● Original Constitutional Rights:

○ writ of habeas corpus

■ written in Article One, Section 9
■ power to suspend lies with Congress, due to its location in Article 1
■ originally a court inquiry of the jurisdiction of the cour that order
confinement
■ now, a prisoner can request. A judge can order a jailer to show why the
person is held, and may order release
■ Rehnquist court severely limited this- prisoners on death row used it to
delay executions
■ supports believe that judges should be allowed to issue as they want in
order to protect constitutional rights
○ no bills of attainder
■ a legislative act that punishes a person/group without judicial trial
■ forbidden b/c Congress believed it was the Court’s job to decide guilt and
impose punishment
○ no ex post facto
■ a retroactive criminal law negatively affecting the accused
● could make an action a crime that was not when it was committed,
or increase punishment for one afterwards
● does not apply to penal laws in favor of the accused
○ in criminal cases, trial by jury
○ protection moving between states
○ no titles of nobility
○ limits on punishments for treason
○ no religious oaths for federal office
○ guarantee of republican government
● Bill of Rights
○ majority of decisive court decisions are based on the BoR
○ in order to get the Constitution ratified, the founders added the amendments
■ 1: freedom of speech, press, assembly, petition, prohibits national religion
■ 2: right to bear arms
■ 3: prohibits quartering of soldiers
■ 4: searches and seizures
■ 5: grand juries, restricts the right of gvt to take private property for public
use, prohibits self-incrimination and double jeopardy
■ 6: outlines court procedure
■ 7: guarantees trial by jury in civil cases with values as low as $20
■ 8: prevents excessive bail and cruel and unusual punishment
■ 9: previous amendments may not include all of the people’s rights
■ 10: reserves any power not delegated to nat. gvt. to the states
● The Fourteenth Amendment
○ protects violation of rights and liberties by the state governments, while the BoR
was limited to the national government only.
 ■ includes “privileges and immunities” clause, due process clause, and
equal protection clause
○ led to incorporation of the Bill of Rights, occurring gradually over time
■ previously in Barron vs. Baltimore (1833) the SC ruled that the BoR did
not apply to state laws, assuming that state constitutions would protect
people
● Legislative Action
○ court decisions protect against discriminations from by private citizens and
organization, an essential component of the modern civil rights era
○ from the commerce clause to the Civil Rights Act of 1964, legislation has majorly
combatted discrimination
○ Constitution, BoR, the 14th, SC decisions, and legislative actions define nature of
civil rights and liberties in society, most issues arise when two parties rights are
both questioned
● First Amendment Liberties
○ freedom of religion
■ establishment clause
● Everson v. Board of Education
● Lemon v. Kurtzman
● Aquilar v. Felton
● school vouchers were allowed by the Supreme Court
● Engle v. Vitale
● Wallace v. Jaffree
● decisions overturned laws that required the Lord’s Prayer and the
Ten Commandments in classrooms
● affirmed that school prayer at graduation did not violate the
establishment clause, but prayer over loudspeakers at sports
events did
■ free exercise clause
● no limits to the free exercise of religion, incorporated by the 14th
to apply to the states
● religious freedom is not an excuse for behavior, people have the
absolute right to believe what they want but not to practice what
may harm society
● outlawed practices: polygamy, poisonous snakes in rites,
prohibiting medical treatment to children based on religious
beliefs, forcing flag salutes and Amish parents to send their
children to school after eighth grade
○ freedom of speech
■ free speech vs. national security
● Sedition Act of 1798 made it a crime to do anything anti-
government, or defame the country
○ Federalists believed that the 1st did not prevent punishing
newspapers for libel
 ○ Anti-Federalists protested the SA because the state should
have control rather than the national gvt.
