2 I. The New Judicial Federalism The Constitution is the minimum of a person’s rights, but such rights are NOT always absolute.- States may grant other rights to its citizens if they don’t conflict with the U.S. Constitution or U.S. law.
3 B. Doctrine of Incorporation The 14th Amendment requires the states to abide by what’s in the Bill of Rights and apply those rights to their own state constitutions and laws.
4 Selective Incorporation The gradual application of parts of the Bill of Rights to the states (1st, 2nd, and 4th in total)Some rights may only be partially incorporated such as the 5th Amendment (grand juries for felony indictments; 8th Amendment (fines and bails); 6th Amendment (lawyers for poor people)The 3rd and 7th Amendments have not been incorporated at all.
5 C. DilutionThe weakening of a right previously granted by law or through a court decision.
6 D. Civil RightsRights guaranteed by the Constitution that are protected from discrimination based upon one’s race, gender or other minority status.Examples: attending school, voting, running for office
7 E. Civil LibertiesFreedoms that are guaranteed to everyone in the U.S. to prevent abuses of them by government power.- Examples: speech, travel, association, bear arms, petition
8 II. Due ProcessThe proper constitutional procedures that gov’t must follow in arrests, trials, punishments and other legal actions against individuals.Much of the Bill of Rights limits state actions by making its guarantees applicable to state law through the 14th Amendment’s Equal Protection clause.
9 B. TYPES OF DUE PROCESS Substantive due process: Rights of the individual, specified and unspecified in the Constitution, that must be protected from government interference.Examples:- Laws prohibiting women from attending medical school.- Prohibiting Hispanics from learning to read.- Making laws that inhibit a race’s ability to vote.
10 Procedural Due Process Legal processes that prohibit arbitrary enforce-ment of laws and provide safeguards to ensure protection of an individual’s constitutional rights.Examples- Miranda warnings at time of arrest- rights to habeas corpus, counsel, jury trial- ability to see a search warrant when presented
11 Gideon v. Wainwright (1963)Issue: Do poor defendants in state-level criminal cases have the right to a public defender under the 6th Amendment?Decision: Yes. Public defenders allowed in any case where a jail sentence of 6 months or more can be imposed.- Lawyers are necessities, not luxuries. The poor, who must stand in court as equals, deserve counsel as much as the rich who can afford it.- Today, lawyers at public expense can be had for any crime where incarceration may be imposed.
12 D. Rules of Evidence - Must be issued on basis of probable cause. Search warrants required under the 4th Amendment.Conditions for a warrant:- Must be issued on basis of probable cause.- Must specify what can be searched for and where a search may take place.General warrants are unconstitutional.Wiretaps are a form of search and require a court order to carry them out.
13 KATZ V. UNITED STATES (1967)Issue: Does information collected from a public telephone booth where no trespass onto private property occurred and without a court order for a wiretap, violate search and seizure protections?Decision: Yes. “The 4th Amendment protects people, not places.”- It can be assumed that words uttered in a phone booth won’t be made known to the world.- A reasonable expectation of privacy exists.- A warrant for a wiretap could easily have been obtained.
14 THE EXCLUSIONARY RULE MAPP v. OHIO (1961) Issue: Can evidence obtained without a search warrant be allowed in court?Decision: No. Illegally obtained evidence, and other evidence gleaned later from that same evidence, is NOT admissible in court and is a violation of substantive due process.- Also called the “fruit of the poisoned tree” doctrine- Made states adhere to the exclusionary rule- Ended a double standard between federal & state courtsCourts acknowledge that criminals might go free on this “technicality,” but laws must be followed or the gov’t risks violating the charter of its own existence.
15 United States v. Leon (1984) A dilution case of the Mapp decision So long as police act in good faith when requesting a warrant, the evidence they collect not covered by the warrant may be used in court even if the warrant is defective. Burden of proof remains with the prosecution, however.- This is called the “good faith exception”Court later said that evidence illegally obtained was legal to use if it could be shown that it would have been discovered later by other legal means.
16 III. 5th Amendment & Right of Silence Miranda v. ArizonaIssue: Under what circumstances may an interrogation take place that will produce a confession admissible in a court?
17 Miranda v. Arizona (cont’d) Decision: An accused person must be notified of his right to silence and legal counsel upon arrest and during subsequent questioning (procedural due process!)- Violation of 5th amendment’s prohibition on self-incrimination- Confessions voluntarily made prior to one’s arrest are not covered by Miranda ruling.- Does NOT apply to physical evidence collected at the scene; applies only to testimonial evidence
18 Miranda Warnings The warnings are a remedy to this case: You have the right to remain silent. (5th)Anything you say can be used against you in a court of law. (5th)You have the right to a lawyer and have him present at questioning. (6th)If you cannot afford a lawyer, one will be provided to you at no cost. (6th)
19 IV. The Right to PrivacyPrivacy is not specifically mentioned in the USSC as a specific right, but Court has ruled that the 4th gives citizens a fundamental right of privacy.Privacy has been interpreted by the Court as falling under the 9th Amendment as well.
