Chapter 5: Civil Liberties

Transcription

1 Chapter 5: Civil Liberties

2 OBJECTIVES: Roots of Civil Liberties: The Bill of Rights. 5.1 Trace the Constitutional Roots of Civil Liberties.

3 Rom_14:5 One man esteemeth one day above another: another esteemeth every day alike. Let every man be fully persuaded in his own mind.

4 Civil Liberties o Are the personal guarantees and freedoms that the government cannot abridge, either by law, constitution, or judicial interpretation. o As guarantees of freedom to action, they place limitations on the power of the government to restrain or dictate an individual s actions.

5 Civil Rights: o Provide freedom against arbitrary or discriminatory treatment by government or individuals.

6 The Bill of Rights: o A idea of a Bill of Rights was controversial during the Constitutional Convention. o Federalists argued that a Bill of Rights was unnecessary. o They listed three arguments.

7 Federalist Opposition to the Bill of Rights: o It was unnecessary in a constitutional republic founded on the idea of popular sovereignty and inalienable natural rights. o Most state constitutions contained Bills of Rights, so federal guarantees were unnecessary

8 (2) A bill of Rights would be dangerous. o Hamilton a strict constructionist believed that the Constitution should only abide by its enumerated powers (powers clearly listed). o why declare that things shall not be done which there is no power to do?

9 (3) A national bill of rights would be impractical to enforce. o Its validity would largely depend on public opinion and the spirit of the people and government.

10 o With the support of James Madison the Bill of Rights was introduced. o The proposed Bill of Rights was sent to the states for ratification in 1789 the same year the first Congress convened. o By 1791 most of its provisions had been approved by the states.

11 o The Bill of Rights, the first ten amendments to the Constitution, contains numerous specific guarantees against the encroachment of the new government. o Including those of free speech, press, and religion.

12 o The Ninth Amendment makes it clear this special listing of rights does not mean that others do not exist. o The Tenth Amendment reiterates that powers not delegated to the national government are reserved to the states or to the people.

13 The Incorporation Doctrine: o The Bill of Rights was intended to limit the power of the national government to infringe on the rights and liberties of the citizenry. o In Barron v. Baltimore (1833) the Supreme Court ruled that the Bill of Rights limited only the actions of the U.S. government and not those of the states.

14 The Incorporation Doctrine: o In 1868, however the Fourteenth Amendment was added to the U.S. Constitution. o Its language suggested the possibility that some or even all of the protections guaranteed in the Bill of Rights might be interpreted to prevent state infringement of those rights.

15 The Incorporation Doctrine: o Section 1 Fourteenth Amendment: No State shall deprive any person of life, liberty, or property, without due process of law. o Questions about the scope of liberty as well as the meaning of due process of law continue even today to engage legal scholar and jurists.

16 The Incorporation Doctrine: o The Supreme Court in much of the Nineteenth Century rejected the argument that the due process clause in the Fourteenth Amendment makes the Bill of Rights applicable to the states. o In 1897 however, the Court began to increase its jurisdiction over the states.

17 The Incorporation Doctrine: o It began to hold states to a substantive due process standard. o States had the legal burden to prove that their laws were a valid exercise of their power to regulate the health, welfare, or public morals of their citizens.

18 The Incorporation Doctrine: o Gitlow v. New York o At this time the Federal Government rarely interfered with the power of the States. o States passed sedition laws (laws that prohibited to speak or write against any political official). o Although his conviction was upheld in Gitlow, the U.S. Supreme Court noted that the states were not completely free to limit forms of political expression.

19 The Incorporation Doctrine: o Gitlow case held that states could not abridge of free speech protection was the first step in the slow development of what is called the Incorporation Doctrine. o That the First Amendment is a fundamental personal rights and liberties protected by the due process clause of the fourteenth amendment from impairment by the states.

20 Near v. Minnesota o Case stemming from a Minnesota Statute where a judge can prevent publication of a newspaper he deems obscene, lewd, and lascivious. o The U.S. Supreme Court further developed this doctrine by holding that a state violated the First Amendment of the press.

21 Selection Incorporation and Fundamental Freedoms: o Not all the specific guarantees in the Bill of Rights are made applicable to the states through the due process of the Fourteenth Amendment. o The Court used the process of selective incorporation to limit the rights to states by protecting against abridgement of fundamental freedoms.

22 Selection Incorporation and Fundamental Freedoms: o Fundamental freedoms are those liberties defined by the Court as essential to order, liberty, and justice. o These freedoms are subject to the Court s most rigorous standard of review.

23 Selection Incorporation and Fundamental Freedoms: o Today selective incorporation requires the states to respect freedom of press, speech and assembly among other liberties. o Other guarantees have not been incorporated such as the Third and Seventh Amendment. o (Housing of soldiers and jury trials in civil cases), o Court has yet to consider them sufficiently fundamental to national notions of liberty and justice.

24 SHORT ANSWER What is the incorporation doctrine?

25 OBJECTIVES: Freedom of Religion We will analyze the First Amendment Guarantee of Freedom of Religion.

26 2Ch_19:11 And, behold, Amariah the chief priest is over you in all matters of the LORD; and Zebadiah the son of Ishmael, the ruler of the house of Judah, for all the king's matters: also the Levites shall be officers before you. Deal courageously, and the LORD shall be with the good.

27 Freedom of Religion o Roger Williams of Rhode Island was a early advocate for the separation of church and state. o A hedge or wall of separation between the garden of church and the wilderness of the world. o Thomas Jefferson, author of the Declaration of Independence supported this view.

