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American Government
Civil Liberties
Civil Liberties: Outline
• -definition
• -historical roots
• -3 “P’s”: privacy, political, punishment
• -selective incorporation
Contrasting Liberties from Rights
• freedoms from government
• limits on what government can legally do
to individuals
• “negative” rights -- not freedom “to” but
rather freedom “from”
• contrast with civil rights (freedoms
guaranteed by government)
Historical Roots
• based in classical liberal political theory
• individual is key element in society
• Brandeis: “Those who won our
independence believed the final end of the
state was to make men free to develop
their [personal] faculties.”
• ironically perhaps, grows out of both
• British traditions
• reaction to British abuses in the colonies
Historical Roots, cont.
• Magna Carta (1215)
• first written limits on king
• included guarantees of due process, local
and speedy trials, no cruel or unusual
punishments
• turbulent 1500s brought era of
numerous abuses in Britain
• Protestant v Catholic, Crown v Parliament
• Elizabeth (1998)
Historical Roots, cont.
• examples of abuses:
• inquisitional courts (Star Chamber)
• government = accuser, prosecutor, judge, and jury
• “In the Star Chamber the council could inflict any
punishment short of death, and frequently sentenced
objects of its wrath to the pillory, to whipping and to the
cutting off of ears…”
• no protection against self incrimination … torture
• Massachusetts was “enlightened”
• torture only after confession (accomplices)
• couldn’t be “barbarous or inhumane”
• general search warrants (writs of assistance)
• used extensively to catch smugglers
Historical Roots, cont.
• British abuses led to calls for explicit
bill of rights in the Constitution
• Antifederalist
• Founders opted not to include it in
original
• saw Constitution as establishing limited
government with enumerated powers
• Bill of Rights added in First Congress
The Three P’s
• Bill of Rights outlines three basic types
of civil liberties:
• Privacy
• Participation
• Punishment
Privacy
• right to be left alone by government
• based on 1st, 3rd, and 4th Amendments
• 1st: speech, press, religion, assembly
• 3rd: quartering of troops
• 4th: “unreasonable searches and seizures”
• “persons, houses, papers, and effects”
• no general writs
• Griswold v CT (1965)
• “penumbral” right to privacy
Participation
• based originally on Article 1 and 1st
Amendment
• “the House of Representatives shall be
composed of Members chosen every
second Year by the People of the several
States….”
• “Congress shall make no law respecting …
the right of the people … to petition
government for a redress of grievances.”
• Baker v. Carr – One Person, One Vote
Highlight: FIRST AMENDMENT
• Congress shall make no law respecting
an establishment of religion, or
prohibiting the free exercise thereof;
or abridging the freedom of speech,
or of the press; or the right of the
people peaceably to assemble, and to
petition the Government for a redress
of grievances.
Freedom of Speech
• Time, place, or manner restrictions
• These get the lowest level of scrutiny and are usually
upheld, unless their requirements have an especially
burdensome impact on speech. Note that any regulations
that would force speakers to change how or what they say
do not fall into this category (so the government cannot
restrict one medium even if it leaves open another).
• Content-based restrictions
• Restrictions that require examining the content of speech to
be applied must pass strict scrutiny.
• Viewpoint-based restrictions
• Restrictions that apply to certain viewpoints but not others
face the highest level of scrutiny, and are almost always
overturned, unless they fall into one of the courts special
exceptions.
Speech (con’t)
• Holmes’ clear and present danger test
• Speech that presents a clear and present danger
may also be restricted. The canonical example,
enunciated by Justice Oliver Wendell Holmes, is
falsely yelling "Fire!" in a crowded movie theater.
The trend since Holmes's time has been to
restrict the clear and present danger exception to
apply to speech which is completely apolitical in
content.
• Flag burning case: Texas v. Johnson
• Other Exceptions:
• Obscenity: Justice Potter Stewart famously
quipped: “I know it when I see it.”
