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Various Civil Liberties


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Title: Various Civil Liberties

Various Civil Liberties
The Incorporation Doctrine The Bill of Rights
Made Applicable to the States
  • Incorporation Doctrine
  • An interpretation of the Constitution that holds
    that the due process clause of the Fourteenth
    Amendment requires that state and local
    governments also guarantee those rights.
  • Gitlow v. New York (1925)
  • Near v. Minnesota (1931)
  • Selective Incorporation
  • A judicial doctrine whereby most but not all of
    the protections found in the Bill of Rights are
    made applicable to the states via the Fourteenth
  • Palko v. Connecticut (1937)
  • Fundamental Freedoms
  • Those right defined by the Court to be essential
    to order, liberty and justice.

The Incorporation Doctrine The Bill of Rights
Made Applicable to the States
  • Bill of Rights intended to limit powers of the
    national government
  • Barron v. Baltimore (1833)
  • Court ruled that the national Bill of Rights
    limited only the actions of the U.S. government
    and not those of the states.
  • But decision suggested the possibility that some
    or all of the protections might be interpreted to
    prevent state infringement of those rights.

Selective Incorporation
  • Case by case, clause by clause, the SCt has made
    the BR apply to the states
  • Barron v. Baltimore (1833) BR applies only to
    federal govt
  • Gitlow v. NY (1925) 1st case to apply part of
    BR, 1st Amendment speech and press, to the states
  • What happened in betw to change the Court?

14th Amendment (1868)
  • No State shall make or enforce any law which
    shall abridge the privileges or immunities of
    citizens of the United States nor shall any
    State deprive any person of life, liberty, or
    property, without due process of law nor deny to
    any person within its jurisdiction the equal
    protection of the laws.

The Incorporation Processand the Nationalization
of Constitutional Rights
Judges must determine what protections, if any,
are provided by the phrases
The Incorporation Doctrine The Bill of Rights
Made Applicable to the States
  • 14th Amendment
  • Due process clause
  • Over the years this clause has been construed to
    guarantee to individuals a variety of rights
  • Procedural Due Process once a process is
    established it must be applied and followed for
    everyone and every time. Variations in
    application result in Ct using microscope and
    strict scrutiny
  • Substantive due process
  • Judicial interpretation of the Fifth and
  • Fourteenth Amendments due process clause
  • that protects citizens from arbitrary or unjust

NOT Incorporated Yet
  • 2nd now incorporated via McDonald v. Chicago
  • 3rd no quartering of soldiers
  • 5th grand jury indictment
  • 7th civil case jury for cases gt20.00
  • 8th excessive bail

1st Amendment
  • Prior restraint stopping before uttering
  • Only allowed if natl security at stake See NY
    Times v. US (1971), the Pentagon Papers case
  • Schenck v. US (1919) established clear and
    present danger test
  • Brandenburg v. Ohio (1969) govt may step in only
    if danger of imminent lawless action such as a
    riot or violence

First Amendment Rights Freedom of the Press
  • Press interests versus governmental priorities
  • Reporters privilege
  • Press Shield Laws
  • Because there is no constitutional right
    protecting reporters nationwide, reporters may be
    found in contempt of court if they refuse to
    cooperate with criminal investigations.

  • Protect reporters from revealing their sources.
  • No Federal Shield Law.
  • Texas does have a qualified shield Free Flow of
    Information Act (2009)
  • Some states, like CA, do.
  • Some reporters have gone to jail, because they
    refuse to give up their source.

Writer Vanessa Leggett, center, speaks to
reporters after being released from the Federal
Detention Center in Houston where she spent more
than five months for refusing to give federal
prosecutors her research about a murder case.
Texas and other states
1st Amendment
  • Forms of Speech
  • Pure speech -- 1 protection
  • Words spoken or written
  • Political marketplace of ideas, ideas of
  • Libel and slander public figure vs private
    stnd, malice nec for public figure to win (NY
    Times v. Sullivan)
  • Symbolic speech, Tinker v. Des Moines and Texas
    v. Johnson cases
  • Words plus action protests and marches,
    picketing, etc
  • Govt can regulate distance from building (See
    Hill v. Colorado (2000) abortion clinic buffer

First Amendment Rights Freedom of Speech
  • Free speech laws must balance individual
    liberties and societal interests.

