4
Civil Liberties and Public
Policy
 Chapter Overview
This chapter explores the nature of civil liberties—those individual legal and constitutional
protections against the government—afforded in the United States. We begin by exploring the
specific protections afforded the people and trace the process by which these protections
increasingly came to limit the powers of both the national and state governments. Next, we turn to
examine the scope of specific rights, including freedoms of speech and religion, freedom of the
press, the right to privacy, the protection of private property, the right to bear arms, and the rights
of criminal defendants. We conclude by considering the way in which the civil liberties guaranteed
under our Constitution and the Bill of Rights affect our democratic government in the United States.
By the end of the chapter, students should understand the scope and nature of their rights under the
U.S. Constitution and how these rights have evolved over time.
 Lecture Suggestions
4.1
Trace the process by which the Bill of Rights has been applied
to the states.
LECTURE 1: Explain how the individual liberties guaranteed by the Bill of Rights resulted from
the founders’ belief in the social contract and classical liberalism.

To the authors of the Declaration of Independence, individual liberty was inherent in
the human condition. It was not derived from governments or even from
constitutions. Rather, governments and constitutions existed to make individual
liberty more secure.

The authors of the Bill of Rights (the first ten amendments to the Constitution) thus
did not believe they were creating individual rights but rather were recognizing and
guaranteeing rights that belonged to people by virtue of their humanity.

To avoid the brutal life of a lawless society, where the weak are at the mercy of the
strong, people form governments and endow them with powers to secure peace and
self-preservation.
This is reflected most clearly in the second paragraph of the Declaration of
Independence, which asserts, “We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the pursuit of Happiness. That to
secure these rights, Governments are instituted among Men, deriving their just
powers from the consent of the governed . . .”

The “great object” of the Constitution, according to James Madison, was to preserve
popular government yet at the same time protect people from “unjust” majorities.
LECTURE 2: Students often assume that the Bill of Rights protected the liberty of Americans
against all forms of government intrusion. They are often surprised to learn that, until relatively
recently, many of those protections only limited intrusion from the federal government.
Explain the process of incorporating the Bill of Rights.

While states often had similar protections written into their own constitutions, the
U.S. Constitution and Bill of Rights said nothing about protection from state
government. In Barron v. Baltimore (1833), the U.S. Supreme Court ruled that the Bill
of Rights applied only to the federal government and not to state governments.

The Fourteenth Amendment, ratified in 1868, included two important clauses that
protected the liberty of the people from intrusion by state governments.

The due process clause prohibits state and local governments from depriving
people of life or property without due process of law.

The equal protection clause requires that states provide equal protection under
the law to all people in their jurisdiction.

The Fourteenth Amendment, particularly the due process clause, has played an
important role in the incorporation of the other rights afforded under the U.S.
Constitution.
LECTURE 3: Beginning in the 1920s, the U.S. Supreme Court gradually interpreted individual
protections afforded under the Bill of Rights as applying to the states. Today, most of those rights
have been incorporated.
Trace the process of incorporation of the Bill of Rights for your students.

The First Amendment. All of the protections afforded by the First Amendment have
been incorporated.

Freedom of speech was incorporated in Gitlow v. New York (1925).

Freedom of the press was incorporated in Near v. Minnesota (1931).

Freedom of assembly was incorporated in DeJonge v. Oregon (1937).

The free exercise clause was incorporated in Cantwell v. Connecticut (1940).

The establishment clause was incorporated by the U.S. Supreme Court’s decision
in Everson v. Board of Education (1947).

The Second Amendment right to keep and bear arms was only incorporated to the
states in 2010, under McDonald v. Chicago.

The Third Amendment freedom from quartering of soldiers has never been
incorporated nationally, though the U.S. Court of Appeals for the Second Circuit did
incorporate the right to its jurisdiction (Connecticut, New York, and Vermont).
However, its opinion was only advisory for the other parts of the United States.

The Fourth Amendment prohibition against unreasonable search and seizure has
been incorporated to the states through a series of decisions, most importantly by
Wolf v. Colorado (1949) and Mapp v. Ohio (1961). The warrant requirement was
incorporated under Aguilar v. Texas (1964).

The Fifth Amendment. Most but not all of the Fifth Amendment protections have
been incorporated.

The prohibition against taking of private property without just compensation was
one of the first protections to be incorporated. It was incorporated in the
Supreme Court’s 1897 decision in Chicago, Burlington & Quincy Railroad Co. v. City
of Chicago.

The protection against self-incrimination was incorporated under Malloy v. Hogan
(1964).

The prohibition against double jeopardy was incorporated under Benton v.
Maryland (1969).


The right to indictment by grand jury has never been incorporated.
The Sixth Amendment has been incorporated.

The right to a public trial was incorporated by In re Oliver (1948).

The right to confront one’s accusers was incorporated by In re Oliver (1948) and
Pointer v. Texas (1960).

The right to counsel was incorporated by Gideon v. Wainwright (1963).

The right to a speedy trial was incorporated by Klopfer v. North Carolina (1967).

The right to an impartial jury was incorporated by a series of cases, including
Duncan v. Louisiana (1968) and Williams v. Florida (1970).

The Seventh Amendment. Most but not all of the Seventh Amendment has been
incorporated.

The reexamination clause was the earliest part of the Bill of Rights to be
incorporated under The Justices v. Murray (1869).


The right to jury trial in civil cases has not been incorporated.
The Eighth Amendment. Most but not all of the Seventh Amendment has been
incorporated.

The prohibition of cruel and unusual punishment was incorporated under
Robinson v. California (1962).

The protection against excessive bail was incorporated under Schib v. Kuebel
(1971).

The protection against excessive fines has not been incorporated.
LECTURE 4: The Bill of Rights is so much a part of American culture that restrictions on arbitrary
government action are taken for granted. Most students have only a very superficial historical
background on the Bill of Rights and know next to nothing about conditions that first prompted
their enactment.
Examine the roots of the Bill of Rights with your students.

Start by explaining what the liberties protected by the Bill of Rights are protecting us
from.

Contrast the limitations on the exercise of eminent domain with the ruthless
seizure of land and goods by English kings (e.g., Henry VIII and church lands).

Contrast the right to remain silent versus the horrors of the rack and screw and
other excruciating physical torments.

Contrast prohibitions against cruel and unusual punishment against egregious
torture practiced historically (e.g., drawing and quartering, hanging in chains,
burning at the stake, cutting off arms and legs, branding).

Contrast the right to confront adverse witnesses versus anonymous accusers
(even in the American colonies).

Round out the lecture by contrasting American restraints on government with the
disregard for basic human rights displayed in the old Soviet Union (the Gulag), Nazi
Germany, Idi Amin’s Uganda, the People’s Republic of China (not just under Mao—
don’t forget the Spring 1989 student uprisings), the Sudan, and the former
Yugoslavian states during their civil wars. The regular reports of Amnesty
International are filled with violations of basic rights around the world.
LECTURE 5: The civil liberties established in the Bill of Rights provide the foundation of
American individual freedom. Explore how the proponents of a Bill of Rights pressed for the
adoption of these measures to guarantee citizens protection from the kind of arbitrary and excessive
government power they had experienced under British rule.
You can focus in particular on the following essential rights:

The First Amendment rights to freedom of religion, speech, press, and assembly

Protections against excessive police power, such as prohibitions on unreasonable
searches and self-incrimination

Trial rights, such as the rights to counsel and trial by jury

Rights that ensure privacy, including the rights of adults to use contraceptives,
choose an abortion, or engage in sexual activity
After you have outlined the basic liberties afforded by the U.S. Constitution, consider how
the boundaries of American civil liberties are continually being tested through state and national
court decisions.
This topic highlights the major cases that have shaped our current understanding of how far
individual rights extend and points out where government and societal interests require limits on
those freedoms. It explains how civil liberties have been incorporated, protecting people from
violations by state and local governments. You can also discuss current controversies on civil
liberties related to capital punishment, gun control measures, abortion rights, and sexual conduct.
4.2
Distinguish the two types of religious rights protected by the
First Amendment and determine the boundaries of those rights.
LECTURE 1: Explain the establishment clause and the free exercise clause of the First
Amendment.