Protected and Unprotected Speech
• Types of speech
• Political Speech
Almost All Protected
• Exception? McCain-Feingold
• Libel (slander)
• Obscenity
• Symbolic Speech
• Commercial Speech
Partial
Partial
Partial
Not Protected
Political Speech
• Centrality of Political Speech
• Though not absolute, freedom of
expression occupies a higher, or more
preferred position than other constitutional
rights
• Within expression, political speech has a
preferred position
• Buckley v. Valeo: contributions to candidates
are political speech
• Cannot limit spending of own money
• Can limit but not prevent contributions to
candidates (exception: corporations)
Campaign-Finance Reform
• CFR (1970’s):
• Federal Election Campaign Act (FECA)
• provisions included new, stricter and more
comprehensive contribution and
expenditure limits for campaigns and
other committees, full public financing for
presidential general election campaigns,
and, for the first time, an independent
agency to enforce campaign finance laws:
• the Federal Election Commission
CFR (con’t)
• CFR (2000’s):
• Bipartisan Campaign Reform Act of 2002
• It eliminated all soft money donations to the
national party committees
• but it also doubled the contribution limit of hard
money, from $1,000 to $2,000 per election cycle,
with a built-in increase for inflation.
• In addition, the bill aimed to curtail so called
"issue ads" by banning the use of corporate or
union money to pay for broadcast advertising
that identifies a federal candidate within 30 days
of a primary or nominating convention, or 60
days of a general election.
Freedom of the Press
• No Prior Restraint
• Can the government stop speech before it happens?
• If the government tries to restrain speech before it is
spoken, as opposed to punishing it afterwards, it must:
•
•
•
•
•
•
clearly define what's illegal
cover the minimum speech necessary
make a quick decision
be backed up by a court
bear the burden of suing and proving the speech is illegal
and show that allowing the speech would "surely result in
direct, immediate and irreparable damage to our Nation and its
people"
• Precedents
• Near v. Minnesota (1931)
• NY Times vs. USA (Pentagon Papers)
Specific Tests
• Vagueness
• If there are restrictions on expression, how clear must a law
be?
• Chilling Effect
• The ordinance in question must fall because in certain
respects "men of common intelligence must necessarily guess
at its meaning."
• Precedent
• Hynes v. Mayor and Council of Oradell (1976)
• Least Drastic Means
• If it is necessary to limit expression, in what way should it
be done?
• The least drastic way possible…
• Precedent
• Nebraska Press Association v. Stuart (1976)
Specific Tests (con’t)
• Content Neutral
• Any restriction on speech must be neutral
• Must not favor any one group over another
• A city ordinance which prescribes no
appropriate standard for administrative action
and gives an administrative official
discretionary power to control in advance the
right of citizens to speak on religious matters
on the city streets is invalid under the First and
Fourteenth Amendments.
• Precedent
• Kunz v. New York (1951)
Freedom of Religion
• Establishment Clause
• “Congress shall make no law respecting an
establishment of religion, or prohibiting
the free exercise thereof…”
• Wall of Separation
• Not only no national religion, no government
involvement with religion
• Precedent
• Lemon v. Kurtzman (1971)
Lemon Test & Establishment
• The Lemon Test:
• State laws must have a secular legislative
purpose
• State laws must not have an effect that advances
or hinders a particular religion
• Laws must not promote an ‘excessive’
government entanglement with religion
• Future uncertain: Court has moved away from
Lemon towards more of a ‘balancing’ test
Freedom of Religion
• Free Exercise Clause
• “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof…”
• Clearer than establishment clause, but still ambiguous
• US Congress cannot regulate religion
• States cannot regulate religion
• Also cannot pass a law that puts undue burden on a religion
• Precedent
• Jehovah’s Witnesses
• Santeria
Participation (con’t)
• expanded in 19th and 20th centuries
• 15th amendment (1870) – right to vote
• 17th amendment (1913) – direct election of
senators
• 19th amendment (1920) – women’s right to vote
• 24th amendment (1964) – eliminates poll tax
• 26th amendment (1971) – right of eighteen year
olds to vote
• series of court cases (Baker v Carr and its
progeny) enforcing one person-one vote
Punishment
• protection from arbitrary, capricious,
abusive or inhumane treatment of
those accused or convicted of crimes
• limit government’s ability to use criminal
procedure for political ends
• based on 4th, 5th, 6th, 7th, and 8th
amendments
Punishment (con’t)
• 5th amendment = indictments require grand
jury, no self incrimination, no double
jeopardy, due process, just compensation
• 6th amendment = trial by jury in criminal
cases
• public, impartial, speedy, local, face accusers,
compel witnesses, access to counsel
• 7th amendment = jury trial in major civil
cases
• 8th amendment = no excessive bail; no cruel
and unusual punishments
Punishment, (con’t)
• difficult questions include:
• death penalty (Furman v GA; Gregg v GA)
• discriminatory? (McCleskey v GA); minors;
mentally impaired
• “good faith” exceptions to search and
seizure
• exceptions to self incrimination
• public safety (NY v Quarles)
• how impartial do juries have to be?
