Chapter 4: Review (2023)

The Bill of Rights: A Charter of Liberties
A bill of rights had been proposed during the Constitutional Convention in 1787, but there was considerable disagreement regarding the need for such protections. Antifederalists, such as James Madison, believed that the great object of the Constitution was to preserve popular government while protecting individuals from "unjust" majorities. Federalists, like Alexander Hamilton, believed that a bill of rights was unnecessary. The states ratified ten of the amendments in 1791.
  1. How does the Bill of Rights provide for individual liberties?
    • The purpose of the Bill of Rights is to limit governmental power over the individual, placing personal liberty beyond the reach of government.
    • Each individual's rights to life, liberty, and property, due process of law, and equal protection under the law are not subject to majority rule.
  2. What are the differences between substantive and procedural liberties?
    • Substantive liberties are restraints limiting what the government shall have the power to do, such as restricting freedom of speech, freedom of religion, or freedom of the press.
    • Procedural liberties are restraints on how the government can act. For example, citizens are guaranteed due process of law when they are charged with a crime.
Nationalizing the Bill of Rights
  1. Does the Bill of Rights limit only the national government or does it limit the states as well?
    • The Bill of Rights states that "Congress shall make no law . . .," thus only the powers of the national government are directly limited.
    • In 1833, the Supreme Court ruled that the Bill of Rights should not apply to state actions.
  2. How and when did the Supreme Court nationalize the Bill of Rights?
    • The U.S. Supreme Court began applying the Bill of Rights to state actions in 1897 by using the Fourteenth Amendment to prohibit states from taking private property for public use without just compensation. Not until 1925 did the Supreme Court apply the Bill of Rights to states by ruling that freedom of speech is protected at the state level.
    • In 1937, the Supreme Court decided on "selective incorporation," meaning that only some of the liberties protected by the Bill of Rights applied to states and that each right would be considered individually.
The First Amendment: Freedom of Religion
  1. How does the First Amendment guarantee the nonestablishment and free exercise of religion?
    • The establishment clause provides that Congress shall make no law respecting an establishment of religion. This has created a "wall of separation" between church and state
      • The Supreme Court has outlawed school prayer and Bible readings in public schools.
    • The free exercise clause protects an individual's right to believe and practice whatever religion he or she chooses.
      • The Supreme Court has never interpreted the free exercise clause to protect all conduct. Individuals must comply with laws, and thus polygamy and drug use (such as smoking peyote) are prohibited.
The First Amendment: Freedom of Speech
  1. What forms of speech are protected by the First Amendment?
    • "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ."
    • Strict scrutiny places the burden on the government to prove that a restriction on speech or the press is constitutional.
    • Political speech, symbolic speech (such as flag burning), speech plus (such as making a speech and handing out literature), and the rights of assembly and petition fall under the "strict scrutiny" test and are strongly protected.
  2. What forms of speech are not protected?
    • Speech that presents a clear and present danger is not protected by the First Amendment. Today, political speech is consistently protected, even when it is deemed "insulting" or "outrageous."
    • Libel and slander are not protected, nor are obscenity, commercial speech and advertising.
The Second Amendment: The Right to Bear Arms
  1. Is the right to bear arms guaranteed by the Bill of Rights?
    • The Bill of Rights states, "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."
    • American citizens have the right to bear arms, but this right can be regulated by state and federal law.
Rights of the Criminally Accused
  1. What is due process?
    • "Due process" has never been defined precisely. The Supreme Court has used it to mean "the gradual process of judicial inclusion and exclusion".
  2. How do the Fourth, Fifth, Sixth, and Eighth Amendments provide for due process of law?
    • The Fourth Amendment protects people against improper searches and seizures and arrest without a probable cause. It also bars evidence obtained through an illegal search from a trial.
    • The Fifth Amendment gives people the right to a grand jury and the right not to incriminate themselves during arrest or trial. It also prevents an individual from being tried twice for the same crime.
    • The Sixth Amendment provides the right to counsel, the right to question witnesses, the right to a quick and impartial trial, and the right to know what the charges are.
    • The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishment.
The Right to Privacy
  1. What is the right to privacy and how has it been derived from the Bill of Rights?
    • The right to privacy is the right to be let alone. This has been interpreted by the Supreme Court to mean that membership lists of organizations cannot be used to investigate people for criminal charges and that women should have access to birth control and abortions.