The establishment clause provides for the separation of church and state. The courts
have applied various standards, notably the Lemon test (Lemon v. Kurtzman), to
determine whether specific activities may violate the establishment clause. Many of
the cases involving this issue are related to whether prayer or other religious activities
are permissible within public schools or other public venues.

The free exercise clause guarantees that people can freely practice their chosen
religion. Cases related to the free exercise clause address whether people can use
religious rationales to engage in activities that would otherwise be considered illegal,
such as polygamy or use of hallucinogenic drugs.
LECTURE 2: Explore in greater detail some of the key cases dealing with the establishment clause.

Engel v. Vitale (1962). This case dealt with the neutral prayer mandated in public
schools. New York authorities thought they had written a prayer that would offend
no one and thus would not violate the establishment clause. The authorities had
misjudged the meaning of the establishment clause, which the Court had interpreted
in an earlier case to prohibit not merely government favoritism toward a particular
religion but favoritism toward religion over nonreligion. Both violate the
establishment clause.

Abington School District v. Schempp (1963). After the Engle decision, authorities in
Pennsylvania thought the problem was that the government wrote the prayer. So
they mandated a prayer (the Lord’s Prayer) and a Bible reading at the beginning of
the school day. The Supreme Court, noting that this was favoring religion over
nonreligion, declared it unconstitutional.

Epperson v. Arkansas (1968). The Court ruled that Arkansas could not prohibit the
teaching of human biological evolution because it conflicted with the biblical account
of creation.

Lemon v. Kurtzman (1971). In this celebrated case, the Court articulated the test it used
in establishment cases. It had been following most of this test prior to this case, but
it had never articulated it as the test for such cases. The following are the
components of the three-pronged test. A law must pass every component, or it is
unconstitutional.


The law must have a secular purpose.

The law’s effect must be to neither advance nor inhibit religion.

The law must not create an excessive entanglement between church and state.
Stone v. Graham (1980). The Court struck down, as a violation of the establishment
clause, the posting of the Ten Commandments in public school classrooms. The
Court was not persuaded by the fact that the posters were not read to the students,
were paid for by private donations and not taxpayer money, and had a disclaimer at
the bottom noting that it was an historical rather than religious document.

Wallace v. Jaffree (1985). The Court struck down Alabama’s moment-of-silence law,
primarily due to the historical record that clearly demonstrated that the moment
(which mentioned prayer) was a way of getting prayer back into the public schools.

Edwards v. Aguillard (1987). The Court struck down a Louisiana law that mandated
the teaching of creation science in public schools if human biological evolution was
taught.

Lee v. Weisman (1992). The Court struck down a public school’s wish to invite a rabbi
to lead a prayer at an eighth-grade graduation ceremony.
LECTURE 3: Examine the roots and contemporary manifestations of religious freedom in the
United States.

Although many early American colonists came to the new land to escape religious
persecution, they frequently established their own government, supported churches,
and imposed their own religious beliefs on others.

In part to lessen the potential for conflict among the states, the framers of the Bill of
Rights sought to prevent the new national government from establishing an official
religion or interfering with religious exercises.

Freedom of religion was guaranteed in the First Amendment, which provides that
“Congress shall make no law respecting the establishment of religion, or prohibiting
the free exercise thereof.” Religious liberty is thus usually thought of as comprising
two elements.

The free exercise clause prohibits government from restricting religious beliefs or
practices.

The establishment clause is interpreted to require the separation of church and
state.
LECTURE 4: Analyze with your students the possible tensions between the free exercise clause
and the establishment clause of the First Amendment. The relevant text of the First Amendment
reads as follows: “Congress shall make no law respecting the establishment of religion, or
prohibiting the free exercise thereof.”

Ask your students to consider the following situation, often referred to as a hybrid
rights case. What would happen in a situation where the free exercise rights of one
person were in direct opposition to the rights of others to be free from statesponsored religion? The inherent rights exercised by one person would necessarily be
at odds with the rights of the other.

After you explore the tension in theory, review with your students the relevant case
law. Some sample cases might include the following:

Santa Fe Independent School District v. Doe (2000). In this case, the Court ruled that a
vote of the senior class to have a prayer before the start of a football game
violated the establishment clause, even though the class voted to have the prayer.

Good News Club v. Milford Central School (2001). In this case, the Good News
student club, a student religious group, sued the school district after its club was
denied use of school facilitates for after-hours meetings, claiming its members’
freedom of speech and free exercise rights had been denied. The Court decided
in favor of the group, ruling that no establishment clause claims could be
exercised despite the group meeting in a public school space.

Zelman v. Simmons-Harris (2002). This case centered on the question of whether
school vouchers paid for by the state could be used to support religious-based
schools. This case perhaps most clearly illustrated the tension between the two
clauses.
The use of taxpayer money (through school vouchers) to pay for religiousbased schools could be seen as a violation of the establishment clause. At the
same time, by denying the use of vouchers for particular schools, individual free
exercise rights could be violated.
In the end, the Court ruled that the secular purpose of supporting education
for needy students overrode concerns over the establishment clause. (This also
echoes the Lemon test.)
4.3
Differentiate the rights of free expression protected by the First
Amendment and determine the boundaries of those rights.
LECTURE 1: The founders recognized that democracy depended on the free expression of ideas
and that a free press was central to the expression of those ideas. Indeed, Thomas Jefferson once
famously quipped that “the basis of our government being the opinion of the people, the very first
object should be to keep that right; and were it left to me to decide whether we should have a
government without newspapers, or newspapers without a government, I should not hesitate a
moment to prefer the latter.”
Explore the key elements of the freedom of the press as protected by the Bill of Rights with
your students. Specific emphasis could be placed on the following elements:

The no-prior-restraint doctrine. Long before the Bill of Rights was written, English
common law protected newspapers from government restrictions or licensing prior
to publication—a practice called prior restraint.

Film censorship. The Court has approved government requirements for prior
submission of films to official censors, so long as the burden of proof that the film is
obscene rests with the censor, a procedure exists for judicial determination of the
issue, and censors are required to act speedily.

Radio and television censorship. Broadcasters, unlike newspapers and magazines, are
licensed by the government and subject to government rules.

Media claims for special rights. Congress has passed the Privacy Protection Act,
which sharply limits the ability of law enforcement officials to search press offices,
and many states have passed shield laws specifically protecting reporters from giving
testimony in criminal cases.
LECTURE 2: Construct an engaging lecture around the competing theoretical perspectives on
First Amendment free speech protections.

Alexander Meiklejohn (1961 Supreme Court Review, 245) and many others argue that
freedom of expression serves essentially political ends. In this view, freedom of
speech and the press is needed to maintain an effective democracy. This view finds
support in the philosophy of John Locke, Edmund Burke, and the pragmatists.

Others, such as Thomas Emerson (72, 1963, Yale Law Journal, 877), while agreeing
that free expression is instrumental to a successful democracy, argue that freedom of
expression is also essential to individual fulfillment. This view, that the inherent
dignity of man is maintained in part through his ability to express himself, can be
traced back to the writings of Jean-Jacques Rousseau and Thomas Jefferson.

The implications of this debate are important. The view one holds of the purpose of
the First Amendment affects that person’s view of the scope of First Amendment
protections. Those who see the First Amendment as crucial to democratic decision
making limit the scope of First Amendment protections to political expression.
Those who see a self-fulfillment aspect to the First Amendment assign First
Amendment protections to a much wider scope of content.
LECTURE 3: Explain to your students how the protections afforded commercial speech differ
from those afforded political speech. Emphasize that while banning speech to prevent the
dissemination of a message is abhorred under the First Amendment, the same activity could be
prohibited in the area of advertising, known in First Amendment context as “commercial speech.”

The courts generally allow governments to regulate or even ban advertising,
especially advertising for products such as tobacco and alcohol.

The logic used in these cases has typically been that, using the Alexander
Meiklejohn test, advertising bears no relation to public decision making. But is
that true? You can make both sides of the argument to your students and let
them decide.

The argument for regulating commercial speech is that proposals for commercial
transactions (“We have soda pop on sale today for $3 a six-pack!”) are so far
removed from political speech that any public interest is totally irrelevant to First
Amendment values.

