Chapter 4 Notes Flashcards
Believed in the states rights to govern
Hobbes
Believed in the protection of individual liberties
Locke
Constitution specifically prohibits what two things?
- bill of attainer
2. ex post facto laws
Legislation. Form of government where legislative body can legislate what is criminal and determine penalty.
Bills of attainer
After the action has happened, legislation can come back and ban it.
Ex pos facto laws
Freedom of Expression
1st amendment
Rights of the accused
4-8 amendments
Arms and troops
2-3 amendments
Rights of states and “people”
9-10 amendments
“one happy family?” 1st 10 amendments do not apply to the states, the states don’t have to uphold them.
Barron v. Baltimore
14th amendment uses this and applies it to the Bill of Rights on a CASE BY CASE basis to set ONE NATIONAL STANDARD
SELECTIVE INCORPORATION
This lead to the clarification that the 1st 10 amendments are fundamental to all citizens, no government can infringe upon them.
Due-process clause
Prior restraint disallowed under extreme burden of proof on government. Pentagon Papers.
New York Times Co. v. United States
In this case the Court ruled that the second amendment protects an individual right to possess a firearm
District of Columbia v. Heller
In this case the Court further extended the 2008 decision to apply to all state and local governments
McDonald v. Chicago
In the suspicion phase, what rights are protected by the amendments?
4th amendment, Right to no unreasonable search and seizure
In the arrest phase what rights are protected by bill of rights?
5th amendment, protection against self-incrimination
Case: No legal interrogation until suspect has been warned his/her words could be used as evidence
Miranda v. Arizona
In the trial phase what rights are protected by the amendments?
5th amendment: suspect cannot be tried for federal crime unless indicted by grand jury, states not required to use grand juries
6th amendment: right to legal counsel before and during trail
In the sentencing phase what rights are protected by the bill of rights?
8th amendment: prevention of cruel and unusual punishment
This prevents states from abridging individual rights.
The 14th amendment due-process clause
SCOTUS engages in this by invoking the 14th amendment to apply to the Bill of Rights to the states
Selective incorporation
The “Scottsboro Boys” case. The defendants didn’t have the time to secure a counsel. States can’t restrict a defendant’s right to counsel.
Powell v. Alabama
Says that prior restraint cannot be used by the states; can’t restrict expression even before you make that restriction (in terms of publishing something)
Near v. Minnesota
What are the main components of the 1st amendment?
Speech, press, assembly, religion
What was the deal with the Sedition Act? (SCOTUS ruling)
SCOTUS never ruled on it. This was before judicial review. Congress just started ignoring it.
The Espionage Act lead to what court case?
Schenck v. United States
What was the result of Schenck v. United States, and what is the ultimate thing that was established because of it?
SCOTUS said that no, his actions were NOT protected by the 1st amendment, because they presented a danger.
Clear-and-present-danger test
What was the status of freedom of expression during the early cold war?
Freedom of speech abridged in interest of national security. There is a clear difference between peace time and war time; the gov’t can restrict more in interests of national security. SCOTUS ruled the government could see who was holding communist ideals
What happened after the 1950s in regards to freedom of expression and what continues today?
Now freedom of expression cannot be infringed upon by gov’t unless it fails the
Clear and present danger test
Is symbolic speech protected? To what extent?
Yes, it is protected. But not as much as verbal speech.
What are the terms that come with freedom of assembly?
Some restrictions are allowed, based on national security or disruption of daily life. Government can place time, place, and manner restrictions
In the balancing act between the interests of states and the individual, who does the US gov’t lean to?
The individual
What was the verdict on New York Times v. United States?
Prior restraint is not allowed under the extreme burden of proof on the government.
Publishing material that falsely damages a person’s reputation?
Libel
Spoken words that falsely damage a person’s reputation
Slander
Libel against public officials requires? Why is that so?
