Unit 3: Civil Liberties and Civil Rights

Transcription

1 Unit 3: Civil Liberties and Civil Rights

2 Chapter 4: Civil Liberties

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

4 SHORT ANSWER What is the difference between civil liberties and civil rights?

5 Discussion Questions: Explain the arguments of federalists and antifederalists in regards to passing the Bill of Rights. What was the original intent of the Bill of Rights and how was it interpreted in Barron v. Baltimore? Based on the original intent of the Bill of Rights, what could states potentially do with the civil liberties guaranteed in the Bill of Rights?

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7 Fourteenth Amendment: o All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States 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 law; nor deny to any person within its jurisdiction the equal protection of the laws.

8 Discussion Questions: What was the impact of the Fourteenth Amendment on the Bill of Rights?

9 Supreme Court: 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 By 1897, the Supreme Court asserted increasing jurisdiction over the States.

10 Substantive Due Process Standard: o States had the legal burden to prove that their laws were a valid exercise of their power. o To regulate the health, welfare, or public morals of their citizens. o Interference of State power was rare.

11 Gitlow v. New York: o Gitlow was convicted of violating State sedition laws (Prohibiting to speak or write against any political official). o Conviction was upheld. o The U.S. Supreme Court noted that the states were not completely free to limit forms of political expression. o It also enunciated the belief that some personal rights and liberties were so fundamental that they required special protection from the States. o The First Amendment applies to the states via the 14th Amendment, the states may prohibit speech having a tendency to cause a danger to public safety o Development of the incorporation doctrine.

12 Incorporation Doctrine: o That the First Amendment is a fundamental personal rights and liberties. o Protected by the due process clause of the fourteenth amendment from being infringed by the states.

13 Selective Incorporation Doctrine: o Not all 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. o To limit the rights to states by protecting against abridgement of 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.

14 Selective Incorporation Doctrine: o Not all 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. o To limit the rights to states by protecting against abridgement of 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.

15 Selective Incorporation Doctrine: o Today, it 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. (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.

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17 APPLICATION QUESTION What amendments of the Bill of Rights do you think are fundamental national notion to liberty and justice and should be incorporated?

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

19 ACTIVITY: What is a reasonable restriction of religious liberty? o Congress passes Federal law that requires people to go to church on Sunday. o State passes law that all businesses must close on Sundays for religious purposes. o Law restricting religious group from being bit by rattle snakes. o Law restricting crosses shown in buildings.

20 First Amendment: 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.

21 APPLICATION QUESTION o What are examples of exercise of religion? o Are there certain religious practices that should be illegal?

22 First Amendment: 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.

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24 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}

25 Video Reaction Do you think an unofficial religious test was imposed on Dr. Walsh? Do you think that Dr. Eric Walsh has the right to preach his religious beliefs during his off hours even though they are controversial, or does he need to keep his beliefs to himself to keep his government job?

26 Lemon Test: Government and Private Schools: o Had a legitimate secular purpose o Neither advanced nor inhibited religion. o Did not foster an excessive government entanglement with religion.

27 Excessive Entanglement? o Public buildings can be used for religious worship. o Government provides textbooks, computers, and other institutional materials to students at religious schools are allowed. o The Court also permits governments to offer student vouchers to attend private or religious schools. o Students fees at public universities may be used to fund the activities for religious organizations, so long as those groups allow members of a variety of faiths.

28 Engel v. Vitale (1962) o A brief nondenominational prayer drafted by the local school board is unconstitutional. o Mandatory prayers are unconstitutional.

29 Abindgon School District v. Schempp: o State-mandated Bible reading or recitation of the Lord s prayer in public schools was also unconstitutional.

30 Wisconsin v. Yoder (1972) o Amish believe that children should no longer go to school past eighth grade violating local law. o Under the Free Exercise Clause of the First Amendment, a state law requiring that children attend school past eighth grade violates the parents' constitutional right to direct the religious upbringing of their children. o The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights. o Such as those specifically protected by the Free Exercise Clause of the First Amendment. o And the traditional interest of parents with respect to the religious upbringing of their children.

31 How should the Supreme Court Decide this case? o A private Christian school in Alabama banned interracial dating in its campus citing its based on their religious beliefs. o Muslim prisoners are denied food free of Pork based on their religious practice. o How should these Supreme Court decide this issue?

