
Civil Liberties
– Definition: The legal
constitutional
protections against
the government.
– Examples:

Constitution
– No bills of attainder,
ex post facto, or
habeas corpus

Bill of Rights
– Free Speech,
Religion, & no
illegal search and
seizures …
Do you still remember the Bill
of Rights?

Let’s do it on the board with markers…
The Bill of Rights—Then and
Now
Civil Rights v. Civil Liberties

Civil Rights
– Right to be free from unequal treatment and/or
discrimination based on certain characteristics
(race, gender, disability, sexual orientation,
etc.) in settings such as employment, school,
access to voting, etc.
 Civil Liberties
– Constitutional freedoms that protect individual
rights from being violated by the government.
– Civil liberties set limits for government so that
it cannot abuse its power and interfere with the
lives of its citizens.
Civil Liberties’ Watchdog
Group
American Civil Liberties Union (ACLU)
 The ACLU is an interest group that lobby’s courts and legislatures to
defend and preserve the individual rights and liberties that the Constitution
and laws of the United States guarantee everyone in this country.
 These rights include:
– Your First Amendment rights - freedom of speech, association and assembly; freedom
of the press, and freedom of religion.
– Your right to equal protection under the law

protection against unlawful discrimination.
– Your right to due process

fair treatment by the government whenever the loss of your liberty or property is
at stake.
– Your right to privacy

freedom from unwarranted government intrusion into your personal and private
affairs.

What is more important in a democratic
society:
 –Freedom or Order?
 –Liberty or Security?
 •Those who would give up essential liberty
to purchase a little temporary safety
deserve neither liberty nor safety.
Freedom v. Security
What is more important in a democratic
society:
 –Freedom or Order?
 –Liberty or Security?
 •Do times of war or conflict change this?

•1798—Alien and Sedition Act: Made it
illegal to falsely criticize the president and
government officials and allowed the
Incorporation
(Nationalization) Doctrine
and the 14th Amendment

Prior to the 14th Amendment, the Bill or Rights only applied to the National
government, NOT the states.
– The first amendment reads: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble and to petition the government for a redress of
grievances.”
– 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights
applied only to the Federal, but not any State or local governments.
 The 14th Amendment -1868- (specifically the Due Process Clause) dynamically
altered this view by stating that “No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the
laws."
14th Amendment
“No State (Incorporation or Nationalization)
shall make or enforce any law which shall
abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law (due
process clause-Civil Liberties); nor deny to
any person within its jurisdiction the equal
protection of the laws (Equal Protection
Clause-Civil Rights)."
How exactly could we argue that
this may incorporate the Bill of
Rights onto the states?

There are several possible positions that could be taken
with respect to the incorporation debate on the 14th
Amendment:
– Non Incorporation View -- One could argue that the
Fourteenth Amendment only applies to post-Civil War former
slaves and no more
– Total Incorporation --the view that the 14th Amendment
applied the entire Bill of Rights onto the states—10th
Amendment made this illogical
– Selective Incorporation--the view supported by the Supreme
Court, in which most of the Bill of Rights have been
incorporated onto the states over time via specific cases.
Selective Incorporation
The view supported by the Supreme Court, in which
most of the Bill of Rights have been incorporated onto
the states over time via specific cases.
– Chicago, B&Q Railroad Co. v. City of Chicago
(1896)
– First case to incorporate any part of the Bill of Rights
onto the states, but Gitlow v. NY was really the one that
started the process
– Incorporated the “takings clause” and just
compensation of the 5th Amendment (Eminent
Domain) onto the states
Gitlow v. NY (1925)

first significant case to incorporate a major civil liberty,
in this case free speech, onto the states
– `In upholding the conviction of Gitlow for
advocating the overthrow of the govt, the Court
IRONICLY said freedom of speech and of the press
“are among the fundamental personal rights and
liberties protected by the due process clause of the
Fourteenth Amendment from impairment by the
states.”—but just DID not apply to Gitlow in this
case!
All have been incorporated
except


Amendments 3, Grand Jury portion of 5, 7, and No Excessive
Fines/bails portion of 8
The Due Process Clause not only has led to the selective
incorporation of most of the Bill of Rights onto the states, but
local government bodies as well, since they are sub-units of
the state.
– Example: A student gets suspended/expelled is entitled to
Due Process (does not have to be in the courts, but
through the school boards who acts as the adjudicator of
due process)
Significantly increased
Power of Federal
Government!
The Bill of Rights—Then and
Now
Civil Liberties: 1st Amendment

