Government Final Test review 2F Flashcards
GOV II
The right to privacy
this right, according to Justice Louis Brandeis, writing for the minority in the 1928 case of Olmstead v. U.S., was the right to be let alone. He also added that it was the msot comprehensive of all rights. The majority, in this classic case endorsing the practice of overnment wiretappipng, disagreed with brandeis. Wihle impressed by his plea they were not ready to endorse it. HOwever in 1965 Justice douglas, writing for the majority in the case of Griswold v. Connecticut, edorsed this view by stating that this mi;liled right was a fundamental right.
Privacy and contraception
in the Griswold case, the Court dismisesed a Connecticut law that prohibited the use of contraception as a means of birth control. Most states had already removed these laws prohibiting artificial bith control. When the Court dismissed the Connecticut law it effectively ended this ban on a nationwide basis. THe Court rediscovered Brandeis’ argument and argued that these laws denied women their right to privacy
where is the right to privacy?
Justice Douglas found the right to privacy in the free exercise clause of freedom of relgiion in the Firt Amendment. Scholars have found this right in other constitutional amendments as well the Third Ammendment, forbidding th quartering of troops during peacetime in one’s house, enforces the old adage, “a person’s home is his or her castel.” we also find it in the Fourth Amenment concering the warrant process and the exclusionary rule. Additionally, in the fifth AMendment we consider the protection against self-incriminatino. THe sixth Amendment offers those under custodial interrogation and/or arrest the right to counsel.
The Justification of the right to privacy
As alluded to above, we can find many examples of what appear to be rights of privacy. It is one thing to declare that we find examples of the right to privacy in the Constituion and another to argue for its constitutional justification. To do this we must trun to the Ninth AMendment. THe drafters of the Bill of Rights believed it was not possible to list all of the rights in a bill of rights. To rectify the problem they included these words, “The enumartion in the constitutiona, orf certain rigths, shall not be construed to deny or disparage others retained by the people.” the enumareated rights are the rights wirrten in the Constitution; those other rights, not expressed in teh Constitution, are non-enumarated rights. The right to privacy is such a right; the Bill of RIghts endorses it in numerous occasions. In the Griswold decision the Court incorparated it into state law.
Roe v. Wade: The right to abortion
The first significant use of the right to privacy after the Griswold decision was Roe v. Wade. This case legalized abortion during the first and second trimester of pregnancy. The court endorsed a trimester system in dtermining the eligibility of a woman to have an abortion. During the first trimester women had the right to an abortion on demand. In the second trimester doctros could perform an abortion only to protect the health of the mother. Becuase of the viability of the fetus during the third trimester, the state may prohibit abortion.
The Right to aboriton after Roe
Roe v. Wade became one of the most controversial cases in the history of the Supreme Court. Shortly after the decsion, many so called pro-life groups emerged. They challenged the rigth to abortion in many ways, including court cases, legislation, executive orders and demonstrations. Today, abortions remain legal. Restrictions include those found in the following:
Hyde Amendment:
The hyde amendment became the first and most significant legislative restriction. It prohibited the use of federal welfare money for abortions unless there is a life-threatening situation or rape or incest is involved
Webster v. Reproduction Health Services
In this 1989 case the court upheld a missourii law barring public employees form assisting with abortions and prohibited public health facilities form engaging in the practice. Furthermore, it mandated biability testing for all fetuses twenty weeks or older.
Planned Parenthood v. Casey
Building on the Webster decision, the Court in the 1992 Casey case allowed states to restrict or prohibit abortion on the basis of viability of the fetus. Meidcal emergencies and “undue burdens” permitted exceptions to occur. During this case many speculated whether the COurt would overturn Roe. WHIle the Court did approbe the above restrictions, it did, in the majority, support he continuation of the basic rights contained in Roe
Gonzales v. Carthart
In this 2007 case the court ruled against what is often called partial birth abortion or medically intact dilation and extraction. These rearely performed abotions occurred during the third trimester allegedly when a mother’s health was impaired severly.
