Study Sheet for Test Four
Courtesy of George Wu
*** incoporation
Chapter 13: Constitutional Freedoms
Section 1: Constitutional Rights
Constitutional Rights- Basic rights guaranteed in Bill of Rights. Believed people had rights because they
were people. Everyone has certain unalienable rights, and BoR guarantee that gov’t cannot abuse rights
of individuals. Starts off with “Congress shall make no law….”
Selective Incorporation- BoR originally intended as protection from fed gov’t. Incorporation extended
it to all levels of gov’t. At time of its implementation, not intended to limit state gov’t, only limited the
fed gov’t from certain actions.
The Fourteenth Amendment- Paved way for major expansion of rights. Defined citizenship, laid
groundwork for making individ rights national. Starts off with “No State shall…” SC interpreted due
process clause to apply BoR to local and state gov. Liberty=all freedoms first amendment guarantees.
No state can deprive freedom of speech, press, religion, assembly from anyone. Applied due process to
guarantee protection from unreasonable search and seizure and cruel and unusual punishment, right to
have a lawyer.
***Gitlow v. New York (1925)- Nationalized BoR. SC ruled that freedom of speech was basic right
no state could deny. From that, almost all of BoR incorporated, except for 2nd, 3rd, 10th, excessive bail
and fines of 8th, and 2 judicial procedures in 5th and 7th. States not required to use grand jury for formal
charges for serious crimes, or have trial by jury in civil cases >$20.
Importance of Incorporation- Incorporation=all US citizens have same basic rights. May not seem
important, but in past, state gov’t ignored rights of people, denied voting rights, and discriminated. BoR
is final safeguard. Nationalization=if citizen believes local authority taken away basic rights, can take
case to fed court all the way to SC.
Section 2: Freedom of Religion
The Establishment Clause- “Congress shall make no law respecting establishment of a religion.”
Separation of church and state. Gov’t should not establish official church or restrict worship.
Religion in Public Life- Religion long part of public life in US. Bans religious qualifications to
hold public office, oaths taken in name of God. Coins-“In God We Trust”, pledge of allegiance, some
congressional meetings open with a prayer. Sometimes gov’t encourages religion, most church property
tax-exempt.
***Everson v. BOE (1947)- Splitting of church and state controversial. First instance of establishment
clause questioned. Challenge of NJ law allowing state to pay for busing students to parochial schools
(operated by church or religious group). Law contended to state support of a religion. SC determined law
benefitted students, not religion. Illustrates uncertainty of separation of church and state.
State Aid to Parochial Schools- Controversial debates over state aid to schools.
BOE v. Allen (1968)- Court upheld program to provide secular textbooks.
Three provisos for State Aid to Religious Institutions--the Lemon Test in Lemon v. Kurtzman (1971)
- Court has used 3 part test to decide if aid violates establishment clause. 1) Must have clear secular
nonreligious purpose, 2) neither advance nor inhibit religions, 3) avoid excessive gov’t entanglement.
Meek v. Pittinger (1975)- SC ruled Pennsylvania was allowed to buy textbooks for non-public
schools yet could not buy instructional materials because that was directly aiding a religion.
Wolman v. Walter (1977)- Buses could be used to transport students to schools but couldn’t be used
to go on field trips.
Release Time- Students released from school to go to religious instruction? Cannot, because school
classrooms supported using taxpayer money, directly aiding religion. Ruled in Zorach v. Clauson that
constitutional if carried on private facilities.
Engel v. Vitale (1962)- Decision involving prayers in school. Began in NYS, Board of Regents
composed a nondenominational prayer for schools to use. It was challenged, and SC ruled it
unconstitutional. Interpreted 1st amendment so that gov’t has no business to compose prayers for people
to recite.
Other School Prayer Cases
Abington School District v. Schempp and Murray v. Curlett- Court banned school sponsored bible
reading and recitation of Lord’s Prayer in public schools. Tax paid teachers conducted this.
Santa Fe Independent School District v. Doe (2000)- Schools cannot allow stadium crowds in prayer
before football games. Such prayers violated separation of gov and religion.
The Equal Access Act- Allows public high schools receiving federal funds to permit student religious
groups to hold meetings in school. Intended to provide opportunity for prayer groups in public schools.
Ruled constitutional in 1990, Westside Community Schools v. Mergens, students sued school. SC said
school may not lead or direct religious club itself, but student led clubs are ok because they don’t endorse
that religion.
Evolution and Creation- Applied establishment clause to theory of evolution.