28 Freedom of Religion o Beginning in 1779, both Jefferson and his colleague James Madison opposed efforts by Patrick Henry to pass legislation to tax citizens to support religious institutions. o Jefferson s Bill for Religious freedom was ultimately passed in 1786 which barred the use of state dollars to fund any place of religious worship or ministry in Virginia.

29 Freedom of Religion o The Framers distaste for national church or religion was also reflected in the Constitution. o In Article VI, provides non-religious test shall ever be required as a Qualification to any office or Public Trust under the United States. o The First Amendment would completely address any fears of church and state being merged.

30 Freedom of Religion o Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. This sets boundaries of government action. o The establishment clause directs the national government not to sanction an official religion. o The free exercise clause guarantees citizens that the national government will not interfere with their practice of religion.

31 Limits to Religious Practice o In 1879, the Supreme Court heard the case of whether Mormons could practice polygamy. o To allow Mormons to practice this part of their beliefs would lead to a protection of a full range of religious beliefs, including those extreme as human sacrifice. o While the state cannot interfere with mere religious beliefs and opinions, but they may with practices.

32 Freedom of Religion o In 1940 the Supreme Court held that the First Amendment embraces two concepts, o freedom to believe. o freedom to act. o The first is absolute. o But in the nature of things, the second cannot be. o Conduct remains subject to regulation to society.

33 Establishment Clause: o The Separation of Church and State has been a thorny issue in America. o A majority of Americans clearly value the moral teachings of their own religions especially Christianity. o In God We Trust. o Chaplains in Congress etc.

34 Establishment Clause: o The Supreme Court held strict separation between church and state when issues of mandatory prayer in schools are involved. o Engel v. Vitale (1962) a brief nondenominational prayer drafted by the local school board is unconstitutional.

35 Establishment Clause: o Abington School District v. Schempp: o The court ruled that statemandated Bible reading or recitation of the Lord s prayer in public schools was also unconstitutional.

36 Lemon Test: o In 1971, in Lemon v. Kurtzman, the court established a threepart test of laws dealing with the religious establishment issues.

37 Lemon Test: (Constitutional) o (1) Had a legitimate secular purpose o (2) Neither advanced nor inhibited religion. o (3) Did not foster an excessive government entanglement with religion.

38 Lemon Test: o There has been wide back and forth on what passes the test and what does not. o Including religious displays in public governmental buildings etc.

39 The Free Exercise Clause: o The clause guarantees individuals the right to be free from governmental interference in the exercise of their religion, o This guarantee like other first amendment freedoms is not absolute.

40 The Free Exercise Clause: o When secular law comes into conflict with religious law, the right to exercise one s religious belief is often denied. o Especially if the religious belief question are held by a minority or by an unpopular or suspicious group. o Thus, the U.S. Supreme Court has interpreted the Constitution to mean that the government interests can outweigh the free exercise rights.

41 The Free Exercise Clause: o State statutes barring the use of certain illegal drugs such as Peyote, snake handling, and polygamy, all practices once part of some religions have been upheld as constitutional. o When states have shown compelling reasons to regulate and ban them.

42 The Free Exercise Clause: o However the Court has made it clear that the free exercise clause requires a state or the national government cannot unfairly target one religion. o When a city specifically passed a law at a Afro-Cuban religion from sacrificing animals, the Supreme Court found it unconstitutional.

43 The Lord has done more for the United States than for any other country upon which the sun shines. Here He provided an asylum for His people, where they could worship Him according to the dictates of conscience. Here Christianity has progressed in its purity. The life-giving doctrine of the one Mediator between God and man has been freely taught. God designed that this country should ever remain free for all people to worship Him in accordance with the dictates of conscience. He designed that its civil institutions, in their expansive productions, should represent the freedom of gospel privileges. {Mar 193.4}

44 The founders of the nation wisely sought to guard against the employment of secular power on the part of the church, with its inevitable result-- intolerance and persecution. The Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," and that "no religious test shall ever be required as a qualification to any office or public trust under the United States." Only in flagrant violation of these safeguards to the nation's liberty, can any religious observance be enforced by civil authority. {GC 442.2}

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46 SHORT ANSWER What is the Lemon test and how is it applied by the Supreme Court?

47 OBJECTIVES: First Amendment Guarantee : The First Amendment guarantees of and limitations on freedom of speech, press, assembly, and petition.

48 (Mat 12:37) For by thy words thou shalt be justified, and by thy words thou shalt be condemned.

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50 o Court has generally has allowed Congress and the chief executive extraordinary leeway in limiting First Amendment freedoms.

51 Freedoms of Speech and the Press: o A democracy depends on a free exchange of ideas. o First amendment shows that the framers were well aware of this fact. o This has been one of the most volatile areas of Constitutional protection.

52 Freedoms of Speech and the Press: o Congress shall make no law abridging the freedom of speech and press. o Similar to the establishment and free exercise clause, the speech and press clause is not interpreted as absolute bans against government regulations.

53 Freedoms of Speech and the Press: o A hierarchical approach in determining what the government can and cannot regulate is applied by the Courts. o Some liberties getting greater protection than others. o Generally thoughts received the greatest protection. o Actions or deeds the least. o Words somewhere in the middle depending on their content and purpose.

54 The Alien and Sedition Acts: o The First Amendment was ratified in 1791, to protect against prior restraint of speech or expression. o To guard against the prohibition of speech or publication before the fact.

