Federalism Key Terms

Free Exercise Clause- Prohibits government from interfering with the practice of religion. The free exercise clause prohibits the abridgment of the citizens’ freedom to worship, or not to worship, as they please.
McCarthyism- Public accusation of Communist sympathies: the practice of publicly accusing somebody, especially somebody in government or the media, of subversive or Communist activities or sympathies, especially without real evidence to substantiate this.
Prior Restraint- A government preventing material from being published; censorship; unconstitutional. It is censorship imposed, usually by a government, on expression before the expression actually takes place.
Libel- A false and malicious published statement that damages somebody's reputation.
Freedom of Expression- The political right to communicate one's opinions and ideas using one's body and property to anyone who is willing to receive them.
Exclusionary Rule- Law concerning evidence: a law that prevents illegally obtained evidence from being used in a criminal trial.
Good-Faith Exception- allows evidence collected in violation of privacy rights as interpreted from the Fourth Amendment to be admitted at trial if police officers acting in good faith (bona fides) relied upon a defective search warrant — that is, they had reason to believe their actions were legal.
Probable Cause- Sufficient reason to arrest somebody: sufficient reason to believe that an arrest or search of a suspect is warranted.
Freedom of Religion- A principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. Considered by many people and nations to be a fundamental human right.
Symbolic Speech- A legal term in United States law used to describe actions that purposefully and discernibly convey a particular message or statement to those viewing it.[
Clear and Present Danger Test- Was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press or assembly. "Clear and present danger" became both a public metaphor for First Amendment speech and a standard test in cases before the Court where a United States law limits a citizen's First Amendment rights; the law is deemed to be constitutional if it can be shown that the language it prohibits poses a "clear and present danger".
Establishment Clause- “Congress shall make no law respecting the establishment of religion…” Thomas Jefferson argued that the establishment clause forbid not just favoritism but any support for religion at all.
Due Process Clause- The Fifth and Fourteenth Amendments to the United States Constitution contain a Due Process Clause. Due process deals with the administration of justice and thus the Due Process Clause acts as a safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law.
Right to Privacy- A human right and an element of various legal traditions which may restrain both government and private party action that threatens the privacy of individuals.
Plea Bargaining- An agreement in a criminal case between the prosecutor and defendant whereby the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor.
Commercial Speech- Speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product.
Self-Incrimination- Implication of own guilt: speech or action that suggests your own guilt, especially during court testimony.
Search Warrant- Court order authorizing search of property: a court order authorizing entry to somebody's property to look for unlawful possessions.
Incorporation Doctrine- The process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to 1925, the Bill of Rights was held only to apply to the federal government. Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments.

Key Court Cases:
Lemon v. Kurtsman- The cases involved controversies over laws in Pennsylvania and Rhode Island. Each statute made aid available to "church-related educational institutions." The essential question remained, “Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "church- related educational institutions"? Yes, the Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs.
Reynolds v. US- A Supreme Court of the United States case that held that religious duty was not a defense to a criminal indictment. Reynolds was the first Supreme Court opinion to address the Impartial Jury and the Confrontation Clauses of the Sixth Amendment. Reynolds, a secretary in the office of the President of the Church, agreed to serve as the defendant, then provided the attorney numerous witnesses who could testify of his being married to two wives, and was indicted for bigamy by a grand jury on October 23, 1874. In 1875, Reynolds was convicted and sentenced to two years hard labor in prison and a fine of five hundred dollars. The Court affirmed Reynolds’s conviction unanimously.
Everson v. Board of Education-A New Jersey law allowed reimbursements of money to parents who sent their children to school on buses operated by the public transportation system. Children who attended Catholic schools also qualified for this transportation subsidy. The presiding question was, “Did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment?” No. A divided Court held that the law did not violate the Constitution. It was simply a law enacted as a "general program" to assist parents of all religions with getting their children to school.
Schenk v. US- A United States Supreme Court decision concerning enforcement of the Espionage Act of 1917 during World War I. Schenck v. United States is the first in a line of Supreme Court Cases defining the modern understanding of the First Amendment. A unanimous Supreme Court, in a famous opinion by Justice Oliver Wendell Holmes, Jr., concluded that defendants who distributed leaflets to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense. In other words, the court held, the circumstances of wartime permit greater restrictions on free speech than would be allowed during peacetime.
Gitlow v. New York- Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). The court decided that on the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger.