Epperson v. Arkansas (1968)- SC voided Arkansas law that banned teaching evolution, saying state
has no legitimate interest in protecting religions from views distasteful to them.
Edwards v. Aguillard (1987)- Some required teaching Bible’s account of creation with evolution.
Struck down here because it violated establishment clause with a primary purpose of endorsing a
particular religion doctrine.
Other Establishment Issues- SC applied establishment clause to public Christmas displays.
Nativity Scenes (Lynch and Pittsburg cases)- Court allowed Pawtucket, RI, to display Nativity scene
with secular items. However, SC ruled publicly funded Nativity scene violated Constitution, but allowed
menorah (Jewish candelabrum) with Christmas tree.
Prayers in Legislatures (Marsh)- Ban on school prayer does not extend to gov meetings. Legislators
not susceptible to religious indoctrination. Prayers offered since colonial times.
The Free Exercise Clause- 1st amendment forbids laws prohibiting free exercise of religion. Important
distinction between belief and practice. Right to belief is absolute, right to practice not so much.
Limitations on Religion- SC never permitted religious freedom to justify behavior, especially in
conflict with criminal laws.
Reynolds v. US (1879)- Reynolds, Mormon who lived in Utah, convicted of polygamy. SC upheld
his conviction, showing people are not free to worship in ways that violate laws protecting health, safety,
or morals of community.
Jacobsen v. Massachusetts (1905)- Upheld compulsory vaccination laws, though religions prohibit
Oregon v. Smith (1990)- Denied unemployment benefits to worker fired for using drugs as part of
religious ceremony.
Religious Freedom Restoration Act and City of Boerne- Clinton passed act that designed to overturn
principle held in Smith case. Stated that people have the right to perform religious rituals unless
prohibited by narrowly tailored law and is the least restrictive means of furthering compelling state
interest. Declared unconstitutional in City of Boerne, Texas v. Flores.
But religion upheld in Wisconsin v. Yoder (1972)- State could not require Amish parents to send
children to public school beyond 8th grade. Would violate long held beliefs of Amish community.
Don't worry about the flag salute cases.
Section 3: Freedom of Speech
Types of Speech-Different types of speech subject to different kinds of rulings.
Pure Speech- Verbal expression of thought, may be delivered in many places. Relies only on power of
words to communicate ideas, usually has strongest protection of SC.
Symbolic Speech- Uses actions and symbols with words, like burning draft cards to express opposition
of Vietnam War. Burned American flag to express displeasure of gov. May be subject to gov restrictions
such as conduct that endangers public safety.
United States v. O'Brien (1968)- SC followed 3 part test, established in this court case. Gov upheld
arrest of 4 men burning draft cards. Gov can regulate or forbid if 1) falls within constitutional power of
gov, 2) narrowly drawn to substantial interest unrelated to suppression of speech, 3) leaves open ample
alternative ways to communicate.
Regulating Speech- Right of speech balanced to protect society, outlawed seditious speech, which urges
resistance to lawful authority or advocates overthrow of gov’t. Developed 3 tests, 1) clear and present
danger rule, 2) bad tendency doctrine, 3) preferred position doctrine.
Clear and Present Danger Doctrine- If speech presents immediate danger, 1st amendment does not
protect it.
Schenck v. US (1919)- Schenck-general secretary of Socialist Party. Printed leaflets urging draftees
to obstruct war effort in WWI. SC ruled against him, during times of war his actions threatened wellbeing of nation.
The Bad Tendency Doctrine- Clear and present danger not enough, bad tendency introduced.
Gitlow v. NY (1925) à also selectively incorporates free speech to the states.- speech can be restricted
even if had a tendency to result in illegal action. Reflects many views of Americans, society’s need to
maintain order more important than damages done to basic freedoms.
Whitney v. CA (1927) (described on p. 382 as a freedom of association case))- attended a convention
where Communist Labor Party organized. Party advocated workers using violent means of taking over
property. Membership in party constituted a crime.
The Preferred Position Doctrine- 1st amendment freedoms more fundamental than other freedoms, so
they provide basis of all liberties. Hold a preferred position over competing interests, any law limiting
these freedoms should be presumed unconstitutional.
Murdock v. PA (1943) (Not in the book, but you should know it)- Jeannette, PA had ordinance
requiring solicitors to buy a license. Murdock was asking for contributions and gave books and
pamphlets in return. Ruled unconstitutional because freedom of religion was violated.
Sedition Laws- 1940s, applied during peacetime as well as war. Smith Act made it a crime to advocate
revolution.
