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