● Espionage Act/Sedition Acts
○ EA: forid false statements that interfered w/military forces
○ SA: forbid anything intending to incite resistance against
the US government
● any language that directly caused illegal actions is not protected,
there’s a difference between criticism and “clear and present
danger” (established in Schenck v. US)
■ restrictions on free speech:
● libel- defaming a person’s character with malicious intent, which
must be proven
● obscenity- the Court lets local governments determine regulations
on hardcore porn, such as where it can be sold. Another example:
the CDA, which was unconstitutional
● symbolic speech- not protected because it would allow many
illegal actions if an individual meant to send a message. This
includes advocating illegal actions, fighting words, or inciting
others to commit illegal actions.
○ Tinker v. Des Moines
■ terms:
● commercial speech: a communication between businesses,
customers, and the public
● obscene speech: appeals solely to sexual interest
● preferred speech: speech about political matters, because there is
more protection allowed to political speech
● symbolic speech: not considered speech, expresses ideas
nonverbally
● free association: a person can join/form groups as they choose
● compelling state interest: is abridging the rights of the people
urgent enough to warrant gvt. intervention?
○ tests:
■ prior restraint (banning expression before it occurs, usually in reference to
publications, or high schools), controlling content
■ vagueness: restrictions must be clearly defined to apply to everyone
equally
■ overbreadth: must specifically target unprotected speech, if it targets
both, then it is overboard
■ least drastic means: must interfere with speech as little as possible, to the
least degree
■ content neutral: speech cannot be restricted solely on content

● Privacy Rights
 ○ the words do not appear in the Constitution or BoR, first idea appeared in
Griswold v. Connecticut (birth control)
○ key case: Roe v. Wade
● Right of Due Process
○ generally includes both procedural due process (fair hearing/formal trial) and
substantive due process (fundamental fairness)
○ required not only for criminal, but also for protecting property rights
■ Fifth amendment allows gvt. right to eminent domain (claim property for
public use) but must compensate owners, including direct taking of
property
■ courts are final arbitrators of this
○ Fourth Amendment
■ prevents abuse by police, requires that searches of private property have
probable cause.
■ Mapp v. Ohio
○ Fifth Amendment
■ forbids self-incrimination, Miranda v. Arizona
■ Miranda rights: to remain silent, responses can be used in court, lawyer
present in questioning, evidence obtained violating these cannot be used
■ exclusionary rule
○ Eighth Amendment:
■ prohibits cruel and unusual punishment, states are allowed to choose
positions on capital punishment
●
Case Law:
● Gitlow v. New York (1925)- incorporation: Gitlow passed out pamphlets supporting
socialism and overthrowing the government, breaking a NY sedition act. The SC did not
declare the law unconst., but stated “fundamental personal rights” (freedom of speech)
were protected from states by the due process clause of the 14th Amendment
● Gideon v. Wainwright (1963)- incorporation: Gideon appealed after being sent to prison
for breaking and entering, on the right to counsel. He previously could not afford a
lawyer and was not provided one. The SC incorporated right to counsel in the due
process 14th Amendment, requiring states to provide a lawyer
● Everson v. Board of Education (1947)- establishment clause: a NJ town reimbursed
parents for transportation costs, benefitting a number of students who attended religious
schools. The court ruled against those who argued that the transportation costs could
not be provided for parochial students, because busing is a “religiously neutral” activity,
and states cannot support one religion over another
● Lemon v. Kurtzman (1971)- establishment clause: the court ruled that direct state aid
could not subsidize religions instruction, govt. aid had to be secular, and excessive
government entanglement in religion should be avoided
● Aquilar v. Felton (1985)- establishment clause: this was overturned, which previously
said that state aid to disadvantaged students who attended religious schools was
unconstitutional
● Engle v. Vitale (1962)- establishment clause: school prayer, the Court banned the use
of prayer that mentioned “almighty god”, written by the NY state board of regents
● Wallace v. Jaffree (1985)- establishment clause: banned the moment of silence law that
allowed a one-minute period of silence for meditation or prayer
● Schenck v. U.S.- freedom of speech: Schenck encouraged men to resist the military
draft during WWI, convicted of violating the Espionage Act. SC upheld his conviction,
and Oliver Wendell Holmes said that any language leading to illegal action is not
protected
● Brandenburg v. Ohio- freedom of speech: Involved a KKK leader who said “we’ll take
the street later”, but was overturned because he wasn’t calling for imminent action.
