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US Government: Principles in Practice
Chapter 10
Chapter 10: Civil Liberties
Overture
Section-1
Protecting Constitutional Rights
Section-2
First Amendment Freedoms
Section-3
Protecting Individual Liberties
Section-4
Crime and Punishment
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Chapter 10
Section 1 at a Glance
Protecting Constitutional Rights
• The Bill of Rights protects Americans’ civil liberties and civil rights.
• In some cases, government may place limits on individual freedoms for the sake of the
common good.
• The Supreme Court has established that many of the provisions of the Bill of Rights limit the
actions of state and local governments as well as of the federal government.
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Protecting Constitutional Rights
Main Idea
The United States was formed out of a belief that individuals had certain important liberties
and rights. The Constitution’s Bill of Rights protects these liberties and rights.
Reading Focus
• What is the Bill of Rights, and what does it protect?
• What are the limitations on civil liberties and rights?
• How does the Fourteenth Amendment help protect civil liberties?
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US Government: Principles in Practice
Chapter 10
Political Parties and Democracy
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US Government: Principles in Practice
Chapter 10
The Bill of Rights
A firm commitment to gain personal freedoms drove American colonists to break from Great Britain in
the Revolutionary War. The colonists were trying to protect their rights, including “Life, Liberty, and the
pursuit of Happiness.” Eventually this quest led to the creation of the Bill of Rights.
After Independence
• States adopted own constitutions, most of which protected liberties
• 1787: delegates gathered to draft new national constitution, but there was little talk of
protecting individual rights until end of convention
• George Mason wrote Virginia Declaration of Rights, proposed including bill of rights; others
argued state constitutions enough to protect rights
• Mason’s proposal defeated; few specific protections of individual rights included in
Constitution
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US Government: Principles in Practice
Chapter 10
Protecting Constitutional Rights {continued}
The Ten Amendments
• To win ratification of Constitution, supporters agreed to add bill of rights as soon as new
national government met
— James Madison began drafting amendments
— Some feared listing individual rights might imply government would protect
only those rights
• Amendment added stating that listing specific rights did not mean other rights denied to
the people
• December 1791: 10 amendments became part of Constitution
— Civil liberties: basic freedoms to think and act; all people have them;
protected from government abuse
— Civil rights: rights of fair and equal status, treatment, right to participate in
government—though these rights not originally guaranteed for all
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US Government: Principles in Practice
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US Government: Principles in Practice
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US Government: Principles in Practice
Chapter 10
Reading Check
Summarizing
List the sequence of events that led to the creation of the Bill of Rights.
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US Government: Principles in Practice
Chapter 10
Reading Check
Summarizing
How is public opinion related to public policy?
Answer(s): independence from Britain declared, states adopt constitutions, new national
Constitution drafted, a bill of rights is promised during the ratification battle, Constitution
ratified, Bill of Rights ratified
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Chapter 10
Limits on Civil Liberties and Rights
The Bill of Rights sets limits on government, but people do not have complete freedom to do
whatever they choose. To protect the common good, there are limits on individual liberties
and rights.
When Rights Conflict
• Framers: ideal government one that limited liberties as little as possible
• Personal freedoms limited when one person’s exercise of a freedom harms another person
• Supreme Court has examined limits of different constitutionally protected freedoms over
the years, continues to do so
• Example: government can limit free speech in wartime when that speech might aid
enemy—such as publishing information about tactics of soldiers
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Chapter 10
The Role of the Courts
• Balancing protection of civil liberties a challenge for government
• Government maintains balance through courts
• Courts cannot bring action on their own; only issue rulings when cases brought before
them
• Early on many who needed rights protected had no access to court system
• Most Supreme Court cases protecting civil rights occurred after early 1900s
• Some cases came through actions of interest groups like National Association for the
Advancement of Colored People (NAACP), American Civil Liberties Union (ACLU), Mexican
American Legal Defense and Education Fund (MALDEF)
• Groups’ involvement in cases had important impact on courts’ decisions about
liberties, rights
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Chapter 10
Reading Check
Summarizing
Why are individual liberties and rights sometimes limited?
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US Government: Principles in Practice
Chapter 10
Reading Check
Summarizing
Why are individual liberties and rights sometimes limited?
Answer(s): to protect other citizens and the nation
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Chapter 10
Civil Liberties and the Fourteenth Amendment
The Bill of Rights was intended to limit the actions of the federal government. This does not mean
that state and local governments can deny individuals their civil liberties and rights. The Supreme
Court has ruled that most Bill of Rights protections apply to state and local governments as well.
