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Chapter 5
Civil Liberties
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To Accompany Comprehensive, Alternate, and Texas Editions
American Government: Roots and Reform, 10th edition
Karen O’Connor and Larry J. Sabato
 Pearson Education, 2009
The Bill of Rights
 Debate over necessity at Constitutional Convention.
 Guarantees specific rights and liberties.
 Ninth Amendment states other rights exist.
 Tenth Amendment reserves rights to states and people.
Incorporation
 Until 20th century, Bill of Rights did not apply to states.
 14th Amendment’s due process clause raises questions.
 Begins to apply after Gitlow v. New York (1925).
 Case is first step in incorporation doctrine.
 Not all guarantees have been incorporated.
 Selective incorporation of fundamental freedoms.
First Amendment: Establishment
 Prevents government from establishing religion.
 Have been years of debate over scope of clause.
 Lemon test (1971) sets clearest boundaries.
 Secular, no religious effect, no entanglement.
 Applied most frequently to religious schools.
 Aid used to be books only; has been broadened.
 Also limits other actions, e.g. prison ministries.
First Amendment: Free Exercise
 Government cannot interfere with religious practice.
 Is not absolute; necessity can outweigh freedom.
 Still, laws must be neutral toward religion.
Free Speech and Press
 First Amendment meant to guard against prior restraint.
 Alien and Sedition Acts go against this principle.
 Additional prohibitions during the Civil War era.
 Rise of sedition laws in the 1890s.
 New limitations during World War I.
 Give rise to clear and present danger test in 1919.
 Modified in 1969 to be direct incitement test.
Protected Speech
 Court will rarely tolerate prior restraint.
 Court also protects symbolic speech.
 Hate speech also receives growing protection.
Unprotected Speech
 These types of speech are without social value.
 Libel, or false written statements.
 Slander, or untrue spoken statements.
 Fighting words, or words that breach the peace.
 Obscenity, which varies by jurisdiction.
First Amendment: Assembly
 Assembly and petition have been controversial.
 Tied closely to speech and press.
 If speech crosses line, protection may not exist.
Second Amendment
 Protects right to bear arms.
 Written to protect state militias.
 Few Supreme Court decisions have discussed issues.
 Congressional regulation more frequent.
 Citizens’ right reaffirmed in D.C. v. Heller (2008).
Fourth Amendment
 First of the due process rights.
 Protects against unfair searches and seizures.
 Probable cause required to issue a warrant.
 May search person, plain view, anything in control.
 No warrant needed with reasonable suspicion.
 New issues include cars, borders, and drug tests.
Fifth Amendment
 Prevents self-incrimination and double jeopardy.
 Miranda v. Arizona (1966) is landmark case.
 Miranda rights inform suspects of right to silence.
Exclusionary Rule
 Derived from Fourth and Fifth Amendments.
 Bars use of illegally seized evidence at trial.
 Established largely in Mapp v. Ohio (1961).
 Growing number of “good faith exceptions.”
Sixth Amendment
 Protects right to counsel and jury trial in criminal cases.
 Gideon v. Wainwright (1963) sets precedent for counsel.
 Trial should be speedy and of peers.
 Jury selection has been subject of much debate.
 In past, African Americans and women were excluded.
Eighth Amendment
 Protects against cruel and unusual punishment.
 Most common application is the death penalty.
 Briefly unconstitutional for a period in 1970s.
 Used at varying rates and forms in different states.
 Minors and mentally retarded are excluded.
 Growth of innocence projects and DNA evidence.
 2008 case upholds constitutionality of lethal injection.
Right to Privacy
 Created by the courts from penumbras of constitution.
 Applied first to contraception.
 Extended to abortion in Roe v. Wade (1973).
 Also applied in some homosexual rights cases.
 Right to die movement also uses right to privacy.
Civil Liberties and Terrorism
 Virtually all civil liberties have been affected.
 USA Patriot Act and Military Commissions Act.
 Place limitations on free speech rights.
 Increase law enforcement’s search capabilities.
 Attempt to deny habeas corpus rights to defendants.
 Allow for use of techniques such as water-boarding.