“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the
freedom of speech, or of the press, or the
right of the people peaceably to assemble
and to petition the government for a redress
of grievances.”

http://www.thedailyshow.com/watch/monoctober-22-2012/the-correspondentsexplain---amendments---the-1st-amendment
Freedom of Religion

The Establishment Clause
– “Congress shall make no law respecting the
establishment of religion” or take any action that
would show preferential treatment for one religion
over another.
 The Free Exercise Clause
– Prohibits government from interfering with the
practice of religion
– Some religious practices may conflict with other
rights, and then be denied or punished
 Article 6
 No religious test for office
Religious issues
that still stir debate:





Should schools be allowed to lead students in prayers since
Congress opens each session and day with a prayer?
Should schools would not be allowed to hire a school
Chaplin since each branch of the military has one, as does
Congress?
Should we continue to have “In God We Trust” on all U.S.
currency since Government is not allowed to advance
religion?
Should creationism or I.D. be taught in a science class?
Can the government disallow the building of a Mosque 3
blocks from Ground Zero?
Separation of Church and
State?
•The political and legal doctrine that
government and religious institutions are to
be kept separate and independent from each
other.
– Some interpret the 1st Amendment as
advocates strict separation whereas others
say government can support all religious
as long as it in neutral in nature.
 The Phrase comes from Thomas Jefferson
who said the 1st Amendment created a "wall
of separation" between church and state
 Why has the separation between church and
state been seen as a fundamental part of a
free society?
Engel v. Vitale (1962)
Issue—School Prayer
 “Almighty God, we acknowledge our dependence
upon Thee, and we beg Thy blessings upon us, our
parents, our teachers and our country. Amen.”
 In a 6-1 decision, the Court declared it
unconstitutional for state officials to compose an
official school prayer and require its recitation in
public schools, even when it is relatively nondenominational and students may excuse
themselves from participation.
Lemon v. Kurtzman 1971 –
“Lemon Test”

1.Does the program that is being funded by
state $$ have a religious, as opposed to a
secular purpose?
 2.Does the program have as its principal
effect the advancement of religion?
 3.Does the program create an excessive
entanglement between church and state? If
the answer is yes to any one of these, it
Summary: Public Schools and
Religion

Activities not permitted:
 –School led prayer for any event
 –Graduation prayers
 –Banning the teaching of evolution
 –Teaching of creationism/I.D. in science
classes
“Congress
shall make
no law respecting an
establishment of religion, or
prohibiting the free
exercise thereof

Free exercise clause


Reynolds v. United States (polygamy)- No
Oregon v. Smith (drug use in religious ceremonies) No
Yes or No?

Can I marry more than one wife at a time?
Yes or No?

Can I marry more than one wife at a time?
No
Yes or No?

Can Amish children drop out in 8th grade?
Yes or No?

Can Amish children drop out in 8th grade?
Yes,
Yoder v. Wisconsin
Yes or No?

Do you have to work on the Sabbath?
Yes or No?

Do you have to work on the Sabbath?
Yes,
if you work for a private
company, but no if you work
for the government
Yes or No?

Can the state deny unemployment benefits
if someone turns down a job because it
requires them to work on the Sabbath?
Yes or No?

Can the state deny unemployment benefits
if someone turns down a job because it
requires them to work on the Sabbath?
No,
because the government
would be forcing you to
violate your religion.
Yes or No?

Can you make it illegal to be open on
Sunday? (Blue Laws)
Yes or No?

Can you make it illegal to be open on
Sunday?
Yes
Yes or No?

Can the state deny a scholarship to someone
who wants to study to become a priest?
Yes or No?

Can the state deny a scholarship to someone
who wants to become a priest?
Yes,
because the government
does not want to advantage one
religion over another.
Yes or No?

Can the government ban Jehovah's
Witnesses from solicitation?
Yes or No?

Can the government ban Jehovah's
Witnesses from solicitation?
No,
if you just ban
Jehovah’s Witnesses, but
yes, if ban all groups of
people (including girl
scouts selling cookies)
Yes or No?

