American Government: Civil Liberties

Rights of the accused

the recognition that even though you've been accused of a crime, you still have all of the rights

14th Amendment

1866: everything becomes very hazy; has to do with the rights granted to the free slave; starts with the phrase "no state shall"; entirely new area of interpretation regarding federalism; how the federal and state governments interact with each other; free slaves now had the rights that they didn't have before

Slaughter House case

1873, New Orleans; had to do with a number of pig slaughtering houses; water infection lead to disease; created the Crescent City; put a monopoly on slaughterhouses; Much like Barron v. Baltimore, argument was that they were taking property from them; The argument used the 14th amendment; the state is taking from me and not compensating; upheld the Barron v. Baltimore precedent much to the majority's dismay; Major decision; illustrates how hesitant the supreme court is to overturn a precedent

selective incorporation

1897; the elements of the bill of rights that are incorporated into the state level via the 14th Amendment; see pg. 146; The Supreme Court decides which aspects of BOR apply to each state

Precursor to the Lemon Test

1971; Dispersing education funds to private schools; would pay the teachers that taught every subject except for religion with state funds; the religion teachers would be paid from the private school funds; the supreme court decided this was unconstitutional; violation of the establishment clause; public funds going into private institutions entangles state and religion

Patriot Act

2001; Passed very recently after 9/11; the intent was to remove some of the restrictions on law enforcement so that they could protect against further terrorist attacks; so that they could prosecute everyone that was involved in 9/11; created a lot of different debates (whether or not it was ok to wiretap; whether or not reading emails is an invasion of privacy)

Freedom of Religion

Bedrock issue; The Establishment Clause: the federal government cannot establish an official religion; cannot show preference toward certain religion; establishment of separation between church and state (prayer in schools/silent moment in schools); 1962: unconstitutional for schools to permit prayer

1993: Freedom Restoration act

Congress' attempt at reviving the balancing test; republican congress that tried to pass legislation that made the balancing test the law; violation of the powers of congress and couldn't uphold

Giddeon vs. Wainwright

Created an entire new branch of state attorneys; type of representation you're getting is not always fair; didn't have equal representation; If they ahdnt been provided such superior legal opportunities, they wouldn't have won their cases

Political Speech

Grey area; originally in 1990: Clear and present danger; if political speech was presenting a clear and present danger to people, it can be censored; if people are speaking in a way that is going to incite terrorism/violence, that type of speech can be prohibited; speech is permitted unless it incites an eminent threat; much stricter restrictions on political speech censorship

Neutrality test

If we allowed the practice of smoking peyote in a ceremony, we'd be showing them a preference; all laws must apply to all religions equally

The Right to Privacy

Implied in amendments 1,3,4, 5 and 9; historically invoked with particular rights, such as abortion, gay rights, the right to marry, the right to die; Abortion; Griswold v. Connecticut; Roe v. Wade: large leaps of interpreting the right to privacy; the debate between pro-life and pro-choice are a debate about the right to privacy (very different arguments); Technology and surveillance: what is the home? what does it include?

Sherbert/Balancing test

Is the government imposing a burden on individuals? Does the government have a compelling interest for imposing the burden? More specifically about the religious practice and the laws affecting it--is the government placing a burden on your ability to practice your religion?

Accommodation

Much more loose in their interpretation of the establishment clause; Whether or not you're showing favoritism to a particular religion; if you show attention to all then you aren't showing favoritism

Preferred Position

Of the 10 rights listed; the five that are listed; anytime that rights may come into conflict of each other, if one is of the five listed, it wins; Barnett case: on paper issue of religion; case was won on the grounds of freedom of Speech

6th Amendment

Right to capital; 1963: right to council--state must pay to get a council if one cannot afford it

Barron v. Baltimore

Set the precedent that the Bill of Rights limited the federal actions, but not state; confiscation of lands, city of Baltimore regulated water; If the federal government took the land from Barron, then it would be against the Bill of Rights--because it was taken by baltimore it wasn't against the bill of rights; United States law is based on precedent and continuity; overturning precedent is very difficult; state can violate speech, religion, etc. in any means; eventually overturned by not for many years

Civil Liberties

The limits on government so people can freely exercise their rights; calls for protection against government action; call for government "inaction"; freedom of religion, speech, press

The right to bear arms

a well regulated militia, being necessary to the security of a free state, the right of people to keep and bear arms shall not be infringed; what right is it establishing? Is it about militias and the right to bear arms?