Dru Testing
The proliferation of drugs in the 1960s and 1970s led to aconcern about their effects otneh workplace. In 1986 President Reagan signed an executive ordere mandating that federal employees undergo drug testing. The supreme Court upheld a lower court decision dismissing the order of the preisdent. Nevertheless, the Court did permit drug testing for federal employees in areas where compelling interst or public safety are requried. THe Court has overwhelmingly upheld drug test sin the private sector
Sexual practices
in the 1970s the gay rights movement made political impact. Gay rights activists argued in support of hate crime legislation to curb “gay bashing” additionally, there were calls for understanding. The diversity of sexual xpression. In that 1986 environment the court heard Bowers v. Hardiwch. Bowers failed to show up at court for a public intoxication violation in Atlanta. WHen the police showed up at Bower’s motel they found him engaged in sodomy. Afther his arrest, trial and convicition he appealed his case to the Supreme Court. THe Court ruled against him saying that a zone of privacy is applicable only to heterosexual sex. In 1998 in Lawrence v. Texasthe Court reversed itself, and made all states sodomy laws uncosntitutional.
The right to die
Euthanasia or the right to die falls into two categories: Passive and Active. In passive euthanasia the termination of one’s life involves authorizing the removal of extraordianry means used to keep that person alive. In the Quinlan case of 1976 the Court agreed to let a New Jersey court decision stand that supported this type of euthanasia. THis action encouraged the use of living will. Trouble still may arise in case where there is no living will, as in the tragic case in Florida of Terri Schiavo. Ms. Schiavo lied in a vegetative state. Her husband wanted to terminate her, but her parents objected. Eventually her husband won his case, but not before many state and national policitcans weighed in on the event. However, the Court has never agreed to active euthanasia. This type of euthanasica features physician assisted suicide. In Curzon v. Missouriy Mental Health the Court ruled that individuals do not have the right to terminate their lives wit or without the help ofa physician. In 1977 case from New York the Court reinforced this position. THis set the stage for the eventual imprisonment of the rather popular “doctor of death” Jack Kevorkian.
The rights of the accused
The rights of the accused appear in all of the Fourth, most of the Fifth, all of the Sixth, somewhat in the Seventh and all of the Eight Amendments. These are substantive due process constitutional protections for individuals facing possible deprivation of their lives or liberty. Remember, with the initial adoption of the constituation the preservation of these rights only applied to the national government, but through incorporation the proection of most of these rights are incumbernt upon the states to abide by them as well.
Accused v. Guilt
consdier that in American jurisprudence one is innocent until proven guilty. In essence, it is the government that most prove you are guilty beyond a resonable doubt. Though the accused are charged with offenses, this does not make them guilty
The fourth ammendment
The Fourth Amendment protects individuals from unreasonable search and seizure. The search and seizure procedure avoids any unreasonable pretense by a warrant process, which places limits on “the place to be searched and the persons or things to be seized.”
Probable cuase
Probable cause determines the appropriateness of the seizure of itmes or the arrest of the individual. Those charged with carrying out procedural due process must adhere to certain restrtiction. IN order to acquire the necesasry warrant proscribed by the Fourth Amendment, law enformcement personnel must establish the reasonbalness of the request. It must not be based on mere suspcion or represented in the eyes of the magistrate, empowered to authorize the warrant, a so-called “fishing expedition”
The exclusionary rule
According to this rule originally artiucalted by the Court in the 1914 decision of Weeks v. U.S., any illegally seized evidence is not admissible in court. If the law enforcement officials obtain evidence outside what the warrant prescribes it cannot be admitted. THE 1961 CASE OF mAPP V. Ohio extended this rule to the States
Good faith expception
Since Mapp, the Court has viewed the warrant process as too confining. For example, ther may very well be opportunities afforded law enforcement personnel to pursue evidence or individuals normally restricted by the prescribe warrants process. Therefore the COurt determined that there were some exception to the rule called good faith exceptions. Examples of good faith exceptions include.
Plain View:
If while pursuing the items or persons mentioned in the warrant the investigating officer discoveres evidence beyond that stated in tit that is in clear vilation of the law, he or she may be able to secure this material. This is exception, referred to as the doctrine of plain view, is limited to an area within normal vision of the investigating authority.
