Consequences of Incorporation Americans have the right to be free from "unwanted government intrusions" into their privacy. However, if you search the text of the Declaration of Independence and the U.S. Constitution, you won't find the phrase "unwanted government intrusions." You won't even find the word privacy. What you will find is a long list of rights and a set of general statements about unalienable natural rights. As you probably remember, the courts have taken that list and those general statements and applied them to the states under the incorporation doctrine. The way that the courts have incorporated the Fourteenth Amendment has made a big difference for privacy rights. In 1965, the Supreme Court expanded on some side comments in earlier decisions and described a right of privacy in Griswold v. Connecticut. This right was expanded in later decisions and became the basis for the decision about abortion in Roe v. Wade, a very controversial decision. The right to privacy has since been expanded to cover a wide range of personal conduct. Marital Privacy In the 1965 case of Griswold v. Connecticut, a state law outlawed birth-control counseling and birthcontrol devices. The law was struck down by the Supreme Court, which ruled that the state law violated the Fourteenth Amendment's due process clause. This ruling made clear that the state had no role in policing matters of "marital privacy." In the Griswold decision, all the justices agreed that the birth-control law was silly. Seven of the nine justices wanted to overturn the law, but the majority came up with three very different arguments for privacy. Justice William O. Douglas, writing for the majority in the decision, said that the right to privacy fell within the penumbra of other constitutional protections. He looked at earlier decisions involving the right to speech, the right to be secure from searches, and similar protections, and linked them all together with the concept of privacy. Justice Goldberg agreed that there was a right to privacy, but he found it in the Ninth Amendment. Justice Harlan argued that privacy was best defined by the due process clause of the Fourteenth Amendment. He emphasized substantive due process, as privacy was part of fundamental fairness. Fundamental Personal Rights Later decisions went on to use Griswold to identify a "class of fundamental personal rights": If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. —Eisenstadt v. Baird (1972) Not all of the justices agreed with the majority opinion in Griswold. Justice Hugo Black dissented, arguing that The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. Justice Black, you may remember, argued that the Fourteenth Amendment meant the Bill of Rights applied only to the states, nothing more and nothing less. He never got a majority of the Court to agree with him. Roe v. Wade When it comes to privacy, one of the most controversial issues is abortion. Griswold v. Connecticut laid the groundwork for the best-known case the Supreme Court has yet heard on the subject of abortion: Roe v. Wade. In 1973, the Supreme Court heard the case of a woman who claimed to have been raped and become pregnant as a result. The Court held that the Fourteenth Amendment's right to privacy protects a woman's right to choose whether to terminate a pregnancy. Roe v. Wade The Court also came up with a basis for the way abortion rights would be defined—in terms of the three trimesters of a pregnancy. 1. First Trimester – A state must recognize a woman's right to choose an abortion. The state has no right to interfere with this decision. 2. Second Trimester – A state can set reasonable regulations concerning where, when, and how abortions may be performed, but they do not have the right to prevent the procedure. 3. Third Trimester – Acting on behalf of the unborn child, a state may set regulations to prevent abortions, except in situations where the life of the mother may be at risk from the pregnancy. Interpretations of and Restrictions on Roe v. Wade The Court's decision in Roe has shaped American politics. Abortion opponents argue that the Court's decision was flawed, that the privacy doctrine is flawed, and that the Supreme Court misunderstood the nature and meaning of life. Abortion defenders disagree, emphasizing privacy rights and other socioeconomic and environmental factors, including population, the availability of monetary support to raise a child in a healthy environment, and the importance of equal access to rights for all Americans. In 1972, many states were easing their legal restrictions on abortion. Both sides of the abortion debate agree that the Supreme Court decision turned what had been a state-level political argument into a national argument about rights and the law. For about 20 years after Roe, the Supreme Court revised its ruling. In general, the Court has emphasized the rights of the mother before viability and the rights of the fetus after viability. In addition, the courts have upheld state laws that place surmountable obstacles in the path of women seeking abortion. Since then, most Supreme Court members have emphasized the legal doctrine of stare decisis. This Latin phrase means that the Court will stand by the legal opinions of earlier cases. Sex Equals Property In the Griswold decision, the Supreme Court argued that some decisions are so private that people have to make them for themselves. The state should not regulate or determine them for people. Many of these decisions involve sex. If you go through a law book, especially an older law book, you will see that governments have been regulating sexual behavior for a long time. Some of these regulations have been based in tradition, some in religion, and some in property and inheritance. In England and the colonies, women gave their property to their husbands at marriage, and only children born to married couples could inherit property. Kissing Cousins The laws