Bill of Rights

The point was to recognize the areas of life that the government couldn't tough; to place them beyond the reach of the majorities; majority cannot dictate over certain areas; Lays out the liberties; the wording is incredibly important; Begins with "congress"; open to interpretation to whether or not the state governments were limited by the stipulations in the Bill of Rights

Strict Separation

The strict principles articulated in the Lemon Test for judging whether a law establishes religion

Miranda rights

To not be compelled to speak upon oneself; the right to remain silent

Student Speech

What rights do our children have once we send them to school?

Lemon Test

any law that is created by the state has to have secular purpose; the principle effect of the law is to neither enhance or inhibit religion

tinker rule

brother and sister who were protesting vietnam war; suspended/expelled, took the case up to supreme court; Public schools cannot inhibit speech unless the speech is posing a significant threat to the institution; Alaska case Bong Hits for Jesus; you can do what you want as long as it doesn't hinder the stated rules of the schools

Civil Rights

call for government action; when talking about civil rights, discussing discrimination or inequality under the law; the law doesn't apply equally to different groups of people

The Free Practice Clause

cannot inhibit any religious groups from practicing their religion

8th Amendment

capital punishment; cruel and unusual punishment; what are the limits to governmental powers/is it within the rights of the government to kill?; 1972: executions were halted because the supreme court stated that the laws towards cruel and unusual punishment were vague; 1976: executions were permitted if the circumstances were accordingly; as our means of collecting and gathering evidence grows, people will use that; Different basis for both sides of the argument; wording says that we are protected from cruel and unusual punishment

the exclusionary rule

evidence that's obtained in any legal search may not be used in trial; proven to be a burden; has been modified to some extent today--some instances where illegally obtained evidence has been admitted

symbolic speech

expression; expression vs. intimidation; If you are a member of the KKK and you are burning crosses as a part of your ritual, that is an expression and therefore it is perfectly constitutional; if you are a member burning a cross in the front home of an african American would be intimidation; Flag burning: upholding the right for people to speak even if the majority agrees that the type of speech is bad/unappealing; John Stuart Mill: Harm principle; had the notion of social ideas that there has to be the market place of ideas to be able to continuously talk about things; without such laws become stagnant; trying to protect against the tyranny of social opinion; prohibition: majority opinion determined that alcohol was bad

Obscenity

form of limitation; Held much more weight in the past; The Miller test: particular case/characteristic; very subjective; one of them has todo with the average idea of what is considered sexually stimulating; whether or not something has artistic/scientific value to it

Libel

form of limitation; very hard to actually restrict; written/spoken falsehoods; slander; what constitutes a public figure continues to evolve; still evolving, particularly subjective, very difficult cases to win

Freedom of the press

freedoms in which the American Public can choose what they want to say

5th Amendment

right at trials; indication of a grand jury as well as double jeopardy as well as I plead the 5th, I can't be compelled to speak upon myself

fighting words

largely in response to hate speech as well; personally abusive/offensive words that will more likely than not produce a violent reaction; very difficult cases to argue mostly because if you're making a fighting words case, there is the worry that the supreme court will have bias towards whatever the minority group champions; run the risk of favoring one minority group over another

4th Amendment

search and seizure; nobody can enter your home without a warrant; can't get a warrant without probable cause

Prior Restraint

the government does not have the right to prohibit a press from publishing something; basic safeguard against censorship; National Security: if a printing source is printing something that could potentially cause a threat can be restrained by government

terrorism

the relationship between security and liberty; how we make the concessions; is it ok to limit our rights for the sake of security? OR are we better off maintaining our rights but being less secure?

Westboro Baptist Church

very different type of church; evangelical; promoting the ways God hates people; picketing and protesting at funerals of soldiers; particularly offensive; number of cases brought up to the supreme court; wing their cases because there has never been a case of violence