AP AMERICAN
GOVERNMENT AND
POLITICS
UNIT 3
CIVIL LIBERTIES
CIVIL RIGHTS
COURT CASES
1
Constitutional Changes
Informal Changes
These methods are often referred to as “The Unwritten Constitution.” These are changes that have
occurred that are outside of the scope of the language of the Constitution.
Congress passing Laws


In 1789, Congress passed the Judiciary Act that drastically changed the makeup of the judicial
branch.
In 2001, the Patriot Act curtailed some established provisions of the 4th Amendment
o Property rights, privacy, and habeas corpus were all suspended or drastically changed
with this piece of legislation
Customs and Traditions
 Political Parties - were NEVER mentioned in the Constitution. However, they are a longstanding tradition started during the Constitutional Convention in 1789
 Presidential Terms – was a precedent set by Washington and followed until FDR. Silly
Roosevelt and his desire for power….wait….it worked? Republican controlled Congress sends
amendment to the states after FDR elected for 4th term
 Presidential Cabinet – Constitution mentions 4 Cabinet positions. Today, there are 16
members of the President’s Cabinet, with the most recent being added in 2002 (Homeland
Security). These are created by Congress (checks and balances strike again!)
 Seniority System – perks for members of Congress with the longest tenure
o Committee Chair positions
o Committee choice
o Party leadership positions
2
Constitutional Changes
The Amendment Process - Formal
The amendment process allows for changes to be made to the Constitution. It is the argument used by some
that the Constitution is a living document that was designed to change with the evolving needs of the nation.
Defined in Article V of the Constitution.
Of the 27 amendments to the Constitution, 26 of them have been proposed by Congress and ratified by State
Legislatures.
Exception: 21st Amendment –
used state conventions rather than State Legislatures to repeal Prohibition (1933)
This is a VERY SLOW process.
Intentional – guarantees that amendments are not
taken lightly or seen as transient.
Although the Constitution makes no mention of political parties, two groups formed over the argument
regarding the adoption of the Bill of Rights. The Federalists and the Antifederalists would change the shape of
the federal government.
Federalist
-Alexander Hamilton
-Constitution is fine
“as-is”
-Strong national
government
-Don’t want a
comprehensive list of
rights
antifederalist
-Thomas Jefferson
-Bill of Rights is
necessary
-Strong state
governments
-Protection of
liberties/avoid
tyranny
3
Constitutional Philosophy
Strict Constructionist
 Judges should only be judges
 Justices should confine themselves to apply those rules
that are expressed in the Constitution or clearly
implied in the language of the Constitution
 Modern - Tend to be supported by Conservatives
 Southern conservatives USED to support a
loose/activist approach
 Subcategory: original intent
 Consider the times/motives of the Founding
Fathers
 Ex: Meaning of Cruel and Unusual punishment
– in 1791, execution for a crime was
considered neither cruel nor unusual;
therefore, it is constitutionally protected to
execute people who have been found guilty of
a crime
Activist Approach
 Judges should discover general principles underlying the
Constitution and its (often) vague language. They should then
amplify those principles on the basis of some moral or economic
philosophy and apply them to the cases
 View the Constitution as dated
 Constitution as a framework, not a detailed plan
 Should be a “living document”
 “Loose” approach to the Constitution
 Tend to be liberal
Bush v Gore (2000) – Strict Constructionist or Activist?
Article II, Section I provides that, in Presidential elections, “each state shall appoint, in such a manner as the legislature
thereof may direct” electors. In his concurring opinion in this case, Chief Justice Rehnquist (joined by Scalia and
Thomas) argued that the Florida Supreme Court decision violated this provision. To make his argument, Rehnquist
emphasized the word legislature in Article II Section I, and maintained that in its interpretation of the Florida Election
Code, the Florida Supreme Court had inappropriately substituted its judgment for that of the state’s legislature. As the
justices who rejected this argument made clear, this is – at best – a novel construction of the US Constitution (if not
flat out Activist).
4
Amendments – the Bill of Rights
Civil Rights – Rights of citizens
1st Amendment – 5 provisions
1)
2)
3)
4)
5)
6)
7)
8)
9)
Freedom of Religion – separation of church and state
a. Establishment clause – there will be no state sponsored religion
i. Ex: Roman Catholic Church cannot be the national religion
b. Free Exercise Clause – citizens may practice whatever religion they want so long as
it does not break the law/infringe on the rights of others
i. Ethiopian Zion Coptic Church – importation and inhalation of marijuana
ii. Oregon Employment Division v. Smith 1990 – peyote use in religious
practices
Freedom of Speech – includes individual expression
a. Texas v. Johnson – protects flag burning as symbolic speech
b. Tinker v Des Moines – students entitled to non-disruptive free speech/symbolic speech
c. Limits to free speech
i. Threats – Schenck v US 1919: established the clear and present danger test and were viewed as an
immediate threat to the nation
Facts of the Case
During World War I, Schenck mailed circulars to draftees. The circulars suggested
that the draft was a monstrous wrong motivated by the capitalist system. The
circulars urged "Do not submit to intimidation" but advised only peaceful action such
as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy
to violate the Espionage Act by attempting to cause insubordination in the military
and to obstruct recruitment.
Question
Are Schenck's actions (words, expression) protected by the free speech clause of
the First Amendment?
Conclusion
Decision: 9 votes for United States, 0 vote(s) against
Legal provision: 1917 Espionage Act; US Const Amend 1
Holmes, speaking for a unanimous Court, concluded that Schenck is not protected
in this situation. The character of every act depends on the circumstances. "The
question in every case is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to prevent." During
wartime, utterances tolerable in peacetime can be punished.
- www.oyez.org
ii. Slander – oral defamation of character or spoken lies –
3) Freedom of the Press
a. limits to free press
i. Threats
ii. Libel – written defamation of character or written (intentional) lies; NY Times v Sullivan 1964
Facts of the Case
Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times
which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a
campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B.
Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black
ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery
police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been
harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual
errors. Sullivan won a $500,000 judgment.
Question
Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him
and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First
Amendment's freedom of speech and freedom of press protections?
Argument
New York Times v. Sullivan - Oral ArgumentNew York Times v. Sullivan - Argument (Abernathy v.
Sullivan)
Conclusion
Decision: 9 votes for New York Times, 0 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly
The Court held that the First Amendment protects the publication of all statements, even false ones,
about the conduct of public officials except when statements are made with actual malice (with
knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard,
Sullivan's case collapsed.
–www.oyez.org
4) Right to assemble – right to meet, rally, parade for any lawful purpose
5) Right to Petition – ask the government for a redress of grievances; creation of initiatives (local levels)
5
More Bill of Rights
2nd Amendment – the right to bear arms
 Most controversial amendment
o Wide interpretation
o Order vs Freedom
o Rights of the Individual vs
Safety of Society
o Divisive topic that gets a lot
of press with every shooting
3rd Amendments – prevents the quartering of soldiers


