Chapter 5
Civil Liberties
Bill of Rights
• First Ten Amendments
• Passed by Congress is 1789, ratified by the
states in 1791
• Compromise between the Federalists and
Anti-Federalists
• Designed initially to LIMIT the powers of
national gov.
– Barron v. Baltimore
Incorporation Doctrine
•
•
•
•
14th Amendment
Applied Bill of Rights to the states
Due process (along with 5th amendment)
Gitlow v. New York
– States not completely free to limit freedom of
speech/political expression
• Near v. Minnesota
– States could not restrict freedom of press
Selective Incorporation
• Not all Bill of Rights have been incorporated
• Palko v. Connecticut
– 5th Amendment: double jeopardy
– NOT a fundamental right/liberty
1st Amendment: Freedom of Religion
• Colonists STRONG dislike and distrust in
established religion
• Establishment Clause
– “Congress shall make no law respecting an
establishment of religion”
• Free Exercise
– Congress shall not prohibit the free practice of
religion.
Establishment Clause
• Thomas Jefferson’s Wall of Separation
• Engel v. Vitale
– Nondenominational prayer in school
unconstitutional
• Lemon v. Kurtzman: Lemon test to determine
constitutionality
1) Must have a secular purpose
2) Neither advances nor prohibits religion
3) Not foster gov entanglement with religion
Establishment Clause
• Agostini v. Felton: public teachers used in
parochial schools, not an excessive
entanglement of church and state
• Zelman v. Simmons-Harris: vouchers used in
parochial schools
Free Exercise Clause
• NOT absolute freedom
• When secular law conflicts with religion, free
exercise is often denied
• Employment division of Oregon v. Smith
• Restrictions include
– Snake handling
– Polygamy
– Illegal drug use
Freedom of Speech
• Alien and Sedition Act
– 1798 to ban any political criticism by the
Jeffersonian Democratic-Republicans of the
Federalist Congress
– Made criticism of gov a federal offense
– Acts expired before Court could rule on them
• Lincoln and Civil War
– Lincoln arrested editors who were critical of him
Freedom of Speech
• WWI and Anti-Government Speech
– Espionage Act
– Schenck v. United States 1919
• Distribution of anti-war pamphlets unconstitutional
• Clear and present danger test
– Brandenburg v. Ohio 1969
• Advocacy of illegal action is legal unless imminent
lawless action is intended or likely to occur
Protected Speech
• Prior restraint
– New York Times Co. v. U.S.
aka Pentagon Papers (1971)
• Symbolic Speech
– Flying a communist flag, burning American flag,
and wearing black armbands in protest of Vietnam
• Hate and unpopular speech
Unprotected Speech
• Libel and Slander
– New York Times v. Sullivan (1964): “actual malice”
• Fighting Words
– Chaplinsky v. New Hampshire
• Obscenity and Pornography
– Roth v. U.S.
• “utterly without redeeming social importance”
– Miller v. California (1973)
nd
2
Amendment
“a well-regulated militia” “the right to bear arms”
perspective
perspective
Citizens should be able to
Government should
own guns with little to no
regulate (and restrict?) the
restrictions from the
ownership and use of guns
government
McDonald v. Chicago--incorporation of 2nd
Amendment onto the states
2nd Amendment
• U.S. v. Miller
– Upheld the National Firearms Act of 1934
• 1994 Violent Crime Control and Law
Enforcement passed by Congress
8th Amendment
• Death Penalty
• Furman v. Georgia
– Put a short term end to death penalty
• Gregg v. Georgia
– Overturned Furman v. Georgia
• Supreme Court exempted those under the age
of 15 and those who are mentally retarded
Right to Privacy
• Abortion
– Right to privacy implied by Bill of Rights
– Right to use birth control or secure an abortion
– Roe v. Wade
• Birth Control
– Griswold v. Connecticut
• Right to Die
– Individuals could terminate medical treatment if they
could express, or done so in writing, their desire to
terminate medical treatment if they become incompetent
Civil Liberties (Cont.)
• Chapter 15 Part II Terms
Bills of Attainder
A law that says someone
is guilty of a crime
without a trial
“After the fact”--a law making
Ex Post Facto Law something a crime after it has
occurred
(More Latin!)
Example?
Cool sponge illustration on
p.479
Application of Bill of Rights to
Selective Incorporation the States by using the due
process clause of the 14th
Amendment
1st, 2nd, 4th, 5th, 6th, 8th, 9th
Rights of the accused
Gideon v. Wainwright
Background: man arrested for theft, didn’t have
money for a lawyer, had to represent himself at
trial
Result: Court found that the 6th Amendment applied
to the states, each defendant needs a lawyer; if he
cannot afford one, it’s provided by the state.
Miranda v. Arizona
Background: man accused of kidnapping and rape
was questioned for two hours without a lawyer and
confessed
Result: Court found that the 5th Amendment right to
protection from self-incrimination applies. We now
have the “Miranda Rights”
Search and Seizure cases
Mapp v. Ohio
Background: woman accused of crimes, shown a
“warrant” and found pornography (which was then
illegal)
Result: established “Exclusionary Rule,” that is,
evidence illegally obtained will no longer be used in
court.
Other questions regarding the 4th Amendment
• Sobriety checkpoints
• Wiretapping
• GPS devices on cars
Terrorism vs. privacy
USA Patriot Act allows for government to surpass what we
would expect about our personal privacy
How do/should we handle people arrested for terrorism:
in the US?
outside of the US?
The Right to Privacy
Not in the constitution
Constructed by combining different
Amendments
the perfect example of Judicial Activism
Griswold v. Connecticut
Background: Planned Parenthood was distributing
birth control, which violated a state law
Result: use of birth control allowable, created the
right of privacy based on 1st, 3rd, 4th, 5th, 6th, and
9th Amendments
The Right to Privacy (cont.)
Roe v. Wade
Background: Texas law forbade abortions at any
point of pregnancy. “Roe” sued to be able to have
an abortion.
Precedent: without Griswold, the decision in Roe
could not have worked
Result: abortion is legal
1st trimester specifically OK
3rd trimester specifically not OK
reinforced the right of privacy based on 1st, 3rd,
4th, 5th, 6th, and 9th Amendments
Issues: viability, 2nd trimester
Planned
Parenthood
v. Casey
The Right
to Privacy (cont.)
Background: Pennsylvania law tried to restrict
abortion with restrictions:
•a doctor would inform the woman about the
procedure and side effect of an abortion and the
woman would then wait 24 hours
•spousal notification is required
•parental consent for those under 18
Result: abortion is still legal
Justice O’Connor said the spousal notification
provision placed an “undue burden” on women
and was unconstitutional
Lawrence and Garner v. Texas
The Right to Privacy (cont.)
Background: Texas law forbade heterosexual and
homosexual sodomy. Two men were accused of
violating the law and challenged its
constitutionality.
Precedent: Bowers v. Hardwick (1986)
Result: law is unconstitutional and in short,
consenting adults may do what they want in the
privacy of their own homes. This case is now the
current precedent.