a pregnancy would be available to access by mail instead of needing to be
administered in person at a doctor’s office or health clinic during the first 10 weeks of a pregnancy. Before Dobbs,
some abortion provider advocacy groups estimated that more than half of abortions in the country were a result of
medication abortion. Almost 20 states already have laws to strictly limit access to abortion pills that induce abortion, so
legal challenges to determine whether federal or state policies will prevail in regards to access to abortion pills are
expected in coming years.
Right to privacy: protection of a woman’s right to access birth control and abortion procedures. In Roe v. Wade (1973), state’s
strict prohibitions of access to abortion procedures were nullified by the SCOTUS ruling that the right to privacy should be
extended to a woman’s decision to have an abortion.
Penumbra: legal zone that infers a right to privacy in parts of the 1st, 3rd, 4th, 5th and 9th amendments. The Court used this inferred
constitutional right to privacy to decide in Griswold v. Connecticut (1965) that this right to privacy extended to a woman’s legal
right to access contraceptive birth control without prohibition of birth control by a state government.
Roe v. Wade (1973)* : Background fact A state government restricted women from getting abortions. SCOTUS Holding
(Decision) Extended the right to privacy to a woman’s decision to have an abortion.
* Not considered in the AP US Government 14 required Supreme Court case decisions.
3.10 Explain how constitutional provisions have supported and motivated social
movements
The Fourteenth Amendment’s revolutionary impact goes beyond the application of the Due Process Clause. Its Equal
Protection Clause, as well, has dramatically changed the arc of American government. Many have written that the
ultimate purpose of government is to superintend social cohesion and happiness. If so, advancing and defending
equality must be seen as government’s greatest challenge. The Declaration of Independence certainly upholds liberty,
but it endorses equality as well. It would be difficult to imagine real freedom without equality. The Fourteenth
Amendment’s Equal Protection Clause as well as other constitutional provisions have often been used to support the
advancement of equality.
If the Due Process Clause protects our individual civil liberties, then the Equal Protection Clause safeguards our civil
rights. Civil liberties protect individuals and their individual rights from government abuse. Civil rights protect groups
from discrimination by governmental and private entities. Civil rights protect equal treatment of groups of Americans.
Some historians view the U.S. Constitution as a “slave document” that both ignored and protected institutional slavery.
With the inclusion of the three Civil War amendments, some historians claimed the document took on a new meaning
that allowed for greater protection of both civil liberties and civil rights. Perhaps, as Lincoln wrote in his Gettysburg
Address, a chance at “a new birth of freedom.”
The American form of representative democracy upholds majority rule while establishing measures for some protection
of minority rights. When it came to the passage of different congressional civil rights acts, the ugly truth is that when a
majority wanted passage of these laws to implement policies of equality the Senate’s rules often allowed a minority of
Senators to block and delay many of these legislative efforts.
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The Equal Protection Clause of the Fourteenth Amendment not only inspires formal public policy debate inside the
institutions of government, but also motivates “we the people” to act. We should never underestimate how the advances
in policies to improve equality were a product of courageous leadership. Social movements throughout history have
ignited policy changes. Social movements are examples of pluralist democracy in which people speak out to their
leaders demanding change in a broad policy areas. Social movements in the 1960s were a renewal of attempts by
citizens to get government to address U.S. war policies, women’s rights, and LGBT rights. But most notable of all these
social movements was the struggle to improve civil rights for African Americans.
Martin Luther King, Jr. became the most recognized leader of this social movement among thousands of others who
spoke, educated, marched, and fought for even the smallest improvements in civil rights policies at the national and
local levels. King’s speeches and essays inspired (and still inspire) many to advocate for greater equity.
In his seminal essay Letter from a Birmingham Jail (1963) King wrote,
Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a
single garment of destiny. Whatever affects one directly, affects all indirectly.
Women as well saw their civil rights improved during this time, thanks in part to a number of outspoken leaders. Betty
Friedan and others founded the advocacy group the National Organization of Women (NOW) in 1966. Friedan argued
that their purpose was
To take action to bring women into full participation in the mainstream of American society now,
exercising all privileges and responsibilities thereof in truly equal partnership with men.
The civil rights movement of the 1960s heralded the rights of African-Americans and women. Subsequently this type
of movement extended to more equal rights for Hispanic and LGBT communities and countless of other communities
in the United States including the pro-life (Anti-abortion) movement and social movements across the planet.
Equal Protection Clause: empowered the national government over the states in areas relating to civil rights. The equal protection
clause has been used by SCOTUS to embolden the national government’s civil rights protections by ruling for an end to racial
segregation in public schools.
Social movement: pluralist democracy in which people speak out to governmental leaders demanding change in a broad policy
areas. Examples include the racial civil rights movement of the 1960s, the women’s liberation movement of the 1970s, the pro life
(anti abortion) movement of the 1980s, the gay rights movement of the 1990s and 2000s and the Black Lives Matter movement of
the 2010/20s.