Prevents the housing and feeding of soldiers without owners’ consent
Implicit right to privacy
4th Amendment – protects against unreasonable search and seizure of people, houses, papers, computers, phone
conversations, belongings, etc.; beginning of due process amendments




Warrant – written permission for a search, granted by a judge after the
testimony of evidence by a police officer
o (also an 80’s/90’s glam metal band responsible for “Cherry Pie”)
Probable Cause – standard by which a police officer may make an arrest,
conduct a personal or property search, or obtain a warrant
Wiretapping – government agency listening to phone conversations without
person’s knowledge; requires a warrant
Exclusionary Rule – illegally obtained evidence cannot be used in court
o Established in Mapp v Ohio 1961
o Good Faith Exception – If officers had reasonable, good
faith belief that they were acting according to legal
authority, such as by relying on a search warrant that is
later found to have been legally defective, the illegally
seized evidence is admissible
Facts of the Case
Dollree Mapp was convicted of possessing obscene materials after an admittedly illegal
police search of her home for a fugitive. She appealed her conviction on the basis of
freedom of expression.
Question
Were the confiscated materials protected by the First Amendment? (May evidence obtained
through a search in violation of the Fourth Amendment be admitted in a state criminal
proceeding?)
Conclusion
Decision: 6 votes for Mapp, 3 vote(s) against
Legal provision: Amendment 4: Fourth Amendment The Court brushed aside the First
Amendment issue and declared that "all evidence obtained by searches and seizures in
violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court."
Mapp had been convicted on the basis of illegally obtained evidence. This was an historic -and controversial -- decision. It placed the requirement of excluding illegally obtained
evidence from court at all levels of the government. The decision launched the Court on a
troubled course of determining how and when to apply the exclusionary rule.
-
www.oyez.org
6
a
LOOK! Even More Bill of Rights!
5th Amendment – protection against self-incrimination (bear witness against oneself)


The right to remain silent
Reaffirmed in Miranda v Arizona 1966
Facts of the Case
The Court was called upon to consider the constitutionality of a number of instances, ruled on
jointly, in which defendants were questioned "while in custody or otherwise deprived of [their]
freedom in any significant way." In Vignera v. New York, the petitioner was questioned by police,
made oral admissions, and signed an inculpatory statement all without being notified of his right to
counsel. Similarly, in Westover v. United States, the petitioner was arrested by the FBI,
interrogated, and made to sign statements without being notified of his right to counsel. Lastly, in
California v. Stewart, local police held and interrogated the defendant for five days without
notification of his right to counsel. In all these cases, suspects were questioned by police officers,
detectives, or prosecuting attorneys in rooms that cut them off from the outside world. In none of
the cases were suspects given warnings of their rights at the outset of their interrogation.
Question
Does the police practice of interrogating individuals without notifiying them of their right to
counsel and their protection against self-incrimination violate the Fifth Amendment?
Conclusion
Decision: 5 votes for Miranda, 4 vote(s) against
Legal provision: Self-Incrimination
The Court held that prosecutors could not use statements stemming from custodial interrogation
of defendants unless they demonstrated the use of procedural safeguards "effective to secure the
privilege against self- incrimination." The Court noted that "the modern practice of in-custody
interrogation is psychologically rather than physically oriented" and that "the blood of the accused
is not the only hallmark of an unconstitutional inquisition." The Court specifically outlined the
necessary aspects of police warnings to suspects, including warnings of the right to remain silent
and the right to have counsel present during interrogations.



Double jeopardy – person cannot be tried for the same crime twice
o After being found not guilty by an all-white Mississippi jury, the two men accused of kidnapping and
murdering Emmett Till (1955) told their story to Look magazine for $4k; despite admitting their guilt,
they could not be tried again for this hate crime
Due Process – government must follow fair law and procedure when a person is accused, arrested, on trial and
punished for a crime
Eminent Domain – INHERENT RIGHT of all governments to take over private property for public use.
o Takes property rights away from citizens
o Kelo v New London 2005– expansion of government rights to private property
Facts of the Case
New London, a city in Connecticut, used its eminent domain authority to seize private
property to sell to private developers. The city said developing the land would create jobs
and increase tax revenues. Susette Kelo and others whose property was seized sued New
London in state court. The property owners argued the city violated the Fifth Amendment's
takings clause, which guaranteed the government will not take private property for public
use without just compensation. Specifically the property owners argued taking private
property to sell to private developers was not public use. The Connecticut Supreme Court
ruled for New London.
Question
Does a city violate the Fifth Amendment's takings clause if the city takes private property
and sells it for private development, with the hopes the development will help the city's bad
economy?
Conclusion
Decision: 5 votes for City of New London, 4 vote(s) against
Legal provision: Takings Clause
No. In a 5-4 opinion delivered by Justice John Paul Stevens, the majority held that the city's
taking of private property to sell for private development qualified as a "public use" within
the meaning of the takings clause. The city was not taking the land simply to benefit a
certain group of private individuals, but was following an economic development plan. Such
justifications for land takings, the majority argued, should be given deference. The takings
here qualified as "public use" despite the fact that the land was not going to be used by the
public. The Fifth Amendment did not require "literal" public use, the majority said, but the
"broader and more natural interpretation of public use as 'public purpose.'"
7
Wow! Rights! I would have Never Guessed!
6th Amendment – continues due process protections begun in the 4th amendment; focus is on the rights of
the accused during a trial





Speedy Trial – from the time of arrest to the beginning of the trial
o Does not refer to length of trial itself
o The Speedy Trial Act of 1972 – “speedy trial” = 100 days
Fair Trial
o Impartiality – of judge and jury
o Location – takes place in same state/district that crime occurred (Extradition Clause)
 Exception: change in venue – when a trial is moved to a different location in order for
the defendant to receive a fair jury
Writ of Habeas Corpus – defendant must be informed of the charges
Confront Witness – cross-examination during a trial
Assistance of Counsel – attorney – the meaning of this has changed over time, due primarily to
Gideon v Wainwright 1963
James Earl Gideon’s Background:
Constitutional Issue:
Charges Against Him:
SCOTUS Ruling:
Original Case:
Retrial Outcome:
How Gideon did this – appealing to SCOTUS:
 SCOTUS only accepts about 100 of the 7,000 cases appealed to them annually
 Gideon wrote his appeal in prison as an in forma pauperis – the act of petitioning the Supreme Court
as a pauper with no money
o Accounts for 2/3 of all writ of certiorari – legal document used to request the lower court
transcripts of a case
 Rule of Four – four justices must agree to review a case from a lower court
Most cases end in a plea bargain rather than in a jury trial. Although not
mentioned in the Constitution, the plea bargain occurs when the
prosecutor (representative of the government) offers the defendant an
opportunity to plead guilty to a crime. This is often in exchange for either
a reduced sentence or a lessening of the charges against the defendant.
This saves the government time and resources.
8
Did I Mention “The Bill of Rights?” I did? Oh….
7th Amendment – establishes minimum guidelines regarding civil suits: cases of law arising from a complaint
by one party against another


