Module 7

Do searches always require warrants in order to be lawful?

no

opinion polls have shown that both liberals and conservatives are primarily concerned with promoting _______ a. gun control b. gun rights c. safety

safety

According to the Supreme Court, which forms of expression are entitled to less First Amendment protection than ordinary forms of political expression?

obscenity, student speech (in public schools), expression that promotes, and is likely to incite or produce, imminent lawless action, and libel of public figures

What is selective incorporation?

*Gradual process* by which the Supreme Court has chosen (*one case and one right at a time*) which civil liberties from the Bill of Rights to incorporate through the Fourteenth Amendment Due Process Clause

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?

*No, the nature of Americans' constitutional right to free speech, and of Americans' civil liberties in general, changed after the Civil War* (1861-1865) and particularly upon the ratification of the Fourteenth Amendment

Who (liberals or conservatives) tend to think the Establishment Clause allows government to accommodate religion so long as it does not force anyone to participate in religious activities against their will and does not promote one religion over another?

*conservatives* more likely to think the Establishment Clause simply requires that *no one be forced to participate in religious activities against their will* and that *government not endorse or promote one religion over another*

Who (liberals or conservatives) tend to think the Establishment Clause requires a strict "separation of church and state"?

*liberals* are more likely to think the Establishment Clause is designed to *reduce or eliminate the role of religion in government affairs altogether*

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 account of the person being deprived of a speedy trial?

*no*, because the Court has interpreted the word "speedy" in a rather expansive way, *in some cases holding that delays of multiple years are still speedy enough to meet the Sixth Amendment requirement of a "speedy trial."*

Has the U.S. Supreme Court incorporated the Second Amendment under the Due Process Clause of the 14th Amendment?

*yes, U.S. Constitution prohibits state governments, like the federal government, from infringing upon the individual right to own and carry guns for self-defense* In so doing, the Court incorporated the Second Amendment into the Due Process Clause of the Fourteenth Amendment

Did civil liberties listed in the Bill of Rights of the U.S. Constitution apply to actions taken by federal government prior to the Civil War?

*yes, before the Civil War, it was understood that the U.S. Constitution only protected* the freedom of speech and other civil liberties *from interference by the U.S. federal government*

What is strict scrutiny?

- *Label given to the most stringent approach taken by courts when reviewing potentially unconstitutional government actions* - When applying strict scrutiny, a court makes the *presumption that the government action in question is unconstitutional*

Is it liberals or is it conservatives who tend to *favor gun rights* more than gun control?

- *conservatives* - conservatives tend to think *wider spread gun ownership by good, law-abiding citizens will make for a safer country*

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."

- *discriminated against homosexuals* - problem with the law was that it was *regulating sexual conduct engaged in by consenting adults within the privacy of their own home* - according to the Court, the privacy protected by the Due Process Clause of the Fourteenth Amendment is violated when laws seek to regulate sexual activity engaged in by consenting adults

What does "reasonable expectation of privacy" have to do with how the Supreme Court has interpreted the 4th Amendment?

- *government surveillance of individuals in places where they have a "reasonable expectation of privacy" amounts to a search* - wiretap attached to a phone booth for purposes of listening to phone conversations for evidence of criminal activity is also a "search" requiring a warrant

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?

- *offended contemporary standards of decency* - the death penalty at the time was unconstitutional because it was being "wantonly and freakishly imposed."—*no rational standards or procedures in place to determine when it was imposed or not imposed* - "if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible *basis of race*." (those found *guilty of murdering white victims were significantly more likely to get the death penalty* than were those found guilty of murdering nonwhite victims)

Free Exercise Clause

- *prohibits government from interfering with the practice of religion* - "Congress shall make no law ... prohibiting the free exercise [of religion]."

What does judicial review have to do with how civil liberties are enforced in practice?

- *protect the civil liberties of U.S. citizens against infringement by state governments* - enabled someone whose civil liberties were violated by a state government to go to federal court to get the state action declared unconstitutional - *U.S. Supreme Court's decisions effectively determine what the (otherwise vague) civil liberties listed in the Constitution mean in practice*

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 militia"?

- *protects a person's right to own a firearm for self-defense (at least) within the home.* - many Founders believed that the Second Amendment protected an individual right to own guns for self-defense

Liberals and conservatives today disagree over what the Eighth Amendment requires under contemporary conditions. What do they agree about?

- *to incorporate the Eighth Amendment through the Fourteenth Amendment Due Process Clause* and thereby consider it to *apply to punishments inflicted by state governments as well as by the federal government* - prohibits the kinds of punishments that the Founding Fathers thought of as cruel, such as drawing, quartering, and burning at the stake

establishment clause states "Congress shall make no law respecting an establishment of religion ..." meaning...

- Congress *may not literally establish a religion* - *prohibits* Congress from passing *laws requiring people to attend or pay money to a religious institution* - Congress *may not provide money to one religious institution and not to another* solely because Congress wants to promote the one and not the other.

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?