20 Griswold v. Connecticut (1965) Issue: Dr. Griswold convicted for dispensing birth control devices to unmarried patients and advising on their use contrary to CT law.Decision: CT law was unconstitutional as it violated 4th Amendment patient fundamental rights of privacy under the 4th Amendment. Griswold’s conviction was overturned.- Court announced that a “zone of personal autonomy” existed, as interpreted under the 9th Amendment, and thus protected people from intrusion by the government into their intimate lives.
21 Roe v. Wade (1973)Abortion established as a constitutional right under the 4th, 9th & 14th Amendments.Ruled that a fetus is not a life in the eyes of the law so it has no rights of its own.Right of privacy is broad enough to encompass a woman’s right to terminate a pregnancy, but no absolute right to abortion exists! States can regulate it in certain ways.
22 Roe v. Wade (cont’d) Court divided term of pregnancy into 3 parts: 1st trimester: Abortion on demand any time based on “personal autonomy.” States cannot regulate doctor’s refusal to terminate pregnancy.2nd trimester: Abortion legal if a medical necessity for the mother’s health. States may regulate the abortion procedure.3rd trimester: Abortion legal only if mother’s life is in danger.
23 Dilutions to the Roe Decision Webster v. Reproductive Health Services (1989)- States can refuse to allow public health facilities, employees and funds to be used for abortions.- States can place regulations on abortion clinics.- No abortions performed under 20 weeks if fetus is deemed viable.
24 Planned Parenthood of PA. v. Casey (1992) Court ruled that certain restrictions on abortion by states are prudent:- OK to force a mother to have counseling- Unmarried mothers can be required to tell at least one parent; wives do NOT have to tell husbands- No gov’t funds to be expended on abortions for the poor- OK to mandate a 24 hour waiting period
25 V. Equal Protection Clause A. 14th Amendment prohibits discrimination based on race, gender, religion, etc. whether intentional or consequential.B. Values that are in conflict:- Equality of opportunity: Guaranteed by the Constitution. All have a right to try and succeed equally and receive assistance.- Equality of results: Not guaranteed! Results are a measure of individual initiative and skills. Not everyone is naturally equal in these areas.
26 VI. RACIAL EQUALITYA. De jure segregation: Results from specific laws or gov’t administrative decisions (e.g. Jim Crow laws)B. De facto segregation: Results from societal patterns over time or through deliberate, personal choice (e.g. development of racial or ethnic neighborhoods over time)
27 Plessy v. Ferguson (1896) A de jure segregation case. Issue: Is “separate but equal” treatment of the races constitutional?Decision: Segregation by race in society was OK so long as equal treatment was provided.- 14th Amendment’s Equal protection clause was not violated because USSC applied it only to legal equality, not social equality.- Violation of 1st Amendment to force people to associate with those whom they find to be objectionable.
28 Brown v. Board of Education (1954) Issue: Can states segregate public schools as a matter of public law? (de jure segregation)Decision: No. Segregating children in public schools due to race, even though the facilities and other tangible property is equal, is unconstitutional. Such classification causes feelings of inferiority in those segregated and violates the 14th’s Equal Protection clause.- Public education is a right which must be made available to all on an equal basis.- Court ordered the desegregation of all public schools.- Overturned Plessy v. Ferguson “separate but equal” precedent
29 Brown v. Board of Education II (1955) In 1955, in Brown II, the USSC ordered states to stop dragging their feet and implement desegregation in public schools ordered in Brown I and to “…integrate with all deliberate speed.”Resulted in southern states resorting to “Massive Resistance.”
30 Swann v. Charlotte-Mecklenberg Board of Education (1971) Involved de facto segregation of racially divided neighborhoods.Issue: Force the state to comply with previous Court orders to desegregate public schools.- Racial quotas in school must be used where possible to achieve educational parity.- Small number of one-race schools may still exist anyhow.
