Civil Liberties The First Constitutional Amendments: The Bill of Rights 1787 – Most state constitutions explicitly protected a variety of personal liberties
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Transcript Civil Liberties The First Constitutional Amendments: The Bill of Rights 1787 – Most state constitutions explicitly protected a variety of personal liberties
Civil Liberties
The First Constitutional
Amendments: The Bill of Rights
1787 – Most state constitutions explicitly
protected a variety of personal liberties
Speech, religion, freedom from unreasonable
search and seizure, trial by jury
New Constitution shifted power to the
national government
Would the national government uphold these
liberties?
Anti-Federalists voiced this concern
The First Constitutional
Amendments: The Bill of Rights
Bill of Rights addition defeated unanimously
at the federal convention
Federalists argued that a bill of right was
unnecessary.
Already included by states
Foolhardy to list things that the national
government had NO power to do
Some Federalists supported the idea; Jefferson
for example
James Madison did not until politics intervened
He sought House seat in a district that was largely
Anti-Federalist in nature.
Made good on his promise
The First Constitutional
Amendments: The Bill of Rights
Bill of Rights
1789 Congress sent proposed Bill of Rights to the
states for ratification, which occurred in 1791
The first ten amendments to the Constitution contain
numerous specific guarantees
Free speech, press and religion
Highlight Anti-Federalist fears
Ninth Amendment
“The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained
by the people.”
Tenth Amendment
Reiterates that powers not delegated to the national
government are reserved to the states or to the people.
The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States
Bill of Rights intended to limit powers of the
national government
Barron v. Baltimore (1833)
Court ruled that the national Bill of Rights
limited only the actions of the U.S. government
and not those of the states.
But decision suggested the possibility that some
or all of the protections might be interpreted to
prevent state infringement of those rights.
The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States
14th Amendment
Due process clause
Over the years this clause has been construed to
guarantee to individuals a variety of rights
Economic liberty to criminal procedural rights
and protection from arbitrary governmental
action
Substantive due process
Judicial interpretation of the Fifth and
Fourteenth Amendments’ due process clause
that protects citizens from arbitrary or unjust
laws
The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States
Incorporation Doctrine
An interpretation of the Constitution that holds that the due
process clause of the Fourteenth Amendment requires that
state and local governments also guarantee those rights.
Selective Incorporation
A judicial doctrine whereby most but not all of the protections
found in the Bill of Rights are made applicable to the states via
the Fourteenth Amendment.
Gitlow v. New York (1925)
Near v. Minnesota (1931)
Palko v. Connecticut (1937)
Fundamental Freedoms
Those right defined by the Court to be essential to order,
liberty and justice.
Selective
Incorporation of
the Bill of Rights
First Amendment Guarantees:
Freedom of Religion
Framers did not support a national church
or religion.
Article VI
Provides that “no religious Test shall ever be
required as a Qualification to any Office or
Public Trust under the United States.”
First Amendment
Part of the Bill of Rights that imposes a number
of restrictions on the federal government with
respect to the civil liberties of the people,
including freedom of religion, speech, press,
assembly, and petition.
First Amendment Guarantees:
Freedom of Religion
Establishment Clause
The first clause in the First Amendment
Prohibits the national government from
establishing a national religion
Engel v. Vitale (1962)
Lemon v. Kurtzman (1971_
The Lemon Test
Agnostini v. Felton (1997)
Zelman v Simmons-Harris (2002)
First Amendment Guarantees:
Freedom of Religion
Free Exercise Clause
The second clause of the First
Amendment
Prohibits the U.S. government from
interfering with a citizen’s right to
practice his or her religion
First Amendment Guarantees: Freedom
of Speech and Press
Democracy depends on a free
exchange of ideas.
Volatile area of constitutional
interpretation
Alien and Sedition Acts
Prior restraint: Constitutional doctrine that
prevents the government from prohibiting
speech or publication before the fact;
generally held to be in violation of the First
Amendment
First Amendment Guarantees: Freedom
of Speech and Press
Civil War
Lincoln suspended the free press provision of
the First Amendment
Ordered the arrest of the editors of two New
York papers who were critical of him
Newspaper editor jailed by a military court
without having any charges brought against
him.
Appealed to the Supreme Court.
Congress enacted legislation prohibiting the Court
from issuing a judgment in any cases involving
convictions for publishing statements critical of the
U.S.
Article II gives Congress power to determine the
jurisdiction of the Court.
First Amendment Guarantees: Freedom
of Speech and Press
WWI
Anti-governmental speech
Clear and Present Danger Test
Test articulated by the Supreme Court in Schenck v. U.S.
(1919) to draw the line between protected and unprotected
speech.
The Court looks to see “whether the words used” could “create
a clear and present danger that they will bring about
substantive evils” that Congress seeks “to prevent.”
Anti-war leaflets okay during peace, but not permissible during
war – too dangerous.
But what constituted a danger?
Direct Incitement Test
A test articulated by the Supreme Court in Brandenburg v.
Ohio (1969) that holds that advocacy of illegal action is
protected by the First Amendment unless imminent lawless
action is intended and likely to occur.
