Do constitutions protect civil liberties against infringement by private individuals (or businesses) or do constitutions only protect against infringement by government?
Government
b. Did civil liberties listed in the Bill of Rights of the U.S. Constitution apply to actions taken by state governments prior to the Civil War? Did they apply to actions taken by the federal government prior to the Civil War?
i. Before the war, the US constitution only protected civil liberties from interference by the US federal government
c. What is judicial review? What does it have to do with how civil liberties are enforced in practice?
i. Authority of courts to decide whether an act of government is constitutional or not
ii. If a citizen feels like their civil liberties have been violated, they can seek to get the government action declared unconstitutional in court
d. What is "Incorporation"? What does it have to do with the Due Process Clause of the 14th Amendment?
when the US Supreme Court holds that a civil liberty from the Bill of Rights applies to state governments (rather than only federal government) through the 14th Amendment Due Process Clause's command that no state deprive any person of liberty without due
ii. What's the difference between "selective incorporation" and "total corporation"? Which approach has the U.S. Supreme Court used?
1. Selective - gradual process by which the Supreme Court has chosen which civil liberties from the Bill of Rights to incorporate through the Due Process Clause
2. Total - idea that all of the civil liberties protected by the Bill of Rights should automat
e. These two concepts are closely tied to the Due Process Clause of the 14th Amendment: (1) Incorporation and (2) Unenumerated Constitutional Rights. What's the difference between those two constitutional sources of civil liberties?
i. Unenumerated constitutional rights - rights that are said to be implied by the Constitution but that are not actually mentioned in it
ii. Incorporation is about rights explicitly mentioned in the Constitution
B. How does the textbook define "religious freedom"? What is the name of the first two clauses of the First Amendment that are the constitutional basis of religious freedom in the United States?
a. Religious freedom - freedom to develop and live according to one's own religious beliefs insofar as doing so does not interfere with the same freedom of others
b. Establishment Clause and Free Exercise Clause
c. Liberals and conservatives disagree over many things when it comes to the interpretation of the Establishment Clause. What, according to the textbook, do they agree about? Who (liberals or conservatives) tend to think the Establishment Clause requires
i. Congress may not pass laws requiring people to attend or pay money to a religious institution; prohibits states from establishing religion
ii. Liberals
iii. Conservatives
d. What is strict scrutiny? What does it have to do with the so-called Sherbert Test?
i. Strict scrutiny - most stringent approach taken by courts when reviewing potentially unconstitutional government actions; makes presumption that government action in question is unconstitutional
1. Action is ruled constitutional if the government can p
iii. According to the textbook, an act of Congress (the Religious Freedom Restoration Act) provides greater protection for the free exercise of religion against federal government infringement than does the Free Exercise Clause of the First Amendment. Why
1. Required governments to exempt person from laws and regulations that interfered with freedom of religion unless it could withstand strict scrutiny
2. Required to apply Sherbert test to all federal government actions that potentially infringe upon relig
a. What does Oliver Wendell Holmes' notion of a "marketplace of ideas" have to do with the Court's insistence that content-based restrictions are almost always in violation of the constitutional right to free expression?
i. The "best test of truth is power of the thought to get itself accepted in the competition of the market
b. According to the Supreme Court, which of the following forms of expression are entitled to less First Amendment protection than ordinary forms of political expression:
- flag burning; slander of public figures; obscenity; student speech (in public scho
slander of public figures; obscenity; student speech (in public schools)
fighting words
content-neutral restrictions on the time, place and/or manner in which ideas are expressed
expression that promotes, and is likely to incite or produce, imminent lawle
D. Is it liberals or is it conservatives who tend to favor gun rights more than gun control? How do proponents of gun rights differ from proponents of gun control in how they interpret the Second Amendment?
a. Conservatives favor gun rights, liberal favor gun control
b. For proponents of gun rights, the second part is most important (protects rights of individuals to own and carry guns for their own self-defense and recreational activities)
c. For proponents
d. According to recent U.S. Supreme Court decisions, does the Second Amendment protect a right for individuals to own firearms for self-defense? Or does it only instead protect the right for persons to own guns for purposes of serving in a "well-regulated
i. Self defense
e. Has the U.S. Supreme Court incorporated the Second Amendment under the Due Process Clause of the 14th Amendment?
yes
E. Civil liberties pertaining to criminal justice establish rules and procedures that the executive and judicial branches must follow when investigating, accusing, convicting, and punishing criminal suspects and convicts. What, according to the textbook,
i. To empower government to prevent and punish crime while also leading government to respect the rights of the innocent, accused, and guilty
b. Generally speaking, how do liberals and conservatives tend to differ in how they interpret civil liberties pertaining to the criminal justice system?
i. Liberals tend to be more concerned with protecting rights of criminal suspects and convicts; liberties provide strong protections
ii. Conservatives are more concerned with importance of empowering government to prevent and punish criminal activity; lib
c. Why, according to the textbook, is the incorporation of criminal justice rights under the 14th Amendment "especially important.