The Due Process Clause
• 14th Amendment: intended to protect rights of formerly enslaved African Americans after
the Civil War
• Forbade states from passing laws to deprive any of “life, liberty or property without due
process of law”—following established legal procedures
• Supreme Court says 14th Amendment’s due process clause guarantees Bill of Rights applies
to states
• Incorporation doctrine holds that certain protections are essential to due process of law,
therefore states cannot deny protections to the people
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Chapter 10
Key Cases
• Process of incorporation found in number of
Supreme Court cases
• Chicago, Burlington & Quincy Railroad
Company v. Chicago—required states to give
owners fair compensation when taking
private property
• 1920s: flurry of 1st Amendment freedom
cases
• Gitlow v. New York: Court agreed New
York State could forbid man from plotting
to overthrow government, but states must
respect freedom of speech
• 1931, Near v. Minnesota: Court incorporated
freedom of press
• 1937, DeJonge v. Oregon: incorporated
freedom of assembly
• 1947, Everson v. Board of Education: limits
against establishment of religion
• Multiple rulings incorporating other
amendments
• Court has not incorporated all of Bill of
Rights into 14th Amendment
• Incorporating many rights has proved
important for protection of rights, liberties
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US Government: Principles in Practice
Chapter 10
Reading Check
Summarizing
How has the incorporation of the Bill of Rights into the Fourteenth Amendment
affected the protection of civil liberties?
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Chapter 10
Reading Check
Summarizing
How has the incorporation of the Bill of Rights into the Fourteenth Amendment
affected the protection of civil liberties?
Answer(s): It has extended the protections by applying the Bill of Rights to the state
governments.
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Chapter 10
Section 2 at a Glance
First Amendment Freedoms
• The First Amendment protects five freedoms that are fundamental to the American concept
of liberty: religion, speech, press, assembly, and petition.
• Government may not act to establish an official religion, support one religion over another, or
tell people what they must believe in matters of religion.
• The First Amendment gives every person the right to express his or her opinion. While this
guarantee protects unpopular speech, free expression is not unlimited.
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Chapter 10
First Amendment Freedoms
Main Idea
The First Amendment protects five fundamental freedoms that are central to the American
notion of liberty: the freedoms of religion, speech, the press, assembly, and petition.
Reading Focus
• How does the First Amendment guarantee religious freedom?
• What are the guarantees of and limits on the freedoms of speech and of the press?
• What are the guarantees of and limits on the freedoms of assembly and petition?
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US Government: Principles in Practice
Chapter 10
The First Amendment
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Religious Freedom
Chief among the freedoms guaranteed by the First Amendment is the freedom of religion.
• Central factor in development of United States
• Many came to colonies for freedom to practice faith without discrimination faced in home
countries.
• First Amendment forbids government from establishing official religion, and guarantees
people’s right to “free exercise” of own religion
The Establishment Clause
• Establishment clause declares that government cannot take actions to create official
religion or support one religion over another.
• Through incorporation doctrine, state governments face same prohibition
• Separation of church and state—how separated should they be?
• Religious displays on public property? Public money used to support religious schools?
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Public Displays
• Court issue: legality of government-sponsored religious displays
• 1984, Lynch v. Donnelly: Supreme Court ruled that acknowledging religion in Christmas
display did not necessarily mean government promotion of it
• 2005: two 5–4 Supreme Court decisions regarding Ten Commandments
• Two Kentucky courthouses sued for displaying copies of Ten Commandments along with
other historical documents including Constitution
• Kentucky case ruled unconstitutional—focused excessively on religious aspects of Ten
Commandments
• Texas sued for stone marker of Ten Commandments on state capitol grounds
• Texas case ruled constitutional—marker part of historical, educational display, did not
primarily promote a religion
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Religion and Education
• First Supreme Court case exploring limits of establishment clause based on educational
issues
• 1947, Everson v. Board of Education: Court upheld New Jersey plan to use public money to
bus students to private schools
• Did not violate establishment clause because did not single out students attending religious
schools
• 1962, Engel v. Vitale: Court said public school prayer violated establishment clause even
though it was not based on specific religion
• 1971, Lemon v. Kurtzman: established Lemon Test, law must meet all three standards in
order to be found constitutional:
— Must have secular purpose
— Major effects must neither advance nor inhibit religion
— Must not encourage “excessive government entanglement with religion”
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Free Exercise of Religion
• Free exercise clause guarantees each
person right to hold any religious
beliefs they choose
• Government cannot tell person what
he/she must believe
• However, religious practices can be
limited in some cases
• 1990, Employment Division of
Oregon v. Smith: government can
punish illegal drug use even if drug
use part of religious practice
• 1878, Reynolds v. United States:
Court ruled government could ban
Mormon practice of polygamy
• Laws regulating behavior can be
constitutional as long as laws neutral,
do not target specific religious group
• 1940, Minorsville School District v.
