Incorporation Doctrine: an interpretation of the Const holding that the due process clause of the 14thamend requires state and local govts guarantee the rights stated in the B of RB.Selective Incorporation and Fundamental FreedomsNot all rights in the B of R guaranteed/applicable to states instead the court has used the process of selective incorporation to limit the rights of states by protecting against abridgment of fundamental freedoms.Selective Incorporation: judicial doctrine whereby most, but not all, protections found in the B of R are made applicable to the states via the 14thamendFundamental freedoms:those rights defined by the Court as essential to order, liberty, and justice and therefore entitled to the highest standard review (ex: speech, press, assembly are essential; housing soldiers and jury trials are not)II.First Amendment Guarantees: Freedom of Religion (4.2)Separation of church and state; high wall btwnThomas Jefferson’s ideaSup Ct has noted a difference in two concepts “freedom to believe and freedom to act.” The first is absolute, but in the nature of things, the second cannot be. Conduct remains subject to regulation of society.” (human sacrifice is not allowed, the belief in it is.)A.Establishment Clause: directs the nat’l govt not to sanction an official religionLemon test: three-part test created by the Sup Ct for examining the constitutionality of religious establishment issues. oStates that a practice/policy is const if:1.Has legitimate secular purpose2.Neither advances nor inhibits religion; and,3.Does not foster an excessive govt entanglement with religion.Engel v Vitale (1962): prayer in school is unconstitutional2000, Court ruled that student-led, student-initiated prayer at high school football games violated establishment clauseBut the court permits government to use vouchers to attend private or religious schools, student fees at public universities to fund religious organizations (providing the allow members of multiple faithsB.Free Exercise Clause: prohibits the US govt from interfering with a citizen’s rightto practice his or her religion ( is not absolute)Protects the right to believe and not believeGovt interests can outweigh free exercise rights in some situations (security reasons being the main one)oRestriction of religious practices of Muslim inmates.Issues over: hallucinogenic substances, polygamy, req’d contraceptive coverage, uncommon religionsIII.First Amendment Guarantees: Freedoms of Speech, Press, Assembly, and Petition (4.3)Some First Amendment rights have historically been set aside to accommodate the needs of the government during times of war. This section will provide the background about the freedom of the press, speech, and assembly and petition.A.Freedom of Speech and the PressDemocracy depends on free exchange of ideas; very importantPrior restraint: const’l doctrine that prevents the govt from prohibiting speech or publication before the fact (the 1stamend was thought to protect against this)
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- Fall '17
- Alicia Andreatta
- First Amendment to the United States Constitution