CHAPTER 5 - CIVIL LIBERTIES
Answer Location: Sixth Amendment: Right to Counsel and Impartial Jury of Peers Full incorporation of the sixth Amendment did not occur until 1963 when ______ decreed that anyone charged with a felony must be offered legal representation.
Gideon v. Wainwright
Answer Location: Establishment The Lemon test is the contemporary method for determining if anything runs afoul of the establishment provision.
FALSE
Answer Location: Nationalization of Civil Liberties Over the past century, determination of national civil liberties policy has shifted from nearly the exclusive jurisdiction of Washington, D.C., to states and communities.
FALSE
Answer Location: School Prayer and Bible Reading Bible reading is allowed in public schools if it is done during the moment of silence at the beginning of the school day.
FALSE
Answer Location: The Bill of Rights Checks Majority Rule The language in the Bill of Rights is best described as explicit, leaving little room for ambiguity or misinterpretation.
FALSE
Answer Location: the supreme court's history of protecting unpopular speech It is illegal to burn the U.S. flag.
FALSE
Answer Location: Assessing Civil Liberties as Public Policy Federal judges are immune from voter preferences, and therefore the policy desires of voters often goes unheard.
False
Answer Location: Privacy In Griswold v. Connecticut, Estelle Griswold was charged with dispensing narcotic drugs in violation of an 1879 Connecticut law prohibiting their use
False
Answer Location: Privacy Penumbras are those rights that are explicitly set forth in the Bill of Rights.
False
Answer Location: Privacy The right to privacy is explicitly stated in the ninth amendment.
False
Answer Location: Sexually Explicit Expression With Roth v. United States, the Supreme Court established clear definitions of obscenity.
False
Protections for the criminally accused
Fourth, Fifth, and Sixth Amendments Not really designed to protect criminals, but to keep government from infringing on the liberties of everyone.
Answer Location: Freedom of Religion Which of the following is true about the religious freedom provision of the First Amendment?
It at first only applied to actions of the federal government.
Answer Location: Gun Rights The two major decisions on gun rights regarding DC and Chicago have shifted the final word on gun rights:
from Congress, state legislatures, and municipalities to the Supreme Court.
Answer Location: Freedom of the Press The history of the concept of a public trial:
has less to do with prosecuting criminals than with preventing law enforcement officers from meting out arbitrary justice.
Answer Location: Privacy The constitutional right to privacy is to be found in the Constitution's penumbras, which are best defined as:
implicit zones of protected privacy rights on which the existence of explicit rights depend.
Answer Location: Sixth Amendment: Right to Counsel and Impartial Jury of Peers The 1963 case of Gideon v. Wainwright resulted in the guarantee of ________ at trial for all defendants charged with a felony.
legal representation
Answer Location: Freedom of Religion Although the First Amendment guarantees the freedom of religion, before independence which of the following was true?
many of the early colonies designated official churches which believers and nonbelievers alike were forced to attend and support with taxes.
Answer Location: Speech That Advocates Illegal Activity The "criminal anarchy" for which Benjamin Gitlow was arrested and convicted was which of the following?
organizing labor strikes
Originally the Bill of Rights Did not Apply to the States
- The Constitution was seen as covering only the national government until after the passage of the 14th Amendment. - The 14th Amendment's Due Process Clause is the justification for applying the Bill of Rights to the States. - The Due Process Clause of the 14th Amendment says that no state can deny "Life, Liberty, and Property without due process of law." - The application of the due process clause, by suggesting that particular civil liberties are those referred to by the 14th Amendment is called INCORPORATION.
Writing Rights and Liberties into the Constitution
- The Constitution, in its original form in 1787, did not seriously address civil liberties. - The Framers believed a bill of rights was not necessary if the institutions of government were designed correctly. - Others believed that listing rights in the Constitution might imply that the federal government had the authority to restrict freedoms that were not expressly protected.
Incorporation is not automatic
-Slaughterhouse cases (1873)—Supreme Court said that the 14th Amendment was to protect black people, others only had the same rights as before. -Palko v. Connecticut (1937)—Incorporation only refers to liberties "of the very essence of a scheme of ordered liberty." -Selective Incorporation
Types of Liberty
-Substantive Liberty—Fundamental and intrinsic liberties -Procedural Liberty—protection of a general concept of liberty by forcing compliance with all liberties.
Answer Location: Incorporation via the Fourteenth Amendment Which of the following reflects the current application of the Bill of Rights to the states?
