l Civil Liberties Definition The legal constitutional protections

l Civil Liberties – Definition: The legal constitutional protections against the government. – Examples: l Constitution – No bills of attainder, ex post facto, or habeas corpus l Bill of Rights – Free Speech, Religion, & no illegal search and seizures …

Do you still remember the Bill of Rights? l Let’s do it on the board with markers…

The Bill of Rights—Then and Now

Civil Rights v. Civil Liberties Civil Rights – Right to be free from unequal treatment and/or discrimination based on certain characteristics (race, gender, disability, sexual orientation, etc. ) in settings such as employment, school, access to voting, etc. l Civil Liberties – Constitutional freedoms that protect individual rights from being violated by the government. – Civil liberties set limits for government so that it cannot abuse its power and interfere with the lives of its citizens. l

Civil Liberties’ Watchdog Group American Civil Liberties Union (ACLU) l The ACLU is an interest group that lobby’s courts and legislatures to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country. l These rights include: – Your First Amendment rights - freedom of speech, association and assembly; freedom of the press, and freedom of religion. – Your right to equal protection under the law l protection against unlawful discrimination. – Your right to due process l fair treatment by the government whenever the loss of your liberty or property is at stake. – Your right to privacy l freedom from unwarranted government intrusion into your personal and private affairs.

l What is more important in a democratic society: l –Freedom or Order? l –Liberty or Security? l • Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.

Freedom v. Security What is more important in a democratic society: l –Freedom or Order? l –Liberty or Security? l • Do times of war or conflict change this? l • 1798—Alien and Sedition Act: Made it illegal to falsely criticize the president and government officials and allowed the

Incorporation (Nationalization) Doctrine and the 14 th Amendment Prior to the 14 th Amendment, the Bill or Rights only applied to the National government, NOT the states. – The first amendment reads: “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. ” – 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the Federal, but not any State or local governments. l The 14 th Amendment -1868 - (specifically the Due Process Clause) dynamically altered this view by stating that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. " l

14 th Amendment “No State (Incorporation or Nationalization) shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law (due process clause-Civil Liberties); nor deny to any person within its jurisdiction the equal protection of the laws (Equal Protection Clause-Civil Rights). "

How exactly could we argue that this may incorporate the Bill of Rights onto the states? l There are several possible positions that could be taken with respect to the incorporation debate on the 14 th Amendment: – Non Incorporation View -- One could argue that the Fourteenth Amendment only applies to post-Civil War former slaves and no more – Total Incorporation --the view that the 14 th Amendment applied the entire Bill of Rights onto the states— 10 th Amendment made this illogical – Selective Incorporation--the view supported by the Supreme Court, in which most of the Bill of Rights have been incorporated onto the states over time via specific cases.

Selective Incorporationl The view supported by the Supreme Court, in which most of the Bill of Rights have been incorporated onto the states over time via specific cases. – Chicago, B&Q Railroad Co. v. City of Chicago (1896) – First case to incorporate any part of the Bill of Rights onto the states, but Gitlow v. NY was really the one that started the process – Incorporated the “takings clause” and just compensation of the 5 th Amendment (Eminent Domain) onto the states

Gitlow v. NY (1925) l first significant case to incorporate a major civil liberty, in this case free speech, onto the states – `In upholding the conviction of Gitlow for advocating the overthrow of the govt, the Court IRONICLY said freedom of speech and of the press “are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states. ”—but just DID not apply to Gitlow in this case!

All have been incorporated except Amendments 3, Grand Jury portion of 5, 7, and No Excessive Fines/bails portion of 8 l The Due Process Clause not only has led to the selective incorporation of most of the Bill of Rights onto the states, but local government bodies as well, since they are sub-units of the state. – Example: A student gets suspended/expelled is entitled to Due Process (does not have to be in the courts, but through the school boards who acts as the adjudicator of due process) l

Significantly increased Power of Federal Government!

The Bill of Rights—Then and Now

Civil Liberties: 1 st Amendment l “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. ”

l http: //www. thedailyshow. com/watch/mon- october-22 -2012/the-correspondents-explain ---amendments---the-1 st-amendment

Freedom of Religion The Establishment Clause – “Congress shall make no law respecting the establishment of religion” or take any action that would show preferential treatment for one religion over another. l The Free Exercise Clause – Prohibits government from interfering with the practice of religion – Some religious practices may conflict with other rights, and then be denied or punished l Article 6 l No religious test for office l

Religious issues that still stir debate: l l l Should schools be allowed to lead students in prayers since Congress opens each session and day with a prayer? Should schools would not be allowed to hire a school Chaplin since each branch of the military has one, as does Congress? Should we continue to have “In God We Trust” on all U. S. currency since Government is not allowed to advance religion? Should creationism or I. D. be taught in a science class? Can the government disallow the building of a Mosque 3 blocks from Ground Zero?