Dennis v. US- Raymond Dennis and others were members of the Communist Party; they were also officers and members of the International Union of Mine, Mill, and Smelter Workers. They filed false affidavits between 1949 and 1955 to satisfy the stipulations of 9(h) of the National Labor Relations Act as amended by the Taft-Hartley Act, which required all union officers to submit non-Communist affidavits. There were three primary questions in the case which included, “Does the indictment charge a conspiracy to defraud the United States Government consistent with 18 U.S.C. 371, Is section 9(h) of the Taft- Hartley Act a bill of attainder in violation of Article I, Section 9, Clause 3 of the U.S. Constitution, and did the trial court err in denying the defense's request for access to grand jury testimony of prosecution witnesses or in camera inspection of the testimony?” In a 7-2 decision, the Supreme Court held that the indictment properly charged a conspiracy to defraud the United States Government under 18 U.S.C. 371. The majority opinion, authored by Justice Abe Fortas, argued that the conspiracy of filing the false affidavits was intentional and that the events of filing the affidavits and using the NLRB facilities together were a “concert of action” with the purpose of defrauding the Government.
Roth v. US- Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. The question remained, “Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment?” In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance."
Mapp v. Ohio- On May 23, 1957, police officers in a Cleveland, Ohio suburb received information that a suspect in a bombing case, as well as some illegal betting equipment, might be found in the home of Mapp. Three officers went to the home and asked for permission to enter, but Mapp refused to admit them without a search warrant. Two officers left, and one remained. Three hours later, the two returned with several other officers. Brandishing a random piece of paper, they broke in the door. Mapp asked to see the “warrant” and took it from an officer, putting it in her dress. The question remained, “Were the confiscated materials protected by the First Amendment?” The United States Supreme Court decided that evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures," may not be used in state law criminal prosecutions in state courts, as well, as had previously been the law, as in federal criminal law prosecutions in federal courts.
Engle v. Vitale- The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The question in the case was, “Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment?” The Court decided that, “Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York officially approved religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which had traditionally been a part of public ceremonies.”
Edwards v. South Carolina- The 187 petitioners in this case, all of whom were black, organized a march to the South Carolina State House grounds in which small groups of fifteen would walk in an open public area protesting the policies of segregation in their state. The march was peaceful, did not block pedestrian or vehicular traffic, and was conducted in an orderly fashion on public property. A group of approximately thirty police officers confronted the group and ordered its members to disperse or to submit to arrest. The question was, “Did the arrests and convictions of the marchers violate their freedom of speech, assembly, and petition for redress of their grievances as protected by the First and Fourteenth Amendments?” The Court held that the arrests and convictions violated the rights of the marchers. They were convicted of an offense which the South Carolina Supreme Court, in upholding the convictions, described as "not susceptible of exact definition."
Abington v. Schemp- The Abington case concerns Bible-reading in Pennsylvania public schools. At the beginning of the school day, students who attended public schools in the state of Pennsylvania were required to read at least ten verses from the Bible. After completing these readings, school authorities required all Abington Township students to recite the Lord's Prayer. Students could be excluded from these exercises by a written note from their parents to the school. The question remained, “Did the Pennsylvania law and Abington's policy, requiring public school students to participate in classroom religious exercises, violate the religious freedom of students as protected by the First and Fourteenth Amendments?” The Court found such a violation. The required activities encroached on both the Free Exercise Clause and the Establishment Clause of the First Amendment since the readings and recitations were essentially religious ceremonies and were "intended by the State to be so.
Escobedo v. Illinois- Danny Escobedo was arrested and taken to a police station for questioning. Over several hours, the police refused his repeated requests to see his lawyer. Escobedo's lawyer sought unsuccessfully to consult with his client. Escobedo subsequently confessed to murder. The question stood, “Was Escobedo denied the right to counsel as guaranteed by the Sixth Amendment?” Yes. Justice Goldberg, in his majority opinion, spoke for the first time of "an absolute right to remain silent." Escobedo had not been adequately informed of his constitutional right to remain silent rather than to be forced to incriminate himself.
Miranda v. Arizona- The Court was called upon to consider the constitutionality of a number of instances, ruled on jointly, in which defendants were questioned "while in custody or otherwise deprived of [their] freedom in any significant way." In none of the cases were suspects given warnings of their rights at the outset of their interrogation. The question stood, “Does the police practice of interrogating individuals without notifying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment?” The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards "effective to secure the privilege against self- incrimination." Comparatively, the Court specifically outlined the necessary aspects of police warnings to suspects, including warnings of the right to remain silent and the right to have counsel present during interrogations.