Dennis, Yates, and Brandenburg Decisions- Dennis: SC applied clear and present danger test to
uphold conviction of 11 Communist Party leaders. Court simply narrowed def of seditious speech.
Yates: overturned convictions of some Communist Party members. Decided that expressing opinion that
gov should be overthrown is not illegal. Difference between urging ppl to believe in action and urging
them to take action. Brandenburg: Narrowed def of seditious speech again. Advocating use of force may
not be forbidden unless it incites immediate acts of violence.
Other Unprotected Speech
Defamatory Speech- Speech that damages person’s reputation.
Slander, libel- Slander is spoken, libel is written. People can be sued for false damaging statements
made about someone else.
Public Officials (Hustler Magazine)- Limited right of public officials to recover damages for
defamation. Reverend Jerry Falmer could not collect damages for words that intentionally inflict
emotional distress.
"Fighting Words"- words that are so insulting that they provoke immediate violence. Not protected
under 1st amendment.
Chaplinsky v. NH (1942)- Certain well-defined speech and narrowly limited classes of speech that
incite immediate breach of peace can be limited.
Student Speech- Limited student speech.
Tinker, Bethel and Hazelwood Decisions- Tinker: SC made it clear students do not give up all rights
to free speech in high school. Bethel: SC ruled 1st amendment does not prevent officials from suspending
students for lewd speech at school events. School officials decide what manner of speech in classroom is
appropriate. Hazelwood: School officials have authority to regulate student speech in school-sponsored
newspapers, theatrical productions, etc. Distinction between personal expression and speech that occurs
as a part of school curriculum.
Section 4: Freedom of the Press
Prior Restrain Forbidden- censorship of information before it is published. Press may only be censored in
advance only in cases relating directly to national security.
***Near v. Minnesota- Minnesota law prohibited publication of malicious/defamatory newspapers
or magazines. SC lifted injunction 5-4 because it involved prior restraint. Court stressed free press =
freedom from government censorship.
The Pentagon Papers- NYT Co. v. US. Former pentagon employee leaked info to NYT, involving
Vietnam War. Showed that former officials lied to public. Gov argued presented danger to national
security if articles were published. Court rejected claims saying that stopping publication would be prior
restraint. Purpose of 1st amendment was to inform public on government decisions.
New York Times Company v. US (1971)-Above
Free Press and Fair Trials- Right to a fair trial conflicted with freedom of press. Publication of
information may affect result of trial.
Pretrial and Courtroom Publicity- often makes it difficult for jury to decide case fairly.
Sheppard v. Maxwell (1966)- overturned conviction solely because of pretrial and courtroom
publicity. Sheppard convicted to killing his wife. SC ruled press interfered with his right to a fair trial.
Several measured instituted to ensure free trial. 1) moving trial to reduce pretrial publicity, 2) limiting #
of reporters in room, 3) placing controls on reporter’s conduct in courtroom, 4) isolating witnesses and
jurors from press, 5) jury sequestered until trial is over.
Unconstitutionality of Gag Orders- Gag order is order by judge barring press from publishing certain
types of info about court case. Eventually declared too broad and ruled unconstitutional in Nebraska case,
where man a man killed 6 members of a family.
Exclusion from Court- Gannett Co. Inc v. Depasquale, SC ruled public + press could be barred from
pretrial hearings if jury found reasonable probability that publicity would harm right to fair trial. Court
has limited exclusion of press to pretrial hearings dealing with suppression of evidence. Richmond
Newspapers inc v. VA, hearings must be open to press and public except under limited circumstances.
Protecting Sources- Reporters argue that they have the right to refuse to testify in order to protect
confidential info. SC determined reporters don’t have right to withhold info that gov’t needs to prove its
case. 1st amendment doesn’t give special privileges to news reporters.
Shield Laws- 30 states have given some means of protection against being forced to disclose info.
Free Press Issues- Founders thought press as written material, now technology has advanced.
The Federal Communications Commission (FCC)- Radio + broadcast television do not have as much
freedom because they use public airwaves. FCC regulates their actions. Require stations observe
certain standards. May punish stations that use obscene language. Cable has more protection than other
broadcasters but have less than newspapers. Not entitled to max protection because only 1 cable operator
controls. Court struck down Telecommunications Act of 1996 blocking sexually oriented programs.
Motion Pictures- Burstyn v. Wilson, SC held liberty of expression by means of motion pictures is
guaranteed, but may be treated differently than books or magazines.
