Transcript AP US Government and Politics

AP US Government and Politics
Chapter 5 – Civil Liberties
"Civil Rights" vs. "Civil Liberties”
What’s the difference between
"civil rights" and "civil liberties“?
“Civil rights" - the basic right to be free from unequal
treatment based on certain protected characteristics
(race, gender, disability, etc.) in settings such as
employment and housing.
"Civil liberties" - basic rights and freedoms that are
guaranteed -- either explicitly identified in the Bill of
Rights and the Constitution, or interpreted through
the years by courts and lawmakers.
"Civil Rights" vs. "Civil Liberties”
Civil liberties include:
• Freedom of speech
• The right to privacy
• The right to be free from unreasonable
searches of your home
• The right to a fair court trial
• The right to marry
• The right to vote
"Civil Rights" vs. "Civil Liberties”
One way to consider the difference between "civil rights" and
"civil liberties" is to look at
1. what right is affected
2. whose right is affected.
For example, as an employee, you do not have the legal right
to a promotion, mainly because getting a promotion is not
a guaranteed "civil liberty."
But, as a female employee you do have the legal right to be
free from discrimination in being considered for that
promotion -- you cannot legally be denied the promotion
based on your gender (or race, or disability, etc.).
By choosing not to promote a female worker solely because of
the employee's gender, the employer has committed a civil
rights violation and has engaged in unlawful employment
discrimination based on sex or gender.
Civil Liberties - Freedom vs. Order
• How to balance the competing interests of the
people and the government
• Civil liberties conflicts usually involve:
– An individual (or group of individuals) seeking to
exercise certain freedoms
• And
– The government seeking to keep order and preserve
the rights of others
• OR
– Two competing liberties
Freedom vs. Order
Civil Rights - Freedom vs. Equality
• Are private businesses free to hire and
promote whomever they want?
• Are universities free to admit whomever they
want?
• How do we balance the competing need for
freedom with the need for equality?
The Roots of Civil Liberties
• Federalist vs. Anti-federalist debate
– How strong should the federal government be?
– Is there a need to specifically limit the powers of the
federal government?
– Most Framers originally opposed the Bill of Rights on the
grounds that it was superfluous because the Constitution
enumerated what the US government could and could not
do and states had their own Bills of Right
• Bill of Rights compromise
– Anti-federalists would only ratify the Constitution if a Bill
of Rights was added
• James Madison primary author of Bill of Rights
US Bill of Rights
• I – Speech, press,
assembly, petition,
religion
• II – Bear arms
• III – Quartering of
troops
• IV – Search and Seizures
• V – Due process and
rights of the accused
• VI – defendant’s rights
• VII – Right to a jury trial
in civil cases
• VIII – No excessive bail,
no cruel or unusual
punishment
• IX – List of specific
rights is not exclusive
• X – Reserved powers
clause
AMENDMENT V
*INDICTMENT BY A GRAND JURY…enough
evidence to be charged.
*DOUBLE JEOPARDY…can’t be tried twice for a crime.
*SELF-INCRIMINATION…can’t be forced to testify
against yourself “taking the 5th”.
*DUE PROCESS…government must go through the proper
steps.
AMENDMENT VI
*GUARANTEED A FAIR, FAST, &
PUBLIC TRIAL
*RIGHT TO BE PRESENT IN COURT
*RIGHT TO HAVE A LAWYER
AMENDMENT VII
RIGHT TO A TRIAL BY JURY
IN CIVIL CASES + $20*
*Changed by Congress to
be $75,000
AMENDMENT VIII
*PROTECTION AGAINST EXCESSIVE
BAIL
$$$$$$$
*PROTECTION AGAINST CRUEL
& UNUSUAL PUNISHMENT
Bill of Rights – Original Interpretation
• The Bill of Rights, when ratified in 1791, applied only
to the powers of the national government and did
not apply to the states.
