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THE JUDICIAL BRANCHUNIT 7
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THE NATIONAL JUDICIARY
UNIT 7, NOTES 1
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COURT ORIGINS o Under the Articles of ________________, there was no
_________ court systemo Laws were _________________ each state
o _______________ between states or people from different states were decided in one of those states, and the other state usually ignored the _____________
o _______________ decided we must have a court system in the Constitution
o We find the ________________ of our courts in Article _____ of the Constitution
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DUAL COURT SYSTEM We have a dual court system- two _________ court
systems a national ___________ and each state has its own court
system ________ courts hear most _________
_______________ creates the Supreme Court and leaves it to Congress to create the _______ of the national (federal) courts = inferior courts those __________ the Supreme Court
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JURISDICTION• Federal _________ have jurisdiction (authority to hear a
case)• They have _________________ to hear a case because of
2 reasons: 1) Subject Matter
if it pertains to the _______________ or application of any part of the Constitution
2) Parties Involved if the U.S. is ____________ or its offices or agencies, an
__________________, or a state is suing another state
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TYPES OF JURISDICTION☺ Exclusive jurisdiction = case can _______ be heard in
federal courts ☺ ex. Person __________ with a federal crime = tax evasion
☺ Concurrent jurisdiction = cases may be ________ in federal or state courts ☺ ex. __________ involving people from different _______
☺ Original jurisdiction = ________ which hears the case first☺ Appellate jurisdiction = court that ________ case on
appeal
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JUDICIAL RESTRAINT AND JUDICIAL ACTIVISM The __________ often shape public
policy – when they rule they are making “________”
We find judges who either __________ judicial restraint or judicial ____________
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JUDICIAL RESTRAINTBelieve that the _________ should decide cases based on the original intent of the __________________ and on precedent (previous decisions on similar cases)They do not ____________ judges should make laws
JUDICIAL ACTIVISM Believe that the
courts should rule based on how the law is ____________ today and in the current conditions – these __________ tend to make decisions that will have the effect of “________”
EX: Roe v. Wade, Brown v. Board of Education
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FEDERAL JUDGES President appoints all ____________ judges – Senate
must _____________ Many times federal judges must interpret a ________ of
the Constitution or an act of Congress when deciding a ________ So they are often deciding on __________ of public policy EX - ___________ marijuana
Therefore the courts __________ public policy – so a _____________ wants people in the courts who have the same ideals he does
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TERMSo Supreme Court and ____________ federal court judges are
appointed for __________ or until they retire or _________o They may only be removed through __________________o They are given these _________ for so long so that they
can rule _______________ to the Constitution o They don’t have to _________ about job security or being
re-elected, so they can decide a case how they really feel
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THE INFERIOR COURTS _______ states divided into ______ federal judicial
districts, each with its own federal court Each ________ has at least one, some states more than
one Court of Appeals = “_______________” to the Supreme
Court Relieves much of the ____________ of caseload for the
SC by ______________ out cases Appellate Court = a court having ________________ to
review cases and issues that were originally tried in lower courts If you don’t _________ with you ruling you may appeal
your case to this court They will either agree or turn over the ___________ courts
__________ and the case may be sent up to the SC
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THE SUPREME COURT Only court created in the
Constitution = ___________ Made up of Chief Justice and 8
Associate Justices Chief Justice _______________
Highest court in the land – final answer to ____________ of federal law
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JUDICIAL REVIEWo SC has the power of judicial review = power to decide
whether an act of government is _____________________ o Looks at _______________, executive, and judicial acts
o Power of judicial review established in Marbury v. Madisono Important because this upheld that the Constitution was
the _______________ law of the land and that _____ legislative acts could be above it
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HOW CASES REACH THE COURT Thousands of cases are _____________ to the SC each
year, but they only hear a few ________________ They select which they will hear according to rule of four
At least __________ of the nine justices must agree that case needs to be _________
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HOW THE COURT OPERATESo Consider cases on a _________ week cycle
o Hear oral arguments for two weeks, then __________ to consider those cases for two weeks
o Briefs = written documents ______________ the case; filed before the case is heard o Contains ____________ information about the case and
the lower courts decisionso Justices meet in _________________ to consider cases
o Chief Justice presides – he speaks first and indicates how he plans to _________, then each associate does the same, in order of seniority
o Then they ___________ the ________
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OPINIONS OF THE COURT Majority decision – the ____________ of the court that
most __________ vote for, this side wins Minority decision – the ________ of those who _________
win Chief Justice ___________ the writing of ______________ Majority opinion (Court’s Decision) – written by the Chief
Justice if he is in the ______________, otherwise he assigns it to someone else Explain their _____________ and the reasoning behind it
