American gov CH 6-11 - It is a study guide given for an exam given Spring Semester of 2017 over chapters 6-11. PDF

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It is a study guide given for an exam given Spring Semester of 2017 over chapters 6-11....

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Ch. 6: Civil Liberties A. From the sections called “The Nature, and Multiple (and Changing) Constitutional Sources, of Civil Liberties” and “Judicial Enforcement and Interpretation of Civil Liberties,” make sure to know and understand the following… ○ Do constitutions protect civil liberties against infringement by private individuals (or businesses) or do constitutions only protect against infringement by government? ● Free speech is ONLY protected from government infringement ○ Did civil liberties listed in the Bill of Rights of the U.S. Constitution apply to actions taken by state governments prior to the Civil War? Did they apply to actions taken by the federal government prior to the Civil War? ● No to state governments. ● Yes federal government before civil war ○ What is judicial review? What does it have to do with how civil liberties are enforced in practice? ● One of the check and balances in the system. The judicial branch checks the executive and legislative branches. ○ What is “Incorporation”? What does it have to do with the Due Process Clause of the 14th Amendment? ● Incorporation means that the Court declares a civil liberty from the Bill of Rights to be protected against state government abuse through the Due Process Clause of the Fourteenth Amendment i. What’s the difference between “selective incorporation” and “total corporation”? Which approach has the U.S. Supreme Court used? ● selective incorporation-- Gradual process by which the Supreme Court has chosen (one case and one right at a time) which civil liberties from the Bill of Rights to incorporate through the Fourteenth Amendment Due Process Clause. ○ *** the supreme court has used selective incorporation ● total corp- The idea that all of the civil liberties protected by the Bill of Rights should automatically be incorporated into the Due Process Clause all at once. The Supreme Court rejected this approach and chose instead the gradual process of selective incorporation. ○ These two concepts are closely tied to the Due Process Clause of the 14th Amendment: (1) Incorporation and (2) Unenumerated Constitutional

Rights. What’s the difference between those two constitutional sources of civil liberties? ● Unenumerated- rights said to be implied by the constitution but are not actually mentioned in it ● Both are similar in that they involve protecting “liberty” (from the Due Process Clause of the Fourteenth Amendment) against actions taken by state governments. ● But they differ in how liberties protected are discovered. Incorporation is about those rights explicitly listed (i.e., “enumerated”) in the text of the Constitution—specifically, in the Bill of Rights—whereas the Court’s protection of unenumerated constitutional rights involves rights nowhere explicitly mentioned (i.e., “enumerated”) anywhere in the text of the Constitution.

B. How does the textbook define “religious freedom”? What is the name of the first two clauses of the First Amendment that are the constitutional basis of religious freedom in the United States? ● religious freedom- the freedom to develop and live according to one’s own religious beliefs insofar as doing so does not interfere with the same freedom of others. ● first 2 clauses: the first amendment establishes the “establishment clause” and “free exercise clause” ○ Liberals and conservatives disagree over many things when it comes to the interpretation of the Establishment Clause. What, according to the textbook, do they agree about? They agree that Congress should not be able to pass laws requiring people to attend or pay money to a religious institution or provide money to one religious institution and not to another solely because Congress wants to promote the one and not the other. ○ Who (liberals or conservatives) tend to think the Establishment Clause requires a strict “separation of church and state”? Liberals ○ Who (liberals or conservatives) tend to think the Establishment Clause allows government to accommodate religion so long as it does not force anyone to participate in religious activities against their will and does not promote one religion over another? Conservatives ○ What is strict scrutiny? The label given to the most stringent approach taken by courts when reviewing potentially unconstitutional government actions. The Court

