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Chapter 4

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The Bill of Rights, the Fourteenth Amendment, and Selective Incorporation

Selective incorporation of free expression rightsFourteenth Amendment due process clause prevents states

from abridging individual rightsSupreme Court engaged in selective incorporation—

invoking the Fourteenth Amendment to apply the Bill of Rights to the states

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The Constitution: The Bill of Rights and the Fourteenth Amendment

Selective incorporation of fair trial rightsInitial resistance by the Supreme Court to invoke selective

incorporation to protect the rights of the accused in the states

Change in the 1960s: Court begins to assert and protect rights of accused

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Civil Liberties Rankings

4-4

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Freedom of ExpressionThe early period: the uncertain status of the right of free

expressionSedition Act, 1798Espionage Act, 1917Schenck v. United States (1919)

Clear-and-present-danger test

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Freedom of ExpressionThe modern period: protecting free expression

Early cold war—freedom of speech abridged in interest of national security; protected after 1950s

Imminent lawless action testSymbolic speech protected, but less completely than verbal

speech

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Freedom of ExpressionFree assembly

Some restrictions allowed, based on national security or disruption of daily life

Government can place time, place, and manner restrictions

Press freedom and prior restraint“Pentagon Papers”New York Times Co. v. United States (1971)Prior restraint disallowed under extreme burden of proof on

government

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Freedom of ExpressionLibel and slander

Libel: publishing material that falsely damages a person’s reputation

Slander: spoken words that falsely damage a person’s reputation

Libel against public officials requires malicious intent

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Freedom of ReligionThe establishment clause

Government may not favor one religion over anotherGovernment may not favor religion over no religion“Wall of separation” versus “excessive entanglement”

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Freedom of ReligionThe establishment clause often involves the Lemon test

1. The policy must have a nonreligious purpose

2. The policy’s primary effect must be one that neither advances nor inhibits religion

3. The policy must not foster “an excessive entanglement of government with religion

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Freedom of ReligionThe free-exercise clause

Government prohibited from interfering with the practice of religion

Government interference allowed when exercise of religious belief conflicts with otherwise valid law

Government may not prohibit free exercise of religion

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The Right to Bear ArmsWidely accepted view that the Second Amendment

blocked the federal government from abolishing state militias

In District of Columbia v. Heller (2008) the Court ruled that “the Second Amendment protects an individual right to possess a firearm”

In McDonald v. Chicago (2010), the Court further extended the 2008 decision to apply to all state and local governments

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The Right of PrivacyGriswold v. Connecticut (1965): Americans have a “zone

of privacy” that cannot lawfully be deniedAbortion

Protected as a right of privacy in Roe v. Wade (1973)Webster v. Reproductive Health Services (1989), Planned

Parenthood v. Casey (1992), and Gonzales v. Carhart (2007) have placed some restrictions on abortion.

Sexual relations among consenting adultsAnti-sodomy laws in states struck down by Supreme Court

in 2003, overturning the 1986 Bowers v. Hardwick ruling

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Pro-Life vs. Pro-Choice

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Rights of Persons Accused of CrimesProcedural due process: procedures that authorities must

follow before a person can lawfully be punished for an offense

Suspicion phaseNo police search unless probable cause that a crime

occurred (Fourth Amendment)Not a blanket protection; some warrantless searches allowed

based on situation

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Rights of Persons Accused of CrimesArrest phase

Fifth Amendment protection against self-incriminationMiranda v. Arizona: no legal interrogation until suspect has

been warned his/her words could be used as evidenceMiranda warning

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Rights of Persons Accused of CrimesTrial phase

Legal counsel and impartial juryFifth Amendment: suspect cannot be tried for federal

crime unless indicted by grand jury; states not required to use grand juries

Sixth Amendment: right to legal counsel before and during trial

Right to speedy trial

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Rights of Persons Accused of CrimesTrial phase

The exclusionary ruleNo admission of illegally obtained evidence1960s expansion of exclusionary ruleExceptions: inevitable discovery; good faith

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Rights of Persons Accused of CrimesSentencing phase

Eighth Amendment prevention of “cruel and unusual punishment” of convicted persons

Supreme Court generally allows states to decide punishments, but has limited aspects of death penalty and punishments of minors

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Rights of Persons Accused of CrimesAppeal: one chance, usually

No constitutional guarantee of appeal; but federal and states allow at least one appeal

Federal law bars a second federal appeal by a state prison inmate in most instances

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Rights of Persons Accused of CrimesCrime, punishment, and police practices

Supreme Court rulings have affected police practices Miranda

Some poor or arbitrary application of rights Racial profiling

Tough sentencing policies popular, but prison overcrowding an issue

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Rights and the War on TerrorismWWII detention of Japanese AmericansDetention of enemy combatants

Hamdi v. Rumsfeld (2004)Hamdan v. Rumsfeld (2006)

Surveillance of suspected terroristsUSA Patriot ActWarrantless wiretappingSnowden leaks about NSA communications surveillance

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The Courts and a Free SocietyAmericans embrace freedom of expression as an abstract

virtueAmericans favor limits of freedom of expression in

particular instancesJudicial system the primary protector of individuals’

rights