Can a city ban animal sacrifice?
Yes or No?

Can a city ban animal sacrifice?
No,
it is part of the Haitian
Santeria religion.
Yes or No?

Do the Amish have to pay Social Security
taxes?
Yes or No?

Do the Amish have to pay Social Security
taxes?
Yes,
of course they have
to pay taxes.
Yes or No?

Can the Forest Service build a road through
Native American sacred land?
Yes or No?

Can the Forest Service build a road through
Native American sacred land?
Yes
Yes or No?

Can you stone your child to death for
humiliating the family?
Yes or No?

Can you stone your child to death for
humiliating the family?
 No, state criminal law still applies.
Yes or No?

Can you ban clergy from holding office?
Yes or No?

Can you ban clergy from holding office?
No
Yes or no?

Can the Air Force ban yarmulkes while in
uniform?
Yes or no?

Can the Air Force ban yarmulkes while in
uniform?
Yes
Yes or No?

Can you use drugs in religious ceremonies?
Yes or No?

Can you use drugs in religious ceremonies
or fire someone for using drugs during a
religious ceremony?
No,
if it is peyote (American
Indian religious ritual drug), but
yes if it is wine during
communion.
Freedom of Speech
Congress
shall make no law
respecting an establishment of religion, or
prohibiting the free exercise thereof; or
abridging the freedom of
speech, or of the press; or the right of the
people peaceably to assemble, and to
petition the government for a redress of
grievances.
What are everyday examples
of when your free speech
rights are limited?
Can you really say anything
you want?
Quotes

“ If we don’t believe in freedom of
expression for people we despise, we don’t
believe in it at all.”
– Noam Chomsky

“I disapprove of what you say, but I will
defend to the death your right to say it”
– Voltaire
Freedom of Speech

Schenck v. U.S., 1919
– WWI Era, Espionage & Sedition Acts made it
–
–
–
–
illegal to speak out against the war effort
Schenck distributed pamphlets protesting the
draft
Limited speech that presented a “clear and
present danger”
Justice Holmes compared it to yelling fire in a
crowded movie theatre
Not an incorporation case


Chaplinsky v. New Hampshire, 1942
– Incorporation case
– Limited speech that constituted “fighting words” that
“by their very utterance inflict injury or tend to incite
an immediate breach of the peace.”
Bradenburg v. Ohio, 1969
– KKK leader arrested after making a racist, hateful
speech
– Court ruled that states cannot prevent inflammatory
speech unless it will lead to imminent lawless action
– Speech that supports law-breaking or violence
in general is protected by the First Amendment unless
it directly encourages people to take an imminent
unlawful action
– Political speech is the most protected form of speech
Symbolic Speech

Tinker v. Des Moines, 1969
– Students in Iowa were
suspended for wearing black
armbands to protest the
Vietnam War
– Court ruled that was
unconstitutional
– “Students do not shed their
constitutional rights at the
schoolhouse door.”
 Texas v. Johnson, 1989
– Burning the flag is a form of
symbolic speech (nonverbal
communication) and is
protected by the 1st
Amendment
Free Press

“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the
freedom of speech, or of the press, or the
right of the people peaceably to assemble
and to petition the government for a redress
of grievances.”
Freedom of the Press

Near v. Minnesota, 1931
– Selectively incorporated freedom of the press and prevented
prior restraint
 NY Times v. Sullivan, 1964
– A newspaper cannot commit libel if it printed a false story
that it thought to be true at the time of publication
 NY Times v. U.S., 1971
– Daniel Ellsburg leaked the Pentagon Papers about Vietnam
– Government could not censor information using the rationale
of national security or enact prior restraint
 Hazelwood School v. Kuhlmeier , 1988
– School officials have sweeping authority to regulate student
run newspapers, no free press of student newspapers
Freedom of Assembly
– “Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press, or the right of the people
peaceably to assemble and to petition the
government for a redress of grievances.”
– Generally permissible, but must meet reasonable
local standards.
– Balance between freedom to assemble and order in
society.
– DeJonge v. Oregon, 1937
– DeJonge organized Communist Party
meetings and was arrested for that crime
– Court ruled that he had the Freedom of
Assembly
– Incorporated that part of the 1st
Amendment
Speech that is NOT protected:
Commercial Speech—limited protection, FTC
*False advertising is not protected
*FCC regulates the airwaves
2. Libel (intentional false written statements harming
one’s reputation)
3. Slander (intentional false verbal statements harming
one’s reputation)
4. Fighting Words (Chaplinsky v. NH 1942)
(incitement specific time and place)
1.
*speech, non-political in nature, that is likely to bring
about immediate public disorder or chaos
5. Obscenity
– No clear definition on what constitutes obscenity.
– Miller v. California stated that materials were obscene
if the work:



