GOVERNMENT TEST #6

Rights of Individuals

BILL OF RIGHTS 1st ten amendments to the Constitution Lists rights and liberties of individuals

and states Included to satisfy the demands of the

anti-federalists

UNALIENABLE RIGHTS Declaration of Independence U.S. Constitution

Civil liberties – protections against the government

safety against arbitrary acts of the government ex. – speech, press, fair trial

Civil rights – positive acts of government that seek to make constitutional guarantees a reality for all people

Prohibits discrimination based on race, gender, etc.

Rights are relative, not absolute Do what you will except when you infringe on

another’s rights Rights – extended to all persons including

aliens, but not all rights of citizens Process of incorporation – Supreme Court

incorporates or includes most of the guarantees in the Bill of Rights into the 14th Amendment’s due process clause

RELIGIOUS FREEDOM Virginia Statute of Religious Freedom

Thomas Jefferson Established “separation of church and state”

Engle v. Vitale Prayer in public schools is unconstitutional

Aid to Parochial Schools Lemon Test

Purpose of aid must be clearly secular, not religious Must not advance or inhibit religion Avoid excessive entanglement of government with

religion

SPEECH AND PRESS 1st and 14th Amendments

Protects the expression of unpopular views Restrictions

Libel – false and malicious use of printed words

Slander – false and malicious use of spoken words

Prohibits obscene words and printed materials

Sedition – crime of attempting to overthrow the government by force or to disrupt its lawful activities by violent acts Seditious speech – advocating, or urging

conduct to promote sedition (Not protected by the 1st amendment)

1798 – Alien and Sedition Acts – crime to criticize the President and could deport undesirables

Sedition Act of 1917 Crime to encourage disloyalty, interfere with the

draft, obstruct recruiting, etc – crime to “willfully utter, print, write, or publish any disloyal, profane, etc. about the form of Government in the US

Smith Act of 1940 Crime to advocate the overthrow of the government

or knowingly belong to any group with that aim 1951 – 11 communist were convicted, appealed to the

Supreme Court – violated 1st amendment – Lost 1957 – court overturns convictions from 1951 but does not

say the law is unconstitutional

OBSCENITY What is obscene? 1872 – prevent mailing of obscene

matter 1957 – excludes obscene, lewd,

lascivious or filthy pieces of material from the mail

1973 Miller v. Cal. – attempts to define obscene – it is deemed obscene if The average person applying community

standards finds that the work, taken as a whole , “appeals to the prurient interest “– that is tends to excite lust.

“the work depicts or describes, in a patently offensive way,” a form of sexual conduct specifically dealt with in an anti-obscenity law

“the work , taken as a whole, lacks serious literary, artistic, political, or scientific value”

1st and 14th Amendments allow cities the right to regulate the location of adult entertainment

Crime to make or possess child pornography Prior Restraint – words spoken or written

before a law was passed Only exception is during wartime or when it incites

violence or is obscene Public Schools can censor news papers, plays

and other school sponsored expressed activities

MEDIA Confidentiality – reporters can be forced to reveal

their sources though some states have passed Shield laws – some limited protection in disclosing sources or other confidential information

Motion Pictures 1952 – expressions by movies is protected by the 1st

Amendment Radio and TV

FCC (1932) – can censor indecent language and stop the renewal of a license

Cable has more freedom

Symbolic Speech Picketting – if peaceful, it is protected

Can be restricted if it is used to convince someone to do something illegal

Flag Burning Is protected as symbolic speech

FREEDOM OF ASSEMBLY AND PETITION Assembly – gather as a group to

express views on public matters Petition – written letters or

advertisements to bring views to the attention of public officials Abortion – restrictions on protest Can not trespass on private property –

acceptable in parking lots with some restrictions

CIVIL LIBERTIES: PROTECTING INDIVIDUAL RIGHTS

Due Process (5th Amendment) – act fairly and in accordance with established rules

14th Amendment – Bill of Rights apply against the nation Government only

Police Power (reserved power of the states)– power to act to protect and promote public health, safety, morals and general welfare Often conflicts with Civil Rights DUI Tests

Search Warrant – a court order authorizing a search Safety, health, morals and general welfare override

certain laws HEALTH – limit sale of alcohol, tobacco and mandatory

vaccination of school children SAFETY – forbid concealed weapons, wear seatbelts,

punish drunk drivers MORALS – outlaw gambling, prostitution and sale of

obscene materials GENERAL WELFARE – compulsory education, aid to

medically needy, limit public utility profits

Roe v. Wade –woman’s right to privacy 1st trimester – state cannot interfere with a

woman’s right or medical judgment 2nd trimester – state can make reasonable

regulations on how, when and where abortions are performed but may not prohibit the procedure.

