Mr. Tuccillo
Chapter 4
AP Government
Civil Liberties and Public Policy
Objectives:
1. Students will be able to analyze why people who are the advocates of rights in theory
often hesitate when it comes times to put those rights into practice.
2. Students will be able to examine how decisions of the Supreme Court have extended
specific provisions of the Bill of Rights to the states as part of the incorporation doctrine.
3. Students will be able to describe how the two constitutional statements about religion
and government-the establishment clause and the free exercise clause – may sometimes
conflict.
4. Students will be able to examine what the First Congress may have intended by the
terms establishment and free exercise of religion.
5. Students will be able to establish why the Supreme Court will usually not permit prior
restraint on speech and press.
6. Students will be able to explain why it has been difficult for the courts to clearly
define which types of materials are considered to be obscene.
7. Students will be able to differentiate between freedom of speech and related concepts
like symbolic speech and freedom of expression.
8. Students will be able to understand the conflict that can occur between free speech and
public order.
9. Students will be able to determine how essential rights such as the right to a fair trial
can conflict with other rights such as the right to a free press.
10. Students will be able to identify the two facets of freedom of assembly and explain
how they may conflict with other societal values.
11. Students will be able to explain how specific provisions of the Bill of Rights have
been used to extend basic rights to defendants in criminal trials.
12. Students will be able to ascertain how concepts such as a right to privacy can be
inferred or implied from the Bill of Rights.
13. Students will be able to explain why civil liberties are seen as an individual’s
protection against the government.
14. Students will be able to establish how American government is both democratic and
constitutional.
Outline:
I. The Bill of Rights-Then and Now
A. Civil Liberties: the legal constitutional protections against government
1. they are essential for a democracy
2. Bill of Rights: the first ten amendments to the constitution, that set
down American’s civil liberties (ratified in 1791)
a. the courts are the arbiters of these liberties because they
determine what the Constitution means in the cases they decide
b. although the original Constitution had no bill of rights, the state
made it clear that adding one was a condition of ratification
c. the Bill of Rights was passed when British abuses of the
colonists’ civil liberties were a still fresh and bitter memory
3. political scientists have found that people are supporters of rights in
theory, but their support often falters when it comes time to put those
rights into practice
4. cases become difficult when liberties are in conflict with other
individual or societal values
B. The Bill of Rights and the States
1. The Bill of Rights was written to restrict the powers of the new central
government (every state constitution had its own bill of rights)
2. Barron v. Baltimore, 1833: the Supreme Court held that the Bill of
Rights restrained only the national government, not the states or cities
3. Gitlow v. New York, 1925: Supreme Court decision holding that
freedoms of press and speech are “fundamental personal rights and
liberties protected by the dues process clause of the Fourteenth
Amendment from impairment by the states” as well as the federal
government
a. Fourteenth Amendment, ratified in 1868: included guarantees
of privileges and immunities of citizens, due process of law, and
equal protection of the law, and explicitly applied these guarantees
against the states
4. Incorporation Doctrine: the legal concept under which the Supreme
Court has nationalized the Bill of Rights by making most of its provisions
applicable to the states through the Fourteenth Amendment
a. not everyone agreed with this idea that the 14th Amendment
incorporated parts of the Bill of Rights into state laws; in 1985,
Edwin Meese (then U.S. Attorney General) strongly criticized
Gitlow and called for the disincorporation of the Bill of Rights
b. gradually the Supreme Court applied most of the Bill of Rights
to the states, particularly during the era of chief Justice Earl
Warren in the 1960s
c. so far only the 2nd, 3rd, and 7th Amendments, the grand jury
requirement of the 5th Amendment, and the prohibition against
excessive fines and bail in the 8th Amendment have not been
applied to the states
II. Freedom of Religion
A. First Amendment: the constitutional amendment that establishes the four
great liberties: freedom of the press, of speech, or religion, and of assembly
B. the First Amendment included two statements about religion and government,
commonly referred to as the establishment clause and the free exercise clause