E-Mail and the Internet- Highest level of free speech to print media. Reno v. American Civil Liberties
Union, SC ruled Internet closer to print media than to broadcast media. Declared that fed law against
porn was unconstitutional. Interest in encouraging freedom of expression
Obscenity- SC supported principle that society has right to protect against obscene speech. Miller v.
California, local communities should set own standards for obscenity.
Section 5: Freedom of Assembly
Protecting Freedom of Assembly- Right associated with freedom of speech because most gatherings
involve some form of speech. If freedom of assembly were not there, no political parties or interest
groups to influence actions of government.
*** DeJonge v. Oregon (1937)- Dejonge convicted for conducting public meeting sponsored by
communist party. SC overturned conviction, saying peaceful assembly for lawful discussion cannot be
made crime. Right to assembly as important as free speech and press, due process clause of 14 th amend
protects from local and state gov’t.
Assembly on Public Property- Freedom of assembly includes right to parade and demonstrate in
public. Forms of assembly occur in parks or streets, could interfere with rights of others to use facilities.
Demonstrations have high prob of violence due to counter-demons, subject to greater gov regulation.
Limits on Parades and Demonstration- Many states require obtaining a permit in order to parade.
Cox v. NH (1941)- One of Jehovah’s Witnesses convicted of violating law requiring parade permit.
Challenged on the ground that it restricted rights to speech and assembly. Court ruled against him, saying
law was not designed to silence, but to protect.
Adderly v. Florida (1966)- Other facilities can be used for demos, but SC has set limits. Demos
could not be held in county jails without permission. State has power to preserve property under its
control.
Cox v. Louisiana (1965)- SC upheld law that banned demos near courthouses if they could interfere
with trials.
Grayned v. City of Rockford (1972)- Upheld ban on demos near schools that were intended to disrupt
classes.
Police Department of Chicago v. Mosley (1972)- Voided city law that banned all demos except
picketing by labor unions, or patrolling an establishment to convince people not to enter.
Assembly and Property Rights- Does not allow group to use private property even if open to public.
Lloyd Corporation v. Tanner (1972)- Group protesting Vietnam War did not have right to enter mall.
Public Assembly and Disorder- Clash of freedom of assembly + speech and protecting public safety.
Nazis in Skokie- American Nazi Party decided to hold a rally in Skokie, many residents were survivors
of Holocaust and relatives of them. Many said they should not be allowed to march because of the great
pain to residents and potential of violence. City required them to post a 300k bond to get a parade permit,
fed appeals court overturned decision.
"The Heckler's Veto"- public vetoes free speech and assembly rights of unpopular groups.
Irving Feiner- verbally attacked P. Truman, American Legion, and mayor of Syracuse. Large crowd
grew, became hostile, police arrested him.
Feiner v. NY (1951)- SC upheld conviction ruling police had acted to preserve order.
Protection of Peaceful Demonstrations- SC overturned convictions of people who only peacefully
demonstrated their support of unpopular causes.
Gregory v. Chicago (1969)- African Am. Activist led group of marchers to downtown Chicago.
Hostile white on-lookers throw rocks and eggs at marchers. Police concluded violence was imminent and
arrested them. SC overturned because demos were peaceful and neighborhood caused disorder.
Don't worry about picketing law
Chapter 14: Citizenship and Equal Justice
Section 1: A Nation of Immigrants
Immigrants and Aliens- alien- a person who lives in a country but is not a citizen of that country. May
intend to become citizens or may not, short or long time, conduct foreign business, etc. Immigrants come
intending to live there permanently.
Classifying Aliens- 5 categories.
Resident Aliens- Person from foreign nation who has established permanent residence in the
US. Usually immigrants, may stay in US as long as they want w/o becoming citizen.
Non-Resident Aliens- person from foreign country expecting to stay for short time.
Enemy Aliens- Citizen of nation with which US is at war. Entitled to full protection, but public
will often discriminate against them.
Refugees- People feeling to escape persecution or danger.
Illegal Aliens- Person who comes to US without legal permit.
Aliens' Rights- BoR apply to aliens as well as citizens. May own homes, attend public schools, carry
on businesses, and use public facilities. Share responsibilities, pay taxes, obey law, loyal to gov. Cannot
vote, exempt from military and jury duty. Not guaranteed right to travel freely in US, required to notify
US citizenship and immigration services if they change residencies.
Immigration Policy- 4 stages
1882-1924: The Growth of Restrictions- restricted mentally handicapped, convicts, paupers, Chinese
Exclusion Act restricted admission of Chinese laborers, prevented them from acquiring citizenship. Asia
+ Southern and Eastern Europe many restrictions, ppl afraid would take jobs away.
