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41 Cards in this Set

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bad tendency test
A test established and used by the Supreme Court in the 1920s. This test asserts that speech may be curtailed if it has a tendency to lead to "evil" or illegal action.
bill of attainder
A legislative act that finds an individual guilty of a crime without a trial.
civil liberties
The rights of individuals to be free from unlawful government interference in their private lives.
civil rights
the governmental protections and privileges to which all citizens are entitled.
clear and present danger test
The standard established by the Supreme Court in 1919 that asserts that speech may be restricted if it poses an actual or imminent threat of danger to public order or society.
commercial speech
Communication or expression related to the conduct of business.
defamation of character
The wrongful harming of an individual's good name or reputation.
due process rights
Constitutional rights that prohibit the government from depriving an individual of property or basic liberties without following established legal procedures and rules.
Establishment Clause
The First Amendment provision that prohibits the government from officially sanctioning a religion.
exclusionary rule
A rule established by the Supreme Court that prohibits illegally obtained evidence from being admitted at trial.
ex post facto laws
Laws that make an act illegal even though that act was not a crime at the time it was committed.
fighting words
Inflammatory words that are likely to provoke the average person to fight.
Free Exercise Clause
The first amendment provision that prohibits the government from interfering with the free exercise of religious practice.
imminence test
The standard established by the Supreme Court that asserts that speech may be restricted if it is intended and likely to produce imminent lawless action.
libel
Defamation of character by way of written expression.
Miranda rights
The rights of accused persons to remain silent, to receive legal representation, and to be informed that anything they say can be used against them in a court of law.
prior restraint
The authority to restrain a form of expression before it has occurred.
selective incorporation
The process by which the Supreme Court gradually applied the protections set forth in the Bill of Rights to the states.
slander
Defamation of character by way of oral expression.
symbolic speech
Nonverbal forms of communication or expression.
writ of habeas corpus
An order recquiring that persons accused of crimes be brought before competent legal authorities so that the charges against them can be explained.
Explain the difference between civil liberties and civil rights.
Civil liberties are the rights of individuals to be free from unlawful government interference in their private lives. Civil rights are government protections and privileges to which all citizens are entitled. Civil liberties call for government restraint, whereas civil rights call for government action.
List and briefly define the basic civil rights that were included in the Constitution prior to the addition of the amendments.
--The right to the writ of habeas corpus, or an order requiring that the accused be brought before competent legal authorities so that the charges against them can be explained.
--Prohibition of bills of attainder, or legislative acts that find an individual guilty of a crime without a trial.
--Prohibition of ex post facto laws, or laws that make acts illegal even though they were not crimes at the time they were committed.
--The right to a jury trial in criminal cases.
Contrast the Anti-Federalist perspectives as to the best way to protect liberty.
The Anti-Federalist believed that a decentralized political system that emphasized states' rights would best protect liberty by fostering local control and by giving power to majorities within states. Federalists feared that majorities within states would oppress minorities. Hence, they believed that a large republic would maximize divrsity and make it difficult for oppressive majorities to form.
What is the process of selective incorporation? How is this process justified?
Selective incorporation is the gradual process by which the Supreme Court has determined that the states are obliged to uphold most of the Bill of Rights. The concept of selective incorporation is justified by due process rights and by the Equal Protection Clause of the 14th Amendment.
Identify and briefly describe the 2 clauses of the first amendment that deal with freedom of religion.
Establishment Clause--prohibits the government from officially sanctioning a religion.
The Free Exercise Clause--prohibits the government from interfering with the free exercise of religious practices by individuals.
According to the Supreme Court's decision in Lemon v. Kurtsman, under what conditions can the government provide aid to programs that are sponsored by religious organizations?
--The primary purposes of these programs are secular.
--The primary effects of these programs neither hinder nor promote religion.
--these programs do not create "excessive entanglement" between church and state.
Is prayer allowed in public schools? If so, under what circumstances? If not, why not?
Prayer in public schools is allowed if it takes place outside of class and is both voluntary and student-led. Students may also pray silently to themselves at any times if they voluntarily choose to do so.
Does the Establishment Clause require an absolute separation of church and state? Explain.
No. The first amendment does not even specifically refer to the separation of church and state. Thus, while Supreme Court has interpreted the Establishment Clause to mean that there needs to be a clear separation between church and state, this wall of separtation is not absolute.
Are efforts to ban the teaching of evolution constitutional? Why or why not?
No. The supreme court has ruled that efforts to ban the teaching of evolution are unconstitutional because they violate the Establishment Clause of the First Amendment.
Is flag burning protected by the constitution? why or why not?
Yes. The Supreme Court has ruled that flag burning is a form of symbolic speech protected by the first amendment.
What test does the Supreme Court currently apply to determine whether governmental efforts to restrict speech are constitutional?
The Supreme Court currently applies the imminence test, which says that speech may be restricted only if it is intended and likely to produce imminent lawless action.
Briefly identify and explain the major types of unprotected speech.
Defamation of character is one type of unprotected speech. Defamatiion of character exists in 2 forms: libel, or defamation of character in written form, and slander, or defamation of character in oral for. Fighting words also are a form of unprotected speech. Finally, obscenity is not protected, though the courts have not yet reached a consensus as to what materials and speech should be considered obscene.
Does the government have the constitutional right to engage in prior restraint? Why or why not?
No. In recent decades, the courts have ruled that efforts to engage in porior restraint are unconstitutional violations of the First Amendment right to freedom of the press.
What impact does the exclusionary rule have upon the rights of the accused?
The exclusionary rule prohibits illegally obtained evidence from being admitted at trial. This rule discourages the use of coercive methods to obtain evidence, protects the due process rights of innocent individuals, and limits warrentless searches.
List several major due process rights that are set forth in the Constitution.
--writ of habeas corpus
--prohibition of unreasonable searches and seizures
--protection against self-incrimination and coerced confessions
--the right to a speedy and fair trial by an impartial jury
--prohibition of cruel and unusual punishment
Does the Constitution explicitly protect the right to privacy?
No. The right to privacy is not explicitly mentioned at any point in the Constitution. Nonetheless, the Supreme Court has inferred a right to privacy from the Fourth Amendment as well as other language throughout the Constitution.
Do heterosexuals and homosexuals have the same rights of privacy under the Constitution?
According to the Supreme Court, NO. In a ruling regarding birth control, the Court established the right to privacy in sexual behavior for heterosexual (particularly married) couples. However, in a case involving an antisodomy statute in Georgia, the Court upheld a law that regulated sexual behavior even though that law was enforced only against homosexuals.
How did the Supreme Court apply the right to privacy in Roe v. Wade?
The Court ruled that the right to privacy protected a women's right to have an abortion. This right is unrestricted during the first trimester of pregnancy, but states may adopt certain regulations regarding abortion during the second and third trimesters.
Does the Second Amendment guarantee an individual the right to bear arms?
No, the court has consistently reflected the view that the right to bear arms is not an individual right but a collective right held by state-regulated militias. A 1999 federal court decision provides an exception to this rule, but it remains to be seen whether the Supreme Court will change its viewpoint on gun control.
Are government efforts to regulate gun ownership constitutional? Why or why not?
The Supreme Court has consistently upheld state and federal regulations on gun ownership, thus signaling that governmental efforts to regulate gun ownership are indeed constitutional. In general, the Court's legal reasoning is based upon a reading of the second Amendment which suggests that this provision was originally intended to prevent the national government from abolishing state militias. In other words, the courts have thus far rejected the claim that individuals have a fundamental right to own guns under the second amendment.