Protest outside of the Republican National
Convention in Dallas, TX (1984).
  • Source The ABA News Center. "Flag Burning Poll
    Results Show Americans Opposed To Amending
    Constitution." Online 12 May 2002.

Congress has tried to pass a constitutional
amendment, 9 times since the Johnson case in
  • Can a student be required by school officials to
    turn his t-shirt inside out?

The Federal court ruling
  • In granting the order, Judge Patrick J. Duggan
    noted that "there is no evidence that the t-shirt
    created any disturbance or disruption" in the
    school and that "the record does not reveal any
    basis for the assistant principal's fear aside
    from his belief that the t-shirt conveyed an
    unpopular political message.
  • Judge Duggan further rejected the school
    district's argument that the schoolyard is an
    inappropriate place for political debate. As he
    wrote in the decision, "In fact, as the courts
    have emphasized, students benefit when school
    officials provide an environment where they can
    openly express their diverging viewpoints and
    when they learn to tolerate the opinions of

1st Amendment
  • Not protected speech
  • Hate speech R.A.V. v. St. Paul (1992) burning
    cross -gt st cant reg content, struck citys
    ordinance down
  • Black v. VA reversed, st can reg hate speech
    but must include intent to prove case
  • Free speech zones college campuses
    conventionimplies other areas not protected
    (ACLU argues)
  • Fighting words Chaplinsky v. NH (1942) case
  • Obscenity Miller test
  • False commercial speech st int in protecting

Miller Test (Miller v. CA, 1973)
  • 3-prong test --
  • Average person applying CONTEMPORARY COMMUNITY
    STANDARDS, finds the work taken as a whole,
    appeals to the prurient interest.
  • Work is patently offensive
  • sexual conduct specifically defined by the
    applicable state law .
  • Work TAKEN AS A WHOLE, lacks LAPS value.
    (Literary, Artistic, Political, Scientific)
  • Therefore, obscenity is NOT protected by the 1st
    Amendment. (maintains Ct dec in Roth v. US (1957)

First Amendment Rights Freedom of the Press
  • ObscenityMiller v. California (1973)
  • Test for obscenity is based on community

The basic guidelines for the trier of fact must
be a) whether the average person, applying
contemporary community standards would find that
the work, taken as a whole, appeals to the
prurient interest b) whether the work depicts or
describes, in a patently offensive way, sexual
conduct specifically defined by the applicable
state law and c) whether the work, taken as a
whole, lacks serious literary, artistic,
political, or scientific value.
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Obscenity changes?
  • Above Manets Luncheon on the Grass (1863)
    thrown out during his day as being obscene,
    today considered a classic
  • Right Sargents Madame X (1884) thrown out of
    the Paris salon as too racy with one shoulder
    strap down later he overpainted the other strap

Oscars show and CBS
  • the network issued a "wardrobe advisory" last
    week, warning all attendees of the following
  • Please be sure that buttocks and female breasts
    are adequately covered. Thong type costumes are
    problematic. Please avoid exposing bare fleshy
    under curves of the buttocks and buttock crack.
    Bare sides or under curvature of the breasts is
    also problematic. Please avoid sheer see-through
    clothing that could possibly expose female breast
    nipples. Please be sure the genital region is
    adequately covered so that there is no visible
    puffy bare skin exposure.

