POSC Chapter 4

Why did the FBI target nonviolent antiwar organizations?

"because they gave aid and comfort to violent demonstrators by lending respectability to their cause."

What part of the following quote has never been taken literally? : "Congress shall make no law...abridging the freedom of speech."

"no law"

Focus Questions for Chapter 4

- What is gov'ts role with regard to civil liberties? How responsive can or should it be to the people's will? - What is the proper balance between liberty and order? - Under what circumstances should civil liberties be restrained? - What happens when rights clash? Are restrictions of civil liberties justified if they promote equality? - In what ways does the guarantee of civil liberties promote democracy? Or does it pose challenges for democratic government that can be considered gates?

What are the expression-based freedoms included in the 1st amendment?

- freedom of speech, of the press, of assembly, to petition the government, and the free exercise of religion

When was the BOR ratified?

1791

What is selective incorporation?

A doctrine used by the SC to make those provisions of the BOR that are fundamental rights binding on the states

What CT also prohibits bills of attainder. What are these?

A legislative act that singles out an individual or group for punishment without a trial. (Article 1)

What is the compelling interest test?

A standard used by the SC in civil liberties cases to determine whether a state has a compelling interest for infringing on a right and whether the law is narrowly drawn to meet that interest.

Define incorporate regarding the BOR

At the end of the 19th century, the SC began to incorporate - the process of applying provisions of the BOR to the states.

Who said "due process and judicial process are not one and the same particularly when it comes to national security."

Attorney General Eric Holder

why were military tribunals "better" for lincoln?

Bc they had fewer procedural safeguards, 2/3 vote, less standards for evidence, and no habeas corpus protections

How is the 1st amendment explicit?

Because it forbids certain actions by congress. It's clearly talking about the national government

What did the Antifederalist, who wrote under the name of Brutus, say about the liberties? And what were those liberties?

Brutus declared that the liberties including the right of conscience and the right of accused criminals to hear the charges against them, needed to be explicitly stated.

Govt's attempts to ensure the equality of some people can lead to what?

Can lead to limiting the freedoms of others.

What happened to Charles Schenck?

Convicted anti-war activist b/c he circulated flyers comparing the draft to involuntary servitude

What led to MCarthy's downfall?

Edward Murrow's TV show where he demonstrated the extent to which McCarthy had been dishonest. A free press, TV, allowed the marketplace of ideas to flourish and led to his downfall.

What describes the following: Laws that provide for the infliction of punishment upon a person for some prior act that, at the time it was committed, was not illegal.

Ex post facto laws. This is prohibited by the Constitution

True or False: The protection of civil liberties does not require of governmental system to do so.

False

True or False: The sedition acts were not repealed

False. After the war congress did

True or False: the 3rd amendments protection against the quartering of soldiers...peacetime has been incorporated

False. It hasn't been incorporated, but it's unlikely to be used today

True or False: campaign contributions are a form of speech that is not protected by the 1st amendment.

False. It is protected

True or False: In times of crisis Congress and the president will not limit civil liberties to secure order, often with public support.

False. They will limit civil liberties, often w/ public support.

True or False: States are required, as the 7th amendment commands, to provide jury trials in civil lawsuits over 20 dollars.

False. They're not required

What did the federalist administration of John adams use the act for?

For the opposition, democractic-republican. The lower courts upheld the act (said it was valid) against claims that the convictions violated the freedoms of speech and press guaranteed by the 1st amendment.

Who claimed the right to indefinitely detain alleged enemy combatants, whether US citizens or foreign nationals

George Bush

What did James Madison think would happen if the bill of rights were approved?

He believed that if approved, the judiciary would consider itself the special guardians of those rights and would resist any effort by the legislative or executive branches to limit them.

How did James Madison think checks and balances would help?

He said that through the system of separation of powers and checks and balances, it would help ensure the rights of all.

What do the 5th and 6th amendments talk about?

How the government can conduct trials

What does the 8th amendment talk about?

How the government can punish those convicted

When/Where did the SC begin to use the protection of "life, liberty, or property?"

In 1897 in the 14th amendment's due process clause to incorporate some of the provisions of the bill of rights as binding on the states.

What's the significance of "God-damned racketeer" and a "damned Fascist?"

In 1942 the court used these fighting words doctrine to uphold the conviction of a defendant for calling a town marshall those words.

What was the espionage act of 1917 and what war was it passed in?