applies it to discriminatory acts and/or acts that infringe upon fundamental rights. i. What does it have to do with the so-called Sherbert Test? Sherbet Test: Test used for determining whether a government action interferes with the legal right to the free exercise of religion. By this test, if a government action imposes an actual burden on the ability for a person to act upon a sincere religious belief, then the government action is unlawful unless it can withstand strict scrutiny. Phase 1 (if passed, the court must move to phase 2) 1. the person has a claim involving a sincere religious belief & 2. the government action is an actual burden on the person’s ability to act on that belief. Phase 2 (government action must withstand “strict scrutiny”, when applying strict scrutiny, a court assumes that the government action in question is unconstitutional. The action is then ruled constitutional only if the government can prove the action in question was 1. in furtherance of a compelling government interest & 2.the least restrictive (or least burdensome) option available to the government for pursuing that compelling government interest. ii. According to the textbook, an act of Congress (the Religious Freedom Restoration Act) provides greater protection for the free exercise of religion against federal government infringement than does the Free Exercise Clause of the First Amendment. Why? Religious freedom restoration act: Federal statute passed in 1993 requiring governments to exempt persons from laws and regulations that have the effect of interfering with their free exercise of religion unless the interference can withstand the requirements of strict scrutiny. Free Exercise Clause: Clause of the First Amendment that states “Congress shall make no law … prohibiting the free exercise [of religion].” *****The RFRA provides greater protection than the Free Exercise Clause because in the RFRA, courts are essentially required to apply the Sherbert Test to all federal government actions that potentially infringe upon religious freedom. EX: Hobby Lobby did not want to provide contraceptives in its employee health plan because they are a privately owned Christian for-profit corporation. Under RFRA, they did not have to.

C. A baseline rule of the Supreme Court’s approach to the freedom of expression is that government may not (with a few clearly defined exceptions) enact “contentbased restrictions” on expression (especially if the expression is political).

○ What does Oliver Wendell Holmes’ notion of a “marketplace of ideas” have to do with the Court’s insistence that content-based restrictions are almost always in violation of the constitutional right to free expression? As the late U.S. Supreme Court Justice Oliver Wendell Holmes once famously put it, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” basically, the Court holds that the freedom of expression is not “absolute,” meaning there are circumstances in which the government may restrict expression without violating the First Amendment. ○ According to the Supreme Court, which of the following forms of expression are entitled to less First Amendment protection than ordinary forms of political expression: ● - flag burning; slander of public figures; obscenity; student speech (in public schools); hate speech; the spending of money on political campaigns; “fighting words;” expression that merely promotes (but is unlikely to actually produce) lawless action; content-neutral restrictions on the time, place and/or manner in which ideas are expressed; expression that promotes, and is likely to incite or produce, imminent lawless action; libel of public figures D. How do proponents of gun rights differ from proponents of gun control in how they interpret the Second Amendment? ● proponents of gun control, the first part of the Second Amendment shows that the amendment’s purpose is solely to assure that citizens are able, when needed, to “bear Arms” when serving in a “well-regulated Militia.” ● proponents of gun rights, the debate today is primarily over whether the Second Amendment protects an individual’s right to own a gun for selfdefense or if it is only about an outdated concern with arming a “wellregulated Militia.” ○ According to recent U.S. Supreme Court decisions, does the Second Amendment protect a right for individuals to own firearms for selfdefense? Or does it only instead protect the right for persons to own guns for purposes of serving in a “well-regulated militia”? ○ it protects an individual's right to own firearms for self-defense ○ Has the U.S. Supreme Court incorporated the Second Amendment under the Due Process Clause of the 14th Amendment? ○ Yes they did so in 2010 E. Civil liberties pertaining to criminal justice establish rules and procedures that the executive and judicial branches must follow when investigating, accusing, convicting, and punishing criminal suspects and convicts. ○ What, according to the textbook, is the purpose (or “aim”) of these rules and procedures? The aim of these rules and procedures is to

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empower government to prevent and punish crime while also leading government to respect the rights of the innocent, the accused, and even to some extent the guilty. Generally speaking, how do liberals and conservatives tend to differ in how they interpret civil liberties pertaining to the criminal justice system? Liberals- more concerned with protecting the rights of criminal suspects and convicts and tend to see liberties as providing strong protections for the criminally accused Conservatives- more concerned with the importance of empowering government to prevent and punish criminal activity and tend to interpret liberties as providing more modest protections. Why, according to the textbook, is the incorporation of criminal justice rights under the 14th Amendment “especially important.” because most law enforcement activities are conducted by state and local police departments and most criminal trials take place in state courts and pertain to state criminal laws

