14th Amendment

Due Process (when can government limit your rights)

Incorporation Bill of Rights did not initially apply to states States had different interpretations of rights due to federalism Incorporation started with Gitlow (speech) o states had to respect fundamental personal rights o uniform national standards of what freedom of speech means o over time, test moved from clear and present danger (Schenk) to imminent danger (Brandenburg) o obscenity, defamation, most symbolic speech, not protected speech Incorporation extended one right at a time (important because most crimes are state crimes) Wolf v. Colorado incorporated protection from search and seizure; Mapp v. Ohio extended that to require exclusionary rule Exclusionary rule applies when police act unfairly (Gideon, Miranda, Mapp) Good faith exception does not punish police who thought they were following the rules Rehnquist court rolled back expansive view of rights shown in decisions of Warren Court, by developing good faith exception, limiting student rights, allowing drug testing Rehnquist court generally tolerant of free speech cases, however (elites more tolerant than general public) Roe: abortion decision based upon implied privacy protections of due process clause; privacy right grew out of Griswold v. Ct.; opinion not unanimous: compare to Brown Since 1989, court more willing to allow states to impose restrictions on abortion access

Equal Protection (what discrimination is allowed under the Constitution)

Laws that differentiate based on certain protected categories are reviewed with suspicion Protected Class: Race Plessy allowed separate but equal; civil rights movement pushed court to change by forcing courts to revisit that definition The Brown decision changed policy, but was not a re-interpretation of the equal protection clause. Rationale focused on inherent inequality in a school setting Baker v. Carr Debate over inequality with respect to race continues through the debate over affirmative action o Bakke outlawed quotas, but allowed schools to consider race along with other factors o Gutterman v. Bollinger: University of Mich. case allowed that idea to stand because achieving diversity is a compelling state interest (constitution is not yet color blind) Protected Class:Gender Distinctions based on gender get an intermediate level of scrutiny; courts tend to be more accepting of government explanations for need for discrimination Civil rights laws (not constitutional right) applied to more groups than just race; justified on grounds of the commerce clause o Box, p. 537

Do other groups need elevated constitutional protection? Disability? Age? Sexual Orientation?