Civil Liberties
Protecting Individual Rights
Due Process of Law
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5th amendment
Life
Liberty
Property
Protections against
the federal
government.
• 14th amendment
• Extends life, liberty,
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property protections
against the state
governments
Process of
Incorporation: NOT
2nd 3rd 5th 7th
amendment?
Federalism vs. Unitary
• How do the 5th and 14th amendments
conflict under the rule of law and the
theory of Federalism?
• Case-by-case basis:
• 10th amendment and the Bill of Rights
• 14th amendment “no state shall make any
law”
Case-by-Case Basis & Court
Two Types of Due Process
• Procedural
• How or Methods of
government action
• Substantive
• What or policies of
government action
Due Process & Drones (Attorney
General of the U.S.)
Due Process Defined
• Government must act fairly, and in accord
with established rules. It may not act
unfairly, arbitrarily, capriciously, or
unreasonably.
• What about: Affirmative Action,
Progressive Income Taxes, Social Security
Taxes, Personal moral beliefs….
Affirmative Action or Reverse
Discrimination?
Procedural Due Process
• Drug Dealers: Rochi v. California 1952
• Forced police entry of home and bedroom
• Suspect swallows drugs
• Suspect’s stomach pumped at hospital
• ****violation of 4th amendment says
Supreme Court: “Methods to close to the
rack and screw”
Substantive Due Process
• State compulsory public education 8-16
years of age: Pierce vs Society of Sisters
1925
• Private schools Catholic Church sues
• Supreme Court: law unconstitutional, no
substance for public school only
Police Power
• To act to protect and promote the public
health, safety, morals, and general welfare
of society.
• Conflicts: Police Power vs. Civil Rights
Protections: Societal Needs vs. Individual
Rights
Schmerber vs. California 1966
1. Police order doctor to withdraw blood for
alcohol test.
1. Blood draw in accordance to established
procedures.
2. Officer had reasonable grounds.
3. Time was of the essence to test blood
alcohol level.
Legislators & Courts have
extended State government too:
1. Limit sale of alcohol and tobacco sales.
2. Combat pollution
3. Vaccinate school children.
4. Forbid concealed weapons.
5. Seat belts.
6. Regulate gambling.
7. Outlaw obscene material & prostitution.
8. Compulsory education laws.
9. Limit profits of public utilities.
10. Help medically needy.
Whose needs?
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Societal Privileges
1. health
2. safety
3. morals
4. general welfare
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Individual Liberties
1. alcohol
2. weapons
3. Adult content
4. compulsory
education
Right of Privacy
• Constitution does not mention privacy!
• Griswold v. Connecticut 1965, “the state
had no business policing the martial
bedroom” vs. birth control devices
– Established “the right to privacy” under the
14th amendment.
Roe v Wade 1973 & “Right to
Privacy”
• Court grants right of privacy over the
state’s interest to protect life
• 14th amendment constitutional right to an
abortion
– Texas law limited abortion to physical
endangerment of the mother
Roe vs Wade 1973 Court Ruling
1. 1st trimester of pregnancy: (3 months)
State must recognize “right”
2. 2nd Trimester the State can limit: where,
how, when abortions occur.
3. 3rd Trimester the State can prohibit
abortion to protect the unborn child.
1973: Life defined at 12 weeks
Abortion Challenges
1. Webster vs. Reproductive Health Services 1989:
1. States may restrict abortion unless to protect mother’s life
2. 20 weeks pregnant and child is viable
2. Ohio vs Akron Center for Reproductive Health 1990: Minor must
inform both parents.
3. Planned Parenthood vs Casey 1992: Created Partial Birth Abortion
procedures to be performed if the State places an undue burden
upon a woman’s right to an abortion
1.
Violation of Roe vs. Wade 20 years earlier.
13th amendment 1865
• No slavery or involuntary servitude shall exist in
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the United States?
Welfare, Food Stamps, Medicaid, Obamacare,
Pell Grant vs. Involuntary Servitude: Explain
Group Rights vs. Individual Liberties
• Is the draft a “duty” or involuntary servitude?
When & Why? 1918 vs. 1964
Supreme Court’s Conflict
• 1883: Supreme Court
private individuals
may discriminate.
Limited the 1883
Civil Rights cases &
limited federal
authority over the
liberties of individuals
• 1968: Supreme Court
private individuals
man not discriminate
without violations:
Jones vs. Mayer 1968
– Economic matters of
discrimination
outlawed
2nd Amendment
• “right of the PEOPLE to keep and bear
arms shall not be infringed”
– D.C. vs. Heller: 2008: An individual right on
federal property
– McDonald vs. Chicago 2010: 2nd
amendment becomes an individual right
which States and Cities may no longer
discriminate: Process of Incorporation applied
2008: D.C. vs Heller
4th Amendment
• Search and Seizure
• 1. probable cause: reasonable!
