A.P. U.S. Govt. and PoliticsCh. 15, “Order and Civil Liberties”

-Which is more important: freedom or order?

-How can freedom of religion be respected?

-Laws and regulations create individuals’ rights

Bill of Rights• 1st 10 Amendments to the Constitution• Impose limits on the national govt. (but NOT the states)• 1st: freedom of press, assembly, petition, speech, and religion• 2nd: right to bear arms• 3rd: no quartering of soldiers in people’s homes during peacetime• 4th: no unreasonable searches and seizures—govt. must obtain a

warrant based on probable cause to search a specific place• 5th: rights of accused persons: hear the charges against them in

court; no double jeopardy (you cannot be charged twice for the same crime); no self-incrimination (testify against yourself in court); due process of law—required to deprive a person of life, liberty, or property; eminent domain: govt. must compensate a person if they take their property for public use

Bill of Rights (cont.)

• 6th: rights of the accused in criminal prosecutions: speedy and public trial; impartial jury; face the witnesses against them in court; assistance of counsel for their defense

• 7th: trial by jury in cases involving a lawsuit worth over $20• 8th: no excessive bail or fines, or cruel and unusual

punishment can be inflicted• 9th: rights not mentioned in the Constitution are reserved for

the people• 10th: powers not delegated to the U.S. government are

reserved for the states or the people• Lists both civil rights and civil liberties

Freedom of Religion• Government can NOT promote one religion or stop people

from having their own religious beliefs or practices• Everyone can have their own beliefs—but they can NOT

always practice a belief (e.g. human or animal sacrifice; use of drugs in ceremonies)

• Most Ams. Believe in a supreme being or God• Govt. neutrality towards religion—no direct support for a

belief• Lemon v. Kurtzman (1971): SC struck down a state program

that would have helped pay the salaries of teachers hired by parochial (i.e. religious-affiliated) schools (as opposed to secular—no religious connection)

Freedom of Religion (cont.)

• SC test to determine if govt. actions do NOT go against the establishment clause (Lemon test):

• 1) have a secular purpose• 2) primary effect must not be to advance or inhibit religion• 3) must not entangle the govt. excessively with religion• SC has said that public school teachers could be used to teach

at parochial schools—and state school-voucher programs could be used at parochial schools

• Governments can put up religious displays (such as at Christmas)—if they have a secular purpose

Freedom of Religion (cont.)

• Engel v. Vitale (1962): SC said that children in public schools could not be required to recite a prayer

• 1992: SC said that prayers at graduation were not allowed• after-school religious programs in public schools: are allowed• Sherbert v. Verner (1963): a woman lost her job when she

refused to work on Saturdays—then lost her govt. benefits when she would not work at another job for the same reason; the SC ruled in her favor—saying that her practice of her religious beliefs was violated; this led to more challenges of laws that violate people’s faith

Freedom of Expression• Contained in the 1st Amendment• Schenck v. United States (1919): during World War One Charles

Schenck tried to encourage people to resist the draft; SC said that speech could be curbed if it represented a “clear and present danger” to the U.S.—so his conviction was upheld

• Gitlow v. New York (1925): SC said that speech encouraging violence was not allowed; SC also said that the 1st Amendment applied to the states

• Brandenburg v. Ohio (1969): Brandenburg was the leader of the OH KKK—and convicted of “advocating racial strife”; but the SC said that the govt. had failed to prove that the danger was real; speech advocating violence is allowed—unless it calls for specific actions

Freedom of Expression (cont.)• Tinker v. Des Moines Independent County School District (1969):

students wore black armbands to protest the Vietnam War—and were suspended; the SC said that the suspensions violated students’ rights to freedom of expression—or symbolic speech

• “fighting words”—are not allowed, though• Cohen v. California (1971): Cohen wore a jacket to a county

courthouse with curse words on it—and was convicted of violating state law; the SC overturned his conviction, saying that there was no evidence that his jacket would cause people to act violently

• Snyder v. Phelps (2011): some church members picket at funerals against the military’s acceptance of homosexuals; SC said that this is a form of free expression—and will be allowed

Freedom of Expression (cont.)• Citizens United v. Federal Election Commission (2010): SC said that

corporations and labor unions can spend freely to support or defeat candidates for government

• libel: written defamation of a person’s character; slander: oral defamation of a person’s character

• New York Times v. Sullivan (1964): SC ruled that freedom of the press is allowed for speaking out against public officials—even if the info. is false (as long as it is not done to harm their image—which is difficult to prove)

• Near v. Minnesota (1931): a newspaper publisher was prevented from publishing criticism of govt.; SC said that this went against the 1st Amendment (and says that “prior restraint” is wrong)