1st Amendment
  • Govt can NEVER regulate content
  • Can regulate time, place and manner
  • Ex. No adult video stores w/in x feet of a school
    or house of worship?
  • Deny permit to KKK to march down Main St?
    (Natl Socialist Party v. Skokie (1978))
  • Deny permit to march down Main St on Wednesday
    during 800-900 a.m.?
  • Regulate words on radio or TV? Ok, to protect
    minors in the audience (See FCC v. Pacifica
    George Carlin case, fines on TV stations for
    Janet Jacksons wardrobe malfunction during Super
    Bowl half time)

First Amendment Guarantees Freedom of Religion
  • Framers did not support a national church or
  • Article VI
  • Provides that no religious Test shall ever be
    required as a Qualification to any Office or
    Public Trust under the United States.
  • First Amendment
  • Part of the Bill of Rights that imposes a number
    of restrictions on the federal government with
    respect to the civil liberties of the people,
    including freedom of religion, speech, press,
    assembly, and petition.

Church-State Relationships in America
  • Congress shall make no law respecting an
    establishment of religion, or prohibiting the
    free exercise thereof or abridging the freedom
    of speech, or of the press or the right of the
    people to peaceably to assemble, and to petition
    the Government for a redress of grievances.

First Amendment RightsFreedom of Religion
Establishment Two Approaches
Accommodationist Government may provide support
for religion and its associated activities
Separationist No contact between government and
religion is permitted
First Amendment Guarantees Freedom of Religion
  • Establishment Clause
  • The first clause in the First Amendment
  • Prohibits the national government from
    establishing a national religion
  • Engel v. Vitale (1962) school prayer
  • Wallace v. Jaffree moment of silence to pray?
  • Lemon v. Kurtzman (1971)
  • The Lemon Test 3 prongs
  • Agnostini v. Felton (1997)- remedial school tchrs
  • Zelman v Simmons-Harris (2002) school vouchers

Establishment Clause CasesAid to Parochial
  • Lemon v. Kurtzman (1971)
  • Set up a 3-part test
  • The secular purpose test does the law have a
    secular purpose (nonreligous)? What is the
    intent of the legislation?
  • The primary effect test Does the law either
    advance or hinder religion? Is it neutral?
  • The excessive entanglement test does the
    law/program promote a high degree of interaction
    between religion and civil authorities?

Establishment Prayer
  • Public school prayer at graduation? Lee v.
  • At football games? Santa Fe ISD v. Doe
  • Congress?
  • Ten Commandments in classroom? In courthouse? On
    capitol grounds?
  • In God we Trust on US money?
  • under God in pledge? Newdow
  • State scholarship, not for theology major?

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Can a state prohibit you from displaying a
religious symbol on your license plates?
Establishment and Holidays
  • Christmas nativity scene on city hall?
  • Christmas nativity scene with menorah? With
  • Christmas nativity scene with menorah, crescent,
    tree, Santa Claus, Rudolf, elves, gifts, etc?
  • In front of subdivision?
  • Old Cross in a new park?

Salazar v. Buono (2010) old cross in a new park
  • Lower federal courts had found the crosss
    presence there unconstitutional, and barred
    enforcement of an attempt by Congress in 2004 to
    shift ownership of the site into private hands in
    a bid to save the cross. 
  • Kennedys opinion The goal of avoiding
    governmental endorsement does not require
    eradication of all religious symbols in the
    public realm.The Constitution does not oblige
    government to avoid any public acknowledgment of
    religions role in society. 

And the story goes on
  • Settlement agreement reached betw ACLU and Natl
    Park Service requires private land replace fed
    public land, fence around cross site and never
    becomes US land again also NPS placed plaque to
    explain history and private land
  • Sandoz family donated land trade
  • Cross stolen but found in Half Moon Bay, CA
  • New cross dedicated on Veterans Day, Nov. 11,

Religious Clubs at School
  • Westside v. Mergens (1990)
  • Equal Access Act allows religious groups on
    public school campuses, if that campus allows
    other clubs/organizations.
  • Good News Club v. Milford Central School (2001)
    -- school boards refusal to allow grade school
    students to meet after school to sing, pray, and
    hear Bible stories violated 1st and 14th Am

First Amendment Guarantees Freedom of Religion
  • Free Exercise Clause
  • The second clause of the First Amendment
  • Prohibits the U.S. government from interfering
    with a citizens right to practice his or her
  • Ct balances states compelling int to determine if
    it is less restrictive method to avoid
    interfering with fundamental rt

  • You are free to exercise any religion you want
    or no religion at all
  • but there are limits.