• 2. exclusionary rule: evidence gained
illegally: Weeks vs. U.S. 1914
– Limitations on the exclusionary rule: United
States vs. Leon 1984….”Good Faith”,
Maryland vs Garrison 1987; “honest mistakes
made by police”
Probable Cause & Police Power
Drug Testing & Wiretapping
• Vernonia School District v. Acton 1995
– School sports or any extra-curricular
participants may be tested for drugs without
violating the 4th amendment
• Katz vs. U.S. 1967: a proper warrant
allows police to search all public airwaves
Writ of Habeas Corpus:
• The writ of liberty….no unjust arrests
and imprisonments
• Denied power to government: Article I
section 9
– “unless when in Cases of Rebellion or
Invasion the public Safety may require it.
• Ex parte Milligan 1866: Neither Congress nor President
may suspend where there is no actual rebellion/fighting
Bills of Attainder
• Denied power to governments: Article I
section 9 & 10
• No punishment without a court trial
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– Protection of individual liberties
– Protection of Separation of Powers concept
Congress can pass laws regarding crime &
punishment but NOT guilt.
Bills of Attainder vs. Affirmative
Action
1. Affirmative Action: Law requiring employers to
2.
give minorities: Jobs, promotions,
advancements, loans, contract, advantages
over white males.
Affirmative Action as an enacted policy is a
violation of: Bills of Attainder: The act of
punishing white males without a court trial.
Ex Post Facto Laws: Denied
Powers of Government
1. Criminal law: defining a crime or
providing for its punishment
2. Applies to an act committed before its
passage
3. Works to the disadvantage of the
accused
1. Example: Spice or K2: No crime until the
State passes a law criminalizing the good.
Grand Jury
• Formal device to accuse an individual for a
serious crime
– Federal: 16-23 persons: 12 votes from jurors
to create an indictment of a crime
– Not a trial; Held in secret from public. Only
prosecution present for hearing
• Indictment: formal complaint before the
grand jury: true bill of indictment
Grand Jury vs a Jury Trial?
5th & 6th Amendments
• 5th Amendment:
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– 1. No double jeopardy
– Federal & State Laws:
Kansas vs Hendrick 1987:
– Sexual predators released
from prison still monitored
by court is not a violation
of double jeopardy
• 6th Amendment:
• Speedy public trial
– No more than 100
days
• Unless defendant
agrees to a Bench
Trial…. unless there is
a plea bargain
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Right to Counsel:
Amendment & 14th Due Process
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6th amendment extended:
– 1. Right to be informed of nature and cause of accuasations
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2. To be confronted by witnesses against
3. Compulsory process of witnesses in defendants favor.
4. To have assistance of counsel.
Gideon vs. Wainwright 1963 a FREE tax funded public attorney.
Escobedo v Illinois 1964: Right to counsel during questioning.
Miranda vs. Arizona 1966 the uneducated must be educated
before being arrested and questioned.
Miranda Warning
1. Right to remain silent.
2. Anything said can and will be held
against you in a court of law.
3. Right to an attorney.
4. Free attorney if unable to hire.
5. End police questioning at any time.
Miranda & Judicial Activism
Miranda Rule Exceptions
• Supreme Courts “Case-by-Case” basis:
1.Undercover police confessions:
1. Illinois v Perkins 1990
2.Two-step practice of taped confessions
1. Missouri v Seibert 2004
• Critics of Miranda Rule: Judges put
criminals, murderers, rapists back on the street
8th amendment
• No Cruel or unusual punishment
• Bail: not an absolute right, not excessive
1. Not jailed until guilt is proven
2. Court preparation outside of jail
• Preventive Detention 1984: accused held without bail to
prevent more crimes
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U.S. vs Salerno 1987: Supreme Court upheld to prevent
further crime
Cruel & Unusual Punishment vs 8th
Amendment
• Cruel & Unusual Punishment:
1. Wilkerson vs Utah 1879: Firing squad legal
1. Outlawed Penalties: Burning at the Stake, Crucifixion,
Drawing & Quartering,
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2.
In re Kemmler 1890: Electrocution outlawed in New York
Louisiana v Resweber 1947: Electrocution not outlawed even for a
second electrocution.
2. 3 Strikes Law: Lockyer v Andrade 2003:
court upheld 25 year mandatory sentence
Capital Punishment vs. 8th Amendment
• Death Penalty:
1. Furman vs. Georgia 1972:
Death penalty unconstitutional:
Judges & Juries too much discretion when applying.
2. Woodson vs. North Carolina 1976: unduly harsh State laws; one size
fits all punishment for crimes are unconstitutional
3. Gregg vs Georgia 1976: Death penalty is constitutional if a 2 stage
approach is utilized
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2.
Crimes resulting in a death of the victim
No arbitrary or capricious manner
4. Coker vs Georgia 1977: No death penalty for mentally retarded
Treason: Article III, Section 3
• Treason:
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2.
Levying war against the U.S.
Aid and Comfort to the enemy
1. Testimony of two witnesses
2. Penalty for treason: Death
3. Only in wartime
• Espionage or Sabotage: Penalties during time of peace
1. Those who seek to give aid or comfort to the enemy
2. Those who seek to subvert the government’s power