appeals “to a prurient interest in sex”
showed “patently offensive” sexual conduct
lacks “serious literary, artistic, political or scientific value”
– Local areas make their own decisions on obscenity
Do page 40 Freedom of
Speech 12 Examples
Answers






1 No, presents clear and 
present danger, Schenck v.
US

2. Yes, Free Speech

3. Yes, Freedom of
Expression

4. Yes, Tinker v. Des

Moines
5. Yes, Freedom of
Assembly
6. No,
7. No breaks criminal law,
Fighting Words doctrine,
Chaplinsky v. New Hampshire
8. Yes
9. No, libel/ slander, must be
professional or of some status
10 Yes, Bradenburg v. Ohio
11. Yes, Freedom of
Assembly, Bradenburg v.
Ohio, National Socialist Party
of America v. Village of Skokie
 12. Yes, Texas v. Johnson
Rights of the Accused
Procedural Due Process


Rights of the Accused includes:
– protection from illegal search and seizures
– the right to indictment by a grand jury
– protection from double jeopardy
– protection against self-incrimination
– right to a fair and speedy public trial
– right to trial by jury (to be judged by one's peers)
– notice of accusations (to be informed of the nature and cause of
the accusation)
– right to confront one's accuser
– right to legal counsel
– protection from excessive bail and fines, and from cruel and
unusual punishment
Critics view these steps as overprotection of criminals
A bill of attainder is an act of a legislature declaring a
person or group of persons guilty of some crime and
punishing them without benefit of a judicial trial.




The word “attainder”, meaning "taintedness", is part of English common law. Under English
law, a criminal condemned for a serious crime, whether treason or felony (but not
misdemeanour, which referred to less serious crimes), could be declared "attainted", meaning
that his civil rights were nullified: he could no longer own property or pass property to his
family by will or testament.
His property could consequently revert to the Crown
Bills of attainder were used through the 18th century in England, and were applied to British
colonies as well. One of the motivations for the American Revolution was anger at the
injustice of attainder—though the Americans themselves used bills of attainder to confiscate
the property of British loyalists (called Tories) during the revolution. American
dissatisfaction with attainder laws motivated their prohibition in the Constitution
Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First,
they reinforced the separation of powers, by forbidding the legislature to perform judicial or
executive functions—since the outcome of any such acts of legislature would of necessity
take the form of a bill of attainder. Second, they embody the concept of due process, which
was partially reinforced by the Fifth Amendment to the Constitution. The text of the
Constitution, Article I, Section 9; Clause 3 is "No Bill of Attainder or ex post facto Law shall
be passed". The constitution of every State also expressly forbids bills of attainder.
Due Process



Due process is the principle that the government must respect all of the legal
rights that are owed to a person according to the law, specifically in the Bill of
Rights, when life, liberty, or property is at stake.
– Due Process are the rules and regulations that restrain those in government
who exercise the power of the government (judges, jury, police officers,
the president, Congress, local government, schools, etc.).
Due Process rights are guaranteed to all people under the 5th and 14th
Amendments.
– The Fifth Amendment's guarantee of due process is applicable only to
actions of the federal government. The Fourteenth Amendment contains
virtually the same phrase, but expressly applies to the states.
The 14th Amendment -1868- (specifically the Due Process Clause)
dynamically broadened Due Process by stating that “No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."


