Transcript Chapter 15: Order and Civil Liberties

Chapter 15:
Order and Civil
Liberties
The Bill of Rights
• Failure to include a bill of rights was the most
important obstacle to the adoption of the
Constitution
• Bill of Rights originally imposed limits on the
national government but not on the state
governments
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The Bill of Rights
• Civil liberties: freedoms guaranteed to
individuals
• Civil rights: powers or privileges guaranteed to
individuals and protected from arbitrary removal
at the hands of government or individuals
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Freedom of Religion
• First Amendment prevents government from
interfering with freedom of religion in two
different ways
– Establishment clause: forbids government establishment
of religion
– Free-exercise clause: prevents government from
interfering with the exercise of religion
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Freedom of Religion
• The Establishment Clause
– Requires government to maintain religious neutrality but
does not bar all assistance that incidentally aids religious
institutions
– Lemon v. Kurtzman (1971) established a 3-prong test for
determining constitutionality of government programs
under establishment clause
• Must have a secular purpose
• Primary effect does not advance or inhibit religion
• Must not entangle the government excessively with religion
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Freedom of Religion
• The Establishment Clause
– Agostini v. Felton (1997) loosened tests developed in
Lemon
– Court has consistently equated prayer in public schools
with support of religion
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Freedom of Religion
• The Free Exercise Clause
– Protects religious beliefs but not actions based on those
beliefs
– Strict scrutiny: law or policy must be justified by a
“compelling governmental interest,” as well as being the
least restrictive means for achieving that interest
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Freedom of Religion
• The Free Exercise Clause
– Court moved away from strict scrutiny in Employment
Division v. Smith (1990)
• Declared laws that indirectly restrict religious practices are
acceptable
• Only laws aimed at religious groups are constitutionally
prohibited
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Freedom of Religion
• The Free Exercise Clause
– Religious Freedom Restoration Act (1993) required state
and local governments to satisfy strict scrutiny
– Court declared RFRA not binding to state and local
governments, only in federal cases
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Freedom of Expression
• Free expression clauses: the press and
speech clauses in the 1st Amendment
• Dominant view: clauses confer a right to
unrestricted discussion of public affairs
• Clauses bar most forms of Prior restraint:
censorship before publication
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Freedom of Expression
• Approaches to resolution of free expression
claims
– Government can only regulate or punish advocacy of ideas
if it can prove an intent to promote lawless action and
demonstrate a high probability that such action will occur
– Government may impose reasonable restrictions on the
means for communicating ideas, restrictions that can
incidentally discourage free expression
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Freedom of Expression
• Freedom of Speech
– Clear and present danger test: a means by which the
Supreme Court has distinguished between speech as the
advocacy of ideas, which is protected by the 1st
Amendment, and speech as incitement, which is not
protected
– Schenck v. United States (1919)
– Gitlow v. New York (1925)
– Brandenburg v. Ohio (1969)
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Freedom of Expression
• Symbolic expression: nonverbal
communication
– Generally receives protection than pure speech
– Tinker v. Des Moines Independent County School District
(1969)
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Freedom of Expression
• Fighting Words and Threatening Expression
– Fighting words: speech that is not protected by the 1st
Amendment because it inflicts injury or tends to incite an
immediate disturbance of the peace
– Chaplinsky v. New Hampshire (1942)
– Cohen v. California (1971)
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Freedom of Expression
• Fighting Words and Threatening Expression
– Communications Decency Act (1996)
• Made it a crime for a person to knowingly circulate “patently
offensive” sexual materials to sites accessible to minors
• Overturned in Reno v. ACLU (1997)
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Freedom of Expression
• Obscenity
– Obscene material is entirely excluded from constitutional
protection
– Miller v. California (1973)
• The work taken as a whole appeals to the prurient interest
• The work portrays sexual conduct in a patently offensive way
• The work taken as a whole lacks serious literary, artistic,
political or scientific value
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Freedom of Expression
• Freedom of the Press
– The First Amendment guarantees that government will not
interfere with the freedom of the press
– Defamation of Character
• Libel: written defamation of character
• New York Times v. Sullivan (1964)
• Public figures: people who assume roles of prominence in
society or thrust themselves to the forefront of public
controversy
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Freedom of Expression
• Freedom of the Press
– Prior Restraint and the Press
• Near v. Minnesota (1931)
• Court has acknowledged that prior restraint may be
permissible in exceptional circumstances, but has never
specified what they are
• New York Times v. United States (1971)
– The Pentagon Papers
– Government had not met the burden of proving immediate,
inevitable, and irreparable harm would follow publication of
documents
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Freedom of Expression
• Freedom of the Press
– Freedom of Expression vs. Maintaining Order
• Courts have consistently held that freedom of the press does
not override requirements of law enforcement
• Educators may limits speech within confines of school
curriculum if their actions serve any “valid educational
purpose”
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Freedom of Expression
• Rights to Peaceable Assembly and to Petition
the Government
– Precedent has merged these rights
– Government cannot prohibit peaceful political meetings or
criminalize those who lead or attend them
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The Right to Bear Arms
• Derived from 2nd Amendment
• Gun control advocates assert the amendment protects