Seeking a court-ordered right of a perceived wrong or, more likely, damages incurred ($$$$$$)
In cases in which the suit seeks damages of $20+, a jury will hear the trial
o The Constitution has not been adjusted for inflation
I’ll See You In Court!!
From facesoflawsuitabuse.org
A woman is suing the Walt Disney Corporation
A man has filed a $10 million lawsuit against
California resident Heather Starks really likes her alfalfa
for $250 million, claiming the blockbuster
ESPN and its announces for ” defamation
sprouts. So much, in fact, that she’s brought a national
movie, Frozen, was actually stolen from her life
and intentional infliction of emotional
class action lawsuit against national restaurant chain
story.
distress, contending he was mocked while
Jimmy John’s “claiming that a sandwich she ordered was
That’s right – according to author Isabella
caught sleeping in his seat during a national
supposed to contain sprouts but did not.”
Tanikumi, the storyline for Frozen was plucked
telecast at Yankee Stadium.”
While her lawsuit may sound ridiculous, it’s actually
not from the Hans Christian Andersen fairy
Andrew Robert Rector says in court
resulted in a hefty settlement, of which the plaintiffs’
tale, The Snow Queen, but rather from her
documents he “napped” during a Boston
attorneys will get a big bite – and the allegedly aggrieved
autobiography, Yearnings of the Heart.
Red Sox-New York Yankees game on
“victims” of the sprout-less sandwiches will receive small
While Tanikumi’s story does take place in a
April 13, but claims commentators Dan
vouchers.
mountainous setting and features two sisters,
Shulman and John Kruk unleashed an
Specifically, Jimmy John’s has agreed to a class action
one of which suffers an accident that physically
“avalanche of disparaging words” against
settlement in which the company will provide vouchers for a
scars her, the similarities are few and far between,
him. The suit says they used words like
$1.40, which is the approximate price of a bag of chips,
and certainty less consistent than those within
“fatty” and “stupid.”
pickle or cookie. The vouchers will total “up to a maximum
Andersen’s Snow Queen.
According to Rector’s lawsuit, he suffered
of $725,000 less the actual costs of the settlement
The formal complaint claims that Frozen has
“substantial injury” to his “character and
administration.” Customers must fill out a form on the
caused Tanikumi “irreparable harm” and calls for
reputation” and “mental anguish, loss of
Jimmy John’s website, stating they purchased a sprout-
a “cease and desist from any and all sales,
future income and loss of earning capacity.”
less sandwich from Feb. 1, 2012 and July 21, 2014.
distribution and marketing of Frozen in any
“The comments attributed to ESPN and
The plaintiffs’ attorneys in the case, at the Malibu, CA-
media format,” along with court costs and $250
our announcers were clearly not said in our
based law firm of Shenkman & Hughes, will receive a hefty
million.
telecast,” an ESPN spokesperson said.
$370,000.
What do you think: Does this lawsuit have merit?
“The claims presented here are wholly
Or should Tanikumi simply “let it go”?
without merit.”
Vouchers for victims … hundreds of thousands of dollars
for the plaintiffs’ attorneys.
Starks’ lawsuit comes courtesy, at least in part, of
California’s False Advertising Act, which is cited in her
suit.
8th Amendment – due process rights of those who have been accused or convicted of a crime
No excessive bail – money used to be released from jail prior to a
trial. The amount of bail required of a defendant is dependent
upon the severity of the crime. Those deemed dangerous or likely
to run may be denied bail by a judge
No excessive fines
No cruel or unusual punishment – torture and beatings are not
permitted, but the death penalty for mentally-competent
individuals over the age of 18 is permissible
Atkins v Virginia – execution of individuals identified as
mentally ill or incompetent is deemed cruel and unusual
punishment
Roper v Simmons – execution of individuals who committed a
crime under the age of 18 is deemed cruel and unusual
punishment
9
The End of the Bill of Rights – Really!!
8th Amendment – continued for further clarification….
Georgia on My Mind
Furman v Georgia 1971
Facts of the Case
Furman was burglarizing a private home when a family member
discovered him. He attempted to flee, and in doing so tripped
and fell. The gun that he was carrying went off and killed a
resident of the home. He was convicted of murder and
sentenced to death (Two other death penalty cases were
decided along with Furman: Jackson v. Georgia and Branch v.
Texas. These cases concern the constitutionality of the death
sentence for rape and murder convictions, respectively).
Question
Does the imposition and carrying out of the death penalty in
these cases constitute cruel and unusual punishment in violation
of the Eighth and Fourteenth Amendments?
Conclusion
Decision: 5 votes for Furman, 4 vote(s) against
Legal provision: Amendment 8: Cruel and Unusual Punishment
Yes. The Court's one-page per curiam opinion held that the
imposition of the death penalty in these cases constituted cruel
and unusual punishment and violated the Constitution. In over
two hundred pages of concurrence and dissents, the justices
articulated their views on this controversial subject. Only
Justices Brennan and Marshall believed the death penalty to be
unconstitutional in all instances. Other concurrences focused on
the arbitrary nature with which death sentences have been
imposed, often indicating a racial bias against black defendants.
The Court's decision forced states and the national legislature to
rethink their statutes for capital offenses to assure that the
death penalty would not be administered in a capricious or
discriminatory manner.
Gregg v Georgia 1975
Facts of the Case
A jury found Gregg guilty of armed robbery and murder and sentenced
him to death. On appeal, the Georgia Supreme Court affirmed the death
sentence except as to its imposition for the robbery conviction. Gregg
challenged his remaining death sentence for murder, claiming that his
capital sentence was a "cruel and unusual" punishment that violated the
Eighth and Fourteenth Amendments.
This case is one of the five "Death Penalty Cases" along with Jurek v.
Texas, Roberts v. Louisiana, Proffitt v. Florida, and Woodson v. North
Carolina.
Question
Is the imposition of the death sentence prohibited under the Eighth and
Fourteenth Amendments as "cruel and unusual" punishment?
Conclusion
Decision: 7 votes for Georgia, 2 vote(s) against
Legal provision: Amendment 8: Cruel and Unusual Punishment
No. In a 7-to-2 decision, the Court held that a punishment of death did not
violate the Eighth and Fourteenth Amendments under all circumstances.
In extreme criminal cases, such as when a defendant has been convicted
of deliberately killing another, the careful and judicious use of the death
penalty may be appropriate if carefully employed. Georgia's death penalty
statute assures the judicious and careful use of the death penalty by
requiring a bifurcated proceeding where the trial and sentencing are
conducted separately, specific jury findings as to the severity of the crime
and the nature of the defendant, and a comparison of each capital
sentence's circumstances with other similar cases. Moreover, the Court
was not prepared to overrule the Georgia legislature's finding that capital
punishment serves as a useful deterrent to future capital crimes and an
appropriate means of social retribution against its most serious offenders.
9th Amendment- citizens have many more rights than those specifically listed in the Bill of Rights

Satisfies Federalist concerns that a list of rights could be construed as comprehensive
10th Amendment – states have many more rights than those listed in the Constitution


