Chapter 11 Flashcards
writ of habeas corpus
a court order requiring explanation to a judge as to why a prisoner is being held in custody.
ex post facto law
a retroactive law that works to the disadvantage of a person, illegal
due process clause
clause in the fifth amendment limiting the power of the national government, 14th amendment applies it to the states. Life liberty or property.
Selective incorporation
The process by which provisions of the Bill of Rights are brought within the scope of the 14th amendment and applied to state and local government.
Establishment clause
1st amendment- congress makes no laws in respect to the establishment of a religion. Forbid direct support to any or all religions.
Free exercise clause
1st amendment- stating that the government shall make no law prohibiting the free exercise of religion.
Commercial speech
Advertisements and commercials for products and services; receive less first amendment protection, primarly to discourage false and misleading ads.
Bad tendency test
an interpretation of the 1st amend. that would permit legislatures to forbid speech encouraging people to engage in illegal action. Abandoned in 1920s.
Clear and present danger test
interpretation of the 1st amendment holding that the government cannot interfere with speech unless the speech presents and clear and present danger that it will lead to evil or illegal acts. 1950s.
Preferred position doctrine
interpretation of 1st amend. that holds the freedom of expression is so essential to democracy that governments should not punish people for what they say, only for what they do. 1940s.
Prior restraint
Censorship imposed before a speech is made or newspaper published, usually presumed to be unconstitutional.
Content or viewpoint neutrality
laws that apply to all kinds of speech, not only that which is unpopular or divisive.
Unprotected speech (3)
- libel
- obscenity
- fighting words
libel
written defamation of another person (false), for public officials they can only collect reward if the comments were made with actual malice, meaning that the statements were made with knowledge with reckless disregard for the truth.
obscenity
the quality of a work that taken as a whole appeals to a prurient interest in sex by depicting sexual conduct in a patently offensive way that lacks artistic, scientific, literary, or political value.
fighting words
words that by their very nature inflict injury on those to whom they are addressed or incite them to acts of violence. Doesn’t apply if you can “look away”.
civil disobedience
deliberate refusal to obey a law or comply with the orders of a public officials as a means of expressing opposition. Not a protected right.
property rights
rights of an individual to own, sell, use, rent, etc. property
eminent domain
the power of a government to take private property for public use; the U.S. constitution gives national and state governments this power and requires them to provide compensation.
regulatory taking
a government regulation that effectively takes land by restricting its use, even if it remains in the owners name.
due process
established rules and regulations that restrain government officials.
procedural due process
constitutional requirement that governments proceed by proper methods; limits how governments may exercise power.
substantive due process
constitutional requirement that governments act reasonably and that the substance of the laws themselves be fair.
search warrant
a writ issued by a magistrate that authorizes the police to search a particular place or person, specifying the place to be searched and the objects to be seized.
exclusionary rule
a requirement that evidence unconstitutionally or illegally obtained be excluded from a criminal trial.
grand jury
jury or 12-13 people who hear evidence presented by government to determine if the person should have to stand trial. If the answer is yes, it issues an indictment.
petit jury
jury of 6-12 that determines if a person is guilty in civil or criminal action.
indictment
formal written statement from a grand jury charging an individual with an offense; also called a true bill.