Letter from a Birmingham Jail (1963): The Reverend Martin Luther King, Jr’s. written explanation of using non-violent tactics
to attempt to end Jim Crow racial segregation policies. It is also an advocation for White moderates to join the cause in calling for
an end to Jim Crow racial segregation policies. The letter demanded that the time for civil rights is now. King wrote, “For years
now I have heard the word ‘wait!’...This ‘wait’ has almost always meant ‘never.’” Patience cannot endure forever. “An injustice
anywhere is a threat to justice everywhere.”
Civil Rights Act (1964): invoked the Constitution’s interstate commerce clause powers to prohibit de jure racial segregation in
places of business and public facilities. The Supreme Court endorsed this attempt to eradicate Jim Crow laws in its Heart of Atlanta
Motel v. US (1964) decision that upheld the validity of the Civil Rights Act of 1964 to make racial discrimination in private
businesses and public facilities illegal.
Voting Rights Act (1965): passed to enforce the 15th Amendment in states that restricted voting by people of color. Banned the use
of literacy tests as a barrier to voting and allowed the federal government to nullify laws in southern states intended to restrict
access to voting by racial and ethnic minorities. The VRA was substantially weakened in the Supreme Court’s Shelby v. Holder
(2015) ruling. The Court majority argued that there was no longer evidence of blatant discrimination against voters that had existed
when the VRA 1965 was passed. States were allowed to install new voting regulations that restricted the number of polling places
and created stricter voter ID laws that voting rights advocates claimed disproportionately limited voting by African Americans and
Hispanics.
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3.11 Explain how the government has responded to social movements
Lessons from civil rights movements of the past can instruct advocates on how to shape and improve policies for future
equity. Systematic racism in the United States did not end with the Civil War amendments or with civil rights acts. Jim
Crow laws segregated and relegated African Americans to second-class citizens. But an end to this type of de jure
racial segregation did not end the de facto racial segregation of life choices that were a legacy of legalized segregation
and other forms of systematic racism.
This type of racism did not become institutionalized by a series of life choices. Institutions contributed to the
institutionalization of racism.
A series of Supreme Court decisions contributed to this institutionalization.
The Court’s majority decision in Dred Scott v. Sandford (1857) excluded enslaved and free Black people from
American citizenship. It was labelled as the Court’s greatest “self-inflicted wound,” and a Civil War had to be fought
and three Civil War amendments had to be added in attempt to correct this decision. Even so, the Supreme Court
continued contributing to a system that established a culture of White supremacy. In U.S. v. Cruikshank (1876), the
Court nullified significant portions of the Civil Rights Act of 1870 that Congress intended to force state governments to
comply with the 14th and 15th amendments. Twenty years later, the Supreme Court ruled in Plessy v. Ferguson (1896)
that “separate but equal” was a tenable interpretation of the 14th Amendment’s Equal Protection Clause. De jure racial
segregation, that is segregation by law, was deemed constitutional and causing de facto segregation to be condoned and
expanded.
Public policy promoting civil rights is influenced by citizen-state interactions and constitutional interpretation over
time. Despite this legacy of Supreme Court defeats, civil rights leaders still looked at the courts and a battleground that
could help to reverse momentum that favored the continuation of de jure racial segregation.
Civil rights attorneys vigilantly brought litigation and lawsuits to state and federal courts in an attempt to chip away at
Jim Crow and other forms of legalized racial inequity. Civil rights attorneys could argue their case in court to convince
a judge or a panel of judges to change policy rather than convince a majority of legislators and overcome legislative
rules that favored opponents of change.
A great judicial victory was won in 1954 in the case Brown v. Board of Education. Brown overturned the Plessy
precedent as it applied to legalized racial segregation in public schools. In Brown, a school district required the racial
segregation of students in its schools. This was allowed under the Plessy standard that permitted legalized segregation
as “separate but equal.” But in Brown, a unanimous Court ruled that race-based public school segregation violates the
14th Amendment’s Equal Protection Clause. Schools could no longer segregate on the basis of race.
It wasn’t until 1954 that the Court began overturning its judicial precedents that had cemented policies of legally
permissible racial segregation throughout the country. Other institutions had made decisions to end racial segregation
years earlier. Major League Baseball had racially integrated in 1947, and President Truman had ordered the racial
integration of the U.S. military in 1948. But there is no denying that the Brown decision validated the decades of work
by civil rights activists battling to end racial segregation. The Court’s decision in Brown brought major attention to the
reality of racial segregation in everyday life and did help to end de jure segregation in the United States by reversing
policy momentum that had favored the continuation of de jure racial segregation.
But the Brown ruling, like almost all other attempts to reduce institutionalized racism in the United States, was met
with defiance. Implementation was not easy, and some argue is still incomplete, because of the resilience of de facto
racism. The Court did rule in the following year, in a case referred to as Brown II, that enforcement of desegregation
would fall to both the local school districts and federal district courts and that legalized racial integration of schools
must be realized “with all deliberate speed.” President Eisenhower assisted integrationists in some cases such as the
“Little Rock Nine” to provide enforcement power to implement Court integration orders that assisted courageous
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school children who walked the front lines into newly integrated schools in the face of defiant, hostile White political
leaders and communities.