Satisfies Antifederalist concerns that the national government may grow too strong
Provides states with implicit or implied Reserved Powers = powers not specifically granted (expressed
or delegated) to the national government
o Elections and Education – not specifically granted to the federal government
States’ rights, as supported by the 10th Amendment,
have been trumped by federal law and action on a
number of occasions, particularly in periods of national
strife
 Reconstruction: federal troops were sent to
occupy southern states and states were forced
to ratify the 13-15th Amendments
 Depression Era: states fought New Deal tactics,
such as the Agricultural Adjustment Act, but
claiming that it violated the 10th Amendment
10
The Amendments
11th Amendment – limited the ability of a citizen of one state to sue a different state
The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.
Result of Chisholm v Georgia, in which a citizen requested that the federal court system oversee his lawsuit against the
state of Georgia
12th Amendment – passed in 1804, this amendment changed the election process as it relates to the Electoral College


Original language in Constitution: the person who
came in 2nd place in a presidential election became
the VP. The election of 1800 REALLY screwed this
up….
Today: the president and VP run together as a team,
called the Running Mate System.
o Has led to “balancing the ticket” – when
candidates try to find political or geographic
balance to make them more appealing to a
wider base of voters
13th Amendment – passed in 1865, ends slavery in all of its forms (except in cases of punishment for a crime… really…no
involuntary servitude unless “as punishment for a crime whereof the party shall have been duly convicted”
14th Amendment – passed in 1865, granted citizenship to all people born on American soil, thus making all freed slaves
American citizens



Possibly one of the most argued Amendments in the federal courts – used numerous times because of all of the
CLAUSES….
Section I. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizen
of the United States and of the State wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States (INCORPORATION CLAUSE – made all states
obey some of the Bill of Rights; some call this selective incorporation because the Federal Courts make states
obey free speech but does not make them enforce the 2nd Amendment); nor shall any State deprive any person
of life, liberty, or property, without due process of law (DUE PROCESS CLAUSE); nor deny to any person within
its jurisdiction the equal protection of the law (EQUAL PROTECTION CLAUSE)
o Incorporation Clause – made states obey some provisions of the Bill of Rights
o Due Process Clause – said that individuals must be treated fairly when dealing with criminal
proceedings
o Equal Protection Clause – prohibits states from denying any person within its jurisdiction the equal
protection of the law
WE WILL REVISIT THIS. OH YES, YOU WILL BE
SEEING THIS AGAIN…AND AGAIN…AND
AGAIN….
15th Amendment – passed in 1870, gave freed male
slaves over 21 the right to vote


Increases the electorate (number of eligible
voters)
Will be avoided in many southern states due to
Jim Crow laws
o Poll Taxes, Grandfather Clauses,
Literacy Tests, Voter Intimidation
11
Break in Amendments – Glimpse into the Future
Dred Scott v Sanford 1856 – upheld the institution of slavery and the fugitive slave law (Ok, this was a glimpse
back…)


Expanded states’ rights (particularly as they relate to slavery)
Example of federal decision (SCOTUS) determining the relationship between the states
Plessy v Ferguson 1896 – establishes the Separate but Equal Doctrine




Plessy argued a violation of his 13th-15th amendment rights
Sometimes called the Separate but Equal Test
SCOTUS upholds that segregated facilities ARE constitutional
Creates legal justification for Jim Crow laws
Brown v Board of Education 1954 – declares segregated schools to be inherently unequal




Overturns the ruling in Plessy
Rules Separate but Equal test to be unconstitutional
Upholds Congress’s right to use the Commerce Clause as a way of intervening in the affairs of
(southern) states
Argument uses the Equal Protection Clause of the 14th Amendment as key justification
Civil Rights Act of 1964 – landmark legislation that outlawed discrimination on the basis of race, color,
religion, sex or national origin in voting, employment and public services (such as transportation)



Originally created to protect the rights of African Americans, but amended prior to passage to include
everyone
o Explicitly included women for the first time
Eliminates literacy tests from voting
o Had technically been outlawed by Voting Rights Act of 1965, which outlawed discriminatory
voting practices that had been responsible for the widespread disenfranchisement of African
Americans….but….the south….
Encouragement for the Equal Rights Amendment of 1979 – a PROPOSED amendment to the U.S.
Constitution that was intended to guarantee equal rights under the law for Americans regardless of
sex.
o Did not pass – 15 states refused to ratify = failure to secure 3/4s of state legislatures necessary
to ratify the amendment
BRAINSTORM!
How could/would the 14th Amendment
be used to expand equality?
12
Yes, More Amendments
16 Amendment 1913 – First of the Progressive Amendments
th



Creates a progressive graduated income tax – an income tax that is based upon the amount of money
that an individual makes; the more one makes, the higher the tax rate
To bridge the wealth gap (social/economic change)
In 1913, less than 1% of the population paid any income tax; today, 95% of the population pays
income tax. The more you make, the more you pay

Other proposed ideas include…
o Flat tax – all Americans pay the same rate. For instance, a person making $1 million/year
pays 20% of her salary; a person making $100k/year would also pay 20%
o Regressive tax – a tax that takes a larger percentage from low-income individuals than
from those with a high income. Some consider sales tax to be regressive – Ex: if Jane has
$10 and John has $5, a tax of $1 on a purchase would result in a different percentage of
total income applied to taxation (20% for John and 10% for Jane)
17th Amendment 1913 - Still Progressive…


Requires the direct election of senators, thus changing an election procedure that had been
established in the original Constitution
Minimizes political corruption (political change)
18th Amendment 1920 - Oh, those Progressives….



Established Prohibition – making the production, transportation, sale and consumption of alcohol
illegal
Started by the Temperance Movement by a group of concerned women (social change)
Leads to a significant increase in crime…it’s not like people just stopped drinking…so normal imbibing
citizens were now criminals. But also….ORGANIZED CRIME!!!
13
They Keep Going…and Going…and Going…And going…
19 Amendment 1920– Don’t those Progressives ever let up??
 Grants women’s suffrage (right to vote) (political change)
 Doubles the electorate
 Political movement that began years prior, but gained strength with the sociopolitical involvement of
women in the Temperance Movement
 Sexism prevented women voting for years (really. Women will vote for the wrong reasons. Women
will vote for whomever their men tell them to vote for. Women aren’t intelligent/educated enough to
vote)
 Also….Woodrow Wilson needed support for his desire for U.S. entry into WWI – women’s groups
promised to support all war efforts if he would push Congress to work on a suffrage amendment. So
there’s that….
th
20th Amendment 1933– the “Lame Duck Amendment” – a “lame duck” is a defeated politician that remains in
office until the next person takes over. Prior to 1933, defeated Presidents and members of Congress would
not be replaced until after March.


