Chapter 4: Civil Liberties

Miranda rights were established by the Supreme Court as an extension of __________ rights.

Fifth amendment

Establishment Clause

Freedom from the state imposing any particular religion

4th Amendment

Freedom from unnecessary search and seizure

1st Amendment

Freedom of speech

The _________ is primarily concerned with Congress sponsoring or favoring a specific rigion

Establishment clause

Which clause of the Bill of Rights has been interpreted to require a virtual wall of separation to exist between church and state?

Establishment clause

The rule that prohibits evidence obtained during an illegal search from being introduced in a trial is called the ______ rule

Exclusionary

The right to privacy was established in which case?

Griswold v. Connecticut

The exclusionary rule was established in which Supreme Court case?

Mapp v. Ohio

Bill of rights

The first 10 amendments to the U.S constitution

The Supreme Court ruled in Lawrence v. Texas that the right to privacy

extends to homosexuals.

Of the following, which kind of speech is the least protected?

fighting words

Ex post facto laws

laws that declare an action to be illegal after it has been committed.

Civil liberties are

limitations on government action.

Substantive limits

limits on what the government can or cannot do

The Bill of Rights initially applied to the ___________ government(s), while today the Bill of Rights applies to the __________________ government(s).

national; national and state

The right to privacy is explicitly granted

nowhere in the Constitution.

The concept of selective incorporation means that

only some of the liberties in the Bill of Rights are applied to the states.

Which of the following civil liberties has been strengthened over time?

right to an attorney (6th amendment)

9th Amendment

right to privacy

The judicial doctrine that places a heavy burden of proof on the government when it seeks to regulate or restrict speech is called

strict scrutiny

The Bill of Rights consists of

the first ten amendments to the U.S. Constitution.

In their argument against the need for the addition of a bill of rights, Hamilton and the Federalists pointed to rights already contained within the original text of the Constitution, such as

the right of habeas corpus.

The Second Amendment concerns

the right to bear arms.

A Brief History of the Bill of Rights

1. Civil liberties are protections from improper government action. Some of these restraints are substantive liberties, which put limits on what the government shall and shall not have power to do. Other restraints are procedural liberties, which deal with how the government is supposed to act. Civil liberties require a delicate balance between governmental power and governmental restraint. 2. Despite the insistence of Alexander Hamilton that a bill of rights was both unnecessary and dangerous, adding a list of explicit rights was the most important item of business for the 1st Congress in 1789. 3. The Bill of Rights, generally considered to be the first ten amendments to the Constitution, is made up of provisions that protect citizens from improper government action. 4. In 1833, the Supreme Court found that the Bill of Rights limited only the national government and not state governments. 5. Although the language of the Fourteenth Amendment seems to indicate that the protections of the Bill of Rights apply to state governments as well as to the national government, for the remainder of the nineteenth century the Supreme Court (with only one exception) made decisions as if the Fourteenth Amendment had never been adopted. 6. As of 1961, only the First Amendment and one clause of the Fifth Amendment had been "selectively incorporated" into the Fourteenth Amendment. After 1961, however, most of the provisions of the Bill of Rights were gradually incorporated into the Fourteenth Amendment and applied to the states.

The First Amendment and Freedom of Speech and the Press

1. Freedom of speech and the press have a special place in American political thought. Democracy depends on the ability of individuals to talk to each other and to disseminate information and ideas. 2. The extent and nature of certain types of expression are subject to constitutional debate. The Supreme Court must balance the protection of political speech with issues such as national security and fairness in campaign finance. 3. Among the forms of speech that are absolutely protected are the truth, political speech, symbolic speech, and "speech plus," which is speech plus a physical activity such as picketing. The forms of speech that are currently only conditionally protected include libel and slander; obscenity and pornography; fighting words and hate speech; and commercial speech. 4. Freedom of speech generally implies freedom of the press. With the exception of the broadcast media, which are subject to federal regulation, the press is protected under the doctrine of prior restraint (efforts by a governmental agency to block the publication of material it deems libelous or harmful in some other way; in other words, censorship).

The Second Amendment and the Right to Bear Arms

1. In constitutional terms, the Second Amendment may protect a citizen's right to bear arms, but this right can be regulated by both state and federal law. 2. In 2008, the Supreme Court struck down a District of Columbia law that was designed to make it nearly impossible for private individuals to legally purchase firearms. The Court declared in the Heller case that the Second Amendment protects an individual's right to possess a firearm for private use. 3. In June 2010, the Supreme Court incorporated the Second Amendment and applied it to the states when it announced its verdicts in the cases of McDonald v. Chicago. The Court declared that the right to keep and bear arms was protected from state as well as federal action.

The Right to Privacy

1. In the case of Griswold v. Connecticut, the Supreme Court found a right of privacy in a combination of the Third, Fourth, and Fifth amendments to the Constitution. This right was confirmed and extended in 1973 in the case of Roe v. Wade. 2. Cases concerning the scope of right to privacy have included debates over birth control, abortion, gay and lesbian rights, and withdrawal of life-sustaining medical support.