In World War 1. It made it a crime to obstruct military recruiting

What do the criminal justice provisions of the BOR protect? What amendments are these?

Individuals accused of crimes by directing how the gov't may investigate crimes. (4th and 5th amendments)

What did the 14th amendment in 1868 do?

It began to make the BOR apply to the states as well by implementing restrictions on what the states could do. "nor shall any state deprive any person of life, liberty, or property, w/o due process of law"

Where and who noted the following quote: "A representative democracy will be able to keep a minority from abridging the rights of other but may not be able to hold back a majority. Yet civil liberties, by their very nature, are so basic that they cannot be taken away regardless of whether it is a minority or a majority that might wish to do so. Thus if a majority wishes to abridge rights, it often falls to the judiciary, which is not designed to be responsive to public desires, to protect those rights."

James Madison in Federalist 10

What does the Defense Authorization Act of 2012 do? Who signed it?

Obama signed it. It gives the president the authority to detain US citizens indefinitely w/o trial

Define natural, or unalienable, rights

Rights that every person has and that the government cannot legitimately take away

What did brandenburg v. ohio state?

Speech can't be banned unless it leads to "imminent lawless action."

What does the exception of a grand jury entail?

States can indict people though charges in federal courts need the approval of a grand jury

What did Schenck v. US state?

That even though freedom of speech is important, this does not give an individual the right to falsely shout "Fire!" in a crowded theater and cause a panic.

What is involuntary servitude prohibited by?

The 13th amendment

What must these hearings be consistent with?

The 1949 Geneva Convention, which is an international treaty that protects the rights of prisoners of war

How is the 5th amendment not as clear?

The 5th amendment prohibits taking public property, but it's not clear whether this applies to federal or state governments, or both.

What did the SC rule in June 2004 regarding enemy combatants?

The SC said that non citizens could not be held indefinitely as enemy combatants

What did Barron v. Baltimore (1833) state?

The SC stated in that case that the BOR applied to the national government only. Under the BARRON decision, state gov'ts could abridge freedom of speech, press, and religion, etc. w/o violating the constitution

Suspicion of people who criticized the gov't rose again during what war?

The Vietnam War

What was the USA PATRIOT Act, when was it passed, and what did it overturn?

The act allowed greater sharing of intelligence info and enhanced the laws enforcement abilities to tap phones and emails. It regulated financial transactions w/ overseas ppl and eased the process of deporting immigrates suspected of terrorist activities. It was passed after 9/11 and overturned some of the COINTELPRO reforms.

From that statement, the court adopted what test? What does this test do?

The clear and present danger test. It requires the state to prove that there is a high likelihood that the speech in question would lead to a danger that congress has a right to protect.

What does CT stand for from now on?

The constitution

What are the main sources of civil liberties?

The constitution and the bill of rights

What did Jefferson do when he took power?

The democractic-republicans were in power and he pardoned those convicted under the act

what branch has the most direct responsibility over national security?

The executive branch

The civil liberties most at risk during times of crisis are protected by what amendment?

The first, freedom of speech, press, and association

What is the marketplace of ideas? What amendment protects it?

The idea that the government should not restrict the expression of ideas because the people are capable of accepting good ideas and rejecting bad ones - the 1st amendment.

What would a compelling interest entail?

The law is necessary for the functioning of the gov't Ex. gov't might have an interest in banning speech that could incite religious wars, but a law would have to be narrowly drawn so as not to prevent religious speech that merely calls for struggle against oppression.

when first written, did the BOR limit the activities of the national or state government?

The national

what was the McCarthy era similar to? why?

The red scare b/c of its agitated suspicion that opposition to the gov't was communist-inspired

In 1798 as part of the war effort, the federalist-dominated congress passed what act? And what did it do?

The sedition act which made it illegal to do things or say things bad about the federal gov't

What are the following rights and what amendment protects it? : individuals cannot be deprived of their property w/o due process of law, if the gov't takes private property for public purposes, i.e. highway or park, it must provide just compensation.

These come from the fifth amendment which also protects certain economic and property rights.

What did the federalists do in response to that complaint?

They agreed to ratify it in order to secure the ratification of the constitution.

What are "fighting words"

They are phrases that might lead the individual to whom they are directed to respond with a punch. Fighting words are banned speech.

What was the most powerful argument of the Antifederalists in 1787 against the proposed constitution?

They argued that it did not protect fundamental liberties

What were the amendments known as the sedition acts of 1918?