1924-1965: National Origins Quotas-Immigration Act of 1924 or Johnson Act lowered # of immigrants
allowed to less than 165k, 80% decrease. Favored immigrants from northern and western Europe,
immigration dropped sharply, high quota nations not interested in coming.
Immigration Policy 1965-1990- Reform Act of 1965- Abolished national origins quota. Set up 2
categories of immigrants. 1) those who came from countries of eastern hemis., and 2) those who came
from countries of western hemis. Ceiling of 120k for western hemis, and 170k from rest of the world.
Established preference categories, highest preference to people who had skills that were especially
advantageous to US. Preference list- unmarried adult children of US citizens, husbands and wives and
children of perm residents, professionals, lowest preference-refugees from Communist countries.
Recent Changes in Immigration- Immigration Reform and Control Act of 1986-provided way for
illegal immigrants to become perm residents and citizens and punishment of employers who hire illegal
immigrants. 1) Aliens who can show entered before 1/1/82 may apply for amnesty. 2) after 5 years may
apply for citizenship. 3) employers forbidden to hire illegal aliens, penalties for each hired. 4) must ask
applicants for documents to prove citizenship or aliens qualified to work.
Changes in Origin- 1990 85% immigrants from Asia or Latin America. New act of 1990 designed to
take country of origin into account. Established limit on immigration to no more than 7% of visas.
Education and Skills- Provided 140k visas for people guaranteed a job in US.
Special Immigrants- Refugees displaced by war, close relatives of US citizens, those admitted through
private laws of Congress.
Private Laws- law that applies to particular person.
Section 2: The Basis for United States Citizenship
National Citizenship- National and state dimension. Citizenship is a requirement to hold office in fed
gov’t, Founders assumed states would decide who was a citizen, exceptions were African Amer., and
immigrants who became US citizens through naturalization.
The Dred Scott Case- Dred Scott was enslaved AA in Missouri, lived with slaveholder in Illinois and
sued for freedom. State court ruled in his favor, Missouri Supreme Court didn’t, SC ruled Scott could
not bring suit to fed court because he was not a US citizen and Congress could not forbid slavery in US
territories. Citizens were only descendants of ppl who are citizens or immigrants who are naturalized.
The 14th Amendment- Dred Scott decision caused outrage in North and added tensions that led to
Civil War. 14th amendment overruled Dred Scott decision and clearly established what constituted
citizenship at national and state levels. People of all races born in US and subject to gov are citizens, so
state citizenship is automatic result of national citizenship.
Citizenship by Birth- 14th amendment set forth 2/3 basic sources of US citizenship. birth on American
soil and naturalization and born to a parent who is a US citizen.
Jus Soli- law of the soil. Grants citizenship to almost all people born in US or American territories.
Children of foreign diplomats not granted citizenship, but to regular people passing in the country, any
born child is auto citizen of US.
Jus Sanguinis- Law of the blood. Rules governing it can be complicated. If individual is born in
foreign country and both parents are US citizens, child is a citizen, provided that one of the parents
must have been a legal resident of US or its possessions at some point in his life. If only one of them is
American citizen, that parent must have lived in US for 5 years, 2 of which after age of 14.
Citizenship by Naturalization- Immigrants who want to become citizens must go through naturalization.
They will have all rights except for becoming pres or VP. Specific qualifications for naturalizations,
including a residency requirement.
Qualifications for Citizenship- 5 requirements 1)must enter US legally. 2) must be of good moral
character. 3) must declare support of principles of American Gov. 4) must prove they can read, write and
speak English (waived if applicants more than 50 years old and lived for 20 years). 5) Must show some
basic knowledge of US history and government. Cannot be draft evader, military deserter, polygamists,
anarchists, Communists or other totalitarian system follower.
Steps to Citizenship- Must be 18 years old, lived in US lawfully for 30 months out of previous 5 years,
and lived in state where petition filed for at least 3 months. If married to US citizen, only needs 3 years
of residency before filing. Investigation and preliminary hearing about moral character is key step.
2 witnesses also asked about character and integrity. May be asked to demonstrate grasp of English
language and questioned about US gov and history. Applicants then asked to attend final hearing, usually
only a formality, judge administers oath of allegiance, requires them to renounce loyalty to former gov,
obey and defend Constitution. Judge issues certificate of naturalization and receive letter from president,
history or pledge of allegiance, and booklet containing important docs of US history.
