AP Gov – Chapter 4 Outline
I.
THE BILL OF RIGHTS The Bill of Rights comes from the colonists’ fear of a tyrannical government. Recognizing this fear, the Federalists agreed to amend the Constitution to include a Bill of Rights after the Constitution was ratified. The Bill of Rights places limitations on the government, thus protecting citizens’ civil liberties. A. Extending the Bill of Rights to State Governments As we have seen, federalism divides power between the national government and the state governments. Although the Bill of Rights protected the people from the national government, it did not protect the people from state governments. In 1868 the Fourteenth Amendment became a part of the Constitution. While this amendment did not mention the Bill of Rights, it would be interpreted to impose, provision‐by‐provision, most of the constitutional protections of civil liberties upon state governments during the twentieth century. B. Incorporation of the Fourteenth Amendment Beginning in 1925 the United States Supreme Court began to apply specific rights stated in the Bill of Rights to state governments. Table 4–1 in the text lists the incorporation of the specific rights. However, not all of the rights have been applied to state governments at this time (e.g., the Second Amendment). II.
FREEDOM OF RELIGION The First Amendment addresses the issue of religion from two different venues: (1) “Congress shall make no law respecting an establishment of religion,” and (2) “. . . or prohibiting the free exercise thereof . . .” Congress is prohibited from passing laws that establish governmental involvement in religion, and Congress is prohibited from passing laws that deny people the right to practice their religious beliefs. A. The Separation of Church and State—The Establishment Clause 1.
Aid to Church‐Related Schools. In general, such aid is prohibited by the Establishment Clause. The three‐part Lemon test is applied in most cases under the Establishment Clause, but the interpretation of the test has varied over the years. 2.
A Change in the Court’s Position. Recently, however, in limited cases, the Supreme Court has permitted aid that goes to all schools—religious or public. 3.
School Vouchers. A current controversy in this area involves whether school vouchers can be used to attend religious schools. Some states’ attempts at education reform include granting student vouchers that can be used at any public or private school, including religious schools. The Supreme Court has ruled that this is permissible, as it is the parents, not the state, that is choosing to subsidize the religious school. B. 4.
The Issue of School Prayer—Engel v. Vitale. The Supreme Court ruled that officially sponsored prayer in schools violates the Establishment Clause. 5.
The Debate over School Prayer Continues. The court has, however, allowed school districts to have a moment of silence when such an event was conducted as a secular rather than religious occasion. 6.
Prayer outside the Classroom. The Supreme Court has ruled that students in public schools cannot use a school’s public address system to pray at sporting events. In spite of this, students in some districts (especially in the South) deliberately violate the ruling, or use radio broadcasts to circumvent the Court’s decision. 7.
The Ten Commandments. The Supreme Court has split on the display of the Ten Commandments, allowing it as part of a larger display on the grounds of the Texas state capitol, but disallowing it as an overtly religious display in Kentucky courthouses. 8.
Forbidding the Teaching of Evolution. The courts have interpreted the Establishment Clause to mean that no state can ban the teaching of evolution or require the teaching of creationism. Some school districts have considered teaching “intelligent design,” which some contend is a scientific theory, as an alternative explanation of the origin of life. Critics of intelligent design question its scientific value and suggest that proponents have a religious agenda. 9.
Religious Speech. Public schools and colleges cannot place restrictions on religious organizations that are not also placed on nonreligious ones. In Rosenberger v. University of Virginia, the Supreme Court ruled that it was not constitutional for the University of Virginia to provide support to most student organizations but to exclude a religious student organization. The Free Exercise Clause The Free Exercise Clause guarantees the free exercise of religion. However, the Supreme Court has allowed for some restraint here when religious practices interfere with public policy and the public welfare. Examples of this include the ability of school districts to select texts for students and the requirement of vaccinations for school enrollment. 1. The Religious Freedom Restoration Act. Passed by Congress in 1993, the act required all levels of government to “accommodate religious conduct” unless there was a compelling reason to do otherwise. In 1997, the Supreme Court ruled the act unconstitutional. 2. III.
