Download Incorporation and Civil Liberties

Civil Liberties
Sticking it to the Man
Civil Liberties
► PERSONAL
rights and
freedoms that can not
be abridged either by
law, constitution, or
judicial interpretation.
► 14th Amendment: Due
Process Clause
 “Unalienable Rights”
Birth of the Bill of Rights
► It
was apparent that
without an article
directly speaking to
the Bill of Rights the
Constitution would not
be ratified.
 Federalists vs. AntiFederalists
► Federalist
84- Bill of
Rights “Unnecessary and
Dangerous”
► Anti-Federalists win and
Bill of Rights 1791
Dual Citizenship
►Bill
of Rights was designed to limit the
powers of the National Government.
 Barron vs. Baltimore 1833(Supreme Court
Supported the Idea)
►Courts
ruled that the Bill of Rights only
applied to the national government and not
the state.
 “Each state established a constitution for itself”
Incorporation
► 14th
Amendment not
only defined
citizenship but placed
Restrictions on the
State Government
 “NO STATE SHALL…”
INCORPORATION
► USING
THE 14th AMENDMENT TO
APPLY THE BILL OF RIGHTS TO THE
STATES ON A CASE BY CASE BASIS
 Tool used in incorporation is the 14th
AMENDMENT
 Privileges and Immunities Clause
 Due Process Clause
 Equal Protection Clause
Incorporation
► The
Supreme Court waited until 1925 to
interpret the 14th Amendment to protect
individuals from State Action
 Gitlow vs. New York (1925)
►Gitlow
was Advocating a Forcible overthrow of the
New York Government
►Gitlow was arrested for his inflammatory remarks
►The Court Case went to the Supreme Court and the
Court ruled States no longer had the power to
Abridge free speech due to the 14th Amendment
Near v. Minnesota (1931)
► Near
wrote and
published an AntiSemitic and AntiCatholic newspaper
► The State of Minnesota
refused to let it be sold
► INCOROPORATED
FREEDOM OF PRESS
► “Prior Restraint”
First Amendment Guarantees
► Freedom
of Religion
 The Establishment
Clause
►Prohibits
the
government from
establishing a
national religion
►Thomas Jefferson
Called it “Wall of
Separation”
Establishment Clause
► School
Prayer
 Engel vs. Vitale (1962)
►Struck
down Non-Denominational Prayer
 Abington School District vs. Schempp (1963)
►Struck
down Public School Prayer
Establishment Clause
► How
can the Courts tell what is religious in
schools or what is secular?
 Lemon vs. Kurtzman (1971)
 Lemon Test
►Have
a Secular Purpose
►Have a primary effect that neither advances or
prohibits religion
►Not foster excessive government entanglement with
Religion
Free Exercise Clause
► “Congress
shall make no law… prohibiting
the free exercise”
 However this clause is also open to interpretation. Several
Religious Practices have been ruled as unconstitutional including
 Reynolds vs. United States (1879)
►Polygamy
is illegal and thus not covered under the
Free Exercise Clause
 Oregon vs. Smith (1990)
►Banned
illegal Drug use in Religious ceremonies.
Free exercise clause does not cover illegal acts
Freedom of Speech
► World
War 1
 Schenck vs. U.S. (1919)
► “Clear
and Present Danger”
► Chaplinsky
vs. New Hampshire (1942)
 Fighting Words Doctrine
► personally
abusive epithets which, when addressed to the
ordinary citizen, are, as a matter of common knowledge,
inherently likely to provoke violent reactions."
Freedom of Press
► Prior
Restraint- Censorship
 NYT vs. United States (1971)
►“Pentagon
Papers”
►Prior Restraint is unconstitutional unless it presents a
clear and present danger to our nation
 Miller vs. California (1973)
►Obscenity;
expanded on Roth (1957) decision
►Community Standards Test
 Patently offensive sexual conduct lacking serious literary
artistic, political, or Scientific value
 Miller said they were local and Not national
► “I
KNOW IT WHEN I SEE IT”
Freedom of Assembly
► De
Jonge vs. Oregon - Incorporated freedom of
Assembly
► National
(1977)
Socialist Party of America vs. Skokie
 Skokie Case- It is constitutional for the Nazis to march
in a Jewish Neighborhood
st
1
►
Amendment at School
“Students do not shed their constitutional rights when they
enter the schoolhouse door."
 Tinker vs. Des Moines (1969)
 Alright to wear a black armband to protest the Vietnam war
 MORSE et al. v. FREDERICK (2007)
 Upheld the suspension of the “Bong Hits 4 Jesus” culprit
 Hazelwood vs. Kuhlmeier (1988)
►Administration
Prior Restraint
has
nd
2
►
and
rd
3
Amendments
Have not been
incorporated
 Selective incorporation
allows for fundamental
rights to be granted to
all citizens. The right to
bear arms or quarter
soldiers are not
fundamental rights
Rights of the Accused
th
4
► Unreasonable
Amendment
Search and Seizure
 Mapp v. Ohio (1961)
►Overturned
Wolf v. Colorado (1949)
►Incorporated the Exclusionary Rule
 Anything obtained in an illegal search and seizure may not
be used at a trial
 Katz v. United States (1967)
►Wiretapping
amendment
►New
without a warrant violates the 4th
Jersey vs. T.L.O (1985)
 Establishes “Reasonable Suspicion” for high
school students
th
5
Amendment
► Indictment
by a grand jury, self
incrimination, double jeopardy, and eminent
domain
 Miranda vs. Arizona (1966)
►Miranda
Rights
 Kelo vs. City of New London (2005)
►The
government can take public property to give to
private companies
th
6
Amendment
► Right
to a Speedy and public trial, Right to a
lawyer
 Gideon vs. Wainwright (1963)
►Right
to an attorney during the trial
 Escobedo vs. Illinois (1964)
►Right
to have a lawyer present during police
interrogation
th
8
► Cruel
Amendment
and Unusual Punishment
 Gregg v. Georgia (1976)
►Death
Penalty is NOT cruel and unusual punishment
Other Freedoms and Limitations
► First
Amendment
 Freedom of Expression
►Texas
v. Johnson (1989)…Its constitutional to burn a
U.S. Flag
► First
Amendment
 Prohibitions on Speech/Press
►Libel-
Knowingly defaming a person’s character with
malicious intent. (PRESS)
 NY Times v. Sullivan (1964)
►Slander-
Knowingly defaming a person’s character
with malicious intent. (Speech)
Right to Privacy?
► Nowhere
in the Constitution does it state
you or I have the right to privacy.
 However, the courts have used several
amendments to “interpret” a right to privacy
 Griswold vs. Connecticut (1965)
►Law
was passed in Connecticut banning the
dissemination of information about the sale of
Contraceptives
 Courts ruled the law was Unconstitutional based on
Amendments 1,3,4,9,and 14
 Establishes the RIGHT TO PRIVACY
Roe v. Wade
► Argued
that the decision to carry a
pregnancy to term was a Women’s
fundamental right
 In Roe v. Wade (1973), the court found it was a
fundamental right of a woman to have an
abortion.
►Used
right to privacy and primarily the 9th
amendment to reach their conclusion
►Ever
since Conservative justices have been trying to
overturn Roe vs. Wade
The Right to Die
► Cruzan
v. Missouri Dept of Health (1990)
 Living will is legitimate
 Only if the patients family is able to provide
“ Clear and convincing evidence” like a living
will
 9th Amendment