Potential Follow-Up Questions for Unit 5 - We the People

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1 Unit Five: What Rights Does the Bill of Rights Protect? Follow-up Questions: Explain the difference between positive and negative rights. Which kind of rights does the First Amendment protect? Give examples. How does freedom of expression contribute to individual liberty and the common good? In what ways does the First Amendment reflect the influence of the natural rights philosophy? When is it appropriate, if ever, for freedom of expression to be limited? What are some commonly accepted limitations on freedom of expression? How does Voltaire s statement I may detest what you say, but will defend to the death your right to say it, relate to the responsibilities of citizenship? Explain why the Court has allowed governments to place time, place, and manner restrictions on freedom of expression. Do you think freedom of expression should extend to racist speech designed to engender hatred or contempt? Why or why not? What rights, values, and interests of individuals and society might be promoted or endangered by the position which advocates limiting freedom of expression rarely, if ever, no matter how dangerous or obnoxious these ideas may be? Explain the difference between limitations placed upon the content of speech and limitations based on the time, place, and manner of speech. What types of speech receive the most protection? Should artistic, literary, or academic expression be protected to the same extent as political speech? What about popular entertainment? The First Amendment is stated is stated in absolute terms: Congress shall make no law respecting an establishment of religion. Does that wording reflect hostility toward religion? Why or why not? What is the difference between the establishment clause and the free exercise clause of the 1 st Amendment? What specific experiences did the Framers have with established religions and how did history impact their views about government and religion? What sort of limits should the government be allowed to place of the free exercise of religion? 1

2 Should a judge in a state court be allowed to post the Ten Commandments in his or her courtroom? Defend your answer. Discuss a current church/state controversy and the way in which you would like to see it resolved. What experiences during the colonial and revolutionary era taught the Framers of the importance of procedural due process? Explain the clear and present danger rule in limiting freedom of speech. Some have said we have had two constitutions, one before the 14 th Amendment and one after. Do you agree or disagree? What is prior restraint? What are some of the costs of protecting free speech? Which are the most significant costs in your opinion? Polls show that most Americans support free speech in theory, but when they're asked more specific questions such as "Should Americans be free to advocate communism?" Most Americans are far less willing to support free speech values. How to you explain this? What would be the most appropriate way for a court to deal with obscene material that the publisher claims he or she has a right to publish under the First Amendment? Should reporters have a right not to divulge the names of sources when covering political stories? Would a law restricting the amount of money an individual or group can give to a political party, candidate, or independent organizations (corporations/unions/interest groups/pacs) supporting a candidate violate freedom of expression? What conflicts might occur between the right to assemble and other values and interests of society? How should these conflicts be managed? Do you think the move by some cities and towns to prohibit gangs from peacefully gathering in public parks violates the freedom of assembly and association? Why? Since the right of association is not in the First Amendment, how have courts justified treating it as a constitutional right? How has the 14 th Amendment impacted freedom of expression in the United States? How does public s right to know affect freedom of the press? What limits should there be on the press? 2

3 What limits should there be on the right of the media to report on the private lives of public figures? Can you think of an event in history when either a group or an individual was deprived due process rights? What were some of examples of the ways in which colonial governments restricted the individual rights of citizens? How would you explain the phrase, to none shall we sell, to none will we refuse or delay justice? Explain the writ of habeas corpus. Why do you think some people have called it the great writ of liberty? When is it appropriate for the writ of habeas corpus to be suspended? Provide examples. What individual rights do you think are most in need of protection today? Why? When can a witness refuse to answer questions in a court of law? How does the Fifth Amendment protect against self-incrimination? Why is "use immunity" sometimes granted to some witnesses? What is an adversary system of justice? What is an inquisitorial system of justice? Does due process apply to minors? Why was the right to a jury trial important to American colonists under British rule? How are the rights of habeas corpus and trial by jury related to the concept of rule of law? What do you think is the greatest threat to individual rights at the present time? Under what conditions would it be permissible for the government to take away an individual s life, liberty, or property? Why do you think the Framers included such a specific and narrow definition of treason in the body of the Constitution? Keeping the 8 th Amendment in mind, is the use of torture ever acceptable? Would your answer remain the same if the defendant was not a U.S. citizen? What is the Miranda Rule and do you think it is necessary to uphold due process rights? 3

4 How has the incorporation doctrine broadened the protections of those accused of a crime? Do you think that the Miranda warning is an essential to the protection of individual liberties? Why do you think the Framers saw the jury system as a way to protect individual s due process rights? Do you believe the Patriot Act is a threat to privacy and due process rights? If so, in what way? What problems were the FISA Courts created to deal with? Do you agree with some that the FISA law is too restrictive of agents pursuing terror suspects? Does the right not to incriminate oneself apply anywhere else besides a criminal trial? How is the right against self-incrimination related to the principles of limited government and rule of law? What is a plea agreement? Are they used too often? What is required for a federal indictment of a crime? How is due process both an ancient and an evolving concept? What might due process have looked like in 1400 in England? 1775 in the U.S. colonies? 1875 in the U.S.? Today in the U.S.? What is procedural due process? Of all the due process rights, which do you feel is the most important and why? What values are served by requiring law enforcement officials to obtain a warrant before being allowed to arrest someone or search his or her property? What is probable cause and when is it required? According to the Fourth Amendment, what must law enforcement officials do in order to obtain a warrant? Give an example. Although the word privacy is not used in the 4 th Amendment, how has the 4 th Amendment been seen as a protection of privacy? What is the exclusionary rule and do you think it is necessary to uphold due process rights? If an American citizen is identified as a terrorist or an enemy combatant, do they still receive due process rights? 4

5 How is the reasonableness standard different from probable cause? Do you think the reasonableness standard should be used instead of the probable cause requirement for a search or seizure to be conducted? When has the Court allowed the reasonableness standard to be used? What is common law, and what role does it play in our constitutional system? How is procedural due process related to the concept of the rule of law? How might the rights of a criminal under the due process clause conflict with the common good? What is the difference between substantive and procedural due process? Do you believe that the Patriot Act and the Homeland Security Act have asked people living in the United States to surrender too many of their civil liberties? Defend your position with specific examples. What experiences of the Framers led them to believe that due process rights were so important? What challenges does modern technology present to our rights under the 4 th Amendment? What do you think of the practice some police departments have adopted of secretly placing a GPS tracking device on the cars of criminal suspects, and then using the technology to track their movements? In the effort to fight terrorism, should the government be allowed to ask internet service providers to surrender records of private s and search histories? 5

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