U.S. Government Exam 3 Ch. 13, 4, and 5

Essentially, __________ are guarantees by the government that it will treat people equally—particularly people belonging to groups that have historically been denied the same rights and opportunities as others.

civil rights

Particularly in times of war, or even in response to threats against national security, the government has held suspected enemy agents without access to ______ courts, often without access to lawyers or a defense, seeking instead to try them before military tribunals or detain them indefinitely without trial.

civilian

The rights of _____________—individuals who claim the right to refuse to perform military service on the grounds of freedom of thought, conscience, or religion—have also been controversial, although many conscientious objectors have contributed service as non-combatant medics during wartime. To avoid serving in the Vietnam War, many people claimed to have a conscientious objection to military service on the basis that they believed this particular war was unwise or unjust. However, the Supreme Court ruled in Gillette v. United States that to claim to be a conscientious objector, a person must be opposed to serving in any war, not just some wars.

conscientious objectors

To return to the previous example, religious communities may believe their faith will protect them and loved ones from disease, but they may not have the right to both not vaccinate their children and have those children publicly ______, where they would pose a risk to others.

educated

the ___________ is used in our common-law legal system to demand that a neutral judge decide whether someone has been lawfully detained.

writ of habeas corpus

The _______ amendment protects rights in criminal cases, including due process and indictment by grand jury for capital crimes, as well as the right not to testify against oneself

fifth (5th)

The _____ amendment protects the right to freedoms of religion and speech; right to assemble and to petition the government for redress of grievances; right to a free press

first (1st)

The __________, on the other hand, limits the ability of the government to control or restrict religious practices. This portion of the First Amendment regulates not the government's promotion of religion, but rather government suppression of religious beliefs and practices. Much of the controversy surrounding the free exercise clause reflects the way laws or rules that apply to everyone might apply to people with particular religious beliefs.

free exercise clause

To override the southern states' actions, lawmakers in Congress proposed two amendments to the Constitution designed to give political equality and power to formerly enslaved people. Once passed by Congress and ratified by the necessary number of states, these became the Fourteenth and Fifteenth Amendments. In addition to including the equal protection clause as noted above, the Fourteenth Amendment also was designed to ensure that the states would respect the civil ________ of freed people. The Fifteenth Amendment was proposed to secure the right to vote for Black men, which will be discussed in more detail later in this chapter.

liberties

The ______ Amendment prohibits the government from commandeering people's homes to house soldiers, particularly in peacetime.

third

Just as the laws vary across the states, so do judicial rulings and interpretations, and the judges who make them. That means there may not be uniform application of the law—even of the same law—nationwide. We are somewhat bound by geography and do not always have the luxury of picking and choosing the venue for our particular case. So, while having such a decentralized and varied set of judicial operations affects the kinds of cases that make it to the courts and gives citizens alternate locations to get their case heard, it may also lead to disparities in the way they are ________ once they get there.

treated

Although _________ made some civil rights advances in the decades following World War II, discrimination continued. Alarmed by the large number of undocumented Mexicans crossing the border into the United States in the 1950s, the United States government began Operation Wetback (wetback is a derogatory term for Mexicans living unofficially in the United States). From 1953 to 1958, more than three million Mexican immigrants, and some Mexican Americans as well, were deported from California, Texas, and Arizona.132 To limit the entry of Hispanic and Latino immigrants to the United States, in 1965 Congress imposed an immigration quota of 120,000 newcomers from the Western Hemisphere.

Latinos

Mexican Americans and Puerto Ricans did not passively accept discriminatory treatment, however. In 1903, Mexican farmworkers joined with Japanese farmworkers, who were also poorly paid, to form the first union to represent agricultural laborers. In 1929, Latino civil rights activists formed the _____________ (LULAC) to protest against discrimination and to fight for greater rights for Latinos.130

League of United Latin American Citizens

With each ACA case it has decided, the ___________ has served as the umpire, upholding the law and some of its provisions on one hand, but ruling some aspects of it unconstitutional on the other. Both supporters and opponents of the law have claimed victory and faced defeat. In each case, the Supreme Court has further defined and fine-tuned the law passed by Congress and the president, determining which parts stay and which parts go, thus having its say in the way the act has manifested itself, the way it operates, and the way it serves its public purpose.

Supreme Court

The _____ Amendment is as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Tenth

In _______, Justice John Paul Stevens, writing for a majority of the Supreme Court, argued in Saenz v. Roe that the clause protects the right to travel from one state to another. More recently, Justice Clarence Thomas argued in the 2010 McDonald v. Chicago ruling that the individual right to bear arms applied to the states because of this clause.

1999

At the federal level, ______ Supreme Court judges are nominated by the president and confirmed by the Senate for lifetime appointments. This provides them the independence they need to carry out their duties. However, court power is confined to rulings on those cases the courts decide to hear.

9

An ___________ law has a retroactive effect: it can be used to punish crimes that were not crimes at the time they were committed, or it can be used to increase the severity of punishment after the fact.

ex post facto

The first of these two freedoms is known as the ___________. Congress is prohibited from creating or promoting a state-sponsored religion (this now includes the states). When the United States was founded, most countries around the world had an established church or religion—an officially sponsored set of religious beliefs and values. In Europe, bitter wars were fought between and within states, often because the established church of one territory was in conflict with that of another. Wars and civil strife were common, particularly between states with Protestant and Catholic churches that had differing interpretations of Christianity. Even today, the legacy of these wars remains, most notably in Ireland, where complications from Brexit have rekindled tensions between a mostly Catholic south and a largely Protestant north that have been simmering for nearly a century. Many settlers in the United States came to this continent as refugees from such wars; others came to find a place where they could follow their own religion with like-minded people in relative peace. Even if the early United States had wanted to establish a single national religion, the diversity of religious beliefs within and between the colonies would have made this quite impossible. Nonetheless the differences were small; most people were of European origin and professed some form of Christianity (although in private some of the founders, most notably Thomas Jefferson, Thomas Paine, and Benjamin Franklin, held what today would be seen as more pluralistic Unitarian or deistic views). So for much of U.S. history, the establishment clause was not particularly important—the vast majority of citizens were Protestant Christians of some form, and since the federal government was relatively uninvolved in the day-to-day lives of the people, there was little opportunity for conflict. That said, there were some citizenship and office-holding restrictions on Jews within some of the states. Worry about state sponsorship of religion in the United States began to reemerge in the latter part of the nineteenth century. An influx of immigrants from Ireland and eastern and southern Europe brought large numbers of Catholics. Fearing the new immigrants and their children would not assimilate, states passed laws forbidding government aid to religious schools. New religious organizations, such as The Church of Jesus Christ of Latter-day Saints, Seventh-day Adventists, Jehovah's Witnesses, and many others, also emerged, blending aspects of Protestant beliefs with other ideas and teachings at odds with the more traditional Protestant churches of the era. At the same time, public schooling was beginning to take root on a wide scale. Since most states had traditional Protestant majorities and most state officials were Protestants themselves, the public school curriculum incorporated many Protestant features; at times, these features would come into conflict with the beliefs of children from other Christian sects or from other religious traditions.

establishment clause

However, some cases cut across the dual court system and may end up being heard in both state and federal courts. Any case has the potential to make it to the federal courts if it invokes the U.S. Constitution or _________ law. It could be a criminal violation of federal law, such as assault with a gun, the illegal sale of drugs, or bank robbery. Or it could be a civil violation of federal law, such as employment discrimination or securities fraud. Also, any perceived violation of a liberty protected by the Bill of Rights, such as freedom of speech or the protection against cruel and unusual punishment, can be argued before the federal courts.

federal

However, like the requirement for a search warrant, the exclusionary rule does have exceptions. The courts have allowed evidence to be used that was obtained without the necessary legal procedures in circumstances where police executed warrants they believed were correctly granted but in fact were not ("good faith" exception), and when the evidence would have been found anyway had they followed the law ("_________________").

inevitable discovery

The lower courts are also more diverse today. In the past few decades, the U.S. judiciary has expanded to include more women and minorities at both the federal and state levels. However, the number of women and people of color on the courts still lags behind the overall number of White men. As of 2021, the federal judiciary consists of ____ percent men and 33 percent women. In terms of race and ethnicity, 74 percent of federal judges are White, 12 percent African American, 8 percent Latinx, and 4 percent Asian American.46

67

Likewise, _________ has checks on the judiciary. It retains the power to modify the federal court structure and its appellate jurisdiction, and the Senate may accept or reject presidential nominees to the federal courts. Faced with a court ruling that overturns one of its laws, Congress may rewrite the law or even begin a constitutional amendment process.

Congress

As Indians were removed from their tribal lands and increasingly saw their traditional cultures being destroyed over the course of the nineteenth century, a movement to protect their rights began to grow. Sarah Winnemucca (Figure 5.16), member of the Paiute tribe, lectured throughout the east in the 1880s in order to acquaint White audiences with the injustices suffered by the western tribes.106 Lakota physician Charles Eastman (Figure 5.16) also worked for Native American rights. In 1924, the _____________________ granted citizenship to all Native Americans born after its passage. Native Americans born before the act took effect, who had not already become citizens as a result of the Dawes Severalty Act or service in the army in World War I, had to wait until the Nationality Act of 1940 to become citizens. In 1934, Congress passed the Indian Reorganization Act, which ended the division of reservation land into allotments. It returned to Native American tribes the right to institute self-government on their reservations, write constitutions, and manage their remaining lands and resources. It also provided funds for Native Americans to start their own businesses and attain a college education.107

Indian Citizenship Act

In 1830, Congress passed the _________________, which forced Native Americans to move west of the Mississippi River.98 Not all tribes were willing to leave their land, however. The Cherokee in particular resisted, and in the 1820s, the state of Georgia tried numerous tactics to force them from their territory. Efforts intensified in 1829 after gold was discovered there. Wishing to remain where they were, the tribe sued the state of Georgia.99 In 1831, the Supreme Court decided in Cherokee Nation v. Georgia that Indian tribes were not sovereign nations, but also that tribes were entitled to their ancestral lands and could not be forced to move from them.100

Indian Removal Act

Later, __________ in his speech introducing the proposed amendments that would become the Bill of Rights, acknowledged another Federalist argument: "It has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions."6 Neither had the Articles of Confederation included a specific listing of rights, even if it was predictable that state governments would differ in what they would tolerate, grant, and prohibit among their citizens.

James Madison

As the new United States expanded westward, however, the issue of slavery became harder to ignore and ignited much controversy. Many opponents of slavery were willing to accept the institution if it remained largely confined to the ________ but did not want it to spread westward. They feared the expansion of slavery would lead to the political dominance of the South over the North and would deprive small farmers in the newly acquired western territories who could not afford to enslave others.15 Abolitionists, primarily in the North, argued that slavery was immoral and contrary to the nation's values and demanded an end to it.

South

The adversarial judicial system comes from the __________ tradition: In a court case, it is one party versus the other, and it is up to an impartial person or group, such as the judge or jury, to determine which party prevails. The federal court system is most often called upon when a case touches on constitutional rights. For example, when Samantha Elauf, a Muslim woman, was denied a job working for the clothing retailer Abercrombie & Fitch because a headscarf she wears as religious practice violated the company's dress code, the Supreme Court ruled that her First Amendment rights had been violated, making it possible for her to sue the store for monetary damages. Elauf had applied for an Abercrombie sales job in Oklahoma in 2008. Her interviewer recommended her based on her qualifications, but she was never given the job because the clothing retailer wanted to avoid having to accommodate her religious practice of wearing a headscarf, or hijab. In so doing, the Court ruled, Abercrombie violated Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin, and requires them to accommodate religious practices.

common law

If a justice agrees with the outcome of the case but not with the majority's reasoning in it, that justice may write a _________

concurring opinion

At the time of the American Revolution, women had few rights. Although single women were allowed to own property, married women were not. When women married, their separate legal identities were erased under the legal principle of _________. Not only did women adopt their husbands' names, but all personal property they owned legally became their husbands' property. Husbands could not sell their wives' real property—such as land or in some states enslaved people—without their permission, but they were allowed to manage it and retain the profits. If women worked outside the home, their husbands were entitled to their wages.61 So long as a man provided food, clothing, and shelter for his wife, she was not legally allowed to leave him. Divorce was difficult and in some places impossible to obtain.62 Higher education for women was not available, and women were barred from professional positions in medicine, law, and ministry.

coverture

Courts hear two different types of disputes: criminal and civil. Under _______ law, governments establish rules and punishments; laws define conduct that is prohibited because it can harm others and impose punishment for committing such an act. Crimes are usually labeled felonies or misdemeanors based on their nature and seriousness; felonies are the more serious crimes. When someone commits a criminal act, the government (state or national, depending on which law has been broken) charges that person with a crime, and the case brought to court contains the name of the charging government, as in Miranda v. Arizona

criminal

What are the two different types of disputes that courts hear

criminal and civil

In Virginia, state leaders employed a strategy of "massive resistance" to school integration, which led to the closure of a large number of public schools across the state, some for years.34 Although ____________ segregation, segregation mandated by law, had ended on paper, in practice, few efforts were made to integrate schools in most school districts with substantial Black student populations until the late 1960s. Many White southerners who objected to sending their children to school with Black students then established private academies that admitted only White students; many of these schools remain overwhelmingly White today.35

de jure

The slow rate of progress led to frustration within the Black community. Newer, grassroots organizations such as the Southern Christian Leadership Conference (SCLC), Congress of Racial Equality (CORE), and Student Non-Violent Coordinating Committee (SNCC) challenged the NAACP's position as the leading civil rights organization and questioned its legal-focused strategy. These newer groups tended to prefer more confrontational approaches, including the use of _____________ campaigns relying on marches and demonstrations. The strategies of nonviolent resistance and civil disobedience, or the refusal to obey an unjust law, had been effective in the campaign led by Mahatma Gandhi to liberate colonial India from British rule in the 1930s and 1940s. Civil rights pioneers adopted these measures in the 1955-1956 Montgomery bus boycott. After Rosa Parks refused to give up her bus seat to a White person and was arrested, a group of Black women carried out a day-long boycott of Montgomery's public transit system. This boycott was then extended for over a year and overseen by union organizer E. D. Nixon. The effort desegregated public transportation in that city.40

direct action

Sonia Sotomayor, nominated in 2009, was the first ________ on the supreme court justice

hispanic american

of the thousands of petitions for appeal, the Supreme Court will typically hear fewer than one _________ a year.

hundred

To add further explanation to Article III, Alexander Hamilton wrote details about the federal judiciary in Federalist No. 78. In explaining the importance of an independent judiciary separated from the other branches of government, he said "________" was a key role of the courts as they seek to protect people from unjust laws.

interpretation

Under ________ a case is heard for the first time

original jurisdiction

And the courts themselves are affected by another "court"—the court of __________. Though somewhat isolated from politics and the volatility of the electorate, justices may still be swayed by special-interest pressure, the leverage of elected or other public officials, the mass media, and the general public. As times change and the opinions of the population change, the court's interpretation is likely to keep up with those changes, lest the courts face the danger of losing their own relevance.

public opinion

Because of the Constitution's civil ____ guarantee, it is unlawful for any publicly-funded entity, such as a school or state university, or even a landlord or potential landlord to treat people differently based on their race, ethnicity, age, sex, or national origin.

rights

The _____ amendment protects the right to keep and bear arms to maintain a well-regulated militia

second (2nd)

The amendment places limits on both searches and ______: Searches are efforts to locate documents and contraband. Seizures are the taking of these items by the government for use as evidence in a criminal prosecution (or, in the case of a person, the detention or taking of the person into custody).

seizures

Following the Civil War and the abolition of _______, the women's rights movement fragmented. Stanton and Anthony denounced the Fifteenth Amendment because it granted voting rights only to Black men and not to women of any race.70 The fight for women's rights did not die, however. In 1869, Stanton and Anthony formed the National Woman Suffrage Association (NWSA), which demanded that the Constitution be amended to grant the right to vote to all women. It also called for more lenient divorce laws and an end to sex discrimination in employment. The less radical Lucy Stone formed the American Woman Suffrage Association (AWSA) in the same year; AWSA hoped to win the suffrage for women by working on a state-by-state basis instead of seeking to amend the Constitution.71 Four western states—Utah, Colorado, Wyoming, and Idaho—did extend the right to vote to women in the late nineteenth century, but no other states did.

slavery

The ___________ determines the position the government will take on a case. The attorneys of the office prepare and file the petitions and briefs, and the solicitor general (or an assistant) presents the oral arguments before the Court.

solicitor general

In 1848, Stanton and Mott called for a women's rights convention, the first ever held specifically to address the subject, at Seneca Falls, New York. At the Seneca Falls Convention, Stanton wrote the Declaration of Sentiments, which was modeled after the Declaration of Independence and proclaimed women were equal to men and deserved the same rights. Among the rights Stanton wished to see granted to women was _______, the right to vote. When called upon to sign the Declaration, many of the delegates feared that if women demanded the right to vote, the movement would be considered too radical and its members would become a laughingstock. The Declaration passed, but the resolution demanding suffrage was the only one that did not pass unanimously.67

suffrage

The _____ amendment protects States' rights to powers not specifically delegated to the federal government

tenth (10th)

Just as in the case of African Americans, however, true civil rights advances for Hispanic and Latino people did not take place until the end of World War II. Hispanic and Latino activists targeted the same racist practices as did African Americans and used many of the same tactics to end them. In 1946, Mexican American parents in California, with the assistance of the NAACP, sued several California school districts that forced Mexican and Mexican American children to attend segregated schools. In the case of Mendez v. Westminster (1947), the Court of Appeals for the Ninth Circuit Court held that the segregation of Mexican and Mexican American students into separate schools was ______________

unconstitutional

Laws that treat one group of people differently from others are not always ____________. In fact, the government engages in legal discrimination quite often. In most states, you must be eighteen years old to smoke cigarettes and twenty-one to drink alcohol; these laws discriminate against the young. To get a driver's license so you can legally drive a car on public roads, you have to be a minimum age and pass tests showing your knowledge, practical skills, and vision. Some public colleges and universities run by the government have an open admission policy, which means the school admits all who apply, but others require that students have a high school diploma or a particular score on the SAT or ACT or a GPA above a certain number. This is a kind of discrimination, because these requirements treat people who do not have a high school diploma or a high enough GPA or SAT score differently. How can the federal, state, and local governments discriminate in all these ways even though the equal protection clause seems to suggest that everyone be treated the same?

unconstitutional

The belief that people should be treated equally under the law is one of the cornerstones of political thought in the United States. Yet not all citizens have been treated equally throughout the nation's history, and some are treated differently even today. For example, until 1920, nearly all women in the United States lacked the right to vote. Black men received the right to vote in 1870, but as late as 1940, only 3 percent of African American adults living in the South were registered to vote, due largely to laws designed to keep them from the polls.1 Americans were not allowed to enter into legal marriage with a member of the same sex in many U.S. states until 2015. Some types of unequal treatment are considered acceptable in some contexts, while others are clearly not. No one would consider it acceptable to allow a ten-year-old to vote, because a child lacks the ability to understand important political issues, but all reasonable people would agree that it is wrong to mandate racial segregation or to deny someone ___________ on the basis of race. It is important to understand which types of inequality are unacceptable and why.

voting rights

Hamilton went on to argue that listing some rights might actually be dangerous, because it would provide a pretext for people to claim that rights ______ included in such a list were not protected.

not

The first session of the first U.S. Congress laid the framework for today's federal judicial system, established in the Judiciary Act of _____.

1789

Case name: _______ year: 1954 Court's decision: public schools must be desgregated

Brown v Board of Education

Furthermore, the courts have ruled that, although public school officials are government actors, the ______ Amendment freedom of expression rights of children attending public schools are somewhat limited. In particular, in Tinker v. Des Moines (1969) and Hazelwood v. Kuhlmeier (1988), the Supreme Court has upheld restrictions on speech that creates "substantial interference with school discipline or the rights of others"35 or is "reasonably related to legitimate pedagogical concerns."36 For example, the content of school-sponsored activities like school newspapers and speeches delivered by students can be controlled, either for the purposes of instructing students in proper adult behavior or to deter conflict between students.

First

The _______ Amendment protects the right to freedom of religious conscience and practice and the right to free expression, particularly of political and social beliefs.

First

_______ would no doubt be surprised by what the judiciary has become: a key component of the nation's constitutional democracy, finding its place as the chief interpreter of the Constitution and the equal of the other two branches, though still checked and balanced by them.

Hamilton

The current relationship between the U.S. government and Native American tribes was established by the ___________________ of 1975. Under the act, tribes assumed control of programs that had formerly been controlled by the BIA, such as education and resource management, and the federal government provided the funding.113 Many tribes have also used their new freedom from government control to legalize gambling and to open casinos on their reservations. Although the states in which these casinos are located have attempted to control gaming on Native American lands, the Supreme Court and the Indian Gaming Regulatory Act of 1988 have limited their ability to do so.114 The 1978 American Indian Religious Freedom Act granted tribes the right to conduct traditional ceremonies and rituals, including those that use otherwise prohibited substances like peyote cactus and eagle bones, which can be procured only from vulnerable or protected species.115

Indian Self-Determination and Education Assistance Act

In the 1930s and 1940s, cases involving ____________ demonstrated the difficulty of striking the right balance. In addition to following their church's teaching that they should not participate in military combat, members refuse to participate in displays of patriotism, including saluting the flag and reciting the Pledge of Allegiance, and they regularly engage in door-to-door evangelism to recruit converts. These activities have led to frequent conflict with local authorities. Jehovah's Witness children were punished in public schools for failing to salute the flag or recite the Pledge of Allegiance, and members attempting to evangelize were arrested for violating laws against door-to-door solicitation of customers. In early legal challenges brought by Jehovah's Witnesses, the Supreme Court was reluctant to overturn state and local laws that burdened their religious beliefs.16 However, in later cases, the court was willing to uphold the rights of Jehovah's Witnesses to proselytize and refuse to salute the flag or recite the Pledge.

Jehovah's Witnesses

Judicial review was established in the Supreme Court case ________, when, for the first time, the Court declared an act of Congress to be unconstitutional. Wielding this power is a role Marshall defined as the "very essence of judicial duty," and it continues today as one of the most significant aspects of judicial power. Judicial review lies at the core of the court's ability to check the other branches of government—and the states.

Marbury v. Madison

Perhaps the most famous provision of the Fifth Amendment is its protection against self-incrimination, or the right to remain silent. This provision is so well known that we have a phrase for it: "taking the Fifth." People have the right not to give evidence in court or to law enforcement officers that might constitute an admission of guilt or responsibility for a crime. Moreover, in a criminal trial, if someone does not testify in their own defense, the prosecution cannot use that failure to testify as evidence of guilt or imply that an innocent person would testify. This provision became embedded in the public consciousness following the Supreme Court's 1966 ruling in Miranda v. Arizona, whereby suspects were required to be informed of their most important rights, including the right against self-incrimination, before being interrogated in police custody.48 However, contrary to some media depictions of the ______________, law enforcement officials do not necessarily have to inform suspects of their rights before they are questioned in situations where they are free to leave.

Miranda warning

Finally, the _________ Amendment guarantees the right of those accused of crimes to have the assistance of an attorney in their defense. Historically, many states did not provide attorneys to those accused of most crimes who could not afford one themselves, and even when an attorney was provided, their assistance was often inadequate, at best. This situation changed as a result of the Supreme Court's decision in Gideon v. Wainwright (1963).53 Clarence Gideon, a poor drifter, was accused of breaking into and stealing money and other items from a pool hall in Panama City, Florida. Denied a lawyer, Gideon was tried and convicted and sentenced to a five-year prison term. While in prison and still without assistance of a lawyer, he drafted a handwritten appeal and sent it to the Supreme Court, which agreed to hear his case (Figure 4.15). The justices unanimously ruled that Gideon, and anyone else accused of a serious crime, was entitled to the assistance of a lawyer, even if they could not afford one, as part of the general due process right to a fair trial.

Sixth

The requirement that a jury be impartial is a critical requirement of the _______ Amendment. Both the prosecution and the defense are permitted to reject potential jurors who they believe are unable to fairly decide the case without prejudice. However, the courts have also said that the composition of the jury as a whole may in itself be prejudicial, so potential jurors may not be rejected simply because of their race or sex, for example.