Advocates of this view say that speech that does no more than propose a
commercial transaction does not involve any expression essential to selfgovernment.

Those on the other side deny this and say that the free market economy and our
democratic system are inseparable.

In a democracy, they say, if people are to make their own personal, economic,
and intellectual decisions, there must be a free exchange of commercial opinion
and information.

Pure commercial speech may not affect how people are governed as directly as
political speech does, but it indirectly affects peoples’ attitudes and values about
how they should be governed. While politics can shape a person’s business,
business can just as easily shape a person’s politics.

Ask your students to think about which side has the better argument. How did the
Court rule on this argument?

Relevant case law includes Liquormart, Inc., v. Rhode Island (1996).
LECTURE 4: The essence of freedom of speech is the right to express political viewpoints,
especially unpopular ones. Yet the courts have ruled that a person’s freedom of speech is not
absolute but can be limited under specific circumstances.

Speech that presents a “clear and present danger” may be limited. This is often
expressed under the idea that “you can’t shout ‘fire’ in a crowded theater.” In times
of perceived national crisis the courts have been willing to permit greater
government restrictions of speech, press, and assembly.

The Supreme Court has also fashioned a “fighting words doctrine,” which holds that
words that “ordinary men know are likely to cause a fight” may be prohibited.

Libel and slander (written or spoken statements conveying false and disparaging
remarks about a person) are not protected speech.

Finally, obscenity has not been protected as free speech.
LECTURE 5: Hate speech (speech vilifying a person or group on the basis of race, ethnicity,
gender, sexual orientation, disability, religion, or other identity-based characteristic) occupies a
unique place in the American polity.

The Supreme Court has ruled that hate speech is protected under First Amendment
freedom of speech. But speech intended to provoke violence is not protected.
Thus, the Court has at times protected the rights of the Ku Klux Klan to
hold a rally where speeches promoting their doctrine of white supremacy have been
made. But the Court has also ruled that their cross-burning ceremony was an act
intended to intimidate and was therefore not protected symbolic speech.

At the same time, hundreds of universities and colleges across the United States have
“speech codes” regulating discriminatory speech by students, faculty, and staff.

Title VII of the 1964 Civil Rights Act enables employees to sue their employers for
tolerating “hate speech” if that speech contributes to creating a “hostile or offensive
working environment.”
LECTURE 6: The Supreme Court has ruled that obscenity is not protected by the First
Amendment rights to free speech and press but has found it difficult to determine what constitutes
obscenity.

In the most famous instance, Justice Potter Stewart in the Jacobellis v. Ohio (1964) case
remarked, “I shall not today attempt further to define the kinds of material I
understand to be embraced within that shorthand description; and perhaps I could
never succeed in intelligibly doing so. But I know it when I see it, and the motion
picture involved in this case is not that.”

Several landmark cases have attempted to devise tests for determining whether
material may be considered obscene. These include the following:

Roth v. United States (1957). In the Roth decision, the Court offered a stricter
definition of obscenity than had historically been the case. It asserted that
material whose “dominant theme taken as a whole appeals to the prurient
interest” to the “average person, applying contemporary community standards”
be banned as obscene

Miller v. California (1973). In its Miller decision, the Court refined its standards
further, developing a three-pronged test for obscenity. Before the state could
label a work as obscene, it had to determine the following:

Whether the average person, applying contemporary community standards,
would find that the work, taken as a whole, appeals to the prurient interest

Whether the work depicts or describes, in a patently offensive way, sexual
conduct or excretory functions specifically defined by applicable state law

Whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value.
Only materials that failed all three tests could be banned as obscene.
4.4
Describe the rights to assemble and associate protected by the
First Amendment and their limitations.
LECTURE 1: The First Amendment guarantees “the right of the people peaceably to assemble,
and to petition the government for redress of grievances.”

The right to organize political parties and interest groups derives from the right of
assembly.

Freedom of petition protects most lobbying activities.

Freedom of assembly has been broadly interpreted to include the right to form and
join organizations and associations. Freedom of assembly also protects the right to
peacefully protest, parade, and demonstrate.

Although the right of assembly is protected by the First Amendment, its exercise
involves conduct as well as expression, and therefore it is usually subject to greater
government regulation than expression alone. The state is therefore sometimes
permitted to limit the right of assembly by requiring, for example, permits before
marches can take place.
LECTURE 2: Explain the “expressive groups” exemptions to nondiscrimination laws permitted
under the Constitution.

The courts have ruled that freedom of assembly and the right of association include
the right to form and join organizations. But freedom of association is not absolute,
and the courts have permitted some limits on that freedom.

In general, large nonideological, nonreligious, and nonpolitical groups are prohibited
from discriminating against people on the basis of ethnicity, race, or sex.

Expressive groups, including religious organizations, political groups, or groups with
specific ideological positions, are sometimes permitted to discriminate. Several cases
illustrate these limits:

In Hurley v. Irish-American Gay Lesbian and Bisexual Group of Boston (1995), the
Supreme Court ruled that Boston’s St. Patrick’s Day Parade organizers could not
be forced to include the Irish-American Gay, Lesbian and Bisexual Group of
Boston in the parade.

In Boy Scouts of America v. Dale (2000), the Supreme Court held that the Boy
Scouts of America could prohibit gay scouts from joining the group. In their
decision, the Court wrote, “The forced inclusion of an unwanted person in a
group infringes the group’s freedom of expressive association if the presence of
that person affects in a significant way the group’s ability to advocate public or
private viewpoints.”

In California Democratic Party v. Jones (2000), the Supreme Court ruled that a
blanket primary law in California, which would have permitted anyone regardless
of political affiliation to vote in any primary election, was unconstitutional. The
Court ruled that such a law would force political parties to associate with those
who do not share their beliefs, a violation of their right to free assembly.
LECTURE 3: We know that people often support rights in theory, but their support may disappear
when it comes time to put those rights into practice.

Set aside part of one class period for students to list both supports and objections to
extending rights to controversial and unpopular groups. You could “set the stage” by
first introducing your class to one or two famous incidents, such as the demands of
the American Nazi Party in 1977 to march through a Jewish neighborhood in Skokie,
Illinois.

In 1977, the American Nazi Party announced their intention to march through the
Jewish community of Skokie, Illinois, which was home to a large population of
Holocaust survivors.

City officials attempted to prevent the march, first by requiring that the
American Nazi Party post a large public safety insurance bond and later by
prohibiting all political demonstrations in the area.

The American Nazi Party challenged the requirements and prohibitions as a
violation of their First Amendment rights of speech and assembly. The case,
National Socialist Party of America v. Village of Skokie (1977), sometimes also
referred to as Smith v. Collin, was ultimately decided by the U.S. Supreme Court,
which ruled that efforts to prevent the march represented an unconstitutional
violation of the Nazi Party members’ rights of assembly and free speech.
4.5
Describe the right to bear arms protected by the Second
Amendment and its limitations.
LECTURE 1: The Second Amendment provides that “a well regulated Militia, being necessary to
the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The Second Amendment’s “right to bear arms” was interpreted by the Supreme
Court to guarantee a person’s right to own guns and not merely as a grant of power
to the states to maintain National Guard units.

Bearing arms. The history surrounding the adoption of the Second Amendment
reveals the concern of colonists with attempts by despotic governments to confiscate
the arms of citizens and render them helpless to resist tyranny.

An individual right. After years of controversy, the Supreme Court finally decided
the issue in 2008: “The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for traditionally
lawful purposes, such as self defense within the home.”
4.6
Characterize defendants’ rights and identify issues that arise in
their implementation.
LECTURE 1: Outline for your students the specific rights afforded criminal defendants under the
Constitution.

The Fourth Amendment protection against unreasonable search and seizure has led
to limiting the powers of law enforcement officials in order to protect individual
rights, exemplified most clearly by the exclusionary rule. Students need to understand
the dangers of unchecked police power as the basis for this provision.
The exclusionary rule prohibits the use of illegally obtained evidence in court,
although the courts have established numerous exceptions to the rule. The courts
have also established a list of conditions under which police may search property
without first obtaining a warrant.

The Fifth Amendment protects against double jeopardy and compelled selfincrimination. The Supreme Court ruled in Miranda v. Arizona (1966) that people
under arrest must be informed of their right to remain silent during questioning.