Procedural Due Process:
– “Process Rights” used in criminal prosecutions and civil
cases: where an individual is facing a deprivation of life,
liberty, or property, procedural due process mandates that
he or she is entitled to adequate notice, a hearing, and a
neutral judge (basically rights of the accused in the Bill of
Rights).
Substantive Due Process:
– Rights in the Constitution that are non-procedural, but none
the less are seen as liberties that laws cannot seek to
undermine since such liberties are fundamental to living in a
free society (example, free speech, press, voting rights,
privacy, freedom of association, etc.) –liberty based, not
process based
– Many strict constructionists and originalists do not
recognize substantive due process rights, especially when
this right covers the issue of privacy.
4th Amendment

The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall
not be violated, and no Warrants shall
issue, but upon probable cause, supported
by Oath or affirmation, and particularly
describing the place to be searched, and the
persons or things to be seized.
 What constitutes a reasonable search?
Mapp v. Ohio, 1961





Police believed Mapp to be harboring a dangerous
criminal in her house
Forcefully entered her house without a warrant
Instead found pornographic material and arrested
her
Court declared that evidence obtained illegally
cannot be used
 Exclusionary Rule = “Fruit of the poisonous tree
“--a legal metaphor in the United States used to
describe evidence that is obtained illegally.
Memoirs of a Hotel Man
 Exclusionary Rule incorporated onto states
Affairs of a Troubadour
The logic of the terminology is that if the source of
Drawing of nude women
the evidence (the "tree") is tainted, then anything
gained from it (the "fruit") is as well.
Good Faith-Exception

Exemption to the exclusionary rule.
 Allows evidence collected in violation
of the Fourth Amendment to be admitted
at trial if police officers acting in good
faith relied upon a defective search warrant
they had reason to believe was legal
6th Amendment

In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the
crime shall have been committed, which district
shall have been previously ascertained by law, and
to be informed of the nature and cause of the
accusation; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.

http://www.thedailyshow.com/watch/monoctober-22-2012/the-correspondentsexplain---amendments---the-6th-amendment
Gideon v. Wainwright (1964)






Clarence Gideon was charged in a Florida state court
with a felony for breaking and entering.
Lacking funds for a lawyer, he requested the court to
appoint an attorney for him, the court refused,
Convicted & sentenced to five years in a state prison.
Appealed, the Court held that Gideon had a right to
be represented by a court-appointed attorney, thus
incorporating the right to counsel onto the states.
In this case the Court found that the Sixth
Amendment's guarantee of counsel was a
fundamental right, essential to a fair trial, which
should be made applicable to the states through the
Due Process Clause of the 14th Amendment.
Escobedo v. Illinois (1964)
– SCOTUS also said that a person has a right to a
lawyer during not JUST a trial, but police
questioning as well.
5th Amendment

No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a grand jury, except in cases arising
in the land or naval forces, or in the militia, when in
actual service in time of war or public danger; nor
shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall
private property be taken for public use, without just
compensation.
Protection from SelfIncrimination






Miranda v. Arizona, 1966
Miranda arrested for kidnapping & rape
Arrested & confessed in less than 2 hours
Appealed on grounds not advised of
Constitutional rights (5th self incrimination, 6th
counsel) thus police violated his 14th
Amendment right to due process
Courts declared the those arrested must know
and understand their rights before
interrogations can take place
These “rights” became known as Miranda
Rights
Defendant’s Rights
8th Amendment

Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted.
Excessive Punishment





8th Amendment
“Cruel and Unusual Punishment” = death penalty?
Furman v. Georgia, 1972
– Court found the application of the death penalty was
arbitrary and halted its use nationwide
Gregg v. Georgia, 1976
– Court ruled that under adequate guidelines the death
penalty could resume and it was not cruel and unusual
punishment
Atkins v. Virginia, 2002
– Forbids the execution of the mentally handicap

http://www.thedailyshow.com/watch/monjune-24-2002/constitutionally-challenged
The Right to Privacy

Is There a Right to Privacy?
– Definition: The right to a private personal live
free from the intrusion of government.
– Not explicitly stated in the Constitution
– Implied by the 4th & 9th Amendments
– Very debatable…
Griswold v. Connecticut, 1965

Connecticut law prohibited the use of
contraceptives
 Doctor arrested for distributing birth control
 SCOTUS struck down the Connecticut law
 Decision created and incorporated the right of
privacy
– 9th Amendment
 Not all rights are listed
– 4th Amendment
 “The right of people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated…”
Roe v. Wade (1973)