32 Secular law and Religion Conflict 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 The U.S. Supreme Court has interpreted the Constitution to mean that the government interests can outweigh the free exercise rights.

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34 Video Reaction Based on these videos what competing civil liberties issues are being discussed? How do you think the Constitution should be interpreted based on this issue?

35 OBJECTIVES: First Amendment Guarantee. 4.3 OBJECTIVES: 4.3: The First Amendment guarantees of and limitations on freedom of speech, press, assembly, and petition.

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

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38 DISCUSSION QUESTION Is there a limit to freedom of speech and if so what type of speech do you believe should not be protected?

39 Schneck v. United States o The Supreme Court upheld the Espionage Act that made it illegal to urge resistance to the draft or to prohibit the distribution of anti-war leaflets. o 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. 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.

40 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. o Is likely to incite or produce such action. o The requirement of imminent lawless action makes it more difficult for the government to punish speech and publication.

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42 CREATE SKIT Demonstrating the principles of clear and present danger and direct incitement.

43 APPLICATION What are examples of symbolic speech?

44 Tinker v. Des Moines Independent Community School District (1969)? o o o o o o Students wore black armbands protesting the Vietnam War. Symbolic speech is protected by the First Amendment. Wearing of armbands were quiet and passive and not disruptive or impinged on the rights of others. Their conduct was within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth. First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment. A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.

45 HATE SPEECH: o Cross burning was held to be constitutional (R.A.V. v. City of St Paul (1992) o First Amendment prevents government from silencing speech on the basis of its content. o In 2003, the Court narrowed this definition. o Ruling that the state governments could constitutionally restrict cross burning. o When it occurred with the intent of racial intimidation.

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47 New York Times v. United States o The Supreme Court ruled that the U.S. government could not block the publication of secret Department of Defense documents. o Illegally furnished to the Times by antiwar activists. o Supreme Court bolstered the freedom of the press, establishing a heavy presumption against prior restraint even in cases involving national security. o Prior restraint in attempting to stop speech from being published.

48 Unprotected Speech: o Libel o Fighting words o Obscenity o Lewdness o Not protected by First Amendment. o They are of slight social value. o Any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

49 Unprotected Speech: o Libel is a written statement that defames the character of a person. o If the statement is spoken, it is slander.

50 Standard of Proof for Libel: 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.

51 New York Times Co. v. Sullivan: o Established that a finding of libel against a public official could stand only if there was a showing of actual malice. o 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.

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53 APPLICATION What are examples of libel and slander?

54 What is Obscenity? o Courts must ask whether the works depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law. o The Courts also were to determine whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. o 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.

55 What is Obscenity? o Supreme Court affirmed the PROTECT Act. o Which outlawed the sale or transmission of child pornography. o There is a compelling interest to protect children.

56 Freedom to Assemble o Is hinged on peaceful conduct. o The freedom of assembly and petition, are related directly to the freedoms of speech and of the press. 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.

57 Freedom to Assemble o Is hinged on peaceful conduct. o The freedom of assembly and petition, are related directly to the freedoms of speech and of the press. 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.

58 TIME, PLACE, MANNER RESTRICTIONS: o U.S. Supreme Court has repeatedly ruled that state and federal governments may place reasonable restrictions on the time, place, and manner of individual expression. o Restrictions help accommodate public convenience and promote order. o Regulating Traffic flow. o Preserving property interest. o Protecting the administration of justice.

59 TIME, PLACE, MANNER RESTRICTIONS: (FOUE PARTS) o Restrictions must be content-neutral. o Be Narrowly drawn. o Serve a significant government interest. o Leave open alternative channels of communication.

60 TIME, PLACE, MANNER RESTRICTIONS: o Case by case basis. o Government has less restriction to regulate speech of lower value. o Obscenity (Hardcore Pornography) o Fighting Words (Offensive speech that would incite a reasonable person to violence.

61 TIME, PLACE, MANNER RESTRICTIONS: o Conversely, the government must offer "compelling" reasons for regulating highly valued forms of expression, such as political speech. o Compelling reason could be the danger of violence or public order. o Restrictions on this intermediate category of speech only if it can advance a "significant" or "important" reason for doing so.