Gobitis: upheld expelling child from
public school for refusing to salute flag,
recite Pledge of Allegiance
• 1943: Court reversed self when
Jehovah’s Witnesses were assaulted
during World War II
• Some court rulings uphold religious
freedom when state laws cause
harmful consequences to members of
religious groups
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US Government: Principles in Practice
Chapter 10
Reading Check
Identifying the Main Idea
What two main guarantees regarding religion are protected by the First Amendment?
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US Government: Principles in Practice
Chapter 10
Reading Check
Identifying the Main Idea
What two main guarantees regarding religion are protected by the First Amendment?
Answer(s): Government cannot establish an official religion, nor can it prevent people from
holding any religious beliefs they choose.
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US Government: Principles in Practice
Chapter 10
Freedom of Speech and of the Press
The First Amendment forbids Congress from making any law abridging freedom of speech or the
press; but the Supreme Court has ruled that government may place limits on these freedoms,
especially when issues of national security are concerned.
Why Freedom of Speech and of the Press?
•
•
•
•
•
Decisions in U.S. government made by representatives of people
People must have access to full range of opinions, information
Must be able to discuss, criticize government without fear of punishment
Open meeting laws require government to act in public
Freedom of Information Act: federal government must release most documents to press,
public on request
• Protecting freedom of speech, press challenging in cases of unpopular ideas
• First Amendment exists especially to protect such ideas
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Chapter 10
Limits on Freedoms
• Limits to protection of even unpopular
ideas
• Government can limit speech, printed
material judged obscene
• False advertising also outlawed
• Freedom of speech, press does not give
person right to knowingly harm another
• Constitution does not protect defamation,
false statements that harm another person
— Slander: spoken defamatory statement
— Libel: defamation in print
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• Individuals who believe selves to be
slandered or libeled may take legal action
• 1964, New York Times Co. v. Sullivan:
public officials have fewer legal
protections against libel than private
citizens
• Involved ad in New York Times describing
racial discrimination in Alabama
• Supreme Court rejected libel suit
• Court: to be libelous, false statement
about public official must demonstrate
“actual malice”
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US Government: Principles in Practice
Chapter 10
Limits on Freedoms {continued}
• Government may limit First Amendment freedoms in name of national security, to prevent
treason, sedition
• Treason: crime of making war against United States or giving “aid and comfort” to its
enemies
• During wartime certain speech or writings may be treasonous, such as publishing
information about location, tactics of American forces
• Sedition: legal term for speech, actions that inspire revolt against government
• Courts have upheld laws banning seditious speech
• Attempts to define seditious speech, analyze whether or not it has been protected by First
Amendment, have caused much controversy
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Chapter 10
The Alien and Sedition Acts
• 1798: United States on verge of war with France
• Federalist Party controlled presidency; Congress passed Alien and Sedition Acts; intended
to protect country from domestic dissent during war
• Supposedly outlawed “false, scandalous, and malicious” statements about U.S. government
•
•
•
•
In reality, new laws designed to silence Federalists’ rivals, Democratic-Republicans
1800: anger over acts brought about defeat of President John Adams
Three of four acts later repealed or allowed to expire
One, Alien Enemies Act, still in effect; allows president to deport resident aliens if their
home countries at war with United States
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Chapter 10
A “Clear and Present Danger”
The Ten Amendments
• World War I, Congress passed Espionage Act, Sedition Act—targeting criticism of
government, interference with war effort
• 1919, Schenck v. United States: Court upheld conviction of man charged with interfering
with war effort by publishing flyer urging men to refuse to serve in military
• Oliver Wendell Holmes wrote Schenck decision
— Established idea that speech can be limited if it creates “clear and present
danger” of an outcome that government has right to prevent
— Later changed view, argued for specific definition of dangerous speech
• 1927, Whitney v. California: state has power to punish those whose words might encourage
crime, disturb peace, harm public welfare
• Eve of U.S. entry into World War II
— Outlawed calling for forceful overthrow of United States
— Also outlawed organizing, joining group with such views
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Chapter 10
The First Amendment and the Media
• First Amendment also protects freedom of press
• Acknowledges importance of free media in democratic society
• Government has tried to balance need for media freedom, rights of others, issues of
national security
• Radio, television broadcasters have fewer First Amendment protections than print media;
government regulates public airwaves
• Certain language and content limited or prohibited
•
•
•
•
Cable systems do not use public airwaves, have greater freedom
Internet also less subject to government regulation
Trying to limit pornography on Internet largely unsuccessful
1997, Reno v. American Civil Liberties Union: Court rejected law seeking to regulate Internet
pornography, in part because users not likely to encounter offensive content by accident—
ruled law violated First Amendment’s guarantee of free speech
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Prior Restraint
Another freedom of press issue is prior restraint: government action that seeks to prevent
materials from being published
1931, Near v. Minnesota: Court ruled prior restraint almost always unconstitutional
Someone could be punished if law broken, but not if officials believed law might be violated
in the future
• 1971, New York times Co. v. United States: President Richard Nixon tried to stop New York
Times publication of Pentagon Papers, classified documents about Vietnam War policy
• White House argued publication of papers would threaten national security
• In reality, publication would reveal that U.S. officials had long misled public about war
• Court ruled government failed to prove need for prior restraint; Pentagon Papers were
published
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Chapter 10
Symbolic Speech
• Supreme Court has granted some First
Amendment protections to symbolic
speech: communication of ideas through
symbols, actions
• Protected as long as speech does not pose
major threat to property, public order
• 1931, Stromberg v. California: Court
overturned conviction of woman
displaying red flag as symbol of opposition
to organized government
• Ruled California law overly vague,
restricted free speech
• 1969, Tinker v. Des Moines Independent
Community School District: Supreme Court
ruled Iowa school could not prevent
students from wearing black armbands as
Vietnam War protest
• 1989, Texas v. Johnson: burning American
flag as part of political protest protected act
of free speech
• Cannot prohibit expression of idea simply
because society finds idea offensive,
disagreeable
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US Government: Principles in Practice
Chapter 10
Reading Check
Drawing Conclusions
Why are freedom of speech and freedom of the press so important in our democratic system?