established that speech would have to be determined as inciting “imminent” unlawful
action in order to be restricted
● Tinker v. Des Moines (1969)- freedom of speech: teens wore black arm bands to
school protesting the Vietnam war, were told that they could not. The SC supported the
students, saying that the students were allowed to express themselves because they
were not disruptive
● O’Brien v. Westlake City Schools Board of Education (1998)- freedom of speech:
O’Brien created a website that criticized his band teacher, was suspended. Judge ruled
that the school could not regulate O’Brien’s speech outside of school.
○ Beussink v. Woodland (1998)- freedom of speech: the same as O’Brien-
Beussink uploaded comments about the school on a personal home page, but
the District Court ruled that he should not have been suspended because there
really was no grounds for it.
 ○ Emmett v. Kent School District (2000)- freedom of speech: same as the
previous two, he posted a “hit list”. The school expelled him, saying that it was an
emergency, but the district court said that since the school could not prove that
there was real intent, his speech was protected
○ Beidler v. North Thurston (2000)- depicted an assistant principal as a Nazi,
drunk, and graffiti artist, and was suspended. The state trial court agreed with
Beidler that there was no substantial disruption and the school had no authority
to police off-campus speech.
○ J. S. v. Bethlehem Area School District (1998)- a student posted derogatory
information about people at the middle school, and he was expelled, but the
Commonwealth Court of PA said that he was disrupting the learning environment
because that students were discussing the site, and the attacked teacher’s
medical leave was telling of the distraction
● Morse v. Frederick (2007)- freedom of speech: after holding up a banner with Bong Hits
4 Jesus, Frederick was suspended by Morse. He said this was a violation of speech, the
Court ruled that school officials can prohibit students from displaying messages
promoting illegal drug use
● Bethel School District v. Fraser (1986)- freedom of speech: Fraser made a speech
nominating a student for office, and made a graphic sexual metaphor. He was
suspended under school code, the Court found this appropriate to limit the use of
vulgar/offensive language, it was separate from the speech in Tinker. The speech was
inconsistent with the values of education.
● Lee v. Weisman (1992)- freedom of speech: Lee invited a rabbi to speak at his school’s
graduation ceremony, Weisman tried to stop the rabbi from speaking at the graduation
by filing a restraining order and filed for the barring of clergy from delivering messages at
ceremonies. The Court said that having a rabbi present creates a state sponsored
religious exercise in a public school, creating coercion and establishing state religion.
● Buckley v. Valeo (1976)- freedom of speech: campaign costs are considered speech
● Texas v. Johnson (1989)- freedom of speech: flag-burning was allowed because the
only intent is to convey a message, and does not incite illegal actions
● Griswold v. Connecticut (1965)- right to privacy: a doctor and family planning specialist
were arrested under a CT law that prohibited use of contraceptives, the SC ruled against
CT saying that the unstated liberties protected rights to family planning
● Roe v. Wade (1973)- right to privacy: Roe challenged a law that allowed abortion only to
save the life of a mother, while Texas argued for its right to regulate abortions. The SC
forbid the control of abortions during the first three months and limited control during the
second trimester, citing right to privacy
● Webster v. Reproductive Health Services (1989)- right to privacy: upheld Missouri
statute that banned taxpayer-supported facilities for performing abortions
● Mapp v. Ohio (1961)- search and seizure: police broke into a woman’s home and
arrested her. Established the exclusionary rule, illegally obtained evidence cannot be
used in a trial, and allowed that the fourth amendment be applied to the state
governments
●