With the courts increasingly supportive of this Civil Rights movement, African American leaders turned to Congress.
Leaders organized their supporters to mount political pressure campaigns, encouraged activism and costly boycotts, and
resolved to continue advocating for equity in spite of often violent responses by local governments and White
opponents. Dr. King was jailed during the particularly violent governmental response to 1963 protests against Jim
Crow segregation laws in Birmingham, Alabama. In his Letter from a Birmingham Jail, King invoked the ideals and
promises of equality by Thomas Jefferson in the Declaration of Independence to build support for the cause of ending
racial injustice. He articulated the need for direct action activism to create a tension (even when opponents responded
with violence) that stands ups to injustice rather than condoning the continuation of injustice. He challenged White
moderates who were supportive of the cause of racial justice to understand that “injustice must be rooted out by strong,
persistent, and determined action.” King’s call to activism still resonates with his observation that “injustice anywhere
is a threat to justice everywhere.”
With the help of these activist campaigns, Congress finally passed the Civil Rights Act of 1964 that invoked the
Constitution’s interstate commerce clause powers to prohibit de jure racial segregation in places of business and public
facilities. The Supreme Court endorsed this attempt to eradicate Jim Crow laws in its Heart of Atlanta Motel v. US
(1964) decision that upheld the validity of the Civil Rights Act of 1964 to make racial discrimination in private
businesses and public facilities illegal. Activists were not content. Voting laws needed to change in communities that
systematically prevented African Americans from voting in violation of the 15th and 19th amendments. Direct action
was implemented to challenge authorities that had been disenfranchising Black voters for generations. Again, White
opponents resorted to violent responses including the “Bloody Sunday” attack on a march for voting rights in Selma,
Alabama. This violent response led to an end of enough legislative resistance to finally get congressional approval for
the Voting Rights Act of 1965. These historic pieces of legislation were attempts to establish racial equity and signal a
momentum shift away from the acceptance of legalized segregation, discrimination, and racial prejudice. Voting rights
would be better protected. Rules to suppress political participation by Black Americans through literacy tests were
outlawed. America improved in trying to deliver on its promise of equality for all, but the goal remains unfulfilled.
While the national government has flexed its authority to force states and local governments to end laws that had
institutionalized de jure racial segregation, the reality is that de facto segregation, separation by private choices, still
exists. And a crisis such as the covid 19 pandemic revealed how a legacy of racism and discrimination can lead to
disproportionate effects on people from racial and ethnic minority groups due partly to disparities in access to quality
housing and health care.
African-Americans were not the only groups to win political victories in the wake of the civil rights movement. One of
the more notable victories occurred for women with Title IX of the Education Amendments of 1972. This prohibited
any form of discrimination on the basis of gender in any education program or activity. Educational tracks based on
gender were prohibited. Girls were no longer required to take Home Economics and Typing courses while boys were
free to choose extra math and science classes. Girls’ sports were expected to receive similar funding, facilities, and
college scholarships as boys’ sports. And in the Supreme Court case of Davis v. Monroe (1999), the Court majority
ruled that Title IX allowed female students to sue public schools that tolerated their sexual harassment.
Constitutional provisions have supported and motivated social movements and policy responses. In addition, federalism
can both oppress and liberate as well as block and speed the extension of civil rights. A limited government, like ours,
is not fitted to make dramatic changes in a hurry. Institutional changes to change policies that prevent greater equity
can be slowed by bicameralism, federalism, and the courts. But American political culture includes the ideals of
equality of opportunity, equal justice under law, the protection of liberties, and popular sovereignty. The American
DNA was designed to continue movement toward “a more perfect Union.”
De jure segregation: legalized racial segregation that was used to segregate public schools, public facilities through Jim Crow
laws, and housing with municipal codes that made racial segregation legally permissible. Brown v. Board of Education (1954)
helped lead to an end of de jure segregation of public schools.
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De facto segregation: the de facto racial segregation of communities still exists based on the realities of where different
racial and ethnic communities live. De facto segregation still exists despite different court rulings about policies that
local schools needed to use to comply with judicial decisions. Federal courts ordered busing policies in the 1960s and
1970s in many northern cities in an attempt to reduce the de facto racial segregation of public schools. In cities like
Chicago, these policies did little to disrupt the racial and ethnic segregation that had been made nearly permanent.
Title IX (1972): prohibited any form of discrimination on the basis of gender in any education program or activity. Educational
tracks based on gender were prohibited. Girls were no longer required to take Home Economics and Typing courses while boys
were free to choose extra math and science classes. Girls sports were expected to receive similar funding, facilities, and college
scholarships as boys sports. And in the Supreme Court case of Davis v. Monroe (1999), the Court majority ruled that Title IX
allowed female students to sue public schools that tolerated their sexual harassment.
