American History II – Honors
Study Guide – FINAL EXAM
CHAPTER 18: COURTS
 Role of courts in our society
 Court system under Articles of Confederation, problems with it
a. NO NATIONAL JUDICIARY, PROBLEM b/c each state is interpreting
national laws passed by Congress for themselves
b. Article I, Section 8, Clause 9- “The judicial Power of the U.S. shall be
vested in one Supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and est.”
 Dual system under the Constitution
a. Two separate courts in the U.S.
i. National- more than 120 courts
1. Supreme court
2. Inferior courts- handle most of the federal cases
THE U.S.
Supreme
Court
Inferior Courts
The Constitutional Courts
94 District
Courts
12 U.S. Courts
of Appeals
U.S. Court of
Appeals for the
fed circuit
U.S. Court of
international
trade
Special Courts
Federal Claims
Territorial
Courts
Courts of the
District of
Columbia
Tax Court
Appeals for the
Armed Forces
U.S. Court of
Appeals fo
Veterans
Claims
American History II – Honors
Study Guide – FINAL EXAM
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ii. 50 states has its own court system (thousands)-Hear most of
the cases in the country-97 percent of all criminal cases are
held in state/local courts
Strict v. Loose Construction
a. Jefferson v. Hamilton in the court room!
Jurisdiction – authority to hear and decide a case
a. original jurisdiction- case is first heard
b. appellate jurisdiction- a court that hears a case on appeal from a
lower court
Cases in which federal courts have jurisdiction
a. Subject Matter
i. Interpretation and application of a provision in the
Constitution or in any federal statute or treaty
ii. Matters that arise on the high seas
b. Parties involved in the Case
i. The U.S. or one of its officers or agencies
ii. An ambassador, consul, or other official representative of a
foreign gov.
iii. One of the 50 states suing either another State, a resident of
another state, or a foreign gov, or one of its subjects
iv. Citizen of one state suing citizen of another state
c. Exclusive Jurisdiction- only the federal court
d. Concurrent jurisdiction- share the power to hear cases (state and
fed)
Federal judges – LIFE TERMS, selection process (article II Section II Clause
2), independence of the judiciary
Function of U.S. district courts
a. Federal trial courts
b. Currently 94 district courts- over 700 judges- every state has at least
one district court
c. most cases end in plea bargain negotiated by the defense and
prosecution- only 2 percent are decided by trials
American History II – Honors
Study Guide – FINAL EXAM
 Courts of Appeals
o Est as gatekeepers to relieve the Supreme Court
o There are now 12 courts of appeals in the judicial system
o Their decisions are final unless the Supreme Court chooses to hear
appeals taken from them
American History II – Honors
Study Guide – FINAL EXAM
 Criminal vs. civil case
 Civil
-pleading the 5th can be
used against you
-9 out of 12 jurors
needed to find at fault
-plaintiff vs. defendant
-to sue
-preponderance of
evidence-weigh evidence
like a scale-51 % to 49%
-Jury decides who is at
fault
-Defendant loss of
property/material things
Both
-judge and jury, lawyers
-Jury hears the evidence
-Jury deliberates on the
evidence
Criminal
-5th can’t be used against
you.
-Jury has to be
unanimous
-prosecutor (state) vs
defendant (OJ)
-to convict
-beyond a reasonable
doubt
-Jury convicts/acquits
-loss of life/ liberty
 Judicial review and Marbury v. Madison!!
a. Background
i. Election 1800 again- Jefferson (Anti federalist) victory over
Adams (Federalists)
ii. Federalists tried to pack the judiciary with loyal party members
iii. Congress created several new federal judges- Incumbent
Adams filled them with party members
iv. William Marbury- one of those judges appointed by Adams
and confirmed by the Senate the last night of Adams’
presidency
v. Jefferson orders Madison- incoming secretary of state to
withhold any commissions on judges not yet delivered
(Marbury)
vi. Hoping to force Jefferson to give him the judgeship, Marbury
files suit in the Supreme Court. He argues that the Judiciary Act
of 1789 allows him to take his case directly to the high court.