1. sometimes these two clauses come into conflict with each other
C. Establishment Clause: state that “Congress shall make no law respecting and
establishment of religion”
1. this clause clearly prohibits an establishment of a national church in the
United States (a reaction to the religious persecutions that had convinced
many colonists to move to America)
2. it is less clear what else the first Congress intended to be included in
the establishment clause
a. some argue that it meant only that the government may not
favor one religion over another
b. Thomas Jefferson argued that the First Amendment created a
“wall of separation” between church and states, which would
forbid not only favoritism but any support for religion at all
c. debate is very intense over aid to parochial schools (called
parochiaid), which has existed in various forms since the 1960s
3. Lemon v. Kurtzman, 1971: the Supreme Court decision that
established that aid to church-related schools must (1) have a secular
legislative purpose; (2) have a primary effect that neither advances nor
inhibits religion, and (3) not foster excessive government entanglement
with religion
4. 1984 Equal Access Act: Congress made it unlawful for any public
high school receiving public funds to keep student groups from using
school facilities for religious worship if the school opens its facilities for
other students meetings
a. in 1993 the Court required that public schools that rent facilities
to organizations to do the same for religious groups
b. in 1995 the Court held that the University of Virginia was
constitutionally required to subsidize a student religious magazine
on the same basis as other student publications
5. Westside Community School v. Mergens, 1990: the Supreme Court
upheld the 1984 Equal Access Act
6. the line of constitutional acceptability becomes higher when public
funds are used in a more direct way to support education
a. school authorities may not permit religious instructors to come
into the public school buildings during the school day to provide
religious education
1. students can be released from part of the compulsory
school day to receive religious instruction elsewhere
b. 1980 the Court prohibited the posting of the Ten
Commandments on the walls of public classrooms
7. school prayer is perhaps the most controversial religious issue
a. Engel v. Vitale, 1962: Supreme Court decision holding that
state officials violated the 1st Amendment when they wrote a
prayer to be recited by New York’s school children
b. School District of Abington Township, Pennsylvania v.
Schempp, 1963: Supreme Court decision holding that a
Pennsylvania law requiring Bible reading in schools violated the
Establishment Clause of the 1st Amendment
c. the Court felt that the schools should be committed to neutrality
with respect to religion
d. it is not unconstitutional to pray in public schools – students
may pray silently as they wish, the prayers can just not be led,
encouraged by school authorities
e. 1992 – Court said prayer at a public school graduation violated
1st Amendment
f. 2000 – Court held that a student-led prayer before football
games was unconstitutional
g. Wallace v. Jaffree, 1985: Court ruled that periods of time set
up for silent meditation or voluntary prayer were unconstitutional
8. A majority of the public has never favored the Court’s decision on
school prayer
a. many school districts have simply ignored the Court’s ban on
school prayer and continue to allow prayers in their classrooms
b. some religious groups have pushed for a constitutional
amendment permitting prayer in school
9. Fundamentalist Christians have pressed some state legislatures to
mandate teaching of “creation science” as an alternative to evolution
a. 1987 – the Court ruled these laws violate the Establishment
Clause
10. Lynch v. Donelly, 1984 and County of Allegheny v. American Civil
Liberties Union, 1992: recent Court rulings that brought some lowering of
the “wall of separation” by allowing religious scenes to be set up on public
property
a. Christmas trees and a menorah have a secular purpose and
provide little or no benefit to religion
b. Court did say however that a Nativity scene could not be
displayed at a courthouse
D. The Free Exercise Clause
1. people are free to believe in or not believe in whatever they choose
2. problems arise when the free exercise of religious beliefs clash with
society’s other values or laws
a. some religions forbid actions that society thinks are necessary
1. medical treatment, fighting in wars, attending school
b. religions may require actions that society finds unacceptable
1. multiple marriages, use of marijuana
3. the Supreme Court has consistently maintained that people have an
absolute right to believe what they want, but the courts have been more
cautious about the right to practice a belief
a. however, in Wisconsin v. Yoder, 1972: the Court allowed
Amish parents to take their children out of school after the eighth