Sixth

Under _______ a court hears a case on appeal from a lower court and may change the lower court's decision

appellate jurisdiction

Along with other feminists (advocates of women's equality), such as her friend and colleague Susan B. Anthony, Stanton fought for rights for women besides suffrage, including the right to seek higher education. As a result of their efforts, several states passed laws that allowed married women to retain control of their property and let divorced women keep custody of their children.68 Amelia Bloomer, another activist, also campaigned for dress reform, believing women could lead better lives and be more useful to society if they were not restricted by voluminous heavy skirts and tight __________

corsets

Rulings like this have become particularly important for members of religious minority groups, including Muslims, Sikhs, and Jews, who now feel more protected from employment ________ based on their religious attire, head coverings, or beards.19 Such decisions illustrate how the expansion of individual rights and liberties for particular persons or groups over the years has come about largely as a result of court rulings made for individuals on a case-by-case basis.

discrimination

The next frontier of privacy issues may well be the increased use of _________, small preprogrammed or remotely piloted aircraft. Drones can fly virtually undetected and monitor events from overhead. They can peek into backyards surrounded by fences, and using infrared cameras they can monitor activity inside houses and other buildings. The Fourth Amendment was written in an era when finding out what was going on in someone's home meant either going inside or peeking through a window; applying its protections today, when seeing into someone's house can be as easy as looking at a computer screen miles away, is no longer simple.

drones

The judiciary today continues as a __________, with courts at both the national and state levels. Both levels have three basic tiers consisting of trial courts, appellate courts, and finally courts of last resort, typically called supreme courts, at the top

dual court system

The final provision of the Fifth Amendment has little to do with crime at all. The takings clause says that "private property [cannot] be taken for public use, without just compensation." This provision, along with the due process clause's provisions limiting the taking of property, can be viewed as a protection of individuals' ______________: their right to obtain, use, and trade tangible and intangible property for their own benefit. For example, you have the right to trade your knowledge, skills, and labor for money through work or the use of your property, or trade money or goods for other things of value, such as clothing, housing, education, or food.

economic liberty

The ___________ today tends to be interpreted a bit more broadly than in the past; it not only forbids the creation of a "Church of the United States" or "Church of Ohio" it also forbids the government from favoring one set of religious beliefs over others or favoring religion (of any variety) over non-religion. Thus, the government cannot promote, say, Islamic beliefs over Sikh beliefs or belief in God over atheism or agnosticism

establishment clause

With the ratification of the ________ Amendment in 1868, the scope and limits of civil liberties became clearer. First, the amendment says, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," which is a provision that echoes the privileges and immunities clause in Article IV, Section 2 of the original Constitution ensuring that states treat citizens of other states the same as their own citizens. (To use an example from today, the punishment for speeding by an out-of-state driver cannot be more severe than the punishment for an in-state driver). Legal scholars and the courts have extensively debated the meaning of this privileges or immunities clause over the years, with some arguing that it was supposed to extend the entire Bill of Rights (or at least the first eight amendments) to the states, and others arguing that only some rights are extended.

fourteenth (14th)

The _________ amendment protects the right to be secure from unreasonable search and seizure

fourth (4th)

For example, under the Fifth Amendment, a person can be tried in federal court for a felony—a serious crime—only after a ________ issues an indictment indicating that it is reasonable to try them. (A grand jury is a group of citizens charged with deciding whether there is enough evidence of a crime to prosecute someone.) The Supreme Court has ruled that states don't have to use grand juries as long as they ensure people accused of crimes are indicted using an equally fair process.

grand jury

The _____ amendment protects the right to a jury trial in civil cases

seventh (7th)

____ courts help the states retain their own sovereignty in judicial matters over their state laws, distinct from the national government

state

That said, the ______ you practice your religion, like any other practice, may be regulated if it impinges on the rights of others.

way

One of the most serious debates between the Federalists and the Anti-Federalists was over the necessity of limiting the power of the new federal government with a Bill of Rights. As we saw in this section, the Federalists believed a Bill of Rights was unnecessary—and perhaps even dangerous to liberty, because it might invite violations of rights that weren't included in it—while the ______________ thought the national government would prove adept at expanding its powers and influence and that citizens couldn't depend on the good judgment of Congress alone to protect their rights.

Anti-Federalists

The experience of the past two centuries has suggested that the __________ may have been correct in this regard. While the states retain a great deal of importance, the scope and powers of the national government are much broader today than in 1787—likely beyond even the imaginings of the Federalists themselves.

Anti-Federalists

_______________ argued that the Federalists' position was incorrect and perhaps even insincere. The Anti-Federalists believed provisions such as the so-called elastic clause in Article I, Section 8 of the Constitution would allow Congress to legislate on matters well beyond those foreseen by the Constitution's authors. Thus, they held that a bill of rights was necessary.

Anti-Federalists

______ is a payment of money that allows a person accused of a crime to be freed pending trial. If you "make bail" in a case and do not show up for your trial, you will forfeit the money you paid. Since many people cannot afford to pay bail directly, they may instead get a bail bond, which allows them to pay a fraction of the money (typically 10 percent) to a person who sells bonds and who pays the full bail amount. (In most states, the bond seller makes money because the defendant does not get back the money for the bond, and most people show up for their trials.) However, people believed likely to flee or who represent a risk to the community while free may be denied bail and held in jail until their trial takes place.

Bail

In addition to protecting the personal freedoms of individuals, the ____________ protects those suspected or accused of crimes from various forms of unfair or unjust treatment. The prominence of these protections in the Bill of Rights may seem surprising. Given the colonists' experience of what they believed to be unjust rule by British authorities, however, and the use of the legal system to punish rebels and their sympathizers for political offenses, the impetus to ensure fair, just, and impartial treatment to everyone accused of a crime—no matter how unpopular—is perhaps more understandable. What is more, the revolutionaries, and the eventual framers of the Constitution, wanted to keep the best features of English law as well.

Bill of Rights

The Constitution as drafted in 1787 did not include a _____________, although the idea of including one was proposed and, after brief discussion, dismissed in the final week of the Constitutional Convention. The framers of the Constitution believed they faced much more pressing concerns than the protection of civil rights and liberties—most notably keeping the fragile union together in the light of internal unrest and external threats.

Bill of Rights

Ultimately, James Madison delivered on this promise by proposing a package of amendments in the First Congress, drawing from the Declaration of Rights in the Virginia state constitution, suggestions from the ratification conventions, and other sources. Each of these were extensively debated in both houses of Congress and, ultimately, proposed as twelve separate amendments for ratification by the states. Ten of the amendments were successfully ratified by the requisite 75 percent of the states and became known as the ____________

Bill of Rights

Today, a lack of well-paying jobs in many urban areas, combined with the poverty resulting from the legacies of slavery, Jim Crow era terror, and persistent racism, has trapped many ______ people in under-served neighborhoods with markedly lower opportunity and life expectancy.53 While the Civil Rights Act of 1964 created opportunities for members of the Black middle class to advance economically and socially, and to live in the same neighborhoods as the White middle class, their departure left many Black neighborhoods mired in poverty and without the strong community ties that existed during the era of legal segregation. Many of these neighborhoods continue to suffer from high rates of crime and violence.54 Police also appear, consciously or subconsciously, to engage in racial profiling: singling out Black people (and Latino people) for greater attention than members of other racial and ethnic groups, as former FBI director James B. Comey and former New York police commissioner Bill Bratton have admitted.55 When incidents of real or perceived injustice arise, as recently occurred after a series of deaths of Black people at the hands of police in Ferguson, Missouri; Staten Island, New York; Baltimore, Maryland; Louisville, Kentucky; and Minneapolis, Minnesota, many African Americans turn to the streets to protest because they feel abandoned or ignored by politicians of all races.

Black

Not all African Americans in the civil rights movement were comfortable with gradual change. Instead of using marches and demonstrations to change people's attitudes, calling for tougher civil rights laws, or suing for their rights in court, they favored more immediate action to prevent White oppression and protect their communities. Men like Malcolm X, and groups like the Black Panthers were willing to use other means to achieve their goals (Figure 5.9).48 Faced with continual violence at the hands of police and acts of terrorism like the bombing of a Black church in Alabama that killed four girls, Malcolm X expressed significant distrust of White people. He sought to raise the self-esteem of Black people and advocated for their separation from the United States through eventual emigration to Africa. In general, Malcolm X rejected the mainstream civil right's movement's integration and assimilation approach, and laid the foundation for the _______________ movement, which sought self-determination and independence for Black people. His position was attractive to many young African Americans, especially after Martin Luther King, Jr. was assassinated in 1968.

Black Power

By the turn of the twentieth century, the position of African Americans was quite bleak. Even outside the South, racial inequality was a fact of everyday life. African American leaders and thinkers themselves disagreed on the right path forward. Some, like ____________, argued that acceptance of inequality and segregation over the short term would allow African Americans to focus their efforts on improving their educational and social status until White people were forced to acknowledge them as equals. W. E. B. Du Bois, however, argued for a more confrontational approach and in 1909 founded the National Association for the Advancement of Colored People (NAACP) as a rallying point for securing equality. White liberals dominated the organization in its early years, but Black people assumed control over its operations in the 1920s.29

Booker T. Washington

In the early twentieth century, waves of violence aimed at Mexicans and Mexican Americans swept the Southwest. Mexican Americans in Arizona and in parts of Texas were denied the right to vote, which they had previously possessed, and Mexican American children were barred from attending Anglo-American schools. During the Great Depression of the 1930s, Mexican immigrants and many Mexican Americans, both U.S.-born and naturalized citizens, living in the Southwest and Midwest were deported by the government so that Anglo-Americans could take the jobs that they had once held.128 When the United States entered World War II, however, Mexicans were invited to immigrate to the United States as farmworkers under the _______ (bracero meaning "manual laborer" in Spanish) Program to make it possible for these American men to enlist in the armed services.129

Bracero

Critics have argued that this requirement is not very meaningful because law enforcement officers are almost always able to get a search warrant when they request one. On the other hand, since we wouldn't expect the police to waste their time or a judge's time trying to get search warrants that are unlikely to be granted, perhaps the high rate at which they get them should not be so surprising. The use of "no-knock" warrants based on the premise that a suspect would destroy drug evidence has recently been curtailed after the wrongful killing of ___________ by police serving such a warrant.44 , 45

Breonna Taylor

Societal traditions, public opinion, and politics have often stood in the way of the full expansion of rights and liberties to different groups, and not everyone has agreed that these rights should be expanded as they have been by the courts. Schools were long segregated by race until the Court ordered desegregation in __________ (1954), and even then, many stood in opposition and tried to block students at the entrances to all-White schools.20 Factions have formed on opposite sides of the abortion and handgun debates, because many do not agree that women should have abortion rights or that individuals should have the right to a handgun. People disagree about whether members of the LGBTQ community should be allowed to marry or whether arrested persons should be read their rights, guaranteed an attorney, and/or have their cell phones protected from police search.

Brown v Board of Education

For decisions about cert., the Court's Rule ____ (Considerations Governing Review on Writ of Certiorari) takes precedence. The Court is more likely to grant certiorari when there is a conflict on an issue between or among the lower courts. Examples of conflicts include (1) conflicting decisions among different courts of appeals on the same matter, (2) decisions by an appeals court or a state court conflicting with precedent, and (3) state court decisions that conflict with federal decisions. Occasionally, the Court will fast-track a case that has special urgency, such as Bush v. Gore in the wake of the 2000 election.52

10

For example, in 1957, President Dwight D. Eisenhower called out the military by executive order to enforce the Supreme Court's order to racially integrate the public schools in Little Rock, Arkansas. Eisenhower told the nation: "Whenever normal agencies prove inadequate to the task and it becomes necessary for the executive branch of the federal government to use its powers and authority to uphold federal courts, the president's responsibility is inescapable."68 Executive Order _______ nationalized the Arkansas National Guard to enforce desegregation because the governor refused to use the state National Guard troops to protect the Black students trying to enter the school

10730

It was not until the Court's _____ year of operation that Congress, at the urging of Chief Justice—and former president—William Howard Taft, provided the designation and funding for the Supreme Court's own building, "on a scale in keeping with the importance and dignity of the Court and the Judiciary as a coequal, independent branch of the federal government."5 It was a symbolic move that recognized the Court's growing role as a significant part of the national government

146th

Starting in New York in 1790, the early Supreme Court focused on establishing its rules and procedures and perhaps trying to carve its place as the new government's third branch. However, given the difficulty of getting all the justices even to show up, and with no permanent home or building of its own for decades, finding its footing in the early days proved to be a monumental task. Even when the federal government moved to the nation's capital in _____, the Court had to share space with Congress in the Capitol building. This ultimately meant that "the high bench crept into an undignified committee room in the Capitol beneath the House Chamber."

1800

With the beginning of selective incorporation after the Civil War, debates over the Second Amendment were reinvigorated. In the meantime, as part of their Black codes designed to reintroduce most of the trappings of slavery, several southern states adopted laws that restricted the carrying and ownership of weapons by formerly enslaved people. Despite acknowledging a common-law individual right to keep and bear arms, in ______ the Supreme Court declined, in United States v. Cruickshank, to intervene to ensure the states would respect it.38

1876

In _______, Justice Oliver Wendell Holmes was the lone dissenter in the Abrams v. United States decision that convicted four, young, antiwar activists for pamphleteering against U.S. involvement in the Russian Civil War, which now would be exercised as a clear case of freedom of speech.

1919

Native Americans have long suffered the effects of segregation and discrimination imposed by the U.S. government and the larger White society. Ironically, Native Americans were not granted the full rights and protections of U.S. citizenship until long after African Americans and women were, with many having to wait until the Nationality Act of _______ to become citizens.93 This was long after the passage of the Fourteenth Amendment in 1868, which granted citizenship to African Americans but not, the Supreme Court decided in Elk v. Wilkins (1884), to Native Americans.94 White women had been citizens of the United States since its very beginning even though they were not granted the full rights of citizenship. Furthermore, Native Americans are the only group of Americans who were forcibly removed en masse from the lands on which they and their ancestors had lived so that others could claim this land and its resources. This issue remains relevant today as can be seen in the recent protests of the Dakota Access Pipeline, which have led to intense confrontations between those in charge of the pipeline and Native Americans.

1940

Although several state constitutions do list the right to privacy as a protected right, the explicit recognition by the Supreme Court of a right to privacy in the U.S. Constitution emerged only in the middle of the twentieth century. In _______, the court spelled out the right to privacy for the first time in Griswold v. Connecticut, a case that struck down a state law forbidding even married individuals to use any form of contraception.70 Although many subsequent cases before the Supreme Court also dealt with privacy in the course of intimate, sexual conduct, the issue of privacy matters as well in the context of surveillance and monitoring by government and private parties of our activities, movements, and communications. Both these senses of privacy are examined below.

1965

The courts have allowed censorship of less-than-obscene content when it is broadcast over the airwaves, particularly when it is available for anyone to receive. In general, these restrictions on indecency—a quality of acts or statements that offend societal norms or may be harmful to minors—apply only to radio and television programming broadcast when children might be in the audience, although most cable and satellite channels follow similar standards for commercial reasons. An infamous case of televised indecency occurred during the halftime show of the _______ Super Bowl, during a performance by singer Janet Jackson in which a part of her clothing was removed by fellow performer Justin Timberlake, revealing her right breast. The network responsible for the broadcast, CBS, was ultimately presented with a fine of $550,000 by the Federal Communications Commission, the government agency that regulates television broadcasting. However, CBS was not ultimately required to pay.

2004

However, in ________, in a narrow 5-4 decision on District of Columbia v. Heller, the Supreme Court found that at least some gun control laws did violate the Second Amendment and that this amendment does protect an individual's right to keep and bear arms, at least in some circumstances—in particular, "for traditionally lawful purposes, such as self-defense within the home."40 Because the District of Columbia is not a state, this decision immediately applied the right only to the federal government and territorial governments. Two years later, in McDonald v. Chicago, the Supreme Court overturned the Cruickshank decision (5-4) and again found that the right to bear arms was a fundamental right incorporated against the states, meaning that state regulation of firearms might, in some circumstances, be unconstitutional. In 2015, however, the Supreme Court allowed several of San Francisco's strict gun control laws to remain in place, suggesting that—as in the case of rights protected by the First Amendment—the courts will not treat gun rights as absolute (Figure 4.12).41 Elsewhere in the political system, the gun issue remains similarly unsettled. However, in the wake of especially traumatic shootings at a Las Vegas outdoor concert and at a school in Parkland, Florida, there has been increased activism around gun control and community safety, especially among the young.42

2008

For those seeking protection on the basis of sexual orientation, for example, in recent years, the courts have expanded rights, such as the ______ decision in which the Supreme Court ruled that same-sex couples have the right to marry in all 50 states

2015

In ________, state RFRAs became controversial when individuals and businesses that provided wedding services (e.g., catering and photography) were compelled to provide these for same-sex weddings in states where the practice had been newly legalized (Figure 4.8). Proponents of state RFRA laws argued that people and businesses ought not be compelled to endorse practices that their religious beliefs hold to be immoral or indecent. They also indicated concerns that clergy might be compelled to officiate same-sex marriages against their religion's teachings. Opponents of RFRA laws argued that individuals and businesses should be required, per Obergefell v. Hodges, to serve same-sex marriages on an equal basis as a matter of ensuring the civil rights of gays and lesbian people, just as they would be obliged to cater or photograph an interracial marriage.23 It should be noted that religious organizations and clergy are not homogeneous in their view of marriage. For example, same-sex marriage is supported by Episcopalians, a sizable number of Methodists, and many leaders in the Jewish and Hindu faiths.24

2015

A Supreme Court clerkship is one of the most sought-after legal positions, giving "________ young lawyers each year a chance to leave their fingerprints all over constitutional law." A number of current and former justices were themselves clerks, including Chief Justice John Roberts, Justices Stephen Breyer and Elena Kagan, and former chief justice William Rehnquist. Supreme Court clerks are often reluctant to share insider information about their experiences, but it is always fascinating and informative to hear about their jobs. Former clerk Philippa Scarlett, who worked for Justice Stephen Breyer, describes four main responsibilities: Review the cases: Clerks participate in a "cert. pool" (short for writ of certiorari, a request that the lower court send up its record of the case for review) and make recommendations about which cases the Court should choose to hear. Prepare the justices for oral argument: Clerks analyze the filed briefs (short arguments explaining each party's side of the case) and the law at issue in each case waiting to be heard. Research and draft judicial opinions: Clerks do detailed research to assist justices in writing an opinion, whether it is the majority opinion or a dissenting or concurring opinion. Help with emergencies: Clerks also assist the justices in deciding on emergency applications to the Court, many of which are applications by incarcerated people to stay their death sentences and are sometimes submitted within hours of a scheduled execution.

36

President Franklin D. Roosevelt even attempted to stack the odds in his favor in 1937, with a "court-packing scheme" in which he tried to get a bill passed through Congress that would have reorganized the judiciary and enabled him to appoint up to ___ additional judges to the high court. The bill never passed, but other presidents have also been accused of trying similar moves at different courts in the federal system.

6

The original court in 1789 had _____ justices, but Congress set the number at nine in 1869, and it has remained there ever since. There is one chief justice, who is the lead or highest-ranking judge on the Court, and eight associate justices. All nine serve lifetime terms, after successful nomination by the president and confirmation by the Senate. There was discussion of expanding the court during Franklin D. Roosevelt's presidency and also during the 2020 presidential election. Nothing has come of court expansion, however.

6

But the Supreme Court has ruled in favor of all these issues and others. Even without unanimous agreement among citizens, Supreme Court decisions have made all these possibilities a reality, a particularly important one for the individuals who become the beneficiaries (Table 13.1). The judicial branch has often made decisions the other branches were either unwilling or unable to make, and Hamilton was right in Federalist No. ____ when he said that without the courts exercising their duty to defend the Constitution, "all the reservations of particular rights or privileges would amount to nothing."

78

Writing as Publius in Federalist No. _____, Alexander Hamilton argued that the Constitution was "merely intended to regulate the general political interests of the nation" rather than contend with "the regulation of every species of personal and private concerns."

84

But some nominees turn out to be surprises or end up ruling in ways that the president who nominated them did not anticipate. Democratic-appointed judges sometimes side with conservatives, just as Republican-appointed judges sometimes side with liberals. Republican Dwight D. Eisenhower reportedly called his nomination of Earl Warren as chief justice—in an era that saw substantial broadening of civil and criminal rights—"the biggest damn fool mistake" he had ever made. Sandra Day O'Connor, nominated by Republican president Ronald Reagan, often became a champion for women's rights. David Souter, nominated by Republican George H. W. Bush, more often than not sided with the Court's liberal wing. Anthony Kennedy, a Reagan appointee who retired in the summer of 2018, was notorious as the Court's swing vote, sometimes siding with the more conservative justices but sometimes not. Current chief justice John Roberts, though most typically an ardent member of the Court's more conservative wing, has twice voted to uphold provisions of the ____________

Affordable Care Act

Consider health care, for example. In 2010, President Barack Obama signed into law the Patient Protection and _________ (ACA), a statute that brought significant changes to the nation's healthcare system. With its goal of providing more widely attainable and affordable health insurance and health care, "Obamacare" was hailed by some but soundly denounced by others as bad policy. People who opposed the law and understood that a congressional repeal would not happen any time soon looked to the courts for help. They challenged the constitutionality of the law in National Federation of Independent Business v. Sebelius, hoping the Supreme Court would overturn it.14 The practice of judicial review enabled the law's critics to exercise this opportunity, even though their hopes were ultimately dashed when, by a narrow 5-4 margin, the Supreme Court upheld the health care law as a constitutional extension of Congress's power to tax.

Affordable Care Act

Alaska Natives and Native Hawaiians endured many of the same abuses as Native Americans, including loss of land and forced assimilation. Following the discovery of oil in ______, however, the state, in an effort to gain undisputed title to oil rich land, settled the issue of Alaska Natives' land claims with the passage of the Alaska Native Claims Settlement Act in 1971. According to the terms of the act, Alaska Natives received 44 million acres of resource-rich land and more than $900 million in cash in exchange for relinquishing claims to ancestral lands to which the state wanted title.119

Alaska

In the 1960s, a modern Native American civil rights movement, inspired by the African American civil rights movement, began to grow. In 1969, a group of Native American activists from various tribes, part of a new Pan-Indian movement, took control of ___________ Island in San Francisco Bay, which had once been the site of a federal prison. Attempting to strike a blow for Red Power, the power of Native Americans united by a Pan-Indian identity and demanding federal recognition of their rights, they maintained control of the island for more than a year and a half. They claimed the land as compensation for the federal government's violation of numerous treaties and offered to pay for it with beads and trinkets. In January 1970, some of the occupiers began to leave the island. Some may have been disheartened by the accidental death of the daughter of one of the activists. In May 1970, all electricity and telephone service to the island was cut off by the federal government, and more of the occupiers began to leave. In June, the few people remaining on the island were removed by the government. Though the goals of the activists were not achieved, the occupation of Alcatraz had brought national attention to the concerns of Native American activists.110

Alcatraz

State laws and constitutions protecting free speech and freedom of the press proved ineffective in limiting this new federal power. Although the courts did not decide on the constitutionality of these laws at the time, most scholars believe the Sedition Act, in particular, would be ruled unconstitutional if it had remained in effect. Three of the four laws were repealed in the Jefferson administration, but one—the _________ Act—remains on the books today. Two centuries later, the issue of free speech and freedom of the press during times of international conflict remains a subject of intense public debate.

Alien Enemies

Once a justice has started a lifetime tenure on the Court and years begin to pass, many people simply forget which president nominated him or her. For better or worse, sometimes it is only a controversial nominee who leaves a president's legacy behind. For example, the Reagan presidency is often remembered for two controversial nominees to the Supreme Court—Robert Bork and Douglas Ginsburg, the former accused of taking an overly conservative and "extremist view of the Constitution"43 and the latter of having used marijuana while a student and then a professor at Harvard University (Figure 13.8). President George W. Bush's nomination of Harriet Miers was withdrawn in the face of criticism from both sides of the political spectrum, questioning her ideological leanings and especially her qualifications, suggesting she was not ready for the job.44 After Miers' withdrawal, the Senate went on to confirm Bush's subsequent nomination of Samuel ________, who remains on the Court today.

Alito

Founded in 1920, the ______________ is one of the oldest interest groups in the United States. The mission of this non-partisan, not-for-profit organization is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." Many of the Supreme Court cases in this chapter were litigated by, or with the support of, the ACLU.

American Civil Liberties Union (ACLU)

In 1973, members of the _________________ (AIM), a more radical group than the occupiers of Alcatraz, temporarily took over the offices of the Bureau of Indian Affairs in Washington, DC. The following year, members of AIM and some two hundred Oglala Lakota supporters occupied the town of Wounded Knee on the Lakota tribe's Pine Ridge Reservation in South Dakota, the site of an 1890 massacre of Lakota men, women, and children by the U.S. Army (Figure 5.17). Many of the Oglala were protesting the actions of their half-White tribal chieftain, who they claimed had worked too closely with the BIA. The occupiers also wished to protest the failure of the Justice Department to investigate acts of White violence against Lakota tribal members outside the bounds of the reservation.

