Topic 1: Structure
As we cover unit 3, we start out by examining the structure of our courts. Cases always start in trial courts before moving up through our appellate court system. You should know the ways the Supreme Court accepts cases, including the Rule of Four and how Writs of Certiorari work.
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Topic 2: Expression
Expression covers our 1st Amendment rights and protections. Keep in mind, none of these are granted to us; instead, they are ours to begin with and can't be taken from us by government.
There are five protections in the 1st Amendment - religion, speech, press, assembly, and petition. Together they form a protection from government interfering with these rights. That doesn't mean government never does, but it does mean that when they do we have a way to address those grievances and rectify them. In this topic we will focus on two of them: religion and speech. This topic comes up quite often when we examine freedom of expression and students. While students don't lose their rights "at the schoolhouse gate," they also can have those rights curtailed more than most people due to a school's compelling interests in educating children and keeping them safe. |
When government or the courts do allow for the limitations of these freedoms, we are debating whether we value more freedom or more security.
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Freedom of Religion
Your religious freedoms within the 1st Amendment actually carry two important pieces, or clauses.
Your freedom from religion and your freedom for religion.
The government cannot force you to participate in any religion, favor one religion over another, or favor religion over non-religion; all this falls under the Establishment Clause. This is where we have a separation of church and state.
The government also cannot stop you from participating or acting on your religious beliefs - as long as they don't violate social duties or the social order. This is covered in the Free Exercise Clause. So you can pray when you want to but you can't sacrifice a human offering - that would be murder.
Side note: corporations are run by people, which also means that corporations (the people running them) don't have to act on or participate in an activity that violates their deeply held religious beliefs either.
Your freedom from religion and your freedom for religion.
The government cannot force you to participate in any religion, favor one religion over another, or favor religion over non-religion; all this falls under the Establishment Clause. This is where we have a separation of church and state.
The government also cannot stop you from participating or acting on your religious beliefs - as long as they don't violate social duties or the social order. This is covered in the Free Exercise Clause. So you can pray when you want to but you can't sacrifice a human offering - that would be murder.
Side note: corporations are run by people, which also means that corporations (the people running them) don't have to act on or participate in an activity that violates their deeply held religious beliefs either.
Freedom of Speech
Speech offers us an even clearer portrait of the essential question. When we look at the compromises that took place, we are almost always looking at the compromise between freedom and security (individual rights vs. the common good). To do so, the courts have determined that there is some speech that is always protected, some that is never protected, and some speech that they can place limits on.
PROTECTED
Hate speech, political speech, and symbolic speech are always protected. We may find this speech some of the most disagreeable but we can't ban it.
Hate speech, political speech, and symbolic speech are always protected. We may find this speech some of the most disagreeable but we can't ban it.
EXEMPTED
Certain speech is always banned. This type of speech causes danger, it interferes directly with the common good. Speech that incites violence, is so offensive that it leads to a fight, or purposely attempts to defame people (that is to say, with malice) is always banned.
Certain speech is always banned. This type of speech causes danger, it interferes directly with the common good. Speech that incites violence, is so offensive that it leads to a fight, or purposely attempts to defame people (that is to say, with malice) is always banned.
LIMITED
There are a number of types of speech that government can place limits on. Wherever government has a compelling interest, it can place limits on speech.
Often, this means it can limit student speech (the number one type of speech that falls under compelling interest). But this category also includes obscenities or commercial speech, which can also be subject to limits.
There are a number of types of speech that government can place limits on. Wherever government has a compelling interest, it can place limits on speech.
Often, this means it can limit student speech (the number one type of speech that falls under compelling interest). But this category also includes obscenities or commercial speech, which can also be subject to limits.
Topic 3: Protection
This topic is all about the rights of the accused. These rights protect you from the government when you are accused of a crime. These rights are covered in class with our discussion on the 4th, 5th, and 14th Amendment. The 6th, 7th, and 8th are covered in the reader. What is important in this section is to note that the authors of the Bill of Rights and the later amendments were very purposeful about when to say person and when to say citizen. When writing these amendments, they always used "person", so these apply to everyone regardless of citizenship.