grade
4. the Court used to need a compelling interest before the government
could even indirectly limit or prohibit religious practices
a. Employment Division v. Smith, 1990: Court decided that state
laws interfering with religious practices but not specifically aimed
at religion are constitutional
1. Smith meant that people could be prosecuted who use
peyote as part of their religious rituals
2. even before this ruling the Court had upheld laws that:
forbid polygamy; denied tax exemptions to religious
schools that discriminate on the basis of race; approved
building a road through ground sacred to some Native
Americans; prohibited a Jewish air force captain from
wearing his yarmulke (Congress later allowed this)
5. Court has allowed the free exercise of religion in: allowing parents to
choose religious schools over public schools; Jehovah’s Witnesses or
members of other religions do not have to participate in public school flagsaluting; people can be conscientious objectors to war on religious
grounds; allowed animal sacrifices
6. Religious Freedom Restoration Act of 1993: Congress attempted to
overturn the Smith decision, but this law was found unconstitutional
III. Freedom of Expression
A. Does “no law” in the 1st Amendment really mean “no law”? The courts have
frequently wrestled with the question of whether freedom of expression (like
freedom on conscience) is absolute
1. Supreme Court Justice Hugo Black believed that the words no law
literally meant that Congress shall make no laws abridging the
fundamental rights of the 1st Amendment
a. The courts have often ruled that there are instances when speech
needs to be controlled, especially when the 1st Amendment
conflicts with other rights (Justice Holmes wrote in 1919 about
yelling fire in a theater)
b. in their attempts to draw the line separating permissible from
impermissible speech, judges have had to balance freedom of
expression against competing values like public order, national
security, and the right to a fair trial
2. The courts have also had to decide what kinds of activities constitute
speech (or press) within the meaning of the 1st Amendment
a. Certain forms of nonverbal communication (like picketing) are
considered symbolic speech and other forms of action are
considered to be actions
b. question of whether hate speech is speech or “fighting words”
not deserving of 1st Amendment protection
1. 1992: Court ruled that legislatures and universities may
not single out racial, religious, or sexual insults or threats
for prosecution as “hate speech” or bias crimes”
B. Prior Restraint: a government’s preventing material from being published
1. the Supreme Court has generally struck down prior restraint of speech
and press
2. Near v. Minnesota, 1931: Supreme Court decision holding that the 1st
Amendment protects newspapers from prior restraint
a. a newspaper had called local officials “grafters” and Jewish
gangsters” and was shut down
3. a writer or speaker can be punished for violating a law or someone’s
rights after publication
4. there are exceptions to the doctrine that prohibits prior restraint
a. Hazelwood School District v. Kuhlmeier, 1988: Court ruled that
a high school newspaper was not a public forum and could be
regulated in “any reasonable manner” by school officials
b. restrictions on the right to publish have also been upheld in the
name of national security
1. usually, however, the courts are reluctant to issue
injunctions prohibiting the publication of material even in
the area of national security
c. New York Times v. United States, 1971: “Pentagon Papers” –
the Nixon administration was unable to obtain an injunction
against the Times that would have prohibited publication of secret
documents pertaining to American involvement in the Vietnam
War
C. Free Speech and Public Order
1. War often brings government efforts to enforce censorship
a. Schenck v. United States, 1919: Justice Oliver Wendell Homes
declared that government can limit speech if it provokes a clear
and present danger of “substantive evils that Congress has a right
to prevent”
b. the Smith Act of 1940 forbade the advocacy of violent
overthrow of the American government
c. Dennis v. United States, 1951: Court upheld the convictions of
Communist party leaders for conspiring to advocate the violent
overthrow of the government – even in the absence of evidence
that they actually urged people to commit specific acts of violence
d. with the supposed threat of communism, the Supreme Court
valued national security over 1st Amendment rights at the time
e. By the 1960s the political climate had changed
1. the Court narrowed the interpretation of the Smith Act
making it more difficult for the government to prosecute
dissenters
2. Yates v. United States, 1957 and Brandenburg v. Ohio,
1969: Court found it permissible to advocate the violent
overthrow of the government in the abstract, but not
actually to incite anyone to imminent lawless action