of Virginia prohibited second cousins from marrying each other because the Christian Bible condemned the practice. Divorces were forbidden for the same reason; the only way to get a divorce was for the state legislature to pass a special bill. Virginia also set minimum age limits on marriage and stated that "forced or fraudulent" marriages were not legally valid. Finally, only registered ministers of the Church of England could perform a legal marriage. Some things have changed a lot since then. The biggest changes are in divorce and property ownership. Starting in the 1820s, the states began to give married women control of their own property. And starting in the 1840s, states began to pass general divorce laws, setting conditions under which judges could legally divorce married couples. Other things have not changed much at all. States still prohibit plural marriage, underage marriage, and marriage between close relatives, although the age of marriage and degree of consanguinity vary from state to state. The general pattern over time has been for states to separate property and inheritance from marriage. State Intrusion? As part of the earlier pattern of regulating marriages, the colonies and early state governments passed laws criminalizing some forms of consensual sexual activity between adults in private. These laws remained in the books, and, in some cases, were even made stronger during the nineteenth and early twentieth centuries. During the late twentieth century, gay, lesbian, and transgender people began a movement to end discrimination based on sexual orientation, a movement you will learn more about later. As part of their movement, they sought to strike down laws that restricted their rights in several areas, including laws against some kinds of sexual conduct between consenting adults. They argued that sexual attraction was not a sin or abnormality and that it was both private and, to a large extent, beyond a person's control. In response, people who believed that sexuality was chosen and had moral consequences tried to strengthen the laws regulating intimate conduct. Other Privacy Rights The terrorist attacks of September 11, 2001, changed the way people looked at privacy rights. The government broadened its power to investigate suspected terrorists—tapping phones and monitoring American citizens. Some people consider these actions to be a reasonable way to protect the population, and others feel that their right to privacy is threatened without just cause. In December 2005, The New York Times broke the story of the government’s implementation of a wiretapping program used to eavesdrop on many thousands of Americans without a warrant. The government was using the program to listen in on the conversations of suspected terrorists, but since it was conducted without the knowledge of Congress, there was no way to ensure that the program was not being abused. The debate over the legality of this program is still going on, but the fact that many people are upset over this violation of privacy shows that people take this issue very seriously. Consider what might happen because of widespread wiretapping. If you were arguing this case in court, would you emphasize privacy rights or the Fourth Amendment protection against unreasonable searches? Judicial Activism and Judicial Restraint The controversies surrounding the right to privacy have led some Americans to accuse the Supreme Court of judicial activism. Judicial activism can only be measured by how far the Court has gone in changing the interpretation of the law from what the legislative branch intended, or from precedent. In contrast is the concept of judicial restraint, loosely defined as judges sticking very closely to the words of the Constitution, legislation, and precedent. At his confirmation hearing, Chief Justice John Roberts spoke in favor of judicial restraint: Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judicial Activism and Judicial Restraint Judicial activism is not a legal term. It was coined by people who opposed certain Court rulings. A classic example is the Roe decision. Opponents of abortion rights hold that, since there is no "right to abortion" explicitly listed in the Constitution, the Court was "active" in declaring that right, when it was not its role to do so. Many conservatives condemned the original Roe decision as judicial activism. The doctrine of stare decisis says that courts should avoid changing the existing interpretation of the law as much as possible. The 1992 decision in Planned Parenthood v. Casey explained that legalized abortion had been the law of the land for two decades; to overturn Roe would be a case of judicial activism. A Controversial America The controversial nature of privacy rights cases—birth control, abortion, tapping phone lines, and other emotionally charged issues—has brought a great deal of attention to the question of how far judges and justices should go in their rulings. Opponents of broad judicial interpretations call it judicial activism and make the point that judges aren't elected. They point out that it is the job of legislatures, not the courts, to make laws. Those who support strict construction of the Constitution favor narrow interpretation and adherence to original intent. Supporters of broad judicial interpretations point to the Ninth Amendment. They remind us that important court decisions have righted great wrongs, such as the case of Brown v. Board of Education, which declared segregated schools unconstitutional. There is no doubt that Americans disagree about some fundamental issues and about the way the courts handle these issues. The good news is that these disagreements have always been the way in the United States. The government is set up in a way that allows debate and changes in policy over time. Life, liberty, and the pursuit of happiness. Do those words sound familiar? Thomas Jefferson declared them to be "unalienable rights" in 1776 as part of the Declaration of Independence. He claimed that these rights were an essential part of the human condition. Unalienable rights have been around forever, or so Jefferson claimed. But most specific rights in the United States can be traced to a particular moment and a particular court case. Defining rights is an ever-evolving issue. Some rights are older than others, and some rights that don't currently exist may exist in the future. During the next few activities, you will learn what rights are, where rights come from, and the written origins of many of the rights of Americans. Many Americans did not like the proposed Constitution. This animation explains their biggest fear. The basic message of the Declaration of Independence is that the British government had become tyrannical. It was once a reasonable government, but then it imposed its power on the traditional liberties of the people and oppressed them. The American people decided that the best way to protect their rights was to add a bill of rights to the Constitution. It would clearly list their rights and give them a document to which they could appeal directly. Conditional Ratification Did you know that one important part of the Constitution was written by the citizens of the United States? That is how the Bill of Rights came about. The Constitution was written by a small group of leading politicians who met in secret in 1787. When they sent their work to the states, however, the people of the states had a chance to comment on the document. The people decided that the proposed Constitution needed a bill of rights. In fact, the Constitution would not have gotten enough votes to go into effect if the Federalists had not promised to add a bill of rights. Many states ratified conditionally. That is, they agreed to join the new union and accept the Constitution as their fundamental law on the condition that the Constitution be modified or amended. Then the ratification conventions put together lists of their desired amendments. Most of these involved adding a bill of rights. In the end, Congress had a list of more than 200 proposed amendments that had come from the states during ratification. James Madison distilled those documents into a list of 12 amendments and pushed them through Congress. Madison Goes to Work James Madison was a strong supporter of the Constitution. He wrote the first draft that the Constitutional Convention used when it wrote the document. He had led the debates at the convention, and he was a leading proponent of ratification. Once the Constitution was ratified, it was time for elections to the various positions in the new government. Patrick Henry, who had opposed ratification of the Constitution, worked to keep Madison out of the Senate and then used his powers as governor to support James Monroe against Madison for a seat in the House of Representatives. Madison won the election by promising that, if elected, he would make sure that Congress created the promised amendments to the U.S. Constitution. The first Congress had a lot to do. It was passing the laws and creating the institutions that would create a working government from the very general statements in the Constitution. Madison pressed his colleagues to make time in their schedule to consider the promised amendments. Madison Goes to Work As part of his effort, Madison took the lead in reading through all the various proposed amendments. He simplified them into 12 amendments and then worked out language that accurately summarized the intentions of the ratifying conventions. Some amendments came from state ratifying conventions. Others came from the newspapers, petitions, and even from letters sent to Madison during the election. The people wrote the amendments, but Madison edited their work. And, of course, the amendments were then rewritten by the House and Senate as they were debated. Finally, Congress approved the12 amendments and sent them to the states to be ratified. Ten of them were ratified within two years, and the Bill of Rights was added to the Constitution. Protecting You from Your Government The Bill of Rights is one of the most studied and admired pieces of writing in history. Remarkably, the Bill of Rights contains fewer than 500 words; it's shorter than a lot of the essays you have to write for school. And yet, these few words speak volumes about what America stands for and what Americans believe in. You should think of the Bill of Rights as a list of rights you have, of course, and you should also think of it as a kind of shield against your government. After all, the Bill of Rights was conceived and crafted for this very purpose. Thomas Jefferson stated: A bill of rights is what the people are entitled to against every government on earth, … and what no just government should refuse, or rest on inference. —Thomas Jefferson to James Madison, 1787 Noticed Jefferson said "against" the government. Also notice that he said it shouldn't "rest on inference," or be assumed. The Bill of Rights, therefore, is more than words on paper; it's a rock-solid guarantee. What do the landmark Supreme Court cases Miranda v. Arizona, Gitlow v. New York, Near v. Minnesota, and Griswold v. Connecticut all have in common? They all involve people suing state governments, and they all involve rights protected by the Bill of Rights. The Bill of Rights was originally intended to apply only to the federal government. The Fourteenth Amendment expanded some rights to cover state governments, too. Over the years, the courts have used the Fourteenth Amendment to expand most of the rights in the first eight amendments to apply to the states. Read on to learn more about the Fourteenth Amendment. One Amendment, Five Sections • • • • • The Fourteenth Amendment is long and complex. It consists of five sections. Section 1 defines citizenship and focuses on citizens' rights. This is the section that you