BIG IDEA: Constitutionalism
3.12 Explain how the Court has at times allowed the restriction of the civil rights of
minority groups and at other times has protected those rights
Constitutional provisions and the language of laws require constant attention and interpretation. The U.S. Supreme
Court is one of those governmental institutions that is supposed to provide that clarity. As former Chief Justice Charles
Evans Hughes said, “We are under a Constitution, but the Constitution is what the judges say it is.” This helps explain
why the arc of civil rights in American history is an inconsistent story. The Court has been both an opponent and
proponent of equity at different points in U.S. constitutional history. At times the courts have allowed minority rights to
be restricted. And at other times courts have tried to protect rights and liberties of minorities.
White supremacy allowed Jim Crow laws and other discriminatory practices to take root and institutionalize racist
policies. While de jure racial segregation based on law was eradicated by courts and laws, it left of a legacy of de facto
segregation and discrimination from private choices. In notable cases, like Plessy v. Ferguson (1896), the Supreme
Court validated laws that codified de jure racial segregation. In Plessy, the Court established the “separate but equal”
precedent. This doctrine existed prior to the 50-years of the Plessy precedent and remains a part of de facto segregation
despite the overturning of this precedent as applied to policies mandating racially segregated public schools in the
Court’s 1954 Brown decision. Plessy was just one governmental act in regard to race that rendered our egalitarian ideal
as a bounced check. The Plessy decision also appeared to uphold a concept loathed by the Framers of the
Constitution— tyranny of the majority.
Inspired by the diligent advocacy of the NAACP and other interest groups of Black peoples, the Court’s decision in
Brown v. Board of Education (1954) case dismantled the legal protection for what had become the common practice of
racially segregating public schools. The Court invalidated race-based segregation in public schools based its reading
and interpretation of the Fourteenth Amendment’s Equal Protection Clause. In the unanimous Court opinion, Chief
Justice Warren wrote:
Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other
"tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We
believe that it does...
Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The
impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as
denoting the inferiority of the [Black] group. A sense of inferiority affects the motivation of a child to learn.
Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of
[Black] children and to deprive them of some of the benefits they would receive in a racially integrated school system...
We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate
educational facilities are inherently unequal.
But the Brown ruling, like other attempts to eliminate institutionalized racism in the United States, was met with
defiance. Implementation was not easy, and some argue is still incomplete because of the resilience of de facto racial
segregation of private choices. The Court did rule in the following year, in a case referred to as Brown II, that
enforcement of desegregation would fall to both the local school districts and federal district courts and that legalized
racial integration of schools must be realized “with all deliberate speed.” President Eisenhower assisted integrationists
in some cases such as the “Little Rock Nine” to provide enforcement power to implement Court integration orders that
assisted courageous school children who walked the front lines into newly integrated schools in the face of hostile
White political leaders and communities.
In later cases, the Court acknowledged that racial segregation did not just exist in the south and was not always the
result of blatantly racist policies. Because of the legacy of de facto racial segregation in communities across the
country, schools within the same district could be almost completely segregated by race and by the demographic
characteristics of different neighborhoods in the school district. A common strategy to integrate public schools in
American cities split by de facto segregation was to bus students across the school district to create more racially
integrated schools. Northern cities saw scenes eerily similar to the scenes in the south two decades prior as some Black
families hesitantly allowed their children to be bused to schools where some White families were vehemently hostile to
the forced racial integration. In many cases, White families opposed to this policy moved to predominantly White
suburban school districts or paid to have their students attend private schools. In these cases, the de facto racial
segregation of schools based on private life choices was beyond the reach of the Brown precedent and the Court’s
activism.
The federal government’s supervision of state voting regulations based on the Voting Rights Act of 1965 was
substantially weakened in the Supreme Court’s Shelby v. Holder (2015) ruling. The Court majority argued that there
was no longer evidence of blatant discrimination against voters that had existed when the VRA 1965 was passed. States
were allowed to install new voting regulations that restricted the number of polling places and created stricter voter ID
laws that voting rights advocates claimed disproportionately limited voting by African American and Hispanic voters.
The tension between majority rule and minority rights continues. Communities large and small still debate equal access
to quality education and equity of achievement by different racial and ethnic groups attending the same school.
Communities debate public safety including the role of police as law enforcement to keep social order as well as
instances of abusive policing tactics that cause mistrust and resentment of how that authority is used. Another debate
about civil rights has been about the public policy of Affirmative Action that has related to admissions policies of some
colleges and universities and hiring policies in some workplaces.
Brown v. Board of Education (1954): Background fact a school district required the racial segregation of students in its
schools. SCOTUS Holding (Decision) Race based public school segregation violates the 14th Amendment’s equal
protection clause.
3.13 Affirmative Action
Affirmative Action can be described “as a civil rights policy premised on the concept of group rather than individual
rights.” Affirmative Action has been an attempt to address and rectify past discriminatory hiring and admissions
practices. Classes of people who have been adversely impacted and under-represented minorities can claim they have
been discriminated against. As a result, public and private employers and schools must demonstrate that these
“protected classes” have been provided equal opportunities. But a tension arises as to whether Affirmative Action
programs go too far to deliver equality of opportunity while not achieving satisfactory equity of results.