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PRECEDENT Sets a precedent – ____________ for other courts to
follow when similar cases arise in lower ____________ A dissenting opinion must also be written by
_____________ in the minority – explains their ______________
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PROMINENT MEMBERS OF THE SCJohn ________ – _______ Supreme Court Chief Justice John Marshall – longest ___________ chief justice – Almost 35 yearsRoger Taney – first ___________________ to serve as chief justiceWilliam Howard Taft – the only ______________ to serve as chief justice__________________ – the Warren CourtThurgood Marshall – first ________________________ to serve on the SCSandra Day O’Conner – First ____________ on the court
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CIVIL LIBERTIES
UNIT 7, NOTES 2
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THE UNALIENABLE RIGHTS We have always fought for our “inalienable rights”
The right to __________, liberty, and the pursuit of _______________ The Constitution didn’t originally contain those rights of the people
Had to be _________ through the __________ of _____________ Const. guarantees both rights and liberties to American people
There is a _______________ between the two Civil Rights = ________________ acts of government that help make constitutional guarantees
EX: CR Act of 1965 – helped ________________ the 14th, 15th and 19th Amendments – further demonstrated there should be no ____________________ based on race or gender
Civil Liberties = protections _____________ acts of the government Guarantees safety of person, _____________, property from the government EX: gov. can’t __________ free speech
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INDIVIDUAL RIGHTS Constitution guarantees ___________ to everyone, but still NO ONE has the right to do whatever they _________
EX: free speech – Can’t yell _______ in a ____________ theater (Justice Oliver Wendell Holmes)
Sometimes ____________ Conflict = Sheppard v. Maxwell __________ to a fair trial vs. Freedom of press SC ruled __________ trial over press
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FEDERALISM ISSUE B of R only ___________ to National Gov. Does NOT mean states can deny people of these rights
Thanks to the 14th Amendment’s _________________ Clause = “No state shall…deprive any person of life, liberty, or _______________ without the due process of law”
Can’t deny any right that is considered basic or ____________ to the American concept of liberty
But what rights are __________ and essential? Depends on the case SC has held that most _______________ of the B of R fall under due process, so are covered by 14th Amendment = must _________ to states
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FEDERALISM ISSUE, CONT. Use the process of ____________________
SC has ___________/incorporated B of R guarantees into due process
EX: Gitlow v. New York SC stated that right to free speech ________ under due process, so
the state of NY couldn’t deny people of it Constitution _____________ many rights, but not all – there is no “_______” 9th Amendment takes care of the rights not _____________
Says there are certain rights that are “____________ by the people”
Most often the right to _____________ has fallen under this amendment
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RELIGIOUS FREEDOM• Freedom of _________________ is protected by our 1st
Amendment rights• 1st and 14th Amendments set out 2 guarantees for our
religious freedom: _______________… 1. An “___________________ of religion” (Establishment Clause) 2. Any interference of the government in the “free _______________” of religion (Free Exercise Clause)
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ESTABLISHMET CLAUSEo Sets up “wall of ________________” between church and stateo Prohibits the establishment of a church _______________ supported by the national or state governmentso BUT that doesn’t mean they are ___________ separateo Government does many things to encourage religion
o EX: Churches do not have to pay _________; many government officials take __________ and swear before God; _____________ of Allegiance
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ESTABLISHMENT CLAUSE CONT. Meaning of the clause is __________ – we don’t know exactly how high that wall of separation is Many times very ___________________ Most cases involving Est. Clause are about religion and __________________ (esp. prayer in schools) SC has struck down many cases in which ______________ require recitation of prayers
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EQUAL ACCESS ACT Equal Access Act – any public high school that received
______________ funds must allow student religious groups to meet on same terms as other ________________
This is because _________, etc. are voluntary
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OTHER ESTABLISHMENT CASESo Religious Displays – SC allowed city in Rhode Island to
include Christian _______________ scene as long as non-Christian symbols were _____________
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FREE EXERCISE CLAUSE Guarantees that each person has the right to
______________ and believe whatever religion they want HOWEVER do NOT have the right to violate any
____________, offend public morals, or threaten _________ of community
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FREE EXERCISE CLAUSE, CONT. o Over years SC has _______________ church practices that
involved:o Not allowing children to ________________o Laws that require _______________ to close on Sundays
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FREEDOM AND SPEECH AND PRESS The guarantee of free speech and press in the 1st
Amendment has two purposes…1) to guarantee each person the right of free
expression in ____________ and ___________ word and other means of communication
2) guarantee to all persons a full, wide-ranging discussion of ____________ affairs
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SPEECH AND PRESS CONT. Intended to protect the expression of
________________ views BUT no person has unlimited rights to this
(“________” in theater) Cannot ___________ (false or malicious use of
printed word) or ___________ (false or malicious use of spoken word)
Can’t use words to prompt others to ____________ a crime (riot, overthrow gov.)