. Some of the provisions of the Bill of Rights are still not applied to the states
Answer Location: Writing Rights and Liberties into the Constitution In Federalist No. 84 Alexander Hamilton poses the question, "Why declare that things shall not be done which there is no power to do?" Which of the following concerns was he expressing?
. That a list of rights in the Constitution might imply the federal government had the authority to restrict the freedoms not expressly protected
Answer Location: Writing Rights and Liberties into the Constitution The first step toward acquiring civil liberties protections in the constitution was:
. inclusion of the Bill of Rights
Answer Location: Criminal Rights The incorporation of criminal rights into the Fourteenth Amendment has proved to be challenging for which of the following reasons?
. law-abiding citizens and their representatives tend to sympathize more with the victims of crime than with the accused.
Answer Location: Nationalization of Civil Liberties Advances in national civil liberties policy have frequently involved:
. reining in majorities that assert their prerogatives over the objections of individuals and groups who did not wish to conform to prevailing social norms and rules.
Answer Location: The Bill of Rights Checks Majority Rule David Riley had his conviction for a shooting thrown out by the Supreme Court because they held without a search warrant, downloading the contents of an individual's cell phone constituted an "unreasonable searches and seizure" this is an example of the application of which Amendment?
4
Answer Location: Privacy Which amendment opens the door to unstated rights, such as those cited in Griswold v. Connecticut?
9
Fifth Amendment
: Indictments required, no double jeopardy, no self incrimination, due process, takings only with just compensation.
Equal Protection Clause
A Fourteenth Amendment clause guaranteeing all citizens equal protection of the laws. The courts have interpreted the clause to bar discrimination against minorities and women
Due Process Clause
A clause found in both the Fifth and Fourteenth Amendments to the Constitution protecting citizens from arbitrary action by the national and state governments
Exclusionary Rule
A judicial rule prohibiting the police from using at trial evidence obtained through illegal search and seizure
Clear and Probable Danger Test
A rule introduced by Chief Justice Fred Vinson for the courts to enlist in free expression cases: "In each case [the courts] must ask whether the gravity of the 'evil,' discounted by its probability, justifies such invasion of free speech as is necessary to avoid the danger"
Clear and Present Danger Test
A rule used by the Supreme Court to distinguish between speech protected and not protected by the First Amendment. Under this rule, the First Amendment does not protect speech aimed at inciting an illegal action
Although the Bill of Rights
Although the Bill of Rights provides a clear statement of the "fundamental maxims of free governments," they were not initially applied to state laws and practices. Indeed, until the late 19th century, its protections were virtually meaningless, as most disputes involved state governments. The Fourteenth Amendment, which gave the national government the power to protect former slaves, opened the door to the nationalization of civil liberties. It states that all persons enjoy the same civil liberties and rights and that states cannot deny these without due process of law.
Cruel and Unusual Punishments
Criminal penalties that are not considered appropriate by a society, that involve torture, or that can result in death when the death penalty has not been ordered
Eighth Amendment and cruel and unusual punishment
Death Penalty Excessive Fines Excessive Bail
Obscenity
Defined as publicly offensive acts or language, usually of a sexual nature, with no redeeming social value. The Supreme Court has offered varying definitions in its rulings over the years
Answer Location: Gun Rights Which of the following adopted the individual right to the Second Amendment?
District of Columbia v. Heller
Methods to enforce
Exclusionary Rule Miranda Warning Pre-Trial Motions to Exclude Evidence
Answer Location: Assessing Civil Liberties as Public Policy The Bill of Rights has, during the 20th century, gradually by incorporation, come to be accepted as policies that only apply to the state governments.
FALSE
Answer Location: Childbearing Choices Which of the following is true about the Supreme Court's 1973 opinion in Roe v. Wade?
It ended abortion's varying legality across the states.
Penumbras
Judicially created rights based on various guarantees of the Bill of Rights. The right to privacy is not explicitly stated in the Constitution, but the Supreme Court has argued that this right is implicit in various clauses found hroughout the Bill of Rights
Answer Location: The Bill of Rights Checks Majority Rule The Bill of Rights was designed to do which of the following?
Limit the capacity of government to impose conformity costs on those individuals and minorities whose views differ from the majority.