Affirmative Action policies began with executive orders by presidents John Kennedy and Lyndon Johnson to “to
ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin." The Committee
on Equal Employment Opportunity was also created at this time and contractors with the government were directed to
expand job opportunities for minority groups including women.
Some opponents of Affirmative Action programs claim the program establishes racial quotas for hiring that leads to
reverse discrimination against White applicants. Some skeptics claim that just creating an equal opportunity in the
hiring process for minority applicants does not do enough to erase the cost of centuries of institutionalized racism to
create equity for marginalized populations. Others insist the Constitution commits to a colorblindness that looks beyond
race, ethnicity, and national origin.
The Supreme Court has provided legal perspective on Affirmative Action programs:
In the Supreme Court case Regents of California v. Bakke (1978), the Court opinion stated that race conscious policies
adopted as a remedy for proven discrimination were permissible under the Civil Rights Act and the Constitution. But
the Court also ruled against the medical school’s use of a quota to place a certain number of minority applicants into the
program.
Despite the Reagan administration’s attempt to prevent the expansion of Affirmative Action policies in the 1980s, the
Supreme Court reaffirmed the legality of quotas for a union that had previously discriminated against minority
applicants. Courts could order race-conscious relief to correct past discrimination. In Johnson v. Santa Clara County
(1987) the Court acknowledged that Affirmative Action could be used to make race or gender as “one factor” in
selecting from qualified applicants.
The Supreme Court hinted at their lack of patience with Affirmative Action policies in college admissions before ruling
race conscious college admissions processes to be unconstitutional in 2023. It rejected points system applications that
award points for underrepresented minority applicants but then allowed universities to consider race and ethnicity
among the factors to try to increase the diversity of underrepresented minorities on campus in cases such as Gratz v.
Bollinger (2003) and Fisher v. Texas (2013).
In 2023, a 6-3 U.S. Supreme Court majority ruled the race conscious Affirmative Action policies at public universities
(UNC-Chapel Hill) and private universities (Harvard College) violated the Equal Protection Clause of the 14th
Amendment. An interest group (Students for Fair Admissions) sued each school contending that their admissions
policies were racially and ethnically discriminating.
Affirmative Action programs were put in place with the intent to offer racial minorities and women a chance to catch
up from past discrimination. No matter whether the policy is viewed as an attempt create racial equality or deliver
equity from past discrimination, the work to improve racial disparities is not over. After the Court’s decision in
Students for Fair Admissions v. Harvard College (2023) is thought colleges will likely implement admissions policies
similar to the California’s university system that, by state law, “prohibits the consideration of an applicant’s race and/or
gender in individual admissions decisions.”
On the issue of LGBT rights, the Court has made a significant swing to protecting the rights of homosexuals. In 1986,
the Court allowed states to continue criminalizing consensual homosexual sex in its Bowers v. Hardwick majority
ruling. By 2003, the Court invalidated state laws that criminalized consensual sex between men and between women in
Lawrence v. Texas (2003). With increasing public support for granting same-sex couples legal marriage rights and the
addition of newer Supreme Court justices by 2015, the Court mandated that all states and local governments grant equal
marriage rights to same-sex couples in Obergefell v. Hodges. While some criticized the Court for delaying this
recognition of equal rights, all state and local governments fully complied with the Court’s Obergefell ruling within
months. In 2022, after the Court’s decision in Dobbs in which Justice Thomas filed a concurring opinion in favor of
reversing the Court’s Obergefell decision, Congress passed a bill (Respect for Marriage Act) to mandate that states
legally recognize same-sex marriage rights. The legislation was signed into law by President Biden.
In a 2020 case, a Court majority in Altitude Express v. Zarda, Bostock v. Clayton County (2020) ruled that the Civil
Rights Act (1964) prohibited businesses from discriminating against the employment of LGBT employees based on the
plain meaning of the text and words of the law. Justice Neil Gorsuch wrote that Civil Rights Act of 1964 protected
employees against sex discrimination and the termination of employees for their sexual orientation or their gender
identification because these employment decisions did rise to the textual definition of sex discrimination prohibited by
the Civil Rights Act of 1964.
In contrast to this more recent trend of protecting LGBT rights, a 6-3 U.S. Supreme Court majority ruled in a 2023 case
that Colorado’s state public accommodation law violated the First Amendment right to free expression for a website
designer who did not want to create a wedding website for same-sex couples in violation of her religious beliefs.
Affirmative Action: programs were first put in place by the federal government to offer racial minorities and women a chance to
catch up from past discrimination. Public and private employers and schools must demonstrate that these “protected classes” have
been provided equal opportunities. Courts ruled against the use of racial quotas in Affirmative Action programs but allowed these
programs to use race or gender as “one factor” in selecting from qualified applicants until a 2023 U.S. Supreme Court ruling
disallowed race-conscious admissions in a 6-3 decision holding that race conscious admissions policies violate the Equal Protection
Clause of the 14th Amendment.