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SEDITIOUS SPEECH Seditious speech – advocating or _____________
conduct that would _______________ the government by force
“__________ and present danger” test – Justice Oliver Wendell Holmes – if speech or press creates a clear and present danger that it may bring about an _________, then Cong. and the ___________ have a right to prevent it
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PRIOR RESTRAINTo Constitution allows _________________ to punish
acts after they have occurred, but gov. cannot place prior restraint on them o SC says that with free expression, gov. can’t stop
something from being ____________, can only censor/punish it afterwards
o NY Times v. US – NY times had ____________ of classified _______________ (Pentagon Papers), US Dept. of Defense wanted to stop the newspaper from publishing themo SC said no, they didn’t ________ a clear threat to US
security
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MEDIAo News reporters __________ they must have
confidentiality to protest their sources in order to protect free _________
o Shield Laws – give that ________________
Radio and TVo Regulated by gov. because they use “___________
property” (airwaves) to present their messageo FCC (Federal Communications Commission)
___________o SC says that the _____________ are a right of the
listeners and viewers and not the broadcasters
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SYMBOLIC SPEECHo SC believes some conduct is done to express an
__________ (symbols, gestures, facial expressions, etc.)
o Picketing – _____________ of business by workers on strike – as long as its peaceful its allowed
o Tinker v. Des Moines – students wore black armbands to ______________ Vietnam War and were suspended o SC said school was _____________
o Flag Burning – very controversial o SC has twice ruled that this is ____________ speech
and is allowed
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FREEDOM OF ASSEMBLY AND PETITION Constitution guarantees the right to peaceably assemble
and ____________ the government concerning grievances Protects the right to _________ views on public matters and
to influence public policy Can be through political ___________, interest groups,
organizations Right to bring views to the attention of public officials by
means of written _____________, letters, advertisements, ____________, marches, etc.
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FREEDOM OF ASSEMBLY Government can make and enforce _______________ rules
concerning the time, place, and manner of assemblies EX: SC upheld law that stated groups couldn’t make
noise/cause ____________ near a school if it would disrupt regular school activity
But gov. rules must be content neutral – can regulate time/place/manner but cannot regulate on the __________ of what might be said (if neo-Nazis want to march, they can) Most cases involve public _________________ which usually
conflict with the use of public streets or other facilities SC has upheld laws that require advance notice and
___________ in for demonstrations in public places (if you need streets blocked off etc.)
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FREEDOM OF ASSOCIATIONo Freedom of Association – also considered to be protected
by freedom of assembly right to ______________ with any group you wish
o NAACP v. Alabama – state law required that NAACP turn over the ______________ of all its members in the state o Refused, so ___________ steeplyo SC said AL wrong – there was no reason that the state
needed to know who was a ______________
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CIVIL LIBERTIES: PROTECTING INDIVIDUALS RIGHTS
UNIT 7, NOTES 3
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DUE PROCESSo There are 2 Due Process ___________ in the Constitutiono 5th Amendment – Fed. Gov. can’t ________ person of life,
liberty, ___________ without due process of lawo 14th Amendment – places those same _____________ on
states
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DUE PROCESSo Supreme Court ___________ to give due process an exact
_________________ o They find its meaning on a case-by-case _________
o Ultimately means that whatever government does, it must act ____________ and follow established rules o Must be ____________________
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POLICE POWER• 10th Amendment _____________ powers for the _________• This includes broad police power
• Authority of the state to act to protect and ____________ public health, safety, morals, and general welfare of its ____________
• Many times this ____________ with civil rights• Courts must find balance between needs of ____________
and individual rights• Ex: cops don’t have to have ____________ for drunk drivers
• Courts have almost always decided on side of __________ when it comes to this = major public safety
• Other examples: states can limit ____________ sales, make pollution laws, ______________ laws, school attendance laws, regulate gambling, etc.