i. Most law enforcement activities are conducted by state and local police departments and most criminal trails take place in state courts and pertain to state criminal laws; guarantees protections for criminally accuse where most law enforcement activiti
F. What, according to the textbook, is "the primary purpose" of the 4th Amendment?
a. To protect citizens from unjustified government interference when law enforcement officials search for evidence of criminal activity
b. What does "reasonable expectation of privacy" have to do with how the Supreme Court has interpreted the 4th Amendment?
i. Government surveillance of individuals in places where they have reasonable expectation of privacy counts as a "search
c. Do searches always require warrants in order to be lawful?
i. No
ii. Search incident to a lawful arrest, exigent circumstances, plain view, automobile exception
d. What is the exclusionary rule? What is its purpose? Why are a growing number of constitutional scholars, lawyers and judges questioning its wisdom?
i. If government acquires evidence through unconstitutional methods, the evidence may not be admitted into court
ii. Allows evidence to be thrown out even if the evidence proves someone is guilty of a crime
G. The Fifth Amendment right against self-incrimination protects just about everyone when they are being officially questioned, but it is more strongly protected for criminal defendants.
...
a. What does it mean to read someone their "Miranda Rights" or issue "Miranda warnings"? In what Supreme Court case was it established that if these rights or warnings are not read/issued at the time of arrest, statements made by a suspect may not be used
i. Tells suspects about their rights to remain silent and to have an attorney, and to warn suspects about the potential consequences of choosing to waive those rights
ii. Miranda v. Arizona
H. The Sixth Amendment provides six separate rights, all of which pertain to defendants in criminal trials. If someone goes a full year after being charged with a crime before having a trial, would this necessarily result in charges being dropped on accou
i. No; "speedy" is interpreted in an expansive way
b. According to the Supreme Court, what exactly is required by the 6th Amendment command that criminal trials must be by an "impartial jury"?
i. Potential jurors must be drawn randomly from the population so that they closely resemble the community from which they are drawn
ii. Judge and lawyers remove jurors with biases
c. What did the Supreme Court declare about the 6th Amendment right to an attorney in Gideon v. Wainwright (1963)? What specific impact (discussed by the textbook) did this decision have on the criminal justice system?
i. The 6th amendment requires government to provide an attorney to any criminal defendant who requests and cannot afford one
ii. State governments employ over 15,000 public defenders
I. Liberals and conservatives today disagree over what the Eighth Amendment requires under contemporary conditions. What do they agree about?
i. Supreme court's decision to incorporate 8th amendment into the due process clause
ii. Prohibits the kinds of punishments the Founding Fathers thought as cruel such as drawing, quartering, and burning at the stake
b. According to the Supreme Court, what was wrong with the death penalty as practiced in Georgia when (in 1972) the Court declared it to be unconstitutionally cruel and unusual?
i. There were no rational standards or procedures in place to determine when the death penalty was imposed or not
c. What reforms did Georgia make to its system that led the Court (in 1976) to declare the death penalty no longer unconstitutional there?
i. Before sentencing, suspect must go through 2 separate trails (one determines innocence or guilt, one determines sentence), persecution must prove beyond a reasonable doubt that 1 of 12 "aggravating factors" apply to a case
d. What did the Court declare in McCleskey v. Kemp (1987) about Georgia's use of the death penalty?
i. A proven record of racial bias in sentencing decisions in Georgi could not in itself render a particular death sentence unconstitutional unless actual racial bias in that case could be demonstrated
J. What is "the Culture War"? What does it have to do with how liberals and conservatives view the "unenumerated constitutional rights" discussed in the textbook?
a. The conflict between liberals and conservatives over the legitimacy of laws that seek to promote or uphold traditional moral values versus those that seek to promote the equal status of traditionally subordinated groups
b. What does the "right to privacy" have to do with "unenumerated constitutional rights"?
i. There are certain activities and decisions of such deeply private nature that government not legitimately interfere with them
c. Beginning with Roe v. Wade (1973), what part of the Constitution has the Supreme Court claimed to be the source of protection for the right to privacy?
i. Due Process Clause
d. In Planned Parenthood v. Casey (1992), the Supreme Court replaced the "trimester framework" (from Roe v. Wade) with something called the "undue burden standard"? What according to the textbook did the "undue burden standard" open the door for pro-life
i. Undue burden standard - government may pass laws intending to inform a woman's free choice about abortion in the earliest stages of pregnancy so long as doing so does not hinder that free choice
ii. To successfully implement tighter restrictions on abo
e. On what ground did the U.S. Supreme Court, in Lawrence v. Texas (2003), declare unconstitutional a Texas statute that made it a crime to engage in sodomy "with another individual of the same sex.
i. The privacy protected by the Due Process Clause is violated when laws seek to regulate sexual activity engaged by consenting adults
f. According to the U.S. Supreme Court, what part of the U.S. Constitution is violated if state or local governments deprive same sex couples of the right to marry?
i. Due Process Clause