states’ rights to maintain collective militia
• Gun use advocates assert amendment protects
individuals’ rights to own and use guns
• Restrictions on gun ownership have passed
constitutional muster
• Prohibitions on gun ownership may infringe on the 2nd
Amendment
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Applying the Bill of Rights to the States
• Constitution as it was originally written set limits
on both national and state governments
– Bill of attainder: a law that pronounces an individual guilty
of a crime without a trial
– Ex post facto law: a law that declares an action to be
criminal after it has been performed
– Obligation of contracts: the obligation of the parties to a
contract to carry out its terms
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Applying the Bill of Rights to the States
• The 14th Amendment
– Most of the individual protections found in the Bill of Rights
now apply to the states
– Two meanings of the due process clause
• Requires government to adhere to appropriate procedures
• Forbids unreasonable government action
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The Selective
Incorporation of the Bill of Rights
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Applying the Bill of Rights to the States
• The Fundamental Freedoms
– Fundamental freedom”: “neither liberty nor justice would
exist if they were sacrificed” – Palko v. Connecticut (1937)
– Justified applying only certain provisions in the Bill of
Rights to the states
– By 1969, court had overturned Palko and most of the Bill
of Rights was applicable to the states
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Applying the Bill of Rights to the States
• Criminal Procedure: The Meaning of
Constitutional Guarantees
– Application of 4th-8th Amendments has reshaped American
criminal justice in 2 stages
• Judgment that a guarantee asserted in the Bill of Rights also
applies to the states
• Requires the judiciary to give specific meaning to the
guarantee (to insure uniformity)
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Applying the Bill of Rights to the States
• Criminal Procedure: The Meaning of
Constitutional Guarantees
– Right to a jury trial in criminal cases
• Right was made obligatory
• Court did not require specific number of jurors, beyond
minimum of 6
• Court did not require unanimous jury verdict
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Applying the Bill of Rights to the States
• Criminal Procedure: The Meaning of
Constitutional Guarantees
– Right to an attorney
• Gideon v. Wainwright (1963)
• Court left no room for variation in the states
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Applying the Bill of Rights to the States
• Criminal Procedure: The Meaning of
Constitutional Guarantees
– Informing suspects of their constitutional rights
• Miranda v. Arizona (1966)
• Miranda warnings: statements concerning rights that police
are required to make to a person before he or she is
subjected to in-custody questioning
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Applying the Bill of Rights to the States
• Criminal Procedure: The Meaning of
Constitutional Guarantees
– Unreasonable search and seizure
• Federal level follows exclusionary rule: evidence obtained in
illegal search and seizure cannot be used in trial
• Wolf v. Colorado (1949): states were not bound by
exclusionary rule
• Mapp v. Ohio (1961): applied exclusionary rule to the states
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Applying the Bill of Rights to the States
• Criminal Procedure: The Meaning of
Constitutional Guarantees
– Unreasonable search and seizure
• United States v. Leon (1984)
– Costs of exclusionary rule are only justifiable if deterring
police misconduct
– Established good faith exception: evidence seized on the
basis of a mistakenly issued search warrant can be introduced
at trial if the mistake was made in good faith, that is, if all
parties involved had reason at the time to believe that the
warrant was proper
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Applying the Bill of Rights to the States
• The USA PATRIOT Act
– Greatly expanded ability of law enforcement and
intelligence agencies to tap phones, monitor Internet
traffic, and conduct other forms of surveillance
– Example: Section 215
• Government may search private records, only needing to
certify without substantiation that search protects against
terrorism
• Gag order prevents person turning over the records from
disclosing the search
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Applying the Bill of Rights to the States
• Detainees and the War on Terrorism
– President has maintained detainees designated as “enemy
combatants” are not entitled to basic legal requirements
– Supreme Court has rejected this position
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The Ninth Amendment
and Personal Autonomy
• Two views of the 9th Amendment
– Amendment may protect rights that are not enumerated
– Amendment may protect state governments against the
assumption of power by national government
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The Ninth Amendment
and Personal Autonomy
• Two views of the 9th Amendment
– Controversy: From Privacy to Abortion
• Griswold v. Connecticut (1965): Court asserted that the Bill
of Rights created a zone of privacy for the individual that
gave the individual the right to make choices regarding
sexual intercourse and reproduction
• Roe v. Wade (1973): Court declared Texas law making it a
crime to obtain an abortion unconstitutional
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The Ninth Amendment
and Personal Autonomy
• Two views of the 9th Amendment
– Controversy: From Privacy to Abortion
• Webster v. Reproductive Health Services (1989): Court
upheld significant government restrictions on abortion
• Court has moved cautiously toward greater government
control of abortion
• Planned Parenthood v. Casey (1992): reaffirmed Roe but
tolerated additional restrictions
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The Ninth Amendment
and Personal Autonomy
• Two views of the 9th Amendment
– Personal Autonomy and Sexual Orientation
• Bowers v. Hardwick (1986): Constitution does not protect
homosexual relations between consenting adults, even in
their own home
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The Ninth Amendment
and Personal Autonomy
• Two views of the 9th Amendment
– Personal Autonomy and Sexual Orientation
• Lawrence and Garner v. Texas (2003): “… an emerging
awareness that liberty gives substantial protection to adult
persons in deciding how to conduct their private lives in
matters pertaining to sex”
• Issues around sexual orientation have shifted toward the
states
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