Transcript America’s Democratic Republic

America’s Democratic
Republic
Ch. 4: Civil Liberties
Introduction
The meaning of our freedoms is constantly
questioned and subject to change
The Framers supported liberty but defined
it narrowly
Civil liberties in America have been greatly
expanded over the life of our country
Civil Liberties in the Constitution
The Framers were especially concerned
about founding a society in which liberty
was encouraged
The Framers believed that government
itself was capable of threatening liberty
Civil Liberties in the Constitution
Civil liberties: freedoms protected by
constitutional provisions, laws and
practices from certain kinds of
governmental interference
Two categories
Expression, belief and association
Protections for those accused of criminal
activities
Civil Liberties in the Constitution
The Framers protected few liverties from
the national and state governments
Protected liberties not so much by writing
them down, but by developing
Republican government
Separation of powers
Checks and balances
federalism
Civil Liberties in the Constitution
The Framers thought some liberties were
so crucial that they wrote them into the
Constitution
Anti-Federalists criticized the lack of
liberties in the Constitution, so
Bill of Rights
Civil Liberties in the Constitution
Few of our most cherished liberties are
actually found in the Constitution
Developed through
Political activities
Government
Social movements
Interest groups
Individuals
Rights and Liberties in the 19th Century
Economic liberty in the Early Republic
Many of the liberties in the Constitution protect
not individual freedoms, but property rights
Rights and Liberties in the 19th Century
Economic liberty in the Early Republic
The Marshall Court (1801-1835)
Contract clause was used to protect unwarranted
state action
• Expanded property rights
Cases
Barron v. Baltimore (1833)
Fletcher v. Peck (1810)
Dartmouth College v. Woodward (1819)
Rights and Liberties in the 19th Century
Economic liberty in the Early Republic
Taney Court (1836-1864)
Distinguished between private property used to
encourage economic growth and that used for mere
enjoyment
Cases
• Charles River Bridge v. Warren Bridge (1837)
• Dred Scott v. Sanford (1857)
Rights and Liberties in the 19th Century
Economic Liberty After the Civil War
14th Amendment
Due process clause
• Supreme Court interpreted this clause as a protection for
businesses against the states regulatory efforts
Lochner v. New York (1905)
Property rights expand, refined, and altered to assist
the industrial economy
Nationalization of the Bill of Rights
The Bill lf Rights is the foundation of
American Freedom
Until the 20th century, it did not apply to the
states
Became applicable to the states through
selective incorporation
Bill of Rights is not fully incorporated
Nationalization of the Bill of Rights
Beginnings of incorporation
14th Amendment: three clauses prohibit states
from violating the rights and liberties of those
living in them
Citizenship clause
Privileges and immunities clause
Due process clause
Nationalization of the Bill of Rights
How do we get incorporation?
United States v. Carolene Products Company
(1938)
Footnote Four and Harlan Fiske Stone
• Most state legislation would receive ordinary scrutiny;
i.e., the Court would assume state actions constitutional
unless convinced otherwise
Nationalization of the Bill of Rights
How do we get incorporation?
United States v. Carolene Products Company
(1938)
Footnote Four and Harlan Fiske Stone
• Some activities would automatically be presumed
unconstitutional unless states could prove otherwise
 Contradict specific prohibitions in the Bill of Rights
 Restrict the democratic process
 Discriminate against racial, ethnic or religious
minorities
Freedom of Speech
Speech can take many forms, including
political, symbolic and money
Gitlow v. New York (1925)
Incorporation of free speech clause in First
Amendment
Must show a “clear and present danger”
More political speech is protected than not
Freedom of Speech
Not every type of speech is protected
That which leads or has led directly to violence
or vandalism
Interfered with constitutional rights of others
Disrupting a legitimate government function
Passed on classified info
Trespassing
Freedom of Speech
To restrict political speech attempt must be
Content neutral
Serve a legitimate government purpose
Narrowly tailored
Not have a chilling effect
Freedom of Speech
Speech mixed with conduct may be
restricted if
Restrictions are narrowly tailored and aimed at
conduct
Speech is unmolested
Freedom of Speech
Suppression of Free Expression
Internal security and national defense
Historic incidents during
War
National crisis
Freedom of the Press
Gitlow v. New York (1925) included press
Issues
Prior restraint
Protection of sources
Cases
New York Times v. Sullivan (1964)
New York Times v. United States (1971)
Freedom of the Press
Offensive Media – Pornography
Legal term is obscenity
Not protected, but
Argument has been over the definition of obscenity
Miller v. California (1973)
Appeals to prurient interest
Specific definition of what sexual conduct is
obscene
Work as a whole lacks serious literary, artistic,
political or scientific value (LAPS test)
Freedom of the Press
Offensive Media – Pornography
If the work survives any one element of Miller, it
is not obscene
LAPS is judged on the testimony of expert witnesses,
not community standards
If all three parts of Miller are met, community
standards can be used
Freedom of the Press
Offensive Media – Pornography
New York v. Ferber (1982): states can prohibit
production, distribution and sale of child porn
Communications Decency Act (1996)
Violated First Amendment
Overly broad or vague
Freedom of Religion
Competing issues
Free exercise clause
Establishment clause
“wall of separation between church and state”
(Thomas Jefferson)
• Where is the line drawn?
