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In the Bill of Rights, find the following:
The right to make fun of the president
The right to be Catholic
The right to privacy The right to remain
silent The right to burn an
American flag The right to
advocate the violent overthrow of the government Cartoonist Ken Catalino, from Cagle political cartoons (.com)
What does the Bill of Rights do?
Protect rights that facilitate democratic processes
Protect against state involvement in private life
14th Amendment
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.
Selective Incorporation
The Supreme Court selectively applies the provisions of the Bill of Rights to state laws and practices, one right at a time.
Practice started with the case Palko v. Connecticut
Fourth
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.
Limits to the exclusionary rule
During a valid arrest When searching to ensure evidence is not
lost When searching with consent of the
subject When search occurs in hot pursuit When seizing evidence in plain view When searching places that merit low
protection
Rights of the criminally accused
Search and Seizure (4th) Jury Trial (7th) Double jeopardy (5th) Self incrimination (5th)
Miranda v. Arizona (1966)
Rights of the criminally accused
Search and Seizure (4th) Jury Trial (5th) Double jeopardy (5th) Self incrimination (5th) Counsel (6th)
Gideon v. Wainwright (1963)
Rights of the criminally accused
Search and Seizure (4th) Jury Trial (5th) Double jeopardy (5th) Self incrimination (5th) Just compensation (5th) Counsel (6th) Cruel and unusual punishment
Free expression
Congress shall make no law … 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.
Rights to free expression
Freedom of Speech
Strict Scrutiny: Burden of proof is placed on the government to show that the law is constitutional rather than on the challengers to show that the law is not constitutional.
Protected Speech
The truth. Except words that present a clear and present danger Except fighting words Except obscenity
Falsehoods Unless “reckless disregard for the truth” Libel (print) Slander (oral)
“Speech Plus” Conduct Flag burning
DOES THE FIRST AMENDMENT GIVE THE AN INDIVIDUAL THE RIGHT TO ENGAGE IN “OFFENSIVE” SPEECH?
DOES IT MEAN THAT WE CAN’T CRITICIZE AND APPLY SOCIAL
PRESSURE TO SILENCE SPEECH WE DON’T LIKE?
Freedom of religion
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”
Two clauses: Establishment clause Free exercise clause
Establishment clause issues
Does teaching intelligent design in public school science classes constitute laws “respecting” an establishment of religion?
Does allowing a moment of silence at the beginning of a class period?
Does reciting the phrase “under God” in the Pledge of Allegiance?
The Lemon Test
Lemon v. Kurtzman, 1971
The law must have a secular purpose The law’s primary effect must be one that
neither advances nor inhibits religion The law must not foster excessive
government entanglement with religion
What are some problems with this test?
The neutrality test
A law cannot favor religious over nonreligious (or nonreligious over religious) groups engaged in the same activity.
Right to bear arms
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.
Privacy
Read Griswold v. Connecticut (1965).
How would you decide this case? What is a penumbra? Where in the Constitution does the court
find the right to privacy?
Right to privacy
Found in penumbra created by: Right to associate (1st) No Soldier shall, in time of peace be quartered
in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. (3rd)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated (4th)
Right against self incrimination (5th) The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people. (9th)