62 TIME RESTRICTION: o Regulate when individuals may express themselves. o At certain times of the day, the government may curtail or prohibit speech to address legitimate societal concerns, such as traffic congestion and crowd control. o Commuters wanting to get home during rush hour is more important than the right of political protestors to block traffic during rush hour to gain attention.

63 PLACE RESTRICTION: o Regulate where individuals may express themselves. o Supreme Court recognize three forums of public expression. o Traditional o Limited o Nonpublic.

64 PLACE RESTRICTION: (TRADITIONAL PUBLIC FORUMS) o Places historically reserved for communication of ideas and information. o Parks o Sidewalks o Streets o Allows individuals regardless of social standing to express themselves. o Under the First Amendment, the government may not close traditional public forums. o But may place reasonable restrictions on their use.

65 REASONABLE RESTRICTIONS: o Content-neutral: the government may not prohibit entire classes of expression. o Such as speech concerning poverty, drug abuse, or race relations. o Viewpoint-neutral, which means that it must apply uniformly to all speech. o It cannot silence speakers that the government opposes and allow those whom the government supports. o Restriction must burden speech no more than is necessary to serve an important government interest. o Restrictions that are carefully aimed at controlling the harmful consequences of speech serve an important government interest.

66 REASONABLE RESTRICTIONS: LIMITED PUBLIC FORUMS: o Those places held out by the government for civic discussion. o Capitol grounds, courthouses, state fairs, and public universities have all qualified as limited public forums for First Amendment purposes. o Although the government may designate such places as sites for public speech under certain circumstances. o The Supreme Court has recognized that individual expression is not the sole objective served by limited public forums. o First Amendment gives the government greater latitude in regulating limited public forums than traditional public forums.

67 REASONABLE RESTRICTIONS: Non-public forums: o The government is allowed to regulate non-public forums with even greater latitude. o Non-public forums include privately owned property and publicly owned property devoted almost exclusively to purposes other than individual expression. o Airports, jailhouses, military bases, and private residential property have all been deemed to be nonpublic forums under the First Amendment. o In nonpublic forums the government may impose speech restrictions that are reasonably related to the forum's function. o Including restrictions that discriminate against particular viewpoints.

68 REASONABLE RESTRICTIONS: Manner o Manner restrictions regulate the mode of individual expression. o This includes symbolic speech. o Flag burning is an example of symbolic speech that the Supreme Court found to be protected by the Free Speech Clause (Texas v. Johnson).

69 REASONABLE RESTRICTIONS: Manner o When the government attempts to regulate symbolic expression, courts balance the competing interests asserted by the litigants. o Regulations that are targeted at suppressing a symbolic message will be closely scrutinized. o While regulations that serve compelling government (order and safety) interests unrelated to the expression of ideas will be subject to less exacting judicial scrutiny.

70 REASONABLE RESTRICTIONS: Alternative Channels: o All TPM restrictions must provide speakers with alternative channels for communicating ideas or disseminating information. o The average person does not have access to mass media. o Instead, the great bulk of communication takes place through the circulation of leaflets, hand-bills, and pamphlets, which most people can distribute and read in a cheap and efficient manner. o As a result, courts are generally sensitive to protecting these modes of communication.

71 APPLY TIME, PLACE, MANNER TO THE FOLLOWING SCENARIOS. o Seventh-day Adventist Bible Worker passing out flyers for a evangelistic series. o Youth Rush going door to door selling SDA Books. o Protestors outraged that BTS cancelled their concert block Olympic Blvd in Los Angeles during Rush Hour Traffic. o NFL Players protesting during the National Anthem at a NFL football game. o A protest at a private high school for better school uniforms. o A protest at Disneyland decrying how Disney is ruining Star Wars.

72 OBJECTIVES:THE SECOND AMENDMENT: THE RIGHT TO KEEP AND BEAR ARMS. THE SECOND AMENDMENT: THE RIGHT TO KEEP AND BEAR ARMS. 4.4 We will examine changes in the interpretation of the Second Amendment right to keep and bear arms.

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74 DEBATE Do you think the original intent of the Second Amendment applies today?

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76 D.C. v. Heller o Provisions of the District of Columbia Code made it illegal to carry an unregistered firearm and prohibited the registration of handguns. o Though the chief of police could issue oneyear licenses for handguns. o The Code also contained provisions that required owners of lawfully registered firearms to keep them unloaded and disassembled. o Or bound by a trigger lock or other similar device unless the firearms were located in a place of business or being used for legal recreational activities.