Presidential inauguration – January 20th
Congressional session – January 3rd
President Clinton was not defeated,
but was limited by 2 terms in office; he
was therefore a lame duck politician.
During his final days in office, he
pardoned over 100 people, including
his brother (DUI and drug possession)
and Marc Rich (felon wanted for tax
evasion…Clinton’s buddy…). This
became known as “Pardon-gate.”
Presidential approval ratings tend to fall over the
course of a person’s tenure in office, especially if
the president serves a second term. The reasons
for this are scandal, policy failures and the
“expectation gaps” – lame duck presidents are
generally considered weakened by the
knowledge of congress, the media, and the
American people that the leader will soon be
gone.
21st Amendment 1933 – Repeal of Prohibition. Take THAT Progressives!
 Overturns the 18th Amendment
 In large part due to a significant increase in organized crime (a la
Al Capone), but also to due public protests
 18th had been avoided on many levels: rum running, bootlegging,
speak-easies, bathtub gin, illegal stills, etc.
22nd Amendment 1951 – Keep the 2’s together…2…2…2…



Sets presidential term limit to – guess what – 2!!!
Result of Democrat FDR’s 4th election…this did not please the Republican Congress
A president cannot serve more than two four-year terms or pass 10 total years of service
How does that work? Do the math…
23rd Amendment 1961 – Washington DC granted 3 Electoral College
votes
 DC would be granted no more EC votes than the least populated
states (We’ll come back to this…)
 This partially satisfied the desire of DC residents for a voice within
national politics
o DC has a Congressional “delegate,” but this person does not have
voting rights within Congress
14
Oh, Hey There Amendments. It’s Been real.
24 Amendment 1964 – eliminates poll taxes (tax on voting)
th


Originally used in southern states to prevent minorities from voting
Currently argued by some: that the requirement of a state-issued ID card to vote is akin to a toll (as
state issued ID’s are not free…)
25th Amendment 1967 – establishes the official order of Presidential Succession
Order of Succession
Vice President
Speaker of the House
President pro tempore of the Senate
Sec of State
Sec of Treasury
Sec of Defense
Attorney General
Sec of Interior
Sec of Agriculture
Sec of Commerce
Sec of Labor
Sec of HHS
Sec of HUD
Sec of Transportation
Sec of Energy
Sec of Veterans Affair
Sec of Homeland Security
The passage of this amendment was a direct result of the
assassination of President Kennedy
26th Amendment 1971 – lowers the voting age from 21 to 18. Done primarily as a response to the Vietnam
War – if 18-year-olds can be drafted into war, they should at least get to vote for the people who are sending
them to fight

Statistically, 18-25 year olds have the worst voter turnout. Approximately 20% vote in Presidential
elections, despite rallying attempts by both political parties and interest groups
27th Amendment 1992 – Congressional pay increases cannot take effect until the beginning of the next term


Keeps Congress from giving themselves arbitrary raises
Originally proposed in 1789 as part of the original Bill of Rights
15
Civil Liberties OR/VS Civil Rights
Civil Liberties and Civil Rights
Justice Felix Frankfurter was a huge influence on the Supreme Court in the years he sat on
the bench, 1939 — 62. He is noted for his civil rights and anti-trust decisions.
"It is a fair summary of constitutional history that the landmarks of our liberties have often
been forged in cases involving not very nice people." -Supreme Court Justice Felix
Frankfurter
Protection of civil liberties and civil rights is perhaps the most fundamental political value in
American society. And yet, as former Justice Frankfurter explained in the quote above, the
people who test liberties and rights in our courts are not always ideal citizens. Consider
some of these examples:

A pick ax murderer on death row who found God and asked for clemency
A publisher of magazines, books, and photos convicted for sending obscene materials through the United States
mail
 A convict whose electrocution was botched when 2,000 volts of electricity rushed into his body, causing flames
to leap from his head
 A university student criminally charged for writing and publishing on the internet about torturing and murdering
women
Each of these people made sensational headline news as the center of one of many national civil liberties disputes in the
late 20th century. They became involved in the legal process because of behavior that violated a law, and almost
certainly, none of them intended to become famous. More important than the headlines they made, however, is the role
they played in establishing important principles that define the many civil liberties and civil rights that Americans enjoy
today.

Liberties or Rights?
What is the difference between a liberty and a right? Both words appear in the Declaration of Independence and the Bill
of Rights. The distinction between the two has always been blurred, and today the concepts are often used
interchangeably. However, they do refer to different kinds of guaranteed protections.
Civil liberties are protections against government actions. For example, the First Amendment of the Bill of Rights
guarantees citizens the right to practice whatever religion they please. Government, then, cannot interfere in an
individual's freedom of worship. Amendment I gives the individual "liberty" from the actions of the government.
Civil rights, in contrast, refer to positive actions of government should take to create equal conditions for all Americans.
The term "civil rights" is often associated with the protection of minority groups, such as African Americans, Hispanics,
and women. The government counterbalances the "majority rule" tendency in a democracy that often finds minorities
outvoted.
LIBERTIES
BOTH
RIGHTS
16
Right vs. Right
The Chicago Defender, an African-American newspaper, trumpets the
desegregation of the military. The right to participate in public institutions
is a key component of civil rights.
Most Americans think of civil rights and liberties as principles that
protect freedoms all the time. However, the truth is that rights listed in the
Constitution and the Bill of Rights are usually competing rights. Most civil
liberties and rights court cases involve the plaintiff's right vs. another right
that the defendant claims has been violated.
For example, in 1971, the New York Times published the "Pentagon
Papers" that revealed some negative actions of the government during the
Vietnam War. The government sued the newspaper, claiming that the
reports endangered national security. The New York Times countered with
the argument that the public had the right to know and that its freedom of
the press should be upheld. So, the situation was national security v.
freedom of the press. A tough call, but the Court chose to uphold the rights of the press.
The Bill of Rights and 14th Amendment
The overwhelming majority of court decisions that define American civil liberties are based on the Bill of
Rights, the first ten amendments added to the Constitution in 1791. Civil liberties protected in the Bill of Rights
may be divided into two broad areas: freedoms and rights guaranteed in the First Amendment (religion,
speech, press, assembly, and petition) and liberties and rights associated with crime and due process. Civil
rights are also protected by the Fourteenth Amendment, which protects violation of rights and liberties by the
state governments.
14th Amendment
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the state wherein they reside. 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.
Section 2.
Representatives shall be apportioned among the several states according to their respective numbers,
counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote
at any election for the choice of electors for President and Vice President of the United States,
Representatives in Congress, the executive and judicial officers of a state, or the members of the
legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of
age[Changed by the 26th Amendment], and citizens of the United States, or in any way abridged, except
for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the
proportion which the number of such male citizens shall bear to the whole number of male citizens twentyone years of age in such state.
17
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice
President, or hold any office, civil or military, under the United States, or under any state, who, having
previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member
of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the
United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to
the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for
payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be
questioned. But neither the United States nor any state shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or
emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Protection of civil liberties and civil rights is basic to American political values, but the process is far from easy.
Protecting one person's right may involve violating those of another. How far should the government go to
take "positive action" to protect minorities? The answers often come from individuals who brush most closely
with the law, whose cases help to continually redefine American civil liberties and rights.
Directions
List amendments that specifically protect civil rights or civil liberties in the appropriate column. Ask yourself,
“Does this amendment explicitly limit the power of the government?” What is your justification for your
selections?
LIBERTIES
RIGHTS
18
Civil Rights – General Religion
Freedom of Religion
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”



Establishment Clause – prohibits laws establishing (creating) a national religion
Free Exercise Clause – prevents the government from
interfering with the practice of religion
Religion in American society
o Over 70% of Americans identify with a
particular faith
o Over 40% of Americans attend a religious
service weekly
o Over 80% of Americans believe in the existence
of God
In a written correspondence in 1802,
Thomas Jefferson coined the phrase
“Wall of Separation.” This wall exists
between the government and religious
institutions. This has been known as the
“Separation of Church and State”
(words that are never actually written in
the Constitution)
Lemon v Kurtzman 1971 – court struck down a state program that would have helped pay the salaries of teachers hired
by parochial (religious) schools to give instruction in secular (non-religious) subjects.