Separation of Church and State? • The political and legal doctrine that government and religious institutions are to be kept separate and independent from each other. – Some interpret the 1 st Amendment as advocates strict separation whereas others say government can support all religious as long as it in neutral in nature. l The Phrase comes from Thomas Jefferson who said the 1 st Amendment created a "wall of separation" between church and state l Why has the separation between church and state been seen as a fundamental part of a free society?

Engel v. Vitale (1962) Issue—School Prayer l “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen. ” l In a 6 -1 decision, the Court declared it unconstitutional for state officials to compose an official school prayer and require its recitation in public schools, even when it is relatively nondenominational and students may excuse themselves from participation.

Lemon v. Kurtzman 1971 – “Lemon Test” l 1. Does the program that is being funded by state $$ have a religious, as opposed to a secular purpose? l 2. Does the program have as its principal effect the advancement of religion? l 3. Does the program create an excessive entanglement between church and state? If the answer is yes to any one of these, it

Summary: Public Schools and Religion l Activities not permitted: l –School led prayer for any event l –Graduation prayers l –Banning the teaching of evolution l –Teaching of creationism/I. D. in science classes

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof l Free l l exercise clause Reynolds v. United States (polygamy)- No Oregon v. Smith (drug use in religious ceremonies) No

Yes or No? l Can I marry more than one wife at a time?

Yes or No? l Can I marry more than one wife at a time? No

Yes or No? l Can Amish children drop out in 8 th grade?

Yes or No? l Can Amish children drop out in 8 th grade? l. Yes, Yoder v. Wisconsin

Yes or No? l Do you have to work on the Sabbath?

Yes or No? l Do you have to work on the Sabbath? l. Yes, if you work for a private company, but no if you work for the government

Yes or No? l Can the state deny unemployment benefits if someone turns down a job because it requires them to work on the Sabbath?

Yes or No? l Can the state deny unemployment benefits if someone turns down a job because it requires them to work on the Sabbath? l. No, because the government would be forcing you to violate your religion.

Yes or No? l Can you make it illegal to be open on Sunday? (Blue Laws)

Yes or No? l Can you make it illegal to be open on Sunday? l. Yes

Yes or No? l Can the state deny a scholarship to someone who wants to study to become a priest?

Yes or No? l Can the state deny a scholarship to someone who wants to become a priest? l. Yes, because the government does not want to advantage one religion over another.

Yes or No? l Can the government ban Jehovah's Witnesses from solicitation?

Yes or No? l Can the government ban Jehovah's Witnesses from solicitation? l. No, if you just ban Jehovah’s Witnesses, but yes, if ban all groups of people (including girl scouts selling cookies)

Yes or No? l Can a city ban animal sacrifice?

Yes or No? l Can a city ban animal sacrifice? l. No, it is part of the Haitian Santeria religion.

Yes or No? l Do the Amish have to pay Social Security taxes?

Yes or No? l Do the Amish have to pay Social Security taxes? l. Yes, of course they have to pay taxes.

Yes or No? l Can the Forest Service build a road through Native American sacred land?

Yes or No? l Can the Forest Service build a road through Native American sacred land? l. Yes

Yes or No? l Can you stone your child to death for humiliating the family?

Yes or No? l Can you stone your child to death for humiliating the family? l No, state criminal law still applies.

Yes or No? l Can you ban clergy from holding office?

Yes or No? l Can you ban clergy from holding office? l. No

Yes or no? l Can the Air Force ban yarmulkes while in uniform?

Yes or no? l Can the Air Force ban yarmulkes while in uniform? l. Yes

Yes or No? l Can you use drugs in religious ceremonies?

Yes or No? l Can you use drugs in religious ceremonies or fire someone for using drugs during a religious ceremony? l. No, if it is peyote (American Indian religious ritual drug), but yes if it is wine during communion.

Freedom of Speech l. 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.

What are everyday examples of when your free speech rights are limited? Can you really say anything you want?