F. What, according to the textbook, is “the primary purpose” of the 4th Amendment? to protect citizens from unjustified government interference when law enforcement officials search for evidence of criminal activity (unlawful searches) ○ What does “reasonable expectation of privacy” have to do with how the Supreme Court has interpreted the 4th Amendment? it has now required that for it to be a reasonable search there needs to be a warrant issued ○ Do searches always require warrants in order to be lawful? no ○ What is the exclusionary rule? What is its purpose? Why are a growing number of constitutional scholars, lawyers and judges questioning its wisdom? ● Exclusionary rule- if government seizes evidence through an unconstitutional search, then the evidence may not be admitted into court. ● Purpose is to deteriorate police from conducting unlawful searches ● Constitutional scholars, lawyers, and judges are questioning the wisdom of automatically excluding evidence from trial simply because police may have failed to strictly follow Fourth Amendment standards. One criticism is that the exclusionary rule is too rigid and that the exclusionary rule isn’t living up to its purpose. G. The Fifth Amendment right against self-incrimination protects just about everyone when they are being officially questioned, but it is more strongly protected for criminal defendants. ○ What does it mean to read someone their “Miranda Rights” or issue “Miranda warnings”? In what Supreme Court case was it established that if these rights or warnings are not read/issued at the time of

arrest, statements made by a suspect may not be used against him or her at trial? ● To “read someone their rights” at the time of arrest is a way for them to prevent self incrimination as well it’s a warning to the criminal to remain silent until trial/ a hearing/ until they have a lawyer ● 1966 case Miranda vs Arizona H. The Sixth Amendment provides six separate rights, all of which pertain to defendants in criminal trials. ○ If someone goes a full year after being charged with a crime before having a trial, would this necessarily result in charges being dropped on account of the person being deprived of a speedy trial? ● No. ○ According to the Supreme Court, what exactly is required by the 6th Amendment command that criminal trials must be by an “impartial jury”? ● The Court has held that the pool of potential jurors must be drawn randomly from the population so that they closely resemble the community from which they are drawn. ○ What did the Supreme Court declare about the 6th Amendment right to an attorney in Gideon v. Wainwright (1963)? What specific impact (discussed by the textbook) did this decision have on the criminal justice system? ● The Court overturned Gideon’s conviction and ruled that the Sixth Amendment requires government to provide an attorney to any criminal defendant who requests and cannot afford one. Due to it, state governments now directly employ over 15,000 Public Defenders who each year provide legal counsel to millions of criminal defendants who cannot afford to hire their own attorneys. I. Eighth Amendment ○ According to the Supreme Court, what was wrong with the death penalty as practiced in Georgia when (in 1972) the Court declared it to be unconstitutionally cruel and unusual? ● In their view, the death penalty at the time was unconstitutional because it was being “wantonly and freakishly imposed.” By this they meant that there were no rational standards or procedures in place to determine when it was imposed or not imposed. ● What reforms did Georgia make to its system that led the Court (in 1976) to declare the death penalty no longer unconstitutional there? Under the new Georgia approach, before anyone can be sentenced to death, they must go through two separate trials: one that determines guilt or innocence and one for determining the sentence.

J. What is “the Culture War”? What does it have to do with how liberals and conservatives view the “unenumerated constitutional rights” discussed in the textbook? ○ What does the “right to privacy” have to do with “unenumerated constitutional rights”? ○ Personal privacy is protected by a constitution’s Due Process Clause. ○ Beginning with Roe v. Wade (1973), what part of the Constitution has the Supreme Court claimed to be the source of protection for the right to privacy? ○ The Court has held that the Due Process Clause in the fourteenth amendment is the source of the constitutional right of privacy. ○ In Planned Parenthood v. Casey (1992), the Supreme Court replaced the “trimester framework” (from Roe v. Wade) with something called the “undue burden standard”? What according to the textbook did the “undue burden standard” open the door for pro-life leaders to successfully implement? ○ Opened the door for pro-life leaders to successfully implement tighter restrictions on abortion at the state level. ○ On what ground did the U.S. Supreme Court, in Lawrence v. Texas (2003), declare unconstitutional a Texas statute that made it a crime to engage in sodomy “with another individual of the same sex.” According to the Court, the privacy protected by the Due Process Clause of the Fourteenth Amendment is violated when laws seek to regulate sexual activity engaged in by consenting adults. ○ According to the U.S. Supreme Court, what part of the U.S. Constitution is violated if state or local governments deprive same sex couples of the right to marry? ○ Due Process In the Fourteenth Amendment