The Sixth Amendment provides several protections for people facing criminal
prosecution. These include the right to confront witnesses, a speedy and public trial,
and the right to have a lawyer. Only a small percentage of criminal cases are decided
by jury trials; some involve bench trials, but the vast majority of convictions are
obtained through plea bargaining.

The Eighth Amendment offers protection from cruel and unusual punishment.
LECTURE 2: Americans are often frustrated when a criminal gets away on a “technicality.” But
they often fail to understand how those technicalities exist to protect our basic constitutional rights.
Explain how the exclusionary rule affects police procedure and how those procedures are
structured in an effort to protect our civil liberties.

As long ago as 1916, in Weeks v. United States, the Supreme Court barred the use in a
federal prosecution of evidence seized illegally by prosecutors. The security of one’s
privacy against arbitrary intrusion by the police, which is at the core of the Fourth
Amendment, is basic to a free society. There is no question about it, if a government
sanctions such an intrusion into individual privacy it runs afoul of the Fourth
Amendment.

But the question is this: if an illegal search takes place, and the government knows it,
how should it respond? The Fourth Amendment does not explicitly answer this
question.

One argument for the exclusionary rule is that it eliminates any incentive to
conduct illegal searches, because the fruits of those searches will not be
admissible in court. The problem is that there is no empirical evidence to support
the claim that the rule actually deters illegal conduct by law enforcement officers.

The other argument in favor of the exclusionary rule is that to allow the tainted
evidence in court would compromise the integrity of the courts. “Nothing can
destroy a government more quickly than its failure to observe its own laws,” said
Justice Brandeis.

Most of the English-speaking world does not have an exclusionary rule. Are there
other ways to get at the problem? Two that are used are allowing the victim of the
illegal search to sue the police officers for damages and to leave the matter to the
internal discipline of the police.

The problem with the exclusionary rule is that, by definition, the rule only protects
those upon whose person or premises something incriminating has been found.

One argument against the exclusionary rule is that while it may be an effective way of
deterring unreasonable searches knowingly undertaken, it has no such effect when
the police have acted in good faith but simply made a mistake.
LECTURE 3: Explore the complexity of the protections afforded criminal defendants, using the
Fourth Amendment’s search and seizure clause as an example. Note the many exemptions and
limitations the courts have imposed on the Fourth Amendment over the years.

Consent search. If police ask a person for permission to search, say, an apartment,
and if a person gives it, then the police do not need a warrant. Any incriminating
evidence the search turns up could be used in court (not subject to the exclusionary
rule).

Search incidental to a valid arrest. Police may, when serving an arrest warrant, search
the person being arrested. If they find incriminating evidence, they may seize it and
use it in court (not subject to the exclusionary rule).

Plain-view exception. Police may, when serving an arrest warrant, seize evidence in
the immediate vicinity of the person being arrested and that is in plain view.
They may do this without a warrant, and the evidence may be used in court
(not subject to the exclusionary rule). They may not go ransacking through the house
or apartment without a warrant. The rationale for this exception, in addition to
preserving easily destroyed evidence, is the protection of police officers.

Stop and frisk. Police may, if they have a high suspicion that a crime has taken place
or is about to take place, stop people and pat down their outer garments. If they
clearly detect incriminating evidence, they may seize it without a warrant and not
subject to the exclusionary rule.
This is the only exception that does not require “probable cause.” Police may
not, however, as part of this search, reach inside pockets.
LECTURE 4: The Eighth Amendment protection against cruel and unusual punishment has been
debated most hotly in regard to capital punishment.
Explore the questions that arise in the context of capital punishment and the Eighth
Amendment with your students.

By a 5–4 vote, the U.S. Supreme Court upheld the Missouri Supreme Court’s
decision to overturn the death penalty in Roper v. Simmons (2005). The majority
opinion declared that death sentences for juveniles under the age of 18 are
inconsistent with contemporary societal values and therefore violate the Eighth
Amendment prohibition on “cruel and unusual punishments.” At the time of the
Roper decision, 20 states had laws on the books that allowed for juvenile execution.

In the context of the Roper decision, ask your students to think about what other
exceptions to the death penalty should be considered. In Ford v. Wainwright (1986),
for example, the Supreme Court ruled that states could not execute the mentally
insane.

Other issues related to capital punishment to explore in lecture include whether
states may execute minors or mentally retarded murderers and whether application
of the death penalty is racially biased.
LECTURE 5: Some of the protections afforded criminal defendants under the Bill of Rights have
their roots in English common law traditions, while others were developed in response to British
practices in the colonies.
Explain the nature of these rights and why they are important under the American legal
system.

The guarantee of the writ of habeas corpus is one of the oldest and most revered
rights in English common law. A writ of habeas corpus is a court order directing
public officials who are holding a person in custody to bring the prisoner into court
and explain the reasons for confinement.
The first clear example of the writ of habeas corpus can be found in the
Magna Carta (1215) and was reasserted by various acts of the British Parliament in
the seventeenth century. In the United States, habeas corpus is guaranteed under
Article 1, Section 9.

The Constitution also prohibits bills of attainder and ex post facto laws. A bill of
attainder is a legislative act inflicting punishment without judicial trial. An ex post
facto law is a retroactive criminal law that works against the accused.

Bills of attainder were used against citizens of the British colonies in America
throughout the eighteenth century, provoking much resentment. Indeed, one of
the causes of the Revolution was anger at the perceived injustice of attainder.
Consequently, the practice was prohibited by Article 1, Section 9, of the U.S.
Constitution.

Ex post facto laws are prohibited under Article 1, Section 9. of the U.S.
Constitution but are legally permitted (though not commonly used) under the
British system.

Unreasonable searches and seizures are prohibited by the Fourth Amendment to the
U.S. Constitution. Judges cannot issue a search warrant just to let police see if a
person has committed a crime; there must be “probable cause” for such issuance.
The Fourth Amendment was included in the Bill of Rights largely as a
response to the British practice of issuing a writ of assistance, which permitted broad
searches without specific search warrants.

Freedom from self-incrimination had its origin in English common law; it was
originally designed to prevent persons from being tortured into confessions of guilt.

4.7
The right to counsel is guaranteed by the Sixth Amendment.
Outline the evolution of a right to privacy and its application to
the issue of abortion.
LECTURE 1: Students are often surprised to learn that there is no right to privacy explicitly
afforded by the U.S. Constitution. Nevertheless, the Ninth Amendment provides a foundation for
reading a right to privacy into the Constitution. Indeed, the Ninth Amendment has an interesting
history that speaks to what the framers thought of individual rights. Here briefly are the facts
surrounding the origin of the Ninth Amendment.

In The Federalist No. 84, Alexander Hamilton explains why the framers did not
include a bill of rights in the Constitution. Hamilton gives two broad reasons for why
the framers did not include a bill of rights. First, Hamilton states that a bill of rights
was unnecessary. This is true for two reasons:


Rights are already included in the Constitution as written in 1787.

Art. I, Sec. 9, cl. 2: privilege of habeas corpus

Art. I, Sec. 9, cl. 3: no bill of attainder

Art. I, Sec. 9, cl. 3: no ex post facto law

Art. I, Sec. 9, cl. 7: no title of nobility

Art. III, Sec. 2, cl. 3: trial by jury in all crimes

Art. III, Sec. 3, cl. 3: definition, proof, and punishment for treason
Another reason a bill of rights is unnecessary is due to the democratic nature of
the U.S. Constitution.
Here is how Hamilton puts it: “It is evident, therefore, that, according to
their [Bills of Rights] primitive signification, they have no application to
constitutions, professedly founded upon the power of the people and executed
by their immediate representatives and servants. Here, in strictness, the people
surrender nothing; and as they retain everything they have no need of particular
reservations.”

Surprisingly, Hamilton also argues that a bill of rights would be dangerous. Why?
Hamilton knew that not all rights could be listed in the Constitution. Even if one
were to try to list all rights, it is likely that some would inadvertently be omitted. This
would be dangerous because those in government could infringe on rights not listed
in the Constitution, claiming that any such list could be read as exhaustive of all
rights afforded the people.