Quotes l“ If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all. ” – Noam Chomsky l “I disapprove of what you say, but I will defend to the death your right to say it” – Voltaire

Freedom of Speech l Schenck v. U. S. , 1919 – WWI Era, Espionage & Sedition Acts made it – – illegal to speak out against the war effort Schenck distributed pamphlets protesting the draft Limited speech that presented a “clear and present danger” Justice Holmes compared it to yelling fire in a crowded movie theatre Not an incorporation case

Chaplinsky v. New Hampshire, 1942 – Incorporation case – Limited speech that constituted “fighting words” that “by their very utterance inflict injury or tend to incite an immediate breach of the peace. ” l Bradenburg v. Ohio, 1969 – KKK leader arrested after making a racist, hateful speech – Court ruled that states cannot prevent inflammatory speech unless it will lead to imminent lawless action – Speech that supports law-breaking or violence in general is protected by the First Amendment unless it directly encourages people to take an imminent unlawful action – Political speech is the most protected form of speech l

Symbolic Speech Tinker v. Des Moines, 1969 – Students in Iowa were suspended for wearing black armbands to protest the Vietnam War – Court ruled that was unconstitutional – “Students do not shed their constitutional rights at the schoolhouse door. ” l Texas v. Johnson, 1989 – Burning the flag is a form of symbolic speech (nonverbal communication) and is protected by the 1 st Amendment l

Free Press l “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. ”

Freedom of the Press Near v. Minnesota, 1931 – Selectively incorporated freedom of the press and prevented prior restraint l NY Times v. Sullivan, 1964 – A newspaper cannot commit libel if it printed a false story that it thought to be true at the time of publication l NY Times v. U. S. , 1971 – Daniel Ellsburg leaked the Pentagon Papers about Vietnam – Government could not censor information using the rationale of national security or enact prior restraint l Hazelwood School v. Kuhlmeier , 1988 – School officials have sweeping authority to regulate student run newspapers, no free press of student newspapers l

Freedom of Assembly – “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. ” – Generally permissible, but must meet reasonable local standards. – Balance between freedom to assemble and order in society. – De. Jonge v. Oregon, 1937 – De. Jonge organized Communist Party meetings and was arrested for that crime – Court ruled that he had the Freedom of Assembly – Incorporated that part of the 1 st Amendment

Speech that is NOT protected: Commercial Speech—limited protection, FTC *False advertising is not protected *FCC regulates the airwaves 2. Libel (intentional false written statements harming one’s reputation) 3. Slander (intentional false verbal statements harming one’s reputation) 4. Fighting Words (Chaplinsky v. NH 1942) (incitement specific time and place) 1. *speech, non-political in nature, that is likely to bring about immediate public disorder or chaos

5. Obscenity – No clear definition on what constitutes obscenity. – Miller v. California stated that materials were obscene if the work: l l l appeals “to a prurient interest in sex” showed “patently offensive” sexual conduct lacks “serious literary, artistic, political or scientific value” – Local areas make their own decisions on obscenity

Do page 40 Freedom of Speech 12 Examples

Answers l l l 7. No breaks criminal law, Fighting Words doctrine, Chaplinsky v. New Hampshire 8. Yes 9. No, libel/ slander, must be professional or of some status 10 Yes, Bradenburg v. Ohio 11. Yes, Freedom of Assembly, Bradenburg v. Ohio, National Socialist Party of America v. Village of Skokie l 12. Yes, Texas v. Johnson 1 No, presents clear and l present danger, Schenck v. US l 2. Yes, Free Speech l 3. Yes, Freedom of Expression l 4. Yes, Tinker v. Des l Moines 5. Yes, Freedom of Assembly 6. No,

Rights of the Accused

Procedural Due Process Rights of the Accused includes: – protection from illegal search and seizures – the right to indictment by a grand jury – protection from double jeopardy – protection against self-incrimination – right to a fair and speedy public trial – right to trial by jury (to be judged by one's peers) – notice of accusations (to be informed of the nature and cause of the accusation) – right to confront one's accuser – right to legal counsel – protection from excessive bail and fines, and from cruel and unusual punishment l Critics view these steps as overprotection of criminals l