31 Swann (cont’d)Pairing and grouping of non-contiguous attendance zones is permissible to achieve desegregation.Busing will be used to affect desegregation except when time or distance may be detrimental to student health or impinge on the educational process.Districts may fashion remedies to create unitary school systems (e.g. teacher reassignments, extra curricular activities, equal pay scales, busing)
32 F. Voting Rights Act of 1965Major legislation designed to increase black and other minority voter numbers in southern states.- Mandated no new changes to voting laws by states without approval of federal courts.- No poll taxes or literacy tests allowed.- Illegal to destroy ballots or tamper with voting machines- Federal election examiners can be assigned to states where voting complaints have been registered.- Federal election officials can conduct voter registration in any state district that has less than 50% of its minority adult citizens registered, or if a past history of voting irregularities exists in that state.
33 VII. Gender EqualityA. Equality between the sexes is the law at all publicly funded colleges and universities.- Federal money to those institutions can be cut if not spent equally on men’s and women’s sports, scholarships, facilities, classes, etc.
34 B. Grove City College v. Bell (1984) Issue: Can a private college that receives no direct federal assistance money for students, but which had students enrolled who did receive direct federal grants, be bound to the rules of Title IX Education Amendments Act, specifically the nondiscrimination requirements of equal spending for the sexes? Was the college’s 1st Amendment rights of free association (right to discriminate) being violated?
35 Grove City College Decision Decision: Yes, they can be compelled to adhere to the Title IX requirements as the Court found there to be no substantive difference between aid given directly to the college and aid received by the students attending that college.The 1st Amendment doesn’t apply as the school was free to refuse student payments using federal grant money.
36 Grove City Coll. V. Bell (cont’d) College’s response: Refused to take federal money in any form in the future so it could retain its autonomy.Not taking federal funds means not having to follow Title IX requirements- Since most colleges cannot do without federal money, they are compelled to abide by Title IX which can lead to seemingly bad outcomes (e.g. JMU sports program cuts)
37 United States v. Virginia (1996) Issue: Can women be refused admission to a state funded military college, such as VMI?Decision: No. Women have equality of opportunity to compete for admission because the school is taxpayer funded.- Whether they can compete and succeed once they are admitted is another matter.
38 Sexual Orientation and Personal Autonomy Homosexual conduct has restrictions in many state laws and in other states does not provide legal protections as to taxes, finances, health issues, etc. Also within federal law.Bowers v. Hardwick (1986): Court rule that only hetero-sexual conduct is within the Constitution’s “zone of privacy.” Consenting adults in privacy of their own homes are not protectedOverturned by USSC in 2003 by Lawrence v. Texas.- “…liberty gives substantial protection to adults…in matters pertaining to sex.”
39 Personal AutonomyDefense of Marriage Act (1996)- US govt’s definition of marriage for tax, benefits, etc.- States are not required to legally recognize same sex marriages performed in other states. Does this violate the Full Faith and Credit clause?Don’t Ask, Don’t TellClinton policy allowing gays to serve in military if they didn’t publicly reveal their homosexuality.- Overturned by an Obama Executive Order in 2012.
40 VIII. Affirmative Action A. Definition: Laws designed to ensure that publicly supported organizations or businesses give preference to minority or other designated groups in order to increase proportions of those minorities within their organization. (e.g. colleges, training programs, businesses)B. Under A.A., Court says race shouldn’t be a factor in the competitive market.- Race-based A.A. is unconstitutional under the 14th’s Equal Protection clause as are any quotas assigned solely on a racial basis.
41 C. Justifying QuotasState level governments must demonstrate actual discriminatory practices in place, not just statistical or historical ones, regarding under- representation of minority groups.Government must show how quotas will correct such discriminatory practices.Congress can use its implied powers to pass laws to correct past effects of racial discrimination.
42 D. Reverse Discrimination Race cannot be a factor in gaining advantage over other groups in any competitive market (e.g. gaining acceptance to medical school; the awarding of public contracts; promotions within police/fire depts.)
43 Regents of the University of California v. Bakke (1978) Issue: Did U. of California violate the Equal Protection clause by practicing affirmative action by using a racial quota system for granting admission to its professional medical graduate school by considering that minorities are underrepresented in some professions (e.g. law, medicine, business, architecture, etc.)?
44 Bakke (cont’d)Decision: Yes and no. USSC accepted some forms of affirmative action as being beneficial to society, but…- flatly rejected rigid numerical racial quotas.- said schools can use race as one of several factors (a plus factor) in awarding seats in medical school, but race cannot be the only factor.- “campus diversity” rationale is OK as there is a recognized social need for diversity.- said reverse discrimination is still discrimination.
45 F. Grutter v. Bollinger (2003) Extension of the Bakke case.Issue: Can the Univ. of Michigan law school use race as a “predominant” factor in admitting minority students or is it a violation of the Equal Protection clause and the Civil Rights Act?Decision: Yes. University said minority students should have an advantage due to historical underrepresentation in such graduate schools. Court reaffirmed Bakke decision by 5-4 saying race can be one factor but, NO QUOTAS BASED ON RACE ALONE!