Privacy rights
Mostly Made Up By Judges: Justice Douglas called it an emanation of a penumbra Literally, this means that it is at the faint darkening at the very edge of the shadow cast by the Bill of Rights. Ninth Amendment does say that there are liberties not listed Best Defense: Most People Seem to Want Privacy Rights. Douglas invented them to justify the sale of condoms. Most famous application: Abortion rights
Fourth Amendment:
No unreasonable searches and seizures; no warrants without probable cause.
other limits
Obscenity not protected Slander and Libel
Neutrality Test
Policy favored by justices in establishment of religion decisions. The justices used the neutrality test not so much to prevent favoritism among religious groups as to root out policies that preferred religious groups generally over nonreligious groups engaged in a similar activity
Miranda Rule
Requirement that police inform suspects that they have a right to remain silent and a right to have counsel while being interrogated. Failure to inform suspects of their rights will result in any confession or evidence thus obtained being inadmissible against them at trial
Limits to Free Speech
Schenck v. United States (1919)—Clear and Present Danger Test. Gitlow v. New York (1925)—Free Speech applied to states. Dennis v. United States (1951)—Clear and probable Danger Test
Answer Location: Freedom of Religion Religious conflict is an example of an issue bound to create a factional struggle according to Federalist No. 10.
TRUE
Answer Location: Freedom of the Press In the Samuel Sheppard case, the press compromised the defendant's right to a fair hearing.
TRUE
Answer Location: Gun Rights Most historians and judicial scholars have read the congressional deliberations and the wording of the amendment itself as guaranteeing the right of local militias to bear arms—a kind of collective good. But what "good" it was intended to provide was vague
TRUE
Answer Location: Gun Rights The two recent Supreme Court decisions on gun rights have been decided by a 5-4 margin.
TRUE
Answer Location: Major Versus Peripheral Rights The right of assembly under the First Amendment can be thought of as a peripheral right.
TRUE
Answer Location: Sexually Explicit Expression Adequately defining obscenity and drafting objective standards that enable judges and police to distinguish the merely pornographic or sexually explicit from the truly obscene has been a problem for the Supreme Court and law enforcement when it comes to obscenity.
TRUE
Answer Location: The Bill of Rights Checks Majority Rule Disagreement between the three branches of government surrounding 1993's Religious Freedom Restoration Act occurred due to problems with the ambiguous language in the Bill of Rights.
TRUE
Answer Location: Writing Rights and Liberties into the Constitution The act of the Supreme Court interpreted the Fourteenth Amendment to apply the Bill of Rights to the actions of state and local governments is known as the process of incorporation.
TRUE
The modern Supreme Court has contributed to controversy over certain civil liberties as the Supreme Court has carved out a larger role in public policy and are insulated from the public.
TRUE
The Constitution
The Constitution that emerged from the Philadelphia convention in 1787 did not seriously address civil liberties. During debates over ratification, the Antifederalists argued that, by failing to provide explicit protections for individual citizens, the new Constitution invited tyranny. Bowing to political pressure, James Madison agreed to introduce a bill of rights during the first Congress. Its provisions limited the capacity of government to impose heavy conformity costs on those whose views differ from the majority.
Answer Location: Fourth Amendment Illegal Searches and Seizure In Katz v. United States the Court agreed, breaking new legal ground in two respects
The Court did not limit protections to discovery of physical evidence, and it indicated that even searches not involving "physical penetration" of an individual's space might be illegal.
The First Amendment
The Establishment Clause The Free Exercise Clause The Free Speech Clause The Freedom of the Press Clause The Freedom of Assembly Clause The Freedom to Petition Clause
Community Standards
The Supreme Court's 1973 ruling that a work is obscene if it is "utterly without redeeming social importance" and, "to the average person, applying contemporary
Incorporation
The Supreme Court's extension of the guarantees of the Bill of Rights to state and local governments through its various interpretations of the Fourteenth Amendment
Selective Incorporation
The Supreme Court's gradual process of assuming guardianship of civil liberties by applying piecemeal the various provisions of the Bill of Rights to state laws and practices
Privileges and Immunities Clause
The clause in Section 1 of the Fourteenth Amendment stipulating that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"
The exact boundaries of the protections offered by the Bill of Rights
The exact boundaries of the protections offered by the Bill of Rights are set and reset by a few unelected federal judges guided as much by personal, partisan, and ideological preferences and needs posed at times of war and other crises as by their understanding of the law. The responsiveness of judges to these political and institutional exigencies often keeps the federal courts from deviating too far from public opinion. If history suggests one certainty when it comes to civil liberties policies, it is that they will be continuously revisited and frequently revised.