Rights of the Criminally Accused

1. The Fourth, Fifth, Sixth, and Eighth amendments, taken together, are the essence of the due process of law, the right of every citizen against arbitrary action by national or state governments. 2. The purpose of due process is to equalize the playing field between the accused individual and the all-powerful state. Due process helps define the limits of government action against the personal liberty of every citizen. 3. One of America's traditional and most strongly held juridical values is that "it is far worse to convict an innocent man than to let a guilty man go free." 4. The Fourth Amendment protects against unreasonable searches and seizures. One of the most important procedures that has grown out of the Supreme Court's interpretation of the Fourth Amendment is the exclusionary rule, which prohibits evidence obtained during an illegal search from being introduced in a trial. 5. The Fifth Amendment requires a grand jury for most crimes, protects against double jeopardy, and provides that you cannot be forced to testify against yourself. 6. Miranda v. Arizona advanced the civil liberties of accused persons not only by expanding the scope of the Fifth Amendment clause covering coerced confessions and self-incrimination but also by confirming the right to counsel, a provision of the Sixth Amendment. 7. The other fundamental clause of the Fifth Amendment is the takings clause, which extends to each citizen a protection against the "taking" of private property "without just compensation." The purpose of the takings clause is to put limits on the power of eminent domain through procedures that require a showing of a public purpose and the provision of fair payment for the taking of someone's property. 8. The Sixth Amendment requires a speedy trial and the right to witnesses and counsel. 9. The Eighth Amendment prohibits cruel and unusual punishment. One of the greatest challenges in interpreting this provision consistently is that what is considered "cruel and unusual" varies from culture to culture and from generation to generation.

The First Amendment and Freedom of Religion

1. The establishment clause of the First Amendment has been interpreted in several ways, one being the strict separation of church and state. But there is significant disagreement about how high that wall is and of what materials it is composed. 2. The Supreme Court's test from Lemon v. Kurtzmann determined that government aid to religious schools would be accepted as constitutional if (1) it had a secular purpose, (2) its effect was neither to advance nor to inhibit religion, and (3) it did not entangle government and religious institutions in each other's affairs. 3. The free exercise clause protects the right to believe and to practice whatever religion one chooses; it also involves protection of the right to be a nonbeliever. The Supreme Court has taken pains to distinguish between religious beliefs and actions based on those beliefs.

Thinking Critically about the Future of Civil Liberties

1. The tension between liberty and national security is evident in debates over government action in the wake of 9/11.

3rd Amendment

Cannot arbitrarily take houses for militia

The Religious Freedom Restoration Act (RFRA) was

Congress's attempt to overturn Supreme Court decisions regarding free exercise of religion

In 2008, the U.S. Supreme Court declared that the Second Amendment protects

an individual's right to possess a firearm for private use.

Free exercise clause

Freedom to practice religion of choice without state interference

Slander

an oral statement made in 'reckless disregard of the truth' that is considered damaging to the victim because it is 'malicious, scandalous, and defamatory.'

Procedural limits

rules regarding how the government must act

The Second Amendment right to bear arms was applied to the states via selective incorporation in

McDonald v. Chicago

The Second Amendment right to bear arms was applied to the states via selective incorporation in

McDonald v. Chicago.

7th Amendment

Neither bail nor punishment can be exessive

Which 1937 Supreme Court case established the principle of selective incorporation?

Palko v. Connecticut

_______________ liberties place restraints on how government is supposed to act, while ____________ liberties limits what the government has the power to do.

Procedural; substantive

2nd Amendment

Right to bear arms

6th Amendment

Right to counsel

___________ limit what the government can do, while ________ define how the government can act

Substantive liberties; procedural liberties

Dollree Mapp was convicted through evidence obtained through an illegal police search. What happened in her case?

The Supreme Court ruled that the illegal evidence could not be used in court.

Why did Heller v. District of Columbia fail to incorporate against the states the Second Amendment right to bear arms?

The case concerned the actions of the federal government and its territories.

Which of the following statements best reflects the nature of the Bill of Rights?

The rights guaranteed by the Bill of Rights have varied over time, according to decisions by the Supreme Court.

Habeas corpus

a court order demanding that an individual in custody be brought into court and shown the cause for detention.

Bill of attainder

a law that declares a person guilty of a crime without a trial.

Lemon test

a rule articulated in Lemon v. Kurtzman that government action toward religion is permissible if it is secular in purpose, neither promotes nor inhibits the practice of religion, and does not lead to 'excessive entanglement' with religion.

Libel

a written statement made in 'reckless disregard of the truth' that is considered damaging to a victim because it is 'malicious, scandalous, and defamatory.'