A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial. The word “attainder”, meaning "taintedness", is part of English common law. Under English law, a criminal condemned for a serious crime, whether treason or felony (but not misdemeanour, which referred to less serious crimes), could be declared "attainted", meaning that his civil rights were nullified: he could no longer own property or pass property to his family by will or testament. l His property could consequently revert to the Crown l Bills of attainder were used through the 18 th century in England, and were applied to British colonies as well. One of the motivations for the American Revolution was anger at the injustice of attainder—though the Americans themselves used bills of attainder to confiscate the property of British loyalists (called Tories) during the revolution. American dissatisfaction with attainder laws motivated their prohibition in the Constitution l Within the U. S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforced the separation of powers, by forbidding the legislature to perform judicial or executive functions—since the outcome of any such acts of legislature would of necessity take the form of a bill of attainder. Second, they embody the concept of due process, which was partially reinforced by the Fifth Amendment to the Constitution. The text of the Constitution, Article I, Section 9; Clause 3 is "No Bill of Attainder or ex post facto Law shall be passed". The constitution of every State also expressly forbids bills of attainder. l

Due Process Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law, specifically in the Bill of Rights, when life, liberty, or property is at stake. – Due Process are the rules and regulations that restrain those in government who exercise the power of the government (judges, jury, police officers, the president, Congress, local government, schools, etc. ). l Due Process rights are guaranteed to all people under the 5 th and 14 th Amendments. – The Fifth Amendment's guarantee of due process is applicable only to actions of the federal government. The Fourteenth Amendment contains virtually the same phrase, but expressly applies to the states. l The 14 th Amendment -1868 - (specifically the Due Process Clause) dynamically broadened Due Process by stating that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. " l

Procedural Due Process: – “Process Rights” used in criminal prosecutions and civil cases: where an individual is facing a deprivation of life, liberty, or property, procedural due process mandates that he or she is entitled to adequate notice, a hearing, and a neutral judge (basically rights of the accused in the Bill of Rights). l Substantive Due Process: – Rights in the Constitution that are non-procedural, but none the less are seen as liberties that laws cannot seek to undermine since such liberties are fundamental to living in a free society (example, free speech, press, voting rights, privacy, freedom of association, etc. ) –liberty based, not process based – Many strict constructionists and originalists do not recognize substantive due process rights, especially when this right covers the issue of privacy. l

4 th Amendment l 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. l What constitutes a reasonable search?

Mapp v. Ohio, 1961 l l l Police believed Mapp to be harboring a dangerous criminal in her house Forcefully entered her house without a warrant Instead found pornographic material and arrested her Court declared that evidence obtained illegally cannot be used l Exclusionary Rule = “Fruit of the poisonous tree “--a legal metaphor in the United States used to describe evidence that is obtained illegally. Memoirs of a Hotel Man l Exclusionary Rule incorporated onto states Affairs of a Troubadour The logic of the terminology is that if the source of Drawing of nude women the evidence (the "tree") is tainted, then anything gained from it (the "fruit") is as well.

Good Faith-Exception l Exemption to the exclusionary rule. l Allows evidence collected in violation of the Fourth Amendment to be admitted at trial if police officers acting in good faith relied upon a defective search warrant they had reason to believe was legal

6 th Amendment l 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 defense.

l http: //www. thedailyshow. com/watch/mon- october-22 -2012/the-correspondents-explain ---amendments---the-6 th-amendment

Gideon v. Wainwright (1964) l l l Clarence Gideon was charged in a Florida state court with a felony for breaking and entering. Lacking funds for a lawyer, he requested the court to appoint an attorney for him, the court refused, Convicted & sentenced to five years in a state prison. Appealed, the Court held that Gideon had a right to be represented by a court-appointed attorney, thus incorporating the right to counsel onto the states. In this case the Court found that the Sixth Amendment's guarantee of counsel was a fundamental right, essential to a fair trial, which should be made applicable to the states through the Due Process Clause of the 14 th Amendment. Escobedo v. Illinois (1964) – SCOTUS also said that a person has a right to a lawyer during not JUST a trial, but police questioning as well.

5 th Amendment l 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 offense 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.