Unit 3 Glossary
Civil liberties: protection of individuals from abuse by the government. Civil liberties include the rights to speech, petition,
assembly, religious practice, gun ownership, fair trials, due process, and the protection against government sponsored religion,
unreasonable searches, and cruel and excessive punishments. Civil liberties originate from inalienable natural rights referred to in
the Declaration of Independence that are shared equally by each and every individual citizen. Civil liberties are codified in the U.S.
Constitution with our national Bill of Rights and similar statements found in all fifty state constitutions.
Political rights: protections to participate in the political process of shaping governmental policies. Political rights include the
rights to assemble, to speak in opposition to the government, and to petition the government for change.
Civil rights: protection of groups from discrimination by governmental and private actions. Civil rights protections can include
employment, voting, and housing protections based on gender, race, ethnicity, national origin, religion, and age. Civil rights
originate in the Declaration of Independence’s reference that all “are created equal” and were codified in the U.S. Constitution with
the Equal Protection Clause of the 14th Amendment.
Bill of Rights: first 10 Amendments of the Constitution that codify civil liberties that protect individuals from abuse by the
government. Among the civil liberties protected in the Bill of Rights include the rights to speech, petition, assembly, religious
practice, gun ownership, fair trials, due process, and the protection against government sponsored religion, unreasonable searches,
and cruel and excessive punishments. The 10th Amendment also guarantees powers to state governments with the Reserved Powers
Clause.
Establishment Clause: Part of the First Amendment’s religious protections stating that government cannot make laws “respecting
the establishment of religion.” This prevents government from creating an official religion as well as favoring one religion over
another or acting with bias against religions. The Establishment Clause is commonly linked with legal cases pertaining to the
separation of church and state (religion and government.)
Separation of Church and State: Commonly linked with the First Amendment’s Establishment that prevents excessive
cooperation between governmental actions and religious groups. This phrase was first used by Thomas Jefferson when describing
the Establishment Clause as “building a wall of separation between Church & State.” This principal was first used in a SCOTUS
case Everson v. Board of Ed (1947) and later in Engle v. Vitale (1962) in which SCOTUS ruled that school sponsorship of prayer
and religious activities violate First Amendment’s establishment clause.
Engle v. Vitale (1962): Background fact A state educational board allowed for public-school students to publicly recite prayers.
SCOTUS Holding (Decision) School sponsorship of prayer and religious activities violate First Amendment’s establishment clause.
The SCOTUS decision in Kennedy v. Bremerton School District (2022) provided a different interpretation of the First
Amendment’s Free Exercise Clause, the Establishment Clause, and the separation of church and state. A 6-3 split of SCOTUS held
the coach of a public school’s football team had a First Amendment Free Exercise right to pray during postgame events.
Free Exercise Clause: Part of the First Amendment’s religious protections stating that government cannot make laws “prohibiting
the free exercise” of religion. This prevents government from inhibiting religious practices unless those religious practices
contradict laws that are not directed specifically toward religious practice and that are enforced as a compelling governmental
interest. SCOTUS upheld the religious liberty protections of Amish families in the case of Wisconsin v. Yoder (1972) in which
SCOTUS ruled that forcing Amish students to attend school past 8th grade violates the First Amendment’s Free Exercise clause.
Wisconsin v. Yoder (1972): Background fact The state government tried to require all students to attend school until 16 with no
exceptions for religious groups. SCOTUS Holding (Decision) forcing Amish students to attend school past 8th grade violates the
First Amendment’s Free Exercise clause.
Symbolic speech: when a political message is conveyed without using spoken or written words. Symbolic speech legal cases have
involved acts such as the wearing of arm bands (Tinker v. Des Moines, 1969), the burning of an American flag (Texas v. Johnson,
1989) and the burning of a cross (Virginia v. Black, 2002).
Tinker v. Des Moines (1969): Background fact A school district punished student’s symbolic speech against the US war policies
in Vietnam. SCOTUS Holding (Decision) Public school students had First Amendment free expression right to wear black
armbands in school to protest the Vietnam War.
Time, place and manner restrictions: reasonable regulations that a government can use to restrict speech include time, place and
manner constraints in which a government can direct a group of speakers where and when speech can take place so as to protect
public safety. Speech that disrupts public order and incites violence can be restricted by the government. Time, place and manner
restrictions mandate that government allows free speech liberties with the ability to protect public order.
Defamation: speech that causes reputational and monetary harm that can be punished through civil lawsuits. Libel is written
defamation that is published and slander is spoken defamation that is broadcast. In American courts, civil liability is based on an
intent of “actual malice” in the distribution of false information.
Clear and present danger: the legal standard from Scheck v. U.S. (1919) in which speech to encourage avoiding the military draft
was allowed to be punished for the possibility of causing a danger to national defense. This legal standard was later changed so that
government could punish speech that incited “imminent lawless action.” (Brandenburg v. Ohio, 1969).