55 The Alien and Sedition Acts: o In 1798, Congress enacted the Alien and Sedition Acts. o The Act was designed to ban any criticism of the Federalist government by the growing numbers of Democratic Republicans. o These acts made the publication of any false, scandalous writing against the government of the United States a criminal offense.

56 The Alien and Sedition Acts: o The law clearly ran against the face of First Amendment s ban on prior restraint. o The Adams administration successfully prosecuted several individuals.

57 The Alien and Sedition Acts: o This became a major issue in the 1800 election. o Thomas Jefferson a vocal opponent of the acts was elected and quickly pardoned those convicted. o Jefferson allowed the act to expire before the Federalist controlled Supreme Court could hear the case.

58 Slavery, The Civil War, and Rights Curtailments: o After the public outcry over the Alien and Sedition Acts, the national government largely refrained from regulating speech. o But the states which were not yet bound by the Bill of Rights through selective incorporation, began to prosecute those who published articles critical of governmental policies.

59 Slavery, The Civil War, and Rights Curtailments: o In the 1830s, publication of any positive publication of slavery was a punishable offense in the North. o It was through the urging of Abolitionists. o Supporters of slavery in the South enacted laws to prohibit publication of any anti-slavery sentiments. o Southern postmasters refused to deliver Northern abolitionist newspapers. o It was censorship.

60 Slavery, The Civil War, and Rights Curtailments: o During the Civil War, President Lincoln took several steps that actually were Unconstitutional. o It was unlawful to print any criticisms of the national government of the Civil War. o Effectively suspending the free press protections of the First Amendment.

61 Slavery, The Civil War, and Rights Curtailments: o Lincoln went so far as to order the arrest of several newspaper editors critical of his conduct of the war. o He ignored a Supreme Court decision saying that these practices were unconstitutional.

62 Slavery, The Civil War, and Rights Curtailments: o After the Civil War, States also began to prosecute individuals for seditious speech if they uttered or printed statements critical of the government. o Targeted were those advocating socialist or communist ideals.

63 World War I and the Anti-Governmental Speech: o The next major national effort to restrict free speech and free press occurred during WWI. o Congress at the urging of President Wilson passed the Espionage Act in o The Act made it illegal to urge resistance to the draft or to prohibit the distribution of anti-war leaflets. o Nearly 2,000 Americans were convicted.

64 Schneck v. U.S. (1919) WWI o The Supreme Court upheld that act ruling that Congress had the right to restrict speech. o Such as to create a clear and present danger that will bring about the substantive evils that Congress has the right to prevent.

65 APPLICATION What are examples of clear and present danger?

66 World War I and the Anti-Governmental Speech: o Under this Clear and Present danger test, the circumstances surrounding an incident are important. o Anti-war leaflets during peace time maybe permissible but during war they are considered to pose too much of a danger to be permissible.

67 Brandenburg v. Ohio o The court fashioned a new test for deciding whether certain kinds of speech could be regulated by the government. o The direct incitement test. o Government could punish the advocacy of illegal action only if such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

68 APPLICATION What is an example of a direct incitement test?

69 World War I and the Anti-Governmental Speech: o The requirement of imminent lawless action makes it more difficult for the government to punish speech and publication. o It is consistent with the Framer s notion of the special role played by these elements in democratic society.

70 Protected Speech and Press: o The expression of ideas through speech and the press is the cornerstone of a free society. o As a result, the U.S. Supreme Court has accorded constitutional protection to a number of aspects of speech and the press. o Even though the content of such expression may be objectionable to some citizens or the government.

71 Limiting Prior Restraint: o The Supreme Court took a firm stand on limiting prior restraint in the 1970s. o In New York Times Co. v. U.S. (1971) Pentagon Paper case. o The 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.

72 Nebraska Press Association v. Stuart (1976) o Any attempt by the government to prevent expression carried a heavy presumption against its constitutionality. o Here, the trial court issued a gag order barring the press from reporting the lurid details of a crime.

73 Limiting Prior Restraint: o In balancing the defendant s constitutional right to a fair trial against the press s right to cover a story. o The Nebraska trail judge concluded that the defendant s right carried greater weight. o The Supreme Court disagreed holding the press s right to cover the trial paramount. o Still judges are often allowed to issue gag orders affecting parties to a lawsuit or limit press coverage of a case.

74 APPLICATION What are real life examples of symbolic speech?

75 Symbolic Speech: o Supreme Court has extended First Amendment protection to symbolic speech. o Symbolic speech is an example that includes symbols or signs. o Justice John Marshall Harlan, stated these kind of speech are part of the free trade in ideas. o Perhaps the most visible example of symbolic speech is the burning of the American flag as an expression of protest.

76 Symbolic Speech: o The Supreme Court first acknowledged that symbolic speech was entitled to First Amendment protection in Stomberg v. California. o The Court has overturned a Communist Youth Camp director s conviction displaying a red flag (symbolic opposition to the U.S. government) o High School students had the right to wear black armbands to protest the Vietnam War.

77 Symbolic Speech: o However in 2005 the court ruled that a student s free speech rights were not violated when he was suspended for displaying a banner that was attempting to play an offensive joke.

78 R.A.V. v. City of St Paul (1992) o St Paul ordinance that made it a crime to engage in speech or action likely to arouse anger, alarm, or resentment on the basis of race, color, creed, religion, or gender was at issue. o Court ruled 5-4 that a White teenager that burned a cross on a Black family s front yard could not be charged under that law. o The First Amendment prevents government from silencing speech on the basis of its content.

