Civil Liberties And Public Policy 4
Learning Objectives 4 4.1 Trace the process by which the Bill of Rights has been applied to the states
Warm-up Question How would you define the following? Civil Liberties Civil Rights
Answer Civil Liberties: Freedoms guaranteed to individuals Declare what government cannot do a wall of protection between you and government
Answer Civil Rights : The right of every person to be treated equally under the law protection from discrimination. Focus on making sure different groups are treated equally by the government and other groups Sometimes it is ok to discriminate under 21 no alcohol rational basis, intermediate, and strict scrutiny tests Group
Civil Liberties Examples Freedom of Religion Freedom of Speech Freedom of the Press Freedom of Assembly and Petition Property Rights Right to Privacy Rights of the Accused
Protections in the Original Constitution Writ of habeas corpus Must be brought before the court and informed of charges against you. No Bills of attainder You cannot be imprisoned without a trial. No Ex post facto laws Laws applied to acts committed before the laws passage are unconstitutional. If you consumed alcohol before the passage of Prohibition, you couldn t be charged with breaking Prohibition later. You would need to consume alcohol after the passage of Prohibition to be charged. Trial by Jury
The Bill of Rights Song and Dance 1 st Amendment Freedom of Press, Speech, Assembly, Petition, Religion 2 nd Amendment Right to Bear Arms 3 rd Amendment Quatering Soldiers 4 th Amendment Search and Seizure 5 th Amendment Right to Remain Silent 6 th Amendment Criminal Jury Trial 7 th Amendment Civil Jury Trial 8 th Amendment Cruel and Unusual Punishment 9 th & 10 th Amendments Rights of the People and States
Main Controversies Civil Liberties Is it ever OK to restrict them? Regular every day life v. war time What is constitutional and what isn t? Flag Burning v. Draft Card Burning Court precedent
Main Controversy Civil Liberties and Civil Rights Do the protections in the founding documents that apply to the Federal Government also apply to State Governments? 1833 - Chief Justice John Marshall declares that the rights in the founding documents ONLY apply to Federal Government Barron v Baltimore 1868-14 th Amendment was ratified and changes things 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.
14 th Amendment Selective Incorporation Selective Incorporation The practice of the U.S. Supreme Court in selecting some (but not all) of the rights and liberties in the Bill of Rights that are considered "fundamental," and enforcing them against states. Achieved through court cases which set precedent
How Rights and Liberties became applicable to the states: Better Know a Case! Gitlow v. New York - 1925 Facts Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. Constitutional Question: Does the First Amendment apply to the states? Ruling: Yes, by virtue of the liberty protected by due process that no state shall deny Justification 14th Amendment Significance Opens the gates for Selective Incorporation 1 st right to be incorporated
TABLE 4.2: The Incorporation of the Bill of Rights 4.1
Learning Objectives 4 4.2 Distinguish the two types of religious rights protected by the First Amendment and determine the boundaries of those rights
1 st Amendment Freedom of Religion Establishment Clause Congress shall make no law respecting an establishment of religion What exactly does this mean? Jefferson s Eternal Wall of Separation or just no faves?
Should tax $ be used to fund private/religious schools? Lemon v Kurtzman - Lemon Test - 1971 Must have a secular legislative purpose - clear Cannot advance or inhibit religion - clear Cannot foster an excessive government entanglement with religion vague Lynch v. Donnelly - Pawtucket Rhode Island - 1985 Nativity scene in a public park provided by a not for profit was allowed Sets Precedent The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. Tax Dollar Subsidies to families for tuition costs at private schools. (Vouchers) School Choice allows individuals to choose among options it may not be a religious school
Other Establishment Clause Cases Everson v. Board of Education 1947 upheld New Jersey policy of reimbursing parents of Catholic School students for the costs of busing their children to school. Engel v. Vitale School-sanctioned prayer in public schools is unconstitutional Abington School District v. Schempp Struck down Pennsylvania law requiring the reading of a bible passage at the beginning of each day. Edwards v. Aguillard Louisiana could not force public schools that taught evolution to also teach creationism Board of Education of Westside community Schools v. Mergens Upheld Equal Access Act of 1984 which required public secondary schools to provide religious groups the same access to facilities that other extracurricular groups had. Santa Fe Independent School District v. Doe Overturned Texas law allowing high school students to read a prayer at athletic events such as football games
1 st Amendment Freedom of Religion Free Exercise Clause Congress shall make no law prohibiting the free exercise [of religion] Strict Scrutiny A law conflicting with religious practice can only be upheld if the government can prove compelling government interest
Free Exercises Cases Reynolds v. United States Upheld federal law prohibiting polygamy even though Reynolds, a Mormon from Utah, claimed that the law limited his religious freedom. Wisconsin v. Yoder WI could not require Amish parents to send their children to public school beyond 8 th grade because it would violate long held religious beliefs City of Boerne, Texas v. Flores 1993 Religious Freedom Restoration Act people have the right to practice religious activities unless prohibited by laws that are narrowly tailored and the government can show a compelling interest Ruled Unconstitutional Recent state laws have been passed that are similar to the RFRA
Another way of looking at it You are free to believe anything, but if you act on those beliefs, government may regulate your behavior.
