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Constitutional Law: Unit 3 Review Outline - Legal Basis of Civil Liberties

Civil Liberties vs. Civil Rights

• Define: Civil Liberties and Civil Rights

•  Civil liberties are rights that are enumerated in the first 10 amendments. They are fundamental rights that legally protect Americans guaranteed by the Constitution. 

• Civil rights are legal protections that ensure equality and equal protection with no discrimination, implied by the amendments. 

• Where are civil liberties and civil rights located in the Constitution? 

• Civil liberties are located in the bill of rights. Civil rights are implied by the 14th amendment and described in their own independent documents and acts. 

• What is the incorporation doctrine? 

• A principle that practices incorporating or applying the rights guaranteed by the bill of rights into states.

Incorporation and the 14th Amendment

• What are the two main clauses of the 14th amendment? Define them. 

• Due process: guarantees equal protection under the law under the judicial system, having equal access to lawyers, juries, and public trials. Fair laws and processes. 

• Equal protection: people are treated equally under the law. 

• Identify: Privileges and immunities. 

• Protects citizens from discrimination between states and guarantees equal treatment under the law. It also protects the right to travel. 

• Describe the importance of the following cases:

  • Barron v. Baltimore (1833)

• Limited Bill of Rights to Federal government. The Supreme Court ruled that the Bill of Rights only applied to the federal government, not state governments, reinforcing federalism by restricting national authority over state laws.

• Foundation for incorporation doctrine. The case set the stage for later changes in constitutional interpretation, as it was eventually overturned through the selective incorporation process via the 14th amendment in later cases. 

• Gideon v. Wainwright (1962)

• Right to counsel for defendants. The court ruled that states must provide legal counsel to defendants who cannot afford an attorney, strengthening the 6th amendment guarantee of a fair trial in states. 

• Applied the 6th amendment through the due process clause, expanding individual rights against state actions. 

Freedom of Speech

• What types of speech can the government restrict?

  • Libel - Libel is a form of defamation attempting to damage another’s reputation. Chaplinsky v. New Hampshire deems libel as unprotected as it is along the lines of obscenity and fighting words. 

  • Obscene - Obscene speech is speech defined to fit into one of three categories: 

• Prurient interest: interest in sex that is shameful or morbid.

• Patently Offensive: The material must depict or describe sexual conduct in a patently offensive way, meaning clearly offensive based on contemporary community standards.

• Lacks Serious Value: The material, taken as a whole, must lack serious literary, artistic, political, or scientific value.

• In Roth v. US, the Court held that obscenity was not "within the area of constitutionally protected speech or press" and wouldn’t protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance."

• Inciting violence - Brandenburg v. Ohio established the imminent lawless action test, which stipulates that speech intended to incite immediate unlawful acts is unprotected. Speech inciting violence could be crossing the line of the right to peaceably assemble, where one incites a group to commit violent acts which wouldn’t be peaceful and threaten national security. 

• Describe the importance of the following cases:

  • Schenck v. United States (1919) 

• Schenck was distributing leaflets to people in the public to refuse the draft and questioned its legality, but still advised only peaceful action. The court prosecuted Schenck for violating the Espionage Act, which made it illegal to publish anything that would interfere with wartime efforts. The Supreme Court found that the Espionage Act was constitutional, and his arrest was under appropriate use of Congress’ wartime authority. 

• The case also established the “clear and present danger” test in which speech could be protected if significant harm were to follow the speech. In this case, the clear and present danger would be the war effort having less men and risking the national security of the US in the war. 

• Chaplinsky v. United States (1942)

• Chaplinsky v. New Hampshire deems libel as unprotected as it is along the lines of obscenity and fighting words. 

• In New Hampshire, Chaplinsky was arrested under a state law that prohibited offensive, derisive, or annoying speech towards anybody lawfully in New Hampshire. The unanimous court found that Chaplinsky’s words were “fighting words” that caused a direct harm to the target and could damage their reputation and immediately cause a “breach of the peace,” deeming fighting words as unprotected by the constitution. 

• Brandenburg v. Ohio (1969)

• Brandenburg v. Ohio established the imminent lawless action test, which stipulates that speech intended to incite immediate unlawful acts is unprotected. Brandenburg was convicted of inciting violent actions in his speech at a KKK rally under a state law prohibiting the action of advocating violence and crime. The court conferred with the state law, producing the imminent lawless action test that checks if the speech “"directed at inciting or producing imminent lawless action" and was "likely to incite or produce such action."

Freedom of Religion

• What are the two clauses of freedom of religion?

• The Free Exercise Clause: The free exercise clause states that the people have the right to practice their religion freely without government or state interference that prohibit their exercise. 

• The Establishment Clause: Prohibits the federal and state governments from establishing a “religion of the land” or a national or statewide religion. It prohibits the federal and state governments from passing laws that favor or or oppose a certain religion, maintaining a separation of church and state. 

• Describe the importance of the following cases:

  • Engel v. Vitale (1962)

• Employment Division v. Oregon (1990)

• Church of Lukumi Babalu Aye v. City of Hialeah (1993)

2nd Amendment

• Why is this amendment so controversial? Explain. 

• What is a “carry and conceal” law? Explain.

• What is a “red flag” law? Explain. Are they constitutional?

• Describe the importance of the following cases:

  • U.S. v. Miller (1939)

  • D.C. v. Heller (2008)

  • McDonald v. Chicago (2010)

Due Process

• What is the difference between the 5th and 14th amendments as it pertains to due process?

• Substantive vs. Procedural due process

• Define the following:

  • Habeas Corpus

  • Bill of Attainder

  • Ex Post Facto

• Know the 4th, 5th, 6th, 8th, and 14th amendments.