Civil Liberties
Occupy Wall Street Update
The Bill of Rights
★First ten amendments to Constitution
that guarantee specific rights and
liberties.
The Incorporation Doctrine
★The Bill of Rights was intended to apply
to the national government...not the
states.
★Gitlow v. New York (1925) began a
process of using the Fourteenth
Amendment’s due process clause to
require states to guarantee the rights
stated in the Bill of Rights.
The Incorporation Doctrine
★Most but not all guarantees in the Bill of
Rights have been made applicable to the
states.
First Amendment: Freedom
of Religion
★Two clauses
• Establishment Clause
• Free Exercise Clause
First Amendment: Freedom
of Religion
Freedom of Religion Establishment Clause
Congress shall make no law respecting
an establishment of religion.
Prevents government from establishing a
religion.
There have been years of debate over
the scope of the clause.
Establishment clause does not prohibit
government from supporting religion in
general.
Freedom of Religion Establishment Clause
What the Supreme
Court has ruled
about school prayer:
Freedom of Religion Establishment Clause
★Public schools cannot compose official
prayers for students to recite.
★Public schools cannot have a studentled pre-game prayer using the school’s
public-address system.
★Public schools cannot authorize
moments of silence for meditation and
voluntary prayer...but can have
moments of silence for secular
purposes (meditate on days’ activities).
Freedom of Religion Establishment Clause
★Governments can give money to parents
to allow them to send their children to
private or religious schools.
★Supreme Court now appears willing to
support programs so long as they
provide aid to religious and nonreligious
schools alike, and the money goes to
persons who exercise free choice over
how it is used.
Freedom of Religion Establishment Clause
• Should we take “under God” out of the
Pledge of Allegiance?
• ABC Video - Church & State and
Pledge of Allegiance
• http://portal.mypearson.com/mypears
on-login.jsp?logoutAction=render
5
Freedom of Religion Establishment Clause
★Should we take “under God” out of the
Pledge of Allegiance?
★9th U.S. Circuit Court of Appeals:
Schools do not require students to
recite the pledge. “Under God” was
added to separate the U.S. from the
communists, not for religious purposes.
Freedom of Religion Free Exercise Clause
Congress shall make no law...prohibiting
the free exercise thereof;
Protects a person’s right to worship or
believe as he or she wishes.
Does not mean that individuals can act in
any way they want. In Reynolds v. United
States (1878) the Supreme Court ruled
that a Mormon could not practice
polygamy since polygamy is prohibited by
federal law.
Freedom of Religion Free Exercise Clause
How does the proposal to build a mosque
(or Muslim community center) near
Ground Zero fit into the First
Amendment?
http://www.pbs.org/newshour/bb/religio
n/july-dec10/groundzero_08-10.html
Freedom of Speech & Press
Congress shall make no law...abridging the
freedom of speech.
Right to free speech is not absolute.
• In Schenck v. U.S. (1919) the Supreme
Court said Schenck did not have the
right to encourage draftees to defy
the draft during WWI. This
established the clear and present
danger test.
• Modified in 1969 to be direct
incitement test (“imminent lawless
action”).
Free Speech
★ABC Video - Funeral Protesters Push
the Limits of Free Speech
★http://portal.mypearson.com/mypears
on-login.jsp?logoutAction=render
Protected Speech &
Publications
Court will rarely tolerate prior restraint
- government cannot curb ideas before
they are expressed.
Court also protects symbolic speech.
• Texas v. Johnson (1989) - burning the
American flag is a form of speech
protected under the First Amendment.
Second Amendment
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.
• Protects the right to bear arms.
• Written to protect state militias.
Second Amendment
★D.C. v. Heller (2008) - Second
Amendment protects a personal right to
keep and bear arms for lawful purposes.
★McDonald v. Chicago (2010) - Cities and
states must abide by the Second
Amendment.
★Supreme Court still has not elaborated
on what kind of gun control laws would
offend the Constitution.
Fourth Amendment
The right of the people to be secure in
their persons, houses, papers, and
effects, against unreasonable searches
and seizures, shall not be violated, and
no Warrants shall issue, but upon
probable cause...
• Protects against unfair searches and
seizures.
Fourth Amendment
★Police can search someone if there is
reasonable suspicion they are
committing or about to commit a crime.
★With reasonable suspicion...police may
search the person, things in plain view,
and anything the person could touch or
reach.
★New issues include cars, borders, and
drug tests.
Fifth Amendment
No person shall be...compelled in any
criminal case to be a witness against
himself...nor be deprived of life, liberty,
or property, without due process of law.
• Prevents self-incrimination.
• Due process is a principle that the
government must respect all of the
legal rights owed a person according to
the law.
Fifth Amendment
★Miranda v. Arizona (1966) is the landmark
case.
★Miranda rights inform suspects of right
to silence, any statements he/she makes
can be used against him/her, and right to
presence of attorney.
Miranda v. Arizona
(1966)
Exclusionary Rule
 Derived from Fourth and Fifth
Amendments.
 Illegally seized evidence cannot be used
at trial.
 Established largely in Mapp v. Ohio
(1961).
 Growing number of “good faith
exceptions.”
Sixth Amendment
Protects right to counsel and jury trial in
criminal cases.
Gideon v. Wainwright (1963) sets
precedent for counsel.
Eighth Amendment
Protects against cruel and unusual
punishment.
Most common application is the death
penalty.
Minors and mentally retarded are
excluded from death penalty.
Growth of innocence projects and DNA
evidence are causing some to question
death penalty.
Right to Privacy
A right to privacy is not explicitly stated
in the Constitution or Bill of Rights.
In Griswold v. Connecticut (1965) the
Supreme Court ruled that a right to
privacy is implied by other constitutional
rights guaranteed in the First...Third...
Fourth...Fifth...and Ninth Amendments.
Right to Privacy
Ninth Amendment: “The enumeration in
the Constitution, of certain rights, shall
not be construed to deny or disparage
others retained by the people.”
First Amendment right to practice one’s
religion implies the right to exercise
private...personal beliefs.
Fourth Amendment guarantee against
unreasonable searches and seizures
implies that we are to be secure in our
homes and should not fear that police will
show up at our doorsteps without cause.
Right to Privacy
Griswold v. Connecticut (1965)
• Case involved a challenge to the
constitutionality of an 1879
Connecticut law prohibiting the
dissemination of information about
and/or the sale of contraceptives.
• Court ruled the law violated marital
privacy.
Right to Privacy
Right to Privacy extended
to Abortion
Roe v. Wade (1973) - Supreme Court held
that the “right of privacy...is broad
enough to encompass a woman’s decision
whether or not to terminate her
pregnancy.”
Roe v. Wade ruled a Texas law
unconstitutional which allowed abortions
only when they were necessary to save
the life of the mother.
Right to Privacy extended
to Abortion
Civil Liberties and
Terrorism
Virtually all civil liberties have been
affected.
USA Patriot Act and Military
Commissions Act.
Place limitations on free speech rights.
Increase law enforcement’s search
capabilities.
Attempt to deny habeas corpus rights to
defendants.
Allow for use of techniques such as
water-boarding.
Spying on the Home
Front
• http://www.pbs.org/wgbh/pages/fron
tline/homefront/view/?utm_campaign
=searchpage&utm_medium=videosearc
h&utm_source=videosearch