Defective warrant:
Evidence obtained by an inappropriate wrrant may be used in court provided the officer mistakenly uses it, or uses it with the knowledge that it has clerical errors
terry search
the so-called “stop and frisk” procedure is a ppropriate without a wrrant if an officer believes that the suspect is about to commit a crime. The original basis for this test concerns the safety of the officer
a person’s home is his or her garbage
officers may search a suspect’s garbage in order to find illegal material. In one such case this included drug paraphernalia
other dug issues
while driving a car peculiarly you are stopped and found to hold crack cocaine, look forwardto your arrest for drug possession. If you place a no trespassing sign by you pot farm, and the police have proabble cause to enter, they may. If you are growing marijuana in a field on your property, you can be arrested. HOwever, if you are growing marijuana in a greenhouse without panels and the police discover your operation they cannot arrest you. NOr may police use thermal imagery of your house to detect a marijuana hothouse.
Sixth amendment
When it comes to trial time, we introduce the Sixth Amendment. This amendment guarantees one both the right to a speedy trial and to counsel.
The Speedy trial
Although the Court has not determined what constitutes a speedy trial, Congress in 1974 passed the Speedy Trial Act in which federal courts must bring defendants to trial within sixty days of arrest. This acto nly applies to federal courts. On an average, state courts schedule a maximum of 180 days for those out on bail, and 120 days for those held without bail.
Right to Counsel
Accorindg to the Sixth Amendment individuals have the right to counsel. Originally it only applied to federal court. Then through a series of decsions the Court expaanded that right to states
Miranda V. Arizona and your Miranda rights
In the 1963 case of Excobedo v. Illinois the Court mandated that states must provide counsel for those under arrest who are indigent and cannot hire a lawyer. Neverhtelss, this right remained unclear to many invovled with the arresting process. One of thoese uniformed of his right to counel was Ernesto Miranda. Under custodial interrogation MIrdan confessed to rape and murder. In the case of MIranda v. Arizona in 1966, the COurt rueld that nay person a bout to be subjected to custodial interrogation must be provided with cerain “procedural safegaurds”. Thus miranda rights came about. Henceforth, the interrogating officer must warn a person in the above situation that he or she has the right silent, to have an attonrey nad to have one provided if one cannot affor it.
Miranda and the Fifth ammendment rights
Your miranda rigths ensure that the state grand you important fight as well as sixth amendment rights. One of the rights contained in the Fifth Amendment is your protection form self-incrimination. Follwing the reminder that you have the right to remail silent, your miranda rights include the warning that “anything you say can be used against you in a court of law.” To do otherwise would deny you the opportunity to protect yourself from involuntarily giving information to the state that may be in the process of prosecuting you. This is the so-called “taking the fifth.” With this prohibition the sate may no longer seek an involuntary confession.
“Good faith expception” and Miranda
Miranda rights do not totally preculde information agained without its inclusion. For example, information gained without its inclusion. For example, informaiton gained from the defendant outside of the reading of the Miranda warning may be used in court. If public safety is an issue, the authorities may use evidence gained against a defendant prior to custodial interrogation
The Fifth Amendment and the grand jury
Grand juries, discussed in the Fifth Amendment, are a federal not a state requriement. The Court rueld that requiring states to do so may be cost prohibitive. Grand juries consist of between twelve and twenty-three people who sit in privte at a hearing where the government presents evidence. THe grand jury then decides whether th eeevidence warrants an individual stnading trial based on probable cuase. If it does, then it realses a true bill, otherwise known as an indictment. THe distrcit attonery(DA) directs the grand jury’s investigation. In order to acqurie the necesary informaiton for an indictment the DA occasionally grants individuals immunity for their testimoines. (Immunity is an exemption given to a witness for testimony given in return.) Critics contend that political consideration often motivates the DA’s focus.
Bail
Bail becomes a consideration for a ccused individualxs awaiting trial. It is a sum of money one pays to secure release from jail until such time as the case comes to trial. Court attempt to set bail at an amount large enough to gruarantee defendants will attend all required court proceedings, but reasonable enough so that they can raise the sums and remain free untial trial. Bail that is not excessive is a right guaranteed by the Eight Amendment but not incorporated into state law. Nevertheless, state courts try to ensure that they use bail but that is not exploitive.