79 Hate Speech: o In 2003, the Court narrowed this definition, ruling that the state governments could constitutionally restrict cross burning when it occurred with the intent of racial intimidation.

80 Hate Speech: o 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. o To prevent disruption of university activities, some universities have also created free speech zones that restrict that time, place, or manner of speech.

81 Unprotected Speech and Press: o In 1942, the Supreme Court set out the rationale by which it would distinguish between protected and unprotected speech. o The Court held that libel, fighting words, obscenity, and lewdness are not protected by the First Amendment.

82 Unprotected Speech and Press: o Such expressions are not essential part of any exposition of ideals, o And are such slight social value. o Any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

83 Libel and Slander: o Libel is a written statement that defames the character of a person. o If the statement is spoken, it is slander.

84 APPLICATION What are examples of libel and slander?

85 Libel and Slander: o The standard of proof is that a person who believes that he or she has been a victim of libel must show that the statements made were untrue. o Truth is an absolute defense against the charge of libel, no matter how painful and embarrassing the revelations. o It is often more difficult for individuals, the U.S. Supreme Court considers public persons or public officials to sue for libel or slander.

86 New York Times Co. v. Sullivan (1964). o The first major libel case considered by the Supreme Court. o Alabama state court found the Times guilty of Libel for printing a full-page advertising accusing Alabama officials of physically abusing Civil Rights protestors.

87 Libel and Slander: o Supreme Court overturned the convictions. o Established that a finding of libel against a public official could stand only if there was a showing of actual malice or knowing disregard of the truth. o Proof that the statements were false or negligent was not sufficient to prove actual malice. o Later the court ruled that even intentional infliction of emotional distress was not sufficient.

88 Chaplinsky v. New Hampshire, o The court stated that fighting words. o Words that by their very utterance inflict injury or tend or incite an immediate breach of peace, are not subject to the restrictions of the First Amendment.

89 FIGHTING WORDS: o Fighting words include profanity, obscenity, and threats are therefore able to be regulated by the federal and state governments. o These words do not necessarily have to be spoken. o Fighting words can also come in the form of symbolic expression.

90 OBSCENITY: o Traditionally, courts used English common-law test for obscenity. o In Roth v. U.S. (1957), the court abandoned this approach and held what to be considered obscene.

91 LEGAL TEST FOR OBSENITY: o The material in question had to be utterly without redeeming social importance. o Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interests.

92 OBSCENITY: o Throughout the 1950s and 1960s prurient remained hard to define. o The Supreme Court struggled to find a standard for judging actions and words.

93 OBSCENITY: o It was also difficult to prove that media was utterly without redeeming social value. o In this era there was a increase of sexually oriented publications that was designed to appeal to those living during the sexual revolution and passed the test.

94 Miller v. California: o The court set out a test that redefined obscenity. o To make it easier for states to regulate obscene materials. o The justices concluded that lower courts must ask whether the works depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law.

95 OBSCENITY: o The Courts also were to determine whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. o And in place of a contemporary community standard test used in Roth, the court defined community standards to refer to the locality in question. o Under the rationale that what is acceptable in New York City might not be acceptable in Maine or Mississippi.

96 OBSCENITY: o Time and contexts have altered the Court s and indeed much of America s perceptions of what works are obscene. o But the Supreme Court has allowed communities great leeway in drafting statutes to deal with obscenity and even more importantly, other forms of questionable expression.

97 OBSCENITY: o Monitoring internet has been difficult. o Supreme Court affirmed the PROTECT Act, which outlawed the sale or transmission of child pornography.

98 Freedom of Assembly and Petition: o Peaceful assembly for lawful discussion cannot be made a crime. Dejonge v. Oregon. o Which incorporated the First Amendment s freedom of assembly clause to apply to the states.

99 Freedom of Assembly and Petition: o Despite this clear declaration and what is stated in the First Amendment. o The fundamental freedoms of assembly and petition have been among the most controversial. o Especially in times of war.

100 Freedom of Assembly and Petition: o The Supreme Court often is the arbiter (referee) between the freedom of the people to express dissent. o And government s authority to limit controversy in the name of national security. o The freedom to assemble is hinged on peaceful conduct. o The freedom of assembly and petition, are related directly to the freedoms of speech and of the press.

101 Freedom of Assembly and Petition: o If the words spoken or actions taken at any event cross the line of constitutionality. o Events such as parades or protests may no longer be protected by the Constitution. o Absent that protection, leaders and attendees may be subject to governmental regulation and incarceration, or civil fines.

102 SHORT ANSWER: Discuss a real-life situation where the clear and present danger test could be applied.

103 OBJECTIVES:THE SECOND AMENDMENT: THE RIGHT TO KEEP AND BEAR ARMS. 5.4 We will examine changes in the interpretation of the Second Amendment right to keep and bear arms.

104 Then said Jesus unto him, Put up again thy sword into his place: for all they that take the sword shall perish with the sword. Thinkest thou that I cannot now pray to my Father, and he shall presently give me more than twelve legions of angels? Matthew 26:52-53

105 THE SECOND AMENDMENT: THE RIGHT TO KEEP AND BEAR ARMS. o During Colonial times, the colonists distrusted standing armies. o Colonies required all White men to keep and bear arms. o These White Men were deputized to defend the colonies and formed militias. o Local militias were viewed as the best way to keep order and protect liberty.