will focus on in detail. Section 2 provides details for punishing states if they deny suffrage in certain situations. It has never been applied. Section 3 bars certain people who served in the Confederacy from holding public office. Section 4 guarantees that the federal government will pay its Civil War debts. Section 5 states that Congress can enforce the other four sections. • one Amendment, Five Sections In the discussion of liberties and rights, you will focus on Section 1 of the Fourteenth Amendment. Read it carefully here. Then you'll look at each part in more detail. • All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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. —Fourteenth Amendment, Section 1 • The Citizenship Clause In Dred Scott v. Sanford (1856), Chief Justice Taney ruled that people of African descent are not citizens and have "none of the rights or privileges" of citizenship. This decision made many Americans angry. The first section of the Fourteenth Amendment expressly overturns Taney’s ruling on citizenship. • All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. —Fourteenth Amendment, Section 1 • This is pretty straightforward. If someone is born in the United States, or naturalized, they are a citizen of the United States. The "born" part was especially important to African Americans who had been held in slavery. Newly freed by the Emancipation Proclamation, the Union victory in the Civil War, and the Thirteenth Amendment, which permanently abolished slavery, they were now declared to be official citizens of the United States. • The Privileges and Immunities Clause The second section of the Fourteenth Amendment might have prevented racial segregation and protected racial minorities from oppression. It never had a chance to go into effect. The Supreme Court killed it in 1873. • No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …. —Fourteenth Amendment, Section 1 • This clause means that states cannot deny equal rights (privileges) and protection under the law (immunities) to citizens. Like other parts of the Fourteenth Amendment, it was designed to protect people who were formerly held as slaves. Many legal scholars argue that Congress intended this clause to apply the protections of the Bill of Rights to the states. Instead, an early Supreme Court decision turned this part of the Fourteenth Amendment into a "practical nullity." The Privileges and Immunities Clause In 1873, the Supreme Court ruled in the Slaughterhouse Cases that the privileges and immunities clause applied to national citizenship only. People already had those protections under the Constitution, so the clause did not do anything and certainly did not apply to the states. The Due Process Clause … nor shall any State deprive any person of life, liberty, or property, without due process of law. —Fourteenth Amendment, Section 1 But wait—the Fifth Amendment already stated that no person shall be "deprived of life, liberty, or property, without due process of law." Why is the right to due process repeated here if it's already protected by the Fifth Amendment? The answer is that the Fifth Amendment refers to due process of law at the federal level, whereas the Fourteenth Amendment guarantees due process at the state level. In essence, this part of the Fourteenth Amendment is saying that the right to due process applies to state governments as well as to the federal government. Other than that, the courts have interpreted the due process clauses of the Fifth and Fourteenth Amendments identically. Over time, the Supreme Court has interpreted this part of the Fourteenth Amendment as placing limitations on state laws and legal proceedings in order to preserve the fairness, justice, and liberty promised by the Constitution. Click Lochner below to read about the right to contract and substantive due process. That clause of the Fourteenth Amendment was effectively destroyed by that decision. It has had no real effect on the rights of Americans since 1873. Substantive and Procedural Due Process The courts have divided due process into two separate concepts: procedural due process and substantive due process. Procedural due process is the promise of "fundamental fairness" in legal proceedings. It means that defendants have to be told about the charges against them and that they have the opportunity to be heard and defend themselves. It focuses on how laws are applied. Substantive due process is the promise of the "fundamental rights" that are "implicit in ordered society." That is close to the Federalists' original notion that people have civil rights because they belong to society and that it is impossible to list the rights of the people. You can think of substantive due process as asking if the purpose of a law is fair. People disagree about what is fair. Many decisions relying on substantive due process have led to controversy. Procedural Due Process Is the law clear? Substantive Due Process Is the law too strict? Is it too lenient? Does the defendant know the charges? Is the law applied to everyone? Can the defendant speak in his or her Does the law have a reasonable defense? purpose? Have the rules for evidence and testimony Does the law infringe on been followed? fundamental liberties? The Equal Protection Clause … nor deny to any person within its jurisdiction the equal protection of the laws. —Fourteenth Amendment, Section 1 The Fourteenth Amendment came about largely in response to the emancipation of enslaved people after the Union's victory in the Civil War. Many former Confederate states adopted socalled black codes after the war. These laws limited former slaves' ability to own property and to enter into legal contracts. Congress enacted the Civil Rights Act in 1866 in an attempt to grant "citizens of every race and color … full and equal benefit of all laws," but the former Confederate states did not support it. Congress used the Fourteenth Amendment