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US Government: Principles in Practice
Chapter 10
Reading Check
Drawing Conclusions
Why are freedom of speech and freedom of the press so important in our democratic system?
Answer(s): possible answer—They allow citizens access to a wide range of ideas about politics
and encourage discussion of government policies and active participation in government.
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Chapter 10
Freedoms of Assembly and Petition
The Constitution includes protections for those convicted of crimes. The Framers were anxious to
protect the American people from possible abuse of government powers.
• People have right to meet together, express views peacefully
• People have right to make opinions known to government through petitions designed to
force government to consider issue, allow vote
Landmark Cases
• 1937, DeJonge v. Oregon: ruling recognized right to peaceably assemble as basic right,
incorporated into 14th Amendment making it illegal for states to deny this right
• 1963, Edwards v. South Carolina: students denied right to assemble, petition for redress of
grievances; if assembly is peaceful, cannot be stopped simply because bystanders ARE
disorderly
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Limits on Assembly and Petition
• In general, government cannot limit right of assembly, petition based on protesters’
points of view
• Only in extreme cases—protesters encouraging violent acts—does government
have strong reason to limit First Amendment freedom
• Governments can place reasonable restrictions on time, manner, place of gatherings
• Citizens can be required to obtain permit to hold demonstration
• 1971, New York times Co. v. United States: President Richard Nixon tried to stop New York
Times publication of Pentagon Papers, classified documents about Vietnam War policy
• White House argued publication of papers would threaten national security
• In reality, publication would reveal that U.S. officials had long misled public about war
• Court ruled government failed to prove need for prior restraint; Pentagon Papers were
published
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Freedom of Association
• Freedom of association—the right to join
with others, share ideas, work toward
common purpose
• Phrase does not appear in First Amendment
• Supreme Court has determined freedoms
guaranteed by First
Amendment establish right to freedom of
association
• 1958, National Association for the
Advancement of Colored People v.
Alabama ex rel. Patterson
• Alabama had tried to force NAACP to give
state list of members
• NAACP feared publicizing names would lead
to violence, harmful consequences
• Supreme Court agreed: forcing release of
members’ names would harm freedom to
associate
• Found Alabama’s actions violation of
Constitution
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Reading Check
Drawing Conclusions
What are the purposes of the freedoms of assembly and petition?
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US Government: Principles in Practice
Chapter 10
Reading Check
Drawing Conclusions
What are the purposes of the freedoms of assembly and petition?
Answer(s): allows people to meet together, express their ideas and make their views known to
the government
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Debating the Issue: Prayer in Public Schools
Does the Constitution permit prayer in public schools?
The First Amendment states that “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.” This protection of religious freedom both forbids
the government from establishing an official religion and guarantees Americans’ right to freely
exercise their own religious beliefs. But what about prayer in public schools? Some Americans
believe that allowing prayer in public schools is an unconstitutional government support for
religion. Others believe that the right to pray in public schools is an essential religious freedom.
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Chapter 10
Section 3 at a Glance
Protecting Constitutional Rights
• The Second Amendment protects the right to keep and bear arms. The Third and Fourth
Amendments guard the rights to security of home and person.
• The Supreme Court has interpreted the Constitution as protecting a right to privacy.
• The Constitution’s guarantees of due process require that government act in accordance with
fair and public laws in whatever it does.
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Protecting Individual Liberties
Main Idea
A key purpose of the Bill of Rights is to protect individuals from government abuses. Several
amendments limit the government’s power and protect individual rights against government
actions.