James Madison, the father of the Bill of Rights, also believed that a bill of rights was
unnecessary. He was, however, eventually persuaded by Thomas Jefferson that a bill
of rights would not hurt. Except he also thought Hamilton’s argument about the
danger of a bill of rights was a good one.
Thus, he proposed what became the Ninth Amendment, or what has been
called “the forgotten amendment.” This is the only sentence in the Constitution that
tells the reader how to interpret the Constitution. It basically states that the reader
should not take the listing of rights in the first eight amendments to imply that these
are the only rights that the government must respect.

This is why some found it ironic that Robert Bork, an advocate of original intent,
told the Senate Judiciary Committee during his confirmation hearings that if
confirmed as a Supreme Court justice, he would not respect the right to privacy. His
reason was that the right was not explicitly mentioned in the Constitution.
Yet it was to prevent this kind of reasoning that the father of the
Constitution and father of the Bill of Rights wrote, and the Congress included, the
Ninth Amendment in the Bill of Rights.
LECTURE 2: While several provisions of the Constitution imply a right to privacy, nowhere is it
explicitly stated. Nevertheless, the Supreme Court has asserted that a right to privacy exists,
particularly in the area of private sexual contact.
Explore some of the relevant case law with your students.

Griswold v. Connecticut (1965) recognized the right of married couples to privacy in
their sexual conduct.

The 1973 landmark case of Roe v. Wade used the established right of privacy as a
basis for a woman’s right to make choices about an abortion.

Bowers v. Hardwick (1986) upheld the right of states to prohibit homosexual activity
between consenting adults but was overturned when the court decided in Lawrence v.
Texas (2003) that laws that restrict private, noncommercial sexual activity between
consenting adults violate the right to privacy.
LECTURE 3: Discuss with your students the nature of the right to privacy in the U.S.
Constitution.

Start with Justice Brandeis’s dissenting opinion in Olmstead v. United States (1928), in
which Brandeis asserts, “The makers of our Constitution understood the need to
secure conditions favorable to the pursuit of happiness, and the protections
guaranteed by this are much broader in scope, and include the right to life and an
inviolate personality—the right to be left alone—the most comprehensive of rights
and the right most valued by civilized men.”

Ask your students to identify where, specifically, this right to privacy might be found.
You may have to provide them guidance. Once they have identified several places,
explore the remainder in lecture. Possibilities include the following:
4.8

The Fourth Amendment

The Fifth Amendment

The Ninth Amendment
Assess how civil liberties affect democratic government and
how they both limit and expand the scope of government.
LECTURE 1: Benjamin Franklin once famously quipped, “They who can give up essential liberty
to obtain a little temporary safety, deserve neither liberty nor safety.” Yet this tradeoff is at the heart
of many recent initiatives.
Examine some recent efforts to expand security and consider how they affect individual
liberty in the United States. Examples could include the following:

Wiretapping and electronic surveillance. The government may not undertake to
eavesdrop where a person has “a reasonable expectation of privacy” without first
showing probable cause and obtaining a warrant.

FISA and domestic surveillance. The Foreign Intelligence Surveillance Act (FISA) of
2008 does the following:

Allows the government to undertake warrantless surveillance of suspected
terrorists for seven days before obtaining a FISA warrant

Allows wiretapping of international calls and intercepts of international e-mails

Removes requirements for detailed descriptions of the information sought in a
request for a FISA warrant

Protects telecommunications companies from lawsuits for “past or future
cooperation” with the government in electronic surveillance


Denies the president’s claim that his war powers supersede FISA laws
Drug testing. The courts have ruled that mandatory drug testing in occupations
affecting public safety and drug testing in schools to protect children are reasonable.
At the same time, courts have held that drug testing of the general public without
probable cause violates constitutional protections.
LECTURE 2: The scope of civil liberties also changes when the Court finds new rights in the
Constitution. There are two methods by which this occurs: the Ninth Amendment, which states that
rights not specifically mentioned are reserved to the people, and the due process clause.

The right to privacy is not explicitly found in the Constitution, but the Court decided
that the Ninth Amendment applied. In 1965, the Court ruled in Griswold v. Connecticut
that there was a constitutional right to privacy for married couples to use birth
control; this was later applied to unmarried heterosexual couples.
The Supreme Court found the right to privacy based on the Ninth
Amendment, combined with the first, third, fourth, and fifth amendments. that the
Ninth Amendment, combined with the First, Third, Fourth, and Fifth Amendments,
established a “zone of privacy.” This discovered right was then used in Roe v. Wade
(1973) to guarantee a woman’s right to terminate a pregnancy.

The next area of law was gay rights. Did the right to privacy extend to protect a
homosexual couple’s rights? In 2004, the Court ruled in Lawrence v. Texas that the
right to privacy for homosexuals was tantamount to freedom—they did not lose
their dignity as free persons when they entered their home.

In addition to using the Ninth Amendment, the Court has used the Fourteenth
Amendment’s general guarantee to life, liberty, and property to find new rights.
These rights include the right to supervise the education of one’s children and the
right to procreate.
These rights come from due process. Can the law just restrict some aspect of
life, liberty, or property? The answer is no. Substantive due process says that the
Fourteenth Amendment provides a means to discover new rights not mentioned
elsewhere in the Constitution and that these rights exist at both the state and local
levels.
LECTURE 3: Explain how our democratic system depends on the constitutional liberties
guaranteed all Americans.

American government is democratic because it is governed by officials elected by the
people and answerable to them. American government is constitutional because it
has a fundamental organic law, the Constitution, that limits the things government
can do. The democratic and constitutional components of government can produce
conflicts, but they also reinforce one another.

Individual rights may conflict with other values. The rights guaranteed by the First
Amendment are essential to a democracy. Individual participation and the expression
of ideas are crucial components of democracy, but so is majority rule, which can
conflict with individual rights. The rights guaranteed by the fourth, fifth, sixth, and
eighth amendments protect all Americans, but they also make it harder to punish
criminals.

Ultimately, the courts decide what constitutional guarantees mean in practice:
although the federal courts are the branch of government least subject to majority
rule, the courts enhance democracy by protecting liberty and equality from the
excesses of majority rule.

In general, civil liberties limit the scope of government. However, in some instances,
such as protecting the right to abortion, an expansion of freedom may require
simultaneous expansion of government to protect those freedoms.
LECTURE 4: The Patriot Act provides an interesting lens through which to explore the
intersection of civil liberties, democracy, and security in the United States.

In the aftermath of the September 11, 2001, terror attacks, the Department of
Justice’s first priority is to prevent future terrorist attacks. Since its passage following
the September 11, 2001, attacks, the Patriot Act has played a key part—and often the
leading role—in a number of successful operations to protect innocent Americans
from the deadly plans of terrorists dedicated to destroying America and our way of
life.

While the results have been important, in passing the Patriot Act, Congress provided
for only modest, incremental changes in the law. Congress simply took existing legal
principles and retrofitted them to preserve the lives and liberty of the American
people from the challenges posed by a global terrorist network.

Discuss with your students their opinions. What do the students think? Are they
willing to sacrifice more freedom and liberty to maintain order?
 Class Activities
CLASS ACTIVITY 1: Short video clips can often be used as a way to illustrate debates and provide
specific material to which students can apply the more abstract or theoretical ideas raised in the text.

Show a short video clip from the Congressional Prayer Caucus, available from their
website (http://forbes.house.gov/prayercaucus/about.aspx). You should also
explain that the Congressional Prayer Caucus was established in 2005 to recognize
the role of prayer in uniting us as a people; to collect, exchange, and disseminate
information about prayer as a fundamental and enduring feature of American life;
and to use the legislative process to assist the nation and its people in continuing to
draw upon and benefit from prayer.

Show a short clip of the opening prayer at the House of Representatives. You can
find the most recent opening prayer at the C-SPAN website (www.cpsan.org).
Historical prayers, such as Jack Graham’s 2011 prayer
(www.youtube.com/watch?v=JtuG-koqjik), can often be found on YouTube.

Once you have watched the videos, ask your students to think about whether this
practice represents an unconstitutional violation of the separation between church
and state or an acknowledgement of the importance of freedom of religious practice
in American civil liberties. Have students discuss their views on this question.
This activity highlights the challenge posed by the separation of church and state and
provides an opportunity to consider the nature of religious freedom in the United States.
CLASS ACTIVITY 2: One task government must perform is to resolve conflicts between rights.