Freedom of Expression (cont.)• New York Times v. United States (1971): SC allowed a govt. official

to publish documents critical of the Vietnam War (though the govt. could curb the right if the country were threatened by the documents being made public)

• schools: can limit speech and press in the interest of curricular goals

• freedom of assembly: connected to the right to free speech and the press; it is also protected to help people petition the govt. about their grievances; governments can limit this right by requiring people to have a permit to march, though

The Right to Bear Arms

• gun-control advocates: 2nd Amend. is about militias; gun-use advocates: it is the right of individuals to own and use guns

• District of Columbia v. Heller (2008): SC said that a D.C. law limiting handgun ownership was unconstitutional—since people have the right to defend themselves with a gun—although not a submachine gun or assault rifle

• McDonald v. Chicago (2010): Chicago law limiting guns was unconstitutional; an individual’s right to bear arms is allowed (based on the due process clauses of the 5th and 14th Amends.)

Applying the Bill of Rights to the States

• Bill of Rights applies to the national govt.; but over time the SC has said that they also apply to the states

• selective incorporation: when the SC said (in a ruling) that a particular Bill of Right applied to the states; all of the following amendments have been “incorporated”: 1st, 2nd, 4th, 5th, 8th, and 9th

• Palko v. Connecticut (1937): Palko was convicted of 2nd Degree murder—then retried and convicted of 1st Degree murder; the SC upheld this second conviction saying that it did not violate double jeopardy

Applying the Bill of Rights to the States (cont.)

• Duncan v. Louisiana (1968): right to a jury trial• Gideon v. Wainwright (1963): right to an attorney; Gideon’s

conviction was overturned—and his new trial resulted in not guilty verdict

• Miranda v. Arizona (1966): SC said that an accused person has to be read their constitutional rights by the police—so it overturned Miranda’s conviction; this led to creation of the Miranda Warning:

• You have the right to remain silent. Anything you say can be used against you in court. Your have the right to talk to a lawyer of your own choice before questioning. If you cannot afford to hire a lawyer, a lawyer will be provided without charge.

Applying the Bill of Rights to the States (cont.)

• Wolf v. Colorado (1949): 4th Amend. application to the states• Mapp v. Ohio (1961): also about the 4th—a woman was found to

have obscene materials in her home—but the search was for a fugitive; so the SC overturned her conviction; this solidified the exclusionary rule (evidence obtained in an illegal search could not be used in court)

• U.S. v. Leon (1984): some evidence could be used—if the police would have found it anyway—or the police was acting “in good faith” based on the search warrant they had

• U.S.A. Patriot Act (2001): expanded the ability of law enforcement and intelligence agencies to tap phones, monitor Internet traffic, and conduct other forms of surveillance in pursuit of terrorists

Applying the Bill of Rights to the States (cont.)

• govt. agencies—can ask for phone and other records without a warrant (because of the Patriot Act)

• SC: has said that those detained as suspected terrorists have the right to appear in court to hear the accusations against them

• Hamdan v. Rumsfeld (2006): SC said that military commissions used to detain prisoners in Guantanamo Bay, Cuba were a violation of intl. law

• Boumediene v. Bush (2008): SC said that those same prisoners have a right to challenge their detentions in federal court

• This has represented a challenge to presidential authority by the courts.

The Ninth Amendment and Personal Autonomy

• right to privacy: is NOT mentioned in the Constitution• Griswold v. Connecticut (1965): a state law made the use of birth

control a crime—but the SC said that a person had a “zone of privacy” based on the 9th Amend.

• Roe v. Wade (1973): Texas law made it a crime to obtain an abortion—unless the life of the mother was threatened; the SC overturned it based on the “right to privacy”; although there can be restrictions placed on abortion after the first trimester (three months); a woman’s right to choose—with the consultation of her doctor

• Webster v. Reproductive Health Services (1989): SC upheld some govt. restrictions on abortion (no use of public funds or facilities for abortions)

The Ninth Amendment and Personal Autonomy

• Planned Parenthood v. Casey (1992): SC again upheld restrictions on abortion—so long as they did not place an “undue burden” on a woman

• 2000: SC shot down a Nebraska law outlawing partial birth abortions; 2007: SC upheld a federal law banning partial birth abortions

• Bowers v. Hardwick (1986): SC ruled that the Constitution does not protect homosexual relations between consenting adults—even in the privacy of their own homes

• Lawrence and Garner v. Texas (2003): SC overturned a law against sodomy—saying it was an intrusion of the state into personal choices—with no effect on society

• 1996: Defense of Marriage Act passed by Congress; SC declared part of it unconstitutional (allowing for states to not recognize same-sex marriages performed in other states)