underlying principle some rights are fundamental and should not be subject to majoritarian control

underlying principle some rights are fundamental and should not be subject to majoritarian control

Speech, Press & Assembly CONSTITUTIONALITY: 1 st & 14 th Amendments Intended to PROTECT criticism of government and political opinions Preferred Position Doctrine Free expression takes precedence over all other Constitutional rights & liberties

LIMITATIONS: Obscenity-No political or literary value. Courts differ on what constitutes Obscene Defamation-slander & libel

Symbolic Speech-Burning a flag: OK (Texas v. Johnson, 1989); Burning a draft card: Not OK. Seditious Speech-Speech that may cause a clear and present danger to the U.S. or public safety (Schenck v. U.S. 1919)

Gitlow V. New York (1925) SCOTUS rules (in-part) that the 14 th Amendment s due process clause causes the Bill of Rights to be applicable to the states in most situations. Doctrine known as Selective Incorporation

In 2010, a high school honors student in Florida was suspended for cyber bullying following her posting of a Facebook account with the following theme: To those select students who have had the displeasure of having Sarah Phelps [as a teacher], or simply knowing her and her insane antics: Here is the place to express your feelings of hatred. The student sued the school to have the suspension removed from her record. Do you feel that this Facebook page constitutes free speech or not? Explain.

government CAN restrict publication if it: THREATENs NATIONAL SECURITY (PRIOR RESTRAINT). Jeopardize a person s right to a fair trial Constitutes false advertising.

The Supreme court has ruled that people have the right to assemble if: I. Protests and parades do not obstruct access to public property. II. They do not take place in restricted areas. III. They do not violate the rights and/or property of others. Yup-even these guys IV. There is not a danger to public order.

Constitutionality 1 st & 14 th Amendments 2 Major 1 st Amendment Clauses I. Free Exercise Clause Congress shall make no law prohibiting the free exercise of religion II.Establishment Clause Congress shall make no law respecting an establishment of religion.

FREE EXERCISE CLAUSE Example: Congress cannot ban Catholics from celebrating mass. Limitations government can limit religious practices if they violate narrowly defined laws or are contrary to public good. Example: You cannot use drugs specifically prohibited by law for religious purposes.

Establishment Clause Two Interpretations I. Congress cannot establish a church (No Church of the U.S.) II. No government involvement with religion at all. (Wall of Separation)

ENGEL V. VITALE (1962): Voluntary, non-denominational prayer in public schools constitutes state endorsement of religion. Everson v. Board of Ed. Established the Wall of Separation.

2 nd AMENDMENT "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."

constitutionality: 2 ND Am., 9 th Am., 14 th AM. intended to enable people to protect themselves from unjust government actions and criminal activity. District of Columbia v. Heller (2008) People may possess firearms w/o being part of a militia Mcdonald v. Chicago (2010) 2 nd Am. Selectively incorporated People should not fear their governments; governments should fear their people.

The Fourth Amendment to the United States Constitution reads: 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. What do you think each term in red means? For example, what do I mean by papers?

CONSTITUTIONALITY 4 TH & 14 TH Amendment (Selective Incorporation) * reasonableness defined by SCOTUS as police must have a warrant or probable cause. Mapp v. Ohio (1961) the Due Process Clause of the 14 th Am. Means that states must also have a warrant when conducting a search.

A warrant Is needed in cases where a building is the one being searched. A warrant must specify what the authorities are looking for. Probable cause is needed when the person or thing to be searched is mobile and/or can get away.

Question: can the police search the garbage on the curb outside of your home without a warrant?

Police suspect you of being a drug dealer. Can they attach a GPS tracking device to your car without a warrant?

A fourteen year old student (initials T.L.O.) was suspected of smoking cigarettes in the bathroom with another student. Both girls were brought to the principal s office. T.L.O. denied smoking. The other girl confessed. The Principal decided to search T.L.O. s purse. He did so and found a pack of cigarettes. After finding the cigarettes he continued to search and found marijuana and other items associated with marijuana selling. During her juvenile prosecution, T.L.O. challenged the Principal s search as a violation of her Fourth Amendment rights. Was it?