3. waves of protest over the Vietnam War and unrest over
political, economic, racial, and social issues expanded the
constitutional meaning of free speech
2. today, courts are very supportive of the right to protest, pass out
leaflets, or gather signatures on petitions (as long as it is done in public
places)
a. 1994: Court ruled that cities cannot bar residents from posting
signs on their own property
D. Free Speech and Fair Trials
1. the Bill of Rights is a source of potential conflicts between different
types of freedoms: the Constitutional clearly meant to guarantee the right
to a fair trial as well as the right to a free press, but a trail may not be fair
if the pretrial press coverage makes it impossible to select an impartial
jury
2. journalists seek full freedom to cover all trials: they argue that the
public has a right to know
a. Courts have protected the right of the press during trials and
revoked gag orders, but permitted closed hearings during a pretrial
where it could compromise the defendant’s right to fairness
b. although reporters want trials open to them, they sometimes
defend their right to keep some of their own files secret in order to
protect a confidential source
1. many have gone to jail to protect their sources
c. some state have passed shield laws to protect reporters in
situations where they need to protect a confidential source
1. in most states reporters do not have these rights
d. Branzburg v. Hayes, 1972: Court held that in the absence of
shield laws, the right to a fair trial preempts the reporter’s right to
protect sources
e. Zurcher v. Stanford Daily, 1978: Court decision holding that a
proper search warrant could be applied to a newspaper as well as to
anyone else without necessarily violating the 1st Amendment rights
to freedom of the press
E. Obscenity
1. deciding what is obscene has never been an easy matter
2. public standards vary from time to time, place to place, and person to
person
3. works that some call “obscene” may be “art” to others
4. Roth v. United States, 1957: Supreme Court ruled that “obscenity is
not within the area of constitutionally protected speech or press”
5. Miller v. California, 1973: Supreme Court decision where the Court
tried to clarify what could be classified as obscene, and therefore outside
1st Amendment protection
a. Chief Justice Burger wrote the things were obscene if:
1. the work, taken as a whole, appealed “to a prurient
interest in sex”
2. the work showed “patently offensive” sexual conduct
that was specifically defined by an obscenity law”
3. the work, taken as a whole, lacked “serious literary,
artistic, political, or scientific value”
b. in Miller, the Court felt that decisions on obscenity should be
based on average people (juries) applying contemporary standards
of local–not national-communities
6. some people feel that nothing should be banned when it is restricted
solely for adults
a. many communities have lenient laws for pornography, and it is
difficult to convict people in other areas because the juries do not
see anything wrong with disputed material
7. Court has consistently ruled that states may protect from obscenity
a. the rating system on movies is an example
b. Osborne v. Ohio, 1991: Court ruling upholding a law
forbidding the possession of child pornography
8. the Internet has thrown a new twist into obscenity, allowing for faster,
easier, and more widespread access to obscene material
a. Congress has ruled that the internet is more of a broadcast
medium then it is a printing press and therefore is subject to
government regulation
b. 1996: Congress passed the Communications Decency Act,
banning obscene material and criminalizing the transmission of
indecent speech or images to anyone under 18 years of age
1. 1997 – Court overruled this law saying it was overly
broad and vague and a violation of free speech
2. 1999 – Court did uphold prohibitions on obscene e-mail
and faxes
F. Libel and Slander
1. Libel: the publication of false or malicious statements that damages
someone’s reputation
2. Slander is spoken defamation
3. New York Times v. Sullivan, 1964: Court established the guidelines
for determining whether public officials and public figures could win
damage suits for libel
a. Court said that statements about public figures are libelous only
is made with malice and reckless disregard for the truth
b. the right to criticize the government or public official is not
libel or slander
4. private persons only need to show that statements about them were
defamatory falsehoods and that the author was negligent
5. it is unusual for someone to win a libel case
a. usually most people do not want to draw attention to critical
statements made about them
6. Courts have ruled that parodies and jokes are allowed a lot of freedom
when it comes to public figures
G. Symbolic Speech
1. Symbolic Speech: nonverbal communication that expresses an
opinion