Ch. 7: Civil Rights A. How does the textbook define “civil rights”? How does it define “civil liberties”? Civil rights and civil liberties are both types of legal rights. How are they different from each other? ● Civil Liberties: legal rights designed to protect individuals from abuse of power by government ● Civil Rights: Legal rights that aim at eliminating and/or remedying various forms of unequal treatment in American society, particularly discrimination against people based on such characteristics as race, sex/gender, religion, and sexual orientation. ● Civil rights are primarily concerned with discrimination against people based on such characteristics as race, sex/gender, religion, and sexual orientation. Unlike civil liberties, civil rights are concerned not only with government actions, but also with discrimination by private individuals, such as business owners.

B. What is meant by the terms “public discrimination” and “private discrimination”? Which kind of discrimination is prohibited by the Constitution? Which kind is only prohibited by laws passed by legislatures or regulatory agencies? ● Public Discrimination: The denial of equal treatment by the government against someone based on their membership in some recognizable group. ● Private Discrimination: The denial of equal treatment by a private citizen pursuing their interests in the private sector against someone based on their membership in some recognizable group. ● Government sponsored discrimination can be eliminated by laws and constitutional amendments. ● Private discrimination is only prohibited by laws passed by legislatures or regulatory agencies. In other words, the legislature must act before the dispute can become a legal matter. Then, if the discrimination continues to occur, the affected party can obtain relief through the courts. C. What kind of discrimination did the Civil Rights Act of 1875 seek to outlaw? What did the Supreme Court declare about that Act in The Civil Rights Cases (1883)? ● The Civil Rights Act of 1875 aimed to eradicate racial discrimination in “places of public accommodation”. ○ was a direct confrontation to the southern way of life. ● In 1883, the Supreme Court struck down the key provisions of the Civil Rights Act of 1875, ruling that the Fourteenth Amendment limited congressional action to only the prohibition of official, state-sponsored discrimination, not discrimination practiced by privately owned places of public accommodation. D. In 1896, in Plessy v. Ferguson, the Supreme Court established the doctrine of separate but equal. What was this doctrine? What was its significance for the Jim Crow system of segregation? ● It was a legal standard put forth by the US Supreme Court in Plessy v. Ferguson that allowed separate facilities for African Americans as long as they were considered “equal”. ● In reality, separate was rarely equal in Jim Crow society. African Americans always got the short end of the stick when it came to public facilities. E. How were the following tactics used to keep African Americans from voting during the Jim Crow period: literacy tests, poll taxes, and the white primary? ● Literacy Tests: often high-level constitutional tests rather simple tests of reading ability. Whites were not required to demonstrate similar levels of “literacy” ● Poll Tax: literally a fee for the privilege of voting which kept many African Americans from actually casting their votes. ● White Primary: a commonly used measure in southern states in which only white voters were allowed to vote in primary, effectively leaving African Americans out of the process. F. What role did white supremacist terror organizations, such as the Ku Klux Klan, play in perpetuating the Jim Crow system?

● Formed during Reconstruction as a secret society dedicated to the intimidation of blacks. This intimidation often took the form of murder, with lynching as the preferred mode of execution. African Americans, especially in the South, were virtually without hope. ○ Their strong presence kept many African Americans from parts of the south. Almost permanently segregating those areas. G. In what case did the U.S. Supreme Court declare that the doctrine of “separate but equal” has no place in public education? ● Speaking for the Court in...