77 D.C. v. Heller o The Supreme Court ruled that the second amendment protected an individual right to a firearm for personal use in Washington D.C. o Washington D.C. is Federal territory, and therefore was bound by the Second Amendment.

78 McDonald v. City of Chicago o The issue of the case was whether the Second Amendment applied to the States. 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. o State governments cannot ban guns because of the Second Amendment.

79 DEBATE The Constitution states that the Federal Government is responsible to insure domestic tranquility and also the Right to bear arms (Second Amendment). Based on the recent high profile gun violence cases, do you think these two elements of the Constitution are complimentary or contradictory?

80 THE RIGHTS OF CRIMINAL DEFENDANTS THE RIGHTS OF CRIMINAL DEFENDANTS 4.5: Analyze the rights of criminal defendants found in the Bill of Rights.

81 ACTIVITY: Create a skit on what is Habeas Corpus.

82 Fourth Amendment: o 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.

83 Fourth Amendment: o The purpose of this amendment was to deny the national government the authority to make general searches. o Searches are granted when a warrant is issued by probable cause by a judge. o Probable cause exists when there is a fair probability that a search will result in evidence of a crime being discovered.

84 Fourth Amendment: o Over the years, court decisions would allow Police to search. o (1) If the person arrested; o (2) The things in plain view of the accused person o (3) Places or things that the arrested person could touch or reach or are otherwise in the arrestee s immediate control

85 Discussion Question: Where would you consider be places where there is a reasonable expectation of privacy?

86 Fourth Amendment: Reasonable Expectation of Privacy: o Houses o Offices o Police must obtain search warrants from a neutral and detached magistrate. o Prior to conducting more extensive search. o Where an individual would reasonably have some expectation of privacy.

87 Fourth Amendment: o Cars can often be searched without warrants because they are mobile. 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.

88 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. 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.

89 Fifth Amendment: o Provides 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.

90 Fifth Amendment: o The Fifth Amendment also provides that No person shall be compelled in any criminal case to be a witness against himself. o Taking the Fifth is shorthand for exercising one s constitutional right not to selfincriminate. o Lawyers cannot imply that a defendant who refuses to take the stand must be guilty or have something to hide. o Prosecutors cannot use as evidence in a trial any of a defendant s statements or confession that were not made voluntarily or after the lawyer is requested.

91 Miranda v. Arizona: o The Supreme Court held that coercive efforts to obtain confessions that are not truly voluntary. o Police have a tremendous advantage in interrogation. o Criminal suspects must be given greater protection. o A confession obtained in Miranda where he was interrogated for two hours and but not told he can have an attorney and not answer any of the questions is inadmissible at trial. 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.

92 Public Safety Rule Exception: o Allows into evidence an otherwise suppressible statement made by a defendant relating to information that the police needed at the time it was made in order to protect the public. o If, a victim tells the police that an assailant had a gun, and upon the suspect's arrest the police find a holster not a gun, then they would be immediately entitled to ask where the gun is. o Therefore, under the public-safety exception, the suspect's statement of the gun's location would be admissible.

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94 Discussion Question: What scenarios can you see of the Public Safety Rule exception to be applied?

95 Double Jeopardy: o Protects individuals from being tried twice for the same crime in the same jurisdiction. o If a defendant is acquitted by a jury, he cannot be retried of the same crime even though new information is uncovered. o But if defendants was tried in a state court, he or she could still face charges in a federal court or vice versa.

96 Exclusionary Rule: o Illegally seize evidence is barred from trial. Weeks v. U.S. (1914) o Did not want Police to be encouraged to use illegal means to obtain evidence. o That if they found evidence in violation of any constitutional rights, it would be worthless. o Tainted evidence could not be used in federal or state trials. (Mapp v. Ohio)

97 Good Faith Exception: o Allowing the use of tainted evidence in a variety of situations, especially when police have a search warrant and in good faith. o Good faith is honest mistakes in procedure that led to seizing of criminal evidence. o Conduct the search on the assumption that the warrant is valid even though it is subsequently found invalid.

98 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. o For example, if suspect is stopped for drunk driving and officer smells something funny, and opens the trunk to find kilo of drugs.

