Chapter 8 - AP GOV
8.1 - The constitution and bill of rights
Founding principles of American republic= individual liberty
Fundamental rights and freedoms the government cannot restrict
Civil liberties - fundamental rights and freedoms protected from infringement by the government
Civil rights - protections from discrimination as a member of a particular group
Traitor - compromised national security
- Violated the Espionage Act of 1917
Hero- publicized the government’s collection of citizens’ private conversations and electronic communications
Government used technology to spy on citizens
Acting on duty to protect privacy and freedom
Snowden, contractor for NSA, former employee of CIA
Stole more than a million classified files that he downloaded from a government database
Leaked to newspaper
Raised important questions about the power of the government over American privacy rights
Bill of Rights- a list of fundamental rights and freedoms that individuals possess
First 10 amendments to the U.S. Constitution
Debate in 1787 over necessity of such a document
State governments had their own versions in their constitutions
Certain protections placed in Articles of the Constitution
Habeas corpus, ex post facto, jury trials
Powerful argument of the Antifederalist when a comprehensive list was not included in Constitution
Anti Federalists argued a list of fundamental rights was a necessary protection against growth of central power
Hamilton, a federalist, argued it was not a necessity
1) Government designed to protect individual rights
2) Dangerous to liberty because no list would be complete, leaving room for abuse
Bill of Rights added as a separate document
James Madison drafted 12 amendment
Formally ratified ten in 1791
First - Freedom of religion, speech, press, assembly, right to petition
Second and Third - involve firearms, quartering of soldiers and formation of militias
Fourth through Eighth - guarantee rights of Americans accused of a crime
Ninth - citizens have rights beyond the Bill of Rights
Tenth - reserved powers for the states
8.2- Selective Incorporation
The Bill of Rights did NOT apply to the states
Language specifically protects citizens from FEDERAL government
The bill of rights has been applied (incorporation) to the states over the time on a case-by-case basis (selective)
Gitlow v. New York (1925)
Charged under a New York anarchy law for distributing weekly newspaper criticizing American during World War I
Argued the New York law violated his rights under the Fourteenth Amendment
Court ruled with New York, but it started selective incorporation
The 14th amendment (1868) laid the foundation for extending the protections of the Bill of Rights to state laws and actions
Due process clause- no State can deny a person “life, liberty, or property without due process of law”
There are limits to the states
8.3 - The Right To Religious Freedom
Establishment clause- protection against the government requiring citizens to join or support a religion
Free exercise clause- protection of the rights of individuals to exercise and express their religious beliefs
Jefferson used the phrase “wall of separation" to describe this clause. This is where the phrase separation of church and state comes from.
Students may not pray during instructional time but may at their own discretion during non- instructional time
May participate in organized religious student groups and clubs under same rules as secular clubs
School officials may not encourage or discourage prayer but may participate when not in their official capacity
“Lemon test” created to set guidelines for what is permissible under the establishment clause
Lemon v. Kurtzman (1971)
Programs that supplemented salaries of teachers and provided educational materials in religiously based private schools for the purpose of teaching nonreligious subjects
SCOTUS struck down both programs
1) Money must be secular in purpose
2) effects must neither advance nor inhibit religion
3) Must not foster excessive entanglement between government
Engel v. Vital (1962)
Facts: A school in a New York school district began each day with a non-denominational prayer read over the PA system
Issue: Does school-sponsored prayer violate the establishment clause?
Decision/Rationale: The reading of school-sponsored violated the establishment clause because students did not have a choice in whether they heard the prayer or not. In a sense, they were a captive audience and as such the government (the school district) was favoring a particular religious view
Wisconsin v. Yoder
Facts: Amish parents challenged state of Wisconsin compulsory school attendance law that required children to attend school till the age of 16
Issue: Do compulsory school attendance laws violate the free exercise of the Amish religion?
Decision/Rationale: Yes. The court ruled that forcing Amish children to go to school after the 8th grade violated the free exercise clause. This was because it interfered with the right of the Amish to finish their child’s education in their faith.