Protection from Self. Incrimination l l l Miranda v. Arizona, 1966 Miranda arrested for kidnapping & rape Arrested & confessed in less than 2 hours Appealed on grounds not advised of Constitutional rights (5 th self incrimination, 6 th counsel) thus police violated his 14 th Amendment right to due process Courts declared the those arrested must know and understand their rights before interrogations can take place These “rights” became known as Miranda Rights

Defendant’s Rights

8 th Amendment l Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Excessive Punishment l l l 8 th Amendment “Cruel and Unusual Punishment” = death penalty? Furman v. Georgia, 1972 – Court found the application of the death penalty was arbitrary and halted its use nationwide Gregg v. Georgia, 1976 – Court ruled that under adequate guidelines the death penalty could resume and it was not cruel and unusual punishment Atkins v. Virginia, 2002 – Forbids the execution of the mentally handicap

l http: //www. thedailyshow. com/watch/mon- june-24 -2002/constitutionally-challenged

The Right to Privacy l Is There a Right to Privacy? – Definition: The right to a private personal live free from the intrusion of government. – Not explicitly stated in the Constitution – Implied by the 4 th & 9 th Amendments – Very debatable…

Griswold v. Connecticut, 1965 l Connecticut law prohibited the use of contraceptives l Doctor arrested for distributing birth control l SCOTUS struck down the Connecticut law l Decision created and incorporated the right of privacy – 9 th Amendment l Not all rights are listed – 4 th Amendment l “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

Roe v. Wade (1973) Jane Roe (Norma L. Mc. Corvey), a Texas resident, sought to terminate her pregnancy l Texas law prohibited abortions except to save the pregnant woman's life. l Court declared that laws against abortion violated a constitutional right to privacy (building on the Griswold decision), overturning all state laws outlawing abortion l The court held that a first-trimester embryo or fetus was not a person under the Constitution, and that a right to privacy existed and included the right to have an abortion for any reason, up until the "point at which the fetus becomes 'viable. '" – The Court defined viability as the potential "to live outside the mother's womb, albeit with artificial aid, adding that viability "is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. “ – The court further ruled that the state could intervene to restrict abortion in the second trimester of development and could outlaw it altogether in the third trimester l

Planned Parenthood v. Casey (1992) The Pennsylvania law required: – 24 hour wait period before obtaining an abortion – A minor seeking an abortion to get the consent of one parent (the law allows for a judicial bypass procedure). – A married woman seeking an abortion had to first notify her husband of her intention to abort the fetus. l Can a state require these provisions without violating the right to abortion as guaranteed by Roe v. Wade? l Do these provisions place an “undue-burden” on a woman seeking an abortion prior to viability? l In a 5 -to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. l – The decision also said that viability was more a priority in determining the rights of a fetus than the strict trimester formula laid down in Roe.

l http: //www. thedailyshow. com/watch/tue- february-21 -2012/punanny-state---virginia-s -transvaginal-ultrasound-bill

2 nd Amendment: l "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. " – Who does “militia” mean? – Who are "the People"? – What "arms" does the Amendment protect? – What does "shall not be infringed" mean?

l http: //www. thedailyshow. com/watch/mon- july-4 -2011/on-topic---second-amendment--right-to-bear-arms l http: //www. thedailyshow. com/watch/mon- october-22 -2012/the-correspondents-explain ---amendments---the-2 nd-amendment

Supporters of Gun Control claim there is no expressed right for an individual citizen to possess a hand gun—only regulated militias can. Thus, government can regulate and even restrict guns. l Opponents of Gun control say the 2 nd Amendment creates a right for citizens to arm themselves, and guns are a part of that. Thus, gun control is unconstitutional. l Mc. Donald v. Chicago (2010) – Ruled that Chicago’s ban on handguns was a violation of the 2 nd Amendment to the Constitution, thus incorporating the 2 nd Amendment l

l http: //www. thedailyshow. com/watch/wed- april-24 -2013/weak-constitution l http: //www. colbertnation. com/the-colbertreport-videos/407253/january-302012/laurence-tribe

Barron’s Answers D 2. D 3. C 1.

Barron’s Answers 1. 2. 3. 4. 5. 6. D D C B A A

Barron’s Answers 1. 2. 3. 4. 5. 6. 7. 8. 9. D D C B A A E B C 10. D

Barron’s Answers 1. 2. 3. 4. 5. 6. 7. 8. 9. D D C B A A E B C 10. 11. 12. 13. 14. 15. D A A E E D

l Initially, the U. S. Constitution did little to protect citizens from actions of the states. In the 20 th Century, the Supreme Court interpreted the Constitution to protect the rights of citizens from state governments in a process referred to as incorporation. – Define selective incorporation. – For two of the following, explain how each has been incorporated. Each of your explanations must be based on a specific and relevant Supreme Court decision: Rights of criminal defendants l First Amendment l Privacy rights l

6 points total Part (a): 2 points l One point is earned for defining selective, and 1 point is earned for defining incorporation. – The response must define what is meant by selectivethe fact that the process has been piecemeal and not a sudden change. – The response must define incorporation- the fact that some liberties listed in the BILL OF Rights have been applied to the states using the Fourteenth amendment/ due process clause. – The response can earn one point for defining selectiveness without having earned the definition point for defining incorporation in terms of the Fourteenth Amendment/ due process clause.