• who can be excluded
• when should counsel be provided?
Highlight: 4th 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.”
Fourth Amendment
• Privacy – protection against unreasonable
searches & seizures through warrant
requirement
• Punishment – Exclusionary Rule: evidence
gathered in violation of the Constitution
cannot be used in a trial.
• Caveat – applies only to government; it
does not guarantee the right to be free from
unreasonable searches and seizures
conducted by private citizens or
organizations (i.e. “Cheaters”).
Fourth Amendment & Privacy
• The 4th Amendment requires the government
to obtain a valid warrant in order to conduct
a search or a seizure.
• Valid warrants must establish “probable
cause” – reasonable belief that a search or
seizure would produce contraband or reveal
a criminal activity
• Exceptions
• Plain View
• Search incident to arrest
Fourth Amendment & Punishment
• Exclusionary Rule (Weeks v. United
States) – evidence obtained through an
illegal search is “fruit of the poisoned tree”
and thus cannot be used at trial.
• Exceptions:
• “Good Faith” – evidence collected through a
defective warrants could be used where police
reasonably believed it to be a good warrant
(United States v. Leon)
• “Inevitable Discovery” – evidence collected
illegally may be admitted at court if it can be
reasonably argued the evidence would have been
obtained legally
Highlight: Fifth Amendment
“No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public
danger; nor shall any person be subject for the
same offense to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of
law; nor shall private property be taken for public
use, without just compensation.”
Fifth Amendment Jurisprudence
• Double Jeopardy – individuals may be tried only
once for a particular offense
• Self-Incrimination – protects witnesses from
being forced to incriminate themselves.
• To "plead the Fifth" or to "take the Fifth" is to refuse to
answer a question because the response could form
incriminating evidence
• Due Process – the principle that the government
must normally respect all of a person's legal rights
instead of just some or most of those legal rights
when the government deprives a person of life,
liberty, or property
• Due process embraces “fundamental fairness” & those
fundamental rights that are "implicit in ordered liberty.“
• Notification of charges against you, right to be heard, etc.
Fifth Amendment & Punishment
• Fifth Amendment
• No self-incrimination
• Miranda v. Arizona (1966)
• ‘Voluntary Confessions’: The Court was called upon to
consider the constitutionality of a number of instances,
ruled on jointly, in which defendants were questioned "while
in custody or otherwise deprived of [their] freedom in any
significant way."
• Does the police practice of interrogating individuals without
notifying them of their right to counsel and their protection
against self-incrimination violate the Fifth Amendment?
• The Court held that prosecutors could not use statements
stemming from custodial interrogation of defendants unless
they demonstrated the use of procedural safeguards
"effective to secure the privilege against self-incrimination."
• Miranda Rights
Fifth Amendment & Privacy
• The Fifth Amendment limits the power
of eminent domain (the power of the
government to take private property
for public use) by requiring that "just
compensation" be paid if private
property is taken for public use.
• What is “public use”?
• Kelo v. City of New London – private
property seized for commercial use did not
violate the Fifth Amendment.
Eigth Amendment: Punishment
• Eighth amendment: “Cruel & Unusual Punishment”
• Furman v. Georgia
• The Court's one-page per curiam opinion held that the
imposition of the death penalty in these cases constituted
cruel and unusual punishment and violated the
Constitution.
• However, it left the door open for states to put in place
procedural safeguards that could permit the death penalty
to pass constitutional muster.
