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US Government & Politics · Module 4 of 7

The Courts & Civil Liberties

Judicial review and the federal courts, selective incorporation, and the First, Second and Sixth Amendment cases that define civil liberties.

In this module
  1. The Judicial Branch
  2. Selective Incorporation
  3. First Amendment Freedoms
  4. Check yourself

The Judicial Branch

  • Marbury v. Madison (1803) established judicial review: the power of courts to strike down laws that violate the Constitution.
  • Federalist No. 78 (Hamilton) calls the judiciary the "least dangerous" branch and defends life tenure to keep judges independent.
  • Judicial restraint defers to elected branches and precedent (stare decisis). Judicial activism is more willing to overturn laws or precedent. Checks on the Court include appointments, new legislation, constitutional amendments, and reliance on others to enforce rulings.
Worked example

Why is Marbury v. Madison considered the foundation of the Court's power?

Solution. The Constitution doesn't explicitly grant judicial review. Marbury claimed it, giving the Court the power to void laws and making it a co-equal branch.

Selective Incorporation

  • The Bill of Rights originally limited only the national government. Through selective incorporation, the Court has applied most of its protections to the states via the 14th Amendment's Due Process Clause, one right at a time.
  • McDonald v. Chicago (2010) incorporated the Second Amendment right to keep and bear arms against state and local governments.
  • Gideon v. Wainwright (1963) required states to provide lawyers to defendants in felony cases who can't afford one (the Sixth Amendment right to counsel).
Worked example

A city bans handgun ownership. Which required case would a challenger cite, and why?

Solution. McDonald v. Chicago, which held that the Second Amendment applies to state and local governments through the 14th Amendment.

First Amendment Freedoms

  • Establishment Clause: Engel v. Vitale (1962) ruled school-sponsored prayer in public schools unconstitutional, even if voluntary.
  • Free Exercise Clause: Wisconsin v. Yoder (1972) let Amish families withdraw children from school after 8th grade, because the state's interest did not outweigh their religious freedom.
  • Speech: Tinker v. Des Moines (1969) protected students' symbolic speech (black armbands) that didn't substantially disrupt school. Schenck v. United States (1919) allowed limits on speech posing a "clear and present danger."
  • Press: New York Times Co. v. United States (1971) rejected prior restraint of the Pentagon Papers. The government faces a heavy burden to block publication in advance.
Worked example

Two clauses of the First Amendment deal with religion. Match each to its required case.

Solution. Establishment Clause → Engel v. Vitale (no government-sponsored prayer). Free Exercise Clause → Wisconsin v. Yoder (protecting religious practice).

Common mistake: Civil LIBERTIES are protections from government (Bill of Rights). Civil RIGHTS are protections against discrimination (equal protection). Don't mix them up on the exam.

Check yourself

2 of this module's 5 quiz questions. Pick your answers, then check them in the app, with an explanation for every question.

1. Which case established judicial review?

2. Selective incorporation applies the Bill of Rights to the states through the:

Check my answers, free