Walz v. Tax Commission- Frederick Walz, the owner of real estate in Richmond County, New York, brought suit against the New York City Tax Commission, challenging property tax exemptions for churches. Walz alleged that the exemptions forced him, as a taxpayer, to indirectly contribute to those churches. The question stood, “Did the property tax exemptions violate the Establishment Clause of the First Amendment?” In a 7-to-1 decision, the Court held that the exemptions did not violate the Establishment Clause. The Court held that the purpose of the exemptions was to neither advance nor inhibit religion; no one particular church or religious group had been singled out to receive tax exempt status.
Wisconsin v. Yoder- Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. The question remained, “Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons?” In a unanimous decision, the Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade.
Wallace v. Jaffree- An Alabama law authorized teachers to conduct regular religious prayer services and activities in school classrooms during the school day. Three of Jaffree's children attended public schools in Mobile. The presiding question remained, “Did Alabama law violate the First Amendment's Establishment Clause?” The Court determined the constitutionality of Alabama's prayer and meditation statute by applying the secular purpose test, which asked if the state's actual purpose was to endorse or disapprove of religion. The Court held that Alabama's passage of the prayer and meditation statute was not only a deviation from the state's duty to maintain absolute neutrality toward religion, but was an affirmative endorsement of religion.
US v. Leon- On August 1981, police in Burbank, California received a tip identifying Patsy Stewart and Armando Sanchez as drug dealers. Police began surveillance of their homes and followed leads based on the cars that frequented the residences. The police identified Ricardo Del Castillo and Alberto Leon as also being involved in the operation. Based on this surveillance and information from a second informant, a detective wrote an affidavit and a judge issued a search warrant. The police conducted the search, but the search warrant was later found to be invalid because the police lacked the probable cause for a warrant to be issued in the first place. Justice Byron White stated that the Court has previously defined the limits of the exclusionary rule and that there is therefore good reason to do so in this case. The exclusionary rule was designed to deter unlawful police action, not punish the errors of magistrates. There is no evidence that judges and magistrates are more likely to ignore suspects' Fourth Amendment rights. The Supreme Court of the United States created the "good faith" exception to the exclusionary rule.
Texas v. Johnson- In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. The question was, “Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?” In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature.
Roe v. Wade- Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the constitutional hook of her argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her constitutional argument in the second round. Her new opponent -- Robert Flowers -- came under strong questioning from Justices Potter Stewart and Thurgood Marshall. The question stood, “Does the Constitution embrace a woman's right to terminate her pregnancy by abortion?” The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment.
Webster v. Reproductive Services- In 1986, the state of Missouri enacted legislation that placed a number of restrictions on abortions. The statute's preamble indicated that "[t]he life of each human being begins at conception," and the law codified the following restrictions: public employees and public facilities were not to be used in performing or assisting abortions unnecessary to save the mother's life; encouragement and counseling to have abortions was prohibited; and physicians were to perform viability tests upon women in their twentieth (or more) week of pregnancy. Lower courts struck down the restrictions. The presiding question was, “Did the Missouri restrictions unconstitutionally infringe upon the right to privacy or the Equal Protection Clause of the Fourteenth Amendment?” In a controversial and highly fractured decision, the Court held that none of the challenged provisions of the Missouri legislation were unconstitutional.
Griswold v. Connecticut- Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counselling, and other medical treatment, to married persons for purposes of preventing conception. The question remained, “Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives?” Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.
Yates v. US- Fourteen lower echelon officials of the Communist Party USA (CPUSA) were charged with violating the Smith Act by being members of the CPUSA in California. The Smith Act made it unlawful to advocate or organize the destruction or overthrow of any government in the United States by force. The appellants claimed that the Communist Party was engaged in passive political activities and that any violation of the Smith Act must involve active attempts to overthrow the government. The Supreme Court of the United States ruled 6–1 to overturn the convictions. It construed the Smith Act narrowly, stating that the term "organize" meant to form an organization, not to take action on behalf of an organization. The Court drew a distinction between actual advocacy to action and mere belief. The Court ruled that the Smith Act did not prohibit "advocacy of forcible overthrow of the government as an abstract doctrine."