Free Exercise in the Public Schools. Under the No Child Left Behind Act of 2002, schools can be denied federal funds if they ban constitutionally acceptable expressions of religion. FREEDOM OF EXPRESSION The First Amendment protects most speech, but some speech either falls outside the protection of the First Amendment or has only limited protection. A. No Prior Restraint This is, in effect, censorship. Only in the most extraordinary of circumstances has the government been allowed to completely prevent the press from printing. If the publication violates a law, the law can be invoked only after publication. B. The Protection of Symbolic Speech Signs, gestures, and articles of clothing that convey meaning are constitutionally protected speech. One of the most controversial types of symbolic speech is the act of burning the American flag. C. The Protection of Commercial Speech Advertisements have limited First Amendment protection. Restrictions must directly meet a substantial government interest and go no further than necessary to meet the objective. Advertisers can be liable for factual inaccuracies in ways that do not apply to noncommercial speech. In 2009, the Supreme Court ruled that corporations and other associations were “persons” in terms of the law and thus had free speech rights. D. Permitted Restrictions on Expression Periods of perceived foreign threats to the government sometimes lead to more repression of speech, such as after the terrorist attacks of September 11, 2001. The Supreme Court changes its view about what might be “dangerous” speech depending on the times. 1. Clear and Present Danger. During the twentieth century, the Supreme Court has allowed laws that restrict speech that allegedly would cause harm to the public. The restrictions were principally imposed on advocates of revolutionary or dangerous ideas. The original test, established in 1919, was the clear and present danger test. 2. Modifications to the Clear and Present Danger Rule. In 1925, the government received great power to restrict speech through the Court’s enunciation of the bad tendency rule. In 1951, however, the Court introduced the grave and probable danger rule that gave much less protection to free speech than did the clear and present danger test. In 1957, the Court began reducing the scope of the previous laws passed by Congress. The current rule, established in 1969, is the incitement test. This test allows restrictions on speech only when the speech is an immediate incitement to illegal action, a standard that provides protection to a significant amount of controversial speech and that is difficult for prosecutors to meet. E. Unprotected Speech: Obscenity Generally, the courts have not been willing to extend constitutional protections of free speech to “obscene” materials. F. 1. Definitional Problems. The current definition stems from 1973. Material is obscene if (1) the average person finds it violates community standards; (2) the work as a whole appeals to a prurient interest in sex; (3) the work shows patently offensive sexual conduct; and (4) the work lacks serious literary, artistic, political, or scientific merit. 2. Protecting Children. The government can ban private possession of child pornography, i.e., photographs of actual children engaging in sexual activity. 3. Pornography on the Internet. Congress has made many attempts to shield minors from pornography on the Internet, most of which have been found unconstitutional. However, Congress may condition federal grants to schools and libraries on the installation of “filtering software” to protect children. 4. Should “Virtual” Pornography Be Deemed a Crime? Computer‐generated images of children engaging in sexual activity are not child pornography, since no actual children are involved in producing the images. Unprotected Speech: Slander One type of speech that falls outside the protection of the First Amendment is slander—statements that are false and harm the reputation of another. G. H. Campus Speech 1. Student Activity Fees. Colleges may distribute such funds among student groups even when groups espouse beliefs that some students would reject. 2. Campus Speech and Behavior Codes. The courts have generally found such codes to be unconstitutional, but many continue to exist. Hate Speech on the Internet Restrictions on such speech exist in other countries, but not in the United States. IV.
FREEDOM OF THE PRESS Freedom of the press is similar to freedom of speech. A. Defamation in Writing Key concept: libel, a written defamation of character. Public figures must meet a higher standard of proof (actual malice) than ordinary people to win a libel suit. B. A Free Press versus a Fair Trial: Gag Orders The courts have occasionally ruled that a gag order may be used to ensure a fair trial. To this end, the courts have said that the right of a defendant to a fair trial supersedes the right of the public to “attend” the trial. C. Films, Radio, and TV Freedom of the press now includes films, radio, and television, although broadcast radio and TV are not afforded the same protection as the print media. Some language is not protected (filthy words) even though the language is not obscene. V.
THE RIGHT TO ASSEMBLE AND TO PETITION THE GOVERNMENT The Supreme Court has held that state and local governments cannot bar individuals from assembling. State and local governments can require permits for such assembly so that order can be maintained. However, the government cannot be selective as to who receives the permit. A. Online Assembly Certain Web sites advocate violence against physicians who practice abortion. The limits to such “online assembly” remain an open question. VI.