American Indian Movement

Although the United States has not had a national constitutional convention since 1787, the states have generally been much more willing to revise their constitutions. In 1998, two politicians in Texas decided to do something a little bit different: they enlisted the help of college students at ______________ to draft a completely new constitution for the state of Texas, which was then formally proposed to the state legislature.67 Although the proposal failed, it was certainly a valuable learning experience for the students who took part. Each state has a different process for changing its constitution. In some, like California and Mississippi, voters can propose amendments to their state constitution directly, bypassing the state legislature. In others, such as Tennessee and Texas, the state legislature controls the process of initiation. The process can affect the sorts of amendments likely to be considered; it shouldn't be surprising, for example, that amendments limiting the number of terms legislators can serve in office have been much more common in states where the legislators themselves have no say in whether such provisions are adopted.

Angelo State University

The landmark court decision of the judicial phase of the civil rights movement settled the _________________ case in 1954.31 In this case, the Supreme Court unanimously overturned its decision in Plessy v. Ferguson as it pertained to public education, stating that a separate but equal education was a logical impossibility. Even with the same funding and equivalent facilities, a segregated school could not have the same teachers or environment as the equivalent school for another race. The court also rested its decision in part on social science studies suggesting that racial discrimination led to feelings of inferiority among Black children. The only way to dispel this sense of inferiority was to end segregation and integrate public schools. It is safe to say this ruling was controversial. While integration of public schools took place without much incident in some areas of the South, particularly where there were few Black students, elsewhere, it was confrontational—or nonexistent. In recognition of the fact that southern states would delay school integration for as long as possible, civil rights activists urged the federal government to enforce the Supreme Court's decision. Bayard Rustin and A. Philip Randolph organized a Prayer Pilgrimage for Freedom in Washington, DC, on May 17, 1957, in which approximately twenty-five thousand African Americans participated.32 A few months later, in Little Rock, Arkansas, governor Orval Faubus resisted court-ordered integration and mobilized National Guard troops to keep Black students out of Central High School. President Eisenhower then called up the Arkansas National Guard for federal duty (essentially taking the troops out of Faubus's hands) and sent soldiers of the 101st Airborne Division to escort students to and from classes, as shown in Figure 5.7. To avoid integration, Faubus closed four high schools in Little Rock the following school year.33

Brown v. Board of Education

One of the Anti-Federalists, ________, whom most scholars believe to be Robert Yates, wrote: "The powers, rights, and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any state government—It reaches to every thing which concerns human happiness—Life, liberty, and property, are under its controul [sic]. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments."

Brutus

In addition to gains in water rights and land rights, Native American tribes made other gains in recent decades. Tribes have robust and well-recognized governing institutions based on democratic principles. Moreover, many tribes now have governing compacts negotiated with the states where their ancestral lands lay. The proliferation of Indian gaming has further strengthened the success and political influence of the tribes. Finally, the appointment by President Biden, and subsequent Senate confirmation, of Rep. Deb Haaland (D-NM) as Secretary of the Interior was a powerful and pathbreaking moment. She is the first Native American to hold that position at Interior, which includes the _________________.

Bureau of Indian Affairs (BIA)

Since this 2012 decision, the ACA has continued to face challenges, the most notable of which have also been decided by court rulings. It faced a setback in 2014, for instance, when the Supreme Court ruled in ___________ that, for religious reasons, some for-profit corporations could be exempt from the requirement that employers provide insurance coverage of contraceptives for their female employees.15 But the ACA also attained a victory in King v. Burwell, when the Court upheld the ability of the federal government to provide tax credits for people who bought their health insurance through an exchange created by the law.

Burwell v. Hobby Lobby

__________ reached its height during World War I. The United States was swept up in two waves of hysteria. Anti-German feeling was provoked by the actions of Germany and its allies leading up to the war, including the sinking of the RMS Lusitania and the Zimmerman Telegram, an effort by the Germans to conclude an alliance with Mexico against the United States. This concern was compounded in 1917 by the Bolshevik revolution against the more moderate interim government of Russia; the leaders of the Bolsheviks, most notably Vladimir Lenin, Leon Trotsky, and Joseph Stalin, withdrew from the war against Germany and called for communist revolutionaries to overthrow the capitalist, democratic governments in western Europe and North America. Americans who vocally supported the communist cause or opposed the war often found themselves in jail. In Schenck v. United States, the Supreme Court ruled that people encouraging young men to dodge the draft could be imprisoned for doing so, arguing that recommending that people disobey the law was tantamount to "falsely shouting fire in a theatre and causing a panic" and thus presented a "clear and present danger" to public order. Similarly, communists and other revolutionary anarchists and socialists during the Red Scare after the war were prosecuted under various state and federal laws for supporting the forceful or violent overthrow of government. This general approach to political speech remained in place for the next fifty years.

Censorship

At the same time that the federal government sought to restrict Hispanic and Latino immigration to the United States, the Mexican American civil rights movement grew stronger and more radical, just as the African American civil rights movement had done. While African Americans demanded Black Power and called for Black Pride, young Mexican American civil rights activists called for Brown Power and began to refer to themselves as ________, a term disliked by many older, conservative Mexican Americans, in order to stress their pride in their hybrid Spanish-Native American cultural identity.133 Demands by Mexican American activists often focused on improving education for their children, and they called upon school districts to hire teachers and principals who were bilingual in English and Spanish, to teach Mexican and Mexican American history, and to offer instruction in both English and Spanish for children with limited ability to communicate in English.134

Chicanos

On the other hand, in 1997, the NBC network showed a broadcast of Schindler's List, a film depicting events during the Holocaust in Nazi Germany, without any editing, so it included graphic nudity and depictions of violence. NBC was not fined or otherwise punished, suggesting there is no uniform standard for indecency. Similarly, in the 1990s Congress compelled television broadcasters to implement a television ratings system, enforced by a "V-Chip" in televisions and cable boxes, so parents could better control the television programming their children might watch. However, similar efforts to regulate indecent content on the Internet to protect children from pornography have largely been struck down as unconstitutional. This outcome suggests that technology has created new avenues for obscene material to be disseminated. The __________________, however, requires K-12 schools and public libraries receiving Internet access using special E-rate discounts to filter or block access to obscene material and other material deemed harmful to minors, with certain exceptions.

Children's Internet Protection Act

As the campaign for civil rights continued and gained momentum, President John F. Kennedy called for Congress to pass new civil rights legislation, which began to work its way through Congress in 1963. The resulting law (pushed heavily and then signed by President Lyndon B. Johnson after Kennedy's assassination) was the ___________ of 1964, which had wide-ranging effects on U.S. society. Not only did the act outlaw government discrimination and the unequal application of voting qualifications by race, but it also, for the first time, outlawed segregation and other forms of discrimination by most businesses that were open to the public, including hotels, theaters, and restaurants that were not private clubs. It outlawed discrimination on the basis of race, ethnicity, religion, sex, or national origin by most employers, and it created the Equal Employment Opportunity Commission (EEOC) to monitor employment discrimination claims and help enforce this provision of the law. The provisions that affected private businesses and employers were legally justified not by the Fourteenth Amendment's guarantee of equal protection of the laws but instead by Congress's power to regulate interstate commerce.43

Civil Rights Act

Many groups in U.S. history have sought recognition as equal citizens. Although each group's efforts have been notable and important, arguably the greatest, longest, and most violent struggle remains that of African Americans, whose dehumanization was even written into the text of the ___________ in the clause counting them as three fifths of a person. Their fight for freedom and equality provided the legal and moral foundation for others who sought recognition of their equality later on.

Constitution

So what becomes of court decisions is largely due to their credibility, their viability, and the assistance given by the other branches of government. It is also somewhat a matter of tradition and the way the United States has gone about its judicial business for more than two centuries. Although not everyone agrees with the decisions made by the Court, rulings are generally accepted and followed, and the ________ is respected as the key interpreter of the laws and the Constitution. Over time, its rulings have become yet another way policy is legitimately made and justice more adequately served in the United States.

Court

At the same time, however, it appears that the public mood may have shifted somewhat against the death penalty, perhaps due in part to an overall decline in violent crime. The reexamination of past cases through ______ evidence has revealed dozens in which people were wrongfully executed.60 For example, Claude Jones was executed for murder based on 1990-era DNA testing of a single hair that was determined at that time to be his but that with better DNA testing technology was later found to be that of the victim.61 Perhaps as a result of this and other cases, seven additional states have abolished capital punishment since 2007. As of 2015, nineteen states and the District of Columbia no longer apply the death penalty in new cases, and several other states do not carry out executions despite sentencing people to death.62 It remains to be seen whether this gradual trend toward the elimination of the death penalty by the states will continue, or whether the Supreme Court will eventually decide to follow former Justice Harry Blackmun's decision to "no longer... tinker with the machinery of death" and abolish it completely.

DNA

In 1887, the _____________, another effort to assimilate Indians to White society, divided reservation lands into individual allotments. Native Americans who accepted these allotments and agreed to sever tribal ties were also given U.S. citizenship. All lands remaining after the division of reservations into allotments were offered for sale by the federal government to White farmers and ranchers. As a result, Indians swiftly lost control of reservation land.104 In 1898, the Curtis Act dealt the final blow to Indian sovereignty by abolishing all tribal governments.105

Dawes Severalty Act

The idea that Americans—indeed, people in general—have fundamental rights and liberties was at the core of the arguments in favor of their independence. In writing the _________________ in 1776, Thomas Jefferson drew on the ideas of English philosopher John Locke to express the colonists' belief that they had certain inalienable or natural rights that no ruler had the power or authority to deny to their subjects.

Declaration of Independence

The _____ Amendment says, in full: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Eighth

The courts seldom if ever grant rights to a person instantly and upon request. In a number of cases, they have expressed reluctance to expand rights without limit, and they still balance that expansion with the government's need to govern, provide for the common good, and serve a broader societal purpose. For example, the Supreme Court has upheld the constitutionality of the death penalty, ruling that the _____ Amendment does not prevent a person from being put to death for committing a capital crime and that the government may consider "retribution and the possibility of deterrence" when it seeks capital punishment for a crime that so warrants it.21 In other words, there is a greater good—more safety and security—that may be more important than sparing the life of an individual who has committed a heinous crime. Yet the Court has also put limits on the ability to impose the death penalty, ruling, for example, that the government may not execute a person with cognitive disabilities, a person who was under eighteen at the time of the crime, or a child rapist who did not kill his victim.22 So the job of the courts on any given issue is never quite done, as justices continuously keep their eye on government laws, actions, and policy changes as cases are brought to them and then decide whether those laws, actions, and policies can stand or must go. Even with an issue such as the death penalty, about which the Court has made several rulings, there is always the possibility that further judicial interpretation of what does (or does not) violate the Constitution will be needed.

Eighth

The most controversial provision of the _______ Amendment is the ban on "cruel and unusual punishments." Various torturous forms of execution common in the past—drawing and quartering, burning people alive, and the electric chair—are prohibited by this provision.55 Recent controversies over lethal injections and firing squads demonstrate that the topic of whether and how to execute is still very much alive. The Dutch producer of one of the chemicals in the most common lethal injection cocktail recently refused to export it to the United States when it was shown to protract the dying process for some inmates, maintaining consciousness, prolonging suffering, and paralyzing response. In a 2021 case, one death row prisoner lost an appeal to request death by firing squad in lieu of lethal injection. While the Supreme Court has never established a definitive test for what constitutes a cruel and unusual punishment, it has generally allowed most penalties short of death for adults, even when the punishment appears disproportionate or excessive to outside observers.56

Eighth

We can contrast civil rights with civil liberties, which are limitations on government power designed to protect our fundamental freedoms. For example, the __________ Amendment prohibits the application of "cruel and unusual punishments" to those convicted of crimes, a limitation on the power of members of each governmental branch: judges, law enforcement, and lawmakers. As another example, the guarantee of equal protection means the laws and the Constitution must be applied on an equal basis, limiting the government's ability to discriminate or treat some people differently, unless the unequal treatment is based on a valid reason, such as age. A law that imprisons men twice as long as women for the same offense, or restricting people with disabilities from contacting members of Congress, would treat some people differently from others for no valid reason and would therefore be unconstitutional. According to the Supreme Court's interpretation of the Equal Protection Clause, "all persons similarly circumstanced shall be treated alike."3 If people are not similarly circumstanced, however, they may be treated differently. Asian Americans and Latinos overstaying a visa are similarly circumstanced; however, a blind driver or a ten-year-old driver is differently circumstanced than a sighted, adult driver.

Eighth

others. The _______ Amendment says the government cannot impose "cruel and unusual punishments" on individuals for their criminal acts. Although the definitions of cruel and unusual have expanded over the years, the courts have generally and consistently interpreted this provision as making it unconstitutional for government officials to torture suspects. As we will see later in this chapter, courts are currently debating the degree to which extended solitary confinement and certain forms of capital punishment might count as cruel and unusual.

Eighth (8th)

But it took years for the Court to get to that point, and it faced a number of setbacks on the way to such recognition. In their first case of significance, Chisholm v. Georgia (1793), the justices ruled that the federal courts could hear cases brought by a citizen of one state against a citizen of another state, and that Article III, Section 2, of the Constitution did not protect the states from facing such an interstate lawsuit.6 However, their decision was almost immediately overturned by the ________ Amendment, passed by Congress in 1794 and ratified by the states in 1795. In protecting the states, the Eleventh Amendment put a prohibition on the courts by stating, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." It was an early hint that Congress had the power to change the jurisdiction of the courts as it saw fit and stood ready to use it.

Eleventh

NOW also declared its support for the _______________ (ERA), which mandated equal treatment for all regardless of sex. The ERA, written by Alice Paul and Crystal Eastman, was first proposed to Congress, unsuccessfully, in 1923. It was introduced in every Congress thereafter but did not pass both the House and the Senate until 1972. The amendment was then sent to the states for ratification with a deadline of March 22, 1979. Although many states ratified the amendment in 1972 and 1973, the ERA still lacked sufficient support as the deadline drew near. Opponents, including both women and men, argued that passage would subject women to military conscription and deny them alimony and custody of their children should they divorce.75 In 1978, Congress voted to extend the deadline for ratification to June 30, 1982. Even with the extension, however, the amendment failed to receive the support of the required thirty-eight states; by the time the deadline arrived, it had been ratified by only thirty-five, some of those had rescinded their ratifications, and no new state had ratified the ERA during the extension period (Figure 5.14). In 2020, Virginia became the thirty-eighth state to ratify, though well after the deadline. That led the U.S. House of Representatives to consider and pass legislation to remove the original deadlines. However, the Senate did not take up the legislation. In 2021, Senator Lisa Murkowski (R-AK) and Senator Ben Cardin (D-MD) introduced a new joint resolution to remove the deadline. That resolution has yet to be taken up by the Senate.76

Equal Rights Amendment

Debate has always swirled over these issues. The ________ reasoned that the limited set of named or enumerated powers of Congress, along with the limitations on those powers in Article I, Section 9 of the Constitution, would suffice, and that no separate bill of rights was needed.

Federalists

The ____________ Amendment stated that people could not be denied the right to vote based on "race, color, or previous condition of servitude." This construction allowed states to continue to decide the qualifications of voters as long as those qualifications seemed to be race-neutral. Thus, while states could not deny Black people the right to vote on the basis of race, they could deny it on any number of arbitrary grounds such as literacy, landownership, affluence, or political knowledge.

Fifteenth

In the decades following the Constitution's ratification, the Supreme Court declined to expand the Bill of Rights to curb the power of the states, most notably in the 1833 case of Barron v. Baltimore. In this case, which dealt with property rights under the _____ Amendment, the Supreme Court unanimously decided that the Bill of Rights applied only to actions by the federal government, not state or local governments. Explaining the court's ruling, Chief Justice John Marshall wrote that it was incorrect to argue that "the Constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their [Federal] government."

Fifth (5th)

Sometimes, however, the legislative process seeks to clarify or improve the interpretation and application of amendments. The ___________________ is aimed at reducing the practice of civil forfeiture, in which governments and law enforcement entities seize property of people suspected of crimes, prior to conviction and sometimes without bringing formal charges. The government can take financial assets, jewelry, vehicles, art, and other items of value. The bipartisan bill backed by organizations ranging from the conservative-leaning Heritage Foundation to the ACLU, would reduce what its Senate sponsor, Rand Paul, refers to as "policing for profit." Civil forfeiture was a mainstay of the war on drugs and contributed to the mass incarceration of people of color. It can be economically damaging even for those who are never charged or convicted, because in many cases seized property is not returned to its owner. Various court cases have ruled on aspects of the practice, but have not eliminated it derisively, leaving the opportunity for a new law to address it.

Fifth Amendment Integrity Restoration Act

The ______ Amendment is perhaps the most famous provision of the Bill of Rights. It is arguably also the most extensive, because it guarantees both religious freedoms and the right to express your views in public. Specifically, the First Amendment says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The first portion deals with religious freedom. However, it actually protects two related sorts of freedom: first, it protects people from having a set of religious beliefs imposed on them by the government, and second, it protects people from having their own religious beliefs restricted by government authorities.

First

In the postwar era of White flight, however, the Supreme Court had been evolving into a more progressive force in the promotion and preservation of civil rights. In the case of Shelley v. Kraemer (1948), the Supreme Court held that while such covenants did not violate the Fourteenth Amendment because they consisted of agreements between private citizens, their provisions could not be enforced by courts.37 Because state courts are government institutions and the _______________ Amendment prohibits the government from denying people equal protection of the law, the courts' enforcement of such covenants would be a violation of the amendment. Thus, if a White family chose to sell its house to a Black family and the other homeowners in the neighborhood tried to sue the seller, the court would not hear the case. In 1967, the Supreme Court struck down a Virginia law that prohibited interracial marriage in Loving v. Virginia.38

Fourteenth

The changes wrought by the __________ Amendment were more extensive. In addition to introducing the equal protection clause to the Constitution, this amendment also extended the due process clause of the Fifth Amendment to the states, required the states to respect the privileges or immunities of all citizens, and, for the first time, defined citizenship at the national and state levels. People could no longer be excluded from citizenship based solely on their race. Although lack of political or judicial action rendered some of these provisions toothless, others were pivotal in the expansion of civil rights.

Fourteenth

The ________ Amendment sits at the boundary between general individual freedoms and the rights of those suspected of crimes. We saw earlier that perhaps it reflects James Madison's broader concern about establishing an expectation of privacy from government intrusion at home. Another way to think of this Amendment is that it protects us from overzealous efforts by law enforcement to root out crime by ensuring that police have good reason before they intrude on people's lives with criminal investigations. The text of the Fourth Amendment is as follows: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Fourth

As George Washington's call for a bill of rights in his first inaugural address suggested, while the Federalists ultimately had to add the Bill of Rights to the Constitution in order to win ratification, the Anti-Federalists' fear that the national government might intrude on civil liberties proved to be prescient. In 1798, at the behest of President John Adams during the Quasi-War with _______, Congress passed a series of four laws collectively known as the Alien and Sedition Acts. These laws were drafted to allow the president to imprison or deport foreign citizens that he believed were "dangerous to the peace and safety of the United States" and to restrict speech and newspaper articles critical of the federal government or its officials. The laws were primarily used against members and supporters of the opposition, the Democratic-Republican Party.

France

Another example of heightened concerns about privacy in the modern era is the reality that society is under pervasive surveillance. In the past, monitoring the public was difficult at best. During the Cold War, regimes in the Soviet bloc employed millions of people as domestic spies and informants in an effort to suppress internal dissent through constant monitoring of the general public. Not only was this effort extremely expensive in terms of the human and monetary capital it required, but it also proved remarkably ineffective. Groups like the East German Stasi and the Romanian Securitate were unable to suppress the popular uprisings that undermined communist one-party rule in most of those countries in the late 1980s. Technology has now made it much easier to track and monitor people. Police cars and roadways are equipped with cameras that can photograph the license plate of every passing car or truck and record it in a database; while allowing police to recover stolen vehicles and catch fleeing suspects, this data can also be used to track the movements of law-abiding citizens. But law enforcement officials don't even have to go to this much work; millions of car and truck drivers pay tolls electronically without stopping at toll booths thanks to transponders attached to their vehicles, which can be read by scanners well away from any toll road or bridge to monitor traffic flow or any other purpose (Figure 4.20). The pervasive use of ________ (Global Positioning System) raises similar issues.

GPS

The Supreme Court later extended the Gideon v. Wainwright ruling to apply to any case in which an accused person faced the possibility of "loss of liberty," even for one day. The courts have also overturned convictions in which people had incompetent or ineffective lawyers through no fault of their own. The ________ ruling has led to an increased need for professional public defenders, lawyers who are paid by the government to represent those who cannot afford an attorney themselves, although some states instead require practicing lawyers to represent poor defendants on a pro bono basis (essentially, donating their time and energy to the case).

Gideon

Case name: _______ year: 1963 court's decision: poor criminal defendants must be provided an attorney

Gideon v Wainwright

Such a conflict emerged in the 2014 Supreme Court case known as Burwell v. Hobby Lobby.22 The Hobby Lobby chain of stores sells arts and crafts merchandise at hundreds of stores and its founder, David _________ is a fundamentalist Christian whose beliefs include opposition to abortion and contraception. Consistent with these beliefs, he used his business to object to a provision of the Patient Protection and Affordable Care Act (ACA or Obamacare) requiring employer-backed insurance plans to include no-charge access to the morning-after pill, a form of emergency contraception, arguing that this requirement infringed on his conscience. Based in part on the federal RFRA, the Supreme Court agreed 5-4 with Green and Hobby Lobby's position and said that Hobby Lobby and other closely held businesses did not have to provide employees free access to emergency contraception or other birth control if doing so would violate the religious beliefs of the business' owners, because there were other less restrictive ways the government could ensure access to these services for Hobby Lobby's employees (e.g., paying for them directly).

Green

One such person was __________ Johnson, a member of various pro-communist and antiwar groups. In 1984, as part of a protest near the Republican National Convention in Dallas, Texas, Johnson set fire to a U.S. flag that another protestor had torn from a flagpole. He was arrested, charged with "desecration of a venerated object" (among other offenses), and eventually convicted of that offense. However, in 1989, the Supreme Court decided in Texas v. Johnson that burning the flag was a form of symbolic speech protected by the First Amendment and found the law, as applied to flag desecration, to be unconstitutional. This court decision was strongly criticized, and Congress responded by passing a federal law, the Flag Protection Act, intended to overrule it; the act, too, was struck down as unconstitutional in 1990.29 Since then, Congress has tried and failed on several occasions to propose constitutional amendments allowing the states and federal government to re-criminalize flag desecration.

Gregory Lee

Native __________ also lost control of their land—nearly two million acres—through the overthrow of the Hawaiian monarchy in 1893 and the subsequent formal annexation of the Hawaiian Islands by the United States in 1898. The indigenous population rapidly decreased in number, and white settlers tried to erase all trace of traditional Hawaiian culture. Two acts passed by Congress in 1900 and 1959, when the territory was granted statehood, returned slightly more than one million acres of federally owned land to the state of Hawaii. The state was to hold it in trust and use profits from the land to improve the condition of Native Hawaiians.120

Hawaiians

Hispanic and Latino people in the United States have faced many of the same problems as African Americans and Native Americans. Although the terms Hispanic and Latino are often used interchangeably, they are not the same. ________ usually refers to native speakers of Spanish or those descended from Spanish-speaking countries. Latino refers to people who come from, or whose ancestors came from, Latin America. Not all Hispanics are Latinos and vice versa. People from Spain are Hispanic but are not Latino, while people from Brazil are Latino but not Hispanic. Both Hispanics and Latinos may be of any race or ethnicity; they may be of European, African, Native American descent, or they may be of mixed racial or ethnic background. We will use the term "Latino" here, while acknowledging that many these days prefer the term Latinx as it is gender neutral.126

Hispanic

Moreover, the framers thought that they had adequately covered rights issues in the main body of the document. Indeed, the Federalists did include in the Constitution some protections against legislative acts that might restrict the liberties of citizens, based on the history of real and perceived abuses by both British kings and parliaments as well as royal governors. In Article ____, Section 9, the Constitution limits the power of Congress in three ways: prohibiting the passage of bills of attainder, prohibiting ex post facto laws, and limiting the ability of Congress to suspend the writ of habeas corpus.

I (1)

The U.S. Constitution changed that, but its Article _____, which addresses "the judicial power of the United States," is the shortest and least detailed of the three articles that created the branches of government. It calls for the creation of "one supreme Court" and establishes the Court's jurisdiction, or its authority to hear cases and make decisions about them, and the types of cases the Court may hear. It distinguishes which are matters of original jurisdiction and which are for appellate jurisdiction.

III

Although the ERA failed to be ratified, Title ____ of the United States Education Amendments of 1972 passed into law as a federal statute (not as an amendment, as the ERA was meant to be). Title IX applies to all educational institutions that receive federal aid and prohibits discrimination on the basis of sex in academic programs, dormitory space, health-care access, and school activities including sports. Thus, if a school receives federal aid, it cannot spend more funds on programs for men than on programs for women.

