Civil Liberties
Sticking it to the Man
Civil Liberties
► PERSONAL
rights and
freedoms that can not
be abridged either by
law, constitution, or
judicial interpretation.
 “Unalienable Rights”
Birth of the Bill of Rights
► It
was apparent that
without an article
directly speaking to
the Bill of Rights the
Constitution would not
be ratified.
 Federalists vs. AntiFederalists
► Federalist
84- Bill of
Rights “Unnecessary and
Dangerous”
► Anti-Federalists win and
Bill of Rights 1791
Dual Citizenship
► Bill
of Rights was designed to limit the powers
of the National Government.
 Barron vs. Baltimore 1833(Supreme Court
Supported the Idea)
►Courts
ruled that the Bill of Rights only applied to
the national government and not the state.
 “Each state established a constitution for itself” and
had its own bill of rights. Citizens in different states
essentially had different sets of civil rights.
Incorporation
► 14th
Amendment not
only defined
citizenship but placed
Restrictions on the
State Government
 “NO STATE SHALL…”
It was not until the 14th Amendment was ratified in 1868 that
civil liberties guaranteed by the national Constitution began to
be applied to the states.
Gitlow v. New York
►
There was no question that that 14th amendment applied to the
state governments. However, courts were hesitant to define
the liberties spelled out in the BOR as constituting “due process
of law” which was protected under the 14th amendment.
►
Gitlow was thrown in jail for advocating an overthrow of the
New York Government
 Gitlow was thrown in jail because he violated the New York
anarchism crime
►
Gitlow’s lawyers argued his freedom of speech was being
abridged…
 The Supreme Court held that the 14th amendment applied
one of the protections of the first amendment, freedom of
speech, to the states.
► USING
INCORPORATION
THE 14th AMENDMENT TO APPLY
THE BILL OF RIGHTS TO THE STATES ON
A CASE BY CASE BASIS
 Tool used in incorporation is the 14th
AMENDMENT
 Does this mean that all of the Bill of Rights
were restored to the states?!?!?!
 Only gradually and never completely did the SC
accept incorporation theory.
►The
view that most of the protections of the BOR are
incorporated into the 14th amendment’s protection
against state government actions.
More Incorporation Cases
See chart in textbook on page 97 for all the incorporation cases
► Near
v. Minnesota
► INCOROPORATED
FREEDOM OF PRESS
► Dejonge
v. Oregon
► INCORPORATED THE
FREEDOM TO
ASSEMBLE
First Amendment Guarantees
► Freedom
of Religion
 The Establishment
Clause
►Prohibits
the
government from
establishing a
national religion
►Thomas Jefferson
Called it “Wall of
Separation”
Establishment Clause
►
►
This clause is applied to all conflicts about such matters as
the legality of the state and local governments aid to
religious orgs and schools, school prayers, teaching of
evolution, 10 commandments in school and discrimination
School Prayer
 Engel vs. Vitale- NY schools implementing prayer at
the beginning of each day.
►Struck down Non-Denominational Prayer
Abington School District v Schempp- Struck down
officially sponsored daily readings of the Bible and
recitation of the Lord’s prayer.
Establishment Clause
►
►
1971- Lemon vs. Kurtzman ruled that direct state aid could
not be used to subsidize religious instruction.
How can the Courts tell what is religious in schools or what is
secular?
 Lemon Test
►Have a Secular Purpose
►Have a primary effect that neither advances or prohibits
religion
►Not foster excessive government entanglement with
Religion
This lemon test has been applied in most cases under the
establishment clause since 1971
Free Exercise Clause
► “Congress
shall make no law… prohibiting the
free exercise”
 However this clause is also open to interpretation. Several Religious
Practices have been ruled as unconstitutional including
 Reynolds vs. United States
►Polygamy
is illegal and thus not covered under the Free
Exercise Clause
 Oregon vs. Smith
►Banned
illegal Drug use in Religious ceremonies. Free
exercise clause does not cover illegal acts
Quiz
► Define
incorporation
► What was the first case of incorporation
► What was the constitutional tool of
incorporation?
► What clause in the Freedom of Religion did
Jefferson call the “Wall of Separation”
► What court case said the Bill of Rights only
applies to the federal government?
►
Limits of the Freedom of
Press
Prior Restraint- (restraining an action before it has occurred,
when expression is involved this is censorship.
 New York Times vs. United States
►Prior Restraint is unconstitutional unless it presents a
clear and present danger to our nation
►Wiki leaks?
Freedom of Speech
►
►
►
Schenck vs. U.S.
 “Clear and Present Danger”- expression may be
restricted if evidence exists that such expression would
cause a condition, actual or imminent that Congress has
the power to prevent.
New York Times v. Sullivan
 Established Libel and Slander
►Any speech with “malice intent” to harm is not
protected under the first amendment
Roth v. United States
 Obscenity is not protected by the first amendment
Freedom of Speech
 Miller vs. California- obscenity
►Community Standards Test
►The work taken as a whole appeals to a prurient
interest in sex.