American History II – Honors
Study Guide – FINAL EXAM
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b. Court’s decision
i. John Marshall- Chief Justice of the U.S. Supreme Court-writing
for a unanimous court, declares that the Judiciary Act violates
the constitution- MARBURY LOSES having based his case on an
unconstitutional law
c. Importance – established JUD REV, what is it?
i. Its power to determine the constitutionality of a governmental
action (national, state, and local)
ii. Assured the place of the judicial branch in the system of
separation of powers
Writ of certiorari
a. Latin- “to be made more certain”
b. Order by the court directing a lower court to send up the record in a
given case for its review.
Majority opinions
a. Officially called the opinion of the court- announces the court’s
decision in a case and sets out the reasoning on which it is based
Concurring opinions
a. To add or emphasize a point that was not made in the majority
opinion- but still agrees with the majority opinion
Dissenting opinions
a. Are written by justices who do not agree with the court’s majority
decision- an “appeal to the intelligence of a future day”
Precedent
a. Examples to be followed in similar cases as they arise in the lower
courts or reach the Supreme Court
CHAPTER 19: FIRST AMENDMENT
 Civil rights vs. civil liberties
a. Civil Liberties- protections against government-freedom of religion,
speech, press, etc.
American History II – Honors
Study Guide – FINAL EXAM
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b. Civil Rights- positive acts of government that seek to make
constitutional guarantees a reality for all people- prohibitions of
discrimination on the basis of race, sex, religious belief, or national
origin.
Relative vs. Absolute freedom/ rights
a. All persons have the right to do as they please as long as they do not
infringe on the rights of others
b. Everyone enjoys the right of free speech, but no one enjoys absolute
free speech- Can’t yell “FIRE!” in a crowded theatre
Original intention for the Bill of Rights – LIMIT THE POWER OF NATIONAL
GOV’T, states not bound to it
14th amendment – Due Process clause – Life, liberty or property without
the due process of law
Incorporation of the Bill of Rights – 1925- Gitlow-communist- had been
convicted in the state courts of criminal anarchy- violent speeches to
overthrow the U.S. government-Supreme court upheld the conviction of NY
BUT…
a. Gitlow vs. New York – DUE PROCESS CLAUSE (5th and 14th
Amendment) INDICATES THAT BILL OF RIGHTS also APPLIES TO THE
STATE GOVERNMENTS
Establishment Clause and Free Exercise Clause (1st Amendment)
a. Establishment- wall of separation between church and state-no
government support for religion
b. Free Exercise Clause- believe what you want
i. Can NOT make an act legal that would otherwise be illegal
Prayer in public schools – Engel v. Vitale
a. Prayer in PUBLIC schools is a violation of the Establishment clause of
the Constituion
Religious clubs in public schools – Westside Community Schools v. Mergens
a. Allowed-as long as the school does not endorse the club- can NOT
prohibit
American History II – Honors
Study Guide – FINAL EXAM
 Sedition- the crime of attempting to overthrow the government by force or
to disrupt its lawful activities by violent actions
a. Alien and Sedition Acts of 1798- French Revolution- helped
Federalists like President John Adams- WHY??
b. Espionage Act 1917- WWI- Schenck v. U.S. – Socialist urging people to
resist the draft- “words can be weapons” “clear and present danger”upheld his conviction
 Free speech – Smith Act 1940- Communistsa. Dennis v. U.S. – Criticize policies of gov’t, urge people to vote out the
bums, overthrow gov’t – can NOT do that!