99 Sixth Amendment: o The Sixth Amendment guarantees to an accused person the Assistance of Counsel in his defense. o In the past it was interpreted as defendants can hire attorney. o Supreme Court held that defendants that could not afford attorneys must be provided one by the state (Gideon v. Wainwright).

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101 Sixth Amendment: 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 "speedy" trial basically means that the defendant is tried for the alleged crimes within a reasonable time after being arrested. o Although most states have laws that set forth the time in which a trial must take place after charges are filed. o Often the issue of whether or not a trial is in fact "speedy" enough under the Sixth Amendment comes down to the circumstances of the case itself, and the reasons for any delays. o A trial in which a group of the accused s peers act as a factfinding deliberative body to determine guilt or innocence. o The Supreme Court held that states cannot bar women and minorites from serving in juries via peremptory challenges. o Based on the 14 th Amendment equal protection clause.

102 Sixth Amendment: o It also provides defendants the right to confront witness against them. 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.

103 SKIT Create scenarios and skits involving the Fourth, Fifth, and Sixth Amendment. Pick one of the three amendments stated.

104 Eighth Amendment: o Eighth Amendment prohibits cruel and unusual punishments. o Electrocution and public shootings is not cruel and unusual punishment in the same category of torture, stretching of limbs, the rack, etc (1800s). o State laws in which juveniles may be sentenced to life imprisonment without any opportunity for parole. o In 2016, by a 6-3 vote, the Court ruled that its 2012 decision limiting life sentences for juveniles was retroactive.

105 Eighth Amendment: 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. o It constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

106 Eighth Amendment: o In Gregg v. Georgia, Georgia s rewritten death penalty statute was ruled constitutional by the Supreme Court in a 7-2 decision. o In 1987, a 5-4 Court ruled that imposition to the death penalty, even when it appeared to discriminate against African Americans did not violate the equal protection clause. o The Court noted that even if statistics show clear discrimination, reversal of an individual sentence required demonstration of racial discrimination in that particular case. (McClenskey v. Kemp, 1987).

107 DEBATE Do you think the Death Penalty violated the Eighth Amendment?

108 Right TO PRIVACY: o Right TO PRIVACY: 4.6 Students will explain the origin and significance of the right to privacy.

109 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.

110 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.

111 Birth Control: o The Constitution does not list a right to privacy. o The Court has held, however, that Bill of Rights protections of free speech, assembly, and religious exercise (First Amendment). o Freedom from forced quartering of troops (Third). o Unreasonable searches and seizures (Fourth). o Forced self-incrimination (Fifth) create zones of privacy. o Further, the Ninth Amendment s protection of unenumerated rights could be said to protect privacy. o These zones, the Court held, are places into which the government cannot unreasonably intrude.

112 Ninth Amendment: o The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

113 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.

114 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.

115 Birth Control: o In the third trimester when the fetus becomes potentially viable. o The Court found 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.

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117 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.

118 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.

119 SHORT ANSWER: What is the legal reasoning on why abortion is legal?

120 TOWARD REFORM: CIVIL LIBERTIES AND COMBATING TERRORISM: o TOWARD REFORM: CIVIL LIBERTIES AND COMBATING TERRORISM: 4.7. We will be evaluating how Reforms combat terrorism have affected Civil Liberties.

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122 GROUP ACTIVITY: In groups, list what potential Constitution violations is found in the Patriot Act.

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124 GROUP ACTIVITY: Should those foreign terrorists held in Guantanamo Bay be afford the same protections in the Constitution?

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126 Video Reaction: What constitutional issues do you see based on the video you just watched? Identify and list them.

127 DISCUSSION QUESTION What is the greater importance of the Government to protect, or security or our civil liberties?

128 Chapter 5: Civil Rights

129 Civil Rights: o Roots of Civil Rights 5.1

130 Civil Rights: o The government-protected rights of individuals. o Against arbitrary or discriminatory treatment by governments or individuals based on categories such as race, sex, national origin, age, religion, or sexual orientation.

131 Fourteenth Amendment: o The Fourteenth Amendment that specifies that a state could not deny any person within its jurisdiction equal protection of the laws. o Guarantees that no citizen shall be denied rights or privileges given to any other citizen by constitution or law. o The linchpin of efforts to protect a variety of groups from discrimination. o This has generated more litigation to determine and specify its meaning than any other provision of the Constitution.