Reading Focus
•
•
•
•
What are the purposes of and limits on the right to keep and bear arms?
How does the Bill of Rights guarantee the security of home and person?
How has the right to privacy developed?
How and why does the Constitution guarantee due process of law?
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Limits on Government
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The Right to Keep and Bear Arms
• Second Amendment, one of most heavily debated amendments today
• Included to protect rights of states to form militias, ease fears of those worried about
standing army controlled by federal government
— Some believe this protects individual right to own all kinds of firearms
— Others believe amendment only protects rights of states to form militias
• Only one major Supreme Court ruling
• 1939, United States v. Miller: Court upheld law placing restrictions on possession of some
types of guns often used by criminals
• Said amendment protected only guns that might be used by people in militia
• Since Miller, Supreme Court has not addressed issue of gun control
— Some lower courts have made decisions on gun control laws
— Others believe amendment only protects rights of states to form militias
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Reading Check
Summarizing
What is the controversy over the Second Amendment?
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US Government: Principles in Practice
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Reading Check
Summarizing
What is the controversy over the Second Amendment?
Answer(s): Some believe it protects only the rights of states to form militias; others believe it
allows citizens to own all types of firearms.
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Security of Home and Person
The Third Amendment
• British military sometimes quartered—housed—soldiers in colonists’ homes
• Sometimes paid for food, shelter; often did not
• Declaration of Independence listed quartering of troops among many American complaints
against British
• Third Amendment forbids government from housing troops in private houses during times
of peace without consent of owner
• During war, troops can only occupy private houses as prescribed by law
• Military forces cannot simply take over house without due process
Today the Third Amendment is largely forgotten by most Americans. Forced quartering of troops
has never been the subject of a Supreme Court case.
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Security of Home and Person
{continued}
The Fourth Amendment
• Fourth Amendment also result of hated
British practice in colonial times: use of
writs of assistance
• Writ, a legal document that gave British
authorities wide power to search private
homes, businesses
• Could conduct searches without probable
cause, strong likelihood they would find
evidence of a crime
• Fourth Amendment written to protect
Americans against such abuses, has proved
to be important guarantee of personal
security
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Search and Seizure
• Fourth Amendment also forbids
“unreasonable searches and seizures”
• Sets terms for issuing search warrant,
document giving police legal authority to
search private property
• Government can issue search warrant only
after authorities have proved to a judge
there is probable cause for a search
• Warrant must describe what will be
searched, seized
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• Officials an enter in emergency without warrant, must follow strict rules
• Only search for evidence directly related to crime being investigated
• May seize other evidence only if it is in “plain view”
• 1987, Arizona v. Hicks: “plain view” did not extend to serial numbers
• 1914, Weeks v. United States: evidence obtained illegally may not be used against person in
court; known as exclusionary rule
• 1961, Mapp v. Ohio: conviction overturned because evidence seized in illegal search
• Fourth Amendment does not always require police to obtain warrant
• Person’s right to be free does not reach outdoors
• Police can search through person’s trash without warrant
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Security of Home and Person
{continued}
Pedestrians and Cars
Legally speaking, stopping a person considered a seizure
Police can stop someone on basis of reasonable suspicion
Once stopped, police may search person if there is concern for safety of police officer, others
To arrest, police must be able to show probable cause
•
•
•
•
Fourth Amendment relates to stopping, searching vehicles
Can stop, search autos without warrant under some circumstances
Can stop drivers observed committing traffic violations
May seize evidence in plain view, search any place within reach or control of vehicle’s
occupants
• In some cases may also search auto’s trunk without warrant
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Security of Home and Person
{continued}
Electronic Communications
• Fourth Amendment protects person’s “papers”
• Courts have had to decide if this applies to new means of communication—telegraph,
telephone, Internet
• 1928, Olmstead v. United States: wiretapping not illegal search
• 1967, Katz v. United States: Court reversed self; wiretapping now requires probable cause
warrant
• Post-9/11, USA PATRIOT Act gave law enforcement agencies more freedom to search
telephone, e-mail communications, business, medical, library records
• 2007: parts of act struck down; gave officials too much power to search phone, Internet
records without court oversight
• 2005: NSA secret program monitoring communications prompted debate of violations
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Chapter 10
Security of Home and Person
{continued}
Testing for Drugs
Courts have held private employers have wide freedom to test their workers to discourage
illegal drug use
Governments face limits in ability to test their workers
Can test employees whose jobs may affect public safety—pilots, drivers
Testing for Drugs
Supreme Court: public school students have fewer Fourth Amendment rights than general
population
Court has ruled school’s need to ensure safe learning environment can override privacy
concerns
School officials may search for drugs, weapons, randomly test student athletes for drugs,
require other students participating in extracurricular activities be tested for drugs
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Chapter 10
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Reading Check
Summarizing
Third Amendment—by preventing the government from quartering troops in private homes;
Fourth Amendment—by forbidding unreasonable searches and seizures
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US Government: Principles in Practice
Chapter 10
Reading Check
Summarizing
Third Amendment—by preventing the government from quartering troops in private homes;
Fourth Amendment—by forbidding unreasonable searches and seizures
Answer(s): Third Amendment—by preventing the government from quartering troops in
private homes; Fourth Amendment—by forbidding unreasonable searches and seizures
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US Government: Principles in Practice
Chapter 10
The Right to Privacy
Throughout this section there have been references to the Supreme Court’s protection
of a right to privacy. Yet the Constitution makes no explicit reference to such a right.