Part (b): 4 points l One point is earned for describing each of two appropriate cases, and 1 point is earned for explaining how each of the specific provisions of the Bill of Rights was incorporated. – The response must describe the facts and the right that is incorporated in two relevant – – – cases. The response must also explain how the Supreme Court used the Fourteenth amendment to incorporate the specific provision of the Bill of Rights in each of the two cases described. A response may earn points without being able to name an appropriate case, as long as the description and explanation demonstrate that the student knows the relevant aspects of the case even though the name is not included. Abbreviated case names and informal names are also acceptable (e. g. , “Scottsboro Boys” case instead of Powell v. Alabama; Mapp instead of Mapp v. Ohio). The student does not need to discuss the case that originally incorporated the right, only a case that demonstrates that the right has been incorporated. The fourteenth amendment does not need to be explicitly mentioned in the explanation of the case(s) if the definition of incorporation demonstrates a complete understanding of the role of the Fourteenth amendment in selective incorporation.

l Rights of criminal defendants – – l Miranda v. Arizona Gideon v. Wainwright Escobedo Mapp v. Ohio First Amendment – Gitlow v. NY – Near V. Minnesota – De Jonge v. Oregon l Privacy rights – Griswold v. Connecticut

l Many scholars and observers have argued that the ratification of the Fourteenth Amendment to the Constitution has become the single most important act in all of United States politics. – Identify which provision of the Fourteenth Amendment was applied in three of the following Supreme Court cases. For the case you select, explain the significance of the decision in U. S. politics. l Mapp v. Ohio (1961) l Gideon v. Wainwright (1963) l Miranda v. Arizona (1966)

Part (a): 3 points l Identification: – l (1 point) Identification of the “provision. ” Must use “equal protection. ” Explanation: (1 point) Factual statement about the holding. – (1 point) Explanation of the significance or impact of the case in United States politics – l Must go beyond the holding of the case For example: “led to Civil Rights movement” – NOT credited: “Brown led to desegregation of public schools” –

Part (b): 3 points l Identification: – (1 point) Identification of the “provision. ” Must use “due process. ” – (1 point) Explanation of the significance or impact of the case in United States politics – Must go beyond holding of the case l NOT credited “All police must read Miranda rights”

The First Amendment includes two clauses relating to the freedom of religion. l Select one of the following cases and identify the First Amendment clause upon which the U. S. Supreme Court based its decision: l Engel v. Vitale (school prayer) l Lemon v. Kurtzman (state funding for private religious schools) – Describe the Supreme Court’s decision in the case that you selected in (a). – Select one of the following cases and identify the First Amendment clause upon which the Supreme Court based its decision: l Reynolds v. United States (polygamy) l Oregon v. Smith (drug use in religious ceremonies) – Describe the Supreme Court’s decision in the case that you selected in (c). – Many of these decisions have caused controversy in the United States. Describe two ways in which other political institutions might limit the impact of Supreme Court decisions. l

6 points Part (a): 1 point l Establishment Clause

Part (b): 1 point Acceptable explanations of Engle v. Vitale: – Must say that the decision struck down state-sponsored prayer in school. – MUST mention state-sponsored or state-organized prayer to get credit. – MUST indicate that the p 5 ayer had some type of official government backing/sponsorship/sanction. – Do not have to specify “public schools” to get credit. – No point is given if the answer states only that the decision “banned prayer in school. ” l Acceptable explanations of Lemon v. Kurtzman: – Must say that the decision struck down state funding for private religious schools. (More specifically, it struck down state funding to pay parochial teachers to give instruction in secular subjects. ) – Will receive credit for statements recognizing that there are certain conditions or criteria that are used in determining if a government practice does not violate the establishment clause. Conditions/criteria may include: l Secular purpose l Neither enhances nor inhibits religion. l No excessive entanglement between government and religion. l

Part (c): 1 point l free exercise clause

Part (d): 1 point l An acceptable explanation of Reynolds v. U. S. is: – The decision restricted/banned/disallowed polygamy – No point is earned for saying that the “Supreme Court declared polygamy to be unconstitutional. ” Polygamy is a personal action that is illegal but not a governmental action that is unconstitutional l An acceptable explanation of Oregon v. Smith is: – The decision restricted/banned drug use in religious ceremonies. – No point is earned for saying that the “Supreme Court declared drug use in religious ceremonies to be unconstitutional. ” Drug use is a personal action that is illegal but not a governmental action that is unconstitutional.