132 Fourteenth Amendment: o The Fourteenth Amendment that specifies that a state could not deny any person within its jurisdiction equal protection of the laws. o Guarantees that no citizen shall be denied rights or privileges given to any other citizen by constitution or law. o The linchpin of efforts to protect a variety of groups from discrimination. o This has generated more litigation to determine and specify its meaning than any other provision of the Constitution.

133 Fourteenth Amendment: o Other key provisions of the Fourteenth Amendment barred states from abridging the privileges or immunities of citizenship. o Or depriving any person of life, liberty, or property without due process of law.

134 DISCUSSION QUESTION What is equality? Are there times it is legal to discriminate?

135 Dred Scott v. Standford o Court ruled that the Missouri Compromise which prohibited slavery north of a set geographical boundary was unconstitutional. o The court added that slaves were not U.S. Citizens and, as a consequence, could not bring suits in federal court. o This led to the Civil War. o And the passing of the 13 th, 14 th, and 15 th Amendment to the Constitution.

136 Civil Rights: o THE PUSH FOR EQUALITY 5.2 o STATUTORY PROTECTIONS FOR CIVIL RIGHTS, PRESENT: 5.3

137 Nineteenth Amendment: o In 1920, the Nineteenth Amendment guaranteed all women the right to vote. o Fifty years after African American males were enfranchised by the fifteenth amendment.

138 Plessy v. Ferguson o The Supreme Court held that a Louisiana law was constitutional and that separate facilities for blacks and whites provided equal protection of the laws. o Segregation became a way of life. o This led to the Separate-but-equal doctrine. o Where new legal avenues to discriminate against African Americans made their way into law. o The Jim Crow system soon expanded and became a way of life and rigid social code throughout the American South.

139 Civil Rights Organizations: o The NAACP (First Civil Rights Organization) began to fight for equal rights for African Americans through the Courts.

140 Brown v. Board of Education o Four cases brought from four different areas of the South and the border states. o Involving public elementary or high school systems that mandated separate schools for blacks and whites. o In Brown, lawyers led by Thurgood Marshall argued that Plessy separate-but-equal doctrine was unconstitutional. o Under the equal protection of the Fourteenth Amendment. o If the Court was still reluctant to overrule Plessy, the only way to equalize the schools was to integrate them.

141 Brown v. Board of Education II o The question then became how Brown would be interpreted and implemented. o One year after Brown, a Case referred to Brown v. Board of Education II (1955). o The court ruled that racially segregated systems must be dismantled with all deliberate speed.

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143 Brown v. Board of Education II o The question then became how Brown would be interpreted and implemented. o One year after Brown, a Case referred to Brown v. Board of Education II (1955). o The court ruled that racially segregated systems must be dismantled with all deliberate speed.

144 DISCUSSION QUESTION What did the Supreme Court do when it decided the Brown case in regards to Plessy v. Ferguson? What does that reveal about the Supreme Court?

145 Civil Rights Movement: o Civil Rights protest in the 1960s led by a coalition of ministers and students brought forth the issue of Civil Rights to the forefront in the nation. o Led by such leaders like Dr. Martin Luther King, Jr. o Their efforts led to the passage of major Civil Rights legislation in congress.

146 Civil Rights Act (1964) o Outlawed arbitrary discrimination in voter registration and expedited voting rights lawsuits. o Barred discrimination in public accommodations engaged in interstate commerce. o Authorized the Department of Justice to initiate lawsuits to desegregate public facilities and schools. o Provided for the withholding of federal funds from discriminatory state and local programs. o Prohibited discrimination in employment on grounds of race, creed, color, religion, national origin or sex. o Created the Equal Employment Opportunity Commission (EEOC) to monitor and enforce the bans on employment discrimination.

147 Voting Rights Act (1965) o Signed into law by President Lyndon B. Johnson. o Aimed to overcome legal barriers at the state and local levels that prevented African Americans from exercising their right to vote. o As guaranteed under the 15th Amendment to the U.S. Constitution. o The act banned the use of literacy tests. o Provided for federal oversight of voter registration in areas where less than 50 percent of the nonwhite population had not registered to vote. o Authorized the U.S. attorney general to investigate the use of poll taxes in state and local elections.