Where does this right come from?
Implied
Zones of Privacy
• Fourth Amendment implies people can
expect not to have their privacy violated by
unreasonable searches
• Some argue right to privacy should be
considered part of concept of liberty
guaranteed by due process clauses of Fifth,
Fourteenth Amendments
• 1965, Griswold v. Connecticut
• Court embraced right to privacy, stating
several amendments create “zones of
privacy,” including right of married couples
to make decisions about birth control
• 1973, Roe v. Wade: citing right to privacy,
Court held state law could not deny
woman right to abortion in first three
months of pregnancy
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Chapter 10
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US Government: Principles in Practice
Chapter 10
Reading Check
Drawing Conclusions
Where does the concept of the right to privacy come from?
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US Government: Principles in Practice
Chapter 10
Reading Check
Drawing Conclusions
Where does the concept of the right to privacy come from?
Answer(s): implied in the Fourth, Fifth, and Fourteenth Amendments
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US Government: Principles in Practice
Chapter 10
Due Process of Law
The concept of due process is key to the protections provided by the Bill of Rights. Due process
requires that government act fairly and reasonably in accordance with established laws. Due
process limits government’s police power, or its ability to regulate behavior for the common good.
Procedural Due Process
Substantive Due Process
• Procedural due process: certain procedures
must be followed before punishing person
• 1979, Mackey v. Montrym: state can take
away driver’s license if driver refused
breath test; penalizing without finding
guilty
• Getting drunk drivers off road strong
enough reason to deny due process
• Substantive due process: concerns
whether laws themselves are fair and just
• Based on idea that people have rights that
cannot be taken away, even by laws
passed properly
• 1873, Slaughterhouse Cases: dissenting
opinion became basis for later rulings on
due process
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US Government: Principles in Practice
Chapter 10
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US Government: Principles in Practice
Chapter 10
Reading Check
Contrasting
What is the difference between procedural and substantive due process?
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US Government: Principles in Practice
Chapter 10
Reading Check
Contrasting
What is the difference between procedural and substantive due process?
Answer(s): Procedural due process involves issues concerning the fairness of legal procedures;
substantive due process involves the fairness of the laws themselves
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US Government: Principles in Practice
Chapter 10
Section 4 at a Glance
Crime and Punishment
• The Constitution protects rights of people accused of crimes, including the right to a fair trial.
• People convicted of crimes also have certain rights. The Constitution prohibits government
from imposing excessive fines or cruel and unusual punishments.
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US Government: Principles in Practice
Chapter 10
Crime and Punishment
Main Idea
The Constitution contains many features that help ensure that people accused of a crime
receive fair and reasonable treatment—from arrest to trial to punishment.
Reading Focus
•
•
•
•
How does the U.S. justice system address both civil law and criminal law?
How does the Constitution guarantee the rights of those accused of a crime?
What are the major constitutional guarantees for ensuring fair trials?
How does the Constitution address the punishment of persons convicted of crimes?
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US Government: Principles in Practice
Chapter 10
Protections for the Accused
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US Government: Principles in Practice
Chapter 10
The U.S. Justice System
The basic freedoms to think and to act as we choose are guarded by the U.S. justice system, which
also provides protections for persons accused of crimes and for those convicted of crimes. The
justice system seeks fair and impartial outcomes for disputes of all kinds. It follows rules and
guidelines to resolve lawsuits, criminal trials, and other disputes.