Establishment of Religion Clause
The first clause of the First Amendment. The establishment clause prohibits the national government from establishing a national religion
Incitement
The government cannot forbid "advocacy of the use of force or of law violation" unless the advocacy is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action"
Freedom of Religion
The is really no such thing as "Freedom of Religion" in the United States. Government cannot establish a religion and this has been interpreted to mean that government cannot even promote religion generally. Government can be neutral. Government cannot prohibit the exercise of religion, though the government has been allowed numerous exceptions here. One of the main issues has been entanglement—the question of whether there should be a "wall of separation" as Jefferson said once in a letter.
Lemon Test
The most far-reaching of the controversial cases in which the Supreme Court specified three conditions every state law must satisfy to avoid running afoul of the establishment of religion prohibition: the statute in question "must have a secular legislative purpose," such as remedial education; the statute's "primary effect must be one that neither advances nor inhibits religion"; and the statute must not foster "an excessive government entanglement with religion"
Free Exercise Clause
The second clause of the First Amendment. The free exercise clause forbids the national government from interfering with the exercise of religion
Establishment: The lemon test
The statute in question "must have a secular legislative purpose," such as remedial education. The statute's "primary effect must be one that neither advances nor inhibits religion." The statute must not foster "an excessive government entanglement with religion."
Answer Location: Freedom of Speech Websites that require some form of adult verification before offering products is a violation of free speech.
True
Answer Location: Privacy The fact that freedom of speech and a free press must include not only an individual's right to engage in these activities but also the right to distribute, receive, and read others' views is an example of a penumbra. Without these other rights, the specific rights would be insecure.
True
Answer Location: School Prayer and Bible Reading Special tax incentives for attending a religious school would run afoul of the establishment clause.
True
Answer Location: The Brave New World of Informational Privacy The biggest problem with regard to protecting informational privacy is that the law has trouble keeping up with changing technology
True
Answer Location: Eighth Amendment: "Cruel and Unusual" Punishment The Supreme Court has held the death penalty to be which of the following?
UNDEFINED
Under the cover of the Fourteenth Amendment
Under the cover of the Fourteenth Amendment, a long series of decisions by the Supreme Court gradually extended the Bill of Rights to state laws and practices. This process of incorporation altered the balance of power between the national and state governments and expanded the range of protection offered by the Bill of Rights.
While the language in the Bill of Rights
While the language in the Bill of Rights is clear and unequivocal, its application is not. For example, what if two or more guaranteed liberties come into conflict? Furthermore, new technologies and modern lifestyles have created novel civil liberties dilemmas.
Assessing Civil Liberties as Public Policy
While there are avenues to counter decisions made by the courts (sometimes against majority will), these can take a long time to carry out. Ultimately, however, the Court is limited, just as are all of our federal branches of government. When the will of the people is strong and steady, it is likely to have an impact on policy, even that of civil liberties.
Answer Location: Free Exercise The free exercise clause of the First Amendment has been interpreted to allow which of the following?
animal sacrifice and door-to-door solicitations
The First Ten Amendments to the US Constitution
are called the Bill of Rights. - They took effect on December 15, 1791, after being ratified by three-fourths of the states. -Three other civil liberties of note: Habeas Corpus, No Ex Post Facto Laws, and No Bills of Attainder are in Article I, Section 9.
Answer Location: Fifth Amendment: Self-Incrimination The principle against ______ contained in the Fifth Amendment has been a bedrock of American jurisprudence
self-incrimination
Sixth Amendment:
speedy trial, public trial, impartial jury, trial in state and district where crime occurred, informed of the nature and cause of the charge, can confront witnesses, can compel witnesses to testify, right to counsel.
Answer Location: Speech That Advocates Illegal Activity In 1919, Charles Schenck's advocacy of resistance to the draft led to the Supreme Court's creation of which of the following?
the clear and present danger test
Answer Location: Eighth Amendment: "Cruel and Unusual" Punishment In which of the following has the Court found to be cruel and unusual punishment under the Eighth Amendment?
the execution of juveniles
Answer Location: Incorporation via the Fourteenth Amendment A unified national citizenship is provided for in the Constitution:
the first sentence of the Fourteenth Amendment.
Answer Location: Assessing Civil Liberties as Public Policy At first, the nationalization of civil liberties in the Bill of Rights:
was not a popular idea and Madison's proposal to amend the Constitution to apply them directly to the states was defeated in Congress.