You cannot do anything that might harm yourself
or violate the rights of others.
Cannot do anything that would violate the law.
Another 3-part test
  • Has the government imposed a burden on the free
    exercise of the plaintiffs religion?
  • Does the religion demand the kind of behavior in
    question and,
  • Is the plaintiff engaged in good faith in that
  • Does a compelling state interest justify the
    burden placed on the exercise of religion?
  • States interest must be of the greatest
    importance to take precedence over the plaintiff.
  • Does the state have an alternative way of
    achieving its goals rather than infringing on the
    free exercise of the individuals religion?

Snake handling at the Pentecostal Church of God,
Lejunior, Harlan County, Kentucky 09/15/1946
(National Archives and Records Administration).
The ceremony also included laying on of hands.
Photo by Russell Lee.
Free exercise
  • Polygamy? Reynolds v. US
  • School vaccinations?
  • Attending school past 8th grade?
  • Saying the pledge of allegiance to flag?
  • Gobitis ? Barnette ? Newdow
  • Snake during religious ceremony?
  • Animal sacrifice? Church of Lukumi Babalu Aye v.

Other Free Exercise Issues
  • Deny unemployment to a Native American Church
    member for being fired for smoking peyote?

PeyoteNative American Church
Notwithstanding any other provision of law, the
use, possession, or transportation of peyote by
an Indian for bona fide traditional ceremonial
purposes in connection with the practice of a
traditional Indian religion is lawful, and shall
not be prohibited by the United States or any
State. No Indian shall be penalized or
discriminated against on the basis of such use,
possession or transportation, including, but not
limited to, denial of otherwise applicable
benefits under public assistance programs.
OF 1994 http//
PeyoteNative American Church
Employment Division v. Smith (1990)
  • 6-3 for the Employment Division
  • Justice Scalia, writing for the majority,
    observed that the Court has never held that an
    individual's religious beliefs excuse him from
    compliance with an otherwise valid law
    prohibiting conduct that government is free to
  • Allowing exceptions to every state law or
    regulation affecting religion "would open the
    prospect of constitutionally required exemptions
    from civic obligations of almost every
    conceivable kind." Scalia cited as examples
    compulsory military service, payment of taxes,
    vaccination requirements, and child-neglect laws.

Drinking Brazilian hoasca tea?
  • The legal status in the United States of
    DMT-containing plants is somewhat questionable.
    Ayahuasca plants and preparations are legal, as
    they contain no scheduled chemicals. However,
    brews made using DMT containing plants are
    illegal since DMT is a Schedule I drug.
  • Gonzales v. O Centro Espirita Beneficente Uniao
    do Vegetal (2005), allows the UDV to use the tea
    in its ceremonies pursuant to the Religious
    Freedom Restoration Act.
  • CJ Roberts wrote in the majority opinion that
    federal drug agents should have been barred from
    confiscating the hoasca tea of the Brazil-based
    church and that the Bush administration had
    failed to meet its burden under a federal
    religious freedom law to show that it should be
    allowed to ban "the sect's sincere religious
  • In a similar case, an Ashland, Oregon based Santo
    Daime church sued for their right to import and
    consume ayahuasca tea. In March 2009, U.S.
    District Court Judge Panner ruled in favor of the
    Santo Daime, acknowledging its protection from
    prosecution under the Religious Freedom
    Restoration Act.

1st Amendment
  • Petition protected
  • Assembly do not have to give govt list of names
    of members
  • Red Scare McCarthyism vs Patriot Act
  • Boy Scouts v. Dale (2000) rt to exclude gays as
    scoutmasters constitutional as part of the orgs
    expressive conduct, ie. reputation of what it
    stands for
  • Yes, the KKK and American Communist party have
    the rt to exist.