Types of Law
•
•
•
•
•
Law commonly classified into two categories
Civil law covers private disputes between people over property, relationships
People who violate civil law often fined, otherwise punished, not imprisoned
Criminal law is system for dealing with crimes, punishments
People who violate criminal law may be fined, imprisoned, even executed
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Chapter 10
The U.S. Justice System {continued}
Civil Law
• Several categories: contracts; tort law;
property law; family law
• Contract: legal agreement between two or
more parties; verbal or written, but all
legally binding
• Tort law involves actions harmful to
another person; medical malpractice, civil
rights violation
• Property law involves purchase, sale of
property; house, auto
• Family law, marriage, divorce, child custody
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Civil Lawsuits
• Civil law case called lawsuit; plaintiff
brings suit against defendant, seeking
damages, compensation
• Alternative dispute resolution sometimes
sought rather than trial; mediation,
arbitration, negotiation
• Basic steps of trial: plaintiff hires lawyer,
files complaint; seek to settle before trial;
trial goes forward; trial heard by jury, or
judge; jury, judge issues ruling; decisions
may be appealed
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Chapter 10
The U.S. Justice System {continued}
• Criminal Law
— Deals with crime, offenses against public
— Crime occurs when person breaks local, state, federal law
— Misdemeanor crimes, relatively minor offense; traffic, petty theft
— Felony crimes, more serious; murder, sexual assault, grand theft
• Criminal Case Processes
— 5th Amendment guarantee: cannot face trial for most federal crimes without
first facing grand jury
— Grand jury decides if enough evidence to charge person with crime
— Issues formal complaint, indictment
— Accused arrested, taken into custody
— Pretrial hearings
— Plea entered
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US Government: Principles in Practice
Chapter 10
The U.S. Justice System {continued}
• Criminal Case Processes (cont’d.)
— Bail—money pledged by accused as guarantee he/she will return for
trial—may be set
— Plea bargain may be reached
— If trial proceeds, complex process begins
• Jury Trial
— Jury selection comes first
— Prosecution and defense each offer evidence, witnesses
— Judge or jury decides case
— Either side may appeal decision to higher court
— If defendant found guilty, sentencing takes place at separate hearing
— Sentences depend on severity of crime: probation, prison time,
capital punishment—punishment by death—most severe sentence
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US Government: Principles in Practice
Chapter 10
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US Government: Principles in Practice
Chapter 10
Reading Check
Comparing and Contrasting
In the U.S. justice system, how are civil and criminal cases similar and different?
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US Government: Principles in Practice
Chapter 10
Reading Check
Comparing and Contrasting
In the U.S. justice system, how are civil and criminal cases similar and different?
Answer(s): Both may be settled before trial or in a courtroom, and both involve punishments.
Civil cases cover disputes between people over property and relationships; criminal cases
involve people accused of committing crimes.
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US Government: Principles in Practice
Chapter 10
Rights of the Accused
In our justice system, we presume that people accused of crimes are innocent until proven guilty
beyond a reasonable doubt. Balancing the rights of the accused with the need to protect society
from criminals is a major challenge.
Habeas Corpus
• Writ of habeas corpus, legal order requiring imprisoned person to be brought before court
so judge may determine whether or not imprisonment is legal
• Important protection against government abusing police power
• Has received much attention in aftermath of 9/11
• Many suspected terrorists held several years after capture with no formal hearing, judicial
process
• 2004, Hamdi v. Rumsfeld and Rasul v. Bush: unlawful enemy combatants do have limited
rights to challenge imprisonment
• 2006: Congress passed law establishing tribunal system
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Chapter 10
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US Government: Principles in Practice
Chapter 10
Rights of the Accused {continued}
Habeas Corpus
• Fifth Amendment includes guarantee people cannot be tried for most federal crimes
without first being indicted by grand jury
• Some states do not have grand jury system
• Criminal charges brought by prosecutor in an information
Self-Incrimination
• Fifth Amendment protects accused from witnessing against him/herself
• Protection covers any government proceeding that might lead to criminal charges; covers
only spoken testimony
• Government can get people to testify against selves by granting immunity
• 1966, Miranda v. Arizona: questioning suspects without giving right to consult with
attorney violates Fifth Amendment
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Chapter 10
Self-Incrimination (cont’d.)
• Miranda decision requires police to read Miranda warnings to suspects
• Miranda warnings, list of constitutional rights: right to remain silent; anything they say may
be used against them in court; right to have attorney; court-appointed attorney provided if
they cannot afford attorney
• Police failure to advise of Miranda rights may result in courts refusing to consider
confession as evidence
• Miranda warnings controversial
• Critics: some guilty people go unpunished because police did not inform of rights
• Supporters: warnings protect innocent people from being tricked, forced into confessing to
crimes they did not commit
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Chapter 10
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US Government: Principles in Practice
Chapter 10
Rights of the Accused {continued}
Bail
• Eighth Amendment: “excessive bail shall not
be required”
• Not all must be allowed to post bail
• Some charged with crimes like murder not
allowed to post bail
Ex Post Facto Laws
• Ex post facto laws apply to events in past;
outlawed by Constitution
• If not prohibited, such laws would make it
possible to punish person for actions legal at
time committed
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Bills of Attainder
• Bill of attainder declares person guilty;
takes away right to trial
• Constitutionally prohibited from being
passed by states, Congress as violation of
separation of powers
Victims’ Rights
• Some feel Constitution does not sufficiently
protect victims of crimes
• Victims’ rights laws defend right to be
treated with fairness, respect; be present at
court proceedings, informed of outcome of
trial
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Chapter 10
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US Government: Principles in Practice
Chapter 10
Reading Check
Making Inferences
Why do persons accused of crimes need special protection against possible government
abuse?