Conundrums 1. Should a person be forced to work on their Sabbath if their religion doesn t allow it? If they lose their job should they be able to get unemployment benefits?
Sherbert v. Verner Sabbath Work Adeil Sherbert, a member of the Seventh-day Adventist Church, was fired from her job after she refused to work on Saturday, the Sabbath Day of her faith. The South Carolina Employment Security Commission denied her benefits, finding unacceptable her religious justification for refusing Saturday work. S.C. Ruling No Compelling Interest. You can t be forced to work on your Sabbath. You are eligible for government aid if you become unemployed as a result
Conundrum 1. Should a person be able to use controlled substances as part of their religious sacraments?
Employment Division v. Smith (Oregon v. Smith) Illegal Substances and Sacraments Two Native Americans who worked as counselors for a private drug rehabilitation organization, ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related "misconduct." S.C. Ruling Definite Compelling Interest. Religion doesn t exempt you from an otherwise valid law
Learning Objectives 4 4.3 Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights
Freedom of Expression 4.3 Prior Restraint Free Speech and Public Order Obscenity Libel and Slander Symbolic Speech Free Press and Fair Trials Commercial Speech Regulation of the Public Airwaves Campaigning
Freedom of Expression Prior Restraint another term for censorship Near v Minnesota (1931) court ruled prior restraint unconstitutional 1988 the court exempted public schools newspapers from this rule because they weren t public forums and could be regulated by school officials. Is allowed in wartime or whenever national security is at stake, but is careful to limit this exception to cases where there s a legitimate national security risk.
Free Speech and Public Order Schecnk v. United States (1919) the Court upheld the conviction for attempting to urge men to resist the draft. Chief Justice Holmes stated that speech that poses a clear and present danger wasn t protected by the First Amendment. Difficulty with this standard is how to define danger Brandenburg v. Ohio (1969) the courts narrowed its interpretation, finding that it s permissible to advocate the violent overthrow of the government in the abstract as long as doing so does not incite anyone to imminent lawless violence. WHAT DOES THAT MEAN? VAGUE, VAGUE, VAGUE
Obscenity Roth v. United States (1957) obscenity is not constitutionally protected But what is OBSCENE? Obscenity is subjective, so how do you define it? Miller v. California (1973) the court attempted to clarify its obscenity doctrine. Appeals to prurient interest Patently offensive Lacking serious literary or artistic value Average people/local standards Regulation of access to adult material to protect minors
Libel and Slander & Symbolic Speech Libel written defamation of character Slander spoken defamation of character New York Times v. Sullivan the court ruled that statements about public figures are only libelous if the speaker knew they were untrue and had the malicious intent to harm the person by making them. Symbolic Speech action that expresses an opinion Is protected by the 1 st Amendment in the same way as spoken or written speech. Texas v. Johnson (1989) burning the American flag is protected speech Exceptions would be actions like burning a draft card or making threats
Free Press and Fair Trails Trials are public; therefore, they are open for the press to cover. There are some ways for the courts to attempt to protect the fairness of the trail sequestering juries, gag orders, etc. Are reporters immune to search warrants and subpoenas? Zurcher v. Stanford Daily (1978) the courts ruled that journalists and reporters cannot withhold evidence and are subject to search warrants and court subpoenas.
Campaigning and Free Speech Federal Election Campaign Act (FECA) of 1971 attempted to limit the influence of money by setting limits to how much money could be spent in different ways of a campaign. Buckley v. Valeo (1976) the courts invalidated parts of the FECA, arguing that spending money to influence elections is a form of protected speech Bipartisan Campaign Reform Act (McCain-Feingold Act) of 2002 banned soft money contributions and limited third party (not minor parties) advertising. Citizens United v. Federal Election Commission (2010) the courts invalidated parts of the BCRA, prohibiting restrictions on political broadcasts funded by third parties such as corporations.