Proof of malicious intent
- It’s harder to purse libel suit by public officials because they are public figures and their lives and info are made more public so voters can learn more about them and make informed policy decisions/stances
What are the 2 clauses of the freedom of religion?
- Establishment clause
2. Free-exercise clause
- Government may not favor one religion over another
- Government may not favor religion over no religion
Establishment clause
“Wall of separation” VS. “Excessive entanglement”
- Which one wins out?
- Why does the other win out?
“Excessive entanglement” wins out
- The other doesn’t because the wall of separation doesn’t really exist in public institutions because religious organizations exist everywhere. The excessive entanglement is not an absolute wall.
The establishment clause often involves what test?
Lemon Test
- The policy must have a nonreligious purpose
- The policy’s primary effect must be one that neither advances nor inhibits religion
- The policy must not foster “an excessive entanglement of gov’t with religion”
Lemon test
- Gov’t prohibited from interfering with the practice of religion
- Gov’t interference allowed when exercise of religious belief conflicts with otherwise valid law
- Gov’t may not prohibit free exercise of religion
Free- exercise clause
Widely accepted view that the 2nd amendment blocked the federal gov’t from doing what?
The federal gov’t from abolishing state militias
The Court ruled that “the 2nd amendment protects and individual’s right to possess a firearm”
District of Columbia v. Heller
The Court further extended the 2008 decision to apply to all state and local governments DC v. Heller
McDonald v. Chicago
What is included in the 4th amendment?
- Search and seizure
- Protection from arrest without probable cause
What is in the 5th amendment?
- Self incrimination
- Double jeopardy
- Due process
Whats in the 6th amendment?
- Right to secure counsel
- Fair and speedy trail
Whats in the 8th amendment?
- No excessive bail
- No cruel and unusual punishment
Procedures that authorities must follow before a person can lawfully be punished for an offense
Procedural due process
What rights are protected in the suspicion phase?
4th amendment
What rights are protected in the arrest phase?
- 5th amendment (self-incrimination)
- Miranda warning
What’s protected in the trial phase?
- 5th amendment: suspect cannot be tried for federal crime unless indicted by a grand jury, states not required to use grand juries
- 6th amendment: right to legal counsel before and during trial, right to a speedy trail
- No admission of illegally obtained evidence
- Exceptions: inevitable discovery, good faith
Exclusionary rule
What is protected in the sentencing phase?
- 8th amendment: no cruel or unusual punishment
SCOTUS generally allows states to decide punishments, but it has limited aspects in what 2 things?
- death penalty
- punishment of minors
How many chances do you usually get in an appeal?
ONE
SCOTUS rulings have affected police practices, as evident in?
Miranda
Tough sentencing policies are popular, but whats the issue?
Prison overcrowding
Court has said that this is implicit in the Bill of Rights
Right of privacy
“Without due process of law” refers to what?
14th amendment
Will you find the right to privacy in the bill of rights?
NO
Whats the problem with suicide?
State has an interest in your well being, its a crime against the state
What was the ruling of Roe v. Wade?
Right to choose abortion encompassed by Right to Privacy/Due Process
What was the result of Planned Parenthood v. Casey?
Reaffirmed basic right to privacy but states do have regulatory authority if they don’t constitute an undue burden
What dud Griswold v. Connecticut rule?
Americans have a “zone of privacy” that cannot be lawfully denied
Abortion was protected as what? through what?
A right of privacy through Roe v. Wade
Anti-sodomy laws in states were struct down by SCOTUS that overturned what ruling?
Bowers v. Hardwick
Hamdi v. Rumsfeld and Hamdan v. Rumsfled dealt with what issue?
Detention of enemy combatants
- Surveillance of suspected terrorists
- Warrant less wiretapping
- Leaked NSA communication surveillance
Patriot Act
Americans embrace freedom of expression as what?
An abstract virtue
Americans favor what in particular instances?
Limits of freedom of expression
What is the primary protector of individuals’ rights?
Judicial system