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US Government: Principles in Practice
Chapter 10
Reading Check
Making Inferences
Why do persons accused of crimes need special protection against possible government
abuse?
Answer(s): possible answer—to prevent innocent people from being punished
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US Government: Principles in Practice
Chapter 10
Landmark Supreme Court Cases Miranda v. Arizona (1966)
Why It Matters:
Miranda v. Arizona protects the rights of criminal suspects during police interrogations.
Suspects in police custody must be informed of their rights before questioning.
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Chapter 10
Guarantees of a Fair Trial
The Constitution provides many safeguards for the rights of those accused of crimes. Portions of
the Fifth, Sixth, Seventh, and Eighth Amendments, as well as Article I, guarantee the basic
courtroom protections that define the American legal system.
Speedy and Public Trial
• Sixth Amendment: “accused shall enjoy the right to a speedy and public trial”
• Innocent person may spend less time in jail, witnesses’ memories fresher, testimony more
accurate
• Public trial prevents abuses of law, allows public to monitor proceedings
• Press access to courtroom controversial; may influence jurors
• Supreme Court: televising trial does not prevent fair trial
• Courts have power to limit public access to courtrooms
• May close trial to public to ensure fair trial, protect the public interest
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Chapter 10
Trial by Jury
• 6th Amendment: right to trial by jury, incorporated into 14th Amendment
• Trial jury made up of 12 jurors; takes place in district in which crime took place
• Bench trial: one in which judge alone hears trial; usually minor criminal trials
Right to an Adequate Defense
• Defendants must be informed of charges against them; be confronted with, have chance to crossexamine, witnesses against them
• Adequate legal representation guaranteed; right to attorney; lawyer’s failure to meet professional
standards violation of defendant’s rights
Double Jeopardy
• Double jeopardy: no one can be made to stand trial twice for same offense
• Incorporated into 14th Amendment, but not double jeopardy if jury fails to reach verdict
and government tries case again
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Chapter 10
Reading Check
Summarizing
How does the Bill of Rights help ensure a fair trial for defendants?
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US Government: Principles in Practice
Chapter 10
Reading Check
Summarizing
How does the Bill of Rights help ensure a fair trial for defendants?
Answer(s): by guaranteeing a speedy and public trial, a trial by jury, adequate defense for the
accused, protection from double jeopardy
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Chapter 10
Punishment
The Constitution includes protections for those convicted of crimes. The Framers were anxious to
protect the American people from possible abuse of government powers.
• Excessive Fines
— Eighth Amendment: prohibits government from imposing excessive fines
— Limit applies only to government, not jury awards in civil cases
• Cruel and Unusual Punishments
— Eighth Amendment bans cruel and unusual punishments
— Supreme Court has never defined “cruel and unusual”
— Debate has figured into numerous cases involving death penalty
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Chapter 10
Punishment {continued}
Capital Punishment
• Death penalty practiced at time Bill of
Rights written
• Supreme Court has consistently ruled
capital punishment constitutional
• Number of crimes for which capital
punishment applied reduced
• Court focused on just application of
penalty
•
•
•
•
1972, Furman v. Georgia
1976, Gregg v. Georgia
Most states allow death penalty
Many Americans concerned about how
fairly penalty is applied
• New technology has helped prove
innocence of some convicted criminals
Lethal injection has become the subject of controversy, particularly over whether or not it
constitutes cruel and unusual punishment.
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Chapter 10
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US Government: Principles in Practice
Chapter 10
Reading Check
Summarizing
What issues involving capital punishment are controversial?
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US Government: Principles in Practice
Chapter 10
Reading Check
Summarizing
What issues involving capital punishment are controversial?
Answer(s): possible answer—Is it an effective crime deterrent? Is it cruel and unusual
punishment? Is it being applied fairly?
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Chapter 10
We the People: The Citizen and the Constitution
Fundamental Rights and the Doctrine of Incorporation
Next to the preservation of the Union and the abolition of slavery, the most important
constitutional development of the post–Civil War era was the passage of the Fourteenth
Amendment. Originally intended to protect the rights of newly freed African Americans, the
amendment has become a principal guarantee of the fundamental rights of all Americans, as
important as the Bill of Rights itself.
• What is procedural due process?
• What is substantive due process?
• What is the doctrine of “incorporation”?
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Chapter 10
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