Encourage your students to think about potential conflicts within the Bill of Rights.
Examples might include the tension between the free exercise and establishment
clause or between the right to a fair trial and the freedom of the press.

Ask your class to develop criteria by which conflicting rights might be balanced.
This discussion item encourages students to think about the tradeoffs and tensions
embodied in the rights afforded under the Bill of Rights.
CLASS ACTIVITY 3: Supreme Court role-play: choose a Supreme Court case as the basis for an
in-depth study of a civil liberties issue.

Divide the class into groups representing the Supreme Court justices and the key
stakeholders in the case outcome.

Allow each group to confer about their position on the issue in question. Tell each
group to refer to the textbook, class notes, or text of the case to prepare their best
arguments and/or questions in support of their position.

Conduct a moot court activity with each side presenting its case; allow justices to
interrupt the oral arguments for questions.

After both sides present their arguments, have the justices deliberate the case in front
of the class and cast their votes. Debrief by having the class identify the most
compelling arguments on both sides.
This active learning exercise gives students an opportunity to explore the role of the courts
in the protection of civil liberties in the United States.
CLASS ACTIVITY 4: Hold a debate on adopting a constitutional amendment to prohibit burning
the American flag. One side should prepare arguments supporting a person’s right to freedom of
expression; the other should focus on potential negative consequences to the public interest of
burning the flag.
This activity highlights the debate over flag burning and freedom of speech.
CLASS ACTIVITY 5: Reporters argue that freedom of the press guarantees them certain rights
that other potential witnesses cannot claim, such as the right to protect confidential sources, even in
criminal trials.

Divide the class into sections, with one section assigned the task of defending the
right of journalists to shield confidential sources and the other section assigned the
task of showing that reporters have no more rights than other citizens.

Each section should select a spokesperson to present the group’s analysis.
This activity highlights the tension between the rights of the free press and the rights of
criminal defendants.
CLASS ACTIVITY 6: The process of incorporating the Bill of Rights provides an engaging way to
consider the nature of our civil liberties. Ask your students to consider the fact that the founders did
not directly require guaranteed freedoms to be included in state constitutions and did not impose the
limitations on government intrusion on civil liberties afforded by the Bill of Rights on the states.
Then ask your students to discuss the following questions:

Why do you think the founders did not believe the Bill of Rights should limit the
scope of government at the state level? Does this suggest that they were comfortable
with restrictions on freedoms of speech, religion, and the press, for example, if they
were imposed by the states rather than by the national government? Why?

Did the founders believe states would develop guarantees much like those of the
national government? Did they believe that the national government would, in time,
nationalize the Bill of Rights? Or can you think of other reasons why the founders
did not extend the Bill of Rights into all states?
This activity encourages students to think about how understandings of civil liberties have
evolved over time.
CLASS ACTIVITY 7: Have your class engage in the following exercise. Suppose that the
government suspects you of terrorist activities. Have students indicate whether the government has
the following rights by checking yes or no next to each object:

Search your home without a warrant

Tap any telephones you use

Keep your computer under surveillance

Put you in prison indefinitely without specific charges while it looks for evidence

Listen in on your conversations with your lawyer

Use hearsay evidence against you in your trial

Prevent you from appealing the decision
Once completed, have students share and discuss their answers. This activity encourages
students to think about the tradeoffs between security and liberty.
CLASS ACTIVITY 8: Have students research the 1971 case New York Times v. United States (the
Pentagon Papers case) as background. Then ask them to research the Bradley Manning/Wikileaks
case. Assign several students to play the roles of the attorneys and the justices and present the case
in class.
This activity examines the limits on freedom of speech in the context of claims of national
security.
CLASS ACTIVITY 9: Should the government apply the death penalty? Use the infographic from
the textbook as the basis for a discussion around the following questions:

Can you identify any general trends in support for the death penalty over time? Has
support increased? Decreased? Remained steady?

How do black and white Americans differ in their perspective on the death penalty?

How does support for the death penalty track with the violent crime rate? What
relationship between the two would you expect to see? Why?

What other factors might account for shifts in the rate of violent crime in the United
States?
This discussion item helps to develop data literacy and encourages students to think about
the application of and support for the death penalty in the United States.
CLASS ACTIVITY 10: Screen the “In Context” and “Thinking Like a Political Scientist” videos
for your class. In the videos, University of Massachusetts at Boston political scientist Maurice T.
Cunningham identifies the origins of our civil liberties and evaluates the clash between national
security and civil liberties in a post–9/11 age.

Use the video to introduce the basic debate between those who argue that the post–
9/11 world necessitates particular limits on civil liberties and those who contend that
the increasing emphasis on national security makes the protection of civil liberties
afforded by the Constitution even more important.

Have your students “update” the Bill of Rights. Specifically, have them consider the
following:

Whether or not the rights afforded by the Bill of Rights and the Constitution are
sufficient to protect the civil liberties of Americans in the contemporary world.
Are there particular civil liberties missing that need to be added? If so, what are
those freedoms?

Are there certain liberties protected too strongly? Does the government need
additional latitude in the post–9/11 era?

You may wish to have students prepare ahead of the simulation by asking them to
think about how the United States has changed since the Bill of Rights was drafted
and how, in particular, our understanding of civil liberties has evolved over time.

As an alternative, use the video as a lecture starter or a prompt for a short writing
assignment using the questions outlined above.
This video activity highlights the challenges of protecting civil liberties in a post–9/11
environment.
 Research Activities
RESEARCH ACTIVITY 1: Although the Supreme Court has ruled that obscenity is not protected
by the First Amendment, it has been difficult to determine precisely what is obscene.

In a short paper, ask your students to list and explain the Lemon test.

Ask them to write a definition that could be used by a court or censorship panel to
distinguish obscenity from legally protected art.

If the campus environment permits it, have students apply the Lemon test to some
form of potentially obscene expression and decide whether the expression is
permissible.
This activity develops students’ understanding of the Lemon test and the challenges
surrounding regulating obscenity.
RESEARCH ACTIVITY 2: The rights guaranteed under the First Amendment have gradually
been expanded by the courts over time. In addition to the rights specified in the Constitution, the
Supreme Court has determined that the protections of the Constitution extend to other fundamental
rights, such as the right to privacy, which builds upon (but is not directly found in) the first, third,
fourth, fifth, sixth, eighth, ninth, and fourteenth amendments.
Other examples might include the Warren Court protection of the right to travel and the
right to reproductive privacy, which are not mentioned in the Constitution. Even the more
conservative Burger Court recognized new liberties such as the right to abortion and the right of
families to remain together.

Ask your students to think about the way in which the rights granted by the
Constitution have greatly expanded over time. Remind them that the founders did
not include these rights, and there is debate about whether or not such rights should
have ever been recognized.

Ask your students to select one of the following cases and explain how it affected the
rights granted by the U.S. Constitution:

Shapiro v. Thompson (1969), which asserted a “freedom to travel”

Griswold v. Connecticut (1965), which granted “reproductive freedom”

Roe v. Wade (1973), which granted the “right to abortion”

Moore v. City of East Cleveland (1977), which granted a “right for families to remain
together”

In a short reflection paper, ask your students to review the Court’s decision in one of
these cases. Students should read both the majority and dissenting opinions.

Ask them to summarize the majority and dissenting opinions as they relate to the
creation of rights not otherwise found in the Constitution.

Ask them to reflect on the nature of our rights under the Constitution. Based on
what they have learned, do they think that the courts should interpret the
Constitution in light of contemporary society and demands, or should judges
narrowly interpret the Constitution only to the specific protections afforded there?
This activity gives students an opportunity to think about how civil liberties have expanded
in the United States and from where new liberties are derived.
RESEARCH ACTIVITY 3: Ask students to read the list of grievances of the colonists against the
British government in the Declaration of Independence and note which grievances were addressed
by provisions of the Bill of Rights.
This activity provides students with an opportunity to reflect on the historical sources and
roots of civil liberties in the U.S. Constitution.
RESEARCH ACTIVITY 4: State constitutions include bills of rights. In many states, the state
constitution is becoming important in framing human rights beyond those incorporated in the U.S.
Bill of Rights.

