AP GOVERNMENT CHAPTER 16: FIRST AMENDMENT FREEDOMS The Constitution lays down the fundamental principles of a free society: freedom of conscience and freedom of expression. RIGHTS IN THE ORIGINAL CONSTITUTION Writ of Habeas Corpus- “produce the body”- the writ is a court order directing any official having a person in custody to produce the prisoner in court and explain why the prisoner is being held. The Writ was merely a judicial inquiry to determine whether a person in custody was being held as the result of the action of a court with proper jurisdiction. IF a judge finds a petitioner is detained unlawfully, the judge may order the person’s immediate release. The Supreme Court and Congress have severely restricted the habeas corpus jurisdiction of federal judges. The Antiterrorism and Effective Death Penalty Act of 1996 restricts the number of times a person may be granted a habeas corpus review, stops appeals for most habeas petitions at the level of the U.S. Court of Appeals, and calls for deference by federal judges to the decisions of state judges unless they are clearly “unreasonable.” Ex Post Facto Law- retroactive criminal law that makes a particular act a crime that was not a crime when an individual committed it, increasing punishment for a crime after the crime was committed. Bills of Attainder- are legislative acts inflicting punishment, including deprivation of property, on named individuals or members of a specified group without a trial. Rights in the Original Constitution: 1. Habeas Corpus 2. No bills of attainder 3. No ex post facto laws. 4. No titles of nobility 5. Trial by jury in national courts 6. Protection for citizens as they move from one state to another, including the right of travel. 7. Protection against using crime of treason to restrict other activities; limitation on punishment for treason. 8. Guarantee that each state has a republican form of government. 9. No religious test oaths as a condition for holding a federal office. THE BILL OF RIGHTS AND THE STATES In a sense, it was the American people who drafted our basic charter of rights. The Federalists argued that the Constitution established a limited government that would not threaten individual freedoms, and therefore a bill of rights was unnecessary. Bill of Rights applies only to the National Government. The national government has generally shown less tendency to curtail civil liberties than state and local governments have. Due Process Clause- in the 5th Amendment limiting the power of the national government; states that no person shall be deprived of life, liberty or property without due process of law- by the STATES. Gitlow v. New York- 1925- the Court announced that it assumed “that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and liberties protected by the due process clause of the 14th Amendment from impairment by the states.” This case made it for the first time that the US Constitution protected freedom of speech from abridgment by state and local governments. Selective Incorporation- the process by which provisions of the Bill of Rights are brought within the scope of the 14th Amendment and applied to state and local governments. Today the 14th Amendment imposes on the states all the provisions of the Bill of Rights except those of the 2nd and 3rd Amendments, the 5th Amendment provision of indictment by a grand jury, the 7th Amendment right to a jury trial in civil cases, and the 9th and 10th Amendments. Selective incorporation of the Bill of Rights in to the 14th Amendment is probably the most significant constitutional development since the writing of the Constitution. It has profoundly altered the relationship between the national government and the states. It made the federal courts the most Important protectors of our liberties. The New Judicial Federalism contend that the US Constitution should set minimum but not maximum standards to protect our rights. Key Concepts: Civil Liberties- the freedoms of all persons that are constitutionally protected against governmental restraint; the freedoms of conscience, religion, and expression which are secured by the 1st Amendment. Protected by due process and equal protection clauses of 5th and 14th Amendments. Civil Rights- the constitutional rights of all persons, not just citizens, to due process and the equal protection of the laws; the constitutional right not to be discriminated against by governments because of race, ethnic background, religion, or gender. Protected by due process and equal protection clauses of the 5th and 14th Amendments. Rights of Persons Accused of Crimes- the rights of all persons, guilty as well as innocent, to protection from abusive use by the government of the power to prosecute and punish persons accused of violating criminal laws. Secured by the 4th, 5th, 6th, 8th and 14th Amendments. Political Rights- the rights of citizens to participate in the process of governance flowing from the right to vote. Secured by the 14th, 15th, 19th, 23rd Amendments. Legal Privileges- privileges granted by governments to which we have no constitutional right and which may be subject to conditions or restrictions ex. Driver’s license. Once such privileges are granted, we may have a legal right to them, and they cannot be denied except for “reasonable reasons” and by appropriate procedures. Common Law- judge-made law based on the interpretation and application of legal principles- the principle of freedom of speech, for example. Civil Law- law evolved from Roman law and based on codes that are strictly applied by judges. Civil law also applies to disputes between individuals and the government that carry no criminal penalties. FREEDOM OF RELIGION The Establishment Clause Establishment Clause- clause in the first amendment that states that Congress shall make no law respecting an establishment of religion. It has been interpreted by the Supreme Court as forbidding governmental support to any or all religions. The establishment clause goes beyond merely separating government from religion by forbidding the establishment of a state religion. It is designed to prevent 3 evils: government sponsorship of religion, government financial support of religion, and government involvement in religious matters. Everson v. Board of Education of Ewing Township 1947- decision that the establishment clause creates a “wall of separation” between church and state and prohibits any law or governmental action designed to specifically benefit any religion, even if all religions are treated the same. Lemon v. Kurtzman- 1971 laid down a three part test: 1. A law must have a secular legislative purpose 2. It must neither advance nor inhibit religion 3. It must avoid “excessive government entanglement with religion.” The “Lemon” test is often used, but he justices remain divided over how much separation between government and religion is required by the first amendment. Endorsement Test- championed by Justice Sandra Day O’Connor- belief that the establishment clause forbids governmental practices that a reasonable observer would view as endorsing religion, even if there is no coercion. The Court concluded that when a nativity scene was displayed in a s hopping district together with Santa’s house and other secular and religious symbols of the Christmas season, there was little danger that a reasonable person would conclude that the city was endorsing religion. But the Constitution does not permit a city government to display a nativity scene on the steps of the city hall. Nonpreferentialist Test- used by the Court’s most conservative justices- Rehnquist, Scalia and Thomas, it is the belief that the Constitution prohibits favoritism toward any particular religion but does not prohibit government aid to all religions. In their view, government may accommodate religious activities and even give non preferential support to religious organization so long as individuals are not legally coerced into participating in religious activities and religious activities are not singled out for favorable treatment. Strict Separation- view of the more liberal justices- Souter, Stevens, Ginsburg and Breyer- the belief that even indirect aid for religion, such as scholarships or teaching materials, and aid for students attending private religious schools, crosses the line separating the government from religion. The establishment clause forbids states- including state universities, colleges and school districts- from introducing devotional exercises into the public school curriculum, including school graduations and events before football games. It is not unconstitutional for students to pray in a school building, it is unconstitutional for it to be sponsored or encouraged by public school authorities. They hold prayer before each opening of Congress- but it is considered ok because the legislators, as adults, are not “susceptible to religious indoctrination or peer pressure.” That students in school are seen to be. Vouchers and State Aid for Religious Schools A troublesome area focuses around states’ providing financial assistance to parochial and other religious schools. Tax funds may be used to construct buildings and operate educational programs at church- related schools as long as the money is not spent directly on buildings used for religious purposed or on teaching religious subjects. Government aid to students who attend religious schools is