- Holmes argued that we should never be so certain about our beliefs that we use government to suppress the expression of contrary beliefs. After all, it might turn out that, *after fair consideration, the unpopular belief appears closer to the truth*. - *the best response for defeating ideas we dislike is not to use government to ban their expression but, rather, to demonstrate the superiority of our own ideas through our own acts of free expression*

Why are a growing number of constitutional scholars, lawyers and judges questioning the exclusionary rule wisdom?

- One criticism is that the exclusionary rule is *too rigid*. Instead of automatically excluding unlawfully obtained evidence, according to this argument, *courts should be able to take into account multiple factors, such as the seriousness of the crime committed and the importance of the evidence for ascertaining guilt, when deciding whether evidence should be excluded* - Another criticism is that the exclusionary rule *does not effectively* serve its purpose—that is, *deterring police from conducting unlawful searches*

4 most important circumstances in which a search without a warrant can be considered lawful

- Search Incident to a Lawful Arrest - Exigent Circumstances (emergency) - Plain View - Automobile Exception

What does it mean to read someone their "Miranda Rights" or issue "Miranda warnings"?

- The reading of our rights - *requires police to tell 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

According to the textbook, why does the the Religious Freedom Restoration Act provide greater protection for the free exercise of religion against federal government infringement than does the Free Exercise Clause of the First Amendment?

- This statute *required governments to exempt persons from laws and regulations that had the effect of interfering with their free exercise of religion* unless the interferences could withstand strict scrutiny. - under the RFRA, *courts are essentially required to apply the Sherbert Test to all federal government actions that potentially infringe upon religious freedom*

How do proponents of *gun rights differ from proponents of gun control* in how they interpret the Second Amendment?

- according to gun rights proponents, that the Constitution *protects the rights of individual persons to own and carry guns for their own self-defense* and perhaps even for recreational activities, like hunting and target shooting - *2nd part of the second amendment*

How do proponents of *gun control differ from proponents of gun rights* in how they interpret the Second Amendment?

- according to proponents of gun control, *the first part of the Second Amendment* shows that the amendment's purpose is solely to assure that *citizens are able, when needed, to "bear Arms" when serving in a "well-regulated Militia"* - the whole purpose of the Second Amendment's "right ... to keep and bear arms," say gun control advocates, was to *protect and preserve militias and, ultimately, free government* (no relevance today since citizens won't stand a chance against US Militia)

Generally speaking, how do conservatives interpret civil liberties pertaining to the criminal justice system?

- conservatives tend to be *more concerned* than liberals *with the importance of empowering government to prevent and punish criminal activity* - conservatives tend to *interpret these liberties as providing more modest protections*

What does "the Culture War" have to do with how liberals and conservatives view the "unenumerated constitutional rights" discussed in the textbook?

- the *more liberal a justice is, the more likely she or he is to think these civil liberties are actual constitutional rights* (despite not being enumerated) and that the Supreme Court has a duty to protect them - the *more conservative a justice is, the more likely he or she is to think these are not actual constitutional rights* and that the Supreme Court has a duty to refrain from enforcing them

According to the Supreme Court, what exactly is required by the 6th Amendment command that criminal trials must be by an "impartial jury"?

- the Court has held that the pool of potential jurors *must be drawn randomly from the population so that they closely resemble the community* from which they are drawn. - the *judge and lawyers on both sides of the case are allowed to question potential jurors and remove anyone whom they think could be in some way biased* for or against the defendant

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?

- the Court ruled that the Sixth Amendment *requires government to provide an attorney to any criminal defendant who requests and cannot afford one* - state governments now directly employ over 15,000 Public Defenders who each year provide legal counsel to millions of criminal defendants who cannot afford to hire their own attorneys

phase 2 of sherbert test

- the government interference with religious practice is the *result of pursuing a compelling government interest* and - *there is a way for government to pursue the compelling government interest that would have placed less of a burden* on the free exercise of religion

phase 1 of sherbert test

- the person has a claim *involving a sincere religious belief* and - the *government action is an actual burden* on the person's ability to act on that belief

Under the sentencing trial of the Georgia' reform in 1976 of the death penalty, what are the two factors discussed?

- the prosecution must prove beyond a reasonable doubt that *at least 1 out of 12 possible "aggravating factors" apply to a case* -if one or more aggravating factors are proved beyond a reasonable doubt, the *judge or jury is allowed to consider a variety of "mitigating factors"—that is, factors that make a defendant seem less deserving of capital punishment*—that lead them to decide against imposing a death sentence

What's the difference between incorporation and unenumerated constitutional rights of civil liberties?

- they differ in how liberties protected are discovered - *Incorporation is about those rights explicitly listed (i.e., "enumerated")* in the text of the Constitution—specifically, in the Bill of Rights - Court's protection of *unenumerated constitutional rights involves rights that are said to be implied* by the Constitution but that are not actually mentioned in it.

What is the exclusionary rule? What is its purpose?

-According to the exclusionary rule, *if government seizes evidence through an unconstitutional search, then the evidence may not be admitted into court* - the exclusionary rule *is a negative incentive used by courts to lead police to follow the requirements of the Fourth Amendment*

Generally speaking, how do liberals interpret civil liberties pertaining to the criminal justice system?