Have students read the bill of rights in your state’s constitution.

Ask them to write a short paper in which they compare the wording there with that
in the U.S. Constitution. Is the state or national bill of rights more specific? Are there
more rights listed in the state constitution? Are there any surprises (inclusion or
omission of rights that strike the student as unusual)?
This activity requires students to reflect on how the protection of civil liberties plays out
under the system of American federalism.
RESEARCH ACTIVITY 5: The war on terror has generated a considerable number of books
examining the tradeoff between liberty and security. Have your students write a book review
exploring one of these texts and how it approaches this tradeoff. Possibilities might include the
following:

A. C. Grayling. Liberty in the Age of Terror: A Defense of Civil Liberties and Enlightenment
Values. (London: Bloomsbury, 2011).

Richard A. Posner. Not a Suicide Pact: The Constitution in a Time of National Emergency.
(New York: Oxford University Press, 2006).

Susan N. Herman. Taking Liberties: The War on Terror and the Erosion of American
Democracy. (New York: Oxford University Press, 2011).

M. Katharine Darmer and Richard D. Fybel, eds. National Security, Civil Liberties, and
the War on Terror. (New York: Prometheus Books, 2011).
This activity gives students an opportunity to engage in the contemporary debates over
liberty and security in the war on terror.
RESEARCH ACTIVITY 6: Ask your students to review the Ninth Amendment, which can be
found many places online, including the National Archives website
(www.archives.gov/exhibits/charters/constitution_transcript.html).

In a short paper, ask them to explain in their own words what they think the Ninth
Amendment means. Are people entitled to some rights not mentioned in the
Constitution? If so, what are they?

How does Jefferson’s assertion of inalienable rights expressed in the Declaration of
Independence (www.archives.gov/exhibits/charters/declaration.html) fit into this
context?
This activity asks students to reflect on the reasons for the inclusion of some liberties and
the exclusion of others in the Bill of Rights.
RESEARCH ACTIVITY 7: There is a fine line between permissible and nonpermissible aid to
parochial schools.

Ask your students to create a list of the merits and problems of government aid to
church-related schools.

Ask them to write a short paper in which they discuss how the establishment clause
and the free exercise clause relate to government aid to church-related schools.

In more advanced classes, you could also encourage students to research how recent
Supreme Court decisions have modified these policies.
This activity explores freedom of religion and the challenges of implementing the
establishment clause in particular policy areas.
RESEARCH ACTIVITY 8: Have your students watch a recent film dealing with the issues raised
in this chapter.

Possibilities include You Don’t Know Jack (the right to privacy in the context of the
debate over physician-assisted suicide); The People vs. Larry Flynt (freedom of speech;
obscenity); Monster’s Ball, The Green Mile, or Dead Man Walking (the rights of criminal
defendants, Eighth Amendment prohibition of cruel and unusual punishment); and
The Majestic or Guilty by Suspicion (freedom of assembly).

After watching their selected film, ask your students to write a short paper in which
they reflect on the way in which the themes explored in the film illustrate the
challenges of protecting the civil liberties guaranteed under the Constitution.

An alternative (but more ambitious) assignment asks students to develop their own
list of films illustrating key themes from the chapter. Ask them to develop the
program for a “Civil Liberties Film Festival,” in which they select five to ten films
illustrating key civil liberties issues. For each film, they should provide a short (one
paragraph) description of how the film relates to the themes raised in this chapter.
This activity provides students with an opportunity to think about how discussions of civil
liberties play out in mainstream films.
RESEARCH ACTIVITY 9: Students can check a list of current issues related to freedom of
speech at www.aclu.org/freespeech/index.html. Ask students to write a one-paragraph briefing on a
contemporary dispute over freedom of speech.
This activity highlights contemporary debates over freedom of speech in the United States.
RESEARCH ACTIVITY 10: Simulation: You Are a Police Officer. What are your civil liberties,
and what restrictions can the government place on them? Originally granted to citizens through the
Constitution’s Bill of Rights, the nature of these freedoms has evolved over time through judicial
review and legislation. In the “You Are a Police Officer” simulation in MyPoliSciLab, you will play
the role of a police officer attempting to enforce the law without violating the civil liberties of the
people you encounter.

Have your students complete the simulation and explore the challenges of enforcing
the law while protecting civil liberties.

Have them complete the associated quiz in MyPoliSciLab.

As an alternative short writing assessment assignment, ask your students to complete
a short response paper in which they discuss the themes raised in the simulation as
they relate to the material covered in lecture and the chapter.
This activity highlights the challenges of protecting criminal rights faced by police officers
enforcing the law.
 Participation Activities
PARTICIPATION ACTIVITY 1: Find out if your campus has a “speech code.” (If it doesn’t,
find one from a nearby college or university.) Ask your class to review the code and to reflect on the
following questions:

What is the purpose of the speech code?

Would this code stand up to a constitutional test? Why or why not? According to
your understanding of the First Amendment, are speech codes constitutional?

Ask students to do some research at the campus newspaper to see if there was any
controversy surrounding the adoption of the speech code and discuss it in class.

Have them organize a student panel educating their fellow students about the college
or university’s speech code.
This activity requires students to examine the legality of limits on freedom of speech in their
local college or university context.
PARTICIPATION ACTIVITY 2: In general, criminal trials are open to the public. Ask students
to visit a local courtroom and sit in on an open trial there. You may wish to brief them on procedure
before they go, reminding them to enter quietly and not to speak. After their visits, ask them to write
a short paper reflecting on how the rights afforded criminal defendants under the Constitution were
illustrated during their visit. Were they surprised by anything they saw?
This activity gives students firsthand insight into the legal processes intended to protect the
civil liberties of accused criminal defendants.
PARTICIPATION ACTIVITY 3: Have your students prepare a letter to the editor dealing with a
recent civil liberties issue or court case. Be sure to provide guidance on how to write a letter to the
editor.

While individual newspapers may have their own requirements, in general letters
should be short (generally no longer than 200 to 250 words) with well-focused
paragraphs of generally no more than two to three sentences each.

Letters should also focus on a single point, be timely, provide facts and figures to
support your point, and avoid too much emotion.

Consider encouraging your students to submit their letters to a local or national
newspaper for possible publication.
This activity requires students to examine the scope of civil liberties and helps them develop
focused writing skills.
 Suggested Readings
READING 1: David E. Bernstein. You Can’t Say That! The Growing Threat to Civil Liberties from
Antidiscrimination Laws. (Washington, DC: Cato Institute, 2004). In this book published by the
conservative Cato Institute, Bernstein argues that antidiscrimination legislation undermines the
central freedoms afforded under the Constitution, including the rights of free speech, free exercise
of religion, and freedom of association. Bernstein focuses in particular on the expansion of speech
codes on university campuses.
READING 2: In recent years, conservatives have frequently contended that activist judges have
developed new rights not found in the Constitution and that ironically, the expansion of such rights
undermines other rights the founders held dear. Texts dealing with this theme include the following:

Randy E. Barnett. Restoring the Lost Constitution: The Presumption of Liberty. (Princeton,
NJ: Princeton University Press, 2005).

David Mayer. Liberty of Contract: Rediscovering a Lost Constitutional Right. (Washington,
DC: Cato Institute, 2011).

Robert A. Levy and William Mellor. The Dirty Dozen: How Twelve Supreme Court Cases
Radically Expanded Government and Eroded Freedom. (Washington, DC: Cato Institute,
2009).

