Download Ch 4 Civil Liberties

10/23/2013
Civil Liberties
Chapter 4
Definitions
Civil Liberties – refer to the rights and protections
in the Bill of Rights. These are the limitations on
government.
Civil Rights – refer to those rights which go along
with national citizenship, voting equality, and due
process of law; guarantees
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Roots of Civil Liberties:
The Bill of Rights
The Incorporation Doctrine: The Bill of Rights Made
Applicable to the States
14th (1868)
Bill of Rights applies to actions of states, not just federal
government
Due process clause
Applied to Bill of Rights
Substantive due process – states were accountable in
1897 per the US Supreme Court in regards to health,
welfare and morals of citizens.
All persons born or naturalized in the US are citizens
Post Civil War Amendments
13th Amendment: Freed the slaves (1865)
Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within
the United States, or any place subject to their jurisdiction.
14th Amendment: Citizenship, Due Process, Equal Protection (1868)
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and the State wherein
they reside. 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; nor deny to any person within its jurisdiction the equal protection of
the laws
15th Amendment: Right to Vote (1870)
The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or
previous condition of servitude.
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Roots of Civil Liberties:
The Bill of Rights
US Supreme Court used doctrine of Selective
Incorporation to determine which rights in the Bill
of Rights apply to the states under the due process
clause of the 14th Amendment
Fundamental Freedoms protected under selective
incorporation
Rights that states must protect:
Freedom of press
Freedom of speech
Freedom of assembly
When did the Court first articulate the doctrine of
selective incorporation?
Gitlow v, New York (1925)
Benjamin Gitlow (socialist) handed out leaflets
(left-wing manifesto) urging the overthrow of
the federal govt
Convicted under a New York state law that
prohibited such actions
US Supreme Court ruled that by due process of
the 14th Amendments states can’t forbid free
speech unless it passes the “dangerous tendency
test” or “clear and present danger.”
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Barran v. Baltimore 1833…no 14th Amendment yet
Barron v. Baltimore (1833)
John Barron was co-owner of a profitable wharf in the
harbor of Baltimore. As the city developed and expanded,
large amounts of sand accumulated in the harbor,
depriving Barron of the deep waters which had been the
key to his successful business. He sued the city to recover
a portion of his financial losses.
Does the Fifth Amendment deny the states as well as the
national government the right to take private property for
public use without justly compensating the property's
owner? Example of Eminent Domain
The Supreme Court answered this question by saying
“The Bill of Rights limited only the national government
and not the state governments.”
How has selective incorporation made the Bill
of Rights applicable to the states?
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First Amendment Guarantees:
Freedom of Religion
The Establishment Clause - Congress shall make no
law respecting an establishment of religion, or prohibit
the free exercise thereof
Separation of church and state
“A wall of separation of church and state” – T. Jefferson
1962 Engel v. Vitale – No voluntary or nondenominational
prayer in schools.
1971 Lemon v. Kurtzman no direct aid for church-related
schools
Lemon test - Must have secular purpose, must not advance or
prohibit a religion, Must not entangle government with religion
Aiding students or religion? A fine line.
1985 Wallace v. Jaffree - No endorsing or disapproving religion
First Amendment Guarantees:
Freedom of Religion
The Free Exercise Clause – Congress shall make no
laws prohibiting the free exercise of religion
Free exercise clause not absolute
Some religious rites considered illegal
Oregon v. Smith (1990) case – Peyote Use
State must provide compelling reason to limit exercise of
religion
Means that no type of religious belief can be prohibited
and restricted by the government
Except when “practices” go against public policy
Vaccinations, school textbooks, illegal drugs
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First Amendment Guarantees:
Freedoms of Speech, Press, Assembly,
and Petition
Freedoms of Speech and the Press
Prior restraint – govt can’t prohibit speech or publications
Alien and Sedition Acts - Censored criticisms of the government
Slavery, Civil War speech again censored
World War I and anti-government speech
Protected Speech and Press
Limiting prior restraint…New York Times Co v US in
1970s…Supreme Court ruled cannot block publication of
Pentagon Papers
Symbolic speech
Hate speech
First Amendment Guarantees: Freedoms of
Speech, Press, Assembly, and Petition
Unprotected Speech and Press
Unprotected speech
Libel – written words
Slander - spoken words
Fighting words
Filthy words
Obscenity
Roth v. United States (1956)
Miller v. California (1973)
Osborne v. Ohio (1990)
Speech that presents a “clear and present danger” to
cause a condition, actual or imminent
There may be restrictions if the expression brings about
some “evil” (the bad tendency rule) e.g. violent overthrow
of govt.
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First Amendment Guarantees: Freedoms of
Speech, Press, Assembly, and Petition
Freedoms of Assembly and Petition
Freedom to assemble hinges on peaceful conduct
Subject to rules regarding free speech
Right to petition government about issues
Second Amendment: Right to
Keep and Bear Arms
Included to prevent Congress from
disarming state militias
Dred Scott v. Sandford (1857)
The right to bear and carry arms a basic right of
citizenship
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Rights of Criminal Defendants
4th Amendment
Searches and Seizures
Protection from unreasonable searches
Warrants
Probable cause
Drug tests are constitutional
Rights of Criminal Defendants
5th Amendment
Protection against self-incrimination
Miranda v. Arizona (1966)
Right to remain silent
Knowledge that what you say can be used against you
Right to an attorney present during questioning
Right to have an attorney provided if you cannot afford
one
Double jeopardy – cannot be tried twice for
same crime
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Rights of Criminal Defendants
4th and 5th Amendments:
Exclusionary Rule – prevents the use of
illegally obtained evidence
Mapp v. Ohio (1961) – cannot use illegally
seized evidence; inadmissable in courts
Exceptions to the exclusionary rule
“Good faith” mistakes
Rights of Criminal Defendants
6th Amendment
Right to Counsel
Sixth Amendment right to attorney
Gideon v. Wainwright (1963)
State must provide attorney for indigent
Right to counsel begins with first appearance before a
judge
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Rights of Criminal Defendants
6th Amendment
Jury Trials
Speedy and public trial by impartial jury
Right to confront witnesses
Jury of peers
Racial peers
Gender
Rights of Criminal Defendants
8th Amendment
Cruel and Unusual Punishment
Cruel and unusual punishment not
defined
Furman v. Georgia (1972)
Protecting the wrongfully convicted
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States that Allow the Death Penalty
Right to Privacy
Birth Control
Right of women to obtain contraceptives
Griswold v. Connecticut (1965)
Abortion
Roe v. Wade (1973)
Prohibits state bans on abortion
Planned Parenthood v. Casey (1992)
Restrictions cannot place “undue burden” on woman
Homosexuality
Right to privacy extends to private sexual behavior
Lawrence v. Texas (2003)
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Right to Privacy
Right to Die
Cruzan v. Director of Missouri Health Department (1997)
Life support can be removed if there is clear evidence
the person wanted.
Do Not Resituate (DNR)
No suicide like with Dr. Jack Kevorkian…Oregon’s doctor
assisted suicide laws held up by US Attorney General
since 1997
Everyone should have a living will and Medical Power of
Attorney
Civil Liberties and Combating
Terrorism
The First Amendment
USA PATRIOT Act
Limits on freedom of speech
Constraints on media
The Fourth Amendment
The USA PATRIOT Act and impact on illegal search
and seizure
Private records
Search of private property
Collection of foreign intelligence
Who is sending and receiving communications
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Civil Liberties and Combating
Terrorism
Due Process Rights
Reduced rights of habeas corpus
Detention facilities
Denied Right to trial by jury
Cruel and unusual punishment may be overlooked
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