Jane Roe (Norma L. McCorvey), a Texas resident, sought to terminate her
pregnancy
Texas law prohibited abortions except to save the pregnant woman's life.
Court declared that laws against abortion violated a constitutional right to
privacy (building on the Griswold decision), overturning all state laws
outlawing abortion
The court held that a first-trimester embryo or fetus was not a person under
the Constitution, and that a right to privacy existed and included the right to
have an abortion for any reason, up until the "point at which the fetus
becomes 'viable.'"
– The Court defined viability as the potential "to live outside the mother's
womb, albeit with artificial aid, adding that viability "is usually placed
at about seven months (28 weeks) but may occur earlier, even at 24
weeks.“
– The court further ruled that the state could intervene to restrict abortion
in the second trimester of development and could outlaw it altogether in
the third trimester
Planned Parenthood v. Casey
(1992)




The Pennsylvania law required:
– 24 hour wait period before obtaining an abortion
– A minor seeking an abortion to get the consent of one parent (the law
allows for a judicial bypass procedure).
– A married woman seeking an abortion had to first notify her husband of
her intention to abort the fetus.
Can a state require these provisions without violating the right to abortion as
guaranteed by Roe v. Wade?
Do these provisions place an “undue-burden” on a woman seeking an abortion
prior to viability?
In a 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the
Pennsylvania provisions. Under this standard, the only provision to fail the
undue-burden test was the husband notification requirement.
–
The decision also said that viability was more a priority in determining the rights of a fetus than
the strict trimester formula laid down in Roe.

http://www.thedailyshow.com/watch/tuefebruary-21-2012/punanny-state---virginias-transvaginal-ultrasound-bill

2nd Amendment:
"A well regulated Militia,
being necessary to the
security of a free State, the
right of the people to keep
and bear Arms, shall not be
infringed."
– Who does “militia” mean?
– Who are "the People"?
– What "arms" does the
Amendment protect?
– What does "shall not be
infringed" mean?

http://www.thedailyshow.com/watch/monjuly-4-2011/on-topic---second-amendment--right-to-bear-arms

http://www.thedailyshow.com/watch/monoctober-22-2012/the-correspondentsexplain---amendments---the-2ndamendment



Supporters of Gun Control claim there is no
expressed right for an individual citizen to
possess a hand gun—only regulated militias can.
Thus, government can regulate and even restrict
guns.
Opponents of Gun control say the 2nd
Amendment creates a right for citizens to arm
themselves, and guns are a part of that. Thus,
gun control is unconstitutional.
McDonald v. Chicago (2010)
– Ruled that Chicago’s ban on handguns was
a violation of the 2nd Amendment to the
Constitution, thus incorporating the 2nd
Amendment

http://www.thedailyshow.com/watch/wedapril-24-2013/weak-constitution
 http://www.colbertnation.com/the-colbertreport-videos/407253/january-302012/laurence-tribe
Barron’s Answers
D
2. D
3. C
1.
Barron’s Answers
1.
2.
3.
4.
5.
6.
D
D
C
B
A
A
Barron’s Answers
1.
2.
3.
4.
5.
6.
7.
8.
9.
D
D
C
B
A
A
E
B
C
10.
D
Barron’s Answers
1.
2.
3.
4.
5.
6.
7.
8.
9.
D
D
C
B
A
A
E
B
C
10.
11.
12.
13.
14.
15.
D
A
A
E
E
D

Initially, the U.S. Constitution did little to protect
citizens from actions of the states. In the 20th
Century, the Supreme Court interpreted the
Constitution to protect the rights of citizens from
state governments in a process referred to as
incorporation.
– Define selective incorporation.
– For two of the following, explain how each has been
incorporated. Each of your explanations must be
based on a specific and relevant Supreme Court
decision:



Rights of criminal defendants
First Amendment
Privacy rights
6 points total
Part (a): 2 points

One point is earned for defining selective, and 1 point is
earned for defining incorporation.
– The response must define what is meant by selectivethe fact that the process has been piecemeal and not a
sudden change.
– The response must define incorporation- the fact that
some liberties listed in the BILL OF Rights have been
applied to the states using the Fourteenth amendment/
due process clause.
– The response can earn one point for defining
selectiveness without having earned the definition point
for defining incorporation in terms of the Fourteenth
Amendment/ due process clause.
Part (b): 4 points