Martin Garbus. The Next 25 Years: The New Supreme Court and What It Means for
Americans. (New York: Seven Stories, 2007).
READING 3: Evan Gertsmann. Same-Sex Marriage and the Constitution. (New York: Cambridge
University Press, 2008). A provocative text asserting that the Constitution has long protected the
right to marry and that this protection necessarily extends to those choosing to marry others of the
same sex. The text also addresses why other marriage issues, such as polygamy and incest, are
distinctive.
READING 4: Richard E. Labunski. James Madison and the Struggle for the Bill of Rights. (New York:
Oxford University Press, 2008). An engaging telling of the debate between Patrick Henry and James
Madison over the need for development of the Bill of Rights and the ratification of the U.S.
Constitution.
READING 5: William H. Rehnquist. All the Laws but One: Civil Liberties in Wartime. (New York:
Vintage, 2000). A fascinating analysis of several key decisions affecting civil liberties during wartime
written by William Rehnquist, former chief justice of the U.S. Supreme Court. Rehnquist focuses on
President Abraham Lincoln’s decision to suspend the writ of habeas corpus during the Civil War
and on President Franklin Roosevelt’s internment of Japanese Americans during World War II.
READING 6: Geoffrey R. Stone, Richard A. Epstein, and Cass R. Sunstein, eds. The Bill of Rights in
the Modern State. (Chicago: University of Chicago Press, 1992). Drawing contributions from several
prominent constitutional scholars, this book provides an analysis of the evolving scope of
protections under the Bill of Rights.
READING 7: Richard W. Levy. Origins of the Bill of Rights. (New Haven, CT: Yale University Press,
2001). A fascinating retelling of the origins of the Bill of Rights, focusing on the behind-the-scenes
maneuvering, public rhetoric, and political machinations of James Madison and the other founders
who sought ratification of the U.S. Constitution.
READING 8: Numerous recent books deal with the tradeoff between the promotion of security
and the protection of civil liberties in the post–9/11 world. See, for example, the following:

A. C. Grayling. Liberty in the Age of Terror: A Defense of Civil Liberties and Enlightenment
Values. (London: Bloomsbury, 2011).

Richard A. Posner. Not a Suicide Pact: The Constitution in a Time of National Emergency.
(New York: Oxford University Press, 2006).

Richard A. Posner. Terror in the Balance: Security, Liberty, and the Courts. (New York:
Oxford University Press, 2007).

David Cole and James X. Dempsey. Terrorism and the Constitution: Sacrificing Civil
Liberties in the Name of National Security. (New York: First Amendment Foundation,
2006).

Susan N. Herman. Taking Liberties: The War on Terror and the Erosion of American
Democracy. (New York: Oxford University Press, 2011).

Anthony D. Romero. In Defense of Our America: The Fight for Civil Liberties in the Age of
Terror. (New York: Harper, 2008).

M. Katharine Darmer and Richard D. Fybel, eds. National Security, Civil Liberties, and
the War on Terror. (New York: Prometheus Books, 2011).
READING 9: Cass Sunstein. The Second Bill of Rights: FDR’s Unfinished Revolution—And Why We Need
It More Than Ever. (New York: Basic Books, 2006). Sunstein begins with President Franklin
Roosevelt’s call for a “second Bill of Rights” to protect the economic rights at the heart of political
liberty and participation in the United States as a starting point for his argument in favor of
rethinking the protections afforded by our founding documents.
READING 10: Several journals offer extensive analysis of issues related to the protection of civil
rights in the United States and abroad:

Civil Liberty is the official journal of the New South Wales (Australia) Council for
Civil Liberties. It is available online at
www.nswccl.org.au/publications/civilliberty.php.

The Harvard Civil Rights and Civil Liberties Law Review. An online publication of
Harvard University, available online at http://harvardcrcl.org.

Stanford Journal of Civil Rights and Civil Liberties is an interdisciplinary journal focused
on civil rights and civil liberties issues in the United States and abroad:
http://sjcrcl.stanford.edu.

Texas Journal on Civil Liberties and Civil Rights (www.utexas.edu/law/journals/tjclcr)
focuses more extensively on civil rights and civil liberties issues in the United States.
READING 11: Freedom House, a nongovernmental organization focused on analyzing civil
liberties around the world, maintains an extensive publication database on their website at
www.freedomhouse.org. Their flagship publication, Freedom in the World, provides an annual survey
of (and Excel database measuring) civil liberties across 195 countries in the world.
READING 12: American Civil Liberties Union (ACLU; www.aclu.org) offers information on the
entire Bill of Rights, including racial profiling, women’s rights, privacy issues, prisons, and drugs.
READING 13: Americans United for Separation of Church and State (www.au.org) promotes a
strong interpretation of the establishment clause.
READING 14: The conservative Cato Institute (www.cato.org) argues in favor of a broad
interpretation of individual liberty, particularly economic liberty.
READING 15: The Criminal Justice Legal Foundation (www.cjlf.org) works to advance the rights
of crime victims through its interpretation of the criminal justice provisions of the Bill of Rights.
READING 16: Oyez-Oyez-Oyez (www.oyez.com) provides a comprehensive database of major
constitutional cases, including multimedia aspects such as audio. Findlaw (www.findlaw.com) is a
searchable database of Supreme Court decisions plus legal subjects, state courts, law schools, bar
associations, and international law. The Federal Legal Information Through Electronics (FLITE)
website (www.fedworld.gov/supcourt/index.htm) offers a searchable database of Supreme Court
decisions.
READING 17: The Gay and Lesbian Alliance against Defamation (GLAAD) (www.glaad.org)
advocates fair, accurate, and inclusive representation in the media. Their website includes links to
related issues as well as news and opinion. The Lambda Legal Defense Fund (www.lambdalegal.org)
offers extensive coverage of legal action related to gay, lesbian, bisexuals, the transgendered, and
HIV-infected people’s rights.
READING 18: The Legal Information Institute of Cornell University has an excellent site that
offers extensive information about civil liberties
(www.law.cornell.edu/topics/first_amendment.htm). There is a section focused on the First
Amendment with definitions, historical background, Supreme Court decisions, and links to many
First Amendment–related sites. There are also sites at LII for prisoners’ rights, employment rights,
and general constitutional rights. LII also offers Supreme Court opinions under the auspices of
Project Hermes (http://supct.law.cornell.edu/supct), the court’s electronic-dissemination project.
This archive contains all opinions of the Court issued since May 1990.
READING 19: Given the intense debate over abortion in the United States, it is not surprising that
both sides maintain an extensive web presence. NARAL Pro-Choice America (www.naral.org)
advocates a broad interpretation of such rights, while the National Right to Life Committee
(www.nrlc.org) seeks to prohibit abortion in the United States.
READING 20: There are many films dealing with the protection of the rights of criminal
defendants, questions of due process, and prohibitions against cruel and unusual punishment. Some
of these include the following:

Murder in the First (1994). A dramatization of the true story of a petty thief
condemned to solitary confinement in Alcatraz after attempting to escape.

Dead Man Walking (1995). Based on the book of the same name, this is a
dramatization of the true story of Sister Helen Prejean, a progressive nun who serves
as a death row inmate’s spiritual advisor.

Monster’s Ball (2002). A Georgia corrections officer administers death by
electrocution to a condemned inmate, only to fall in love with the dead man’s widow.

The Green Mile (1999). A condemned black inmate convicted of murdering a child
changes the lives of his guards.
Many films also touch on other key issues raised in this chapter. These include the following:

The Majestic (2001). The McCarthy-era story of a Hollywood writer struggling against
the power of the blacklist.

Guilty by Suspicion (1991). A successful movie director is forced to appear before the
House Un-American Activities Committee in the 1950s.

Brazil (1985). This Orwellian tale centers on a futuristic society in which a paperwork
error leads to the arrest of the wrong man, and attempts to correct the mistake only
make the situation worse.

Enemy of the State (1998). An attorney who unknowingly possesses evidence of a
governmental conspiracy is tracked by the state.

1984 (1956). Based on George Orwell’s classic novel, this movie tells the story of a
dystopian society where the state watches everything and free thought and free
speech are prohibited.

Gattaca (1997). A futuristic film in which a person’s genetic code provides the basis
for legal discrimination.

The People vs. Larry Flynt (1996). Although somewhat idealized, the film raises
questions about freedom of speech and debates over obscenity in an engaging way.
Be sure to screen the film ahead of time, and be aware that the film may not be
appropriate for all audiences due to strong sexual material, nudity, language, and drug
use.

You Don’t Know Jack (HBO, 2010). A dramatized version of Dr. Jack Kevorkian’s
(played in the film by Al Pacino) efforts to bring attention to the right to physicianassisted suicide. The film’s website (www.hbo.com/movies/you-dont-knowjack/index.html) offers additional resources covering the debate.