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Chapter 4
Civil Liberties
American Government
2006 Edition
(to accompany the Essentials Edition)
O’Connor and Sabato
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The First Constitutional
Amendments: The Bill of Rights
 1787 – Most state constitutions explicitly
protected a variety of personal liberties
 Speech, religion, freedom from unreasonable
search and seizure, trial by jury
 New Constitution shifted power to the
national government
 Would the national government uphold these
liberties?
 Anti-Federalists voiced this concern
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The First Constitutional
Amendments: The Bill of Rights
 Bill of Rights addition defeated unanimously
at the federal convention
 Federalists argued that a bill of right was
unnecessary.
 Already included by states
 Foolhardy to list things that the national
government had NO power to do
 Some Federalists supported the idea; Jefferson
for example
 James Madison did not until politics intervened
 He sought House seat in a district that was largely
Anti-Federalist in nature.
 Made good on his promise
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The First Constitutional
Amendments: The Bill of Rights
 Bill of Rights
 1789 Congress sent proposed Bill of Rights to the
states for ratification, which occurred in 1791
 The first ten amendments to the Constitution contain
numerous specific guarantees
 Free speech, press and religion
 Highlight Anti-Federalist fears
 Ninth Amendment

“The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained
by the people.”
 Tenth Amendment

Reiterates that powers not delegated to the national
government are reserved to the states or to the people.
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The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States
 Bill of Rights intended to limit powers of the
national government
 Barron v. Baltimore (1833)
 Court ruled that the national Bill of Rights
limited only the actions of the U.S. government
and not those of the states.
 But decision suggested the possibility that some
or all of the protections might be interpreted to
prevent state infringement of those rights.
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The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States
 14th Amendment
 Due process clause
 Over the years this clause has been construed to
guarantee to individuals a variety of rights
 Economic liberty to criminal procedural rights
and protection from arbitrary governmental
action
 Substantive due process
 Judicial interpretation of the Fifth and
Fourteenth Amendments’ due process clause
that protects citizens from arbitrary or unjust
laws
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The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States

Incorporation Doctrine

An interpretation of the Constitution that holds that the due
process clause of the Fourteenth Amendment requires that
state and local governments also guarantee those rights.
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Selective Incorporation
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A judicial doctrine whereby most but not all of the protections
found in the Bill of Rights are made applicable to the states via
the Fourteenth Amendment.
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Gitlow v. New York (1925)
Near v. Minnesota (1931)
Palko v. Connecticut (1937)
Fundamental Freedoms

Those right defined by the Court to be essential to order,
liberty and justice.
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The Selective Incorporation of the Bill of Rights
Selective
Incorporation of
the Bill of Rights
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First Amendment Guarantees:
Freedom of Religion
 Framers did not support a national church
or religion.
 Article VI
 Provides that “no religious Test shall ever be
required as a Qualification to any Office or
Public Trust under the United States.”
 First Amendment
 Part of the Bill of Rights that imposes a number
of restrictions on the federal government with
respect to the civil liberties of the people,
including freedom of religion, speech, press,
assembly, and petition.
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First Amendment Guarantees:
Freedom of Religion
 Establishment Clause
 The first clause in the First Amendment
 Prohibits the national government from
establishing a national religion
 Engel v. Vitale (1962)
 Lemon v. Kurtzman (1971_
 The Lemon Test
 Agnostini v. Felton (1997)
 Zelman v Simmons-Harris (2002)
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First Amendment Guarantees:
Freedom of Religion
 Free Exercise Clause
 The second clause of the First
Amendment
 Prohibits the U.S. government from
interfering with a citizen’s right to
practice his or her religion
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First Amendment Guarantees: Freedom
of Speech, Press, and Assembly
 Democracy depends on a free
exchange of ideas.
 Volatile area of constitutional
interpretation
 Alien and Sedition Acts
 Prior restraint: Constitutional doctrine that
prevents the government from prohibiting
speech or publication before the fact;
generally held to be in violation of the First
Amendment
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First Amendment Guarantees: Freedom of
Speech, Press, and Assembly
 Civil War
 Lincoln suspended the free press provision of
the First Amendment
 Ordered the arrest of the editors of two New
York papers who were critical of him
 Newspaper editor jailed by a military court
without having any charges brought against
him.
 Appealed to the Supreme Court.
 Congress enacted legislation prohibiting the Court
from issuing a judgment in any cases involving
convictions for publishing statements critical of the
U.S.
 Article II gives Congress power to determine the
jurisdiction of the Court.
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First Amendment Guarantees: Freedom
of Speech and Press

