Notes
Incorporation
- The Bill of Rights first limited only the national government. The 14th Amendment's due process clause lets the Court apply most rights to the states through selective incorporation (Gitlow, 1925; McDonald, 2010).
Religion
- Establishment clause: no state-sponsored prayer in public schools (Engel v. Vitale, 1962).
- Free exercise clause: protects religious practice (Wisconsin v. Yoder, 1972).
Speech and press
- Schenck (clear and present danger) was replaced by Brandenburg (imminent lawless action).
- Symbolic speech: Tinker (armbands), Texas v. Johnson (flag burning). Prior restraint is strongly disfavored (New York Times v. U.S.).
Rights of the accused
- 4th: searches need warrants and probable cause; exclusionary rule (Mapp); schools need reasonable suspicion (T.L.O.).
- 5th: no self-incrimination (Miranda), no double jeopardy. 6th: right to a lawyer (Gideon). 8th: no cruel and unusual punishment.
Other liberties
- Second Amendment: individual right (Heller), incorporated (McDonald). Privacy: Griswold; Roe was overruled by Dobbs (2022).
- Government may set content-neutral time, place and manner limits. Laws limiting fundamental rights face strict scrutiny.
Topics in this unit
Each topic has its own short notes and practice.
Practice
Miranda requires warnings before custodial interrogation.
Texas v. Johnson (1989) protected flag burning as symbolic speech.
The Fifth Amendment bars trying a person twice for the same offense.
Its due process clause is used for selective incorporation.
Yoder balanced free exercise against compulsory schooling.
True threats are not protected speech.
Free response
Write your answer first, then open the scoring guide.
Free-response question
A high school student posts a message online criticizing the school dress code. The next day, she wears a shirt to school with the same message. The principal suspends her and searches her backpack for more shirts.
(a) Identify the constitutional right involved in the shirt and explain how Tinker v. Des Moines applies.
Show the answer and scoring guide
The shirt is protected by the First Amendment's freedom of speech, as symbolic or written expression. Under Tinker, students keep their free speech rights at school unless their speech substantially disrupts school activities, so if the shirt caused no major disruption, the suspension would likely violate her rights.
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(b) Identify the constitutional amendment involved in the backpack search and the standard schools must meet.
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The Fourth Amendment protects against unreasonable searches. Under New Jersey v. T.L.O., school officials need reasonable suspicion that a search will find evidence of breaking a law or school rule, which is lower than the probable cause police need.
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(c) Explain how the 14th Amendment makes these protections apply to a public school run by a state or local government.
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The Bill of Rights originally limited only the national government. Through selective incorporation, the Supreme Court has used the 14th Amendment's due process clause to apply rights such as free speech and protection from unreasonable searches to state and local governments, including public schools.
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