106 THE SECOND AMENDMENT: THE RIGHT TO KEEP AND BEAR ARMS. o The purpose of the Second Amendment was to ensure that Congress could not pass laws disarming militias. o This Amendment appeased Anti- Federalists. o Anti-Federalists feared the new Constitution would cause them to lose the right to keep and bear arms.

107 THE SECOND AMENDMENT: THE RIGHT TO KEEP AND BEAR ARMS. o Through the early 1920s, few state statutes were passed to regulate firearms. o Generally these laws dealt with the possession of former by slaves.

108 Barron v. Baltimore (1933) o In this case, the Supreme Court refused to incorporate the Bill of Rights to the state governments. o Prevented federal review of those state laws. o In the Dred Scott case, Chief Justice Taney listed the right to own and carry arms as a basic right of citizenship.

109 THE SECOND AMENDMENT: THE RIGHT TO KEEP AND BEAR ARMS. o Seventy years later, the court finally addressed Second Amendment case. o In D.C. v. Heller (2008) the court ruled that the second amendment protected an individual right to a firearm for personal use in Washington D.C. o In 2010 the Supreme Court broadened the ownership rights in Heller to include citizens of all states. o It also incorporated the Second Amendment.

110 THE RIGHTS OF CRIMINAL DEFENDANTS 5.5: Analyze the rights of criminal defendants found in the Bill of Rights.

111 Ecc_12:14 For God shall bring every work into judgment, with every secret thing, whether it be good, or whether it be evil.

112 Habeas Corpus: Constitutional Guarantee o Court orders in which a judge requires authorities to prove that a prisoner is being held lawfully. o That allows the prisoner to be freed if the judge is not persuaded by the government s case. o The right implies that prisoners have a right to know what charges are being made against them.

113 ARTICLE I o Prohibits ex post facto laws. o Laws that make an act punishable as a crime even if the action was legal at the time it was committed. o Also, prohibits bill of attainder, laws declaring an act illegal without a judicial trial.

114 Habeas Corpus o The fourth, fifth, sixth, and eighth Amendments supplement these rights. o With a variety of procedural guarantees, often called due process rights.

115 The Fourth Amendment and Searches and Seizures: o Protects people from unreasonable searches by the federal government. o It sets out what may not be searched unless a warrant is issued. o Underscoring the Framers concern with preventing government abuses.

116 The Fourth Amendment and Searches and Seizures: o The purpose of this amendment was to deny the national government the authority to make general searches. o Over the years, court decisions would allow Police to search. o If

117 The Fourth Amendment and Searches and Seizures: (1) The person Arrested (2) The things in plain view of the accused person (3) Places or things that the arrested person could touch or reach or are otherwise in the arrestee s immediate control.

118 The Fourth Amendment and Searches and Seizures: o Warrantless searches often occur if police suspect that someone is committing or is about to commit a crime. o In these situations, police may stop and frisk the individual under suspicion. o In 1989, the court ruled that there need be only a reasonable suspicion for stopping a suspect. o A much lower standard than probable cause.

119 The Fourth Amendment and Searches and Seizures: o Searches can be made without a warrant if consent is obtained. o In the case of homes, this consent must come from all occupants present at the time of the search. o The police cannot conduct a warrantless search of a home if one of the occupants objects.

120 The Fourth Amendment and Searches and Seizures: o In the Open Field Doctrine: o if you own a field, even if you are engaging in illegal activity such as growing marijuana is subject to search. o Because you cannot reasonably expect privacy in an open field.

121 The Fourth Amendment and Searches and Seizures: o In situations where no arrest occurs. o Police must obtain search warrants from a neutral and detached magistrate. o Prior to conducting more extensive searches of houses, cars, offices, or any other place. o Where an individual would reasonably have some expectation of privacy.

122 The Fourth Amendment and Searches and Seizures: o Firefighters can enter your home to fight a fire without a warrant. o But if they decide to investigate the cause of the fire, they must obtain a warrant before their reentry.

123 The Fourth Amendment and Searches and Seizures: o For cars, the court has become increasingly lenient about the scope of automobile searches. o In 2002 for example border patrol officer acted lawfully in stopping a suspicious minivan. o The totality of the circumstances had to be considered. o The balance between the public interest and the individual s right to personal security, tilts in favor of a standard less than probable cause in brief investigatory stops.

124 The Fourth Amendment and Searches and Seizures: o This ruling gave law enforcement officers more leeway to pull over suspicious motorists. o And courts do not require search warrants in possible drunk driving situations. o In some states, police can require you to take a breathalyzer test to see if your legally drunk.

125 The Fourth Amendment and Searches and Seizures: o Testing for drugs, too, is especially thorny search and seizure issue. o Supreme Court ruled that mandatory drug and alcohol testing of employees involved in accidents was constitutional.

126 The Fourth Amendment and Searches and Seizures: o Court upheld the constitutionality of random drug testing of public high school athletes. o And mandatory testing of high school students participating in extracurricular activities are constitutional.

127 Fifth Amendment: Self-Incrimination and Double Jeopardy: o The Fifth Amendment provided a variety of guarantees that protect those who have been charged with a crime. o It requires that individuals who are accused in the most serious cases be allowed to present their cases before a grand jury. o A group of citizens that decide whether there is enough evidence for a case to go to trial.

128 Fifth Amendment: Self-Incrimination and Double Jeopardy: o The Fifth amendment also provides that No person shall be compelled in any criminal case to be a witness against himself. o The constitutional right not to selfincriminate.