WWI
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Anti-governmental speech
Clear and Present Danger Test
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Test articulated by the Supreme Court in Schenck v. U.S.
(1919) to draw the line between protected and unprotected
speech.
The Court looks to see “whether the words used” could “create
a clear and present danger that they will bring about
substantive evils” that Congress seeks “to prevent.”
Anti-war leaflets okay during peace, but not permissible during
war – too dangerous.
But what constituted a danger?
Direct Incitement Test

A test articulated by the Supreme Court in Brandenburg v.
Ohio (1969) that holds that advocacy of illegal action is
protected by the First Amendment unless imminent lawless
action is intended and likely to occur.
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First Amendment Guarantees: Freedom of
Speech, Press, and Assembly
 Protected Speech and Publications
 Prior Restraint
 Court has made it clear that it will not tolerate
prior restraint of speech
 New York Times Co. v. Sullivan (1971)
 Pentagon Papers case
 Supreme Court ruled that the U.S. government
could not block the publication of secret Department
of Defense documents illegally furnished to the
Times by anti-war activists.
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First Amendment Guarantees: Freedom
of Speech and Press
 Symbolic Speech
 Symbols, signs, and other methods of
expression generally also considered to be
protected by the First Amendment
 Stromberg v. California (1931)
 Upheld flying of red flag (symbol of opposition
to U.S. government)
 Tinker v. Des Moines Independent Community
District School (1969)
 Court upheld wearing of black armbands as
protest against Viet Nam War
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First Amendment Guarantees: Hate Speech,
Unpopular Speech, and Speech Zones
 Two-thirds of colleges and universities have
banned a variety of forms of speech or
conduct that creates or fosters an
intimidating, hostile or offensive
environment on campus.
 Some have created free speech zones
 These restrict the time, place or manner of
speech.
 Implication that speech can be limited on other
parts of campus.
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Unprotected Speech and
Publications
 Libel and Slander
 Libel: written statement that defames the
character of a person
 Slander: spoken statement that defames the
character of a person
 New York Times Co. v. Sullivan (1964)
 Fighting Words: Chaplinksy v. New
Hampshire
 Obscenity: Roth v. U.S. (1957)
 Miller v. California (1973)
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Freedoms of Assembly and
Petition
 DeJonge v. Oregon (1937)
 “Peaceful assembly for lawful discussion
cannot be made a crime.” Chief Justice
Charles Evans Hughes
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The Second Amendment: The
Right to Keep and Bear Arms
 U.S. v. Miller (1939)
 Quilici v. Village of Marton Grove
(1983)
 The Brady Bill (1997)
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The Rights of Criminal Defendants
 Due process rights
 Procedural guarantees provided by the
Fourth, Fifth, Sixth and Eighth
Amendments for those accused of
crimes.
 Warren Court made several provisions of
the Bill of Rights dealing with the
liberties of criminal defendants (those
charged but not yet tried) applicable to
the states through the Fourteenth
Amendment.
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Fourth Amendment
 “The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and
seizures, shall not be violated, and no
Warrants shall issue, but upon probable
cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be
seized.”
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Fourth Amendment

Over the years, the Court has interpreted the Fourth
Amendment to allow the police to search:
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The person arrested
Things in plain view of the accused person
Places or things that the arrested person could also touch
or reach or are otherwise in the arrestee’s immediate
control.
Court has ruled that police must knock and announce their
presence before entering a home or apartment to execute a
search.
2001 ruling on thermal imaging drug evidence (without a
warrant) was violation of Fourth Amendment.
Drug testing difficult search and seizure issue.