2. broadly interpreted, freedom of speech is a guarantee of freedom of
expression
3. Tinker v. Des Moines, 1965: Court upheld the rights of students to
wear armbands as a sign of protest
4. Texas v. Johnson, 1989: Court struck down a law banning burning the
American flag on the grounds that such action was symbolic speech
a. burning a draft card is not protected
5. Court held that parades are forms of expression and therefore the
organizers are free to include whomever they want
H. Commercial Speech
1. Commercial Speech: communication in the form of advertising
a. it is restricted far more than expressions of opinion on religious,
political, or other matters
2. Federal Trade Commission (FTC): decides what kinds of materials
may be advertised on radio and television, and regulates the content of
advertising
a. these regulations change with the social mores and priorities
b. ex. 30 years ago there would be no tampon commercials but a
lot of cigarette commercials – the reverse is true today
3. FTC also ensures that advertisers do not make false claims for their
products
a. truth in advertising does not prevent misleading promises
4. the courts have been broadening commercial speech protection in
recent years
a. courts have overturned laws that prevented commercials on
legal and engineering services, abortions, condoms, casinos
I. Regulation of the Public Airwaves
1. the Federal Communications Commission (FCC) regulates the content,
nature, and very existence of radio and television broadcasting
2. radio and television stations need to be licensed
a. a licensed station must comply with the regulations, including
the requirement that they devote a certain percentage of broadcast
time to public service, news, children’s programming, political
candidates, or views other than those its owners support
1. the rules are more relaxed for cable channels, which can
specialize in a particular type of broadcasting, because
consumers pay for the service
3. these same restrictions were struck down when they were imposed on
the print media
a. Miami Herald Publishing Company v. Tornillo, 1974: the
Supreme Court held that a state could not force a newspaper to
print replies from candidates it had criticized
4. these restrictions were upheld for radio and television stations 5 years
earlier
a. Red Lion Broadcasting Company v. FCC, 1969: Supreme
Court upheld restrictions on radio and television broadcasting,
such as giving adequate coverage to public issues and covering
opposing views
1. restrictions on broadcast media are much tighter because
there are only a limited number of frequencies available
5. the FCC has consistently regulated obscene words and indecency on
the airwaves
a. 1978: George Carlin’s “Seven Words You Can Never Say on
Television”
b. 1992: Howard Stern
J. Freedom of Assembly
1. the freedom to assemble is the basis for forming interest groups and
political parties, for picketing and protesting in groups
2. there are two facets of the freedom of assembly
a. Right to Assemble: to gather together in order to make a
statement
1. this freedom can conflict with other societal values
when it disrupts public order (traffic, peace, quiet, etc)
2. Time, Place, and Manner: within reasonable limits,
freedom of assembly includes the rights to parade, picket,
and protest
3. no group can hold a spontaneous demonstration anytime
or anywhere it chooses
4. usually groups must apply for a permit from there local
city government and post a bond of a few hundred dollars
a. the government must grant the permit as long as
the group pledges to have its demonstration at a
time and place that allows the police to prevent
major disruptions
5. there are no limitations on the content of the group’s
message
6. the balance between freedom and order is tested when
protest verges on harassment (abortion clinics)
b. Right to Associate: freedom to associate with people who share
a common interest
1. the right to associate includes the right to meet with
people who want to create political change
2. NAACP v. Alabama, 1958: the Supreme Court
protected the right to assemble peaceably when it decided
that the NAACP did not have to reveal its membership list
and thus subject its members to harassment
IV. Defendants’ Rights
A. Interpreting defendants’ rights
1. Besides the 1st Amendment, most of the other rights protected in the
Bill of Rights concern the rights of people accused of crimes
a. these rights were originally intended to protect the accused in
political arrests and trials
b. today the protections of the 4th, 5th, 6th, 7th, and 8th Amendments
are mostly applied in criminal justice cases
c. there are about 5 crimes to every arrest made
2. the language of the Bill of Rights is vague, and defendants’ rights are
not well defined
3. the Supreme Court’s decisions have extended most provisions of the
Bill of Rights to the states as part of the general process of incorporation
B. Searches and Seizures
1. before making an arrest, police need what the courts call probable