MORE LIBERTIES UNDER SCRUTINY: MATTERS OF PRIVACY There is no explicit constitutional right to privacy, but rather the right to privacy is an interpretation of the Constitution by the Supreme Court. The basis for this right comes from the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments. The right was established in 1965 in Griswold v. Connecticut. A. Privacy Rights in an Information Age Individuals have the right to see most information that the government may hold on them. B. Privacy Rights and Abortion A major right‐to‐privacy issue is abortion rights. Historically, abortion was legal before the “quickening,” or first movement of the fetus in the uterus. By 1973, performing an abortion at any time during pregnancy was a criminal offense in a majority of states. C. 1. Roe v. Wade. In Roe v. Wade (1973) the Supreme Court held that governments could not totally prohibit abortions because this violates a woman’s right to privacy. Government action was limited depending on the stage of the pregnancy: (1) first trimester—states may require that only a physician perform the abortion; (2) second trimester—to protect the health of the mother, states may specify conditions under which the abortion can be performed; and (3) third trimester—states may prohibit abortions. In later rulings, the Court allowed bans on government funds being used for abortions. It also allowed laws that require pre‐abortion counseling; a 24‐hour waiting period; and for women under 18, parental or judicial permission. 2. The Controversy Continues. The Court has approved various limits on protests outside abortion clinics. A current issue is “partial birth abortion,” or “intact dilation and extraction,” a second‐trimester procedure. State governments and Congress have attempted to ban the procedure, but so far, all bans have been ruled unconstitutional. Privacy Rights and the “Right to Die” In Cruzan v. Director, Missouri Department of Health (1997) the Supreme Court decided that a patient’s life support could be withdrawn at the request of a family member if there was “clear and convincing evidence” that the patient did not want the treatment. This has led to the popularity of “living wills.” D. 1. What If There Is No Living Will? For married persons, the spouse is the relative with authority in this matter. 2. Physician‐Assisted Suicide. The Supreme Court has said that the Constitution does not include a right to commit suicide. This decision left states much leeway to legislate on this issue. Since that decision in 1997, the state of Oregon has legalized physician‐assisted suicide as did the state of Washington in 2009. In both cases, the circumstances when these provisions can be invoked are very limited. Privacy Rights versus Security Issues Privacy rights have come under greater scrutiny since September 11, 2001, and Congress has continued to reform related legislation. A number of tools previously used against certain types of criminal suspects have been authorized for use against a broader array of terror suspects. Many civil liberties organizations argue that abuses of the Fourth Amendment are ongoing. VII.
1. The USA Patriot Act. The Patriot Act was designed to enhance the government’s ability to combat terrorism, easing restrictions on the investigation, surveillance and detention of terrorist suspects. 2. Civil Liberties Concerns. Although some see the Patriot Act as an essential tool in the fight against terrorism, others fear that these expanded powers of investigation might be used to silence government critics or to threaten members of interest groups who oppose government policies. Congress renewed most of the provisions of the act in 2006. THE GREAT BALANCING ACT: THE RIGHTS OF THE ACCUSED VERSUS THE RIGHTS OF SOCIETY Many people believe that the rights of the accused are protected more than the rights of society and of victims. The reason for this protection is partly to avoid convicting innocent people, but mostly because all criminal suspects have the right to due process of law and fair treatment. The Fourth, Fifth, Sixth, and Eighth Amendments deal specifically with the rights of criminal defendants. A. Rights of the Accused In the United States when the government accuses an individual of committing a crime, the individual is presumed to be innocent until proven guilty. The basic rights of criminal defendants, set forth in the Bill of Rights, include protections such as: No unreasonable or unwarranted searches and seizures (Fourth Amendment), no arrest except on probable cause (Fourth Amendment), no coerced confessions (Fifth Amendment), the writ of habeas corpus (Article I, Section 9), a right to legal counsel (Sixth Amendment), a right to remain silent (Fifth Amendment), and no cruel and unusual punishment (Eighth Amendment). B. Extending the Rights of the Accused Today the conduct of police and prosecutors is limited by various cases, and the accused has the right to an attorney if he or she cannot afford one (Gideon v. Wainwright 1963). 1. Miranda v. Arizona. The Miranda ruling requires the police to inform suspects of their right to remain silent and to have the presence of an attorney during custodial interrogation. 2. Exceptions to the Miranda Rule. These include a “public safety” exception, and a rule that illegal confessions don’t necessarily bar a conviction if compelling evidence exists independent of the confession. 3. Video Recording of Interrogations. In the future, such a procedure might satisfy Fifth Amendment requirements. C. The Exclusionary Rule The exclusionary rule prohibits the admission of illegally seized evidence (Mapp v. Ohio 1961). VIII.
THE DEATH PENALTY A. Cruel and Unusual Punishment? The Eighth Amendment prohibits “cruel and unusual punishment.” Does the death penalty violate the cruel and unusual punishment clause? In the 1970s most state death penalty statutes were found to be unconstitutional because of inconsistent and arbitrary use. As states began to revise capital punishment statutes and clarify the circumstances in which the death penalty was required, the Court held that the new laws were not a violation of the Eighth Amendment. B. The Death Penalty Today Currently 38 states and the federal government allow the death penalty. In 1994, polls indicated that 80 percent of Americans supported the death penalty. Recent polls, however, suggest that this number has dropped to between 50 and 60 percent, possibly because of public doubt about the justice of the system. Since 1973, more than one hundred prisoners have been freed from death row after new evidence suggested that they were convicted wrongfully. Current controversy includes the method by which individuals may be put to death. The most commonly used form of lethal injection is alleged to cause extreme pain thus violating the constitution’s ban on cruel and unusual punishment. Although some states have voluntarily suspended the “three drug method,” the Court upheld its continued use in 2008. C. Time Limits for Death Row Appeals The 1996 Anti‐Terrorism and Effective Death Penalty Act limits appeals from death row. Many are concerned that the shortened appeals process increases the possibility that innocent persons may be put to death before evidence that might free them can be discovered. The time between conviction and execution has been shortened from an average of 10–12 years to an average of 6–8 years.