Learning Objectives 4 4.4 Describe the rights to assemble and associate protected by the First Amendment and their limitations
Right to Assemble and Associate The Constitution guarantees the right of citizens to gather together to make a statement, but it is not absolute. Time, place and manner restrictions Laws may require demonstrators to obtain a permit. Must stay on public property and can be limited as to distance, volume, and other features of their protest to avoid harassing law-abiding citizens. Can a anti-abortion group protest outside an abortion clinic and block the entrance? Can a KKK group hold a rally? Right to associate with like-minded people is protected. NAACP v. Alabama (1958) Court ruled that Alabama had no right to force the NAACP to turn over its membership list.
Learning Objectives 4 4.5 Describe the right to bear arms protected by the Second Amendment and its limitations
Right to Bear Arms Very controversial in today s society Is subject to local, state and national restrictions Background checks criminal, mental health, etc. Wasn t incorporated until 2008 with the case of District of Columbia v Heller. Courts ruled that laws that limit an individual s ability to use a firearm for self-defense are unconstitutional.
Practice FRQ The First Amendment includes two clauses relating to the freedom of religion. a. Select one of the following cases and identify the First Amendment clause upon which the United States Supreme Court based its decision. i. Engel v Vitale ii. Lemon v Kurtzman b. Describe the Supreme Court s decision in the case that you selected in (a). c. Select one of the following cases and identify the First Amendment clause upon which the United States Supreme Court based its decision. i. Reynolds v United States ii. Oregon v Smith d. Describe the Supreme Court s decision in the case that you selected in (c).
Learning Objectives 4.6 Characterize defendants rights and identify issues that arise in their implementation
Fourth Amendment Probable cause - Video Police Searches Video Exclusionary Rule Refer to notes handout Weeks v US (1913) Established the exclusionary rule Mapp v Ohio (1961) Incorporated the exclusionary rule to the states Are there exceptions during war time or crisis? USA Patriot Act (2001)
Fifth Amendment Protects against self-incrimination right to remain silent Miranda v Arizona (1966) established the Miranda Rights The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.
Sixth Amendment Right to an attorney (counsel) Gideon v Wainwright (1963) incorporated the right to counsel Speedy and public trial by impartial jury What is the significance of each protection within this amendment? What about plea bargains? The war on terrorism has changed some of these rules The FBI has detained people considered threats to security
Eighth Amendment Cruel & Unusual Punishment not defined by the Courts Gregg v Georgia (1976) The court ruled the death penalty IS NOT cruel and unusual McCleskey v Kemp (1987) The court rejected the argument that the death penalty violates the equal protection clause of the 14 th Amendment just because minority offenders and crimes involving white victims are more likely to result in a death sentence.
Video: In the Real World 4.6 http://media.pearsoncmg.com/ph/hss/ssa_shared_med IA_1/polisci/presidency/Seg5_CivilLiberties_v2.html
FIGURE 4.2: Decline of executions 4.6
Learning Objectives 4.7 Outline the evolution of a right to privacy and its application to the issue of abortion
The Right to Privacy How privacy is implied in Constitution Religion Right to exercise private beliefs Search & Seizure right to privacy in your home/property Right to be left alone Griswold v Connecticut (1965) Incorporated the right to privacy (not specifically mentioned in the Constitution, but listed under 9 th amendment) Roe v Wade (1973) ruled right to privacy protects a woman s decision to have abortion. Not absolute - (trimester restrictions) Planned Parenthood v Casey (1992) made it easier for states to place restrictions on abortion services by stating they were only unconstitutional if they place undue burden on a woman.
FIGURE 4.3: The Abortion Debate
Practice FRQ Prompt c. Choose one of the following and explain how it limits the power of state governments. i. Citizenship clause of the Fourteenth Amendment ii.selective incorporation The framers of the Constitution created a political system based on limited government. The original Constitution and the Bill of Rights were intended to restrict the powers of the national government. Later constitutional developments also limited the powers of state governments. a. Explain how each of the following limits the powers of the national executive. i. Federalism ii.checks and balances b. Explain how each of the following two provisions in the Bill of Rights limits the powers of the national government. i. Establishment clause ii.guarantee of a public trial