POSI 2310 Ch 4
POSI 2310 Ch 4 2310
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This 5 page Class Notes was uploaded by Marissa on Tuesday September 15, 2015. The Class Notes belongs to 2310 at Texas State University taught by Joshua Quinn in Summer 2015. Since its upload, it has received 20 views. For similar materials see Principles of American Government in Political Science at Texas State University.
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Date Created: 09/15/15
POSI 2310 Ch 4 Civil Liberties Protecting Individual Rights 0 A focus on governmental action that violates liberties while trying to balance the collective good I The Bill of Rights the Fourteenth Amendment and Selective Incorporation a Bill of Rights didn t apply to states just federal government b Selective incorporation of free expression rights i Fourteenth Amendment due process clause prevents states from abridging individual rights ii Supreme Court engaged in selective incorporation invoking the Fourteenth Amendment to apply the Bill of Rights to the states iii Tennessee was the only Confederate state to ratify the 14th Amendment iv 1968 14th Amendment ratified II Freedom of Expression a The early period the uncertain status of the right of free expression i Sedition Act 1798 1 It is a crime to print harsh criticism against the president or national officials ii Espionage Act 1917 1 It is a crime to say anything that could harm the nation s effort in World War One iii Schenck v United States 1919 1 Clearandpresentdanger test created 2 Schenck was distributing leaflets antidraft told people don t go to war even if they were drafted b The modern period protecting free expression i Early Cold War freedom of speech abridged in interest of national security protected after 1950s 1 Fear of communism ii Imminent lawless action test iii Symbolic speech protected but less completely than verbal speech 1 Fear of terrorism 2 Example burning a flag not protected imminent danger to public safety 3 Riotsother forms of violent expression not included 4 Government can t ban speech simply because it is offensive c Free assembly i Some restrictions allowed based on national security or disruption of daily life ii Government can place time place and manner restrictions 1 Restrictions noise hours disrupting traffic 2 Must apply for a permit iii Rise Against the Machine at the Democratic Convention in 2000 d Press freedom and prior restraint i quotPentagon Paper 1 Secret documents that revealed the government was deceiving people about the status of the Vietnam War casualty numbers forecasting number of troops ii New York Times Co v United States 1971 a Government said the newspaper couldn t publish the documents because they were classified iii Prior restraint disallowed under extreme burden of proof on government e Libel and slander i Libel publishing material that falsely damages a person s reputation ii Slander spoken words that falsely damage a person s reputation iii Libel against public officials requires malicious intent iv Politicians have less protections than ordinary citizens v Freedom of expression doesn t mean there are no consequences can sue go to court I Freedom of Religion a The establishment clause i Government may not favor one religion over another ii Government may not favor religion over no religion b The establishment clause often involves the Lemon test i The policy must have a nonreligious purpose ii The policy s primary effect must be one that neither advances nor inhibits religion iii The policy must not foster quotan excessive entanglement of government wit religion c Religious schools get federal money government and church interact not completely separate Enge v Vitae i Prohibited organized prayer in public school ii Students had choice so it doesn t go against the establishment clause iii Very strict because children are impressionable iv A year later organized Bible reading prohibited in class v Congress and legislature open with prayer claim it is a tradition e The freeexercise clause i Government prohibited from interfering with the practice of religion 1 Free to express religion equal protection under law expanded by 14th Amendment ii Government interference allowed when exercise of religious belief conflicts with otherwise valid law 1 Child welfare medical treatment shall be received even if it goes against the religious beliefs in cases of minors iii Government may not prohibit free exercise of religion IV The Right to Bear Arms a Widely accepted view that the Second Amendment blocked the federal government from abolishing state militias b In District of Columbia v Heller 2008 the Court ruled that quotthe Second Amendment protects an individual right to possess a firearm c In McDonald v Chicago 2010 the Court further extended the 2008 decision to apply to all state and local governments V The Right of Privacy a Griswald v Connecticut 1965 Americans have a quotzone of privacy that cannot lawfully be denied i Law in 60s was illegal to use contraceptives b Abortion i Protected as a right of privacy in Roe v Wade 1973 1 Woman s