Incorporated
Freedom of Religion
Lemon Test: avoiding the establishment of
religion
Lemon v. Kurtzman (1971)
Law has a secular purpose
Primary effect of law does not retard nor advance
religion
Prohibits excessive government entanglement
between state and religion
Freedom of Religion
Religion in Public Schools
Since early 1960’s, the Court has consistently
struck down laws regarding a moment of
silence
Wide range of constitutionally protected
religious activity in schools
Freedom of Religion
Religion in Public Schools
Cases
Engle v. Vitale (1962)
• Court struck down required recitation of
nondenominational prayer
Lee v. Weisman (1992)
• Court struck down school-sponsored prayers at
graduations
Santa Fe Independent School District v. Doe (2000)
• Court struck down student-led prayers at schoolsponsored events
Freedom of Religion
Religion in Public Schools
Other issues
Voluntary class prayer or moment of silence
Constitutional amendment re: school prayer
School curriculum
• Evolutionary biology v. creationism or intelligent design
Privacy
Not mentioned in the Constitution
Inherent in the Bill of Rights
4th Amendment + 9th Amendment
“penumbras”
Griswold v. Connecticut (1965)
Fundamental right may exist, but
Nature?
Scope?
Privacy
Cases
Roe v. Wade (1973)
Constitutional right to terminate pregnancy
Lawrence v. Texas (2003)
Overturned Bowers v. Hardwick (1986)
Constitutionally protected right to privacy regarding
consenting sexual conduct
Privacy
Right to die
Court has neither endorsed nor rejected this
right
Assisted suicide
Privacy
Private Communications
Government surveillance
USA Patriot Act
Warrantless phone and Internet searches
Rights of the Accused
Framers included this in the main part of
the Constitution
Five of the ten rights in the Bill of Rights
deals with these issues
Issue?
Controlling crime v. protection from wrongful
prosecution, conviction and incarceration
Rights of the Accused
Unreasonable Search and Seizure
Fourth Amendment
Mapp v. Ohio (1961)
Exclusionary rule
Rights of the Accused Rights of the
Accused
Unreasonable Search and Seizure
Warren Court (1953-1969)
Expand rights of the accused
Burger Court (1969-1986)
Limited those rights
Authorized a “good-faith” exception to exclusionary
rule
Rights of the Accused Rights of the
Accused
Unreasonable Search and Seizure
Rehnquist Court (1986-2003)
“Retroactive probable cause”
Further limits against exclusionary rule
Self-Incrimination
Fifth Amendment
Warren Court
Miranda V. Arizona (1966)
Burger Court
Upheld Miranda, but allowed exceptions
Rehnquist Court
Coerced confession may be “harmless error,” but
Upheld Miranda four times between 2000 and 2004
Right to Counsel
Sixth Amendment
Powell v. Alabama (1932)
Legal counsel for indigent accused of capital crime
Gideon v. Wainwright (1963)
Defendants accused of any felony entitled to a lawyer
States must supply a lawyer to indigent
Capital Punishment
Eighth Amendment
Furman v. Georgia (1972)
“Cruel and unusual punishment” because
“Capricious and arbitrary”
Gregg v. Georgia (1976)
Capital punishment not inherently cruel or unusual if
procedures were nonarbitrary and nondiscriminatory
“Obstacle course” for states wanting to use death
penalty
• Defendant allowed to show mitigating circumstances
Capital Punishment
Important Death Penalty Cases
McCleskey v. Kemp (1987)
Race and death penalty
Penry v. Lynaugh (1989)
Execution of the retarded
Stanford v. Kentucky (1989)
Execution of a minor
Capital Punishment
Important Death Penalty Cases
McClesky v. Zant (1991)
Limited avenues and means of challenging
convictions
Kenney v. Tamayo-Reyes (1992)
Limited right of death row inmates convicted in state
courts to appeal to Supreme Court
Capital Punishment
Death Penalty
Decrease in support
Fairness
Wrongful convictions
• Quality of defense
• Race
Use of DNA
Civil Liberties and Struggle Against
Terrorism
Wars inevitably lead to curtailment of civil
liberties
President George W. Bush and war on
terrorism
Treatment of detainees
Spying, wiretapping, etc.
Torture
USA Patriot Act
Civil Liberties
Expansion in U. S.
Gaps in wealth and income = fewer
liberties
The state does sometimes curtail liberties
Constant vigilance
Chapter 4: Civil Liberties
The End