As part of the majority opinions, justices will many times establish a “test” that will serve as a way to measure all
future cases on the topic….(“separate but equal test” ring a bell??)
Lemon Test – determined the constitutionality of government programs under the establishment clause. There
are 3 parts of the test:
1) They must have a secular (non-religious) purpose
2) Their primary effect must not be to advance or inhibit religion
3) They must not entangle the government excessively with religion
Agostini v Felton 1997 – Question: can public school teachers teach non-religious remedial subjects at a non-secular
(religious) school?
Answer: Yes. 5-4 ruling, using the Lemon Test said that religion was neither advanced nor hindered by the teachers
Lynch v Donnelly 1984 – The city of Pawtucket, Rhode Island, annually erected a Christmas display located in the city’s
shopping district. The display included such objects as a Santa Claus house, a Christmas tree, a banner reading “Season’s
Greetings” and a nativity scene. Daniel Donnelly objected to the display and took action against Dennis Lynch, the mayor
of Pawtucket.
Question: did the inclusion of a nativity scene in the city’s display violate the Establishment Clause?
Answer: No. 5-4 vote in favor of Donnelly. The Court found that the display, viewed in the context of the holiday
season, was not a purposeful or surreptitious effort to advocate a particular religious message. The Court found
that the display merely depicted the historical origins of the Holiday and had "legitimate secular purposes." The
Court held that the symbols posed no danger of establishing a state church and that it was "far too late in the
day to impose a crabbed reading of the [Establishment] Clause on the country."
-“Plastic Reindeer Rule” written by Justice O’Conner as a concurring opinion (opinion that sides with the
majority, but for different reasons. These are NOT legally binding). This rule would suggest that a religious display is made
acceptable so long as there are enough secular symbols to go along with it and create balance
19
Civil Rights – Free Exercise
Sherbert v Verner 1963 – upheld an individual’s right to collect unemployment for refusing to work on the
Sabbath. This case ruled in favor of Free Exercise Religious beliefs.

Creates the Sherbert Test
1) Whether the person has a claim involving a sincere religious belief
2) Whether the government action is a substantial burder on the person’s ability to act on that
belief
 If both of these are established, then the government must prove:
 That it is acting in the furtherance of a “compelling interest” – known as strict
scrutiny – establishes a high threshold, meaning that the government needs
to show or justify why they are singling out a group
 That it has pursued that interest in the manner least restrictive, or least
burdensome, to religion
Oregon Employment Division v Smith 1990 – two Native Americans, who worked as counselors for a private
drug rehabilitation organization, ingested peyote (a powerful hallucinogen) as part of their religious
ceremonies as members of the Native American Church. As a result of the conduct, the rehabilitation
organizers fired the counselors. The counselors filed a claim for unemployment compensation; the
government denied them benefits because the reason for their dismissal was considered work-related
“misconduct.”
Question: Does the state law violate the Free Exercise Clause of the First Amendment?
Answer: NO!!
Reynolds v United States 1879 – George Reynolds was a member of the Church of Jesus Christ of Latter-day
Saints; he was charged with polygamy after marrying Amelia Jane Schofield while still married to Mary Ann
Tudddenham in the Utah Territory.
Question: does the Free Exercise Clause protect polygamy?
Answer: NO!!
The President, SCOTUS and Religious Freedom
In 1993, President Clinton
signed the Religious
Freedom and Restoration
Act into law. It said that
the government must
show strict scrutiny before
limiting a person’s rights
protected by the free
exercise clause. The law
re-established the
Sherbert Test. It was ruled
unconstitutional in City of
Boerne v Flores 1997.
SCOTUS ruled the law
unconstitutional on the
grounds of separation of
power – only the Supreme
Court can rule strict
scrutiny
Justice Earl Warren
was Chief Justice
from 1953-1969. He
played a big role in
the expansion of civil
liberties, freedom of
expression and the
right to privacy. He
ruled on the Gideon,
Brown, Miranda and
Engel cases.
Appointed by
Eisenhower, who
would later say that
this appointment
was the biggest
mistake of his
presidency
20
Civil Rights – Establishment
School Prayer – SCOTUS has constantly equated prayer in public schools with government support of religion. The
court has been consistently supportive of the wall between public schools and religion

Engel v Vitale 1962 – The Board of Regents for the State of New York authorized a short, voluntary prayer
for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by
taking it out of the hands of local communities. Most read as follows:
“Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country.”
o