The issue of ____________ has been considered by the Supreme Court under the right to privacy doctrine established in Griswold v. Connecticut.

abortion

Prior restraint

an effort by a governmental agency to block the publication of material it deems libelous or harmful in some other way; censorship. In the United States, the courts forbid prior restraint except under the most extraordinary circumstances.

Civil liberties

areas of personal freedom with which governments are constrained from interfering.

The Second Amendment was originally associated with

citizen participation in militias

The Supreme Court upheld a state university ban on Tupperware parties in college dormitories, upheld laws prohibiting the electronic media from carrying cigarette advertising, and upheld a Puerto Rico statute restricting the advertising of casino gambling. These are examples of restrictions on

commercial speech

Selective incorporation

considers the provisions of the Bill of Rights one by one and selectively applies them as limits on the states through the Fourteenth Amendment.

The tension between liberty and national security is evident in

debates over post-9/11 government actions.

Which of the following is a component of the Lemon test?

determining whether government involvement advances a particular religion

Fighting words fall outside constitutional protection because they

directly incite violence.

The courts ________ allow the government to regulate the time, manner, and place of expression of an assembly, _____________ the content neutrality of the regulation.

do; conditional on

The Fifth Amendment protects against

double jeopardy.

Which of the following issues is not debated under the right to privacy?

drug testing in high schools

Grand jury

jury that determines whether sufficient evidence is available to justify a trial; grand juries do not rule on the accused's guilt or innocence.

Which of the following describes a written statement made with reckless disregard of the truth that is considered damaging to a victim because it is malicious, scandalous, and defamatory?

libel

The Bill of Rights originally applied to

only the federal government.

As the textbook notes, four forms of speech fall outside the absolute guarantees of the First Amendment and therefore outside the realm of protected forms of speech. Which of the following is a conditionally protected form of speech?

political speech

8th Amendment

prohibits cruel and unusual punishment

5th Amendment

protection from self incrimination

Civil Liberties

protections from improper government actions

The Supreme Court has upheld which of the following activities in public schools?

providing activities funds for a student religious group

The Supreme Court's decision in Roe v. Wade was based on the

right to privacy.

speech plus

speech accompanied by conduct such as sit-ins, picketing, and demonstrations. Protection of this form of speech under the First Amendment is conditional, and restrictions imposed by state or local authorities are acceptable if properly balanced by considerations of public order.

Speech accompanied by conduct can be regulated by the government to preserve public order is called

speech plus.

Fighting words

speech that directly incites damaging conduct.

Eminent domain is the power of government to

take private property for public use.

clear and present danger test

test to determine whether speech is protected or unprotected, based on its capacity to present a 'clear and present danger' to society.

If the Supreme Court were to consider the speech codes (regulations on hate speech) that are common on college campuses, they would be likely to find

that speech codes are not constitutional because they are not content neutral.

Double jeopardy

the Fifth Amendment right providing that a person cannot be tried twice for the same crime.

Free exercise clause

the First Amendment clause that protects a citizen's right to believe and practice whatever religion he or she chooses.

Establishment clause

the First Amendment clause that says that 'Congress shall make no law respecting an establishment of religion.' This law means that a 'wall of separation' exists between church and state.

Which amendment in the Bill of Rights was most recently applied to the states via selective incorporation?

the Second Amendment: right to bear arms

Selective incorporation is defined as

the Supreme Court's using the Fourteenth Amendment to apply civil liberties in the Bill of Rights to the states on a case-by-case basis

Exclusionary rule

the ability of courts to exclude evidence obtained in violation of the Fourth Amendment. ie. illegally obtained evidence

The Eighth Amendment's prohibition of cruel and unusual punishment is most controversial in its application to

the death penalty.

10th Amendment

the enumeration of certain rights in the constitution should not be interpreted to mean that those are the only rights the people have

Bill of Rights

the first 10 amendments to the U.S. Constitution, ratified in 1791; they ensure certain rights and liberties to the people.

Selective incorporation

the process by which different protections in the Bill of Rights were incorporated into the Fourteenth Amendment, thus guaranteeing citizens protection from state as well as national governments.

Miranda rule

the requirement, articulated by the Supreme Court in Miranda v. Arizona, that persons under arrest must be informed prior to police interrogation of their rights to remain silent and to have the benefit of legal counsel.

Due Process

the right of every citizen against arbitrary action by national or state government

Due process of law

the right of every citizen against arbitrary action by national or state governments.

Due process of law is

the right of every citizen against arbitrary government action.

Eminent domain

the right of government to take private property for public use.

Right to privacy

the right to be left alone, which has been interpreted by the Supreme Court to entail free access to birth control and abortions.

The free exercise clause protects

the right to believe in and practice one's religion of choice.

The exclusionary rule of the Fourth Amendment, the self-incrimination clause of the Fifth Amendment, and the right to counsel provision of the Sixth Amendment are controversial because

their application sometimes frees defendants who seem to be guilty as charged