Civil Liberties
Civil Rights vs. Civil Liberties
Civil Rights:
- what the govt. must
do to ensure equal
protection and freedom
from discrimination
- govt. helps people who
have history of facing
discrimination
Civil Liberties:
- specifies what the govt.
cannot do to Americans
Specific Liberties Listed in the Original Constitution
• writ of habeas corpus SHALL NOT BE SUSPENDED
suspect must be allowed to challenge their
arrest/detention in a public court
• NO bills of attainder a legislature (Congress) can’t
make a statute declaring a person guilty
• NO ex post facto laws the govt. can’t punish you for
breaking a law before the law existed
• Defendants must receive jury trial (federal incidents)
• Ban on the govt. granting titles of nobility
• Ban on mandating religious oaths for holding federal office
Political Cartoon Analysis
The Bill of Rights– Then and Now
• Civil Liberties
– Definition: personal freedoms that are protected for
all individuals
• Typically involve restraining the govt.’s
actions against individuals
• The Bill of Rights and the States:
– The Bill of Rights is the first 10 amendments
– Written to restrict the national government
– Since 1925, most “rights” are “incorporated” into
state and local laws
The Bill of Rights
• Origins - colonists’ fear of a tyrannical
government
• Federalists agreed to amend the Constitution
to include a Bill of Rights after ratification
• This placed limitations on the government
and thus protected citizens’ civil liberties
– Appeased the Anti-Federalists
Basics of the Bill of Rights
Write down info that is
a REVIEW to you.
Write down info that is
NEW to you.
Anti-federalists vs. Federalists
Federalist: #84
- “…they allege two things; one is,
- “The most important
that though the constitution of
article in any
New-York has no bill of rights…
Constitution may
yet it contains in the body of it
therefore be repealed,
various provisions in favour of
even without a
particular privileges and rights,
legislative act. Ought
which in substance amount to the
not a government,
same thing…”
vested with such
extensive and indefinite - “…For why declare that things
shall not be done which there is
authority, to have been
no power to do? Why for instance,
restricted by a
should it be said, that the liberty
declaration of rights? It
of the press shall not be
certainly ought.”
restrained, when no power is
given by which restrictions may
be imposed?”
Anti-federalists: #84
A Conflict of Liberties
Video Questions:
1. Did Dr. Sheppard receive a fair trial?
2. What argument did Sheppard’s lawyer make to the SCOTUS?
Do you agree?
3. In the current media age, with its all-news channels and social
media, can any high-profile defendant receive a fair trial?
4. What measures can be taken to guarantee high-profile
defendants a fair trial?
The Incorporation Doctrine
Should the Bill of Rights be
Applied to the States or only
the Federal Government?
What does “incorporation” mean?
to unite or merge with something already in existence
Is Gun Ownership a “Fundamental Right”?
* Recent case: McDonald
v. Chicago (2010)
* Question before the
court: Does the Second
Amendment apply to
the states because it is
incorporated by the
Fourteenth
Amendment's
Privileges and
Immunities or Due
Process clauses and
thereby made
applicable to the
states?
The Bill of Rights & State Governments
• The original Bill of Rights did not apply to the states!
• The Fourteenth Amendment (1868) eventually changes
state responsibilities towards the Bill of Rights
• Incorporation theory: the view that most protections of the
Bill of Rights applies to state governments through the
Fourteenth Amendment’s “due process clause”
–Selective Incorporation Theory vs. Total Incorporation
Theory
Constitutional Convention Recap
* Our Federal government:
A. national govt. with specific enumerated powers
B. state govt’s. retained powers not delegated to the
national govt.
* Bill of Rights wording = prevented it from being applied to
the states
- a compromise between the states and newly created
federal govt. prevent a unitary system
Text of the First Amendment
Congress shall make no law
(1)respecting an establishment of
religion, or (2)prohibiting the free
exercise thereof; or (3)abridging the
freedom of speech, or of (4)the press; or
(5)the right of the people peaceably to
assemble, and (6)to petition the
Government for a redress of grievances.
Judicial Interpretation Before the Civil War
(Before the 14th Amendment)
* Barron v. Baltimore (1833): Does the Fifth
Amendment (eminent domain) deny the states as
well as the national government the right to take
private property for public use without justly
compensating the property's owner?
* Court’s Decision:
- Bill of Rights only applied to NATIONAL govt.
ONLY!
5th Amendment
“No person shall…be deprived of life,
liberty, or property, without due
process of law; nor shall private
property be taken for public use,
without just compensation ”
* Intent Limit the powers of the NATIONAL
GOVERNMENT
The 14th Amendment is Ratified (1868)
Section. 1. 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.
The Power of the 14th Amendment
Due Process Clause:
Substantive Due Process
vs.
Procedural Due Process
Equal Protection
Clause:
“When can states treat
people differently?”