Exceptions- Collective naturalization, process by which members of a whole group of people become
US citizen through act of Congress. Don’t have to go through process of naturalization. Used 5 times,
Louisiana Purchase 1803, Florida 1819, Republic of Texas 1845, Hawaii 1900 and Puerto Rico 1917. For
over a century, Native Am. denied citizenship, some became citizens through treaties, until 1924 when all
declared citizens. Also waived under special circumstances.
Losing Citizenship- Only fed gov can grant and take away citizenship. State can only take away
privileges, cannot deny citizenship itself.
Expatriation- Giving up one’s citizenship by leaving native country to live in foreign country. May be
either voluntary or involuntary.
Punishment for a Crime- may lose citizenship if convicted for serious disloyal crime. Includes treason,
participation in rebellion and attempt to overthrow gov violently.
Denaturalization- Loss of citizenship through fraud or deception during naturalization process. Also
can occur if citizen joins totalitarian organization within 5 years of becoming a citizen.
don't worry about the section on responsibilities of citizens
Section 3: The Rights of the Accused
Searches and Seizures (Fourth Amendment)- police need evidence to accuse people of committing
crimes but getting evidence requires searching. 4th amendment guarantees right of people to be secure
against unreasonable searches. Police must now state under oath that they have probable cause to suspect
someone of committing a crime to justify search. Must obtain a search warrant from court official and
must describe place to be searched and person or things to be seized.
Payton v. NY (1980)- prior 1980 23 states had laws permitting police to enter home w/o warrant. SC
ruled that except in life threatening situations, forbidden to enter home w/o warrant.
Special Situations (understand the concept, but no need to memorize these cases)- If police see
someone breaking law, do not need to warrant to search or arrest person. Extends to minor infractions, do
not need warrant to search garbage outside home.
The Exclusionary Rule- Illegally obtained evidence cannot be used in federal court.
Weeks v. United States (1914)- first established.
Mapp v. Ohio (1961)- applied to state courts.
Relaxing the Exclusionary Rule- Some criticized rule, asking whether criminals should be allowed to
go freely because police made mistake in collecting evidence.
US v. Leon (1984)- SC ruled as long as police act in good faith when the request a warrant, evidence
may be used even if warrant is defective. Judge made mistake by issuing warrant based on probable
cause found to be invalid.
Nix v. Williams (1984)- inevitable discovery. Evidence obtained in violation of rights can be used at
trial if evidence would be eventually discovered by legal means. Police tricked murderer who led them to
hidden body of victim.
Fourth Amendment in High Schools- protections may be limited in high schools.
New Jersey v. T.L.O. (1985)- school officials do not need warrants or probable cause to search
student property. All that is needed are reasonable grounds to believe a search will uncover evidence that
a student has broken school rules. Assistant P searched purse of student who he suspected was smoking
and found marijuana. Court would rule in favor of student if police officer searched him but it was school
authority so no.
Vernonia School District 47J v. Acton (1995)- Upheld suspicionless drug tests for students
participating in interscholastic activities.
Wiretapping and Electronic Eavesdropping- considered search and seizure.
Olmstead v. US (1928)- Fed agents tapped individ phones for 4 months to obtain evidence necessary
to convict them of bootlegging. SC upheld conviction because agents did not actually enter homes.
Katz v. US (1967)- overruled Olmstead decision. Used public booth to place bets across state lines.
FBI wiretapped the phone booth to convict him, SC reversed conviction, 4th amendment protects people
not just areas from unreasonable search and seizure. Need a warrant to wiretap.
Congress and Wiretaps
The Omnibus Crime Control and Safe Streets Act (1968)- Required fed, state and local authorities to
obtain court order for most wiretaps.
The Foreign Intelligence Surveillance Act (1978)- Requiring court order for wiretapping and
bugging in national security cases. Require gov to get a warrant for any wiretap.
Guarantee of Counsel- 6th amendment guarantees right to have assistance of counsel for def. Fed has
provided attorney in fed cases, but people tried in state courts w/o lawyer. Defendants who had money
more likely to be acquitted then people w/o lawyer.
Early RulingsPowell v. Alabama (1932)- 9 AA youths convicted of assaulting white girls, SC reversed conviction
ruling state had to provide lawyer in cases involving death penalty.
Betts v. Brady (1942)- SC held states did not have to provide lawyers in cases not involving death
penalty. Appointment of counsel not a fundamental right at that time.
Gideon v. Wainwright (1963)- Charged for breaking into a pool hall with intent to commit crime. Too
poor to afford attorney, he requested one, denied by court. Convicted and sentenced to 5 year term.