-liberals tend to be *more concerned* than conservatives *with protecting the rights of criminal suspects and convicts* - liberals tend to *see these liberties as providing strong protections for the criminally accused*

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?

Constitution prohibits states from establishing religion just as much as it prohibits Congress from doing so

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?

Court has held that the *Due Process Clause* is the source of the constitutional right of privacy

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?

Due Process Clause

What does incorporation have to do with the Due Process Clause of the 14th Amendment?

Each time the Supreme Court has determined that a particular civil liberty from the Bill of Rights applies against the states via the Fourteenth Amendment's Due Process Clause, *it is said that the Court has "incorporated" that part of the Bill of Rights "into the Due Process Clause."*

freedom of expression refers to

General term for the First Amendment rights to freedom of *speech*, freedom of the *press*, peaceable *assembly and association*, and to *petition* government.

Content-based restrictions

Government law or action that *restricts the freedom of expression because of disapproval of the content of the message being expressed* According to the Supreme Court, such restrictions are nearly always in *violation of the First Amendment*.

What does strict scrutiny have to do with the so-called Sherbert Test?

In *Phase 2*, the government action must withstand what is called "strict scrutiny."

What is "Incorporation"?

Incorporation means that the *Court declares a civil liberty* from the Bill of Rights *to be protected against state government abuse through the Due Process Clause* of the Fourteenth Amendment

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 leaders to successfully implement?

The Court's replacement of the trimester approach with the undue burden standard *opened the door for pro-life leaders to successfully implement tighter restrictions on abortion at the state level*

What are the two actions that must be proven in order to rule an action as constitutional when applying strict scrutiny?

The action is then ruled constitutional only if the government can prove the action in question was (1) in furtherance of a compelling government interest (2) the least restrictive option available to the government for pursuing that compelling government interest.

What is judicial review?

The authority of courts to decide whether an act of government is constitutional or unconstitutional

What is "the Culture War"?

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

marketplace of ideas

The theory, famously espoused by Justice Oliver Wendell Holmes, that *government should not suppress expression of unpopular ideas, but, rather should let different viewpoints compete for social acceptance* since the "best test of truth is the power of the thought to get itself accepted in the competition of the market."

interpretation of the Due Process Clause of the 14th amendment

To say no State shall "deprive any person of life, liberty, or property without due process of law" essentially meant that *no State shall execute, imprison, or fine someone without providing all of the legal rights that criminal suspects and defendants are normally entitled to*

What reforms did Georgia make to its system that led the Court (in 1976) to declare the death penalty no longer unconstitutional there?

Under the new Georgia approach, before anyone can be sentenced to death, *they must go through two separate trials: one that determines guilt or innocence and one for determining the sentence*

The Sixth Amendment provides six separate rights, all of which pertain to defendants in criminal trials. Name them.

[1] to a speedy and public trial [2] by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law [3] to be informed of the nature and cause of the accusation [4] to be confronted with the witnesses against him [5] to have compulsory process for obtaining witnesses in his favor [6] to have the Assistance of Counsel for his defense

Why, according to the textbook, is the incorporation of criminal justice rights under the 14th Amendment "especially important?"

because most law enforcement activities are conducted by state and local police departments and *most criminal trials take place in state courts and pertain to state criminal laws*

what is the 1st amendment protection of free expression designed to protect?

designed to protect the *freedom of thought and debate from* the stultifying effects of *government censorship*

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?

establishment clause and the free exercise clause

In what Supreme Court case was it established that if these rights or warnings (Miranda Rights) are not read/issued at the time of arrest, statements made by a suspect may not be used against him or her at trial?

in a 1966 Supreme Court case called *Miranda v. Arizona*

What are the two concepts that are closely tied to the due process clause of the 14th amendment?

incorporation and unenumerated constitutional rights

Which approach (selective incorporation of total incorporation) has the U.S. Supreme Court used?

selective incorporation

How does the textbook define "religious freedom"?

the *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*

What did the Court declare in McCleskey v. Kemp (1987) about Georgia's use of the death penalty?

the Court held that a proven record of *racial bias in sentencing decisions* in Georgia *could not* in itself *render a particular death sentence* unconstitutional *unless actual racial bias* in that case *could be demonstrated*

What is total incorporation?

the idea that *all of the civil liberties* protected by the Bill of Rights should automatically be *incorporated* into the Due Process Clause *all at once*

What is the third right of the Fifth Amendment that guarantees, at a minimum, that any defendant standing trial for a crime may choose to not take the stand to testify and may refuse to answer questions if he or she does take the stand?

the right against self-incrimination

Do constitutions protect civil liberties against infringement by private individuals (or businesses) or do constitutions only protect against infringement by government?

they all place legal obligations on government (and *only on government*) thus only protecting against infringement by government NOT private individuals

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, is the purpose (or "aim") of these rules and procedures?

to *empower* government to prevent and punish crime while also leading government to *respect the rights* of the innocent, the accused, and even (to some extent) the guilty.

What, according to the textbook, is "the primary purpose" of the 4th Amendment?

to *protect citizens from unjustified government interference* when law enforcement officials search for evidence of criminal activity