cause
a. Probable Cause: reasonable grounds to believe that someone
is guilty of a crime
2. Unreasonable Search and Seizures: obtaining evidence in a
haphazard or random manner, a practice prohibited by the 4th Amendment
a. both probable cause and a search warrant are required for a
legal and proper search for and seizure of incriminating evidence
b. Search Warrant: a written authorization from a court
specifying the area to be searched and what the police are
searching for
c. most searches in this country take place without a warrant
because they are reasonable searches
1. probable cause exists, the search may be necessary to
protect an officer’s safety, or the search is limited to
material relevant to the suspected crime or within the
suspect’s immediate control
d. it is okay for police to spot things on private property from
planes without warrants
e. DWI checkpoints are also okay
3. Exclusionary Rule: the rule that evidence, no matter how
incriminating, cannot be introduced into a trial if it was not
constitutionally obtained
a. the rule prohibits the use of evidence obtained through
unreasonable search and seizure
b. until 1961, this rule only applied to the federal government
c. Mapp v. Ohio, 1961: Supreme Court decision ruling that the
Fourth Amendment’s protection against unreasonable searches and
seizures must be extended to the states as well as the federal
government
4. Critics of the exclusionary rule claim that it lets guilty people go free
because of police carelessness or innocent errors
5. Supporters of the exclusionary rule say that the Constitution is not a
technicality; defendants’ rights protect the accused in a system whereby
everyone is presumed to be innocent until proven guilty
6. The Burger Court made some exceptions to the exclusionary rule
a. Nix v. Williams, 1984: the Court allowed the use of illegally
obtained evidence when the evidence led police to a discovery that
they eventually would have made without it
b. United States v. Leon, 1984: established the good-faith
exception, which permitted evidence to be used if the police who
seized it mistakenly thought they were operating under a
constitutionally valid warrant
c. United States v. Payner, 1980: allowed evidence illegally
obtained from a banker to be used to convict one of his customers
d. 1995: Court ruled that the exclusionary rule does not bar
evidence illegally obtained as a result of a clerical error
7. Florida v. J.L., 2000: Supreme Court decision that an anonymous tip
that a person is carrying a gun is not sufficient to justify a police officer’s
stopping and frisking that person
C. Self-Incrimination
1. suspects cannot be forced to help their own conviction by providing
evidence against themselves
2. Fifth Amendment: designed to protect the rights of persons accused
of crimes, including protections against double jeopardy, selfincrimination, and punishment without due process
a. this applies to a congressional hearing, a courtroom, a police
station
b. under the law, the government may guarantee suspects’
immunity or exemption from prosecution in exchange for suspects’
testimony regarding their own and others’ misdeeds
1. if they offer immunity the suspect must testify
3. Self-Incrimination: a situation in which an individual accused of a
crime is compelled to be a witness against himself or herself in court
4. Miranda v. Arizona, 1966: Supreme Court decision that sets
guidelines for police questioning of accused persons to protect them
against self-incrimination and to protect their right to a counsel
a. police must read suspects their rights
5. the Supreme Court has made exceptions to Miranda’s requirements
a. in 1991, the Court held that coerced confession does not
automatically taint a conviction
1. if other evidence is enough for a conviction, then the
coerced confession is a “harmless error” that does not
necessitate a new trial
6. Dickerson v. U.S., 2000: Court made it clear that it supported Miranda
and was not empowered to change it
7. the Fifth Amendment also protects against coerced crimes
a. the courts have overturned convictions based on entrapment –
when law enforcement officials encourage persons to commit
crimes that they otherwise would not commit
D. The Right to Counsel
1. Sixth Amendment: designed to protect individuals accused of crimes;
it includes the right to counsel, the right to confront witnesses, and the
right to a speedy and public trial
a. the 6th Amendment has always ensured the right to counsel in
federal courts, this right was not extended to people tried in state
courts until the 1960s
1. this is an important right for the poor who up until the
1930s were convicted and given the death penalty without
even having a lawyer
b. Powell v. Alabama, 1932: Supreme Court ordered the states to
provide an attorney for indigent (poor) defendants accused of
capital crimes
c. Gideon v. Wainwright, 1963: Supreme Court decision holding