    • The right to privacy is not mentioned in the Constitution or the Bill of Rights. Rather, the right to privacy has been taken from the "zone of privacy" created by a combination of the Third, Fourth, and Fifth Amendments.
  2. What form does the right to privacy take today?
    • The right to privacy now includes issues such as abortion and birth control rights, gay and lesbian rights, and the right to die.
Civil Rights
In the United States, the history of slavery coexists uneasily with a strong tradition of liberty. For much of our history Americans have struggled to reconcile such exclusionary racial practices with our notions of individual rights. With the adoption of the Fourteenth Amendment in 1868, civil rights became a part of the Constitution, guaranteed to each citizen through "the equal protection of the laws."
  1. What is the legal basis for civil rights?
    • The Fourteenth Amendment was ratified shortly after the end of the Civil War and, combined with the Thirteenth and Fifteenth Amendments, seemed to guarantee civil rights to the newly freed slaves.
    • "No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws."
  2. How has the equal protection clause historically been enforced?
    • The U.S. Supreme Court declared the Civil Rights Act of 1875 unconstitutional on the grounds that the Fourteenth Amendment applied to the states, but not to private businesses.
    • In 1896, the Supreme Court ruled in Plessy v. Ferguson that state segregation statutes were constitutional as long as the states followed the "separate but equal" doctrine.
    • In 1938, the Supreme Court rejected Missouri's plan of paying for qualified black students to attend out-of-state law schools rather than admitting them into the all-white University of Missouri Law School.
    • In 1950, the Supreme Court found that the University of Texas Law School failed to comply with "the separate but equal" doctrine and ordered the admission of a black student to the all-white school.
    • In 1944, the Supreme Court struck down the practice of white primaries.
    • In Shelley v. Kraemer, the Supreme Court ruled against legal enforcement of "restrictive covenants," whereby the seller of a home added a clause to the sales contract requiring the buyer to agree not to sell the home later to a non-Caucasian, non-Christian, etc.
    • In Brown v. Board of Education (1954), the Supreme Court reversed its decision in Plessy v. Ferguson and struck down segregation in public schools.
  3. How has Congress tried to make equal protection a reality?
    • The Civil Rights Act of 1964 prohibited discrimination in the operation of a business and in public accommodations. This act also allowed for widespread desegregation of schools.
    • The Voting Rights Act of 1965 was designed to increase minority participation in the democratic process by barring literacy and other tests as a condition of voting, replacing local registrars with federally appointed ones in some counties, and setting criminal penalties for interference with efforts to vote.
    • The Fair Housing Act of 1968 was enacted to prevent discrimination in the sale and rental of housing; in 1988, Congress amended and strengthened the act.
The Universalization of Civil Rights
  1. What groups were spurred by the provision of the Civil Rights Act of 1964 (outlawing discrimination in employment practices based on race, religion, and gender) to seek broader protection under the law?
    • Title VII provided a valuable tool for the growing women's movement in the 1960s and 1970s.
    • The National Organization of Women (NOW) began pushing for an Equal Rights Amendment to the Constitution.
    • Despite the failure of the movement for an Equal Rights Amendment, NOW was successful in achieving a number of gains in the areas of employment and education.
    • The Latino movement operated in conjunction with the African American civil rights movement in the 1960s and 1970s.
    • Native Americans, Asian Americans, and disabled Americans also relied on the Civil Rights Act of 1964 to pursue equality under the law.
    • The Age Discrimination in Employment Act of 1967 makes age discrimination in employment illegal.
    • Gays and lesbians are currently seeking equal treatment under the law through the Fourteenth Amendment and the civil rights legislation of the 1960s.
Affirmative Action
  1. What is the basis for affirmative action?
    • Affirmative action is a compensatory action to overcome the consequences of past discrimination.
    • Affirmative action policy has two approaches: (1) positive or benign discrimination in which race or some other status is taken into account for compensatory action; (2) compensatory action to favor members of the disadvantaged group who themselves may never have been the victims of discrimination.
    • President Lyndon Johnson ordered the first affirmative action programs in the federal government in the late the 1960s.
  2. How does affirmative action contribute to the polarization of the politics of civil rights?
    • Affirmative action programs were implemented through the use of quotas.
    • In 1978, the Supreme Court addressed the issue of reverse discrimination in Bakke v. University of California, which polarized the debate over affirmative action.
    • By the 1990s, the Supreme Court began to strike down affirmative action programs that were viewed as overly broad and discriminatory toward nonminorities.


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