The Court held that the Fourth Amendment applies to high school students in public schools, and that students retained a limited reasonable expectation of privacy. However, the Court upheld the constitutionality of the search, reasoning that the Principal has reasonable suspicion to search the purse for a violation of school rules. The initial search was reasonable because the Principal suspected T.L.O., of violating the school rules on smoking. The second, continued search of the purse was reasonable because cigarettes and other suspicious items had been found. Thus, there was no violation of the Fourth Amendment.

*Exclusionary rule: ILLEGALLY OBTAINED EVIDENCE CANNOT BE USED *Good Faith Exception: unless it can be proven officers acted in good faith.

CONSTITUTIONALITY 4 TH, 9 TH & 14 TH amendments Does not appear in the Constitution but emanates from it. Griswold v. CONNECTICUT (1965) States cannot interfere with marital privacy Roe v. Wade Until a fetus becomes viable, A state cannot inquire until a woman has had an abortion LIMITED BY A COMPELLING NEED BY THE STATE TO PROTECT SOCIETY.

CONSTITUTIONALITY 5 TH Amendment (Due Process Clause)-The federal government cannot deprive someone of life, liberty or property without due process. 6 TH Amendment-Guarantee to a A lawyer A jury A fair, speedy and public trial 14 th Amendment(Due Process Clause)-Selectively Incorporated the 5 th & 6 TH AmendmentS.

Gideon v. Wainright (1963) SCOTUS rules that the right to an attorney extends to the states (6 TH & 14 th AM)

*MIRANDA V. ARIZONA: (5TH AM.) Miranda WAS NOT TOLD HE HAD THE RIGHT to remain silent and signed a confession. Conviction was set aside-resulted in Miranda rules. ***Authorities may use any statements you make voluntarily, but if they interrogate you, they must Mirandize you first.

CONSTITUTIONALITY 3 rd, 5 th, 7 th and 14 th am All governments have the right to take private land for public good (Eminent Domain). The 5 th and 14 th Amendments require just compensation for the property.

14 th Amendment s Equal Protection Clause the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. I. not intended to provide "equality" among individuals or classes but only "equal application" of laws II. Strict Scrutiny: laws must show a clear intent to discriminate against a particular group. III. States must prove that a law serves a compelling interest and that it does not interfere with fundamental rights.

The 14 th Amendment does not apply to the federal government. Laws that classify individuals in a discriminatory manner will, under similar circumstances, violate the due process of the fifth amendment

*Dredd scott v. sandford (1857): Established that slaves born in free territory weren t citizens. Overturned by 14 th Amendment (Citizenship Clause)=people born or naturalized in the u.s. are citizens. U.S. V KIM WONG ARK (1873) Children of legal residents who aren t diplomats are citizens

Two Approaches I. Legislative: Change the laws through the legislative process Positive: Change has more popular input Negative: Change is slower or impossible for underrepresented groups. EXAMPLE: 14 TH, 15 TH, 19 TH Am., Civil Rights Act, Housing laws, ada

II. Judicial: change via legal challenges Positive: Change is forced and doesn t require political deal-making Negative: Change is undemocratic, controversial and can create other problems EXAMPLE: Brown v. Board & Obergefell v. Hodges

PLESSY V. FERGUSON (1896) Court held that equal protection could also be separate but equal. Results: State-mandated and private Segregation was permissible as long as one group was not shown to be disadvantaged. Brown v. Board (1954) Court held that separate but equal was not on the basis that one group would always be made to feel inferior. Results: Desegregation

Civil rights act of 1964 I. Title VII: Barred private employers from discriminating against applicants and employees on the basis of sex, race, national origin, or religion II. Except where the above are a legitimate occupational qualification. III.Does not include appearance standards.

Affirmative Action I. Quotas must have a compelling justification (Correcting past or present discrimination) II. Practices must be shown to have a discriminatory impact III.Preferences when hiring: OK; Preferences when firing: Not OK

Obergefell v. Hodges (2015): 14 th Am. Due Process & Equal Protection Clauses require states to issue same-sex marriage licenses and recognize same-sex marriages validly performed in other jurisdictions.