 Obscenity-What is constituted as obscene?
b. Miller test-3 part test for a book, film, recording, or other piece of
material
i. Average person applying contemporary (local) community
standards finds that the work, taken as a whole, tends to excite
lust
ii. The work depicts or describes in a patently offensive way a
form of sexual conduct
iii. Lacks serious literary, political, or scientific value
c. City of Erie v. Pap’s A&M
i. Court upheld the power of cities to ban taverns, bars, and
similar places that feature nude dancing.
ii. Not limiting free expression-rather the MEANS of expression
 Prior restraint – What is it?
a. The government cannot curb ideas before they are expressed
 New York Times v. U.S. – PRIOR RESTRAINT is Unacceptable unless there is
an immediate and direct threat to national security? (rarely)
 Hazel wood v. Kuhlmeier
a. Held that educators can exercise “editorial control over the style and
content of student speech in school-sponsored expressive activities
so long as their actions are reasonably related to legitimate
pedagogical concerns.”
American History II – Honors
Study Guide – FINAL EXAM
 Symbolic speech: Tinker v. Des Moines, Texas v. Johnson
a. Students wore Vietnam arm band to school
b. The Supreme Court ruled, by a 7-2 vote, that school officials cannot
censor student speech unless school officials reasonably predict that
the speech will cause disruption of school activities or the rights of
others.
 Picketing, Thornhill v. Alabama
a. reversed the conviction of the president of a local union for violating
an Alabama statute that prohibited only labor picketing.
b. Thornhill was peaceably picketing his employer during an authorized
strike when he was arrested and charged.
c. Associate Justice Frank Murphy wrote for the Supreme Court that the
free speech clause protects speech about the facts and
circumstances of a labor dispute. The statute in the case prohibited
all labor picketing, but Thornhill added peaceful labor picketing to the
area protected by free speech
 Assemblies
a. Time, Place, Manner regulations – Our government regulates
assemblies – requires a permit, establish rules to provide violence –
danger to others
 Right of Association/ NAACP v. Alabama
a. Alabama sought to prevent the NAACP from conducting further
business in the state.
b. After the circuit court issued a restraining order, the state issued a
subpoena for various records, including the NAACP's membership
lists.
c. The Supreme Court ruled that Alabama's demand for the lists had
violated the right of due process guaranteed by the Fourteenth
Amendment to the United States Constitution.
CHAPTER 20: CIVIL LIBERTIES
American History II – Honors
Study Guide – FINAL EXAM
 Substantive due process vs. procedural due process (5th-federal; 14thstates/local
a. Procedural due process has to do with HOW the
procedures/methods of gov action
i. Rochin v. California-Police illegally breaking into the privacy of
the drug user’s house and busting this person for narcotics.
b. Substantive involves the WHAT the substance/policies of gov action
i. Pierce v. Society of Sisters-Oregon requiring all persons
between ages 8-16 must attend public schools
1. Roman Catholic challenge- violation of 14th Amendment
2. WON- HOWEVER- not on how the law was enforced,
rather the contents (what) of the law itself
“unreasonably interfering with the liberty of parents to
direct the upbringing and education of children under
their control”
 Roe v. Wade, right to privacy
a. Roe- the mother- Court Held that the 14th Amendment’s right of
privacy “encompasses a woman’s decision whether or not to
terminate her pregnancy.”- EXCEPT when necessary to save the life
of the mother.
 4th Amendment: search warrant, probable cause
 Writ of habeas corpus – protections BRING ACCUSED TO COURT and SHOW
CAUSE FOR HOLDING or else must be let go, exceptions – REBELLIONS, CIVIL
WAR
 Bill of attainder – law which hands down a punishment without a court trial
(CONGRESS taking on role of COURTS)
 Ex post facto law – law passed after the fact – APPLIES to act committed
before its passage
a. Prohibited under Article 1 Section 9 clause 3
b. the Adam Walsh Child Protection and Safety Act of 2006. This law
imposes new registration requirements on convicted sex offenders
American History II – Honors
Study Guide – FINAL EXAM
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and also applies to offenders whose crimes were committed before
the law was enacted…..CONSTITUTIONAL???
th
5 amendment:
a. grand jury – TWO STEPS is there enough evidence to hold a trial, If so
indictment,
b. Double jeopardy
6th amendment ensures that you have what type of trial? – speedy, jury,
impartial - PEERS
Gideon v. Wainwright - Right to ATTORNEY
Miranda v. Arizona – Rights must be read to you