• Gregg v. Georgia
• In a 7-to-2 decision, the Court held that a punishment of
death did not violate the Eighth and Fourteenth
Amendments under all circumstances. In extreme criminal
cases, such as when a defendant has been convicted of
deliberately killing another, the careful and judicious use of
the death penalty may be appropriate if carefully employed.
Emanating Penumbras & Privacy
Is there a right to Privacy?
• Griswold v. Connecticut (1965)
• “a right to privacy older then the Bill of
Rights”
• Though the Constitution does not explicitly protect a general right to
privacy, the various guarantees within the Bill of Rights create penumbras,
or zones, that establish a right to privacy.
• Together, the First, Third, Fourth, and Ninth Amendments, create a new
constitutional right, the right to privacy in marital relations.
• Roe v. Wade (1973)
• a “woman’s right to privacy was so fundamental it could be infringed only
when the state interest in doing so was compelling”
• The Court held that a woman's right to an abortion fell within the right to
privacy (recognized in Griswold v. Connecticut) protected by the
Fourteenth Amendment.
• The decision gave a woman total autonomy over the pregnancy during the
first trimester and defined different levels of state interest for the second
and third trimesters.
• As a result, the laws of 46 states were affected by the Court's ruling.
Selective Incorporation
• as originally written, Bill of Rights applied
only to the national government
• 1st Amendment: “Congress shall make no
law….”
• Madison proposed language to include states
• “no State shall violate the equal rights of
conscience, or the freedom of the press, or
the trial by jury in criminal cases”
• but never adopted
• Barron v Baltimore (1833) – Court is explicit
More on Selective Incorporation
• 14th Amendment (1868)
• “no state shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United
States; nor shall any state deprive any
person of life, liberty, or property without
due process of law”
• did this mean Bill of Rights applies to
states?
• Supreme Court originally said it did not
• e.g., Twining v New Jersey (1908)
Selective Incorporation (con’t)
• Supreme Court begins to change in
1920s
• Gitlow v NY (1925) … socialist manifesto
• Supreme Court upholds conviction
(“dangerous tendency” test) … but holds
that 14th amendment extends 1st
amendment to states
• Near v MN (1931) … overturns prior
restraint of Saturday Press to publish
“malicious, scandalous, and defamatory”
statements
Selective Incorporation Cases
• since Gitlow and Near, Supreme Court
has selectively incorporated most
elements of Bill of Rights
• assembly (DeJonge v OR, 1937)
• religion (Cantwell v CT, 1940)
• public trial (In re Oliver, 1948)
• search and seizure (Wolf v CO, 1949)
• exclusionary rule (Mapp v OH, 1961)
• involved girlfriend of Don King
Selective Incorporation Cases
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cruel/unusual punishment (Robinson v CA, 1962)
right to counsel (Gideon v Wainwright, 1963)
self-incrimination (Malloy v Hogan, 1964)
confront witnesses (Pointer v TX, 1965)
impartial trial (Parker v Gladden, 1966)
speedy trial (Klopfer v NC, 1967)
compel witnesses (Washington v TX, 1967)
jury trial (Duncan v LA, 1968)
double jeopardy (Benton v MD, 1969)
Selective Incorporation Wrap-Up
• rationale = “fundamental to the American
scheme of justice” (Duncan v LA, 1968)
• prominent items not incorporated
• right to keep and bear arms (2nd
amendment)
• quartering troops (3rd amendment)
• jury trial for civil suits (7th amendment)
• also:
• part of 5th (grand jury) and 8th (excessive
bail)
Incorporation
• Barron v. Baltimore (1833)– Bill of Rights does not
apply to the States
• Supreme Court overturns Barron & Twining -adopts incorporation doctrine.
• Incorporation is legal doctrine by which portions of
the U.S. Bill of Rights are applied to the states
through the Due Process Clause of the Fourteenth
Amendment.
• Selective Incorporation – the incorporation
doctrine has been applied piecemeal, incorporating
portions of BofR one at a time.
• Gitlow v. New York (1925) – 1st amendment
• Wolf v CO (1949) – search & seizure
• Mapp v. Ohio (1961) – exclusionary rule