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April 5 Test Notes

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					1. First amendment Freedoms
        a. History
                 i. Constitutional protections/rights
                ii. Examples
                         1. writ of habeas corpus
                                  a. “produce the body”
                                           i. Court order to government official
                                          ii. Official must explain why they are holding a person in
                                              custody
                                         iii. British judicial history
                         2. No ex post facto laws
                                  a. Retroactive criminal laws are illegal
                                  b. Does not apply to tax law (Interesting exception)
                         3. No Bills of Attainder
                                  a. Legislative act to punish an individual or group without a trial
               iii. Bill of Rights
                         1. First 10 amendments to Constitution
                         2. Added to Constitution at the request of Anti-Federalists
                         3. More protections for states/individuals from government
                         4. Limited the federal government
                                  a. “Congress shall make no law….” First Amendment
                                  b. 10th Amendment
                         5. Selective Incorporation
                                  a. Process of gradually incorporating Bill of Rights into state
                                     Constitutions
                                  b. 14th amendment Due Process clause used
                                           i. “No State shall make or enforce any law”
                                          ii. “privileges and immunities”
                                         iii. “due process”
                                         iv. “equal protection”
                                  c. Gitlow v. New York (1925)
                                           i. Free speech incorporated into state constitutions
        b. Freedom of Religion
                 i. First freedom in the Bill of Rights
                ii. Two absolute rights
                         1. Establishment clause
                         2. Free Exercise clause
                         3. Two clauses conflict
               iii. Supreme Court decisions
                         1. Everson v. Board of Education of Ewing Township (1947)
                                  a. Allowed NJ to haul students to Catholic schools
                                  b. “wall of separation between church and state”
                                  i. Letter from President Jefferson to Danbury Baptist
                                 ii. Not in Constitution
                        c. Became the standard for judging religion cases
                        d. Government must be neutral between religion and non-
                            believers
               2. Lemon v. Kurtzman (1971)
                        a. State spending that supported religious schools
                        b. 3 Part Test
                                  i. Secular legislative purpose
                                 ii. Neither advance nor prohibit religion
                                iii. Avoid “excessive government entanglement with
                                     religion”
               3. Free Exercise Clause
                        a. Sunday closing laws upheld as constitutional
               4. Vouchers and State Aid to Religious Schools
                        a. Aid must be for non-religious purpose
                                  i. Science textbooks
                                 ii. Constructing buildings on college campuses
                                iii. Tax credit for private tuition
                        b. Vouchers
                                  i. Tax-revenue funding given to parents to use at school of
                                     choice
                                 ii. Court upheld Ohio’s program
                                iii. 5-4 Vote
                                iv. Continuing controversy
c. Free Speech
        i. Historical approaches to regulating speech
               1. Bad tendency test
                        a. Speech that hurt or corrupted society could be limited
                        b. Rejected as too prejudicial
               2. Clear and present danger test
                        a. Oliver Wendell Holmes Jr.
                        b. Schenck v. US (1919)
                                  i. “Bring about substantive evils that Congress has a right
                                     to prevent”
               3. Preferred position doctrine
                        a. 1940’s
                        b. Use of words and pictures should rarely be curtailed
                        c. Judges have a duty to protect speech
       ii. Today nearly all speech is protected with 4 exceptions
               1. Nonprotected and Protected Speech
                        a. Libel
        i. Written defamation of another person
       ii. Particularly relevant to seditious libel
                1. Criticizing government
      iii. Smith Act of 1940
                1. Criminal to promote Communist uprising in U.S.
                2. Prosecutions into 1950’s
      iv. New York Times v. Sullivan (1964)
                1. (Some civil rights activists took out a few pages
                    and paid for the space. They put in there that
                    the government of Alabama is awful. Sullivan
                    was one of the people mentioned and therefore
                    got pissed.)
                2. Seditious libel ruled unconstitutional
                3. Very high standard for ruling against newspaper
b. Actual malice
        i. False statements
       ii. Knowing or reckless disregard for the truth
c. Obscenity
        i. Mainly deals with published
       ii. Difficulty in defining what is obscene
      iii. Miller v. California (1973)
                1. Obscene material unprotected, but cannot
                    completely eliminate
                2. Definition of obscenity
                         a. Average person applying contemporary
                             standards of a particular community
                             would find that the work taken as a
                             whole, appeals to a prurient interest in
                             sex
                         b. The work depicts or describes in a a
                             patently offensive way sexual conduct
                             specifically defined by law.