The US Supreme Court declared that the 14th
Amendment forces the State & Local Govts. to
incorporate (include) the Bill of Rights.
Interpreting the Meaning of the 14th Amendment
“…nor shall any STATE deprive (remove) 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.”
1. Incorporation: States must provide due process rights to
its citizens—includes providing Bill of Rights protections!!
2. Equal Protection Clause: States must treat its
citizens equally!!
Changes Come…
* Gitlow v. New York (1925):
- Gitlow accused of inciting a forceful overthrow of the
govt.
- Court decided for the first time that parts of the Bill of
Rights apply to the states
- Court stated that freedom of speech and of the press
“are among the fundamental personal rights and
liberties protected by the due process clause of the
14th Amendment from impairment by the states.”
- Doctrine of Selective Incorporation begins!
Gitlow v New York (1925)
“For present purposes we may and do assume
that freedom of speech and of the press—which
are protected by the First Amendment from
abridgement by Congress—are among the
fundamental personal rights and “liberties”
protected by the due process clause of the
Fourteenth Amendment from impairment by the
states.”
Selective Incorporation Becomes Precedent
* Palko v Connecticut (1937):
- rejected total incorporation
- established the standard to guide the process of
selective incorporation:
defined “fundamental” rights “found to be implicit in
the concept of ordered liberty [and] so rooted in the
traditions and consciences of our people as to be ranked
as fundamental” would be applied (incorporated) to the
states
- What is a “fundamental” right?
Does the Entire Bill of Rights Apply to the States?
* Total Incorporation vs. Selective Incorporation:
If we had total incorporation:
A. How would we apply the Seventh Amendment? state
court systems would be required to have a trial by jury in civil
suits where the amount in dispute exceeded 20 dollars
 Can you imagine the traffic jam!?!
B. How would we apply the Tenth Amendment? (“…powers
not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved for the States
respectively, or to the people”)
- applying the 10th to the states seems illogical
The Supreme Court Defines
“Fundamental Rights”
* A “fundamental right” = “[something] deeply
rooted in nation’s history and foundation.”
- Duncan v. Louisiana, 1968
On a separate sheet of paper:
- Based upon the legal definition above, write down a
“fundamental right” you feel should be labeled as
FUNDAMENTAL thus this liberty is something the national,
state, local government should not be able to deny
- Justify your response!
Is Privacy a
Constitutionally
Protected
Liberty?
Background Info: Privacy Rights?
* There is no explicit Constitutional right to
privacy  it is an interpretation by the Supreme
Court drawn from the 1st, 3rd, 4th, 5th, 9th, 14th
Amendments
* The right was established
in 1965 in
Griswold v. Connecticut
Griswold v. Connecticut (1965)
* Justice William O. Douglas (writing for the majority in Griswold)
ruled that the right was to be found in “…the "penumbras“
(shadows) formed by Emanations (things sent out) from those
guarantees that help give them substance…” “The spirit” of the
liberties in Amendments1,3,4,5,9,14 provide the Constitutional
rationale for privacy rights
Constitutional Liberties: Using the opinion, summarize how each of
these amendments justify privacy
1st:
3rd:
4th:
5th:
9th:
14th:
Privacy & Abortion Rights
* Roe v. Wade (1973) held that governments could not
prohibit abortions B/C this ban violates a woman’s right to
privacy
- Since 1973, the Supreme Court has limited abortion
rights…
* Planned Parenthood of PA v. Casey (1992): upheld
Roe (abortion still allowed), but… upheld PA laws that
limited abortion rights:
- pre-abortion counseling is OK
- a 24-hour waiting period is OK
- parental/judicial permission for girls under 18 is OK
Defining Due Process
Procedural Due Process
vs.
Substantive Due Process
Due Process
Due Process: Constitutional principle; federal and state govt. can’t
deprive an individual of “life, liberty, or property” by unfair or
unreasonable actions.
* Source:
(1) 5th & 14th Amendments specifically mention “Due Process”
(2) Bill of Rights & Supreme Court Cases specify our specific due process
guarantees
Procedural vs. Substantive Due Process
Procedural Due Process: procedures the govt.
must follow before taking away a persons “life, liberty,
and property”
- “specifically listed liberties” govt. can’t deny
- Some examples:
- Habeas Corpus rights
- trial by jury
- legal counsel
- eminent domain
- Not Very Controversial!
Procedural vs. Substantive Due Process
Substantive Due Process: UNSPECIFIED constitutional
liberties that the govt. can’t deny unless the govt. can prove an
important reason to restrict the liberty Courts often decide if
liberty can be regulated!!
- “When can the govt. deprive personal freedoms to achieve a
compelling (very necessary) objective?
- Examples: When can the government…limit speech
rights? limit marriage rights? protect/diminish privacy rights?