The 4th Amendment
According to the direct wording of the 4th Amendment, people's "persons, houses, papers, and effects" are protected from "unreasonable searches and seizures."
Police can search or seize if it is reasonable - and that depends on if there is warrant or an exception. If the answer is no to both of those, then the search is unreasonable.
The 5th, 6th, 7th, and 8th
When an individual is arrested, there are certain protections that they have.
First, according to the 5th Amendment, an individual doesn't have to speak if they don't want to. This can protect them from giving up information that can be used against them, information that incriminates them.
The 6th Amendment ensures that you have the right to a speedy trial (the state can't wait around collecting more evidence), the right to a jury trial (but you can waive this right and take a trial by a judge), the right to confront and question the witnesses speaking against you, and the right to have counsel, an attorney, to help defend you.
The 7th Amendment protects you in civil cases where the value is more than twenty dollars - you have the right to a trial by jury as well.
Finally, the 8th Amendment protects you from any cruel and unusual punishments. This keeps you from experiencing any punishment that would have unacceptable suffering, pain, or humiliation. To determine what kinds of punishments are allowed, three things are looked at:
First, according to the 5th Amendment, an individual doesn't have to speak if they don't want to. This can protect them from giving up information that can be used against them, information that incriminates them.
The 6th Amendment ensures that you have the right to a speedy trial (the state can't wait around collecting more evidence), the right to a jury trial (but you can waive this right and take a trial by a judge), the right to confront and question the witnesses speaking against you, and the right to have counsel, an attorney, to help defend you.
The 7th Amendment protects you in civil cases where the value is more than twenty dollars - you have the right to a trial by jury as well.
Finally, the 8th Amendment protects you from any cruel and unusual punishments. This keeps you from experiencing any punishment that would have unacceptable suffering, pain, or humiliation. To determine what kinds of punishments are allowed, three things are looked at:
- overall acceptance in society,
- severity (the punishment fits the crime), and
- if the punishment is arbitrary.
Due Process & Equal Protection
Due process of law is the legal process that you are due as a person - that is to say: fair treatment through the normal judicial system.
When an individual goes through the court system, if they are found guilty, the state (the government, either federal or state) can take away your life through execution, your liberty by locking you up in prison, or your property by assigning a fine or forfeiture of specific property.
However, before they do so, the state must have followed due process - without it, they are in violation of the Constitution.
However, before they do so, the state must have followed due process - without it, they are in violation of the Constitution.
Possibly the most used component of the U.S. Constitution has been the Equal Protection Clause of the 14th Amendment (at least most used since it's inclusion). The case has been used to strike down school segregation, laws again interracial marriage, and laws against gay marriage.
The Equal Protection Clause in the Constitution states that the laws need to be applied equally to every person. The inclusion of the 14th Amendment insured more constitutional restrictions against the states than had ever been applied before.
The Equal Protection Clause in the Constitution states that the laws need to be applied equally to every person. The inclusion of the 14th Amendment insured more constitutional restrictions against the states than had ever been applied before.
Topic 4: Interpretation
Judicial Ideologies
Judicial Activism and Judicial Restraint are two judicial philosophies that deal specifically with outcomes of the rulings.
Strict Constructionism and Loose Constructionism are judicial philosophies that look at how to interpret the Constitution and the law.
One set deals with input (how we read the laws) while the other set deal with output (the effects of those laws).
Strict Constructionism and Loose Constructionism are judicial philosophies that look at how to interpret the Constitution and the law.
One set deals with input (how we read the laws) while the other set deal with output (the effects of those laws).
While we often pretend that a judge holds one judicial philosophy on all their rulings, often their political philosophy drives their decision making more, leading many judges who advocate for strict or loose constructionist views ruling oppositely when it suits their political ideology.