to apply the concept of equal protection to the states. Its acceptance by the Southern states was made a condition for them to be readmitted to the Union. If a law is not applied to some people, they can claim rights under either the equal protection or due process clauses of the Fourteenth Amendment. The equal protection clause only affects the actions of government, not of private individuals or corporations. The courts have interpreted this clause very differently over the years. In 1896, the court ruled in Plessy v. Ferguson that separate accommodations for black and white Americans were constitutional if they were equal. In 1954, the court ruled in Brown v. Board of Education that separate educational facilities were always unequal. Although the ruling in the Brown case applied only to education, it nonetheless opened a door for the federal government to address the full spectrum of racial discrimination. Incorporation Current Supreme Court Justice David Souter called the Fourteenth Amendment "the most significant structural provision adopted since the original framing." He voiced that opinion because the restrictions in the Bill of Rights originally applied only to the federal government. Through the doctrine of incorporation, the Bill of Rights was applied to state governments as well. In other words, the Fourteenth Amendment means that state governments have to obey the limits laid out in the Bill of Rights. For example, the federal government cannot knock down your door without a warrant, search your house, and then charge you with a crime based on whatever it finds. Because of the incorporation doctrine, the same thing is true for state governments. Incorporation did not happen all at once. It was instead actuated slowly through a series of court decisions. The Fourteenth Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Defining Due Process Due process essentially means that the government must act fairly and in keeping with the law. The Fifth Amendment states that "No person shall … be deprived of life, liberty, or property, without due process of law." The phrase "due process" appears again in the Fourteenth Amendment, which has been interpreted as applying to the process of state and local governments. Originally, due process was purely about procedure; it was concerned with how laws were carried out and not with the content of the laws themselves. But carrying out laws fairly is worthless if the laws themselves are unfair. Toward the end of the nineteenth century, the Supreme Court began to address the idea that the law itself must be fair and operate according to established rules. In this way, substantive due process joined procedural due process in defining fair laws. Due Process and the Bill of Rights There are several key types of rights included in the rights of due process, each of these drawing upon one of the amendments contained in the Bill of Rights. Procedural due process emphasizes the way that government acts. For example, the right of eminent domain means that the government can take private property, but it has to follow a procedure and pay for what it takes. Similarly, police can search your property or person, but they have to have probable cause before they start to look. Police Power You have learned that one of the functions of government is to maintain order in society. To perform that function, the government has the right to control the actions of citizens in certain ways. This is known as police power. What the government can and cannot do under the provisions of police power is determined by the courts, which act to ensure that the rights of the government are in balance with the rights of citizens. In general, when conflict arises between the rights of individual citizens and the rights of the government to protect the general public, the general public comes first. The Exclusionary Rule It is important to maintain a balance between individual rights and the government's police power. You can see this balance in action if you look at two important Supreme Court decisions regarding the right against unlawful search and seizure. In 1961, the Supreme Court ruled in the case of Mapp v. Ohio. In this case, police entered a woman's home without a warrant because they were looking for evidence of illegal gambling at the residence. They found evidence of gambling, but they also searched the entire house and found pornography. The woman was convicted of misdemeanor gambling charges and much more serious felony pornography charges. The Supreme Court overturned the felony conviction on the grounds that the evidence had been obtained illegally. This case set a precedent that has come to be known as the exclusionary rule. Evidence of a crime that is found to have been obtained illegally, either through wrongful search and seizure or through an improperly conducted arrest, may be excluded from being used against the individual from whom the evidence was obtained Miranda Rights Remember the drug dealer? If you watch crime shows on TV, you've probably heard the police read people their rights. The Supreme Court requires these rights to be read every time an individual is placed under arrest. This is known as the Miranda rule, named after the 1966 case Miranda v. Arizona, in which a man confessed to a crime without being made aware of his right to remain silent and without being given an attorney. Just like evidence obtained in violation of the exclusionary rule, confessions that come about as a result of a police officer's failure to read the arrestee his or her Miranda rights may result in that testimony being thrown out. Cruel and Unusual Punishment When you hear or read the phrase "cruel and unusual punishment," what do you think of? The Eighth Amendment forbids "cruel and unusual punishments," but it doesn't specify what they are. In 1972, when the Supreme Court heard the case of Furman v. Georgia, it struck down all state laws allowing the death penalty. The Court didn’t take that action because it deemed the death penalty itself cruel and unusual. Instead, the Court objected to the way the death penalty was imposed. Of eligible cases, only certain defendants—often those who were poor or African American—were sentenced to death. Thus, Furman struck down the death penalty, not because it violated the Eighth Amendment but because of due process rights guaranteed by the Fifth and Fourteenth amendments. Because the courts had not administered it fairly, the Supreme Court ruled that the death penalty was a violation of due process and therefore unconstitutional. Four Principles for Defining Cruel and Unusual Punishment 1. The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," like torture. 