Freedom of Association (Assembly)
  • Boy Scouts of America v. Dale (2000)
  • Court ruled that the Boy Scouts did not have to
    allow homosexuals into their organization because
    it violated their freedom of association, that
    is, being able to choose who they want to be in
    their PRIVATE organization.
  • Do not have to take people who go against their
    teachings and values.

2nd Amendment Rt to bear arms
  • DC v. Heller (2008) 2nd Am protects individ rt
    to own handguns, DCs ban on handguns held
  • Applies only to federal laws
  • McDonald v. Chicago (2010) rt to self-defense
    fundamental to Am conception of ordered liberty
    2nd Am limits state and local govts from banning
    all handguns
  • Local govts can place restrictions, type of
    restrictions left for future cases
  • Prohibitions on possession of guns by felons and
    mentally ill or in sensitive places like schools
    and govt bldgs not affected by Courts decision

4th Amendment search and seizure
  • Only prevents UNREASONABLE searches
  • Warrant requirements
  • Probable cause, supported by oath and affidavit
  • List specific items / persons to be seized
  • Magistrate sign

4th amendment EXCEPTIONS?
  • Consent must have authority over area
  • Husband vs. wife, parents, landlord
  • Borders and game wardens
  • Terry v. Ohio (1968) stop and frisk
  • Pat down for weapons
  • Frisk for contraband
  • To determine ID
  • To question suspect
  • May lead to full search

4th Exceptions (cont)
  • Incident to arrest
  • At first, just applied to area under immediate
    control then expanded to include whole room
  • To preserve evidence like fingernail scrapings
  • Blood test for alcohol/drug use
  • Impound and inventory car, etc
  • Exigent circumstances urgent times
  • To preserve evidence about to be destroyed
  • Hot pursuit of criminal
  • Car or mobile new ruling Az. v. Gant (2009)
    lmts search to weapons or get warrant
  • Fire

4th Exceptions (cont)
  • Plain-view or plain-smell
  • Backyard
  • Open window vs. crack in drapes
  • Not include thermal imaging
  • Not owner bus. computer, purse left
  • Wiretapping phone booth vs. bank of phones at
    airport, cell phones, etc
  • Patriot Act any link to terrorism, security
    overrides individual rts

Warrantless Searches
  • Key to warrantless searches is
  • A persons expectation of privacy
  • Ex. bus luggage vs plane luggage

Additional notes --
  • Court has ruled that police must knock and
    announce their presence before entering a home or
    apartment to execute a search.
  • Reasonable time betw knocks okay
  • Arrest outside of car then search car?

5th Amendment
  • Taking clause cannot take private prop for
    public use w/out just compensation
  • Aka eminent domain
  • Ex. Galveston dune line
  • Govt usually wins
  • Exception historical site, cemetery
  • Public Use ? Public purpose ? public eco benefit
    Kelo v. City of New London
  • Federal Due Process clause

5th Amendment
  • Double Jeopardy cannot be placed twice in the
    same jeopardy
  • Not apply to
  • Civil cases no life/liberty danger just
  • Appeals life/death
  • Different jurisdictions, fed or state
  • Different causes of action, civil or criminal
  • Mistrial or hung jury as no verdict been reached

5th Amendment
  • Self-incrimination only applies to possible
    criminal activity
  • Miranda v. Arizona (1966) rt to remain silent
  • No forced confessions
  • Congress attempted to counter Miranda by allowing
    voluntary confessions SCT held legislation
  • Mapp v. Ohio (1961) est Exclusionary Rule evid
    obtained illegally cannot be used in trial due
    process and fairness

Exclusionary Rule
  • Fruit of Poisonous Tree A? B? C
  • If A is illegal then cannot use C?
  • Good Faith Exception
  • Minor error
  • Cop tried
  • Reason for appellate ct to grant new trial if
    allowed in during district trial

Privileged communication
  • Not required to tell law enforcement if
  • Spouse (can always volunteer!)
  • Priest, etc
  • Attorney-client
  • Doctor-patient
  • Work product ? If created as part of your job,
    then belongs to company and you may not disclose
    w/o warrant

6th Amendment
  • Rt to Atty Gideon v. Wainwright (1963) if you
    cannot afford oneappointed in state felony case
  • Escobedo v. Illinois (1964) rt to atty during
  • Rt to atty during line-ups now, from moment of
  • No rt to counsel in civil cases or minor criminal
    cases subject to fine only
  • Rt to effective counsel not include sleeping!