decision to terminate pregnancy ii Webster v Reproductive Health Services 1989 Planned Parenthood v Casey 1992 and Gonzales v Carhart 2007 have placed some restrictions on abortion c Sexual relations among consenting adults i Bowers v Hardwick ruling 1986 1 Right of privacy doesn t extend to same sex couples ii Antisodomy laws in states struck down by Supreme Court in 2003 1 Lawrence v Texas a State can t demean people by making their private sexual conduct a crime VI Rights of Person Accused of Crimes a Procedural due process procedures that authorities must follow before a person can lawfully be punished for an offense b 1943 McNabb v United States quotthe history of liberty has largely been a history of the observance of procedural guarantees c Selective incorporation of fair trial rights i Initial resistance by the Supreme Court to invoke selective incorporation to protect the rights of the accused in the states 1 Rights of the accused are often forgotten ii Change in the 1960s Court begins to assert and protect rights of accused 1 Protection from unlawful searches d Suspicion phase i No police search unless probable cause that a crime occurred Fourth Amendment ii Not a blanket protection some warrantless searches allowed based on situation 1 Checkpoint for DUI included checkpoint for drugs not included e Arrest phase i Fifth Amendment protection against selfincrimination 1 You can t be a witness against yourself protection against a coerced confession ii Miranda v Arizona 1996 no legal interrogation until suspect has been warned hisher words could be used as evidence 1 Case of kidnapping and rape Miranda hadn t been warned so he confessed confession was later thrown out Led to Miranda warning iii Miranda warning iv As of 2010 you must state that you want your attorney before stating that you will invoke your right to be silent f Trial phase i Legal counsel and impartial jury 1 Fifth Amendment suspect cannot be tried for federal crime unless indicted by grand jury states not required to use grand juries a Grand jury come together to decide if there is enough evidence for a case If not charges are dropped b 12 states use grand juries 2 Sixth Amendment right to legal counsel before and during trial a Someone to help you navigate the system b Johnson v Zerest 1938 if the defendant couldn t afford an attorney then must provide one Only on federal level c Gideon v Wainwright 1963 selectively incorporated right from Johnson to state level 3 Right to speedy trial to confront witnesses and to a impartial jury ii The exclusionary rule 1 No admission of illegally obtained evidence a Makes police less likely to violate people s rights 2 1960s expansion of exclusionary rule a Lots of evidence was thrown out due to technicalities backlash 3 Exceptions a Inevitable discovery if obtained illegally say would ve found eventually b Good faith faulty warrant but had suspicion g Sentencing phase i Phase stands on its own can have a fair trial and bad sentence ii Eighth Amendment prevention of quotcruel and unusual punishment of convicted persons 1 3 parts a Is the punishment disproportionate to the offense i Example cutting off a hand for stealing b Does it violate fundamental standards of good conscience and fairness c Is it unnecessarily cruel iii Supreme Court generally allows states to decide punishments but has limited aspects of death penalty and punishments of minors 1 No death penalty on mentally disable or minors cruel and unusual 2 Life without parole only in cases of homicide h Appeal one chance usually i No constitutional guarantee of appeal but federal and states allow at least one appeal 1 If the state violated your right you go to federal court ii Federal law bars a second federal appeal by a state prison inmate in most instances 1 Limited number of appeals on federal level to one i Crime punishment and police practices i Supreme Court rulings have affected police practices 1 Miranda ii Some poor or arbitrary application of rights 1 Racial profiling a Studies show black Hispanic Muslim most common iii Tough sentencing policies popular but prison overcrowding an issue iv United States has the highest incarceration rates followed by Cuba and Russia VII Rights and the War on Terrorism a Worry about what s happening internationally b WWII detention ofJapanese Americans after Pearl Harbor c Detention of enemy combatants i Hamdi v Rumsfeld 2004 ii Hamdan v Rumsfeld 2006 iii 2004 Guantanamo Bay prisoners receive habeas corpus d Surveillance of suspected terrorists i USA Patriot Act 1 Allowed access to records sneakandpeek warrants without your approval ii Warrantless wiretapping 1 CIA could tap international calls iii Snowden leaks about NSA communications surveillance 1 Can only store data for 180 days iv Renewal of Patriot Act in 2015 VIII The Courts and a Free Society a Americans embrace freedom of expression as an abstract virtue b Americans favor limits of freedom of expression in particular instances i 2 out of 5 thought Miranda rights should be withheld if suspicion of terrorism c Judicial system the primary protector of individuals rights