Studied law books in jail, appealed case SC with handwritten petition, SC overruled Betts v. Brady,
released, retried with lawyer, acquitted, hundreds others also set free. Accused has right to lawyer even
for misdemeanors.
Self-Incrimination (Fifth Amendment)- 5th amendment says no one shall be compelled to be witness
against himself. Covers witnesses before congressional committees and grand juries. Gov bears burden
of proof. Defendants not obliged to help gov to testify against themselves. Also protects against force of
violence to testify against themselves. Applies to state level through due process of 14 th amendment.
Escobedo v. Illinois (1964)- escobedo’s brother shot and died in Chicago, police picked him up, denied
request to see lawyer, no one advised him of his constitutional rights. Made incriminating statements to
police after long night, convicted of murder. SC reversed decision, 5th amendment right to remain silent
was violated and 6th amendment right to attorney violated. Confession may not be used if person denied
access to his lawyer.
Miranda v. Arizona (1966)- Miranda arrested for rape and kidnapping of 18 year old woman. Not told
he could remain silent or have a lawyer. SC reversed conviction, ruled that 5th amendment protection
against self-incrimination requires suspects be clearly informed of their rights before police question
them. Statements made without knowledge of these rights may not be used in court.
Limits on Miranda: (Elstad, Braswell and Fulminante)- Elstad: if suspects confess before informed of
rights, may use confessions as evidence. Braswell: Court narrowed protection from self-incrimination
in business crimes by ruling that employees in charge of records can be forced to hand over evidence.
Fulminante :coerced confessions sometimes allowed. In prison for illegal possession of firearm,
confessed to inmate that he murdered stepdaughter. Was promised protection from other prisoners in
exchange for confession, SC ruled forced confession did not void a conviction if other evidence sustained
guilty verdict.
Double Jeopardy- No person shall be put twice in jeopardy of life and limb. May not be tried twice for
same crime.
Palko v. Connecticut (1937)-Convicted of 2nd degree murder, appealed, then convicted of 1st degree
murder. Appealed to SC because double jeopardy was violated. SC held due process protected rights of
the very essence of a scheme of ordered liberty, but this was not case, upheld conviction.
Benton v. Maryland (1969)- incorporated double jeopardy to states. Charged with burglary and
larceny, convicted of only burglary, demanded new trial because juries unconstitutionally swore their
belief to god, then convicted of both larceny and burglary. SC overturned Palko and ruled it did
constitute double jeopardy.
Cruel and Unusual Punishment- 8th amendment forbids cruel and unusual punishment.
Furman v. Georgia (1972)- Constitutionality of death penalty. Court ruled capital punishment was not
constitutional, because it found death penalty was used in arbitrary ways against AAs and poor people.
Did not outlaw death penalty, only warned states it needed clarification.
Woodson v. North Carolina (1976)- NC made death penalty mandatory for some crimes. Ruled
unconstitutional because failed to take in consideration specifics and mitigating circumstances.
Gregg v. Georgia (1976)- Established new procedures for trials and appeals designed to reduce
arbitrary decisions and racial prejudice. SC ruled death penalty does not constitute cruel and unusual
punishment, it is an extreme sanction, suited to most extreme of crimes.
Section 4: Equal Protection of the Law
Meaning of Equal Protection-14th amendment forbids state to deny equal protection of law. SC ruled
5th amendment also provides protection. Means state gov cannot draw unreasonable distinctions. All
gov must classify or draw distinctions among categories of people, like taxing cigarettes taxes smokers.
When citizen challenges classification, issue is whether classification is reasonable.
The Rational Basis Test- Court will uphold state law when state can show a good reason to justify
classification. Asks if classification is reasonably related to goal of gov.
Wisconsin v. Mitchell (1993)- SC upheld law that imposes longer prison sentences for hate crimes.
Court puts burden of proving a law unreasonable to the people challenging the law.
Suspect Classifications- When classification made on basis of race, religion, or nat origin, subject to
strict scrutiny. For example, law requiring blacks to ride in back of bus.
"Strict Judicial Scrutiny"- No longer enough for state to show law is a reasonable way to handle
public problem. Must show SC that there is compelling public interest to justify law and it is narrowly
tailored.
Fundamental Rights- Rights that go to the heart of American system. Ruled that right to travel freely
between states, right to vote and 1st amendment rights fundamental.
Proving Intent to Discriminate- Laws that classify people unreasonably are discriminatory. Individuals
are treated unfairly solely because of race, gender, etc constitute discrimination.