8.4 - The Right Of Expression
Freedom of expression - a fundamental right affirmed in the First Amendment to speak, publish, and protest
Criticizing those in power is a cornerstone of American civil liberties
The right to publish, speak and assemble comes without fear of retribution or imprisonment
Libel - an untrue written statement that injures a person’s reputation
Slandar- an untrue spoken expression that injures a person’s reputation
To win a case, an aggrieved party must prove that statements were made with the knowledge that they were untrue
New York Times v. Sullivan (1964)
A Montgomery, Alabama, official won a $500,000 lawsuit against the New York Times for a full-page advertisement that the newspaper published accusing Alabama officials of using excessive force during student protests
Scotus overturned the lower court ruling
The advertisement was not published with “actual malice”
Hate speech is speech that has no other purpose but to express hatred, particularly toward members of a group identified by racial or ethnic identity, gender, or sexual orientation
Hate speech ordinances prohibiting burning crosses or Nazi swastikas have been overturned by the court
Campuses instituted hate speech codes for student conduct.
Words, images, or videos that depict sexual activity in an offensive manner and that lack any artistic merit
Roth v. United States (1957)
Defined the standard for obscenity
“Whether the average person, applying contemporary community standard, the dominant theme of the material, taken as a whole, appeals to prurient interest”
Miller v. California (1973)
Miller test- three criteria must be met for material to be obscene
1) Material must be “patently offensive”
2) “Utterly without redeeming social value”
3) “Contemporary community standard”
Public policy
Difficult to define “community standards” for online material
Court stuck down Communications Decency Act
Restrictions too vague and restrictive
“Chilling effect on free speech”
First Amendment grants special protection to free speech in public
Heavy burden placed on government attempt to restrict speech in the public forum
Government may impose reasonable restrictions on time, place, and manner
File permits before conducting marches
Public order and safety
Has received less attention from SCOTUS than religion and speech
Incorporated with Dejonge v. Oregon (1937)
Court overturned Oregon law under which a member of the Communist Party had been convicted and sentenced to seven years in prison for holding a public meeting
“The very idea of a government, republican in form, implies a right on the part of citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances” - Chief Justice Hughes
Highly charged topic
Meaning not defined by the court until recently
District of Columbia v. Heller (2008)
Overturned DC ban on handgun ownership for the purpose of self-defense within an individual's home
McDonald v. Chicago (2010)
Facts: Policy in Chicago made handgun possession near impossible. McDonald sued arguing that thus violated his 2nd Amendment rights
Issue: Is the 2nd Amendment a fundamental right that should be incorporated to state action?
Decision/Rationale: The 2nd Amendment is a fundamental right and applies to state and local laws
The Court still allowed for reasonable gun restrictions
How do governments balance the needs of national security with the fundamental rights of political expression?
In times of war, political expression is often suppressed
Espionage Act of 1917
Schenck v. United States (1919)
Facts: Schenck printed and distributed anti war leaflets encouraging young men to not comply with the military draft and was charged with violating the Espionage Act
Issue: Does the First Amendment’s freedom of speech protect Schenck’s actions?
Decision/Rationale: The First Amendment does not protect this speech because it represented a “clear and present danger”
Clear and present danger” test - legal standard that speech posing an immediate and serious threat to national security is not protected by the First Amendment
Prior Restraint- the suppression of material prior to publication on the grounds that it might endanger national security
New York Times Co v. United States (1971)
Facts: The Nixton administration attempted to prevent the New York Times and Washington Post from publishing classified materials (pentagon papers)
Issue: Does the First Amendment’s freedom of the press protect a newspaper’s decision to publish potential sensitive material?
Decision/Rationale: The First Amendment does protect a newspaper’s ability to publish the material
Free press fulfills an essential role in democracy, so the government cannot exercise prior restraint.
Protected expression in the form of images, signs, and other symbols
Tinker v. Des Monies Independent Community School District (1969)
Facts: John and Mary Beth Tinker wore black armbands to their public school to protest the Vietnam War
They were suspended when they refused to remove them
Issue: Does the First Amendment’s freedom of speech allow the Tinkers to protest the Vietnam War in this way?