• The first five words of the First Amendment:
“Congress shall make no law…”
• Barron vs. Baltimore (1833)
– Supreme Court ruled that Bill of Rights applied
only to US government
• The Court’s decision in Barron vs. Baltimore
remained unchallenged until after the 14th
Amendment was added to the Constitution in 1868
A Double Standard
• Until the Bill of Rights was incorporated to apply to the states,
the United States had two drastically different systems of
criminal justice
• Federal prosecutors were required to use search warrants, the
exclusionary rule, and trial by jury, but state prosecutors were
not required to do so
• The Supreme Court eventually extended most criminal
procedure rights to the states to avoid giving state law
enforcement officials incentive to violate the U.S. Constitution
Selective Incorporation
Applying the Bill of Rights to
State and Local Government
14th Amendment - 1868
Section 1. All persons born or naturalized in the U.S. and subject to the
jurisdiction thereof, are citizens of the U.S. and of 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 the law; nor deny to any person within its jurisdiction the equal
protection on the laws.
Three Clauses:
1.
Privilege and Immunities Clause
2.
Due Process Clause*
3.
Equal Protection Clause*
*significantly impacted future SC decisions
Incorporation
• When the Supreme Court uses the Fourteenth
Amendment’s Privileges and Immunities
Clause or Due Process Clause or Equal
Protection Clause to rule that a state law or
policy has violated a Bill of Rights protection,
it is said to have “incorporated” that
protection.
Gitlow v. New York (1925)
• Benjamin Gitlow wrote a pamphlet entitled “The
Revolutionary Age” urging industrial workers to
strike and join a revolution to overthrow
organized government.
• Gitlow was arrested and convicted for violating a
New York state law that made it a crime to
advocate the overthrow of the government by
force or violence
• Gitlow argued that the New York law violated his
right to freedom of speech and of the press
Gitlow v. New York (1925)
• Does the First Amendment apply to the states?
• Yes, by virtue of the liberty protected by due
process that no state shall deny (14th
Amendment)
• The Supreme Court voted to uphold Gitlow’s
conviction, but ruled that “freedom of speech
and of the press…are among the fundamental
and personal rights and liberties protected by the
Due Process Clause of the 14th Amendment”
Selective Incorporation
• The ratification of the 14th Amendment created a
formal framework for extending certain aspects of
the Bill of Rights to apply to the states
• The incorporation doctrine becomes the justification
for using the 14th Amendment to apply the Bill of
Rights to states
• Gitlow vs. New York was the first incorporation case
• Selective incorporation - The Supreme Court
decides, on a case-by-case basis, which provisions of
the Bill of Rights it wishes to apply to the states.
Selective Incorporation
Important understandings
• Incorporation did not happen all at once
• It happened one provision and one clause of
the Bill of Rights at a time
• Several of the amendments have NOT been
incorporated
Table 5.1
P. 157
The Selective Incorporation of the Bill of Rights
Amendment
Right
Date
Case Incorporated
I
Speech
Press
Assembly
Religion
1925
1931
1937
1940
Gitlow v. New York
Near v. Minnesota
DeJonge v. Oregon
Cantwell v. Connecticut
II
Bear arms
2008
DC v. Heller
III
Quartering of troops
IV
No reasonable search
or seizure
Exclusionary rule
1949
Wolf v. Colorado
1961
Mapp v. Ohio
Just compensation
Self-incrimination
Double jeopardy
Grand jury indictment
1897
1964
1969
Chicago, B&Q RR Co. v. Chicago
Malloy v. Hogan
Benton v. Maryland*
NOT INCORPORATED†
V
NOT INCORPORATED
* Overruled Palko v. Connecticut; †Trend in state criminal cases is away from grand juries
Table 5.1
P. 157
The Selective Incorporation of the Bill of Rights
Amendment Right
Date
Case Incorporated
Public trial
Right to counsel
Confrontation of
witnesses
Impartial trial
Speedy trial
Compulsory trial
1963
1968
1967
1965
1948
1967
Gideon v. Wainwright
Duncan v. Louisiana
Klopfer v. North Carolina
Pointer v. Texas
In re Oliver
Washington v. Texas
Parker v. Gideon
VII
Civil jury trial
2008
NOT INCORPORATED
VIII
No cruel and unusual
punishment
1962
Robinson v. California
VI
No excessive fines or
bail
NOT INCORPORATED