Schenck v. U.S. (1919): Background fact The US government punished the speech of a peace activist advocating for men to avoid
the draft in World War 1. SCOTUS Holding (Decision) Speech creating “clear and present danger” is not protected by the First
Amendment and can be punished by the government.
Prior restraint: the attempt by government to restrict the distribution of written or broadcast speech. In the case of New York
Times v. U.S. (1971) SCOTUS strengthened the First Amendment’s protection of press freedoms by establishing “heavy
presumption against prior restraint” even in cases involving national security.
New York Times v. U.S. (1971): Background fact The US government attempted to restrain the publication of classified
information by newspapers prior to publication. SCOTUS Holding (Decision) Strengthened the First Amendment’s protection of
press freedoms by establishing “heavy presumption against prior restraint” even in cases involving national security.
Second Amendment: “the right to bear arms.” States and municipal governments were mandated by SCOTUS to extend individual
right to bear arms in its ruling in McDonald v. Chicago (2010).
McDonald v. Chicago (2010): Background fact A city government enforced a law restricting hand gun possession by any city
resident. SCOTUS Holding (Decision) The Second Amendment’s right to bear arms for self-defense in one’s own home is
applicable to state and local governments through the 14th Amendment’s due process clause.
Selective Incorporation: SCOTUS used a case-by-case approach to apply the protections of parts of the Bill of Rights to states and
local governments based on the Due Process Clause of the Fourteenth Amendment. Under the Barron (1833) precedent, the Bill of
Rights had originally been interpreted to only apply to the national government. Selective incorporation extended civil liberties
more broadly to all fifty states and enlarged the scope and scale of the federal government to expand individual protections from
government abuse.
Due Process Clause (14th Amendment): used by the Supreme Court to incorporate (apply) the guarantees of much of the Bill of
Rights to the States. Used by SCOTUS to extend civil liberties more broadly to all fifty states and enlarged the scope and scale of
the federal government to expand individual protections from government abuse.
Eighth Amendment: protection from cruel and unusual punishments. Capital punishment (the death penalty) has been ruled
unconstitutional and now constitutional by the Supreme Court. SCOTUS incorporated 8th Amendment protections from excessive
fines by states in 2019 when it limited state powers to collect asset forfeiture fines.
Fourth Amendment: protects individuals from unreasonable searches and seizures by law enforcement officers. When this
constitutional protection is violated, SCOTUS has ruled that the exclusionary rule in criminal cases means that evidence seized
through unreasonable searches must be excluded from being used against a criminal defendant. More restrictive interpretations of
the Fourth Amendment by federal courts in recent years have narrowed the use of the exclusionary rule.
Probable cause: objective circumstances or evidence that a crime has been committed or will be committed. To obtain a judge’s
approval for a search warrant, law enforcement often has to provide probable cause as the basis for a legally permissible search. A
law enforcement search of a vehicle does not require a search warrant but does require a law enforcement officer to articulate the
probable cause that led to the search in which evidence was seized for a criminal trial.
Fifth Amendment: provides some criminal due process liberties including the protection from self-incrimination if being forced to
answer law enforcement questions or testify against one’s self at trial (right to remain silent) and protection from double jeopardy
to be charged with the same crime twice. Also provides protection against private property being taken away without just
compensation also known as eminent domain.
Sixth Amendment: provides some criminal due process liberties such as criminal trial rights. Protections include the right to a
public trial, a speedy trial, and the right to have an attorney. Until the incorporation of criminal due process rights to state and local
courts by SCOTUS in the 1960s, these protections only applied to the federal (national) government were little known. The right to
attorney, for instance, was not incorporated until 1963 SCOTUS ruling in Gideon v Wainwright.
Miranda rule (aka Miranda rights, Miranda warning): guarantees that state and local law enforcement officers notify suspected
criminals in custody of due process rights prior to interrogation. SCOTUS ruled in the case of Miranda v. Arizona (1966) that state
and local law enforcement must tell criminal suspects that they have the right to remain silent and the right to counsel before
questioning the suspect about a crime. SCOTUS ruled that information provided by a criminal suspect who has not been read these
Miranda rights could be excluded from being used as evidence in criminal trials. More restrictive interpretations of the Miranda
rule by federal courts in recent years have narrowed the use of the exclusionary rule as applied to self incrimination in these types
of criminal cases.
Due process rights: Procedural due process rights require government to treat criminal defendants fairly according to a set of fair
and consistent rules. (Substantive due process rights require government to allow individuals to make certain life choices such as
marriage and parenting without overly restrictive government interference.)
Gideon v. Wainwright (1964): Background fact A state court denied an accused felon the right to an attorney at the criminal trial.
SCOTUS Holding (Decision) All states must guarantee the 6th Amendment right to an attorney in all felony cases for the poor and
the indigent accused.