6th Amendment
  • Rt to know charges against one
  • Speedy trial fed 70 days of arrest/indictment
    Tx no limit
  • Statutes of limitations st pass limits as to
    when a state may still arrest you for a crime
    murder has no statute of limitations we can get
    you when your 85! (See civil rts murders)
  • Public trial govt cannot hide, to encourage
    truth telling
  • Incorp to st in Duncan v. La (1968)
  • except for spy court (1976?)
  • Can close to protect child victims as they
    testify, to protect undercover witnesses, if zoo
    or circus atmosphere
  • Major conflict usually with press 1st Am rt
    issue of televising trial
  • Waive with plea bargain over
  • Gag order ct order that neither the parties nor
    witnesses to a case may talk about the case
    outside of the ctroom

6th Amendment
  • Impartial jury of ones peers, women and
    minorities now included change of venue if
    community against defendant
  • Witnesses to confront (cross-examine) and

8th Amendment
  • Excessive bail NOT!
  • Excessive fines NOT!

Civil Liberties and Criminal Justice
Capital Punishment
  • Can capital punishment be considered cruel and

Methods used?
  • Varies by state See http//www.deathpenaltyinfo.
  • U.S. Military Lethal injection is the sole
  • U.S. Government depends on state where the crime
  • The method of execution of Federal prisoners for
    offenses under the Violent Crime Control and Law
    Enforcement Act of 1994 is that of the state in
    which the conviction took place, pursuant to 18
    USC 3596. If the state has no death penalty, the
    judge must choose a state with the death penalty
    for carrying out the execution. For offenses
    under the 1988 Drug Kingpin Law, the method of
    executions is lethal injection, pursuant to 28
    CFR, Part 26.

State methods
  • Lethal Injection 1059 (incl. 9 by one-drug
    protocol) 36 states U.S. Military and U.S.
    Gov'tAlabama, Arizona, Arkansas, California,
    Colorado, Connecticut, Delaware, Florida,
    Georgia, Idaho, Illinois, Indiana, Kansas,
    Kentucky, Louisiana, Maryland, Mississippi,
    Missouri, Montana, Nebraska, Nevada, New
    Hampshire, New Mexico, North Carolina, Ohio,
    Oklahoma, Oregon, Pennsylvania, South Carolina,
    South Dakota, Tennessee, Texas, Utah, Virginia,
    Washington, Wyoming, U.S. Military, U.S.
    GovernmentNew Mexico abolished the death penalty
    in 2009. However, the law wasn't retroactive,
    leaving two people on the state's death
    row.Ohio adopted a single-drug lethal injection
    protocol in November 2009. Washington state
    adopted a single-drug protocol on Mar. 2, 2010,
    though inmates may still choose the 3-drug
  • Electrocution 157 9 states (all have lethal
    injection as primary method) Alabama, Arkansas,
    Florida, Illinois, Kentucky, Oklahoma, South
    Carolina, Tennessee, Virginia
  • Gas Chamber 11 5 states (all have lethal
    injection as primary method) Arizona,
    California, Maryland, Missouri, Wyoming
  • Hanging 3 2 states ((all have lethal
    injection as primary method) New Hampshire,
  • Firing Squad 3 1 state (all have lethal
    injection as primary method) Oklahoma,
    UtahUtah no longer offers the firing squad as an
    option, but would allow it only for inmates who
    chose this method prior to its elimination
    .Oklahoma offers firing squad only if lethal
    injection and electrocution are found
  • NOTE states in brackets authorize the listed
    method only if a current method is found
    unconstitutional (see state description, below,
    for more information).
  • Method of executions by method since 1976
    of states authorizing method Jurisdictions
    that Authorize

