Civil Liberties

Establishment Clause: "Congress shall make no law respecting an establishment of religion." Prohibits the government from establishing an official religion or favoring one religion over another (or religion in general over non-religion). Strikes down state-sponsored prayer in public schools (Engel v. Vitale, 1962).

Free Exercise Clause: "or prohibiting the free exercise thereof." Protects individuals' right to practice their religion without government interference. Allowed Amish parents to keep children out of school past 8th grade (Wisconsin v. Yoder, 1972).

Tension: The two clauses can pull in opposite directions. Accommodating religious practice (Free Exercise) can come close to government endorsement (Establishment), and policing Establishment too strictly can burden Free Exercise.

Selective incorporation is the gradual process by which the Supreme Court has applied specific protections from the Bill of Rights to STATE and local governments, on a right-by-right basis.

Vehicle: The Due Process Clause of the 14th Amendment ("nor shall any State deprive any person of life, liberty, or property, without due process of law"). The Court has read the word "liberty" to incorporate fundamental rights from the Bill of Rights.

Originally (after Barron v. Baltimore, 1833), the Bill of Rights restrained only the FEDERAL government. Starting in the early 20th century — and especially after the Warren Court of the 1950s–60s — most rights have been incorporated. Today nearly all of the Bill of Rights applies to states. (Notable exceptions still not fully incorporated: 3rd Amendment quartering, 5th Amendment grand-jury indictment, 7th Amendment civil jury trial.)

(a) First Amendment freedom of speech (specifically, symbolic speech — wearing armbands as a form of expression). The Court famously held that students do "not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

(b) Standard: Public school officials may regulate or punish student speech ONLY if they can show it would substantially disrupt the school environment OR invade the rights of other students. Mere apprehension of disturbance, or fear of controversial views, is NOT enough. The school district in Tinker could not show that black armbands had caused or were likely to cause substantial disruption — the school had simply tried to ban a particular political message.

Subsequent cases narrowed Tinker in some contexts (lewd speech in Bethel v. Fraser (1986); school-sponsored speech in Hazelwood v. Kuhlmeier (1988); pro-drug messages in Morse v. Frederick (2007)), but the substantial-disruption standard remains the baseline for personal political expression by students.

Holding: The Sixth Amendment's right to counsel applies to STATE criminal prosecutions through the Fourteenth Amendment's Due Process Clause. States must provide an attorney at public expense to indigent defendants charged with serious (felony) crimes who cannot afford one.

Significance:

1. Incorporation: Gideon was a major incorporation case, applying a federal Bill of Rights protection to all 50 states. It overruled Betts v. Brady (1942), which had said the right to counsel applied only to "special circumstances."
2. Practical effect: Created the modern public-defender system. Today every state has some mechanism (public-defender offices or assigned counsel) to provide attorneys to indigent felony defendants.
3. Equal justice: Recognized that the right to a fair trial means little if defendants cannot meaningfully understand the proceedings or contest the prosecution. As Gideon's lawyer (Abe Fortas, later a Supreme Court justice) argued, "you cannot have a fair trial without counsel."
4. Later expansion: Argersinger v. Hamlin (1972) extended the right to counsel to misdemeanor cases that could result in jail time.

Limitations: the right covers only criminal cases, not civil. Public-defender systems are chronically underfunded, raising ongoing questions about meaningful access to counsel.

(a) Roe's constitutional foundation: A constitutional right to privacy inferred from the "penumbras" of several amendments (1st, 4th, 5th, 9th, 14th) and located most directly in the Due Process Clause of the 14th Amendment. Justice Blackmun's majority opinion held that the right to privacy is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy," subject to a trimester framework that gave the state increasing authority as pregnancy progressed.

(b) Dobbs's grounds for overruling: Justice Alito's majority opinion held that:

1. Text: the Constitution makes no reference to abortion; the right is not enumerated.
2. History: abortion was not "deeply rooted in this Nation's history and tradition" — the standard for recognizing unenumerated rights under the Due Process Clause established in Washington v. Glucksberg (1997). At the time the 14th Amendment was ratified in 1868, most states criminalized abortion.
3. Stare decisis: Roe and Casey were "egregiously wrong" from the start, applied an unworkable framework, and could be overruled without disrupting reliance interests in the same way other precedents would.

The Court therefore held there is no federal constitutional right to abortion and returned the issue to "the people and their elected representatives."

(c) Federalism implications: Dobbs dramatically EXPANDED state authority in this area. Each state can now decide its own abortion policy through its legislature, courts, or ballot initiatives — creating a patchwork ranging from near-total bans (Texas, Mississippi, Louisiana) to expansive protections (California, New York, Massachusetts, ballot-initiative states like Ohio, Kansas, Michigan). This produces:

• Cross-state travel for abortion services — a new policy phenomenon raising legal questions (can states criminalize traveling for abortion? can they reach providers in other states?).
• State constitutional law as the new battleground (state supreme courts interpreting state constitutions).
• Federal policy fights continuing — over mifepristone (FDA approval), federal funding (Hyde Amendment), and proposed federal legislation that would either codify abortion rights or impose national restrictions.

Dobbs is a landmark example of how OVERRULING a federal constitutional right shifts the locus of policymaking back to states (a "devolution" effect).