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149 Civil Rights Act: Title VII: o This prohibits employers from discriminating against employees for a variety of reasons including race, sex, age, and national origin. o In 1978, it amended to prohibit discrimination based on pregnancy. o Which prohibits gender discrimination by private and after 1972 public employers. o Key victories of Title VII include consideration of sexual harassment as sex discrimination.

150 Civil Rights Act: Title IX: o Bars educational institutions receiving federal funds from discriminating against female students. o This greatly expanded the opportunities for women in elementary, secondary, and postsecondary institutions. o Holding school boards or districts responsible for both student on-student harassment and harassment of students by teachers. o Allowing retaliatory lawsuits by coaches on behalf of their sports teams denied equal treatment by school boards.

151 National Organization of Women:

152 Busing Issue:

153 Pro Life Movement:

154 LGBT Rights:

155 LGBT Rights: o Lawrence v. Texas (2003): The Court reversed an earlier ruling, finding a Texas Statute banning sodomy as unconstitutional. o United States v. Windsor (2013): The Supreme Court declared the 1996 Defense of Marriage Act (DOMA), a federal law defining marriage as between one man and one women, unconstitutional. o Obergefell v. Hodges: Supreme Court held that same-sex marriage is legal in all 50 states.

156 Civil Rights: o TOWARD REFORM: PROTECTING CIVIL RIGHTS.

157 Fourteenth Amendment: o The Fourteenth Amendment protects all U.S. Citizens. o From state action that violates equal protection of the laws.

158 How is Equal Protection Determined? o The Supreme Court applied three standards of review or the level of deference the court gives government. o In crafting policies that make distinctions on the basis of personal characteristics, such as race, gender, or sexual orientation.

159 Minimum Rationality Test: o Most laws are subject to what is called the rational basis or minimum rationality test. o The lower level of scrutiny means that governments must allege a rational foundation for any distinctions they make. o As early as 1937, the Supreme Court recognized that certain freedoms were so fundamental. o Because certain freedoms were so fundamental, a very heavy burden would be placed on any government that sought to restrict those rights.

160 Strict Scrutiny Test: o When fundamental freedoms such as First Amendment rights or suspect classifications such as race are involved. o Category or class, such as race or a fundamental freedom, that triggers the highest standard of scrutiny from the Supreme Court. o The Court uses a heightened standard of review called strict scrutiny to determine the constitutional validity of the challenged practices.

161 Strict Scrutiny Test: o This means that if a statute or governmental practice makes a classification based on one of these suspect classifications. o The statute is presumed to be unconstitutional unless the state can provide compelling affirmative justifications. o Unless the state can prove that the law in question is necessary to accomplish a permissible goal. o That is the least restrictive means of accomplishing that goal.

162 APPLICATION QUESTION If the Federal Government suspends all citizenship applications from Muslim majority countries, how would this be applied with the various tests for the Fourteenth Amendment?

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164 Intermediate Standard of Review: o Within the two-tier distinction (strict scrutiny and rational basis). o Gender-related legislation automatically accorded this level of review. o This is a Review where the Court determines whether classifications serve an important governmental objective. o Are substantially related to serving that objective. o For example: men required to submit to draft for military service but women do not.

165 APPLICATION QUESTION Applying the intermediate standard of review, does it serve a government interest to not have women subject to the military draft?

166 Rational Basis Test: o Court will allow the law to stand as constitutional as long as it is rationally related to a legitimate government interest. o A standard of review in where the court determines whether any rational foundation for discrimination exists. o Legislation affecting individuals based on age, wealth, mental capacity are generally given this level of review.

167 Affirmative Action: o Many Civil Rights debates center on the question of equality of opportunity versus equality of results. o Most Civil Rights and Women s right organizations argue that race or gender must be taken into account to remedy discrimination. o That since racism and sexism existed since the beginning of the nation, race and sex needs to be considered to level the playing field for equal opportunities.

168 Affirmative Action: o They argue that the Constitution is not and should not be blind to color or sex. o Affirmative Action policies designed to give special attention or compensatory treatment to members of a previously disadvantaged groups. o In the form of quotas and other remedies.

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170 VIDEO REACTION: Do you think Affirmative Action is still necessary or do you think Americans have at least full legal equality?