IX

Despite the _________________, conditions on the reservations did not improve dramatically. Most tribes remained impoverished, and many Native Americans, despite the fact that they were now U.S. citizens, were denied the right to vote by the states in which they lived. States justified this violation of the Fifteenth Amendment by claiming that Native Americans might be U.S. citizens but were not state residents because they lived on reservations. Other states denied Native Americans voting rights if they did not pay taxes.108 Despite states' actions, the federal government continued to uphold the rights of tribes to govern themselves. Federal concern for tribal sovereignty was part of an effort on the government's part to end its control of, and obligations to, Indian tribes.109

Indian Reorganization Act

In an atmosphere of perceived weakness, the first chief justice, John Jay, an author of The Federalist Papers and appointed by President George Washington, resigned his post to become governor of New York and later declined President John Adams's offer of a subsequent term.7 In fact, the Court might have remained in a state of what Hamilton called its "natural feebleness" if not for the man who filled the vacancy Jay had refused—the fourth chief justice, _________. Often credited with defining the modern court, clarifying its power, and strengthening its role, Marshall served in the chief's position for thirty-four years. One landmark case during his tenure changed the course of the judicial branch's history

John Marshall

Critics of the judiciary often deride activist courts for involving themselves too heavily in matters they believe are better left to the elected legislative and executive branches. However, as Justice Anthony _____ has said, "An activist court is a court that makes a decision you don't like."

Kennedy

The key question that faces the courts is whether the establishment clause should be understood as imposing, in Thomas Jefferson's words, "a wall of separation between church and state." In a 1971 case known as Lemon v. Kurtzman, the Supreme Court established the ______ test for deciding whether a law or other government action that might promote a particular religious practice should be allowed to stand. The ____ test has three criteria that must be satisfied for such a law or action to be found constitutional and remain in effect: 1. The action or law must not lead to excessive government entanglement with religion; in other words, policing the boundary between government and religion should be relatively straightforward and not require extensive effort by the government. 2. The action or law cannot either inhibit or advance religious practice; it should be neutral in its effects on religion. 3. The action or law must have some secular purpose; there must be some non-religious justification for the law.

Lemon

For example, during the Civil War, President Abraham ________ detained suspected Confederate saboteurs and sympathizers in Union-controlled states and attempted to have them tried in military courts, leading the Supreme Court to rule in Ex parte Milligan that the government could not bypass the civilian court system in states where it was operating.

Lincoln

The Supreme Court found itself in the middle of a dispute between the outgoing presidential administration of John Adams and that of incoming president (and opposition party member) Thomas Jefferson. It was an interesting circumstance at the time, particularly because Jefferson and the man who would decide the case—John Marshall—were themselves political rivals. President Adams had appointed William Marbury to a position in Washington, DC, but his commission was not delivered before Adams left office. So Marbury petitioned the Supreme Court to use its power under the Judiciary Act of 1789 and issue a writ of mandamus to force the new president's secretary of state, James ________, to deliver the commission documents. It was a task Madison refused to do. A unanimous Court under the leadership of Chief Justice John Marshall ruled that although Marbury was entitled to the job, the Court did not have the power to issue the writ and order Madison to deliver the documents, because the provision in the Judiciary Act that had given the Court that power was unconstitutional.11 Perhaps Marshall feared a confrontation with the Jefferson administration and thought Madison would refuse his directive anyway. In any case, his ruling shows an interesting contrast in the early Court. On one hand, it humbly declined a power—issuing a writ of mandamus—given to it by Congress, but on the other, it laid the foundation for legitimizing a much more important one—judicial review. Marbury never got his commission, but the Court's ruling in the case has become more significant for the precedent it established: As the first time the Court declared an act of Congress unconstitutional, it established the power of judicial review, a key power that enables the judicial branch to remain a powerful check on the other branches of government.

Madison

case name: ________ year: 2010 court's decision: an individual has the right to a handgun in his or her home

McDonald v Chicago

Another key exception to the right to freedom of expression is obscenity, acts or statements that are extremely offensive under current societal standards. Defining obscenity has been something of a challenge for the courts; Supreme Court Justice Potter Stewart famously said of obscenity, having watched pornography in the Supreme Court building, "I know it when I see it." Into the early twentieth century, written work was frequently banned as being obscene, including works by noted authors such as James Joyce and Henry Miller, although today it is rare for the courts to uphold obscenity charges for written material alone. In 1973, the Supreme Court established the ________ test for deciding whether something is obscene: "(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."34 However, the application of this standard has at times been problematic. In particular, the concept of "contemporary community standards" raises the possibility that obscenity varies from place to place; many people in New York or San Francisco might not bat an eye at something people in Memphis or Salt Lake City would consider offensive. The one form of obscenity that has been banned almost without challenge is child pornography, although even in this area the courts have found exceptions.

Miller

case name: _______ year: 1966 court's decision: criminal suspects must be read their rights

Miranda v. Arizona

The organizations' leaders planned a march from Selma to Montgomery in March 1965. Their first attempt to march was violently broken up by state police and sheriff's deputies (Figure 5.8). The second attempt was aborted because King feared it would lead to a brutal confrontation with police and violate a court order from a federal judge who had been sympathetic to the movement in the past. That night, three of the marchers, White ministers from the north, were attacked and beaten with clubs by members of the Ku Klux Klan; one of the victims died from his injuries. Televised images of the brutality against protesters and the death of a minister led to greater public sympathy for the cause. Eventually, a third march was successful in reaching the state capital of ___________.44

Montgomery

Direct action also took such forms as the sit-in campaigns to desegregate lunch counters that began in Greensboro, North Carolina, in 1960, and the 1961 Freedom Rides in which Black and White volunteers rode buses and trains through the South to enforce a 1946 Supreme Court decision that desegregated interstate transportation (Morgan v. Virginia).41 While such focused campaigns could be effective, they often had little impact in places where they were not replicated. In addition, some of the campaigns led to violence against both the campaigns' leaders and ordinary people; Rosa Parks, a longtime _________ member and graduate of the Highlander Folk School for civil rights activists, whose actions had begun the Montgomery boycott, received death threats, E. D. Nixon's home was bombed, and the Freedom Riders were attacked in Alabama.42

NAACP

Women were also granted the right to vote on matters involving liquor licenses, in school board elections, and in municipal elections in several states. However, this was often done because of stereotyped beliefs that associated women with moral reform and concern for children, not as a result of a belief in women's equality. Furthermore, voting in municipal elections was restricted to women who owned property.72 In 1890, the two suffragist groups united to form the _____________ (NAWSA). To call attention to their cause, members circulated petitions, lobbied politicians, and held parades in which hundreds of women and girls marched through the streets (Figure 5.12).

National American Woman Suffrage Association

In 1918, the proposed ______ Amendment to the Constitution, extending the right to vote to all adult female citizens of the United States, was passed by both houses of Congress and sent to the states for ratification. Thirty-six votes were needed. Throughout 1918 and 1919, the Amendment dragged through legislature after legislature as pro- and anti-suffrage advocates made their arguments. By the summer of 1920, only one more state had to ratify it before it became law. The Amendment passed through Tennessee's state Senate and went to its House of Representatives. Arguments were bitter and intense. Pro-suffrage advocates argued that the amendment would reward women for their service to the nation during World War I and that women's supposedly greater morality would help to clean up politics. Those opposed claimed women would be degraded by entrance into the political arena and that their interests were already represented by their male relatives. On August 18, the amendment was brought for a vote before the House. The vote was closely divided, and it seemed unlikely it would pass. But as a young anti-suffrage representative waited for his vote to be counted, he remembered a note he had received from his mother that day. In it, she urged him, "Hurrah and vote for suffrage!" At the last minute, Harry Burn abruptly changed his ballot. The amendment passed the House by one vote, and eight days later, the Nineteenth Amendment was added to the Constitution.

Nineteenth

The more radical National Woman's Party (NWP), led by Alice Paul, advocated the use of stronger tactics. The NWP held public protests and picketed outside the White House (Figure 5.13).73 Demonstrators were often beaten and arrested, and suffragists were subjected to cruel treatment in jail. When some, like Paul, began hunger strikes to call attention to their cause, their jailers force-fed them, an incredibly painful and invasive experience for the women.74 Finally, in 1920, the triumphant passage of the _________ Amendment granted all women the right to vote.

Nineteenth

These rights "retained by the people" include the common-law and natural rights inherited from the laws, traditions, and past court decisions of England. To this day, we regularly exercise and take for granted rights that aren't written down in the federal constitution, like the right to marry, the right to seek opportunities for employment and education, and the right to have children and raise a family. Supreme Court justices over the years have interpreted the ______ Amendment in different ways, with some arguing that it was intended to extend the rights protected by the Constitution to those natural and common-law rights and others arguing that it does not prohibit states from changing their constitutions and laws to modify or limit those rights as they see fit.

Ninth

We saw above that James Madison and the other framers were aware they might endanger some rights if they listed a few in the Constitution and omitted others. To ensure that those interpreting the Constitution would recognize that the listing of freedoms and rights in the Bill of Rights was not exhaustive, the _______ Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Ninth

While the public mood may have shifted toward greater concern about economic inequality in the United States, substantial policy changes to immediately improve the economic standing of African Americans in general have not followed. The ________ administration proposed new rules under the Fair Housing Act that were intended to lead to more integrated communities in the future; however, the Trump administration repeatedly sought to weaken the Fair Housing Act, primarily through lack of enforcement of existing regulations.56 Meanwhile, grassroots movements to improve neighborhoods and local schools have taken root in many Black communities across America, and perhaps in those movements is the hope for greater future progress.

Obama

In addition, the courts have allowed some religiously motivated actions by government agencies, such as clergy delivering prayers to open city council meetings and legislative sessions, on the presumption that—unlike school children—adult participants can distinguish between the government's allowing someone to speak and endorsing that person's speech. Yet, while some displays of religious codes (e.g., Ten Commandments) are permitted in the context of showing the evolution of law over the centuries, in other cases, these displays have been removed after state supreme court rulings. In ________, the courts ordered the removal of a Ten Commandments sculpture at the state capitol when other groups, including Satanists and the Church of the Flying Spaghetti Monster, attempted to get their own sculptures allowed there.

Oklahoma

In the United States, many advocates of civil liberties are concerned that laws such as the USA ___________ (i.e., Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act), passed weeks after the 9/11 attacks in 2001, have given the federal government too much power by making it easy for officials to seek and obtain search warrants or, in some cases, to bypass warrant requirements altogether. Critics have argued that the Patriot Act has largely been used to prosecute ordinary criminals, in particular drug dealers, rather than terrorists as intended. Most European countries, at least on paper, have opted for laws that protect against such government surveillance, perhaps mindful of past experience with communist and fascist regimes. European countries also tend to have stricter laws limiting the collection, retention, and use of private data by companies, which makes it harder for governments to obtain and use that data. Most recently, the battle between Apple Inc. and the National Security Agency (NSA) over whether Apple should allow the government access to key information that is encrypted has made the discussion of this tradeoff salient once again. A recent court outcome in the United States suggests that America may follow Europe's lead. In Carpenter v. United States (2018), the first case of its kind, the U.S. Supreme Court ruled that, under the Fourth Amendment, police need a search warrant to gather phone location data as evidence to be used in trials.79

Patriot Act

Furthermore, the courts have found that police do not generally need a warrant to search the passenger compartment of a car (Figure 4.13), or to search people entering the United States from another country.43 When a warrant is needed, law enforcement officers do not need enough evidence to secure a conviction, but they must demonstrate to a judge that there is probable cause to believe a crime has been committed or evidence will be found. __________ is the legal standard for determining whether a search or seizure is constitutional or a crime has been committed; it is a lower threshold than the standard of proof at a criminal trial.

Probable cause

However, the ______ itself has not been without its critics. While it has been relatively uncontroversial as applied to the rights of individuals, debate has emerged about whether businesses and other groups can be said to have religious liberty. In explicitly religious organizations, such as an Orthodox Union congregation or the Roman Catholic Church, it is fairly obvious members have a meaningful, shared religious belief. But the application of the RFRA has become more problematic in businesses and non-profit organizations whose owners or organizers may share a religious belief while the organization has some secular, non-religious purpose.

RFRA

At the end of the Civil War, the South entered a period called _________ (1865-1877) during which state governments were reorganized before the rebellious states were allowed to be readmitted to the Union. As part of this process, the Republican Party pushed for a permanent end to slavery. A constitutional amendment to this effect was passed by the House of Representatives in January of 1865, after having already been approved by the Senate in April of 1864, and it was ratified in December of 1865 as the Thirteenth Amendment. The amendment's first section states, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." In effect, this amendment outlawed slavery in the United States.

Reconstruction

On the surface, a case involving the Native American Church seems unlikely to arouse much controversy. But because it replaced the Sherbert test with one that allowed more government regulation of religious practices, followers of other religious traditions grew concerned that state and local laws, even ones neutral on their face, might be used to curtail their religious practices. In 1993, in response to this decision, Congress passed a law known as the _______________ (RFRA), which was followed in 2000 by the Religious Land Use and Institutionalized Persons Act after part of the RFRA was struck down by the Supreme Court. In addition, since 1990, twenty-one states have passed state RFRAs that include the Sherbert test in state law, and state court decisions in eleven states have enshrined the Sherbert test's compelling governmental interest interpretation of the free exercise clause into state law.

Religious Freedom Restoration Act

Following the ______, women's conditions did not improve. Women were not granted the right to vote by any of the states except New Jersey, which at first allowed all taxpaying property owners to vote. However, in 1807, the law changed to limit the vote to men.63 Changes in property laws actually hurt women by making it easier for their husbands to sell their real property without their consent.

Revolution

case name: ______ year: 2014 court's decision: police may not search a cell phone without a warrant

Riley v California

The legal landscape changed dramatically as a result of the 1973 ruling in ____________, in which the Supreme Court decided the right to privacy encompassed a right for women to terminate a pregnancy, at least under certain scenarios. The justices ruled that while the government did have an interest in protecting the "potentiality of human life," nonetheless this had to be balanced against the interests of both women's health and women's right to decide whether to have an abortion. Accordingly, the court established a framework for deciding whether abortions could be regulated based on the fetus's viability (i.e., potential to survive outside the womb) and the stage of pregnancy, with no restrictions permissible during the first three months of pregnancy (i.e., the first trimester), during which abortions were deemed safer for women than childbirth itself.

Roe v. Wade

case name: _____ year: 1973 court's decision: women have a constitutional right to abortion

Roe v. Wade

During World War II, the _________ administration interned Japanese Americans and had other suspected enemy agents—including U.S. citizens—tried by military courts rather than by the civilian justice system, a choice the Supreme Court upheld in Ex parte Quirin

Roosevelt

Most often, the petitioner is asking the Supreme Court to grant a writ of certiorari, a request that the lower court send up its record of the case for review. Once a writ of certiorari (cert. for short) has been granted, the case is scheduled on the Court's docket. The Supreme Court exercises discretion in the cases it chooses to hear, but four of the nine justices must vote to accept a case. This is called the ___________

Rule of Four

The Supreme Court of the United States, sometimes abbreviated _______, is a one-of-a-kind institution. While a look at the Supreme Court typically focuses on the nine justices themselves, they represent only the top layer of an entire branch of government that includes many administrators, lawyers, and assistants who contribute to and help run the overall judicial system. The Court has its own set of rules for choosing cases, and it follows a unique set of procedures for hearing them. Its decisions not only affect the outcome of the individual case before the justices, but they also create lasting impacts on legal and constitutional interpretation for the future.

SCOTUS

But the relative simplicity of its text has not kept it from controversy; arguably, the ______ Amendment has become controversial in large part because of its text. Is this amendment merely a protection of the right of the states to organize and arm a "well regulated militia" for civil defense, or is it a protection of a "right of the people" as a whole to individually bear arms?

Second

The ______ Amendment—perhaps the most controversial today—protects the right to defend yourself in your home or other property, and, until the establishment of the National Guard, the collective right to self-defense as part of a militia.

Second

There has been increased conflict over the _________ Amendment in recent years due to school shootings and gun violence. As a result, gun rights have become a highly charged political issue. The text of the Second Amendment is among the shortest of those included in the Constitution: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Second

______________ is an ongoing process. When the Supreme Court initially decided in 2008 that the Second Amendment protects an individual's right to keep and bear arms, it did not decide then that it was a fundamental liberty the states must uphold as well. It was only in the McDonald v. Chicago case two years later that the Supreme Court incorporated the Second Amendment into state law. Another area in which the Supreme Court gradually moved to incorporate the Bill of Rights regards censorship and the Fourteenth Amendment. In Near v. Minnesota (1931), the Court disagreed with state courts regarding censorship and ruled it unconstitutional except in rare cases.

Selective incorporation

Even though the Civil Rights Act of 1964 had a monumental impact over the long term, it did not end efforts by many southern White people to maintain the White-dominated political power structure in the region. Progress in registering African American voters remained slow in many states despite increased federal activity supporting it, so civil rights leaders including Martin Luther King, Jr. decided to draw the public eye to the area where the greatest resistance to voter registration drives were taking place. The SCLC and SNCC particularly focused their attention on the city of ________, Alabama, which had been the site of violent reactions against civil rights activities.

Selma

The president sometimes chooses nominees from a list of candidates maintained by the American Bar Association, a national professional organization of lawyers.41 The president's nominee is then discussed (and sometimes hotly debated) in the Senate Judiciary Committee. After a committee vote, the candidate must be confirmed by a majority vote of the full ________. He or she is then sworn in, taking an oath of office to uphold the Constitution and the laws of the United States.

Senate

Because of this provision, all trials in civil cases must take place before a jury unless both sides waive their right to a jury trial. However, this right is not always incorporated. In many states, civil disputes—particularly those involving small sums of money, which may be heard by a dedicated small claims court—need not be tried in front of a jury and may instead be decided by a judge working alone. The __________ Amendment limits the ability of judges to reconsider questions of fact, rather than of law, that were originally decided by a jury. For example, if a jury decides a person was responsible for an action and the case is appealed, the appeals judge cannot decide someone else was responsible. This preserves the traditional common-law distinction that judges are responsible for deciding questions of law while jurors are responsible for determining the facts of a particular case.

Seventh

The ________ Amendment deals with the rights of those engaged in civil disputes—disagreements between individuals or businesses in which people are typically seeking compensation for some harm caused. For example, in an automobile accident, the person responsible is compelled to compensate any others (either directly or through their insurance company). Much of the work of the legal system consists of efforts to resolve civil disputes. The Seventh Amendment, in full, reads: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

Seventh

Establishing a general framework for deciding whether a religious belief can trump general laws and policies has been a challenge for the Supreme Court. In the 1960s and 1970s, the court decided two cases in which it laid out a general test for deciding similar cases in the future. In both Sherbert v. Verner, a case dealing with unemployment compensation, and Wisconsin v. Yoder, which dealt with the right of Amish parents to homeschool their children, the court said that for a law to be allowed to limit or burden a religious practice, the government must meet two criteria.19 It must demonstrate both that it had a "compelling governmental interest" in limiting that practice and that the restriction was "narrowly tailored." In other words, it must show there was a very good reason for the law in question and that the law was the only feasible way of achieving that goal. This standard became known as the _______ test. Since the burden of proof in these cases was on the government, the Supreme Court made it very difficult for the federal and state governments to enforce laws against individuals that would infringe upon their religious beliefs.

Sherbert

Once someone has been charged with a crime and indicted, the next stage in a criminal case is typically the trial itself, unless a plea bargain is reached. The ________ Amendment contains the provisions that govern criminal trials. I full, it states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, 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, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence [sic]."

Sixth

The ________ Amendment guarantees the right of those accused of crimes to present witnesses in their own defense (if necessary, compelling them to testify) and to confront and cross-examine witnesses presented by the prosecution. In general, the only testimony acceptable in a criminal trial must be given in a courtroom and be subject to cross-examination; hearsay, or testimony by one person about what another person has said, is generally inadmissible, although hearsay may be presented as evidence when it is an admission of guilt by the defendant or a "dying declaration" by a person who has passed away. Although both sides in a trial have the opportunity to examine and cross-examine witnesses, the judge may exclude testimony deemed irrelevant or prejudicial.

Sixth

School and other segregation was and is hardly limited to the __________. Many neighborhoods in northern cities remain segregated by virtue of "red lining" districts where minorities were allowed and not allowed to live. Restrictive real estate covenants bound White residents to not sell their houses to African Americans and sometimes not to Chinese, Japanese, Mexicans, Filipinos, Jews, and other ethnic minorities. In New York City in the late 1950s, a group of activist parents led by Mae Mallory protested the inadequate schools in their neighborhood; a court ruled that New York was engaging in de facto segregation, and forced the city to institute policies that would provide more equitable access.36 More recently, banks have been fined for not lending to people of color to buy homes and start business at rates commensurate with similarly situated prospective White borrowers. Relegation of minority residents to less desirable neighborhoods has the practical effect of diminishing both generational wealth, and the tax base needed to build, maintain, and improve schools and other institutions that might hasten equality and integration.

South

_________ courts really are the core of the U.S. judicial system, and they are responsible for a huge area of law. Most crimes and criminal activity, such as robbery, rape, and murder, are violations of state laws, and cases are thus heard by state courts. State courts also handle civil matters; personal injury, malpractice, divorce, family, juvenile, probate, and contract disputes and real estate cases, to name just a few, are usually state-level cases.

State

At times, politicians and state governments have argued that the ________ Amendment means states can engage in interposition or nullification by blocking federal government laws and actions they deem to exceed the constitutional powers of the national government. But the courts have rarely been sympathetic to these arguments, except when the federal government appears to be directly requiring state and local officials to do something. For example, in 1997 the Supreme Court struck down part of a federal law that required state and local law enforcement to participate in conducting background checks for prospective gun purchasers, while in 2012 the court ruled that the government could not compel states to participate in expanding the joint state-federal Medicaid program by taking away all their existing Medicaid funding if they refused to do so.64

Tenth

However, the _______ Amendment also allows states to guarantee rights and liberties more fully or extensively than the federal government does, or to include additional rights. For example, many state constitutions guarantee the right to a free public education, several states give victims of crimes certain rights, and eighteen states include the right to hunt game and/or fish.65 A number of state constitutions explicitly guarantee equal rights for men and women. Starting with Wyoming in 1869, some some states permitted women to vote before the Nineteenth Amendment secured the franchise for all women in 1920. Similarly, people aged 18-20 could vote in a few states before the Twenty-Sixth Amendment came into force in 1971. As we will see below, several states also explicitly recognize a right to privacy. State courts at times have interpreted state constitutional provisions to include broader protections for basic liberties than their federal counterparts. For example, though people do not generally have the right to free speech and assembly on private property owned by others without their permission, California's constitutional protection of freedom of expression was extended to portions of some privately owned shopping centers by the state's supreme court (Figure 4.18).66

Tenth

The _____ Amendment says in full: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Most people consider this provision of the Constitution obsolete and unimportant. However, it is worthwhile to note its relevance in the context of the time: citizens remembered having their cities and towns occupied by British soldiers and mercenaries during the Revolutionary War, and they viewed the British laws that required the colonists to house soldiers particularly offensive, to the point that it had been among the grievances listed in the Declaration of Independence. Today it seems unlikely the federal government would need to house military forces in civilian lodgings against the will of property owners or tenants; however, perhaps in the same way we consider the Second and Fourth amendments, we can think of the Third Amendment as reflecting a broader idea that our homes lie within a "zone of privacy" that government officials should not violate unless absolutely necessary.

Third

However, increasingly eminent domain has been used to allow economic development, with beneficiaries ranging from politically connected big businesses such as car manufacturers building new factories to highly profitable sports teams seeking ever-more-luxurious stadiums (Figure 4.14). And, while we traditionally think of property owners as relatively well-off people who can fend for themselves in the political system and whose rights don't necessarily need protecting, these cases frequently pit lower- and middle-class homeowners against multinational corporations or multimillionaires with the ear of city and state officials. In a notorious 2005 case, Kelo v. City of New London, the Supreme Court sided with municipal officials taking homes in a middle-class neighborhood to obtain land for a large pharmaceutical company's corporate campus.49 Ultimately, the campus was not built on the seized land and the case led to a public backlash against the use of eminent domain and legal changes in many states, making it harder for cities to take property from one private party and give it to another for economic redevelopment purposes. Eminent domain has once again become a salient issue in the context of the ______ administration's attempt to use the doctrine to seize several parcels of private property for the proposed border wall.50

Trump

In 2017, the ________ administration began enacting a policy at border entries in El Paso that entailed separating undocumented parents and children as they entered the United States. They expanded that policy in 2018. Today, the government continues to try to reunite families who were separated during that time.