Showing Intent to Discriminate
Washington v. Davis (1976)- In order to prove state guilty of discrimination, one must prove intent
to discriminate motivated state’s action. AA challenged DC police dept requirement that all recruits pass
verbal ability test. SC said test was NOT unconstitutional because it was not designed to discriminate.
14th amendment guarantees equal laws, not equal results.
The Struggle for Equal Rights- Racial discrimination existed for years after 14th amendment passed.
Segregation and Jim Crow Laws existed.
Plessy v. Ferguson (1896)- SC justified JC laws because 14th amendment allowed separate but equal
facilities. Separate but equal doctrine used to justify segregation in US.
Brown v. Board of Education of Topeka (1954)- Overturned Plessy v. Ferguson, Brown’s family
argued segregated schools could never be equal, their daughter could not attend nearby all-white school
and had to travel across town to an all-black school. SC ruled against segregation.
New Civil Rights Laws- Throughout the South, blacks peacefully broke laws supporting racial
segregation. Held sit-ins, when arrested for breaking segregation laws, convicted and found guilty, then
appealed to challenge constitutionality of laws.
The Civil Rights Act of 1964- Sought to ensure voting rights and equal job opportunities. Altered
black’s position in politics.
Section 5: New Challenges for Civil Liberties
Affirmative Action- Policies that directly or indirectly give preference to minorities, women to make up
for past discrimination. Used in hiring, gov contracts, admission to schools. Most required by court.
Regents of the University of California v. Bakke (1978)- SC ruled colleges and universities could take
race into account w/o using a strict quota system. Colleges changed admission policies for diversity.
Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003)- Grutter: law school treated race as a plus
factor. Gratz, undergraduate used point system that auto gave points to minority. Law school upheld,
undergraduate overruled.
Discrimination Against Women- Won right to vote 19th amendment 1920. New challenges to
discrimination in areas such as employment.
The Supreme Court's Position- Generally ruled laws discriminating against women did not violate
equal protection. Many were designed to protect women.
Reed v. Reed (1971)- Law that auto gave father son’s estate over mother violated equal protection.
Reasonableness Standard- any law that classifies people on basis of gender must be reasonable, not
arbitrary. Difference must serve important gov objectives. Treating women differently from men is
unconstitutional when based on old notions and stereotypes.
Congressional Action- Laws protecting women from discrimination passed.
The Civil Rights Act of 1964- Banned job discrimination based on gender
The Equal Employment Opportunity Act of 1972- Strengthened earlier laws by prohibiting gender
discrimination in activities ranging from hiring and firing to promotion, pay and working conditions.
Citizens' Right to Know- citizens have right to know what gov is doing. Cannot make intelligent
judgments w/o enough info. Security classification system provides that gov activities related to national
security and foreign policy can be kept secret and unavailable to public.
The Freedom of Information Act- Requires fed agencies to provide citizens access to public records
on request. Exemptions only for nat def materials, confidential personnel, financial data, and law
enforcement files. Ppl can sue if denied access.
The Sunshine Act- Gov hearings and meetings used to be held in secret. Closed sessions made it
difficult to keep an eye on gov decisions. Sunshine Act required many meetings be open to public.
Meetings must be open to public, 1 wk advance notice, closed meetings are allowed but must have a
transcript of summary record of the meeting.
Citizens' Right to Privacy- Not mentioned in Constitution
Griswold v. Connecticut (1965)- SC ruled personal privacy is one the rights protected by Constitution.
Specific guarantees in 1st, 3rd, 4th, 5th created area of privacy protected by 9th applied to states by 14th.
"penumbras and emanations"- privacy protected by these emanations
Internet Issues- Widespread use of internet creating new challenges for right to privacy. Surveillance
by gov. “Carnivore” can intercept content of email and marketers can create personal profile based on
web searches and recent actions. Personal info being collected in data warehouses and given to anyone
willing to pay for info.
The USA PATRIOT Act- War + nat emergencies create tension needed to maintain individ rights.
USA patriot act in response to 9/11 increased fed gov power to detain, investigate, and prosecute ppl
suspected of terrorism. Allows fed agencies to monitor internet messages, tap phones with approval from
secret foreign intelligence court, seize person’s library and personal records without showing probable
cause, broadens scope of who is considered a terrorist, allows FBI to share evidence collected in criminal
probes, and gives attorney general power to detain and deport ppl.
Also:
Please know all Economist articles and other readings assigned since the last test. Good luck!