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PRIVACYo Due process also includes the right to privacy = “to be
free from unwanted ______________ into one’s privacy”o Not specifically mentioned, but we consider it a
_________________ right (5th, 14th, and 9th Amendments)o Most controversial __________________ of privacy rights
= Roe vs. Wadeo SC struck down TX law that made abortion ____________o 14th Amendment due process = right to privacy for a woman
to do what _______ wants with her __________
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RIGHT TO KEEP AND BEAR ARMSo 2nd Amendment – controversial
because many __________ it should extend to the individuals right to own/carry a gun
o SC not clear on this one – usually __________ the rights of _________ to invoke gun control
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SECURITY OF HOME AND PERSON 3rd Amendment = ___________
Troops Not ______________ today 4th Amendment = Illegal search
and __________ Designed to _________ use of
___________ warrants
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PROBABLE CAUSEo Probable Cause – police have no general right to
_________ for evidence or seize _____________ or persons
o Proper ____________ must be issued by a court – obtained with probable __________o Reasonable __________________ of a crime
o Police don’t always have to have warrant – if evidence is in “___________________”
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ARRESTSo Arrests – most take place without a _______________, but
still must have ________________ causeo Police have right to search any area where person may
____________ a weapono Courts have had trouble applying 4th amendment to cars =
but because they are a “________________ scene of crime” have more power to search without a warrant
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EXCLUSIONARY RULE Exclusionary Rule –
prohibits __________ evidence = evidence seized illegally (without a warrant) is ____________ from trial
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RIGHTS OF THE ACCUSEDo Must be considered ________________ until proven
____________ and treated with fair and lawful means throughout the process
o writ of habeas corpus (to have the body) = prevents ____________ arrests and imprisonments o A prisoner must be brought before a court and the officer
must _____________ with reason why the prisoner should not be released
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GRAND JURYo Provided by 5th Amendmento Device by which a person accused of a ____________
crime is indicted (formally charged with the crime)o 16 to 23 peopleo _______ of them must vote for a trial for the person to be
indicted; ___________ is then held to be prosecuted o Done in secret proceedings, only the prosecution is presento Meant to protect against overzealous __________________
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DOUBLE JEOPARDY 5th amendment Can’t be tried for the same crime
__________ If the jury _________ makes a
decision (hung) then there is no jeopardy (like trial __________ happened)
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SELF-INCRIMINATION 5th Amendment – don’t have to
be a witness ____________ yourself
Burden of proof is on the prosecution – defendant doesn’t have to prove he is _____________
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SPEEDY AND PUBLIC TRIALS 6th Amendment Ensure government won’t
________ and leave you in jail Speedy Trial Act of 1974 – length
between arrest and trial can’t be more than _______ days
Public trial – prevent any _________________ to defendant
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RIGHTS TO ADEQUATE DEFENSEo 6th Amendment – right to best
_____________ defenseo Gideon v. Wainwright = must have
____________ if can’t _________ one
o Escobedo v. Illinois – if accused asks for __________ during questioning, one must be provided
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MIRANDA V. ARIZONA SC invoked the Miranda Rule – before police
can question a ______________, they must be:1. Told of the right to remain ______________2. Warned anything they say can be used at
trial3. Have a _____________ to an attorney4. If can’t afford an ____________ the state will
provide one5. May bring police questioning to an _________
at any time
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8TH AMENDMENTo Bail or a fine for a case must be ________________ in
relation to the seriousness of the crimeo Bail = money the accused must post (deposit to court) as
a _________________ that he will appear in court; if bail is posted, accused may go homeo Why? = belief that people should not be jailed until found
__________, and its easier for the defendant to prepare for trial outside of __________
o But not everyone is automatically entitled to bail – Const. only says the amount won’t be _______________
o Can be denied bail if there is good reason to believe the person may not _________ for trail or if the person is deemed very __________________
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8TH AMENDMENTo Cruel and ______________ punishment may not be usedo This is to prevent “barbaric tortures”o SC has only heard a few cases – all __________ with capital
punishmento Capital punishment = punishment by ____________o SC has upheld state laws that require a 2 trial systemo One to determine guilt or innocence and the other to determine if
the ____________ warrants the death penaltyoOnly for crimes resulting in the __________ of the
______________oMany have appealed to the SC, but they have ___________
found that the death penalty, if applied fairly, is ___________________