Question: Does the reading of a nondenominational prayer at the start of the school day violate
the Establishment Clause?
o Answer: Yes! 6-1 the court said that neither the prayer’s nondenominational character nor its
voluntary character saves it from unconstitutionality
Abington v Schempp 1963 – similar to Engel - cannot begin the day with Bible reading
Wallace v Jaffree 1985 – An Alabama law authorized teachers to conduct regular religious prayer services
and activities in school classrooms during the school day. This could be in the form of prayer or meditation.
Three of Jaffree's children attended public schools in Mobile.
o Question: Does this violate the Establishment Clause?
o Answer: Yes. The Court determined the constitutionality of Alabama's prayer and meditation
statute by applying the secular purpose test, which asked if the state's actual purpose was to
endorse or disapprove of religion. The Court held that Alabama's passage of the prayer and
meditation statute was not only a deviation from the state's duty to maintain absolute neutrality
toward religion, but was an affirmative endorsement of religion. As such, the statute clearly lacked
any secular purpose as it sought to establish religion in public schools, thereby violating the First
Amendment's Establishment Clause
(CNN)After the Supreme Court's week of high-profile decisions, Oklahoma's high court made a stir of its own in a
ruling that had a group of self-proclaimed Satanists and an ordained Baptist minister celebrating.
The Oklahoma Supreme Court ruled Tuesday that the state must remove a 6-foot tall granite monument of the Ten
Commandments from its capitol because it violates the state's constitutional ban against the use of public funds or
property to benefit a religion.
The decision came after years of controversy and legal battles. The monument's supporters include prominent figures
in the state, including Oklahoma Gov. Mary Fallin and members of the state's legislature.
In an interview with CNN affiliate KOCO, Bruce Prescott, an ordained Baptist minister and one of the plaintiffs in the
suit against the display, said, "I'm not opposed to Ten Commandments monuments. I'm just opposed to the
placement on government property, because I think that the government needs to be neutral." By Eli Watkins, CNN
http://www.cnn.com/2015/07/02/politics/oklahoma-supreme-court-orders-removal/
21
Civil Rights – Free Speech
Freedom of Speech – often referred to as freedom of speech and expression, as it is not limited to the spoken
word
Limitations to Free Speech
Protection of Free Speech
Schenck v US 1919 – see pg 5 of this packet
Brandenburg v Ohio 1969
 Creates the Clear and Present Danger Test – the
 Brandenburg, a leader in the KKK, made a
actions of Schenck in encouraging citizens to ignore
speech at a Klan rally and was later convicted
the Conscription Act were akin to yelling fire in a
under an Ohio criminal syndicalism law. The law
crowded theater – his words posed an immediate
made illegal advocating “crime, sabotage,
threat to the country
violence, or unlawful methods of terrorism as a
Gitlow v New York 1925
means of accomplishing industrial or political
reform,” as well as assembling “with any society,
 Gitlow, a socialist, was arrested for distributing copies
group, or assemblage of persons formed to
of a “left-wing manifesto” that called for the
teach or advocate the doctrines of criminal
establishment of socialism through strikes and class
syndicalism.”
action of any form. Gitlow was convicted under a
state criminal anarchy law, which punished
 In a Per Curiam Opinion, the court held that
advocating the overthrow of the government by
Ohio law violated Brandenburg’s free speech
force. Is punishing the advocacy of revolution a
- Per Curiam Opinion = brief, unsigned
st
violation of the free speech clause of the 1 Amend?
opinions that are generally unanimous
- Issue: does the 1st Amendment apply to the
Tinker v Des Moines 1969
states? YES
 Three students, along with their parents,
- But why? Because of the liberty protected by
decided to protest the Vietnam War by wearing
due process that no state shall deny (14th
armbands to school. The administration had
Amendment INCORPORATION CLAUSE)
announced that those participating in this
th
 IMPORTANT: this is the first time that the 14
protest would be suspended. The students wore
amendment was used to incorporate the Bill of Rights
the bands anyways and were suspended.
to the states. (selective incorporation – done one at a
 SCOTUS ruled that the wearing of armbands was
time/selectively….)
“closely akin to free speech” and that “neither
Chaplinsky v New Hampshire 1941
teachers nor students shed their rights at the
 Chaplinsky called a city marshal a “God-damned
school house gate.”
racketeer” and “a damned fascist” in a public place;
 Schools MAY limit student expression IF it is
he was arrested and convicted under a state law for
found to interferes with the purpose of a school
violating a breach of the peace. His expression was
Cohen v California 1971
appropriately limited, as fighting words are not
 19yo was arrested for wearing a jacket that read
protected free speech
“F*** THE DRAFT. STOP THE WAR.” He was
arrested for maliciously and willfully disturbing
UNDER WHAT CIRCUMSTANCES MAY THE GOVERNMENT
the peace and quiet of any neighborhood or
LIMIT FREE SPEECH?
person by offensive content.” SCOTUS ruled for
Cohen – “one man’s vulgarity is another’s lyric”
Texas v Johnson 1981
 Johnson burned a US flag in front of Dallas City
Hall as a means of protest vs Reagan
administration policies. Convicted of flag
desecration
 SCOTUS declares flag burning a means of
protected expression; Congress responds with
the Flag Protection Act of 1989, which is
challenged in US v Eichman 1990, in which
SCOTUS again states that flag burning is free
expression, regardless of Congressional law
22
Civil Rights – Expression: Obscenity vs Art
“…whether the average person, applying contemporary community standards, would
find that the work, taken as a whole, appeals to the prurient interests…” (Prurient =
having a tendency to incite lustful thoughts)
- Justice Brennan
Miller v California 1973 – Miller, after conducting a mass mailing campaign to
advertise the sale of “adult” material, was convicted of violating a California
statute prohibiting the distribution of obscene materials. Some dissatisfied
recipients of Miller’s brochures complained to the police, initiating the legal
proceedings



Issue: whether the sale/distribution of obscene materials by mail is
protected under the First Amendment
SCOTUS 5-4 ruled that obscene materials did NOT enjoy First Amendment protections
Creates the Miller Test – used to identify obscenities
1) The work, taken as a whole, appeals to prurient
“I shall not today attempt further to
interests
define the kinds of material…but I know
2) The work portrays sexual conduct in a patently
it when I see it.” – Justice Stewart
offensive way
3) The work lacks any literary, artistic, political or
scientific value
Reno v ACLU 1997 – Several litigants challenged the constitutionality of two provisions in the 1996
Communications Decenscy Act. Intended to protect minors from unsuitable internet material, the Act
criminalized the intentional transmission of “obscene or indecent” messages as well as the transmission of
information which depicts or describes “sexual or excretory activities or organs” in a manner deemed
“offensive” by community standards.

Does the Act violate the First Amendment? YES – its regulations amounted to a content-based blanket
restriction of free speech
What is “art” and what is not?
Provide examples of the debate between art and free speech. Think “banned”…
23
Civil Rights – Freedom of the Press
Neither slander nor libel are protected forms of press


Slander – oral defamation of character
Libel – written defamation of character
New York Times v Sullivan 1964 – see pg 5

Ruling: The First Amendment protects the publication of all statements, even false ones, about the
conduct of public officials except when statements are made with actual malice – with knowledge that
they are false or in reckless disregard to their truth or falsity. This is the Malice Test
Cameron Diaz sued The National Enquirer for more than $10
million, alleging that the tabloid libeled her in a story that claimed
she cheated on her former boyfriend Justin Timberlake by kissing
another man. Oooooooohhhhhh……..
New York Times v US 1971 – The Pentagon Papers
 Whistleblower Daniel Ellsberg managed to procure, photocopy and return a large number of classified
papers regarding the execution of the Vietnam War. These documents later became collectively
known as the Pentagon Papers. The documents revealed that many within the Pentagon believed the
Vietnam War to be unwinnable and have known it to be true for some time.
 The Nixon Administration attempted to prevent the New York Times and Washington Post from
publishing materials belonging to a classified Defense Department study regarding the history of US
activities in Vietnam. These cases would be decided together.
 Does the prevention of publication of information termed “classified” violate the First Amendment?
 YES! SCOTUS ruled 6-3 in favor of the publications, stating that the word “security” should not be used
“to abrogate the fundamental law embodied in the First Amendment.” They expand, to state that
prior restraint did not apply in these cases, since the publications would not cause an inevitable, direct
and immediate event imperiling the safety of American forces
o
Prior Restraint – legal term referring to a
government’s actions that prevent material from
being published (see reasons above)
24
Civil Rights – Privacy
Privacy – an implicit idea that comes from the 1st, 3rd, 4th and 9th Amendments

Many cases that argue a right to privacy do so through the use of the 14th Amendment
o Incorporation - this makes the states obey some of the Bill of Rights
o Selective Incorporation – ex: SCOTUS makes states obey free speech but does not make them enforce
2nd amendment
o Due Process – government must follow specific protocol
o Equal Protection – that all are treated equally before the law
Mapp v. Ohio – 1961 – see pg 6

Establishes the exclusionary rule – illegally obtained evidence cannot be used in court; nor can any evidence
gained as a result of the illegally obtained evidence (termed “fruit of the poisonous tree”)
o Good Faith Exception – If officers had reasonable, good faith belief that they were acting according to
legal authority, such as by relying on a search warrant that is later found to have been legally defective,
the illegally seized evidence is admissible.
Griswold v Connecticut 1965 - Griswold was the Executive Director of the Planned Parenthood League of Connecticut.
Both she and the Medical Director gave information, instruction, and other medical advice to married couples concerning
birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of
counseling and other medical treatment to married persons for purposes of preventing conception.