46 Gratz v. Bollinger (2003)Issue: Does the university’s use of racial preferences in undergraduate admissions violate the Equal Protection clause or the Civil Rights Act of 1964?Decision: Yes. It violates both. Race cannot be used as a criteria in selections to undergraduate admissions for the purpose of boosting a minority applicant’s chances.The campus “diversity” issue from Bakke is NOT met because the “automatic distribution of points to every single underrepresented racial minority was not narrowly tailored and lacked individual consideration.
47 IX. Age, Employment, and Disability Discrimination A. Americans With Disabilities Act (1990)- Requires businesses with more than 24 employees to make offices and facilities accessible to the handicapped.* Wheelchair ramps, sidewalk curb access, close-in parking spots, accessible bathrooms, phone services for the hearing impaired, etc. are required if a business directly serves the public.
48 B. Equal Employment Opportunity Commission Purpose: Created in 1964 to investigate complaints of discrimination and unfair hiring practices involving minorities. Later extended to women and older workers.EEOC is often used as a political football GOP believes it to be anti-business; Dems think it “equalizes” perceived inequalities among the races and sexes.
49 C. Equal Pay Act (1963)Prohibits employers from basing a person’s pay on race, gender, national origin, religion age or marital status.Pay is to be based only on qualifications, length of service, education, speical qualifications, etc.
50 D. Age Discrimination in Employment Act Prohibits employment discrimination because of age.- Employers can’t ask age or marital status during interviews; they can’t pay you less because you receive a pension from another source; can’t ask health questions- Act banned mandatory retirement ages in some circumstances and increased others to age 70.
51 X. 8th Amendment: Legal Punishment Death penalty has been a major hot button issue since the 1970s and a continual judicial activist social area depending on who controls the USSC.Is it cruel and unusual punishment and thus a violation of the USC, or is it a just punishment for the worst living among us?
52 Death Penalty Furman v. Georgia (1972) - Death penalty ruled as unconstitutional because it was thought to be arbitrarily imposed as punishment thus making it “cruel.”- Minorities and the poor were more likely to have it imposed on them then whites.
53 Death Penalty (cont’d) Gregg v. Georgia (1978)Death penalty is constitutional and is not cruel or unusual punishment.It should not be used to inflict wanton pain.Executions should be carried out in a dignified manner.The death penalty is an extreme sanction to be used to express society’s moral outrage.
54 Death Penalty (cont’d) Atkins v. Virginia (2002)- Executions of the mentally impaired is unconstitutional. The USSC attempted to bring U.S. policy in line with that of other nations’ practices.Roper v. Simmons (2005)- No execution of minors is allowed. The age of a person must be taken into account at the time the offense was committed. Children are not fully functional in thought processes.- Death sentences automatically commuted for those who committed crimes at ages under 18.
55 XI. Property Rights5th Amendment’s eminent domain power (Takings Clause) allows the government to seize private property under two conditions:- Must be for “public use.”- Owner must be given a fair price in exchange.B. During time of war the gov’t may take property deemed essential for the war effort:(e.g. ships/boats for naval use; factories for war goods productions; higher tax rates on income)
56 Kelo v. New London (2005)The City of New London wanted to condemn a lower class neighborhood, with no blight, and give it to a land developer who would raze it and build high value townhomes on the same sight which would raise more property tax revenue which could be used to pay for critical city needs.
57 Kelo v. New London (cont’d) Issue: Can local gov’t use its eminent domain power to seize private property and give it to another private entity for the “public good”? The Constitution says “use”, not “good.”Decision: Yes, according to the USSC. The increased taxes would have direct public benefit so therefore “public good” was synonymous with “public use.”
58 XII. 2nd Amendment - Bearing Arms Up until 2010 the 2nd Amendment was not incorporated by the states which had various laws and interpretations of what the amendment said and how it was to be implemented.In District of Columbia v. Heller, the USSC interpreted the 2nd as a “personal right” to possess a firearm and not the retention of such weapons for militia use. DC had banned handguns and required all other firearms to be kept unloaded and disassembled or trigger-locked.It affirmed the right of Americans to own guns for personal use and keep them at home for self-defense.
59 McDonald v. Chicago (2010)Issue: Does the 2nd Amendment apply to the states because it is incorporated by the 14th Amendment’s Due Process and Privileges and Immunities clauses?Decision: Yes. The Court ruled that the 14th Amendment makes the right to keep and bear arms for the purpose of self-defense applicable to the states.- Such rights are “fundamental to the Nation’s scheme of ordered liberty” and “deeply rooted in the Nation’s history and tradition.”