writ of habeas corpus
A court order requiring explanation to a judge why a prisoner is being held in custody. People who are incarcerated have the right to appeal to a judge, usually through an attorney, stating why they believe they are being held unlawfully and should be rel
ex post facto laws
A law that would allow a person to be punished for an action that was not against the law when it was committed. The power to create these laws is a specific power denied to Congress
civil liberties
Constitutionally protected freedoms of all persons against governmental restraint; essentially, freedoms that all people have that must be protected through government INACTION
civil rights
Constitutional rights of all persons to due process and the equal protection of the laws, including the constitutional right not to be discriminated against because of race, ethnic background, religion, gender (or sexual orientation, more recently)
due process clause
Clause in the Fifth Amendment limiting the power of the national government; similar clause in the Fourteenth Amendment prohibiting state governments from depriving any person of life, liberty, or property without due process of law
selective incorporation
The process by which provisions of the Bill of Rights are brought within the scope of the Fourteenth Amendment and so applied to state and local governments. This process began in 1925 in Gitlow v. New York where the Supreme Court recognised that the Firs
establishment clause
Clause in the First Amendment that says the government may not establish an official religion: "Congress shall make no law respecting an establishment of religion." As interpreted, the government may not support any or all religions (cases: Engel v. Vital
free exercise clause
Clause in the First Amendment that states that Congress shall make no law prohibiting the free exercise of religion; no government can compel Americans to accept any creed or deny them any right because of what they do or do not believe
While the Supreme
libel
A written defamation of a person's character, reputation, business, or property rights. Libel is not protected by the First Amendment
obscenity
Any statement or act which strongly offends the prevalent morality of the time (prohibited, despite First Amendment: Miller v. California)
fighting words
Forms of expression that "by their very utterance" can incite violence. These can be regulated by the government but are often difficult to define. Fighting words are not protected by the First Amendment
commercial speech
Advertisements and commercials for products and services; they receive less First Amendment protection, primarily to discourage false and misleading ads.
bad tendency test
Interpretation of the First Amendment that would permit legislatures to forbid speech encouraging people to engage in illegal action
clear and present danger test
Interpretation of the First Amendment that holds that the government cannot interfere with speech unless the speech presents a clear and present danger that it will lead to evil or illegal acts.
preferred position doctrine
Interpretation of the First Amendment that holds that freedom of expression is so essential to democracy that governments should not punish persons for what they say, only for what they do.
prior restraint
Censorship that is imposed before speech is made or a newspaper is published. This is prohibited in the United States, as interpreted by the Supreme Court (case: Near v. Minnesota, New York Times Co. v. United States)
civil disobedience
Deliberate refusal to obey a law or comply with the orders of public officials as a means of expressing opposition. This is not viewed as a protected right by the Supreme Court
eminent domain
Power of a government to take private property for public use; the U.S. Constitution gives national and state governments this power and requires them to provide just compensation for property so taken.
due process
The administration of justice according to established rules and principles; established rules and regulations that restrain government officials, essentially,
how
the law is applied
procedural due process
Constitutional requirement that governments proceed by proper methods; limits how government may exercise power. Concerns the
procedure
of how laws are applied; laws may not be too vague, or create an improper presumption of guilt
Protected due process li
substantive due process
Constitutional requirement that governments act reasonably and that the substance of the laws themselves be fair and reasonable; limits what a government may do. Concerns the
substance
of laws; an unreasonable law is unconstitutional, even if it is proper
search warrant
A court order allowing law enforcement officers to search a suspect's home or business and take specific items as evidence
See: Terry v. Ohio
exclusionary rule
The rule that evidence, no matter how incriminating, cannot be introduced into a trial if it was not constitutionally obtained. The rule prohibits use of evidence obtained through unreasonable search and seizure.
See: Mapp v. Ohio
grand jury
A jury of 12 to 23 persons who, in private, hear evidence presented by the government to determine whether persons shall be required to stand trial. If the jury believes there is sufficient evidence that a crime was committed, it issues an indictment
indictment
A formal written statement from a grand jury charging an individual with an offense; also called a true bill
plea bargain
A bargain struck between the defendant's lawyer and the prosecutor to the effect that the defendant will plead guilty to a lesser crime (or fewer crimes) in exchange for the state's promise not to prosecute the defendant for a more serious (or additional)
double jeopardy
Being tried twice for the same crime. This is prevented by the 5th Amendment