exam 3 chap 4 Flashcards
Bill of rights
Constitution provides protection concerning
– habeas corpus
– bills of attainder
– ex post facto laws
* Foundation of civil liberties is Bill of Rights
– 10 amendments added to Constitution in 1791
Bill of Rights only limited power of the
federal govt. at first
* Fourteenth Amendment (1868) grants
citizenship to all persons born or naturalized
in the U.S., provides for equal protection of
the law, and that no state shall deprive any
person of life, liberty, or property, without
due process of law
clear and present danger
speech can be restricted if it represents “clear and present danger”
due process clause
In 2010, the Supreme Court incorporated the individual right to bear
arms into the Due Process Clause of the Fourteenth Amendment, ruling that state laws regulating firearms could violate this constitutional right.
provisions of the Fifth and Fourteenth Amendments that limit government power to deny people “life, liberty, or property” on an unfair basis
establishment clause
govt. prohibited from officially recognizing and supporting a national church
Accommodation” interpretation
govt. may not favor one religion over another, or discriminate against any particular religion, but can encourage religious activities in general
Wall of Separation” interpretation
govt. should not aid, support, or encourage any
particular religion or religion in general
– advocated by Thomas Jefferson
ex post facto laws
a law that imposes criminal liability or increases criminal punishment retroactively.
establishment clause
Engel v. Vitale (1962)
– mandatory prayer in public schools violate establishment clause
* Sante Fe Independent School District v. Doe
(2000)
– student led prayer utilizing public address equipment prior to public school athletic contests violate establishment clause
gag order
prohibit people involved in a trial from speaking publicly until it is over
to ensure right to a fair trial
– Gannett Co. v. De Pasquale (1979)
Lemon Test
law must have a secular purpose
* primary effect of the law must not advance or inhibitreligion
* law must not foster excessive government entanglement
with religion
Patriot Act
the Fifth Amendment prohibits the federal government from depriving people of their “life, liberty, or property, without due process of law.” Recall that due process is a guarantee that people will be treated fairly and impartially by government officials when the government seeks to fine or imprison them or take their personal property away from them. The courts have interpreted this provision to mean that government officials must establish consistent, fair procedures to decide when people’s freedoms are limited. In other words, citizens cannot be detained, their freedom limited, or their property taken arbitrarily or on a whim by police or other government officials. As a result, an entire body of procedural safeguards comes into play for the legal prosecution of crimes. However, the Patriot Act, passed into law after the 9/11 terrorist attacks, somewhat altered this notion.
prior restraint
English legal tradition
preventing govt. from restraining
(censoring/prohibiting) publication of
newspapers
– Near v. Minnesota (1931)
– New York Times v. United States (1971)
* Radio & TV licensed by govt. to broadcast
over public airways
right to privacy
Right to privacy based on First, Third,
Fourth, Fifth, and Ninth Amendments
– Griswold v. Connecticut (1965)
– Roe v. Wade (1973)
– Lawrence v. Texas (2003)
– Gonzales v. Oregon (2006)
– Dobbs v. Jackson Women’s Health
Organization (2022) overturned Roe
* Justice Clarence Thomas in his concurring opinion
calls for overturning other cases involving right to
privacy as well as same-sex marriage recognition
selective incorporation
Beginning in 1897, the Supreme Court has found that various provisions of the Bill of Rights protecting these fundamental liberties must be upheld by the states, even if their state constitutions and laws (and the Tenth Amendment itself) do not protect them as fully as the Bill of Rights does—or at all. This means there has been a process of selective incorporation
When the Supreme Court initially decided in 2008 that the Second Amendment protects an individual’s right to keep and bear arms, it did not decide then that it was a fundamental liberty the states must uphold as well. It was only in the McDonald v. Chicago
symbolic speech
Symbolic speech protected
– Tinker v. Des Moines Independent Community
School District (1969): wearing black arm bands
– Texas v. Johnson (1989): burning American flag
* Symbolic speech restricted
– Virginia v. Black (2003): KKK burning cross with
intent to intimidate others
“Wall of Separation”
govt. should not aid, support, or encourage any
particular religion or religion in general
– advocated by Thomas Jefferson
bills of attainder
A legislative act that provides for the punishment of a person without a court trial.
double jeopardy
Cannot be tried twice for the same offense
(double jeopardy)
eminent domain
The Fifth Amendment also prohibits the government’s taking of an individual’s property (through eminent domain or civil forfeiture) without just compensation, but both have been frequent tools of government and law enforcement, leading to property loss for many people.
exclusionary rule
a requirement, from Supreme Court case Mapp v. Ohio, that evidence obtained as a result of an illegal search or seizure cannot be used to try someone for a crime
free exercise clause
the provision of the First Amendment that prohibits the government from regulating religious beliefs and practices
Reynolds v. United States (1879)
* polygamy not protected
* established principle that First Amendment does not
guarantee absolute freedom of religion
* established principle that govt. can limit practices
considered morally or socially unacceptable
habeas corpus
A court order requiring explanation to a judge why a prisoner is being held in custody
Miranda warning
1966 ruling in Miranda v. Arizona, whereby suspects were required to be informed of their most important rights, including the right against self-incrimination, before being interrogated in police custody.
plea bargain
an agreement between the defendant and the prosecutor in which the defendant pleads guilty to the charge(s) in question or perhaps to less serious charges, in exchange for more lenient punishment than if convicted after a full trial
probable cause
legal standard for determining whether a search or seizure is constitutional or a crime has been committed; a lower threshold than the standard of proof needed at a criminal trial
search warrant
needed to “search digital information on a cell phone seized from an individual who has been arrested
Govt. needs search warrant (from a judge)
based on probable cause
* Search warrant not needed
– in connection with valid arrest
– to protect officer’s safety
– if suspect gives permission
– at international borders
– when evidence is in plain view
self-incrimination
an action or statement that admits guilt or responsibility for a crime
undue burden test
a means of deciding whether a law that makes it harder for women to seek abortions is constitutional
Starting in the 1980s, Supreme Court justices appointed by Republican presidents began to roll back the Roe decision. A key turning point was the court’s ruling in Planned Parenthood v. Casey in 1992, in which a plurality of the court rejected Roe’s framework based on trimesters of pregnancy and replaced it with the undue burden test, which allows restrictions prior to viability that are not “substantial obstacle[s]” (undue burdens) to women seeking an abortion.74