129 Fifth Amendment: Self-Incrimination and Double Jeopardy: o The Supreme Court has interpreted this guarantee to be As broad as the mischief against which it seeks to guard. o Finding that criminal defendants do not have to take the stand at trial to answer questions. o Nor can a judge make mention of their failure to do so as evidence of guilt.

130 Fifth Amendment: Self-Incrimination and Double Jeopardy: o Lawyers cannot imply that a defendant who refuses to take the stand must be guilty or have something to hide. o This right not to incriminate oneself also means that prosecutors cannot use as evidence in a trial any of a defendant s statements or confession that were not made voluntarily.

131 Fifth Amendment: Self-Incrimination and Double Jeopardy: o Judicial interpretation of the term voluntary has changed over time. o In 1936, the Supreme Court ruled that convictions for murder based solely on confessions given after physical beatings were unconstitutional.

132 Miranda v. Arizona: o Supreme Court response to coercive efforts to obtain confessions that are not truly voluntary. o Chief Justice Warren noted that because police have a tremendous advantage in any interrogation situation. o Criminal suspects, must be given greater protection. o A confession obtained in the manner of Miranda s was not truly voluntary; thus, it was inadmissible at trial.

133 Miranda v. Arizona: o Prior to questioning, the person must be warned that he has a right to remain silent. o That any statements he does make may be used as evidence against him. o That he has a right to the presence of an attorney either retained or appointed. o This is called the Miranda rights.

134 Miranda v. Arizona: o The more conservative Rehnquist and Roberts Courts have been more willing to weaken Miranda rights. o Allowing coerced confessions and employing much more flexible standards for the admission of evidence.

135 Double Jeopardy: o The Fifth Amendment also mandates now shall any person be subject for the same offense twice put in jeopardy of life or limb. o Called double jeopardy clause. o It protects individuals from being tried twice for the same crime in the same jurisdiction.

136 Double Jeopardy: o If a defendant is acquitted by a jury of a charge of murder, he or she cannot be retried in that jurisdiction for the offense even if new information is unearthed that could further point to guilt. o But if defendants was tried in a state court, he or she could still face charges in a federal court or vice versa.

137 The Fourth and Fifth Amendments and the Exclusionary Rule: o The Court reasoned that allowing police and prosecutors to sue the fruits of a poisonous tree (a tainted search) would only encourage that activity. o In balancing the need to deter police misconduct, against the possibility that guilty individuals could go free. o Warren Court decided that deterring police misconduct was most important.

138 Mapp v. Ohio o The Warren Court ruled that all evidence obtained by searches and seizures in violation of the Constitution, is inadmissible in a state court. o This case put law enforcement officers on notice. o That if they found evidence in violation of any constitutional rights, it would be worthless. o Because of the tainted evidence could not be used in federal or state trials.

139 The Fourth and Fifth Amendments and the Exclusionary Rule: o The Court has carved out a variety of limited good faith exceptions to the exclusionary rule. o Allowing the use of tainted evidence in a variety of situations, o Especially when police have a search warrant and in good faith. o Conduct the search on the assumption that the warrant is valid even though it is subsequently found invalid.

140 The Fourth and Fifth Amendments and the Exclusionary Rule: o Since the purpose of the exclusionary rule is to deter police misconduct. o In this situation, there is no police misconduct. o The courts have permitted the introduction at trial of the seized evidence. o Another exception to the exclusionary rule is inevitable discovery. o Illegally seized evidence may be introduced, if it would have been likely to be discovered in the course of a continuing investigation.

141 The Fourth and Fifth Amendments and the Exclusionary Rule: o The Court has continued to uphold the exclusionary rule. o In 2006, victory for advocates of defendant s rights. o The Court ruled unanimously that the fourth Amendment requires that any evidence collected under an anticipatory warrant. o One presented by the police yet not authorized by a judge would be inadmissible at trial as a violation of the exclusionary rule.

142 The Sixth Amendment and the Right to Counsel: o The Sixth Amendment guarantees to an accused person the Assistance of Counsel in his defense. o In the past, this provision meant only that an individual could hire an attorney for him or her in court. o Most criminal defendants are too poor to hire private lawyers. o This provision does not mean much.

143 The Sixth Amendment and the Right to Counsel: o Congress required federal courts to provide an attorney for defendants who could not to afford one. o This was first required in capital cases (where the death penalty is a possibility); o Eventually attorneys were provided to the poor in all federal criminal cases.

144 The Sixth Amendment and the Right to Counsel: o The Court also began to expand the right to counsel to other state offenses. o But did so in a piecemeal fashion that gave the states little direction. o Given the high cost of providing an attorney, this ambiguity often made it cost-effective for the states not to provide counsel at all.

145 Gideon v. Wainwright: o Clarence Earl Gideon a fifty-oneyear-old drifter was charged with breaking into a Panama City, Florida, pool hall. o Stealing beer, wine, and some change from a vending machine.

146 Gideon v. Wainwright: o At his trial, he asked the judge to appoint a lawyer from him because he was too poor to hire one himself. o The judge refused, and Gideon was convicted and given a five-year prison term for petty larceny. o The case against Gideon had not been strong, but as a layperson unfamiliar with the law and with trial practice and procedure, he was unable to point out its weaknesses.

147 Gideon v. Wainwright: o The apparent inequities in the system that had resulted in Gideon s conviction continued to bother him. o Eventually, he requested some paper from a prison guard, consulted books in the prison library. o Then drafted and mailed a writ of certiorari to the U.S. Supreme Court asking it to overrule his conviction.