Trump

In recent years the Supreme Court has issued a series of rulings substantially narrowing the application of the death penalty. As a result, defendants who have intellectual disabilities may not be executed.57 Defendants who were under eighteen when they committed an offense that would otherwise be subject to the death penalty may not be executed.58 The court has generally rejected the application of the death penalty to crimes that did not result in the death of another human being, most notably in the case of rape.59 And, while permitting the death penalty to be applied to murder in some cases, the Supreme Court has generally struck down laws that require the application of the death penalty in certain circumstances. Still, the United States is among ten countries with the most executions worldwide, with the _______ Justice Department pushing through a flurry of thirteen executions in the last four months of his administration, breaking with the 130-year-old precedent of pausing executions amid a presidential transition

Trump

Most presidential appointments to the federal judiciary go unnoticed by the public, but when a president has the rarer opportunity to make a Supreme Court appointment, it draws more attention. That is particularly true now, when many people get their news primarily from the Internet and social media. It was not surprising to see not only television news coverage but also blogs and tweets about President Obama's nominees to the high court, Sonia Sotomayor and Elena Kagan, or President ________ nominees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. (Figure 13.7).

Trump's

The women's rights movement attracted many women who, like Stanton and Anthony, were active in either the temperance movement, the abolition movement, or both movements. Sarah and Angelina Grimke, the daughters of a wealthy slaveholding family in South Carolina, became first abolitionists and then women's rights activists.69 Prominent Black and formerly enslaved women such as Sojourner Truth, Frances Ellen Watkins Harper, and Mary Anne Shadd Cary joined the women's movement after establishing themselves as key figures in the abolition movement. These women were known for direct, unorthodox, and effective arguments for the suffragist cause. ______ "Ain't I A Woman" speech is among the most well known of the movement, and Cary, a lawyer, delivered a critical equality argument before the Senate Judiciary Committee..

Truth's

In this same vein, the courts have become the key interpreters of the _________, continuously interpreting it and applying it to modern times and circumstances.

U.S. Constitution

The ____________—in particular, the first ten amendments that form the Bill of Rights—protects the freedoms and rights of individuals. It does not limit this protection just to citizens or adults; instead, in most cases, the Constitution simply refers to "persons," which over time has grown to mean that even children, visitors from other countries, and immigrants—permanent or temporary, legal or undocumented—enjoy the same freedoms when they are in the United States or its territories as adult citizens do.

U.S. Constitution

William Howard Taft, nominated in 1921, was the first and only former ________ supreme court justice

U.S. President

Cases heard by the __________ come from two primary pathways: (1) the circuit courts, or U.S. courts of appeals (after the cases have originated in the federal district courts), and (2) state supreme courts (when there is a substantive federal question in the case).

U.S. Supreme Court

The ________ pride themselves on two achievements: (1) as part of the system of checks and balances, they protect the sanctity of the U.S. Constitution from breaches by the other branches of government, and (2) they protect individual rights against societal and governmental oppression.

U.S. courts

Controversies over freedom of expression were rare until the 1900s, even though government censorship was quite common. For example, during the Civil War, the _____ post office refused to deliver newspapers that opposed the war or sympathized with the Confederacy, while allowing pro-war newspapers to be mailed. The emergence of photography and movies, in particular, led to new public concerns about morality, causing both state and federal politicians to censor lewd and otherwise improper content. At the same time, writers became more ambitious in their subject matter by including explicit references to sex and using obscene language, leading to government censorship of books and magazines.

Union

The occupation led to a confrontation between the Native American protestors and the FBI and U.S. Marshals. Violence erupted; two Native American activists were killed, and a marshal was shot (Figure 5.17). After the second death, the Lakota called for an end to the occupation and negotiations began with the federal government. Two of AIM's leaders, Russell Means and Dennis Banks, were arrested, but the case against them was later dismissed.111 Violence continued on the Pine Ridge Reservation for several years after the siege; the reservation had the highest per capita murder rate in the ______________q. Two FBI agents were among those who were killed. The Oglala blamed the continuing violence on the federal government.112

United States

The courts are the least covered and least publicly known of the three branches of government. The inner workings of the Supreme Court and its day-to-day operations certainly do not get as much public attention as its rulings, and only a very small number of its announced decisions are enthusiastically discussed and debated. The Court's 2015 decision on same-sex marriage was the exception, not the rule, since most court opinions are filed away quietly in the __________, sought out mostly by judges, lawyers, researchers, and others with a particular interest in reading or studying them. Thus, we sometimes envision the justices formally robed and cloistered away in their chambers, unaffected by the world around them, but the reality is that they are not that isolated, and a number of outside factors influence their decisions. Though they lack their own mechanism for enforcement of their rulings and their power remains checked and balanced by the other branches, the effect of the justices' opinions on the workings of government, politics, and society in the United States is much more significant than the attention they attract might indicate.

United States Reports

A second women's rights movement emerged in the 1960s to address these problems. Title ______ of the Civil Rights Act of 1964 prohibited discrimination in employment on the basis of sex as well as race, color, national origin, and religion. Nevertheless, women continued to be denied jobs because of their sex and were often sexually harassed at the workplace. In 1966, feminists who were angered by the lack of progress made by women and by the government's lackluster enforcement of Title VII organized the National Organization for Women (NOW). NOW promoted workplace equality, including equal pay for women, and also called for the greater presence of women in public office, the professions, and graduate and professional degree programs.

VII

The events at Selma galvanized support in Congress for a follow-up bill solely dealing with the right to vote. The _____________ of 1965 went beyond previous laws by requiring greater oversight of elections by federal officials. Literacy and understanding tests, and other devices used to discriminate against voters on the basis of race, were banned. The Voting Rights Act proved to have much more immediate and dramatic effect than the laws that preceded it; what had been a fairly slow process of improving voter registration and participation was replaced by a rapid increase of Black voter registration rates—although White registration rates increased over this period as well.45 To many people's way of thinking, however, the Supreme Court turned back the clocks when it gutted a core aspect of the Voting Rights Act in Shelby County v. Holder (2013).46 No longer would states need federal approval to change laws and policies related to voting. Indeed, many states with a history of voter discrimination quickly resumed restrictive practices with laws requiring photo ID; limiting early voting, ballot drop-off locations, and hours; and making registering and waiting to vote more onerous. Some of the new restrictions are already being challenged in the courts.47

Voting Rights Act

The spread of slavery into the West seemed inevitable, however, following the Supreme Court's 1857 ruling in the case Dred Scott v. Sandford. The justices rejected Scott's argument that though he had been born into slavery, his time spent in free states and territories where slavery had been banned by the federal government had made him a free man. In fact, the Court's majority stated that Scott had no legal right to sue for his freedom at all because Black people (whether free or enslaved) were not, and could not become, U.S. citizens. Thus, Scott lacked the standing to even appear before the court. The Court also held that Congress lacked the power to decide whether slavery would be permitted in a territory that had been acquired after the Constitution was ratified. This decision had the effect of prohibiting the federal government from passing any laws that would limit the expansion of slavery into any part of the __________

West

Many in the United States continue to call for a ban on ________, and states have attempted to restrict women's access to the procedure. For example, many states have required abortion clinics to meet the same standards set for hospitals, such as corridor size and parking lot capacity, despite lack of evidence regarding the benefits of such standards. Abortion clinics, which are smaller than hospitals, often cannot meet such standards. Other restrictions include mandated counseling before the procedure and the need for minors to secure parental permission before obtaining abortion services.88 Whole Woman's Health v. Hellerstedt (2016) cited the lack of evidence for the benefit of larger clinics and further disallowed two Texas laws that imposed special requirements on doctors in order to perform abortions.89 Furthermore, the federal government will not pay for abortions for low-income women except in cases of rape or incest or in situations in which carrying the fetus to term would endanger the life of the mother.90

abortion

There is no doubt that women have made great progress since the Seneca Falls Convention. Today, more women than men attend college, and they are more likely than men to graduate.77 Women are represented in all the professions, and approximately half of all law and medical school students are women.78 Women have held Cabinet positions and have been elected to Congress. They have run for president and vice president, and three female justices currently serve on the Supreme Court. Women are also represented in all branches of the military and can serve in combat. As a result of the 1973 Supreme Court decision in Roe v. Wade, women now have legal access to __________. While women's rights have progressed well beyond where they were in the 1800s, questions of equity continue. In 2021, the massive disparities between the facilities and housing for men and women in their respective NCAA national tournaments became front page news.80 Also in the news recently were the disparities in pay and resources for the U.S. Men's and Women's National Soccer teams. Again, women received much less in terms of resources than men, despite (in this case) being the more successful international team and World Cup champions.81 In the business world, women are still underrepresented in some jobs and are less likely to hold executive positions than are men.

abortion

But he also believed "the Judiciary Department" would "always be the least dangerous" because "with no influence over either the sword or the purse," it had "neither force nor will, but merely judgment." The courts would only make decisions, not take _______. With no control over how those decisions would be implemented and no power to enforce their choices, they could exercise only judgment, and their power would begin and end there.

action

One of the major controversies regarding race in the United States today is related to affirmative action, the practice of ensuring that members of historically disadvantaged or underrepresented groups have equal access to opportunities in education, the workplace, and government contracting. The phrase ___________________ originated in the Civil Rights Act of 1964 and Executive Order 11246, and it has drawn controversy ever since. The Civil Rights Act of 1964 prohibited discrimination in employment, and Executive Order 11246, issued in 1965, forbade employment discrimination not only within the federal government but by federal contractors and contractors and subcontractors who received government funds. Clearly, Black people, as well as other groups, have been subject to discrimination in the past and present, limiting their opportunity to compete on a level playing field with those who face no such challenge. Opponents of affirmative action, however, point out that many of its beneficiaries are ethnic minorities from relatively affluent backgrounds, while White and Asian Americans who grew up in poverty are expected to succeed despite facing challenges related to their socioeconomic status and those related to educational issues in lower income areas. Because affirmative action attempts to redress discrimination on the basis of race or ethnicity, it is generally subject to the strict scrutiny standard, which means the burden of proof is on the government to demonstrate the necessity of racial discrimination to achieve a compelling governmental interest. In 1978, in Bakke v. California, the Supreme Court upheld affirmative action and said that colleges and universities could consider race when deciding whom to admit but could not establish racial quotas.58 In 2003, the Supreme Court reaffirmed the Bakke decision in Grutter v. Bollinger, which said that taking race or ethnicity into account as one of several factors in admitting a student to a college or university was acceptable, but a system setting aside seats for a specific quota of minority students was not.59 All these issues are back under discussion in the Supreme Court with the re-arguing of Fisher v. University of Texas.60 In Fisher v. University of Texas (2013, known as Fisher I), University of Texas student Abigail Fisher brought suit to declare UT's race-based admissions policy as inconsistent with Grutter. The court did not see the UT policy that way and allowed it, so long as it remained narrowly tailored and not quota-based. Fisher II (2016) was decided by a 4-3 majority. It allowed race-based admissions, but required that the utility of such an approach had to be re-established on a regular basis.

affirmative action

_____________ consists of government programs and policies designed to benefit members of groups historically subject to discrimination. Much of the controversy surrounding affirmative action is about whether strict scrutiny should be applied to these cases.

affirmative action

Thurgood Marshall, nominated in 1967, was the first ___________ on the supreme court justice

african american

The courts have also _________ laws that forbid or compel certain forms of expression by businesses, such as laws that require the disclosure of nutritional information on food and beverage containers and warning labels on tobacco products (Figure 4.11). The federal government requires the prices advertised for airline tickets to include all taxes and fees. Many states regulate advertising by lawyers. And, in general, false or misleading statements made in connection with a commercial transaction can be illegal if they constitute fraud.

allowed

But freedom of speech, just like many constitutional concepts, has come to mean different things to different generations, and it is the courts that have designed the lens through which we understand the Constitution in modern times. It is often said that the Constitution changes less by _________ and more by the way it is interpreted. Rather than collecting dust on a shelf, the nearly 230-year-old document has come with us into the modern age, and the accepted practice of judicial review has helped carry it along the way.

amendment

After initial briefs have been filed, both parties may file subsequent briefs in response to the first. Likewise, people and groups that are not party to the case but are interested in its outcome may file an _________ ("friend of the court") brief giving their opinion, analysis, and recommendations about how the Court should rule. Interest groups in particular can become heavily involved in trying to influence the judiciary by filing amicus briefs—both before and after a case has been granted cert. And, as noted earlier, if the United States is not party to a case, the solicitor general may file an amicus brief on the government's behalf.

amicus curiae

Many Latinos became part of the U.S. population following the _________ of Texas by the United States in 1845 and of California, Arizona, New Mexico, Nevada, Utah, and Colorado following the War with Mexico in 1848. Most were subject to discrimination and could find employment only as poorly paid migrant farm workers, railroad workers, and unskilled laborers.127 The Spanish-speaking population of the United States increased following the Spanish-American War in 1898 with the incorporation of Puerto Rico as a U.S. territory. In 1917, during World War I, the Jones Act granted U.S. citizenship to Puerto Ricans.

annexation

Justices' personal beliefs and political attitudes also matter in their decision-making. Although we may prefer to believe a justice can leave political ideology or party identification outside the doors of the courtroom, the reality is that a more liberal-thinking judge may tend to make more liberal decisions and a more conservative-leaning judge may tend toward more conservative ones. Although this is not true 100 percent of the time, and an individual's decisions are sometimes a cause for surprise, the influence of ideology is real, and at a minimum, it often guides presidents to aim for nominees who mirror their own political or ideological image. It is likely not possible to find a potential justice who is completely _________

apolitical

While we may certainly distinguish between the two sides of a jurisdiction, looking on a case-by-case basis will sometimes complicate the seemingly clear-cut division between the state and federal sides. It is always possible that issues of federal law may start in the state courts before they make their way over to the federal side. And any case that starts out at the state and/or local level on state matters can make it into the federal system on ______—but only on points that involve a federal law or question, and usually after all avenues of appeal in the state courts have been exhausted.

appeal

The Constitution also limits the Supreme Court's original jurisdiction to those rare cases of disputes between states, or between the United States and foreign ambassadors or ministers. So, for the most part, the Supreme Court is an ______ court, operating under appellate jurisdiction and hearing appeals from the lower courts. The rest of the development of the judicial system and the creation of the lower courts were left in the hands of Congress.

appeals

On the U.S. Supreme Court, there are nine justices—one chief justice and eight _________ justices. Circuit courts each contain three justices, whereas federal district courts have just one judge each. As the national court of last resort for all other courts in the system, the Supreme Court plays a vital role in setting the standards of interpretation that the lower courts follow. The Supreme Court's decisions are binding across the nation and establish the precedent by which future cases are resolved in all the system's tiers.

associate

The Supreme Court's application of the right to privacy doctrine to abortion rights proved far more problematic, legally and politically. In 1972, four states permitted abortions without restrictions, while thirteen allowed abortions "if the pregnant woman's life or physical or mental health were endangered, if the fetus would be born with a severe physical or mental defect, or if the pregnancy had resulted from rape or incest"; abortions were completely illegal in Pennsylvania and heavily restricted in the remaining states.72 On average, several hundred American women a year died as a result of "_____________" in the 1960s.

back alley abortions

It is rare for _______ to be successfully challenged for being excessive. The Supreme Court has defined an excessive fine as one "so grossly excessive as to amount to deprivation of property without due process of law" or "grossly disproportional to the gravity of a defendant's offense."54 Historically, the courts have rarely struck down fines as excessive, though California and other states have recently passed legislation seeking to reform the more discriminatory aspects of the bail system.

bail

We can broadly divide the provisions of the Bill of Rights into three categories. The First, Second, Third, and Fourth Amendments protect _____________; the Fourth (partly), Fifth, Sixth, Seventh, and Eighth protect people suspected or accused of criminal activity or facing civil litigation; and the Ninth and Tenth, are consistent with the framers' view that the Bill of Rights is not necessarily an exhaustive list of all the rights people have and guarantees a role for state as well as federal government

basic individual freedoms

A ___________ is a law that convicts or punishes someone for a crime without a trial, a tactic used fairly frequently in England against the king's enemies. Prohibition of such laws means that the U.S. Congress cannot simply punish people who are unpopular or who seem to be guilty of crimes.

bill of attainder

At the time of the nation's founding, of course, the treatment of many groups was unequal: the rights of women were decidedly fewer than those of men, and neither they, the hundreds of thousands of enslaved people of African descent, or indigenous Americans were considered fully human, let alone U.S. citizens. While the early United States was perhaps a more inclusive society than most of the world at that time, equal treatment of all remained a radical idea. The aftermath of the Civil War marked a turning point for civil rights. The Republican majority in Congress was enraged by the actions of the reconstituted governments of the southern states. In these states, many former Confederate politicians and their sympathizers returned to power and attempted to circumvent the Thirteenth Amendment's freeing of enslaved men and women by passing laws known as the ____________. These laws were designed to reduce formerly enslaved people to the status of serfs or indentured servants. Black people were not just denied the right to vote, but also could be arrested and jailed for vagrancy or idleness if they lacked jobs. Black people were excluded from public schools and state colleges and were subject to violence at the hands of White people

black codes

But some laws that may appear to establish certain religious practices are allowed. For example, the courts have permitted religiously inspired ________ that limit working hours or even shutter businesses on Sunday, the Christian day of rest, because by allowing people to practice their (Christian) faith, such rules may help ensure the "health, safety, recreation, and general well-being" of citizens. They have allowed restrictions on the sale of alcohol and sometimes other goods on Sunday for similar reasons. Such laws in Bergen County, New Jersey, and especially its borough of Paramus, shutter many retail stores every Sunday, despite Bergen having one of the largest concentrations of retail space in the nation and five large enclosed shopping malls. While various political figures, including Chris Christie, have proposed repealing the laws, town and county officials have vowed to keep them in place as a "quality of life" element. Many citizens support them, while others cite the difficulty in doing their own shopping and the impact on smaller retailers in their rationale for eliminating the restrictions.

blue laws

Once a case has been placed on the docket, _________, or short arguments explaining each party's view of the case, must be submitted—first by the petitioner putting forth the case, then by the respondent.

briefs

Even pedestrians and cyclists are relatively easy to track today. ______ pointed at sidewalks and roadways can employ facial recognition software to identify people as they walk or bike around a city. Many people carry smartphones that constantly report their location to the nearest cell phone tower and broadcast a beacon signal to nearby wireless hotspots and Bluetooth devices. Police can set up a small device called a Stingray that identifies and tracks all cell phones that attempt to connect to it within a radius of several thousand feet. With the right software, law enforcement and criminals can remotely activate a phone's microphone and camera, effectively planting a bug in someone's pocket without the person even knowing it. These aren't just gimmicks in a bad science fiction movie; businesses and governments have openly admitted they are using these methods. Research shows that even metadata—information about the messages we send and the calls we make and receive, such as time, location, sender, and recipient but excluding their content—can tell governments and businesses a lot about what someone is doing. Even when this information is collected in an anonymous way, it is often still possible to trace it back to specific individuals, since people travel and communicate in largely predictable patterns.

cameras

Oral arguments are open to the public, but _____ are not allowed in the courtroom, so the only picture we get is one drawn by an artist's hand, an illustration or rendering. Cameras seem to be everywhere today, especially to provide security in places such as schools, public buildings, and retail stores, so the lack of live coverage of Supreme Court proceedings may seem unusual or old-fashioned. Over the years, groups have called for the Court to let go of this tradition and open its operations to more "sunshine" and greater transparency. Nevertheless, the justices have resisted the pressure and remain neither filmed nor photographed during oral arguments.

cameras

Roger B. Taney, nominated in 1836 was the first ________ supreme court justice

catholic

All this is not to say that technological surveillance tools do not have value or are inherently bad. They can be used for many purposes that would benefit society and, perhaps, even enhance our freedoms. Spending less time stuck in traffic because we know there's been an accident—detected automatically because the ___________ that normally whiz by at the speed limit are now crawling along—gives us time to spend on more valuable activities. Capturing criminals and terrorists by recognizing them or their vehicles before they can continue their agendas will protect the life, liberty, and property of the public at large. At the same time, however, the emergence of these technologies means calls for vigilance and limits on what businesses and governments can do with the information they collect and the length of time they may retain it. We might also be concerned about how this technology could be used by more oppressive regimes. If the technological resources that are at the disposal of today's governments had been available to the East Germany Stasi and the Romanian Securitate, would those repressive regimes have fallen? How much privacy and freedom should citizens sacrifice in order to feel safe?

cell phones

Past research indicated that the amount of interest-group activity surrounding a case before it is granted _____ has a significant impact on whether the Supreme Court puts the case on its agenda. The more activity, the more likely the case will be placed on the docket. But more recent research broadens that perspective, suggesting that too much interest-group activity when the Court is considering a case for its docket may actually have diminishing impact and that external actors may have less influence on the work of the Court than they have had in the past. Still, the Court takes into consideration external influences, not just from interest groups but also from the public, from media attention, and from a very key governmental actor—the solicitor general.

cert.

The double jeopardy rule does not prevent someone from recovering damages in a ______ case—a legal dispute between individuals over a contract or compensation for an injury—that results from a criminal act, even if the person accused of that act is found not guilty. One famous case from the 1990s involved former football star and television personality O. J. Simpson. Simpson, although acquitted of the murders of his ex-wife Nicole Brown and her friend Ron Goldman in a criminal court, was later found to be responsible for their deaths in a subsequent civil case and as a result was forced to forfeit most of his wealth to pay damages to their families.

civil

______ law cases involve two or more private (non-government) parties, at least one of whom alleges harm or injury committed by the other.

civil

We can contrast civil rights with ____________, which are limitations on government power designed to protect our fundamental freedoms.

civil liberties

In fact, none of the justices works completely in an ideological bubble. While their numerous opinions have revealed certain ideological tendencies, they still consider each case as it comes to them, and they don't always rule in a consistently predictable or expected way. Furthermore, they don't work exclusively on their own. Each justice has three or four law _____, recent law school graduates who temporarily work for the justice, do research, help prepare the justice with background information, and assist with the writing of opinions. The law clerks' work and recommendations influence whether the justices will choose to hear a case, as well as how they will rule. As the profile below reveals, the role of the clerks is as significant as it is varied.

clerks

Despite significant advances, American Indians, Alaska Natives, and Native Hawaiians still trail behind U.S. citizens of other ethnic backgrounds in many important areas. These groups continue to suffer widespread poverty and high unemployment. Some of the poorest counties in the United States are those in which Native American reservations are located. These minorities are also less likely than white Americans, African Americans, or Asian Americans to complete high school or __________.123 Many American Indian and Alaskan tribes endure high rates of infant mortality, alcoholism, and suicide.124 Native Hawaiians are also more likely to live in poverty than White people in Hawaii, and they are more likely than white Hawaiians to be unhoused or unemployed.125

college

Even with judicial review in place, the courts do not always stand ready just to throw out actions of the other branches of government. More broadly, as Marshall put it, "it is emphatically the province and duty of the judicial department to say what the law is."12 The United States has a _________ system in which law is largely developed through binding judicial decisions. With roots in medieval England, the system was inherited by the American colonies along with many other British traditions.13 It stands in contrast to code law systems, which provide very detailed and comprehensive laws that do not leave room for much interpretation and judicial decision-making. With code law in place, as it is in many nations of the world, it is the job of judges to simply apply the law. But under common law, as in the United States, they interpret it. Often referred to as a system of judge-made law, common law provides the opportunity for the judicial branch to have stronger involvement in the process of law-making itself, largely through its ruling and interpretation on a case-by-case basis.

common law

Before the Civil War, this would have been a nearly meaningless distinction. In most states at that time, White males of military age were considered part of the militia, liable to be called for service to put down rebellions or invasions, and the right "to keep and bear Arms" was considered a ____________ inherited from English law that predated the federal and state constitutions. The Constitution was not seen as a limitation on state power, and since the states expected all free men to keep arms as a matter of course, what gun control there was mostly revolved around ensuring enslaved people (and their abolitionist allies) didn't have guns.

common-law right

To address these issues, many have called for additional protections for women. These include laws mandating equal pay for equal work. According to the doctrine of ____________, people should be compensated equally for work requiring comparable skills, responsibilities, and effort. Thus, even though women are underrepresented in certain fields, they should receive the same wages as men if performing jobs requiring the same level of accountability, knowledge, skills, and/or working conditions, even though the specific job may be different. For example, garbage collectors are predominantly male. The chief job requirements are the ability to drive a sanitation truck and to lift heavy bins and toss their contents into the back of truck. The average wage for a garbage collector is $15.34 an hour.91 Most people employed as daycare workers are female, and the average pay is $9.12 an hour.92 However, the work arguably requires more skills and is a more responsible position. Daycare workers must be able to feed, clean, and dress small children; prepare meals for them; entertain them; give them medicine if required; and teach them basic skills. They must be educated in first aid and assume responsibility for the children's safety. In terms of the skills and physical activity required and the associated level of responsibility of the job, daycare workers should be paid at least as much as garbage collectors and perhaps more. Women's rights advocates also call for stricter enforcement of laws prohibiting sexual harassment, and for harsher punishment, such as mandatory arrest, for perpetrators of domestic violence.