                         c. The work taken as a whole lacks
                             serious, literary, artistic, political, or
                             scientific value
                3. Zoning laws are common ways to limit
                    obscenity
                         a. Can’t have people selling obscenity
                             within certain limits of places like
                             schools
                         b. Law which states how land must be
                             used [more or less]
                                d. Fighting Words
                                          i. Hard to define
                                         ii. Evolving standard
                                        iii. Nowadays virtually everything can be said
                                        iv. Somewhat of a recent turnaround
                                                 1. Hate speech ordinances
                                e. Commercial Speech
                                          i. Advertising
                                         ii. Used to be limited quite a bit
                                        iii. Now has some constitutional protection
                                        iv. Cannot be limited
                                         v. Fifth Amendment “takings clause”
                                                 1. Defend commercial speech
                                f. No Priory Restraints
                                          i. Prior to publication/speech prohibiting it
                                         ii. Unconstitutional to censor
      d. Rights to Life, Liberty, and Property
                i. Citizenship
                        1. Constitution originally said very little
                                a. “excluding Indians not taxed”
                                b. “three-fifths of all other persons”
                                c. “To establish an uniform Rule of Naturalization”
                                d. “The Citizens of each State shall be entitled to all
                                e. Privileges and immunities of Citizens in the Several states”
2. Fourteenth Amendment
      a. “All persons born or naturalized in the United States, and subject to the jurisdiction
          there of, are citizens of the US and of the State wherein they reside”
                i. Anyone born in the US, excepting children of foreigners representing their
                   governments while here, ambassadors, ministers and military
               ii. Including children of aliens here temporarily, illegally
              iii. Including children born in US territories, Guam, Puerto Rico
              iv. A child born to US citizens living abroad
               v. Native Americans made citizens in 1924
      b. Naturalization (p. 465)
                i. A legal action conferring citizenship
               ii. Congress through legislation controls the process
              iii. Requirements for naturalization
              iv. Be over 18
               v. Be lawfully admitted for permanent residence and have resided in the Us for at
                   least 5 years
              vi. File a petition for naturalization
             vii. Be able to read, write, and speak English
             viii. Possess a good moral character
               ix. Understand and demonstrate an attachment for the history, principle, and form
                    of government of the US
                x. Demonstrate they are well disposed to the good order and happiness of the
                    country
3. Property Rights
      a. U.S. history filled with property rights
      b. Locke’s emphasis on property rights
      c. Contract Clause
                 i. Article I, Section 10
                ii. Limit states’ ability to alter private contracts
              iii. Late 19th Century view of Constitution began to change
      d. Police Power
                 i. Inherent power of state governments to regulate for safety, public health,
                    general welfare
                ii. Supreme Court expanded powers (from Lochner to Kelo)
      e. Takings
                 i. Eminent Domain
                        1. State and federal government taking private
                        2. Just compensation – established by courts, due process
                        3. Originally meant for roads, bridges
                        4. Kelo v. New London (2005)
                                  a. New expanded definition of public use
                                  b. Earlier cases led to new definition
                                  c. Government may take private property from one person and
                                      give it to another, or corporation for the increase in tax
                                      revenue-general welfare of the city/state
                                  d. Title for property changes hands
                                  e. Tremendous change in property rights history ,effects yet to be
                                      seen
                ii. Regulatory Takings
                        1. Government taking the use or value of property through regulation
                        2. No title change
                        3. Compensation given for loss of use or value
4. Due Process Rights
      a. Due Process clause of 5th and 14th Amendment
      b. Everyone must be treated the same way by government
                 i. Procedural due process
                ii. Original understanding of due process clause
      c. Substantive Due Process
                 i. Limits to what government can do
                ii. Lead to an expansion of government power
                         1. State and local
                         2. Supreme Court
               iii. Supreme Court can decide if law is reasonable
                         1. Expansion of police powers
                         2. Contract law
5. Privacy Rights
       a. Area of substantive due process
       b. No mention of privacy nor Bill of Rights
       c. Griswold v. CT (1965)
                 i. “penumbras, formed by emanations”
                ii. First, Fourth, fifth, Ninth, Fourteenth
               iii. Zones of Privacy
               iv. Leads quickly to Roe v. Wade
                v. Roe v. Wade (1973)
                         1. Famous or infamous case depending on ideology
                         2. Comparable to Dred Scott v. Sandford
                         3. Individual liberty of women and doctors outweighs life of unborn child
                             or state
                         4. “Undue burden Test”
                         5. State cannot put an undue burden on a woman forcing her to give birth
                             to a child
                         6. Recent court decisions have found some limits
                         7. Undue Burden remains in effect – stare decisis
6. Rights of the Accused
       a. Freedom from unreasonable searches and seizures
                 i. Reasonable Searches and Seizures
                         1. Search Warrant
                                 a. Legal document signed by a judge
                                 b. Reasonableness / Probable cause

				
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