148 Gideon v. Wainwright: o Therefore, the Court concluded, the state must provide an attorney to indigent defendants in felony cases. o Underscoring the Court s point, Gideon was acquitted when he was retained with a lawyer to argue his case. o The justices first applied this standard to cases that were not felonies and later, to many cases where probation and future penalties were possibilities.

149 Gideon v. Wainwright: o In 2008, the court also ruled that the right to counsel began to the accused s first appearance before the judge. o The issue of legal representation also extends to questions of competence.

150 Gideon v. Wainwright: o Various courts have held that lawyers who fell asleep during trial, failed to put on a defense, or were drunk during the proceedings were adequate. o In 2005 however, the Supreme Court ruled that the Sixth Amendment s guarantees, required lawyers to take reasonable steps to prepare for their client s trial and sentencing. o Including examining their prior criminal history.

151 The Sixth Amendment and Jury Trials: o The Sixth Amendment provides that a person accused of a crime shall enjoy the right to a speedy and public trial by an impartial jury. o A trial in which a group of the accused s peers act as a factfinding deliberative body to determine guilt or innocence.

152 The Sixth Amendment and Jury Trials: o It also provides defendants the right to confront witness against them. o The Supreme Court has held that jury trials must be available if a prison sentence of six or more months is possible. o Impartiality is a requirement of jury trials that has undergone significant change. o With the method of selecting jurors being the most frequently challenged part of the process.

153 The Sixth Amendment and Jury Trials: o Historically, lawyers had used peremptory challenges those for which no cause needs to be given to exclude minorities from juries. o Especially when the defendant was a member of the minority group. o The Court has held that peremptory challenges to exclude certain minority jurors violated the equal protection clause of the fourteenth Amendment. o Excluding on the basis of gender also was a violation of the equal protection clause.

154 The Sixth Amendment and Jury Trials: o The right to confront witnesses at trial also is protected by the Sixth Amendment. o The Supreme Court ruled that this right was not absolute with a testimony of a six-year-old child abuse victim that was permitted to testify in one-way close circuit television. o The central purpose said the Court was to ensure the reliability of testimony by subjecting it to rigorous examination in an adversarial proceedings.

155 The Eight Amendment and Cruel and Unusual Punishment: o Eighth Amendment prohibits cruel and unusual punishments, a concept rooted in English Common law tradition. o The Death penalty has been subject to debate. o For many years the Death Penalty was seen as constitutional.

156 Furman v. Georgia o The Supreme Court effectively put an end to capital punishment in the short run. o The court ruled that because the death penalty often was imposed in an arbitrary manner, it constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

157 Furman v. Georgia o Following Furman, several state legislatures enacted new laws designed to meet the Court s objections to the arbitrary nature of the sentence. o In Gregg v. Georgia, Georgia s rewritten death penalty statute was ruled constitutional by the Supreme Court in a 7-2 decision. o The Supreme Court has upheld the constitutionality of lethal injection. o With the exception of those who were mentally retarded and those under the age of eighteen.

158 PROTECTING THE WRONGFULLY CONVICTED: o The Supreme Court recognized the potential exculpatory power of DNA evidence in House v. Bell (2006). o The Court ruled a Tennessee death-row inmate who had exhausted federal appeals was entitled to an exception to more stringent federal appeals. o Due to DNA and related evidence suggesting his innocence. o However the Court decided, that convicted inmates do not have a constitutional right to DNA testing.

159 SHORT ANSWER: What are two exceptions to the Fourth Amendment's ban on warrantless searches and seizures?

160 Right TO PRIVACY: o 5.6 Students will explain the origin and significance of the right to privacy.

161 Jer_1:5 Before I formed thee in the belly I knew thee; and before thou camest forth out of the womb I sanctified thee, and I ordained thee a prophet unto the nations.

162 PROTECTING THE WRONGFULLY CONVICTED: o The U.S. Supreme Court also gave protection to rights not enumerated specifically in the Constitution. o Although silent, the Bill of Rights contains many indications that the Framers expected that some areas of life were off limits to government regulations. o This is a right to privacy.

163 PROTECTING THE WRONGFULLY CONVICTED: o Liberty to practice one s religion guaranteed (First Amendment) implies the right to exercise private personal beliefs. o The guarantee against unreasonable searches and seizures (Fourth Amendment) implies that persons are to be secure in their homes and should not fear police will show up at their doorsteps without cause.

164 PROTECTING THE WRONGFULLY CONVICTED: o As early as 1928 Justice Brandeis hailed privacy as the right to be left alone-the most comprehensive of rights and the right most valued by civilized men. o It was not until 1965 that the court attempted to explain that right.

165 Griswold v. Connecticut (Birth Control): o Involved the challenge to the constitutionality of an 1879 Connecticut law prohibiting the giving of information about the sale of contraceptives. o Seven justices decided that various portions of the Bill of Rights, including the First, Third, Fourth, Ninth, and Fourteenth Amendments, cast what Court called penumbras.

166 Birth Control: o Penumbras were unstated liberties on the fringes or in the shadow of more explicitly stated rights). o Thereby creating zones of privacy, including a married couple s right to plan a family. o Thus the state statute was ruled unconstitutional because it violated marital privacy. o A right the court concluded could be read into the U.S. Constitution through interpreting several amendments

167 Abortion: Roe v. Wade: o Held that the Texas law violated a woman s constitutionality, guaranteed right to privacy. o Which the court argued included her decision to terminate a pregnancy.