comparable worth

When oral arguments have been concluded, the justices have to decide the case, and they do so in _________, which is held in private twice a week when the Court is in session and once a week when it is not. The conference is also a time to discuss petitions for certiorari, but for those cases already heard, each justice may state their views on the case, ask questions, or raise concerns. The chief justice speaks first about a case, then each justice speaks in turn, in descending order of seniority, ending with the most recently appointed justice. The judges take an initial vote in private before the official announcement of their decisions is made public.

conference

In the following decades, states gradually began to introduce laws to regulate gun ownership. Federal gun control laws began to be introduced in the 1930s in response to organized crime, with stricter laws that regulated most commerce and trade in guns coming into force in the wake of the street protests of the 1960s. In the early 1980s, following an assassination attempt on President Ronald Reagan, laws requiring background checks for prospective gun buyers were passed. During this period, the Supreme Court's decisions regarding the meaning of the Second Amendment were ambiguous at best. In United States v. Miller, the Supreme Court upheld the 1934 National Firearms Act's prohibition of sawed-off shotguns, largely on the basis that possession of such a gun was not related to the goal of promoting a "well regulated militia."39 This finding was generally interpreted as meaning that the Second Amendment protected the right of the states to organize a militia, rather than an individual right, and thus lower courts generally found most firearm regulations—including some city and state laws that virtually outlawed the private ownership of firearms—to be ___________

constitutional

Before the writing of the U.S. Constitution and the establishment of the permanent national judiciary under Article III, the states had ______. Each of the thirteen colonies had also had its own courts, based on the British common law model.

courts

There are 13 U.S. _________, or circuit courts, 11 across the nation and two in Washington, DC (the DC circuit and the federal circuit courts). Each court is overseen by a rotating panel of three judges who do not hold trials but instead review the rulings of the trial (district) courts within their geographic circuit. As authorized by congress, there are currently 179 such judges. The circuit courts are often referred to as the intermediate appellate courts of the federal system, since their rulings can be appealed to the U.S. Supreme Court. Moreover, different circuits can hold legal and cultural views, which can lead to differing outcomes on similar legal questions

courts of appeals

The civil rights movement for African Americans did not end with the passage of the Voting Rights Act in 1965. For the last fifty years, the African American community has faced challenges related to both past and current discrimination, and progress on both fronts remains slow, uneven, and often frustrating. Legacies of the de jure segregation of the past remain in much of the United States. Many Black people still live in predominantly Black neighborhoods where their ancestors were forced by laws and housing covenants to live.49 Even those who live in the suburbs, once largely populated only by White people, tend to live in suburbs that are mostly populated by Black people.50 Some two million African American young people attend schools whose student body is composed almost entirely of students of color.51 During the late 1960s and early 1970s, efforts to tackle these problems were stymied by large-scale public opposition, not just in the South but across the nation. Attempts to integrate public schools through the use of busing—transporting students from one segregated neighborhood to another to achieve more racially balanced schools—were particularly unpopular and helped contribute to "White flight" from cities to the suburbs.52 This White flight has created _____________ segregation, a form of segregation that results from the choices of individuals to live in segregated communities without government action or support.

de facto

Although the immediate effect of these provisions was quite profound, over time the Republicans in Congress gradually lost interest in pursuing Reconstruction policies, and the Reconstruction ended with the end of military rule in the South and the withdrawal of the Union army in 1877.19 Following the army's removal, political control of the South fell once again into the hands of White men, and violence was used to discourage Black people from exercising the rights they had been granted.20 The revocation of voting rights, or _____________, took a number of forms; not every southern state used the same methods, and some states used more than one, but they all disproportionately affected Black voter registration and turnout.21

disenfranchisement

Most typically, though, the Court will put forward a majority opinion. If in the majority, the chief justice decides who will write the opinion. If not, then the most senior justice ruling with the majority chooses the writer. Likewise, the most senior justice in the dissenting group can assign a member of that group to write the ____________; however, any justice who disagrees with the majority may write a separate dissenting opinion.

dissenting opinion

Although legislative changes over the years have altered it, the basic structure of the judicial branch remains as it was set early on: At the lowest level are the _______ courts, where federal cases are tried, witnesses testify, and evidence and arguments are presented. A losing party who is unhappy with a district court decision may appeal to the circuit courts, or U.S. courts of appeals, where the decision of the lower court is reviewed. Still further, appeal to the U.S. Supreme Court is possible, but of the thousands of petitions for appeal, the Supreme Court will typically hear fewer than one hundred a year.

district

There are 94 U.S. ________ courts in the 50 states and U.S. territories, of which 89 are in the states (at least one in each state). The others are in Washington, DC; Puerto Rico; Guam; the U.S. Virgin Islands; and the Northern Mariana Islands. These are the trial courts of the national system, in which federal cases are tried, witness testimony is heard, and evidence is presented. No district court crosses state lines, and a single judge oversees each one. Some cases are heard by a jury, and some are not

district

In other cases in which the United States is not the petitioner or the respondent, the solicitor general may choose to intervene or comment as a third party. Before a case is granted cert., the justices will sometimes ask the solicitor general to comment on or file a brief in the case, indicating their potential interest in getting it on the ______. The solicitor general may also recommend that the justices decline to hear a case. Though research has shown that the solicitor general's special influence on the Court is not unlimited, it remains quite significant. In particular, the Court does not always agree with the solicitor general, and "while justices are not lemmings who will unwittingly fall off legal cliffs for tortured solicitor general recommendations, they nevertheless often go along with them even when we least expect them to."

docket

The Supreme Court begins its annual session on the first Monday in October and ends late the following June. Every year, there are literally thousands of people who would like to have their case heard before the Supreme Court, but the justices will select only a handful to be placed on the _______, which is the list of cases scheduled on the Court's calendar. The Court typically accepts fewer than 2 percent of the as many as ten thousand cases it is asked to review every year.49

docket

The Fifth Amendment also protects individuals against ____________, a process that subjects a suspect to prosecution twice for the same criminal act. No one who has been acquitted (found not guilty) of a crime can be prosecuted again for that crime. But the prohibition against double jeopardy has its own exceptions. The most notable is that it prohibits a second prosecution only at the same level of government (federal or state) as the first; the federal government can try you for violating federal law, even if a state or local court finds you not guilty of the same action. For example, in the early 1990s, several Los Angeles police officers accused of brutally beating motorist Rodney King during his arrest were acquitted of various charges in a state court, but some were later convicted in a federal court of violating King's civil rights.

double jeopardy

The courts, however, are much more skeptical when it comes to certain other forms of discrimination. Because of the United States' history of ethnic, racial, gender, and religious discrimination, the courts apply more stringent rules to policies, laws, and actions that discriminate on these bases (race, ethnicity, gender, religion, or national origin).5 Discrimination based on gender or sex is generally examined with intermediate scrutiny. The standard of intermediate scrutiny was first applied by the Supreme Court in Craig v. Boren (1976) and again in Clark v. Jeter (1988).6 It requires the government to demonstrate that treating men and women differently is "substantially related to an important governmental objective." This puts the burden of proof on the government to demonstrate why the unequal treatment is justifiable, not on the individual who alleges unfair discrimination has taken place. In practice, this means laws that treat men and women differently are sometimes upheld, although usually they are not. For example, in the 1980s and 1990s, the courts ruled that states could not operate single-sex institutions of higher education and that such schools, like South Carolina's military college The Citadel, shown in Figure 5.2, must admit both male and female students.7 Women in the military are now also allowed to serve in all combat roles, although the courts have continued to allow the Selective Service System (the ________) to register only men and not women.

draft

The second provision of the Fourteenth Amendment pertaining to the application of the Bill of Rights to the states is the _______________, which famously reads, "nor shall any State deprive any person of life, liberty, or property, without due process of law." Like the Fifth Amendment, this clause refers to "due process," a term that is interpreted to require both access to procedural justice (such as the right to a trial) as well as the more substantive implication that people be treated fairly and impartially by government officials. Although the text of the provision does not mention rights specifically, the courts have held in a series of cases that due process also implies that there are certain fundamental liberties that cannot be denied by the states. For example, in Sherbert v. Verner (1963), the Supreme Court ruled that states could not deny unemployment benefits to an individual who turned down a job because it required working on the Sabbath.

due process clause

The NAACP soon focused on a strategy of overturning Jim Crow laws through the courts. Perhaps its greatest series of legal successes consisted of its efforts to challenge segregation in ___________. Early cases brought by the NAACP dealt with racial discrimination in higher education. In 1938, the Supreme Court essentially gave states a choice: they could either integrate institutions of higher education, or they could establish an equivalent university or college for African Americans.30 Southern states chose to establish colleges for Black people rather than allow them into all-White state institutions. Although this ruling expanded opportunities for professional and graduate education in areas such as law and medicine for African Americans by requiring states to provide institutions for them to attend, it nevertheless allowed segregated colleges and universities to continue to exist.

education

The _________ amendment protects the right to not face excessive bail, excessive fines, or cruel and unusual punishment

eighth (8th)

Some disputes over economic liberty have gone beyond the idea of _________ domain. In the past few years, companies seeking to offer profitable services online such as direct sales by electric car manufacturer Tesla Motors, on-demand ride-sharing services like Lyft and Uber, and short-term property rentals through companies like Airbnb have led to conflict with states and cities trying to regulate these businesses, and with incumbent service providers such as hotels and taxi cabs. In the absence of new public policies to clarify rights, the path forward is often determined through norms established by governments or by court cases.

eminent

A significant recent controversy over economic liberty has been sparked by cities' and states' use of the power of ___________ to take property for redevelopment. Traditionally, the main use of eminent domain was to obtain property for transportation corridors like railroads, highways, canals and reservoirs, and pipelines, which require fairly straight routes to be efficient. Because any single property owner could effectively block a particular route or extract an unfair price for land if it was the last piece needed to assemble a route, there are reasonable arguments for using eminent domain as a last resort in these circumstances, particularly for projects that convey substantial benefits to the public at large.

eminent domain

Essentially, civil rights are guarantees by the government that it will treat people equally—particularly people belonging to groups that have historically been denied the same rights and opportunities as others. The due process clause of the Fifth Amendment to the U.S. Constitution enacted the Declaration of Independence's proclamation that "all men are created equal" by providing de jure equal treatment under the law. According to Chief Justice Earl Warren in the Supreme Court case of Bolling v. Sharpe (1954), "discrimination may be so unjustifiable as to be violative of due process."2 Additional guarantees of equality were provided in 1868 by the ______________ of the Fourteenth Amendment, which states, in part, that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Thus, between the Fifth and Fourteenth Amendments, neither state governments nor the federal government may treat people unequally unless unequal treatment is necessary to maintain important governmental interests such as public safety.

equal protection clause

The meaning of the _______ has been controversial at times because, as a matter of course, government officials acknowledge that we live in a society with vigorous religious practice where most people believe in God—even if we disagree on what God is. Disputes often arise over how much the government can acknowledge this widespread religious belief. The courts have generally allowed for a certain tolerance of what is described as ceremonial deism, an acknowledgement of God or a creator that generally lacks any substantive religious content. For example, the national motto "In God We Trust," which appears on our coins and paper money (Figure 4.7), is seen as more an acknowledgment that most citizens believe in God than any serious effort by government officials to promote religious belief and practice. This reasoning has also been used to permit the inclusion of the phrase "under God" in the Pledge of Allegiance—a change that came about during the early years of the Cold War as a means of contrasting the United States with the "godless" Soviet Union.

establishment clause

What happens if the police conduct an illegal search or seizure without a warrant and find evidence of a crime? In the 1961 Supreme Court case Mapp v. Ohio, the court decided that evidence obtained without a warrant that didn't fall under one of the exceptions mentioned above could not be used as evidence in a state criminal trial, giving rise to the broad application of what is known as the ___________, which was first established in 1914 on a federal level in Weeks v. United States.46 The exclusionary rule doesn't just apply to evidence found or to items or people seized without a warrant (or falling under an exception noted above); it also applies to any evidence developed or discovered as a result of the illegal search or seizure.

exclusionary rule

Despite ongoing controversy, however, the courts have consistently found some public interests sufficiently compelling to override the free _______ clause. For example, since the late nineteenth century, the courts have consistently held that people's religious beliefs do not exempt them from the general laws against polygamy, drug use, or human sacrifice. Yet, the public interest did not trump individual rights during the COVID-19 pandemic, when the Supreme Court overturned California's ban on indoor gatherings. Other potential acts in the name of religion that are also out of the question are drug use and human sacrifice.

exercise

Although the remainder of the First Amendment protects four distinct rights—free speech, press, assembly, and petition—we generally think of these rights today as encompassing a right to freedom of __________, particularly since the world's technological evolution has blurred the lines between oral and written communication (i.e., speech and press) in the centuries since the First Amendment was written and adopted.

expression

Free ________ includes the right to assemble peaceably and the right to petition government officials. This right even extends to members of groups whose views most people find abhorrent, such as American Nazis and the vehemently anti-LGBTQ Westboro Baptist Church, whose members have become known for their protests at the funerals of U.S. soldiers who have died fighting in the war on terror.37 Free expression—although a broad right—is subject to certain constraints to balance it against the interests of public order. In particular, the nature, place, and timing of protests—but not their substantive content—are subject to reasonable limits. The courts have ruled that while people may peaceably assemble in a place that is a public forum, not all public property is a public forum. For example, the inside of a government office building or a college classroom—particularly while someone is teaching—is not generally considered a public forum.

expression

Many of the same players who influence whether the Court will grant cert. in a case, discussed earlier in this chapter, also play a role in its decision-making, including law clerks, the solicitor general, interest groups, and the mass media. But additional legal, personal, ideological, and political influences weigh on the Supreme Court and its decision-making process. On the legal side, courts, including the Supreme Court, cannot make a ruling unless they have a case before them, and even with a case, courts must rule on its _______. Although the courts' role is interpretive, judges and justices are still constrained by the facts of the case, the Constitution, the relevant laws, and the courts' own precedent.

facts

The _______ courts, on the other hand, will hear any case that involves a foreign government, patent or copyright infringement, Native American rights, maritime law, bankruptcy, or a controversy between two or more states. Cases arising from activities across state lines (interstate commerce) are also subject to federal court jurisdiction, as are cases in which the United States is a party. A dispute between two parties not from the same state or nation and in which damages of at least $75,000 are claimed is handled at the federal level. Such a case is known as a diversity of citizenship case.

federal

_____ courts hear cases that involve "interstate" matters, "diversity of citizenship" involving parties of two different states, or between a U.S. citizen and a citizen of another nation (and with a damage claim of at least $75,000)

federal

______ courts hear the cases that involve a "federal question," involving the Constitution, federal laws or treaties, or a "federal party" in which the U.S. government is a party to the case

federal

________ courts hear both civil and criminal matters, although many criminal cases involving federal law are tried in state courts

federal

Many of the provisions dealing with the rights of the accused are included in the _____ Amendment; accordingly, it is one of the longest in the Bill of Rights. The Fifth Amendment states in full: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

fifth

Women remain subject to sexual harassment in the workplace and are more likely than men to be the victims of domestic violence. Approximately one-third of all women have experienced domestic violence; one in _______ women is assaulted during her college years.87

five

In addition to the protections outlined in the Fourth Amendment, which largely pertain to investigations conducted before someone has been charged with a crime, the next _______ amendments pertain to those suspected, accused, or convicted of crimes, as well as people engaged in other legal disputes. At every stage of the legal process, the Bill of Rights incorporates protections for these people.

four

The festering issue of the rights of enslaved persons and the convulsions of the Civil War and its aftermath forced a reexamination of the prevailing thinking about the application of the Bill of Rights to the states. Soon after slavery was abolished by the Thirteenth Amendment, state governments—particularly those in the former Confederacy—began to pass "Black codes" that restricted the rights of formerly enslaved people, including the right to hold office, own land, or vote, relegating them to second-class citizenship. Angered by these actions, members of the Radical Republican faction in Congress demanded that the Black codes be overturned. In the short term, they advocated suspending civilian government in most of the southern states and replacing politicians who had enacted these discriminatory laws. Their long-term solution was to propose and enforce two amendments to the Constitution to guarantee the rights of freed men and women. These became the _______ Amendment, which dealt with civil liberties and rights in general, and the Fifteenth Amendment, which protected the right to vote in particular (Figure 4.4). though still not for women or Native Americans.

fourteenth (14th)

the ______ Amendment prevents the government from searching one's person or property or taking evidence without a warrant issued by a judge, with certain exceptions.

fourth

it was in 2015 that we learned a man's threat to kill his ex-wife, written in rap lyrics and posted to her Facebook wall, was not a real threat and thus could not be prosecuted as a felony under federal law.17 Certainly, when the Bill of Rights first declared that government could not abridge __________, its framers could never have envisioned Facebook—or any other modern technology for that matter.

freedom of speech

For example, if police search your home without a warrant, find bank statements showing large cash deposits on a regular basis, and discover you are engaged in some other crime in which they were previously unaware (e.g., blackmail, drugs, or prostitution), they can neither use the bank statements as evidence of criminal activity, nor prosecute you for the crimes they discovered during the illegal search. This extension of the exclusionary rule is sometimes called the "_______________________," because just as the metaphorical tree (i.e., the original search or seizure) is poisoned, so is anything that grows out of it.47

fruit of the poisonous tree

The Court relies on the executive to implement or enforce its decisions and on the legislative branch to _______ them. As the Jackson and Lincoln stories indicate, presidents may simply ignore decisions of the Court, and Congress may withhold funding needed for implementation and enforcement. Fortunately for the courts, these situations rarely happen, and the other branches tend to provide support rather than opposition. In general, presidents have tended to see it as their duty to both obey and enforce Court rulings, and Congress seldom takes away the funding needed for the president to do so.

fund

Many believe the ____________, an invisible barrier caused by discrimination, prevents women from rising to the highest levels of American organizations, including corporations, governments, academic institutions, and religious groups. Women earn less money than men for the same work. As of 2014, fully employed women earned seventy-nine cents for every dollar earned by a fully employed man.82 This problem may be compounded by other factors, as women from under-represented groups are even more discriminated against than other women.83 Women are also more likely to be single parents than are men.84 As a result, more women live below the poverty line than do men, and, as of 2012, households headed by single women are twice as likely to live below the poverty line than those headed by single men.85 Women remain underrepresented in elective offices. As of June 2021, women held only about 27 percent of seats in Congress and only about 31 percent of seats in state legislatures.86

glass ceiling

In some states, poorer, less-literate white voters feared being disenfranchised by the literacy and understanding tests. Some states introduced a loophole, known as the _____________, to allow less literate white people to vote. The grandfather clause exempted those who had been allowed to vote in that state prior to the Civil War and their descendants from literacy and understanding tests.24 Because Black people were not allowed to vote prior to the Civil War, but most White men had been voting at a time when there were no literacy tests, this loophole allowed most illiterate white people to vote (Figure 5.5) while leaving obstacles in place for Black people who wanted to vote as well. Time limits were often placed on these provisions because state legislators realized that they might quickly be declared unconstitutional, but they lasted long enough to allow illiterate White men to register to vote.25

grandfather clause

Consider the case Miranda v. Arizona. Ernesto Miranda, arrested for kidnapping and rape, which are violations of state law, was easily convicted and sentenced to prison after a key piece of evidence—his own signed confession—was presented at trial in the Arizona court. On appeal first to the Arizona Supreme Court and then to the U.S. Supreme Court to exclude the confession on the grounds that its admission was a violation of his constitutional rights, Miranda won the case. By a slim 5-4 margin, the justices ruled that the confession had to be excluded from evidence because in obtaining it, the police had violated Miranda's Fifth Amendment right against self-incrimination and his Sixth Amendment right to an attorney. In the opinion of the Court, because of the coercive nature of police interrogation, no confession can be admissible unless a suspect is made aware of his rights and then in turn waives those rights. For this reason, Miranda's original conviction was overturned. Yet the Supreme Court considered only the violation of Miranda's constitutional rights, but not whether he was guilty of the crimes with which he was charged. So there were still crimes committed for which Miranda had to face charges. He was therefore retried in state court in 1967, the second time without the confession as evidence, found _____ again based on witness testimony and other evidence, and sent to prison. Miranda's story is a good example of the tandem operation of the state and federal court systems. His guilt or innocence of the crimes was a matter for the state courts, whereas the constitutional questions raised by his trial were a matter for the federal courts. Although he won his case before the Supreme Court, which established a significant precedent that criminal suspects must be read their so-called Miranda rights before police questioning, the victory did not do much for Miranda himself. After serving prison time, he was stabbed to death in a bar fight in 1976 while out on parole, and due to a lack of evidence, no one was ever convicted in his death.

guilty

The right to freedom of expression is not absolute; several key restrictions limit our ability to speak or publish opinions under certain circumstances. We have seen that the Constitution protects most forms of offensive and unpopular expression, particularly political speech; however, ________ of a criminal act, "fighting words," and genuine threats are not protected. So, for example, you can't point at someone in front of an angry crowd and shout, "Let's beat up that guy!" And the Supreme Court has allowed laws that ban threatening symbolic speech, such as burning a cross on the lawn of an African American family's home (Figure 4.10).33 Finally, as we've just seen, defamation of character—whether in written form (libel) or spoken form (slander)—is not protected by the First Amendment, so people who are subject to false accusations can sue to recover damages, although criminal prosecutions of libel and slander are uncommon.

incitement

One of the reasons the framers of the U.S. Constitution included the provision that federal judges would be appointed for life was to provide the judicial branch with enough _________ such that it could not easily be influenced by the political winds of the time. The nomination of Brett Kavanaugh tested that notion, as the process became intensely partisan within the Senate and with the nominee himself. (Kavanaugh's previous nomination to the U.S. Court of Appeals for the D.C. Circuit by President George W. Bush in 2003 also stalled for three years over charges of partisanship.) Sharp divisions emerged early in the confirmation process and an upset Kavanaugh called out several Democratic senators in his impassioned testimony in front of the Judiciary Committee. The high partisan drama of the Kavanaugh confirmation compelled Chief Justice Roberts to express concerns about the process and decry the threat of partisanship and conflict of interest on the Court.

independence

Case names, written in ______, list the name of a petitioner versus a respondent, as in Roe v. Wade, for example. For a case on appeal, you can tell which party lost at the lower level of court by looking at the case name: The party unhappy with the decision of the lower court is the one bringing the appeal and is thus the petitioner, or the first-named party in the case. For example, in Brown v. Board of Education (1954), Oliver Brown was one of the thirteen parents who brought suit against the Topeka public schools for discrimination based on racial segregation.

italics

Louis J. Brandeis, nominated in 1916, was the first ________ supreme court justice

jew

The circuit courts started out as the trial courts for most federal criminal cases and for some civil suits, including those initiated by the United States and those involving citizens of different states. But early on, they did not have their own ______; the local district judge and two Supreme Court justices formed each circuit court panel. (That is how the name "circuit" arose—judges in the early circuit courts traveled from town to town to hear cases, following prescribed paths or circuits to arrive at destinations where they were needed.37) Circuit courts also exercised appellate jurisdiction (meaning they receive appeals on federal district court cases) over most civil suits that originated in the district courts; however, that role ended in 1891, and their appellate jurisdiction was turned over to the newly created circuit courts, or U.S. courts of appeals. The original circuit courts—the ones that did not have "of appeals" added to their name—were abolished in 1911, fully replaced by these new circuit courts of appeals.38

judges

Justices' decisions are influenced by how they define their role as a jurist, with some justices believing strongly in _________, or the need to defend individual rights and liberties, and they aim to stop actions and laws by other branches of government that they see as infringing on these rights. A judge or justice who views the role with an activist lens is more likely to use judicial power to broaden personal liberty, justice, and equality.

judicial activism

But the most significant check on the Supreme Court is executive and legislative leverage over the implementation and enforcement of its rulings. This process is called _____________. While it is true that courts play a major role in policymaking, they have no mechanism to make their rulings a reality. Remember it was Alexander Hamilton in Federalist No. 78 who remarked that the courts had "neither force nor will, but merely judgment." And even years later, when the 1832 Supreme Court ruled the State of Georgia's seizing of Native American lands unconstitutional,66 President Andrew Jackson is reported to have said, "John Marshall has made his decision, now let him enforce it," and the Court's ruling was basically ignored.67 Abraham Lincoln, too, famously ignored Chief Justice Roger B. Taney's order finding unconstitutional Lincoln's suspension of habeas corpus rights in 1861, early in the Civil War. Thus, court rulings matter only to the extent they are heeded and followed.