2. . ". . . a severe punishment that is obviously inflicted in wholly arbitrary fashion . . ." 3. ". . . a severe punishment that is clearly and totally rejected throughout society . . ." 4. ". . . a severe punishment that is patently unnecessary . . ." The Death Penalty The Supreme Court has heard many cases that challenged the death penalty. The Court has consistently upheld that the death penalty, fairly applied, is a reasonable punishment under the Constitution. The Supreme Court's position has changed in some ways over the years. For example, some states passed laws under which certain crimes such as murder automatically carried a sentence of death. The Court has declared these laws unconstitutional. Some states have devised a two-stage process in capital cases; a trial to establish guilt and a hearing to decide whether the death penalty is warranted. This process was upheld by the Court. The Death Penalty How can a court decide who can be executed? Could a person be too young? In the case of Thompson v. Oklahoma (1988), a man who was 15 years old when he committed a murder was considered to have been too young to be executed. Mental illness is also a factor in assigning the death penalty. The Court has ruled that a person who was diagnosed clinically insane at the time the crime was committed may not be put to death, in Ford v. Wainwright (1986). The Court has even ruled that the effect a murderer's crime has had on the family of the victim may be a deciding factor on whether a death sentence can be handed down. Capital Punishment The death penalty is one of the more controversial aspects of the modern American criminal justice system. Conservative voters generally support the death penalty and tend to vote for politicians who promise to be tough on crime. Law enforcement officials have a mixed opinion of it; many feel that the deterrent effect is not worth the hassle. Defense attorneys and a substantial number of voters warn that the justice system is not perfect; innocent people are often wrongly convicted. History | U.S. Government & Politics | Explore | After Roe v. Wade Explore After Roe v. Wade Use the following questions to record and navigate through your findings. This will be a valuable resource when you prepare for the test. 1. Discuss the Supreme Court’s decisions in Webster v. Reproductive Services (1989) and Casey v. Planned Parenthood (1992). A. How did each case change or reinterpret the Roe v. Wade decision? B. How did each case uphold Roe v. Wade or leave that ruling unchanged? 2. Take a close look at the concurring and dissenting opinions in Casey v. Planned Parenthood and consider the information listed below. After your consideration, answer the questions on the following page. Casey v. Planned Parenthood was the first case challenging the Roe v. Wade decision, because two liberal judges were replaced with conservative appointments (Justices Souter and Thomas). Eight of the justices serving on the Supreme Court at the time of this ruling were conservative Republican appointments. The only justice on the Court who had been appointed by a Democrat was Justice White, who had not been a supporter of the Roe decision. Justices Blackmun and Stevens were supporters of the Roe decision. © 2013, 2009 K12 Inc. All rights reserved. Copying or distributing without K12’s written consent is prohibited. Page 1 of 2 History | U.S. Government & Politics | Explore | After Roe v. Wade Many people believed that such a conservative court would overturn Roe v. Wade completely, but this did not occur. Based on this information, are you surprised by the Court’s decision in Casey v. Planned Parenthood? Do you believe that any of the justices could be accused of judicial activism based on their written opinions in this case? Include relevant quotes from the opinions in the case, if you like. Your Score © 2013, 2009 K12 Inc. All rights reserved. Copying or distributing without K12’s written consent is prohibited. ___ of 10 Page 2 of 2 History | U.S. Government & Politics | Practice | Procedure & Substance Name: Date: Practice Procedure and Substance Use the following questions to increase your understanding of the concepts learned in this unit. This will be a valuable resource when you prepare for the test. (5 points) 1. What does it mean to say that a given right falls within the penumbra of a specific constitutional protection? Score Answer: (5 points) 2. What is the difference between substantive due process and procedural due process? Score Answer: (10 points) 3. There has always been controversy surrounding a woman’s right to have an abortion. Give each side of the argument and briefly discuss your opinion on the subject. Score Answer: (5 points) 4. Why are the different versions of the incorporation doctrine so important for the rights of privacy and due process? Score Answer: (5 points) 5. Define police power and explain how it occasionally overrules individuals’ rights to privacy. Score Answer: Your Score © 2013, 2009 K12 Inc. All rights reserved. Copying or distributing without K12’s written consent is prohibited. ___ of 30 Page 1 of 1
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