One point is earned for describing each of two appropriate cases, and 1
point is earned for explaining how each of the specific provisions of the
Bill of Rights was incorporated.
– The response must describe the facts and the right that is incorporated in two relevant
–
–
–
–
–
cases.
The response must also explain how the Supreme Court used the Fourteenth
amendment to incorporate the specific provision of the Bill of Rights in each of the
two cases described.
A response may earn points without being able to name an appropriate case, as long as
the description and explanation demonstrate that the student knows the relevant
aspects of the case even though the name is not included.
Abbreviated case names and informal names are also acceptable (e.g., “Scottsboro
Boys” case instead of Powell v. Alabama; Mapp instead of Mapp v. Ohio).
The student does not need to discuss the case that originally incorporated the right,
only a case that demonstrates that the right has been incorporated.
The fourteenth amendment does not need to be explicitly mentioned in the explanation
of the case(s) if the definition of incorporation demonstrates a complete understanding
of the role of the Fourteenth amendment in selective incorporation.

Rights of criminal defendants
–
–
–
–

Miranda v. Arizona
Gideon v. Wainwright
Escobedo
Mapp v. Ohio
First Amendment
– Gitlow v. NY
– Near V. Minnesota
– De Jonge v. Oregon

Privacy rights
– Griswold v. Connecticut

Many scholars and observers have argued that the ratification of
the Fourteenth Amendment to the Constitution has become the
single most important act in all of United States politics.
– Identify which provision of the Fourteenth Amendment was
applied in three of the following Supreme Court cases. For
the case you select, explain the significance of the decision
in U.S. politics.
 Mapp v. Ohio (1961)
 Gideon v. Wainwright (1963)
 Miranda v. Arizona (1966)
Part (a): 3 points

Identification:
–

(1 point) Identification of the “provision.” Must use “equal protection.”
Explanation:
–
(1 point) Factual statement about the holding.
– (1 point) Explanation of the significance or impact of the case in United States
politics

Must go beyond the holding of the case
For example: “led to Civil Rights movement”
– NOT credited: “Brown led to desegregation of public schools”
–
Part (b): 3 points

Identification:
– (1 point) Identification of the “provision.” Must use “due process.”
– (1 point) Explanation of the significance or impact of
the case in United States politics
– Must go beyond holding of the case

NOT credited “All police must read Miranda rights”

The First Amendment includes two clauses relating to the freedom of
religion.
 Select one of the following cases and identify the First Amendment
clause upon which the U.S. Supreme Court based its decision:
 Engel v. Vitale (school prayer)
 Lemon v. Kurtzman (state funding for private religious schools)
– Describe the Supreme Court’s decision in the case that you selected
in (a).
– Select one of the following cases and identify the First Amendment
clause upon which the Supreme Court based its decision:
 Reynolds v. United States (polygamy)
 Oregon v. Smith (drug use in religious ceremonies)
– Describe the Supreme Court’s decision in the case that you selected
in (c).
– Many of these decisions have caused controversy in the United
States. Describe two ways in which other political institutions
might limit the impact of Supreme Court decisions.
6 points
Part (a): 1 point

Establishment Clause
Part (b): 1 point


Acceptable explanations of Engle v. Vitale:
– Must say that the decision struck down state-sponsored prayer in school.
– MUST mention state-sponsored or state-organized prayer to get credit.
– MUST indicate that the p5ayer had some type of official government
backing/sponsorship/sanction.
– Do not have to specify “public schools” to get credit.
– No point is given if the answer states only that the decision “banned prayer in
school.”
Acceptable explanations of Lemon v. Kurtzman:
– Must say that the decision struck down state funding for private religious
schools. (More specifically, it struck down state funding to pay parochial
teachers to give instruction in secular subjects.)
– Will receive credit for statements recognizing that there are certain conditions
or criteria that are used in determining if a government practice does not
violate the establishment clause. Conditions/criteria may include:
 Secular purpose
 Neither enhances nor inhibits religion.
 No excessive entanglement between government and religion.
Part (c): 1 point

free exercise clause
Part (d): 1 point

An acceptable explanation of Reynolds v. U.S. is:
– The decision restricted/banned/disallowed polygamy
– No point is earned for saying that the “Supreme Court declared polygamy
to be unconstitutional.” Polygamy is a personal action that is illegal but
not a governmental action that is unconstitutional

An acceptable explanation of Oregon v. Smith is:
– The decision restricted/banned drug use in religious ceremonies.
– No point is earned for saying that the “Supreme Court declared drug use
in religious ceremonies to be unconstitutional.” Drug use is a personal
action that is illegal but not a governmental action that is unconstitutional.
Part (e): 2 points

Acceptable descriptions may include:
– Congressional/state/local legislation
– Executive branch/state government refusal to
enforce a Supreme Court decision; ignoring a
Supreme Court decision.
– Judicial appointments
– Constitutional amendment.
– Change in appellate jurisdiction.