They banned "disloyal, profane, scurrilous, or abuse language" about the CT or gov't of the US, as well as speech that interfered w/ the war effort.

What did Congress' hearings entail and with who?

They held hearings investigating individual citizens' political views and personal associations

What happened regarding COINTELPRO and the FBI in the mid 1960s?

They infiltrated groups that expressed opposition to mainline American politics, like antiwar, civil rights, left-wing and white supremacy groups. There was a lot of illegal activity to do these things.

What did Congress do in reaction?

They put restrictions on surveillance of political organizations including limits on the sharing of info between the CIA and the FBI

Define civil liberties

Those rights, such as freedom of speech and religion, that are so fundamental that they are outside the authority of the government to regulate.

True or False: During the McCarthy era the gov't imprisoned a lot of ppl for their political views and a ton lost their jobs.

True

True or False: The SC ruled that congress must authorize hearings to determine the legality of the dentition of even foreign enemy combatants.

True

True or False: The SC originally set strict limits on these investigations

True, but following the intro of several bills that would have limited its authority, the Court backed down and accepted them

True or False: Civil rights often require active involvement of the government.

True. They require active involvement by the government in opening gateways to full civic participation by all, regardless of race, gender, or religion.

What rights do the BOR protect?

Various rights surrounding freedom of expression and criminal procedure, plus a few additional.

What is the rule that Justice Holmes speaks about?

Whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent."

Was McCarthy censured?

Yes. The senate voted in december 1954 67-22

Did the SC uphold the decision?

Yes. They claimed freedom of speech could be restricted during war time

What are some prohibitions on speech?

blasphemy, inappropriate references to God, and defamation

The _____ _______ were written into the constitution as the first 10 amendments.

civil liberties, or bill of rights

_____ _______ are outside the government's authority, whereas _____ ______ are rights that government is obliged to protect

civil liberties; civil rights

The fear of what led to a suppression of civil liberties following WW1? did this fear reoccur?

communism; yes after WW2

True or false: speech codes don't violate the first amendment

false

True or False: The US fought the soviet union

false. the US never fought the soviet union directly during his period, but frosty relations led to the so called cold war.

Why did he think the restriction on habeas corpus was justified?

given the threat of the civil war. Congress affirmed Lincoln's order.

Today almost all provisions of the 1, 2, 4, 5, 6, and 8 amendments have been incorporated with the exception of what?

grand jury indictment and excessive bail

Protecting civil liberties requires a balance between individual ____ and __ ___

liberty and public order

In 1925 the Court assumed that the protection of ___ in the due process clause prevented states from abridging freedom of ____, a right similarly protected by the ____ amendment

liberty; speech; 5th amendment

What are the limits the Courts have placed?

limits on advocacy of unlawful activities, the use of fighting words, hate speech, symbolic speech, and limits imposed by time, place, and manner regulations.

Complete liberty could lead to a breakdown of ____

order

The constitution prohibits the government from interfering in what individuals ____ or ____

say; think

In 1937 the court settled on a process of ____ _____, using the due process clause

selective incorporation

Starting in the 1960s the SC interpreted what amendment as a very general right? What was it?

the 9th amendment, the right to privacy

What was the red scare?

the fear that communism would spread to the US. It lead to a crackdown on socialists, communists, and other radicals.

What amendment is the following: the right to keep and bear arms

the second amendment

Why did Lincoln suspend __ ___ ____ ____ and why?

the writ of habeas corpus, so slave states could be tried by military tribunals rather than by civilian courts.

The CT protects the right to, ________, the right of individuals to be brought before a judge to have the legality of their imprisonment determined

to a writ of habeas corpus

In the 1789 French Revolution Britain and France were at war. The US engaged in a limited and undeclared war with France over what?

trade issues

True or False: The executive branch is more likely to support restrictions on civil liberties during times of crisis than is either the leg or judicial branch

true

True or False: In the beginning the SC never agreed with the total incorporation

true. total incorporation was including the whole life, liberty, and property thing

In ___ time, or other times of ___, concerns about ____ are at their highest and protections for ____ liberties by national and state gov'ts typically _____

war; crisis; order; civil; decline

words spoken in _____ may have a different impact than they would in ____

wartime; peacetime

when did the scare begin to subside?

when palmer's warning that the radicals would attempt to overthrow the gov't on may 1, 1920, but it provided to be incorrect