No Cruel and unusual punishment aka death
  • Gregg v. Georgia (1976) death penalty does not
    invariably violate the Const
  • Overturned Furman
  • Not apply to mentally insane
  • Not to mentally handicapped
  • Not to minors
  • No mandatory sentences, nec 2-stage 1) guilt, 2)
    punishment with mitigating circumstances intro to
  • Not to crimes where no death resulted ex. Rape
    of a child
  • Debate if minor tried as adult for crime while
    16 or 17? what if juvenile is sentenced to life
    without parole? No to mandatory life w/o parole,
    Miller v. Alabama (2012)

9th Amendment
  • Enumeration in the Const, of certain rts, shall
    not be construed to deny or disparage others
    retained by the people
  • i.e. listing rts does not mean we listed all of
    them. This is NOT an exclusive list!
  • The order of the list does not mean that some rts
    are more important than others. No ranking of rts

Right to Privacy etc. 9th Am
  • penumbra in the shadows of the other well
    known rights
  • Like -- The right to be let alone.
  • Right to move from state without asking
    permission of anyone
  • Right to determine job/occupation
  • Right to choose lifestyle

Right to Privacy etc. 9th Am
  • A judicially created doctrine encompassing an
    individuals decision to use birth control to
    secure an abortion.
  • Birth Control
  • Griswold v. Connecticut (1965)
  • Abortion
  • Roe v. Wade (1973) --Court found a womans right
    to an abortion was protected by the right to
    privacy that could be implied from specific
    guarantees found in the Bill of Rights applied to
    the states through the Fourteenth Amendment.
  • Webster v. Reproductive Health Services (1989)
  • Planned Parenthood of S.E. Pennsylvania v. Casey
    (1992) upheld state restrictions on dif
  • Stenberg v. Carhart (2000) ban on partial birth
    abortion upheld
  • Marriage
  • Loving v. Virginia (1967) marriage is a
    fundamental right and prohibits states ban on
    interracial marriages
  • Homosexuality
  • Lawrence v. Texas (2003)--State sodomy laws

Rt to Die
  • Court did note that individuals could terminate
    medical treatment if they were able to express,
    or had done so in writing via a living will,
    their desire to have medical treatment terminated
    in the event they became incompetent.
  • 1997 Court ruled unanimously that terminally ill
    persons do NOT have a constitutional right to
    physician assisted suicide. Vacco v. Quill and
    Glucksberg v. WA
  • Oregon voters approved a right to die law (Death
    with Dignity Act) in 1997 which is still in
    effect today Washingtons took effect in 2009.
  • Attorney General issued legal opinion that this
    was not acceptable.
  • State and national conflict.
  • Federal judge ruled that Ashcroft, then Attorney
    General, had overstepped his authority.
  • Gonzales v. Oregon (2006) Oregons Death with
    Dignity Act upheld ruled that the Atty Genneral
    could not enforce the federal Controlled
    Substances Act against physicians who prescribed
    drugs, in compliance with state law, for the
    assisted suicide of the terminally ill.
  • Terry Schiavo (2005) case removal of feeding
    tube when persistent vegetative state
  • Living wills or directives to doctors to withhold
    life support upheld nec properly executed

10th Amendment
  • Powers not delegated to the federal govt by the
    Const nor prohibited by the Const to the states,
    are RESERVED to the states respectively or to the
  • Basis of states rights position
  • Nullification Crisis states voided federal laws
  • Civil War cant nullify, cant withdraw from

  • Entrapment when law enforcement officials
    encourage a person to commit a crime that he/she
    would not otherwise commit violates 5th Am
  • Indigent a poor person lacking the necessities
    of life
  • Indigenous native