judicial implementation

Still others believe in _________, which leads them to defer decisions (and thus policymaking) to the elected branches of government and stay focused on a narrower interpretation of the Bill of Rights. These justices are less likely to strike down actions or laws as unconstitutional and are less likely to focus on the expansion of individual liberties. While it is typically the case that liberal actions are described as unnecessarily activist, conservative decisions can be activist as well.

judicial restraint

In 1803, the Supreme Court declared for itself the power of _______, a power to which Hamilton had referred but that is not expressly mentioned in the Constitution. It is the power of the courts, as part of the system of checks and balances, to look at actions taken by the other branches of government and the states and determine whether they are constitutional. If the courts find an action to be unconstitutional, it becomes null and void

judicial review

If democratic institutions struggle to balance individual freedoms and collective well-being, the _____ is arguable the branch where the individual has the best chance to be heard

judiciary

Under the Articles of Confederation, there was no national ________

judiciary

What branch is the chief interpreter of the Constitution

judiciary

While we often focus primarily on the district and circuit courts of the federal system, other federal trial courts exist that have more specialized ________, such as the Court of International Trade, Court of Federal Claims, and U.S. Tax Court. Specialized federal appeals courts include the Court of Appeals for the Armed Forces and the Court of Appeals for Veterans Claims. Cases from any of these courts may also be appealed to the Supreme Court, although that result is very rare.

jurisdictions

Since judges and justices are not elected, we sometimes consider the courts removed from the public; however, this is not always the case, and there are times when average citizens may get involved with the courts first-hand as part of their decision-making process at either the state or federal levels. At some point, if you haven't already been called, you may receive a summons for ________ from your local court system. You may be asked to serve on federal jury duty, such as U.S. district court duty or federal grand jury duty, but service at the local level, in the state court system, is much more common. While your first reaction may be to start planning a way to get out of it, participating in jury service is vital to the operation of the judicial system, because it provides individuals in court the chance to be heard and to be tried fairly by a group of their peers. And jury duty has benefits for those who serve as well. You will no doubt come away better informed about how the judicial system works and ready to share your experiences with others. Who knows? You might even get an unexpected surprise, as some citizens in Dallas, Texas did recently when former President George W. Bush showed up to serve jury duty with them.

jury duty

We typically envision civil _______ as limitations on government power, intended to protect freedoms upon which governments may not legally intrude. For example, the First Amendment denies the government the power to prohibit "the free exercise" of religion.

liberties

Judges fulfill a vital role in the U.S. judicial system and are carefully selected. At the federal level, the president nominates a candidate to a judgeship or justice position, and the nominee must be confirmed by a majority vote in the U.S. Senate, a function of the Senate's "advice and consent" role. All judges and justices in the national courts serve ________ terms of office.

lifetime

Perhaps the most famous of the tools of disenfranchisement were ________ tests and understanding tests. Literacy tests, which had been used in the North since the 1850s to disqualify naturalized European immigrants from voting, called on the prospective voter to demonstrate his (and later, her) ability to read a particular passage of text. However, since voter registration officials had discretion to decide what text the voter was to read, they could give easy passages to voters they wanted to register (typically, white people) and more difficult passages to those whose registration they wanted to deny (typically, Black people).

literacy

The first clause of the fifth amendment requires that serious crimes be prosecuted only after an indictment has been issued by a grand jury. However, several exceptions are permitted as a result of the evolving interpretation and understanding of this amendment by the courts, given the Constitution is a _________ document. First, the courts have generally found this requirement to apply only to felonies; less serious crimes can be tried without a grand jury proceeding. Second, this provision of the Bill of Rights does not apply to the states because it has not been incorporated; many states instead require a judge to hold a preliminary hearing to decide whether there is enough evidence to hold a full trial. Finally, members of the armed forces who are accused of crimes are not entitled to a grand jury proceeding.

living

But the existence of the dual court system and variations across the states and nation also mean that there are different courts in which a person could face charges for a crime or for a violation of another person's rights. Except for the fact that the U.S. Constitution binds judges and justices in all the courts, it is state law that governs the authority of state courts, so judicial rulings about what is legal or illegal may differ from state to state. These differences are particularly pronounced when the laws across the states and the nation are not the same, as we see with _______ laws today.

marijuana

Just as the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments did not result in equality for African Americans, the Nineteenth Amendment did not end discrimination against women in education, employment, or other areas of life, which continued to be legal. Although women could vote, they very rarely ran for or held public office. Women continued to be underrepresented in the professions, and relatively few sought advanced degrees. Until the mid-twentieth century, the ideal in U.S. society was typically for women to marry, have children, and become housewives. Those who sought work for pay outside the home were routinely denied jobs because of their sex and, when they did find employment, were paid less than _____. Women who wished to remain childless or limit the number of children they had in order to work or attend college found it difficult to do so. In some states it was illegal to sell contraceptive devices, and abortions were largely illegal and difficult for women to obtain.

men

More recently, in the wake of the 9/11 attacks on the World Trade Center and the Pentagon, the Bush and Obama administrations detained suspected terrorists captured both within and outside the United States and sought to avoid trials in civilian courts, and surveilled U.S. citizens to detect threats. Hence, there have been times in our history when ___________ issues trumped individual liberties.

national security

In September 2015, the U.S. Department of Interior, the same department that contains the Bureau of Indian Affairs, created guidelines for Native Hawaiians who wish to govern themselves in a relationship with the federal government similar to that established with Native American and Alaska Native tribes. Such a relationship would grant Native Hawaiians power to govern themselves while remaining U.S. citizens. Voting began in fall 2015 for delegates to a constitutional convention that would determine whether or not such a relationship should exist between Native Hawaiians and the federal government.121 When non-Native Hawaiians and some Native Hawaiians brought suit on the grounds that, by allowing only _______ Hawaiians to vote, the process discriminated against members of other ethnic groups, a federal district court found the election to be legal. While the Supreme Court stopped the election, in September 2016 a separate ruling by the Interior Department allowed for a referendum to be held. Native Hawaiians in favor are working to create their own nation.122

native

Rallies and protests on land that has other dedicated uses, such as roads and highways, can be limited to groups that have secured a permit in advance, and those organizing large gatherings may be required to give sufficient notice so government authorities can ensure there is enough security available. However, any such regulation must be viewpoint-________; the government may not treat one group differently than another because of its opinions or beliefs. For example, the government can't permit a rally by a group that favors a government policy but forbid opponents from staging a similar rally. Finally, there have been controversial situations in which government agencies have established free-speech zones for protesters during political conventions, presidential visits, and international meetings in areas that are arguably selected to minimize their public audience or to ensure that the subjects of the protests do not have to encounter the protesters.

neutral

The struggle to have rights clearly delineated and the decision of the framers to omit a bill of rights from the Constitution nearly derailed the ratification process. While some of the states were willing to ratify without any further guarantees, in some of the larger states—New York and Virginia in particular—the Constitution's lack of specified rights became a serious point of contention. The Constitution could go into effect with the support of only ____ states, but the Federalists knew it could not be effective without the participation of the largest states. To secure majorities in favor of ratification in New York and Virginia, as well as Massachusetts, they agreed to consider incorporating provisions suggested by the ratifying states as amendments to the Constitution.

nine (9)

The _________ amendment protects rights retained by the people, even if they are not specifically enumerated by the Constitution

ninth (9th)

case name: _________ year: 2015 court's decision: same-sex couples have the right to marry in all states

obergefell v Hodges

During ______ arguments, each side's lawyers have thirty minutes to make their legal case, though the justices often interrupt the presentations with questions. The justices consider oral arguments not as a forum for a lawyer to restate the merits of the case as written in the briefs, but as an opportunity to get answers to any questions they may have.59 When the United States is party to a case, the solicitor general (or one of the solicitor general's assistants) will argue the government's position; even in other cases, the solicitor general may still be given time to express the government's position on the dispute.

oral

With briefs filed, the Court hears __________ in cases from October through April. The proceedings are quite ceremonial. When the Court is in session, the robed justices make a formal entrance into the courtroom to a standing audience and the sound of a banging gavel. The Court's marshal presents them with a traditional chant: "The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! [Hear ye!] All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"58 It has not gone unnoticed that the Court, which has defended the First Amendment's religious protection and the traditional separation of church and state, opens its every public session with a mention of God.

oral arguments

However, laws and other "________________" (or written documents) alone have not protected freedoms over the years; instead, citizens have learned the truth of the old saying (often attributed to Thomas Jefferson but actually said by Irish politician John Philpot Curran), "Eternal vigilance is the price of liberty." The actions of ordinary citizens, lawyers, and politicians have been at the core of a vigilant effort to protect constitutional liberties.

parchment barriers

Like the Fourteenth Amendment's due process clause, the Fifth Amendment prohibits the federal government from depriving people of their "life, liberty, or property, without due process of law." Recall that due process is a guarantee that people will be treated fairly and impartially by government officials when the government seeks to fine or imprison them or take their personal property away from them. The courts have interpreted this provision to mean that government officials must establish consistent, fair procedures to decide when people's freedoms are limited. In other words, citizens cannot be detained, their freedom limited, or their property taken arbitrarily or on a whim by police or other government officials. As a result, an entire body of procedural safeguards comes into play for the legal prosecution of crimes. However, the ____________, passed into law after the 9/11 terrorist attacks, somewhat altered this notion.

patriot act

In 1990, the Supreme Court made a controversial decision substantially narrowing the Sherbert test in Employment Division v. Smith, more popularly known as "the _____ case."20 This case involved two men who were members of the Native American Church, a religious organization that uses the hallucinogenic peyote plant as part of its sacraments. After being arrested for possession of peyote, the two men were fired from their jobs as counselors at a private drug rehabilitation clinic. When they applied for unemployment benefits, the state refused to pay on the basis that they had been dismissed for work-related reasons. The men appealed the denial of benefits and were initially successful, since the state courts applied the Sherbert test and found that the denial of unemployment benefits burdened their religious beliefs. However, the Supreme Court ruled in a 6-3 decision that the "compelling governmental interest" standard should not apply; instead, so long as the law was not designed to target a person's religious beliefs in particular, it was not up to the courts to decide that those beliefs were more important than the law in question.

peyote

Where you are _______ located can affect not only what is allowable and what is not, but also how cases are judged. For decades, political scientists have confirmed that political culture affects the operation of government institutions, and when we add to that the differing political interests and cultures at work within each state, we end up with court systems that vary greatly in their judicial and decision-making processes. Each state court system operates with its own individual set of biases. People with varying interests, ideologies, behaviors, and attitudes run the disparate legal systems, so the results they produce are not always the same. Moreover, the selection method for judges at the state and local level varies. In some states, judges are elected rather than appointed, which can affect their rulings.

physically

Most people accused of crimes decline their right to a jury trial. This choice is typically the result of a _________ , an agreement between the defendant and the prosecutor in which the defendant pleads guilty to the charge(s) in question, or perhaps to less serious charges, in exchange for more lenient punishment than they might receive if convicted after a full trial. There are a number of reasons why this might happen. The evidence against the accused may be so overwhelming that conviction is a near-certainty, so the accused might decide that avoiding the more serious penalty (perhaps even the death penalty) is better than taking the small chance of being acquitted after a trial. Someone accused of being part of a larger crime or criminal organization might agree to testify against others in exchange for lighter punishment. At the same time, prosecutors might want to ensure a win in a case that might not hold up in court by securing convictions for offenses they know they can prove, while avoiding a lengthy trial on other charges they might lose.

plea bargain

In their role as _______, Congress and the president tend to consider broad questions of public policy and their costs and benefits. But the courts consider specific cases with narrower questions, thus enabling them to focus more closely than other government institutions on the exact context of the individuals, groups, or issues affected by the decision. This means that while the legislature can make policy through statute, and the executive can form policy through regulations and administration, the judicial branch can also influence policy through its rulings and interpretations. As cases are brought to the courts, court decisions can help shape policy.

policymakers

In states where the voting rights of poor white people were less of a concern, another tool for disenfranchisement was the ___________ (Figure 5.6). This was an annual per-person tax, typically one or two dollars (on the order of $20 to $50 today), that a person had to pay to register to vote. People who didn't want to vote didn't have to pay, but in several states the poll tax was cumulative, so if you decided to vote you would have to pay not only the tax due for that year but any poll tax from previous years as well. Because formerly enslaved people were usually quite poor, they were less likely than White men to be able to pay poll taxes.26

poll tax

Beyond the issues of contraception and abortion, the right to privacy has been interpreted to encompass a more general right for adults to have noncommercial, consensual sexual relationships in private. However, this legal development is relatively new; as recently as 1986, the Supreme Court ruled that states could still criminalize sex acts between two people of the same sex.77 That decision was overturned in 2003 in Lawrence v. Texas, which invalidated state laws that criminalized sodomy.78 The state and national governments still have leeway to regulate sexual morality to some degree; "anything goes" is not the law of the land, even for actions that are consensual. The Supreme Court has declined to strike down laws in a few states that outlaw the sale of vibrators and other sex toys. Prostitution remains illegal in every state except in certain rural counties in Nevada; both polygamy (marriage to more than one other person) and bestiality (sex with animals) are illegal everywhere. And, as we saw earlier, the states may regulate obscene materials and, in certain situations, material that may be harmful to minors or otherwise indecent; to this end, states and localities have sought to ban or regulate the production, distribution, and sale of ____________.

pornography

Unlike the other provisions of the Bill of Rights, this amendment focuses on _________ rather than rights. The courts have generally read the Tenth Amendment as merely stating, as Chief Justice Harlan Stone put it, a "truism that all is retained which has not been surrendered."63 In other words, rather than limiting the power of the federal government in any meaningful way, it simply restates what is made obvious elsewhere in the Constitution: the federal government has both enumerated and implied powers, but where the federal government does not (or chooses not to) exercise power, the states may do so. Others read this final "or" as capturing the essential question of U.S. political history: do the states who agreed to unite in a federal system remain sovereign, or once united, is it the federal government's responsibility to protect the power of the people—including against states that might infringe upon them?

power

The _________ set by each ruling, particularly by the Supreme Court's decisions, both builds on principles and guidelines set by earlier cases and frames the ongoing operation of the courts, steering the direction of the entire system. Reliance on precedent has enabled the federal courts to operate with logic and consistency that has helped validate their role as the key interpreters of the Constitution and the law—a legitimacy particularly vital in the United States where citizens do not elect federal judges and justices but are still subject to their rulings.

precedent

Both the executive and legislative branches check and balance the judiciary in many different ways. The _________ can leave a lasting imprint on the bench through nominations, even long after leaving office. The president may also influence the Court through the solicitor general's involvement or through the submission of amicus briefs in cases in which the United States is not a party.

president

Freedom of the press is an important component of the right to free expression as well. In Near v. Minnesota, an early case regarding press freedoms, the Supreme Court ruled that the government generally could not engage in ____________; that is, states and the federal government could not in advance prohibit someone from publishing something without a very compelling reason.30 This standard was reinforced in 1971 in the Pentagon Papers case, in which the Supreme Court found that the government could not prohibit the New York Times and Washington Post newspapers from publishing the Pentagon Papers.31 These papers included materials from a secret history of the Vietnam War that had been compiled by the military. More specifically, the papers were compiled at the request of Secretary of Defense Robert McNamara and provided a study of U.S. political and military involvement in Vietnam from 1945 to 1967. Daniel Ellsberg famously released passages of the Papers to the press to show that the United States had secretly enlarged the scope of the war by bombing Cambodia and Laos among other deeds while lying to the American public about doing so.

prior restraint

Critics of a broad interpretation of the Ninth Amendment point out that the Constitution provides ways to protect newly formalized rights through the amendment process. For example, in the nineteenth and twentieth centuries, the right to vote was gradually expanded by a series of constitutional amendments (the Fifteenth and Nineteenth), even though at times this expansion was the subject of great public controversy. However, supporters of a broad interpretation of the Ninth Amendment point out that the rights of the people—particularly people belonging to political or demographic minorities—should not be subject to the whims of popular majorities. One right the courts have said may be at least partially based on the Ninth Amendment is a general right to _______, discussed later in the chapter.

privacy

The answer to this question lies in the purpose of the discriminatory practice. In most cases when the courts are deciding whether discrimination is unlawful, the government has to demonstrate only that it has a good reason to do so. Unless the person or group challenging the law can prove otherwise, the courts will generally decide the discriminatory practice is allowed. In these cases, the courts are applying the _______________. That is, as long as there's a reason for treating some people differently that is "rationally related to a legitimate government interest," the discriminatory act or law or policy is acceptable.4 For example, since letting blind people operate cars would be dangerous to others on the road, the law forbidding them to drive is reasonably justified on the grounds of safety and is therefore allowed even though it discriminates against the blind. Similarly, when universities and colleges refuse to admit students who fail to meet a certain test score or GPA, they can discriminate against students with weaker grades and test scores because these students most likely do not yet possess the knowledge or skills needed to do well in their classes and graduate from the institution. The universities and colleges have a legitimate reason for denying these students entrance.

rational basis test

By the time of the Civil War, most Indian tribes had been relocated west of the Mississippi. However, once large numbers of White Americans and European immigrants had also moved west after the Civil War, Native Americans once again found themselves displaced. They were confined to __________, which are federal lands set aside for their use where non-Indians could not settle. Reservation land was usually poor, however, and attempts to farm or raise livestock, not traditional occupations for most western tribes anyway, often ended in failure. Unable to feed themselves, the tribes became dependent on the Bureau of Indian Affairs (BIA) in Washington, DC, for support. Protestant missionaries were allowed to "adopt" various tribes, to convert them to Christianity and thus speed their assimilation. In an effort to hasten this process, Indian children were taken from their parents and sent to boarding schools, many of them run by churches, where they were forced to speak English and abandon their traditional cultures.103

reservations

Although the term privacy does not appear in the Constitution or Bill of Rights, scholars have interpreted several Bill of Rights provisions as an indication that James Madison and Congress sought to protect a common-law ____________ as it would have been understood in the late eighteenth century: a right to be free of government intrusion into our personal life, particularly within the bounds of the home. For example, one could see the Second Amendment as standing for the common-law right to self-defense in the home; the Third Amendment as a statement that government soldiers should not be housed in anyone's home; the Fourth Amendment as setting a high legal standard for allowing agents of the state to intrude on someone's home; and the due process and takings clauses of the Fifth Amendment as applying an equally high legal standard to the government's taking a home or property (reinforced after the Civil War by the Fourteenth Amendment). Alternatively, one could argue that the Ninth Amendment anticipated the existence of a common-law right to privacy, among other rights, when it acknowledged the existence of basic, natural rights not listed in the Bill of Rights or the body of the Constitution itself.68 Lawyers Samuel D. Warren and Louis Brandeis (the latter a future Supreme Court justice) famously developed the concept of privacy rights in a law review article published in 1890.69

right to privacy

Civil _____, on the other hand, are guarantees that government officials will treat people equally and that decisions will be made on the basis of merit rather than race, gender, or other personal characteristics.

rights

In the 1960s and 1970s, many states had separate schools where only students of a certain race or gender were able to study. However, the courts decided that these policies violated the civil ______ of students who could not be admitted because of those rules.

rights

For example, imagine your state decides to fund a _____ voucher program that allows children to attend private and parochial schools at public expense; the vouchers can be used to pay for school books and transportation to and from school. Would this voucher program be constitutional? Let's start with the secular-purpose prong of the test. Educating children is a clear, non-religious purpose, so the law has a secular purpose. The law would neither inhibit nor advance religious practice, so that prong would be satisfied. The remaining question—and usually the one on which court decisions turn—is whether the law leads to excessive government entanglement with religious practice. Given that transportation and school books generally have no religious purpose, there is little risk that paying for them would lead the state to much entanglement with religion. The decision would become more difficult if the funding were unrestricted in use or helped to pay for facilities or teacher salaries; if that were the case, it might indeed be used for a religious purpose, and it would be harder for the government to ensure that it wasn't without audits or other investigations that could lead to too much government entanglement with religion. The use of education as an example is not an accident; in fact, many of the court's cases dealing with the establishment clause have involved education, particularly public education, because school-age children are considered a special and vulnerable population. Perhaps no subject affected by the First Amendment has been more controversial than the issue of prayer in public schools. Discussion about school prayer has been particularly fraught because in many ways it appears to bring the two religious liberty clauses into conflict with each other. The free exercise clause, discussed below, guarantees the right of individuals to practice their religion without government interference—and while the rights of children are not as extensive in all areas as those of adults, the courts have consistently ruled that the free exercise clause's guarantee of religious freedom applies to children as well. At the same time, however, government actions that require or encourage particular religious practices might infringe upon children's rights to follow their own religious beliefs and thus, in effect, be unconstitutional establishments of religion. For example, a teacher, an athletic coach, or even a student reciting a prayer in front of a class or leading students in prayer as part of the organized school activities constitutes an illegal establishment of religion.14 Yet a school cannot prohibit voluntary, non-disruptive prayer by its students, because that would impair the free exercise of religion. So although the blanket statement that "prayer in schools is illegal" or unconstitutional is incorrect, the establishment clause does limit official endorsement of religion, including prayers organized or otherwise facilitated by school authorities, even as part of off-campus or extracurricular activities.

school

In either case, the amendment indicates that government officials are required to apply for and receive a _________ prior to a search or seizure; this warrant is a legal document, signed by a judge, allowing police to search and/or seize persons or property. Since the 1960s, however, the Supreme Court has issued a series of rulings limiting the warrant requirement in situations where a person can be said to lack a "reasonable expectation of privacy" outside the home. Police can also search and/or seize people or property without a warrant if the owner or renter consents to the search, if there is a reasonable expectation that evidence may be destroyed or tampered with before a warrant can be issued (i.e., exigent circumstances), or if the items in question are in plain view of government officials.

search warrant

Beginning in 1897, the Supreme Court has found that various provisions of the Bill of Rights protecting these fundamental liberties must be upheld by the states, even if their state constitutions and laws (and the Tenth Amendment itself) do not protect them as fully as the Bill of Rights does—or at all. This means there has been a process of ___________ of the Bill of Rights into the practices of the states: the Constitution effectively inserts parts of the Bill of Rights into state laws and constitutions, even though it doesn't do so explicitly. When cases arise to clarify particular issues and procedures, the Supreme Court decides whether state laws violate the Bill of Rights and are therefore unconstitutional.

selective incorporation

When a vacancy occurs in a lower federal court, by custom, the president consults with that state's U.S. senators before making a nomination. Through such ___________, senators exert considerable influence on the selection of judges in their state, especially those senators who share a party affiliation with the president. In many cases, a senator can block a proposed nominee just by voicing opposition. Thus, a presidential nominee typically does not get far without the support of the senators from the nominee's home state.

senatorial courtesy

With Black people effectively disenfranchised, the restored southern state governments undermined guarantees of equal treatment in the Fourteenth Amendment. They passed laws that excluded African Americans from juries and allowed the imprisonment and forced labor of "idle" Black citizens. The laws also called for segregation of White and Black people in public places under the doctrine known as "_____________." As long as nominally equal facilities were provided for both races, it was legal to require members of each race to use the facilities designated for them. Similarly, state and local governments passed laws limiting neighborhoods in which Black and White people could live. Collectively, these discriminatory laws came to be known as Jim Crow laws. The Supreme Court upheld the separate but equal doctrine in 1896 in Plessy v. Ferguson, inconsistent with the Fourteenth Amendment's equal protection clause, and allowed segregation to continue.28

separate but equal

Although the Griswold case originally pertained only to married couples, in 1972 it was extended to apply the right to obtain contraception to unmarried people as well.71 Although neither decision was entirely without controversy, the "________________" taking place at the time may well have contributed to a sense that anti-contraception laws were at the very least dated, if not in violation of people's rights. The contraceptive coverage controversy surrounding the Hobby Lobby case shows that this topic remains relevant.

sexual revolution

The ______ amendment protects the right to a speedy trial by an impartial jury

sixth (6th)