3rd trimester – state may prohibit abortions to protect unborn child except those necessary to preserve the llife or health of the mother.

FREEDOM AND SECURITY 13th Amendment – prohibits slavery,

but not involuntary servitude (forced labor)

1968 – case to prevent discrimination based on the 1866 Civil Rights Act Can not refuse to sell someone a house

because of their color Later – private schools could not refuse

admission because of color.

RIGHT TO BEAR ARMS Right of the state to keep a militia –

preserve the idea of the citizen soldier States can limit weapons because does

not say there is a right to own any weapon – no guarantee to the right to won a weapon

SECURITY OF HOME AND PERSON 3rd Amendment – quartering of troops 4th Amendment – to prevent writs of

assistance – must have probable cause – reasonable suspicion of a crime

Police do not always need a search warrant Not needed if in “plain view” Not needed I f it is a lawful arrest Autos – 1991 CA v Acevedo – lawful stop – no

need for warrant if they have reason to believe there is evidence concerning acrime

Exclusionary Rule – evidence gained as a result of an illegal act by police cannot be used at the trial of the person from whom it was seized

Drug Testing – may be done without a warrant or even any indication of drug use

Wiretapping – must have a warrant

RIGHTS OF THE ACCUSED “presumed innocent until proven guilty by fair

and lawful means Writ of habeas corpus – prevent unjust arrests

and imprisonments It is a court order to an officer holding a prisoner

commanding him to take the prisoner before a court explaining why he should not be released.

Congress can suspend the writ during war Bills of attainder – legislative act inflicting

punishment without a court trial These can not be passed by the government

Ex post facto laws – a law passed after the fact A criminal law defining a crime and providing for its

punishment Applies to an act before its passage Works to the disadvantage of the accused These can not be passed by the government

Grand jury – return an indictment concerning an accused person Indictment – formal complaint Only prosecution is present These are not often used anymore – instead a prosecutor

swears by affidavit to evidence

Double Jeopardy – once tried for a crime, can not be tried again for the same crime

Speedy and Fail trial – no more than 100 days for Federal Court with some exceptions

Public trial Can’t be too public and too speedy Cameras are banned from Federal trials

but allowed in most states

Trial by Jury (6th Amendment) Pool of jurors drawn from sate and district

where the crime was committed “change of venue” – grounds that a jury in

that area would not be impartial – determined by a judge

Can wave the right to a jury trial and be heard by a judge only

Self- Incrimination (5th Amendment) Not just in criminal cases

Adequate Defense (6th Amendment) Right to be informed of the nature and cause of

the accusation Confronted by witnesses against him in open

court Have favorable witnesses subpoenaed (forced

to attend) To have assistance of counsel for his defense

Gideon v. Wainwright Escobedo v. Illinois Miranda v. Arizona

PUNISHMENTS Bail – sum of money the accused posts

to guarantee he will report to trial Cruel and Unusual Punishment Capital Punishment –death Treason – an attempt to overthrow the

government

CIVIL RIGHTS All people should have equal protection

under the law – 14th Amendment Major groups facing discrimination

Immigrants African Americans Native Americans Hispanics Asian Americans women

African Americans De facto segregation De jure segregation –”Jim Crow” Laws

Plessey v. Ferguson (1896) Separate but equal

Brown v. the Board of Education Segregation in Public Schools was

unconstitutional

Civil Rights Act of 1964 No denial of services in public

accommodations because of color, race, etc.

No discrimination in any Federally funded program

No discrimination by employers and unions Civil Rights Act of 1968

No discrimination in selling or renting houses or apartments

Affirmative action – giving preference to minorities and women for past discriminatory practices

Regents of the University of California v. Bakke