168 Birth Control: o The opinion divided pregnancy into three stages. o In the first trimester, a woman s right to privacy gave her an absolute right ( in consultation with her physician). o Free from state interference, to terminate her pregnancy. o In the second trimester, the state s interest of the health of the mother gave it the right to reregulate abortions, not only to protect the woman s health.

169 Birth Control: o In the third trimester when the fetus becomes potentially viable did the Court find that the state s interest in potential life outweighed a woman s privacy interests. o Even in the third trimester, abortions to save the life or health of the mother were to be legal.

170 Planned Parenthood of Southeastern Pennsylvania v. Casey o In 1992,, held that Pennsylvania could limit abortions. o So long as its regulations did not pose an undue burden on pregnant women. o A narrowly supported standard by which the court upheld a twenty-four-hour waiting period and parental consent requirements. o Did not overrule Roe. o But clearly limited its scope by abolishing its trimester approach. o Substituting the undue burden standard for the trimester approach used in Roe.

171 Birth Control: o Recently in Gonzalez v. Carhart, the Roberts court revealed the direction it was heading in abortion cases. o In 2010, Nebraska enacted legislation prohibiting most abortions after 20 weeks. o Other states such as Oklahoma have laws or are considering legislation that require doctors to show women an ultrasound image of the fetus before they are allowed to abort.

172 Homosexuality: o In 2003, the U.S. Supreme Court ruled that an individual s constitutional right to privacy which provided the basis for the Griswold (contraceptives) and Roe (abortion) decisions, prevented states from Criminalizing private sexual behavior. o This monumental decision invalidated the laws of fourteen states. o Lawrence v. Texas; held that anti-sodomy laws were unconstitutional but concluded that it was an equal protection violation. o Obergefell v. Hodges (2015), the Supreme Court recognized that homosexual couples can be married couples.

173 SHORT ANSWER: Where is the right to privacy found in the Constitution?

174 TOWARD REFORM: CIVIL LIBERTIES AND COMBATING TERRORISM: o 5.7. We will be evaluating how Reforms combat terrorism have affected Civil Liberties.

175 The First Amendment: o The U.S. Patriot Act violates the First Amendment s free speech guarantees. o It bars those who have been subject to search orders from telling anyone about those orders. o Even in situations where no need for secrecy can be proven. o It also authorizes the Federal Bureau of Investigation to investigate citizens who choose to exercise their freedom of speech. o With no need to prove that any parts of their speech might be labeled illegal.

176 The Fourth Amendment: o Another potential infringement after o Media were under strong constraints to report only positive aspects of the U.S. effort to combat terrorism. o U.S. Patriot Act enhances government ability to curtail specific search and seizure restrictions in four areas (Fourth Amendment).

177 The First Amendment: o It allows the government to examine an individual s private records held by third parties. o This includes allowing the FBI to force anyone including o physicians, o librarians, o bookshops, o colleges, o ISP, o to turn over all records they have on a particular individual.

178 The First Amendment: o Second, it expands the government right to search private property without notice to the owner. o Third according to the ACLU, the act expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information.

179 The Fourth Amendment: o Finally, the act expands an exception for spying that collects addressing information about where and to whom communication are going. o As opposed to what is contained in the documents. o Judicial oversight of these governmental power is virtually nonexistent. o Proper governmental authorities need only to certify to judge. o Without any evidence, that the requested search meets the statute s broad criteria. o Moreover, the legislation deprives judges of the authority to reject such applications.

180 The Fourth Amendment: o Other Fourth Amendment violations include the ability to conduct searches without a warrant. o The government also does not have to demonstrate probable cause that a person has or might commit a crime. o Thus, the USA Patriot Act also goes against key elements of the due process rights guaranteed by the Fifth Amendment.

181 Due Process Rights: o Illegal incarceration and torture are federal crimes and the Supreme Court held in 2004 that detainees have a right of habeas corpus. o The Bush administration argued that under the Military Commission Act of 2006, alien victims of torture had significantly reduced rights of habeas corpus.

182 Due Process Rights: o It also eliminated the right to bring any challenge to detention, transfer, treatment, trial, or conditions of confinement of detainees. o It allowed the government to declare permanent resident aliens to be enemy combatants. o It enabled the government to jail these people indefinitely o Without any opportunity to file a writ of habeas corpus. o The Roberts court ruled that part of this act was unconstitutional.

183 Due Process Rights: o Guantanamo Bay detention facilities sparked intense debates. o The Sixth Amendment right to trail by jury also been curtailed by recent federal activity. o Although those declared enemy combatants can no longer be held indefinitely for trial by military tribunals. o They still do not have access to the evidence against them, and additional evidence may be obtained through coercion or torture.

184 Due Process Rights: o Trials of enemy combatants are closed. o People tried in these courts do not have a right to an attorney of their choosing. o The federal government s activity in these tribunal was limited by the Supreme Court, by the Military Commissions Act returned these powers to the executive branch.

185 Due Process Rights: o The Obama administration to the surprise of many observers has done little to restore the rights revoked by these acts. o Finally, the Eighth Amendment s prohibition on cruel and unusual punishment has been subject to great controversy. o Interrogation practices, water boarding that stimulates drowning.

186 Due Process Rights: o Among the techniques authorized by the government were combinations of painful physical and psychological tactics. o Including head-slapping, simulated drowning, and frigid temperatures.