Chandler v. Miller (1997)
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Fifth Amendment
 Imposes a number of restrictions on the federal
government with respect to the rights of persons
suspected of committing a crime.
 Miranda v. Arizona (1966)
 Miranda rights
 Provides for indictment by a grand jury and protection
against self-incrimination.
 Prevents the national government from denying a
person life, liberty, or property without the due
process of law.
 It also prevents the national government from taking
property without fair compensation.
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Fourth and Fifth Amendments and
the Exclusionary Rule
 Judicially created rule that prohibits policy
from using illegally seized evidence at trial.
 Weeks v. U.S. (1914)
 Court reasoned that allowing police and
prosecutors to use a tainted search would only
encourage that activity.
 Mapp v. Ohio (1961)
 Warren Court ruled that “all evidence obtained
by searches and seizures in violation of the
Constitution, is inadmissible in a state court.”
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Sixth Amendment and the Right to
Counsel
 Sets out the basic requirements of
procedural due process for federal
courts to follow in criminal trials.
 These include speedy and public trials,
impartial juries, trials in the state where
the crime was committed, notice of the
charges, the right to confront and obtain
favorable witnesses, and the right to
counsel.
 Gideon v. Wainwright (1936)
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The Sixth Amendment and Jury
Trials
 Provides that a person accused of a crime
shall enjoy the right to a speedy and public
trial by an impartial jury.
 It also provides defendants the right to
confront witnesses against them.
 Supreme Court has held that jury trials
must be available if a prison sentence of six
or more months is possible.
 Impartiality of jury
 Boston v. Kentucky (1986)
 Right to confront witnesses
 Maryland v. Craig (1990)
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The Eighth Amendment and Cruel
and Unusual Punishment
 Part of the Bill of Rights that states:
“Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted”
 Furman v. Georgia (1972)
 Court ended capital punishment
 Imposed in an arbitrary manner
 Gregg v. Georgia (1976)
 Reaction to rewriting of state laws on death
penalty.
 Death penalty statute found to be constitutional
 McClesky cases (1987 and 1991)
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Right to Privacy
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The right to be let alone.
A judicially created doctrine encompassing an individual’s
decision to use birth control to secure an abortion.
Birth Control
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Griswold v. Connecticut (1965
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Roe v. Wade (1973)
Court found a woman’s right to an abortion was protected by
the right to privacy that could be implied from specific
guarantees found in the Bill of Rights applied to the states
through the Fourteenth Amendment.
Webster v. Reproductive Health Services (1989)
Planned Parenthood of S.E. Pennsylvania v. Casey (1992)
Stenberg v. Carhart (2000)

Lawrence v. Texas (2003)
Abortion
Homosexuality

State sodomy laws found unconstitutional.
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The Right to Die
 1990 Court ruled in a 5-4 decision
that parents could not withdraw a
feeding tube from their comatose
daughter after her doctors testified
that she could live for many more
years if the tube remained in place.
 Rehnquist rejected any attempts to
expand the right to privacy in to this
area.
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The Right to Die
 Court did note that individuals could terminate
medical treatment if they were able to express, or had
done so in writing via a living will, their desire to have
medical treatment terminated in the event they
became incompetent.
 1997 Court ruled unanimously that terminally ill
persons do NOT have a constitutional right to
physician assisted suicide.
 Oregon voters approved a right to die law in 2001.
 Attorney General issued legal opinion that this was
not acceptable.
 State and national conflict.
 Federal judge ruled that Ashcroft, then Attorney
General, had overstepped his authority.
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