- To answer these questions, years of case law have
created 3 tests (see next slide)
- Very Controversial Fears of courts being too Active &
Loose in their Constitutional interpretations
Comparing Procedural Due Process &
Substantive Due Process
Procedural Due Process:
- SPECIFICALLY listed
constitutional liberties the
govt. CANNOT deny
- Examples?
Substantive Due Process:
- UNSPECIFIED constitutional
liberties** the govt. CANNOT
deny unless the govt. can
prove an important reason to
restrict the liberty
** = “Fundamental Rights” not
found in the Constitution
The Origins of the
“Strict Scrutiny” Test
“All legal restrictions which curtail the
civil rights of a single racial are
immediately suspect. This is not to say
that all such restrictions are
unconstitutional. It is to say that courts
must subject them to more rigid
scrutiny.”
- Justice Hugo Black, Korematsu v. US (1944)
Allowable Liberty Infringement?
3 Tests used to Determine Liberty Infringement via Case Law
Liberty
Issues
Depriving Tests Involved
Strict Scrutiny race, religion,
alienage,
Test
“Fundamental
Rights”
The govt. must show that the challenged
classification serves a compelling state
interest and that the classification is
necessary to serve that interest
Substantial
gender
Relationship
Test (Intermediate
Scrutiny Test)
The govt. must show that the challenged
classification serves an important state
interest and that the classification is at least
substantially related to serving that interest.
Explanation of Test
Rational Basis social/econo The govt. need only show that the
challenged classification is rationally
mic, age,
Test
related to serving a legitimate state
sexual
orientation interest.
In order to determine if a law limiting liberty is
constitutional, courts use one of the following test:
Strict Scrutiny Test
- Used for the following
issues: race, religion, alienage,
“Fundamental Rights”
1) Does the law further a
compelling state interest (ENDS
must be compelling)?
and
2) What MEANS are being used
by the state to meet the
compelling state interest?
and
3) Are the MEANS necessary or
narrowly tailored? (If the law is
found too broad, it will be ruled
unconstitutional)
Intermediate
Scrutiny Test
- Used for the
following issues:
Gender
The policy being
challenged must
further an important
govt. interest in a
way that is
substantially related
to that interest
Rational Basis Test
- Used for the following
issues: social/economic,
age, sexual orientation
1) What is the Objective
of the Law (ENDS)
and
2) What MEANS are
being used by the state
to meet that objective?
and
3) Are the
MEANS rationally
related to the ENDS? **
Roe v. Wade (1973) & Strict Scrutiny
Law in Question: Texas had law banning all abortions and claimed a
compelling State Interest in protecting unborn human life
Question before the Supreme Court: Does the 14th Amendment protect a
women’s right to have an abortion?
Court’s Decision: the right to privacy is a fundamental right and that this right
"is broad enough to encompass a woman's decision whether or not to terminate
her pregnancy"
*Based on these grounds, the Court applied strict scrutiny:
- The Court acknowledged that banning abortion was a legitimate interest,
BUT it held that the interest is not compelling until a fetus becomes "viable"
(capable of "meaningful life outside the mother's womb")
- The Court held that a state may prohibit abortion after the point of viability,
except in cases where abortion is necessary to preserve the life or health of the
mother, but the Texas law was not narrowly tailored to achieve this objective!!
“Testing” the 3 Liberty Depriving Tests:
Which test should be used?
1. The state government feels that a person must be at least 17 years old to
legally get a drivers license.
2. A city government passes a law banning animal sacrifice because of
sanitation and animal cruelty conflicts.
3. A government funded military academy only accepts male candidates,
while women candidates must attend a separate government funded military
academy.
4. The state of Shulmanistan uses a progressive tax system—those people
who earn more income must pay more taxes than those people who earn
less income.
5. A state makes it illegal to marry someone of the same sex.
The Patriot Act
What is more important: protecting
our Civil Liberties or protecting
National Security??
Privacy Rights versus Security Issues
* Privacy rights have taken on particular importance
since September 11, 2001
* The USA Patriot Act: expanded govt’s anti
terrorism powers Concerns about civil liberty
violations
Pros & Cons of the Patriot Act
Pros
- Allows law enforcement to use
surveillance against more crimes of terror
- Law enforcement can conduct
investigations without tipping off terrorists
- more info sharing/cooperation among
government agencies
- Law enforcement officials may obtain a
search warrant anywhere a terrorist
related activity occurs
- Higher maximum penalties for various
crimes likely to be committed by terrorists;
eliminates/lengthens the statutes of
limitations for certain terrorism crimes and
lengthens them for other terrorist crimes
Cons
- FBI can demand “any tangible
thing,” including books, letters,
diaries, library records, medical and
psychiatric records, financial
information, membership lists of
religious institutions, and genetic
information without your knowledge
or consent
- The FBI needs only to tell a judge
(no need for evidence or probable
cause) that the search protects
against terrorism.
* Civil Liberties worries
Laughing at the Patriot Act!