►The work shoes patently offensive sexual conduct
►The work lacks serious redeeming literary, artistic,
political or scientific merit.
►“I KNOW IT WHEN I SEE IT”
Freedom of Expression
Penn and Tellar- West Wing Clip
► NOT
DIRECTLY STATED IN THE FIRST
AMENDMENT!!!!!!!!!!
 Texas v. Johnson
►Flag
burning is protected under the 1st amendment
because expression is a form of speech.
►Congress than passed the Flag PROTECTION Act in
1989 which was ruled unconstitutional in 1990 by the SC
Quiz
► Define
Incorporation
► What are the 2 clauses in the freedom of
religion
► What court case limits your speech if it
presents a clear and present danger to
those around you
► What court case says school prayer is
unconstitutional
► What was the first case of incorporation?
1st Amendment at School
►
“Students do not shed their constitutional rights when they
enter the schoolhouse door."
 Tinker vs. Des Moines
 Alright to wear a black armband to protest the Vietnam war
 MORSE et al. v. FREDERICK
 Upheld the suspension of the “Bong Hits 4 Jesus” culprit,
can’t promote drugs at school
 Hazelwood vs. Kuhlmeier
►Administration
has Prior Restraint
Right to Assemble and Petition
►
National Socialist Party of America vs. Skokie
 Nazi’s could march
Recently Westboro Baptist Church has been an issue,
demonstrating at soldier’s funerals.
 SC ruled in the church’s favor in Snyder v. Phelps.
nd
2
►
and
rd
3
Amendments
Have not been
incorporated
 Selective incorporation
allows for fundamental
rights to be granted to
all citizens. The right to
bear arms or quarter
soldiers are not
fundamental rights
Rights of the Accused
►
►
►
Criminals suspects have the right to due
process and fair treatment.
Gideon vs. Wainwright 1963- an attorney
must be provided at the government’s
expense if the accused of a felony can’t
afford it.
Miranda v. Arizona (1966)- Miranda
admitted to raping and kidnapping a woman
after 2 hours of questioning, lawyer argued
the police never informed him of his right to
remain silent and have counsel.
 Court ruled in Miranda’s favor creating the Miranda
rights.
 There is the public safety exception to this rule, the
need to protect the public warrants the admittance
of the statements.
 CHART IN BOOK ON 123
4th Amendment
► Unreasonable
Search and Seizure
 Mapp v. Ohio
►Overturned
Wolf v. Colorado
►Incorporated the Exclusionary Rule
 Anything obtained in an illegal search and seizure may not
be used at a trial
 Katz v. United States
►Wiretapping
amendment
without a warrant violates the 4th
5th Amendment
► Indictment
by a grand jury, self incrimination,
double jeopardy, and eminent domain
 Miranda vs. Arizona
►Miranda
Rights
 Kelo vs. City of New London
►The
government can take public property to give to
private companies
Quiz
► Define
incorporation
► Define the exclusionary rule
► List the two clauses in the Freedom of
Religion
► What court case incorporates your right to
be free from Self Incrimination
► What court case establishes the clear and
present danger doctrine?
6th Amendment
► Right
to a Speedy and public trial, Right to a
lawyer
 Gideon vs. Wainwright
►Right
to an attorney during the trial
 Escobedo vs. Illinois
►Right
to have a lawyer present during police
interrogation
8th Amendment
►
Cruel and Unusual Punishment
 Furman v GA (1972)- imposition of the death
penalty has been random and arbitrary and
applied thusly violates the 8th and 14th
amendment, but not necessarily of the
criminal has killed or attempted to kill
someone.
 States were invited to enact more precise
laws so the DP could be applied more
consistently.
 Gregg v. Georgia
► GA and other states adopted a bifurcated
or two stage procedure for capital cases
in which in stage one the jury determines
innocence or guilt and then meets later to
determine if the DP is applicable. SC
agrees under this that Death Penalty is
NOT cruel and unusual punishment
Diagram in book on 129
► No
Right to Privacy?
Constitutional Right to Privacy
 However, the courts have used several
amendments to “interpret” a right to privacy
 Griswold vs. Connecticut
►Law
was passed in Connecticut banning the
dissemination of information about the sale of
Contraceptives
 Courts ruled the law was Unconstitutional based on Amendments
1,3,4,9,and 14
 Establishes the RIGHT TO PRIVACY
Roe v. Wade
► Argued
that the decision to carry a
pregnancy to term was a Women’s
fundamental right
 In Roe v. Wade, the court found it was a
fundamental right of a woman to have an
abortion.
►Used
right to privacy and primarily the 9th
amendment to reach their conclusion
►Ever
since Conservative justices have been trying to
overturn Roe vs. Wade
The Right to Die
► Cruzan
v. Missouri Dept of Health (1990)
 Living will is legitimate
 Only if the patients family is able to provide
“ Clear and convincing evidence” like a living
will
 9th Amendment