Decision/Rationale: Yes. The First amendment protects symbolic speech as well as verbal speech
In addition, the protest did not disrupt the learning environment
8.5 - Right of Defendants
The Constitution provided some protection to those accused and convicted of crimes
Ex post facto - laws criminalizing conduct that was legal at the time it occurred
Cannot be punished for something if it wasn’t illegal when you did it
Bill of attainder - a law passed by Congress punishing an individual without a trial
Congress is not a court
Writ of habeas corpus - a document setting out reasons for an arrest or detention
Procedural due process - a judicial standard requiring that fairness be applied to all individuals equally
Government must obtain a warrant before searching people or places.
Warrant - a document issued by a judge authorizing a search
Probable cause - reasonable suspicion that a crime has been committed or that there is evidence relevant to a criminal investigation
Mopp v. Ohio (1961) established the exclusionary rule, a rule that evidence obtained without a warrant is inadmissible in court
The Fourth Amendment’s protections are not absolute
“Reasonable suspicion"
“In plain sight”
Procedural due process for criminal defendants
Grand jury - a group of citizens who decide whether or not a person should be indicted on criminal charges and subsequently tried in court
Double Jeopardy - protects an individual acquitted of a crime from being charged with the same crime again in the same jurisdiction
Miranda v. Arizona (1966) established Miranda Right
The right to remain silent to have an attorney present during questioning. These rights must be given by police to individuals suspected of criminal activity
Prohibits excessive bail, an amount of money posted as a security to allow the defendant to be freed while awaiting trial, and cruel and unusual punishment
Death penalty cases most relevant
Furman v. Georgia (1972)
Gregg v. Georgia (1976)
Capital punishment is not cruel and unusual, but certain methods and situations could be restricted
Speedy trial, tried in front of an impartial jury, attorney present at trial
Right to an attorney extended to anyone unable to afford one in Gideon v. Wainwright
Robbery and conviction of Clarence Earl Gideon
Florida court denied his request for an attorney, and he defended himself
Appealed saying trial court violated his Sixth Amendment rights
He won his appeal
Gideon v. Wainwright (1963)
Facts: Gideon charged in Florida state court with felony. When requested a lawyer, he wasn’t given one since in Florida, they are only appointed to indigent defendants in capital cases
Issue: Does the Sixth Amendment’s right to counsel in criminal cases extended to felony defendants in state courts?
Decision/Rationale: The Sixth Amendment’s guarantee of right to assistance of counsel applied to criminal defendants in state court by way of the Fourteenth Amendment
8.6 - privacy
Griswold v. Connecticut (1965)
The constitution protects the right to privacy
Overturned a Conneticul law that prohibited the provision of contraceptives and medical advice about contraceptive techniques
The Bill Of Rights implicitly protects privacy
First, Third, Fourth, and Ninth Amendments
Extension of this right beyond contraception and into the bedroom
Lawrence v. Texas (2003)
Struck down a texas sodomy law making same sex-sexual conduct illegal
Right to privacy includes freedom of thought, belief, expression, and certain intimate conduct
Opponents: violates their deeply held religious conviction that terminating a pregnancy is murder of the unborn
Proponents: women should have the right to choose whether or not to terminate a pregnancy
Roe v. Wade (1973)
Facts: Norma McCorvey, a single woman who lived in Texas, sought an abortion but could not receive one because state law only allowed abortion in cases where the mother’s life was in jeopardy.
Issue: Does the right to privacy allow a woman to seek an abortion
Decision/Rationale: Yes, the right to privacy does allow a woman to seek an abortion during the first trimester because the state does not have a compelling interest regarding the fetus. After the first trimester, the state may create restrictions as long as they do not constitute and “undue burden” on a woman seeking an abortion.
Addresses one main worry about the bill of rights - some rights might not be listed
Individuals have rights in addition to those expressly mentioned