1-3. Seperation of Powers

4. Federal System of Government (state seperate from federal

5. Amendment Process

6."Hodge Podge"- Supremacy Clause

7. Ratification Process

How many Amendments are in the Constitution?

27 Amendments

1-10 = Bill of Rights

13-15 = Civil War Amendments

Judicial Review

Judicial Supremacy

Madison fails to pass papers for Marbury to as J.O.P.

Writ of Mandamus (J.A. 1789)

Shows Judicial Supremacy

Judiciary Act of 1789 unconstitutional

Eakin vs Raub (1825)

Critiques Judicial review

Pro: allows for living document

Con: judicial activism vs judicial restraint

Barron v Baltimore

(1833)

Dumping of sand into Barron's wharf

Violates 5th amendment

Court ruled Bill of Rights doesn't apply to States

The Civil War Amendments

The Slaughter House Cases (1873)

Slaughtering only allowd in single facility in New Orleans, created Monopoly

conflicts with 13th and 14th

Court rejected: only newly freed states

Hurtado v California (1884)

Violation of 5th (no grand jury with due process)

5th should apply to 14th

Court: Barron 5th doesnt apply to states

Selective Incorporation

After the passage of Civil War Amendments, supreme court selectively applied Bill of Rights to state governmental actions

case by case basis

Palko v Connecticut (1937)

Charged with double jeopardy 5th amendment

Courts Ruling:

rejected, 5th amendment not fundamental right

Rochin v California (1952)

Swallow Drugs, stomach pump

5th amendment: due process

Court's Ruling:

Police action was "shocking to the conscience"

Due Process Resolution

Incorporation of the Bill of Rights

Griswold v Ct (1965)

14th amendment used to find that there is a "right to privacy" for all married couples

(contraceptives)

Duncan v Louisiana (1968)

Duncan sentenced to 90 days and fine for battery, never presented a jury (under two years punishment)

violates 6th amendment

Constitutionalism

Representative Democracy

Pass out anti draft leaflets

violation of "espionage act of 1917"

doesn't violate1st amendment

context of speech (in clear and present danger)

unanimous

Abrams V U.S. (1919)

Russian leaflets denouncing war efforts

no violation of 1st amendment

violates espionage act

"Bad Tendency Test"

Bad Tendency Test

Determines whether the speech that is reviewed has a "tendency" to bring about something evil

(clear and present danger)

Criminal Anarchy Law, distribute left wing manifesto pamphlet - 1st amendment?

ruled in favor of new york

incites danger

clear and present danger test/bad tendency

Justice Stone:

"the 1st amendment is not conifened to safeguarding freedom of speech and religion against discriminatory actions, on the contrary the consitution by the 1st and 14th amendments puts those freedoms in a preferred position"

"Footnote Four"

Why did the court move towards a more conservative direction in the 1950's?

new Chief Justice Vinson?

appointment of new conservatives on Court?

Cold war and Fear of Communism?

The Balancing Approach

Court balalnces two sides with preference given to the government (i.e. "presumption of constitutionality")

Judicial Deference

Dennis led communist party- overthrow gov

smith act 1940

1st and 5th

clear and present danger test

court sides with US

in trouble for conspiring?

Brandenburg v Ohio (1969)

private KKK rally, called for "revengenance"

1st amendment

sides with brandenburg

Ended "clear and present danger test"

1. directing at producing imminent lawless action

2. likely to incite such action

3. law is overly broad, cant distinguish advocacy and incitement

4. advocacy alone doesn't allow states to violate rights

Bad Tendency Test (who)

Balancing Test (who)

Clear and Present Danger Test

burned draft card

selective service act violation

Rational Basis Test

Four Prong Test

Warren

1. is the regulation within congress' authority to enact?

2. does reg. further leg. gov. interest?

3. is the reg. unrelated ro the suppresion of speech

4. is the reg. only an incidental restr. of speech?