Part (e): 2 points l Acceptable descriptions may include: – Congressional/state/local legislation – Executive branch/state government refusal to enforce a Supreme Court decision; ignoring a Supreme Court decision. – Judicial appointments – Constitutional amendment. – Change in appellate jurisdiction.

l The framers of the Constitution created a political system based on limited government. The original Constitution and the Bill of Rights were intended to restrict the powers of the national government. Later constitutional developments also limited the powers of state governments. A. Explain how each of the following limits the powers of the national executive. l Federalism l Checks and balances B. Explain how each of the following two provision in the Bill of Rights limits the powers of the national government: l Establishment clause l Guarantee of a public trial C. Choose one of the following and explain how it limits the power of state governments: l Citizenship clause of the Fourteenth Amendment l Selective incorporation.

A: 2 points l Federalism — divides power between national and state governments, which limits the authority of the national executive. l Checks and balances — the response must explain how other branches of government can check (limit, restrict) what the executive can do. A correct example of a check or balance on the national executive is acceptable to earn this point.

B: 2 points l Establishment Clause — prevents the national government from establishing a national religion or taking any action that would show preferential treatment for one religion over another. l Guarantee of a public trial — requiring trials to be open to the public limits the government’s ability to violate the rights of citizens.

C: 1 point l One point is earned for an explanation of how one of the following limits the power of state governments. – Citizenship Clause — provides a national definition of citizenship that states cannot violate; requires states to provide citizenship guarantees to all who meet the definition of citizen. (Due process and equal protection) – Selective incorporation — prohibits states from denying Bill of Rights provisions regarding freedom of expression, rights of the accused or privacy

Individuals often form groups in order to promote their interests. The Constitution contains several provisions that protect the rights of individuals who try to promote their interests in a representative democracy. A. Explain two provisions in the Bill of Rights that protect individuals who try to influence politics. B. Interest groups engage in a variety of activities to affect public policy. Explain how each of the following is used by interest groups to exert influence over policy. – Grassroots mobilization – Lobbying of government institutions – Litigation C. Describe one specific federal governmental regulation of interest groups. l

A: 2 points l l l Speech — allows citizens to say almost anything they want Press — allows citizens access to information, each other and policymakers; printed advocacy Assembly — allows citizens to come together Petition — allows citizens to address government Various due process/criminal justice provisions (e. g. , grand jury indictment, jury of peers, search and seizure) — protects citizens from retribution/harassment from government

B: 3 points l Grassroots mobilization — interest groups organize citizens, who act to influence policymakers l Lobbying — direct contact with policymakers for the purpose of persuasion through the provision of information, political benefits, etc. l Litigation — the use of courts to gain policy preferences through cases or amicus curiae

C: 1 Points l l l l Disclosure of contributions, funding or activities Registration of lobbyists, PACs Campaign finance laws Limits on gifts Limits on revolving-door appointments Limits on honoraria Prohibition of bribery Any named law or regulation with a description of what it does to regulate interest groups

Current Events

GPS on a car without a search warrant? l Constitutional?

4 th Amendment l 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. l What constitutes a reasonable search?

Or right to Privacy? l Include cell phones?

Should the 10 Commandments be posted in public buildings? l Schools – Stone v. Graham (1980): l ruled that posting of the 10 Commandments in classrooms would be a violation of the Establishment clause

Alabama Court House Controversy, 2003 • l A federal Judge ordered the State Supreme court to remove the Ten Commandment monuments from its court house. l Roy Moore, chief justice, refused and was subsequently removed from the bench. l The monument was ultimately removed causing controversy from both sides of the issue l Mc. Creary County v. ACLU of Kentucky (2005) – Supreme Court ruled display of the 10 Commandments in or outside courthouses was a violation of the establishment clause, unless the display was purely for secular purposes.