First Amendment Guarantees: Freedom
of Speech and Press
Protected Speech and Publications
Prior Restraint
Court has made it clear that it will not tolerate
prior restraint of speech
New York Times Co. v. Sullivan (1971)
Pentagon Papers case
Supreme Court ruled that the U.S. government
could not block the publication of secret Department
of Defense documents illegally furnished to the
Times by anti-war activists.
Nebraska Press Association v. Stuart (1976)
Court ruled in favor of press’s right to cover trial.
First Amendment Guarantees: Freedom
of Speech and Press
Symbolic Speech
Symbols, signs, and other methods of
expression generally also considered to be
protected by the First Amendment
Stromberg v. California (1931)
Upheld flying of red flag (symbol of opposition
to U.S. government)
Tinker v. Des Moines Independent Community
District School (1969)
Court upheld wearing of black armbands as
protest against Viet Nam War
First Amendment Guarantees: Hate Speech,
Unpopular Speech, Speech Zones
Two-thirds of colleges and universities have
banned a variety of forms of speech or
conduct that creates or fosters an
intimidating, hostile or offensive
environment on campus.
Some have created free speech zones
These restrict the time, place or manner of
speech.
Implication that speech can be limited on other
parts of campus.
The Rights of Criminal Defendants
Due process rights
Procedural guarantees provided by the
Fourth, Fifth, Sixth and Eighth
Amendments for those accused of
crimes.
Warren Court made several provisions of
the Bill of Rights dealing with the
liberties of criminal defendants (those
charged but not yet tried) applicable to
the states through the Fourteenth
Amendment.
Fourth 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
Over the years, the Court has interpreted the Fourth
Amendment to allow the police to search:
The person arrested
Things in plain view of the accused person
Places or things that the arrested person could also touch
or reach or are otherwise in the arrestee’s immediate
control.
Court has ruled that police must knock and announce their
presence before entering a home or apartment to execute a
search.
2001 ruling on thermal imaging drug evidence (without a
warrant) was violation of Fourth Amendment.
Drug testing difficult search and seizure issue.
Chandler v. Miller (1997)
Fifth Amendment
Imposes a number of restrictions on the federal
government with respect to the rights of persons
suspected of committing a crime.
Miranda v. Arizona (1966)
Miranda rights
Provides for indictment by a grand jury and protection
against self-incrimination.
Prevents the national government from denying a
person life, liberty, or property without the due
process of law.
It also prevents the national government from taking
property without fair compensation.
Fourth and Fifth Amendments and
the Exclusionary Rule
Judicially created rule that prohibits policy
from using illegally seized evidence at trial.
Weeks v. U.S. (1914)
Court reasoned that allowing police and
prosecutors to use a tainted search would only
encourage that activity.
Mapp v. Ohio (1961)
Warren Court ruled that “all evidence obtained
by searches and seizures in violation of the
Constitution, is inadmissible in a state court.”
Sixth Amendment and the Right to
Counsel
Sets out the basic requirements of
procedural due process for federal
courts to follow in criminal trials.
These include speedy and public trials,
impartial juries, trials in the state where
the crime was committed, notice of the
charges, the right to confront and obtain
favorable witnesses, and the right to
counsel.
Gideon v. Wainwright (1936)
The Sixth Amendment and Jury
Trials
Provides that a person accused of a crime
shall enjoy the right to a speedy and public
trial by an impartial jury.
It also provides defendants the right to
confront witnesses against them.
Supreme Court has held that jury trials
must be available if a prison sentence of six
or more months is possible.
Impartiality of jury
Boston v. Kentucky (1986)
Right to confront witnesses
Maryland v. Craig (1990)
The Eighth Amendment and Cruel
and Unusual Punishment
Part of the Bill of Rights that states:
“Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted”
Furman v. Georgia (1972)
Court ended capital punishment
Imposed in an arbitrary manner
Gregg v. Georgia (1976)
Reaction to rewriting of state laws on death
penalty.
Death penalty statute found to be constitutional
McClesky cases (1987 and 1991)
Right to Privacy
The right to be let alone.
A judicially created doctrine encompassing an individual’s
decision to use birth control to secure an abortion.
Birth Control
Griswold v. Connecticut (1965
Roe v. Wade (1973)
Court found a woman’s right to an abortion was protected by
the right to privacy that could be implied from specific
guarantees found in the Bill of Rights applied to the states
through the Fourteenth Amendment.
Webster v. Reproductive Health Services (1989)
Planned Parenthood of S.E. Pennsylvania v. Casey (1992)
Stenberg v. Carhart (2000)
Lawrence v. Texas (2003)
Abortion
Homosexuality
State sodomy laws found unconstitutional.
The Right to Die
1990 Court ruled in a 5-4 decision
that parents could not withdraw a
feeding tube from their comatose
daughter after her doctors testified
that she could live for many more
years if the tube remained in place.
Rehnquist rejected any attempts to
expand the right to privacy in to this
area.
The Right to Die
Court did note that individuals could terminate
medical treatment if they were able to express, or had
done so in writing via a living will, their desire to have
medical treatment terminated in the event they
became incompetent.
1997 Court ruled unanimously that terminally ill
persons do NOT have a constitutional right to
physician assisted suicide.
Oregon voters approved a right to die law in 2001.
Attorney General issued legal opinion that this was
not acceptable.
State and national conflict.
Federal judge ruled that Ashcroft, then Attorney
General, had overstepped his authority.