In the Declaration of Independence, Thomas Jefferson made the radical statement that "all men are created equal" and "are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Yet, like other wealthy landowners of his time, Jefferson also owned dozens of other human beings as his personal property. He recognized this contradiction, personally considered the institution of ________ to be a "hideous blot" on the nation, and agreed to free those he held in bondage upon his death.13 However, to forge a political union that would stand the test of time, he and the other founders—and later the framers of the Constitution—chose not to address the issue in any definitive way. Political support for abolition was very much a minority stance in the United States at the time, although after the Revolution many of the northern states followed the European example of fifty years prior in abolishing slavery.14

slavery

Take, for example, rulings on _______ laws: In 1986, the Supreme Court upheld the constitutionality of the State of Georgia's ban on sodomy,63 but it reversed its decision seventeen years later, invalidating sodomy laws in Texas and thirteen other states.64 No doubt the Court considered what had been happening nationwide: In the 1960s, sodomy was banned in all the states. By 1986, that number had been reduced by about half. By 2002, thirty-six states had repealed their sodomy laws, and most states were only selectively enforcing them. Changes in state laws, along with an emerging LGBTQ movement, no doubt swayed the Court and led it to the reversal of its earlier ruling with the 2003 decision, Lawrence v. Texas (Figure 13.13).65 This decision was an especially important one because it meant all prior and existing laws that formally made same-sex relationships illegal were null and void. Heralded by advocates of gay rights as important progress toward greater equality, the ruling in Lawrence v. Texas illustrates that the Court is willing to reflect upon what is going on in the world. Even with their heavy reliance on precedent and reluctance to throw out past decisions, justices are not completely inflexible and do tend to change and evolve with the times.

sodomy

The ___________ is the lawyer who represents the federal government before the Supreme Court: He or she decides which cases (in which the United States is a party) should be appealed from the lower courts and personally approves each one presented. Most of the cases the solicitor general brings to the Court will be given a place on the docket. About two-thirds of all Supreme Court cases involve the federal government.

solicitor general

The first of these guarantees in the sixth amendment is the right to have a _________ trial by an impartial jury. Although there is no absolute limit on the length of time that may pass between an indictment and a trial, the Supreme Court has said that excessively lengthy delays must be justified and balanced against the potential harm to the defendant. In effect, the speedy trial requirement protects people from being detained indefinitely by the government. Yet the courts have ruled that there are exceptions to the public trial requirement; if a public trial would undermine the defendant's right to a fair trial, it can be held behind closed doors, while prosecutors can request closed proceedings only in certain, narrow circumstances (generally, to protect witnesses from retaliation or to guard classified information). In general, a prosecution must also be made in the "state and district" where the crime was committed; however, people accused of crimes may ask for a change of venue for their trial if they believe pre-trial publicity or other factors make it difficult or impossible for them to receive a fair trial where the crime occurred.

speedy, public

Every Court opinion sets precedent for the future. The Supreme Court's decisions are not always unanimous, however; the published majority opinion, or explanation of the justices' decision, is the one with which a majority of the nine justices agree. It can represent a vote as narrow as five in favor to four against. A tied vote is rare but can occur at a time of vacancy, absence, or abstention from a case, perhaps where there is a conflict of interest. In the event of a tied vote, the decision of the lower court __________

stands

The U.S. court system operates on the principle of _____ (Latin for stand by things decided), which means that today's decisions are based largely on rulings from the past, and tomorrow's rulings rely on what is decided today. Stare decisis is especially important in the U.S. common law system, in which the consistency of precedent ensures greater certainty and stability in law and constitutional interpretation, and it also contributes to the solidity and legitimacy of the court system itself. As former Supreme Court justice Benjamin Cardozo summarized it years ago, "Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts."

stare decisis

When the legal facts of one case are the same as the legal facts of another, _______ dictates that they should be decided the same way, and judges are reluctant to disregard precedent without justification. However, that does not mean there is no flexibility or that new precedents or rulings can never be created. They often are. Certainly, court interpretations can change as times and circumstances change—and as the courts themselves change when new judges are selected and take their place on the bench. For example, the membership of the Supreme Court had changed entirely between Plessey v. Ferguson (1896), which brought the doctrine of "separate but equal" and Brown v. Board of Education (1954), which required integration.

stare decisis

Although the Supreme Court tends to draw the most public attention, it typically hears fewer than one hundred cases every year. In fact, the entire federal side—both trial and appellate—handles proportionately very few cases, with about 90 percent of all cases in the U.S. court system being heard at the _____ level.29 The several hundred thousand cases handled every year on the federal side pale in comparison to the several million handled by the states.

state

State courts vary in the degree to which they take on certain types of cases or issues, give access to particular groups, or promote certain interests. If a particular issue or topic is not taken up in one place, it may be handled in another, giving rise to many different opportunities for an interest to be heard somewhere across the nation. In their research, Paul Brace and Melinda Hall found that ________ courts are important instruments of democracy because they provide different alternatives and varying arenas for political access. They wrote, "Regarding courts, one size does not fit all, and the republic has survived in part because federalism allows these critical variations."

state

_____ courts hear most day-to-day cases, covering 90 percent of all cases

state

________ courts hear both civil and criminal matters

state

Since Marbury, the power of judicial review has continually expanded, and the Court has not only ruled actions of Congress and the president to be unconstitutional, but it has also extended its power to include the review of _____ and _____ actions. The power of judicial review is not confined to the Supreme Court but is also exercised by the lower federal courts and even the state courts. Any legislative or executive action at the federal or state level inconsistent with the U.S. Constitution or a state constitution can be subject to judicial review.

state and local

These state protections do not extend the other way, however. If the federal government passes a law or adopts a constitutional amendment that restricts rights or liberties, or a Supreme Court decision interprets the Constitution in a way that narrows these rights, the ______ protection no longer applies. For example, if Congress decided to outlaw hunting and fishing and the Supreme Court decided this law was a valid exercise of federal power, the state constitutional provisions that protect the right to hunt and fish would effectively be meaningless. More concretely, federal laws that control weapons and drugs override state laws and constitutional provisions that otherwise permit them. While federal marijuana policies are not strictly enforced, state-level marijuana policies in Colorado and Washington provide a prominent exception to that clarity.

state's

Looking back, it's relatively easy to identify civil rights issues that arose, looking into the future is much harder. For example, few people fifty years ago would have identified the rights of gay or transgender Americans as an important civil rights issue, or predicted it would become one. Similarly, in past decades the rights of those with disabilities, particularly intellectual disabilities, were often ignored by the public at large. Many people with disabilities were institutionalized and given little further thought, and until very recently, laws remained on the books in some states allowing those with intellectual or developmental disabilities to be subject to forced _______________. Today, most of us view this treatment as barbaric. Clearly, then, new civil rights issues can emerge over time. How can we, as citizens, identify them as they emerge and distinguish genuine claims of discrimination from claims by those who have merely been unable to convince a majority to agree with their viewpoints? For example, how do we decide if sixteen-year-olds are discriminated against because they are not allowed to vote, as some U.S. lawmakers are starting to suggest? We can identify true discrimination by applying the following analytical process: Which groups? First, identify the group of people who are facing discrimination. Which right(s) are threatened? Second, what right or rights are being denied to members of this group? What do we do? Third, what can the government do to bring about a fair situation for the affected group? Is proposing and enacting such a remedy realistic?

sterilization

Discrimination against members of racial, ethnic, or religious groups or those of various national origins is reviewed to the greatest degree by the courts, which apply the __________ standard in these cases. Under strict scrutiny, the burden of proof is on the government to demonstrate that there is a compelling governmental interest in treating people from one group differently from those who are not part of that group—the law or action can be "narrowly tailored" to achieve the goal in question, and that it is the "least restrictive means" available to achieve that goal.9 In other words, if there is a non-discriminatory way to accomplish the goal in question, discrimination should not take place. In the modern era, laws and actions that are challenged under strict scrutiny have rarely been upheld. Strict scrutiny, however, was the legal basis for the Supreme Court's 1944 upholding of the legality of the internment of Japanese Americans during World War II, discussed later in this chapter.

strict scrutiny

Although women had few rights, they nevertheless played an important role in transforming American society. This was especially true in the 1830s and 1840s, a time when numerous social reform movements swept across the United States. In 1832, for example, African American writer and activist Maria W. Stewart became the first American-born woman to give a speech to a mixed audience. While there was racism within the ________ movement, including calls for segregated marches and a lack of scrutiny on the topic of lynchings, many women were active in the abolition movement and the temperance movement, which tried to end the excessive consumption of liquor.64 They often found they were hindered in their efforts, however, either by the law or by widely held beliefs that they were weak, silly creatures who should leave important issues to men.65 One of the leaders of the early women's movement, Elizabeth Cady Stanton (Figure 5.11), was shocked and angered when she sought to attend an 1840 antislavery meeting in London, only to learn that women would not be allowed to participate and had to sit apart from the men. At this convention, she made the acquaintance of another American woman abolitionist, Lucretia Mott (Figure 5.11), who was also appalled by the male reformers' treatment of women.66

suffrage

Court decisions are released at different times throughout the Court's term, but all opinions are announced publicly before the Court adjourns for the _________. Some of the most controversial and hotly debated rulings are released near or on the last day of the term and thus are avidly anticipated

summer

Other recent movements are more troubling, notably the increased presence and influence of White nationalism throughout the country. This movement espouses White _______ and does not shrink from the threat or use of violence to achieve it. Such violence occurred in Charlottesville, Virginia, in August 2017, when various White supremacist groups and alt-right forces joined together in a "Unite the Right" rally (Figure 5.10). This rally included chants and racial slurs against African Americans and Jews. Those rallying clashed with counter-protestors, one of whom died when an avowed Neo-Nazi deliberately drove his car into a group of peaceful protestors. He has since been convicted and sentenced to life in prison for his actions. This event sent shockwaves through U.S. politics, as leaders tried to grapple with the significance of the event. President Trump said that "good people existed on both sides of the clash," and later, for inciting a group of protesters to storm the Capitol after a rally of his in which he repeated the false claim that the election had been stolen from him.57

supremacy

In the 1960s, however, the Supreme Court's rulings on free expression became more liberal, in response to the Vietnam War and the growing antiwar movement. In a 1969 case involving the Ku Klux Klan, Brandenburg v. Ohio, the Supreme Court found that only speech or writing that constituted a direct call or plan to imminent lawless action, an illegal act in the immediate future, could be suppressed; the mere advocacy of a hypothetical revolution was not enough.27 The Supreme Court also found that various forms of __________—wearing clothing like an armband that carried a political symbol or raising a fist in the air, for example—were subject to the same protections as written and spoken communication. More recently, symbolic speech related to the U.S. flag has engendered intense debate. Whether one should kneel during the national anthem, or ought to be able to burn the U.S. flag, are key questions.

symbolic speech

Perhaps no act of ___________ has been as controversial in U.S. history as the burning of the flag (Figure 4.9). Citizens tend to revere the flag as a unifying symbol of the country in much the same way most people in Britain would treat the reigning queen (or king). States and the federal government have long had laws protecting the flag from being desecrated—defaced, damaged, or otherwise treated with disrespect. Perhaps in part because of these laws, people who have wanted to drive home a point in opposition to U.S. government policies have found desecrating the flag a useful way to gain public and press attention to their cause.

symbolic speech

Today's federal court _____ was not an overnight creation; it has been changing and transitioning for more than two hundred years through various acts of Congress. Since district courts are not called for in Article III of the Constitution, Congress established them and narrowly defined their jurisdiction, at first limiting them to handling only cases that arose within the district. Beginning in 1789 when there were just thirteen, the district courts became the basic organizational units of the federal judicial system. Gradually over the next hundred years, Congress expanded their jurisdiction, in particular over federal questions, which enables them to review constitutional issues and matters of federal law. In the Judicial Code of 1911, Congress made the U.S. district courts the sole general-jurisdiction trial courts of the federal judiciary, a role they had previously shared with the circuit courts.36

system

Some have credited Donald B. Verrilli, the solicitor general under President Obama, with holding special sway over the five-justice majority ruling on same-sex marriage in June 2015. Indeed, his position that denying same-sex couples the right to marry would mean "thousands and thousands of people are going to live out their lives and go to their deaths without their states ever recognizing the equal dignity of their relationships" became a foundational point of the Court's opinion, written by then-Justice Anthony Kennedy. With such power over the Court, the solicitor general is sometimes referred to as "the _____ justice."

tenth

The current court is fairly diverse in terms of gender, religion (Christians and Jews), ethnicity, and ideology, as well as length of tenure. Some justices have served for three decades, whereas others were only recently appointed by President Trump. Figure 13.9 lists the names of the nine justices serving on the Court as of June 2021 along with their year of appointment and the president who nominated ___

them

The ________ amendment protects the right to not house soldiers during time of war

third (3rd)

Congress has made numerous changes to the federal judicial system throughout the years, but the _______-tiered structure of the system is quite clear-cut today. Federal cases typically begin at the lowest federal level, the district (or trial) court. Losing parties may appeal their case to the higher courts—first to the circuit courts, or U.S. courts of appeals, and then, if chosen by the justices, to the U.S. Supreme Court. Decisions of the higher courts are binding on the lower courts.

three

Currently, there are six justices who are considered part of the Court's more conservative wing—Chief Justice Roberts and Associate Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—while _____ are considered more liberal-leaning—Justices Breyer, Sotomayor, and Kagan (Figure 13.10).

three

This happened, for example, as recently as 2015 in a case involving the use of lethal injection as capital punishment in the state of Oklahoma, where death-row inmates are put to death through the use of ______ drugs—a sedative to bring about unconsciousness (midazolam), followed by two others that cause paralysis and stop the heart. A group of these inmates challenged the use of midazolam as unconstitutional. They argued that since it could not reliably cause unconsciousness, its use constituted an Eighth Amendment violation against cruel and unusual punishment and should be stopped by the courts. The Supreme Court rejected the inmates' claims, ruling that Oklahoma could continue to use midazolam as part of its three-drug protocol.23 But with four of the nine justices dissenting from that decision, a sharply divided Court leaves open a greater possibility of more death-penalty cases to come. The 2015-2016 session alone includes four such cases, challenging death-sentencing procedures in such states as Florida, Georgia, and Kansas.24 In another recent case, Bucklew v. Precythe (2019), the court again rejected an Eighth Amendment claim of the death penalty as torture.25 Yet, while case outcomes would suggest that it is easier, not harder, to carry out the death penalty, the number of executions across the U.S. has plummeted in recent years.

three

The next year, in Worcester v. Georgia, the Court ruled that non-Native Americans could not enter tribal lands without the tribe's permission. White Georgians, however, refused to abide by the Court's decision, and President Andrew Jackson, a former Indian fighter, refused to enforce it.101 Between 1831 and 1838, members of several southern tribes, including the Cherokees, were forced by the U.S. Army to move west along routes shown in Figure 5.15. The forced removal of the Cherokees to Oklahoma Territory, which had been set aside for settlement by displaced tribes and designated Indian Territory, resulted in the death of one-quarter of the tribe's population.102 The Cherokees remember this journey as the ______________

trail of tears

Typically, a person charged with a serious crime will have a brief hearing before a judge to be informed of the charges against the person, to be made aware of the right to counsel, and to enter a plea. Other hearings may be held to decide on the admissibility of evidence seized or otherwise obtained by prosecutors. If the two sides cannot agree on a plea bargain during this period, the next stage is the selection of a jury. A pool of potential jurors is summoned to the court and screened for impartiality, with the goal of seating twelve (in most states) and one or two alternates. All hear the evidence in the trial and unless an alternate must serve, the original twelve decide whether the evidence overwhelmingly points toward guilt, or innocence beyond a reasonable doubt. In the ________ itself, the lawyers for the prosecution and defense make opening arguments, followed by testimony by witnesses for the prosecution (and any cross-examination), and then testimony by witnesses for the defense, including the defendant if the defendant chooses. Additional prosecution witnesses may be called to rebut testimony by the defense. Finally, both sides make closing arguments. The judge then issues instructions to the jury, including an admonition not to discuss the case with anyone outside the jury room. The jury members leave the courtroom to enter the jury room and begin their deliberations. The jurors pick a foreman or forewoman to coordinate their deliberations. They may ask to review evidence or to hear transcripts of testimony. They deliberate in secret and their decision must be unanimous. If they are unable to agree on a verdict after extensive deliberation, a mistrial may be declared, which in effect requires the prosecution to try the case all over again. A defendant found not guilty of all charges will be immediately released unless other charges are pending (e.g., the defendant is wanted for a crime in another jurisdiction). If the defendant is found guilty of one or more offenses, the judge will choose an appropriate sentence based on the law and the circumstances. In the federal system, this sentence will typically be based on guidelines that assign point values to various offenses and facts in the case. If the prosecution is pursuing the death penalty, the jury will decide whether the defendant should be subject to capital punishment or life imprisonment. The reality of court procedure is much less dramatic and exciting than what is typically portrayed in television shows and movies. Nonetheless, most Americans will participate in the legal system at least once in their lives as a witness, juror, or defendant.

trial

In another important recent development, several federal court cases have raised standing for Native American tribes to sue to regain former reservation lands lost to the U.S. government. Through a key 5-4 decision by the Supreme Court in McGirt v. Oklahoma, Native Americans realized the most important advancement in rights since the reapplication of the Winters Doctrine (which led to a stronger footing for tribes in water negotiations). 116 The initial case taken up by the Court in 2019, Carpenter v. Murphy, which revolved around a murder case in Oklahoma, became quite salient, given the history of the Trail of Tears. At issue was whether Mr. Murphy committed murder on private land in the state of Oklahoma or on the Muscogee (Creek) reservation and who should have jurisdiction over his case. If the court decided to proclaim the land as a reservation, that would potentially lead to half the State of Oklahoma being designated as such.117 After hearing arguments in late 2018, they did not hand down a decision in 2019. However, in the follow-up case, McGirt v. Oklahoma, the Court took the step that strengthened Native American rights. The landmark decision held that a large part of Oklahoma is _________ land. Moreover, the court argued that crimes committed on those lands are subject to federal, not state authority. In this case, Jimcy McGirt was convicted in Oklahoma state court in 1997 of various sexual crimes. McGirt challenged the conviction on the basis that Oklahoma lacked jurisdiction to prosecute a member of the Muscogee Creek Nation tribe for crimes committed on tribal land.118

tribal

Beyond these favorable court rulings, however, progress toward equality for African Americans remained slow in the 1950s. In 1962, Congress proposed what later became the ___________ Amendment, which banned the poll tax in elections to federal (but not state or local) office; the amendment went into effect after being ratified in early 1964. Several southern states continued to require residents to pay poll taxes in order to vote in state elections until 1966 when, in the case of Harper v. Virginia Board of Elections, the Supreme Court declared that requiring payment of a poll tax in order to vote in an election at any level was unconstitutional.39

twenty-fourth

As this chapter has suggested, the provisions of the Bill of Rights have been interpreted and reinterpreted repeatedly over the past two centuries. However, the first eight amendments are largely silent on the status of traditional common law, which was the legal basis for many of the natural rights claimed by the framers in the Declaration of Independence. These amendments largely reflect the worldview of the time in which they were written. New technology, societal norms, and economic realities furnish challenges that fail to fit neatly into the framework established in the late eighteenth century. In this section, we consider the final ____ amendments of the Bill of Rights and the way they affect our understanding of the Constitution as a whole. Rather than protecting specific rights and liberties, the Ninth and Tenth Amendments indicate how the Constitution and the Bill of Rights should be interpreted, and lay out the residual powers of the state governments. We will also examine privacy rights, an area the Bill of Rights does not address directly. Rather, the emergence of defined privacy rights demonstrates how the Ninth and Tenth Amendments have been applied to expand the scope of rights protected by the Constitution.

two

Perhaps the most famous of the tools of disenfranchisement were literacy tests and _________ tests. Understanding tests required the prospective voter to explain the meaning of a particular passage of text, often a provision of the U.S. Constitution, or answer a series of questions related to citizenship. Again, since the official examining the prospective voter could decide which passage or questions to choose, the difficulty of the test might vary dramatically between African American and white applicants.22 Even had these tests been administered fairly and equitably, however, most African Americans would have been at a huge disadvantage, because few had been taught to read. Although schools for Black people had existed in some places, southern states had made it largely illegal to teach enslaved people to read and write. At the beginning of the Civil War, only 5 percent of Black people could read and write, and most of them lived in the North.23 Some were able to take advantage of educational opportunities after they were freed, but many were not able to gain effective literacy.

understanding

Starting in the 1980s, Supreme Court justices appointed by Republican presidents began to roll back the Roe decision. A key turning point was the court's ruling in Planned Parenthood v. Casey in 1992, in which a plurality of the court rejected Roe's framework based on trimesters of pregnancy and replaced it with the _______________, which allows restrictions prior to viability that are not "substantial obstacle[s]" (undue burdens) to women seeking an abortion.74 Thus, the court upheld some state restrictions, including a required waiting period between arranging and having an abortion, parental consent (or, if not possible for some reason such as incest, authorization of a judge) for minors, and the requirement that women be informed of the health consequences of having an abortion. Other restrictions such as a requirement that a married woman notify her spouse prior to an abortion were struck down as an undue burden. Since the Casey decision, many states have passed other restrictions on abortions, such as banning certain procedures, requiring women to have and view an ultrasound before having an abortion, and implementing more stringent licensing and inspection requirements for facilities where abortions are performed. Although no majority of Supreme Court justices has ever moved to overrule Roe, the restrictions on abortion the Court has upheld in the last few decades have made access to abortions more difficult in many areas of the country, particularly in rural states and communities along the U.S.-Mexico border (Figure 4.19). However, in Whole Woman's Health v. Hellerstedt (2016), the Court reinforced Roe 5-3 by disallowing two Texas state regulations regarding the delivery of abortion services.75 Yet, the issue is far from settled, as the Supreme Court decided in May 2021 to hear in their next term a Mississippi case that would roll back abortion rights considerably. The case would disallow abortions after fifteen weeks.76

undue burden test

Furthermore, the courts have recognized that government officials and other public figures might try to silence press criticism and avoid unfavorable news coverage by threatening a lawsuit for defamation of character. In the 1964 New York Times v. Sullivan case, the Supreme Court decided that public figures needed to demonstrate not only that a negative press statement about them was _______ but also that the statement was published or made with either malicious intent or "reckless disregard" for the truth.32 This ruling made it much harder for politicians to silence potential critics or to bankrupt their political opponents through the courts.

untrue

The requirement of probable cause also applies to arrest warrants. A person cannot generally be detained by police or taken into custody without a warrant, although most states allow police to arrest someone suspected of a felony crime without a warrant so long as probable cause exists, and police can arrest people for minor crimes or misdemeanors they have witnessed themselves. The Supreme Court's 2012 and 2018 decisions in United States v. Jones and Carpenter v. United States extended the prohibition of illegal search and seizure to _________ location tracking, either by installing a GPS device, as in the Jones case, or by accessing that information provided to cellular companies, as in Carpenter.

warrantless

From the very beginning of European settlement in North America, Native Americans were abused and exploited. Early British settlers attempted to enslave the members of various tribes, especially in the southern colonies and states.95 Following the American Revolution, the U.S. government assumed responsibility for conducting negotiations with Indian tribes, all of which were designated as sovereign nations, and regulating commerce with them. Because Indians were officially regarded as citizens of other nations, they were denied U.S. citizenship.96 As White settlement spread ___________ over the course of the nineteenth century, Indian tribes were forced to move from their homelands. Although the federal government signed numerous treaties guaranteeing Indians the right to live in the places where they had traditionally farmed, hunted, or fished, land-hungry White settlers routinely violated these agreements and the federal government did little to enforce them.97

westward

Although these methods were usually sufficient to ensure that Black people were kept away from the polls, some dedicated African Americans did manage to register to vote despite the obstacles placed in their way. To ensure their vote was largely meaningless, the White elites used their control of the Democratic Party to create the ___________: primary elections in which only White people were allowed to vote. The state party organizations argued that as private groups, rather than part of the state government, they had no obligation to follow the Fifteenth Amendment's requirement not to deny the right to vote on the basis of race. Furthermore, they contended, voting for nominees to run for office was not the same as electing those who would actually hold office. So they held primary elections to choose the Democratic nominee in which only White citizens were allowed to vote.27 Once the nominee had been chosen, they might face token opposition from a Republican or minor-party candidate in the general election, but since White voters had agreed beforehand to support whoever won the Democrats' primary, the outcome of the general election was a foregone conclusion.

white primary

Sandra Day O'Connor, nominated in 1981, was the first ______ on the supreme court justice

woman

subjects. It was a scathing legal indictment of King George III for violating the colonists' liberties. Although the Declaration of Independence does not guarantee specific freedoms, its language was instrumental in inspiring many of the states to adopt protections for civil liberties and rights in their own constitutions, and in expressing principles of the founding era that have resonated in the United States since its independence. In particular, Jefferson's words "all men are created equal" became the centerpiece of struggles for the rights of __________________

women and minorities

Along with African Americans, women of all races and ethnicities have long been discriminated against in the United States, and the women's rights movement began at the same time as the movement to abolish slavery in the United States. Indeed, the women's movement came about largely as a result of the difficulties women encountered while trying to abolish slavery. The trailblazing Seneca Falls Convention for ____________ was held in 1848, a few years before the Civil War. But the abolition and African American civil rights movements largely eclipsed the women's movement throughout most of the nineteenth century. Women began to campaign actively again in the late nineteenth and early twentieth centuries, and another movement for women's rights began in the 1960s.

women's rights