Exclusionary rule: When Fourth Amendment protections from an unreasonable search and seizure is violated, courts are supposed
to not allow evidence seized to be used against a criminal defendant at trial. This civil liberty protection against governmental
abuse was incorporated for state and local courts to follow in the SCOTUS ruling of Mapp v. Ohio (1961).
USA Patriot Act (2001): allow federal law enforcement to conduct more warrantless searches in order to prevent acts of terrorism.
This law was passed by Congress after the 9/11/2001 terrorist attacks allowing warrantless searches of bank accounts in which
financial institutions were not allowed to reveal that a search had taken place.
Intelligence Reform and Terrorism Prevention Act (2004): allows the Central Intelligence Agency (CIA) and the Federal
Bureau of Investigation (FBI) to coordinate law enforcement information through the position of the National Intelligence Director.
This sharing of information between the CIA and FBI had not been allowed since abuses of this information related to the
Watergate Scandal during the Nixon Administration. This law was passed in 2004 as a result of failures to coordinate intelligence
related to investigations of possible terrorist activities prior to the 9/11/2001 terrorist attacks.
Foreign Intelligence Surveillance Acts Amendments (2008): Changes to the 1978 FISA that allowed for the federal government
to conduct warrantless searches of private telecommunication information without notification by telecom companies. Edward
Snowden revealed these types of surveillance programs before fleeing to Russia in 2013.
Right to privacy: protection of a woman’s right to access birth control and abortion procedures. In Roe v. Wade (1973), state’s
strict prohibitions of access to abortion procedures were nullified by the SCOTUS ruling that the right to privacy should be
extended to a woman’s decision to have an abortion.
Penumbra: legal zone that infers a right to privacy in parts of the 1st, 3rd, 4th, 5th and 9th amendments. The Court used this inferred
constitutional right to privacy to decide in Griswold v. Connecticut (1965) that this right to privacy extended to a woman’s legal
right to access contraceptive birth control without prohibition of birth control by a state government.
Roe v. Wade (1973): Background fact A state government restricted women from getting abortions. SCOTUS Holding (Decision)
Extended the right to privacy to a woman’s decision to have an abortion. The SCOTUS decision in Dobbs v. Jackson Women’s
Health Organization (2022) overturned its decision in Roe and allows states to set their own regulations of abortion
Equal Protection Clause: empowered the national government over the states in areas relating to civil rights. The equal protection
clause has been used by SCOTUS to embolden the national government’s civil rights protections by ruling for an end to racial
segregation in public schools.
Social movement: pluralist democracy in which people speak out to governmental leaders demanding change in a broad policy
areas. Examples include the racial civil rights movement of the 1960s, the women’s liberation movement of the 1970s, the pro life
(anti abortion) movement of the 1980s, the gay rights movement of the 1990s and 2000s and the Black Lives Matter movement of
the 2010/20s.
Letter from a Birmingham Jail (1963): The Reverend Martin Luther King, Jr’s. written explanation of using non-violent tactics
to attempt to end Jim Crow racial segregation policies. It is also an advocation for White moderates to join the cause in calling for
an end to Jim Crow racial segregation policies. The letter demanded that the time for civil rights is now. King wrote, “For years
now I have heard the word ‘wait!’...This ‘wait’ has almost always meant ‘never.’” Patience cannot endure forever. “An injustice
anywhere is a threat to justice everywhere.”
Civil Rights Act (1964): invoked the Constitution’s interstate commerce clause powers to prohibit de jure racial segregation in
places of business and public facilities. The Supreme Court endorsed this attempt to eradicate Jim Crow laws in its Heart of Atlanta
Motel v. US (1964) decision that upheld the validity of the Civil Rights Act of 1964 to make racial discrimination in private
businesses and public facilities illegal.
Voting Rights Act (1965): passed to enforce the 15th Amendment in states that restricted voting by people of color. Banned the use
of literacy tests as a barrier to voting and allowed the federal government to nullify laws in southern states intended to restrict
access to voting by racial and ethnic minorities. The VRA was substantially weakened in the Supreme Court’s Shelby v. Holder
(2015) ruling. The Court majority argued that there was no longer evidence of blatant discrimination against voters that had existed
when the VRA 1965 was passed. States were allowed to install new voting regulations that restricted the number of polling places
and created stricter voter ID laws that voting rights advocates claimed disproportionately limited voting by African Americans and
Hispanics.
Title IX (1972): prohibited any form of discrimination on the basis of gender in any education program or activity. Educational
tracks based on gender were prohibited. Girls were no longer required to take Home Economics and Typing courses while boys
were free to choose extra math and science classes. Girls sports were expected to receive similar funding, facilities, and college
scholarships as boys sports. And in the Supreme Court case of Davis v. Monroe (1999), the Court majority ruled that Title IX
allowed female students to sue public schools that tolerated their sexual harassment.
De jure segregation: legalized racial segregation that was used to segregate public schools, public facilities through Jim Crow
laws, and housing with municipal codes that made racial segregation legally permissible. Brown v. Board of Education (1954)
helped lead to an end of de jure segregation of public schools.