SCOTUS ruled that – while the Constitution does not EXPLICITLY protect a right to privacy – the various
guarantees in the Bill of Rights create penumbras (zones) that establish a right to privacy
New right – privacy in marital relations
Roe v Wade 1973 – landmark abortion case. Roe, a Texas resident, sought to terminate her pregnancy by abortion, which
was only permitted in Texas to save the life of the mother.

SCOTUS ruled that a woman’s right to an abortion fell within the right to privacy protected by the 14 th
Amendment. Decision gives women autonomy over the pregnancy during the 1 st trimester and defined different
levels of state interest for the 2nd and 3rd trimesters. This is the Abortion Test.
Planned Parenthood v Casey 1992 – The Pennsylvania legislature amended its abortion control law in 1988 and 1989;
under new provisions, those seeking the procedure would have to provide informed consent and undergo a 24 hour
waiting period. A minor seeking an abortion required parental consent and a married woman required spousal consent.
Various clinics challenged these new regulations as a violation of privacy and due process, citing Roe in their arguments

SCOTUS reaffirms the decision in Roe, but imposes new standards to determine the validity of laws restricting
abortions. The new standards ask whether a state abortion regulation has the purpose or effect of imposing an
“undue burden” – a substantial obstacle in the path of a woman seeking an abortion before the fetus attains
viability. Using this, the only provision to fail the new Undue Burden Test was the spousal notification
requirement
Lawrence v Texas 2003 – John Lawrence and another man were arrested when police entered his apartment in response
to a “weapons disturbance” and found the two engaged in a sexual act. They were arrested for violating Texas sodomy
laws. Issues:


Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual
Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by
different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? NO
Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital
interests in liberty and privacy protected by the Due Process Clause of the Fourteenth
Amendment? YES
25
Civil Rights – Equality
The United States has long grappled with a history of racism and inequality. The 13-15th Amendments were
one of the first attempts to try to produce a remedy. Since then, cases brought before the Supreme Court
have challenged the Constitutionality of different practices, typically employed by the states to limit individual
rights and deny equality. One case, challenged the constitutionality of a federal policy that had been used to
promote equality in hiring – Affirmative Action.
University of California v Bakke 1978 – Allan Bakke, a 35yo white male, had twice applied for admission to the
University of California Medical School at Davis. He was rejected on both occasions. The school reserved
sixteen places in each entering class of one hundred for “qualified” minority applicants. This was done as part
of their Affirmative Action program in an effort to redress longstanding, unfair minority exclusions from the
medical profession. Bakke’s qualifications (college GPA and test scores) exceeded those of any of the minority
students admitted in the two years that his application was rejected.



Bakke claimed that the use of Affirmative Action was discriminatory against white males and therefore
violated the 14th Amendment’s Equal Protection Clause and the Civil Rights Act of 1964
SCOTUS – rules in favor of Bakke in regards to quotas. Decision declares the use of quotas to be an
unconstitutional violation of the Civil Rights Act of 1964 (4 opinions) and of the Equal Protection
Clause (1 opinion). HOWEVER, SCOTUS did rule that the use of race as a criterion in admissions
decisions IS permissible (5-4)
End Result:
Obergefell v Hodges 2015 - Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan,
Kentucky, and Tennessee to challenge the constitutionality of those states’ bans on same-sex marriage or
refusal to recognize legal same-sex marriages that occurred in jurisdictions that provided for such marriages.
The plaintiffs in each case argued that the states’ statutes violated the Equal Protection Clause and Due
Process Clause of the Fourteenth Amendment, and one group of plaintiffs also brought claims under the Civil
Rights Act. In all the cases, the trial court found in favor of the plaintiffs. The U.S. Court of Appeals for the Sixth
Circuit reversed and held that the states’ bans on same-sex marriage and refusal to recognize marriages
performed in other states did not violate the couples’ Fourteenth Amendment rights to equal protection and
due process.

Questions before the Court:
o (1) Does the Fourteenth Amendment require a state to license a marriage between two people
of the same sex? YES
Does the Fourteenth Amendment require a state to recognize a marriage between two people
of the same sex that was legally licensed and performed in another state? YES
Rationale: The Court held that the Due Process Clause of the Fourteenth Amendment guarantees the
o

right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex
couples in the same manner as it does to opposite-sex couples. Judicial precedent has held that the
right to marry is a fundamental liberty because it is inherent to the concept of individual autonomy, it
protects the most intimate association between two people, it safeguards children and families by
according legal recognition to building a home and raising children, and it has historically been
recognized as the keystone of social order. Because there are no differences between a same-sex
union and an opposite-sex union with respect to these
In the majority opinion, Justice
principles, the exclusion of same-sex couples from the
Kennedy
cites Loving v Virginia
right to marry violates the Due Process Clause of the
1966, in which SCOTUS declared a
Fourteenth Amendment. The Equal Protection Clause of
Virginia ban against interracial
the Fourteenth Amendment also guarantees the right of
marriage
to be unconstitutional.
same-sex couples to marry as the denial of that right
would deny same-sex couples equal protection under
the law.
26
Critical Cases
This is a list of the ESSENTIAL cases that you MUST ABSOLUTELY KNOW both for this course and for the AP
Exam in May. The page that follows is a list of key cases that you may/may not see…some may be referenced
on the Exam, they may be explained, they may not show up at all. Those that follow here are the cases that
require you to know the background, justification for ruling and effect.
Original Text
Marbury v Madison
Gibbons v Ogden
McCulloch v Maryland
1st Amendment
Engel v Vitale
Lemon v Kurtzman
Gitlow v NY
Miller v California
4th Amendment
Mapp v Ohio
5th Amendment
Miranda v Arizona
6th Amendment
Gideon v Wainwright
8th Amendment
Furman v Georgia
Gregg v Georgia
9th Amendment
Griswold v Connecticut
Roe v Wade
14th Amendment
Gitlow v New York (again)
Brown v Board
Baker v Carr
Regents of the University of California v Bakke
27