Figure 5.1- Methods of Execution
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Table 5.1- Selective Incorporation
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Ninth Amendment
When the Bill of Rights was first proposed, the major
argument against it was that by specifying some rights
that the government was not free to violate, there would
be the implication that the government was free to
violate any rights not specifically protected in the
Constitution. The Ninth Amendment was written to
address this concern.
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Tenth Amendment
The Federal Government only has the right to
enforce those laws in the Constitution. If it is not
stated in the Constitution then that enforcement
will go to the States or the People.
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Due Process Clause
The Fifth and Fourteenth Amendments to the United
States Constitution each contain a Due Process
Clause. The Supreme Court of the United States
interprets the Clauses as providing four protections: 1.
that in court cases the law be fair and not arbitary
where one may get a different degree of guilt; 2. no
person be deprived of life, liberty or due process of the
law; 3. An adequate amount of time is given to prepare
for losing your rite; 4. The process is fixed and right and
not given to endless decision making by the courts.
As a side, Louisiana does not follow this Clause, they follow a Napoleonic
Code which says a Judge can make his own interpretation of a law.
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Gitlow v. New York
The case of Gitlow v. New York deals with a man
named Benjamin Gitlow. This man was considered to
be a Socialist and a potential anarchist. The United
States government viewed this man as a threat
because he believed in a type of government that the
United States did not practice. Benjamin Gitlow was
charged with violating “Anti Anarchist” laws because
he spread magazines and newspapers which degraded
the United States government and preached antigovernment views
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Incorporation Doctrine.
The interpretation that demands that because of
the Fourteenth Amendment that all state and
local governments also guarantee those rights of
due process
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Selective Incorporation
That judicial interpretation that says not ALL of the
protections found in the Bill of Rights are applicable to
the interpretation of the Fourteenth Amendment.
When judges are chosen for the Supreme Court, this is one of the items
that they have to expound on. The Senate chooses the candidate and
how they interpret the Amendment (conservative or liberal or
moderate) will determine how good a candidate they are.
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Fundamental Freedoms
Those rights that the Court says to be essential to
maintaining order, liberty and justice
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Lemon Test
A practice or policy is constitution if it: 1. has a secular
purpose; 2. neither advances or inhibits religion; and 3.
Does not foster the government to be involved with any
sort of religion.
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Prior Restraint
The doctrine that prohibits the government from
stopping speech or publication before the fact (act)
actually occurs.
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Clear and Present Danger Test
From Schenck v. U.S., the Court has to decide if the
“words used” could create a clear and present danger
that would bring ill wind to the USA especially if the
US wishes to prevent those ills
In the 1920s there were a lot of anarchists around that were pushing
for communist or socialist type of governments. Many times these
organizations would use unions as their armies (by striking) to get the
government to change positions.
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Direct Incitement Test
From Brandenburg v. Ohio, a person can
advocate an illegal action as a protection of
the First Amendment, UNLESS it causes
lawlessness, like a riot or burning down of
the city. This is keep the government from
playing (Big Brother from 1984)
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Symbolic Speech
Symbols, Signs, or other methods of
expression that can be considered
methods of free speech
The rainbow flag is an example of this freedom, in
the ‘70s displaying this flag would get you arrested
or discriminated against.
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D.C. v. Heller
The right to own a firearm is a Constitutional law
and DC could not enforce the local law stating that
having a firearm would be an arrestable offense
DC put this law in effect to end a gang war that was going on. At
that time it was not unusual to have almost a 1000 people die from
bullets in any given year. Imagine the pressure placed upon the local
law by the US Government…how does it look to the rest of the
world when your capitol has so many gun deaths in a year.
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Due Process Rights
A claim that the government cannot undertake a
particular act vis-à-vis an individual or set of individuals
without according them an opportunity to be heard.
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Mapp v. Ohio
Evidence found when without a search warrant will
not be allowed accessible in the court of law.
Police were looking for a person from a bench warrant (sent by the
judge to find someone) and went into the home and found some
material that called for a change in government. When they found the
people, they charged them under the Clear and Present Danger
Act….oops they didn’t have a search warrant.
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Writ Habeas Corpus
Prisoners have the right to know what they are
being charged.
The Judge can also determine if there is enough
evidence to hold the prisoner in jail, if not, then the
prisoner is set free.
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