The framers of the Constitution created a political system based on
limited government. The original Constitution and the Bill of
Rights were intended to restrict the powers of the national
government. Later constitutional developments also limited the
powers of state governments.
A. Explain how each of the following limits the powers of the
national executive.
 Federalism
 Checks and balances
B. Explain how each of the following two provision in the Bill of
Rights limits the powers of the national government:
 Establishment clause
 Guarantee of a public trial
C. Choose one of the following and explain how it limits the
power of state governments:
 Citizenship clause of the Fourteenth Amendment
 Selective incorporation.
A: 2 points
Federalism — divides power between national
and state governments, which limits the
authority of the national executive.
 Checks and balances — the response must
explain how other branches of government
can check (limit, restrict) what the executive
can do. A correct example of a check or
balance on the national executive is acceptable
to earn this point.

B: 2 points
Establishment Clause — prevents the
national government from establishing a
national religion or taking any action that
would show preferential treatment for one
religion over another.
 Guarantee of a public trial — requiring
trials to be open to the public limits the
government’s ability to violate the rights of
citizens.

C: 1 point

One point is earned for an explanation of how one of
the following limits the power of state governments.
– Citizenship Clause — provides a national
definition of citizenship that states cannot violate;
requires states to provide citizenship guarantees to
all who meet the definition of citizen. (Due
process and equal protection)
– Selective incorporation — prohibits states from
denying Bill of Rights provisions regarding
freedom of expression, rights of the accused or
privacy

Individuals often form groups in order to promote their
interests. The Constitution contains several provisions that
protect the rights of individuals who try to promote their
interests in a representative democracy.
A. Explain two provisions in the Bill of Rights that protect
individuals who try to influence politics.
B. Interest groups engage in a variety of activities to affect
public policy. Explain how each of the following is used by
interest groups to exert influence over policy.
– Grassroots mobilization
– Lobbying of government institutions
– Litigation
C. Describe one specific federal governmental regulation of
interest groups.
A: 2 points





Speech — allows citizens to say almost anything they
want
Press — allows citizens access to information, each
other and policymakers; printed advocacy
Assembly — allows citizens to come together
Petition — allows citizens to address government
Various due process/criminal justice provisions (e.g.,
grand jury indictment, jury of peers, search and seizure)
— protects citizens from retribution/harassment
from government
B: 3 points
Grassroots mobilization — interest groups
organize citizens, who act to influence
policymakers
 Lobbying — direct contact with
policymakers for the purpose of persuasion
through the provision of information,
political benefits, etc.
 Litigation — the use of courts to gain policy
preferences through cases or amicus curiae

C: 1 Points








Disclosure of contributions, funding or activities
Registration of lobbyists, PACs
Campaign finance laws
Limits on gifts
Limits on revolving-door appointments
Limits on honoraria
Prohibition of bribery
Any named law or regulation with a description of
what it does to regulate interest groups
Current Events
GPS on a car without a search
warrant?

Constitutional?
4th Amendment

The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall
not be violated, and no Warrants shall
issue, but upon probable cause, supported
by Oath or affirmation, and particularly
describing the place to be searched, and the
persons or things to be seized.
 What constitutes a reasonable search?
Or right to Privacy?

Include cell phones?
Should the 10 Commandments be
posted in public buildings?

Schools
– Stone v. Graham
(1980):

ruled that posting of
the 10 Commandments
in classrooms would be
a violation of the
Establishment clause
Alabama Court House
Controversy, 2003
•
 A federal Judge ordered the State Supreme court to
remove the Ten Commandment monuments from its court
house.
 Roy Moore, chief justice, refused and was subsequently
removed from the bench.
 The monument was ultimately removed causing
controversy from both sides of the issue
 McCreary County v. ACLU of Kentucky (2005)
– Supreme Court ruled display of the 10 Commandments in or
outside courthouses was a violation of the establishment clause,
unless the display was purely for secular purposes.