Mandatory flag salute jehovas

Court overruled existing precedent

unification of opinion violates 1st and 14th

vietnam protest armbands

court rules with Tinker, "pure speech" under 1st amendment

Burning of the Flag at national convention

protected under 1st amendments

Morse v Fredricks (2007)

Bong Hits 4 Jesus

Court rules in favor of school (morse)

Tinker does not guide case

Boy Scouts v Dale (2000)

Gay rights activist lost membership

NJ law violated 1st amendment "expressive assoc."

Wrongs in themselves; acts morally wrong; offenses against conscience

"Harm Principle"

John Stuart Mill

law cannot be used to restrict a person's actions unless they harm another

Hicklin Test (1868)

English Common Law

seen by child?

if one parts obscene the whole thing is

Mail American Aphrodite 

nudity seen as obscene

US one

Roth test

utterly redeming social value, prurient interest in sex, applying contemporary community standards

Miller vs Cali (1973)

mailed obscenity

rewrote Roth test

1. prurient interest

2. depicts or describes breaking state law

3. lacks literary, artistic, political or scientific value

New York v Ferber (1982)

Selling child porn

in favor of new york

because he sold it its economic distributing

child porn no artistic

1st amendment

Ashcroft v Free Speech Coalition (2002)

Child Pornography Prevention Act

2 provisions shown unconstitutional

restricts lawful adult speech

Reno vs ACLU (1997)

ACLU wins

CDA violation of 1st amendment

cant restrict speech of adults to that of children

Fighting Words

lewd and obscene

profane

libelous

incite immediate breech of peace

Chaplinksy v New Hampshire

Jehovas witness calls out religions, calls court marshall a fascist racketeer

fighting words

sides with NH

Cohen v Cali (1971)

Coat reading "fuck the draft, stop the war"

disturbing the peace

sides with cohen, cant prohibit offensive words

RAV v St Pauls (1992)

burning of cross

arrested for fighting words

RAV wins, overturns St Pauls

BIAS Motivated Come Ordinance unconstitutional because it applies to only certain groups

black man beats up white kid after watching racial movie

in favor of the wisconsin state law

does not violate 1st amendment to punish motivated crime

Virgina v Black (2003)

KKK lights cross on fire on his lawn

Cross burning is consitutional

overturns virginia law

Libel

Invasion of Privacy

1. private invasion

2. public disclosure of embarrassing fact. damges reputation

3. publicity placing in false light

4. appropriation of name or likeness without permission

NY Times v Sullivan (1964)

alabama police cheif

unfactual ads about protest

court overules, in favor of NYT

"no actual malice"

Welch attacks gertz from john birch society

ruled in favor of gertz, private individuals afforded more coverage than public officials

Prior Restraint

Preventing something before it happens

only allowed during:

1. National Security

2. obscenity

3. expressions inciting acts of violence

Near v Minnesota (1931)

anti-semetic racist publications

gag order in effect

near wins, violates 1st amendment

Pentagon papers

Nixon tries to prevent

need evidence would cause danger for prior restraint

Broadcasted name of underage rape victim

father sued

court ruled in favor of broadcast, became public record

Unfair Broadcasting segments

"fairness Doctrine"

consistent with first amendment

Branzburg v Hayes (1972)

Reporters forced to give names of sources that may be incriminating

court ruled that press is not covered under the 1st amendment

Houchins v KQED (1978)

·       Television company rejected access in jails

·       Violation of 1^st amendment?

·       No violation

·       Textual interpretation (freedom of press NOT freedom of information

·       Media cannot be barred from public places

Access to rape case involving minors (mass law preventing viewing of some cases)

Press excluded from trial of alleged rapist of three minors

Did this violate the free press guarantee

Yes, there is no compelling interest here

While well-being of minor rape victims is compelling, its not necessary for full disclosure

No substantial evidence that victims would be more likely to come forward because of such exclusions

U.S. v Library Association of America (2003)

·       Preventing children from getting access to porn

·       Children internet protection act

·       Federal funds provided only to libraries using filtering software

·       Library assoc. claims 1^st amendment violation

·       Court rules no violation here

·       Pluraliry, congressional spending power

·       Valid exercise of congressional spending power

·       Policy does not violate patrons 1^st amendment rights

·       Protecting young patrons is perhaps a compelling interest