that anyone accused of a felony where imprisonment may be
imposed, however poor he or she might be, has a right to a lawyer
a. extended the right to an attorney to state courts
d. Argersinger v. Hamlin, 1972: Court extended the right to
counsel to anyone who faces imprisonment
E. Trial By Jury
1. in reality, most cases, even ones with solid evidence, do not go to trial
2. in American courts, 90% of all cases begin and end with a guilty plea
a. most are settled out of court with plea bargain
3. Plea Bargaining: an actual bargain struck between the defendant’s
lawyer and the prosecutor to the effect that the defendant will plead guilty
to a lesser crime (or fewer crimes) in exchange for the state’s promise not
to prosecute the defendant for a more serious (or additional) crime
a. critics of plea bargains believe that it permits many criminals to
avoid the full punishment they deserve
1. one studied done showed that a larger proportion of
defendants who went to trial (rather than plea bargained)
ended up going to prison, compared to those who pleaded
guilty and had no trial
b. the process does save time and money that would otherwise be
spent on a trial
c. most say because of a lack of resources, that plea bargaining is
necessary for our court system
4. the defendants in the approximately 300,000 cases per year that
actually go to trial are entitled to a lot of rights
a. a speedy trial by an impartial jury
b. jury selection is taken very seriously and both sides spend hours
questioning prospective jurors in a major case
5. the Constitution does not specify the size of a jury, it could be
anywhere from one to one hundred people, but traditionally it is set at 12
a. in petty cases 6 is sometimes used
6. traditionally jury decisions had to be unanimous in order to convict,
however, the Supreme Court had eroded those traditions, permitting state
to use fewer than 12 jurors and to convict with a less than unanimous vote
7. all federal court still have juries of 12 people and still require a
unanimous vote for a criminal conviction
F. Cruel and Unusual Punishment
1. Eight Amendment: forbids cruel and unusually punishment, although
it does not define the phrase
a. this amendment applies to the states because of the 14th
Amendment
2. most constitutional debates over the 8th Amendment is centered around
the death penalty
a. nearly 3000 people are currently on death row
b. Witherspoon v. Illinois, 1968: overturned a death sentence
because opponents of the death penalty had been excluded from
the jury at sentencing
c. Furman v. Georgia, 1972: overturned Georgia’s death penalty
law because its imposition was “freakish” and “random” in the
way it was arbitrarily applied (particularly with regard to factors
such as race and income)
1. because of Furman, 35 states passed new laws
permitting the death penalty
2. to prevent arbitrariness, some states made the death
penalty mandatory for some crimes
d. Woodson v. North Carolina, 1976: Court ruled against
mandatory death penalties
e. Gregg v. Georgia, 1976: Supreme Court decision that upheld
the constitutionality of the death penalty, stating that “It is an
extreme sanction, suitable to the most extreme of crimes.”
f. McCleskey v. Kemp, 1987: Supreme Court decision that upheld
the constitutionality of the death penalty against charges that it
violated the 14th Amendment because minority defendants were
more likely to receive the death penalty than were white
defendants
3. the Supreme Court has recently held that it is constitutionally
acceptable to execute 16 and 17 year olds and mentally retarded persons
4. the Court has also made it more difficult for death row prisoners to
force legal delays and appeals to stave off their executions
5. the Court has allowed “victim impact” statements detailing the
character of murder victims and their families’ suffering to be used against
a defendant
V. The Right to Privacy
A. New technologies have raised ethical issues unimaginable in the 18th century
1. today one of the greatest debates concerning civil liberties is in the area
of privacy rights
B. Is There a Right to Privacy?
1. Right to Privacy: although the Constitution does not specifically
mention a right to privacy, the Supreme Court has said that it is implied by
several guarantees of the Bill of Rights
2. in 1928, Justice Brandeis hailed privacy as “the right to be left alonethe most comprehensive of the rights and the most valued by civilized
men.”
C. there are many questions involving the right to privacy: abortion, euthanasia,
in-vitro fertilization, frozen embryos, etc
1. Griswold v. Connecticut, 1965: in a case concerning the distribution of
birth control, the Supreme Court ruled that there are unstated liberties
implied in the Bill of Rights, one of which is the right to privacy,
including a right to family between husband and wife
2. supporters of privacy rights argued that the 4th Amendment was
intended to protect privacy
3. critics of the ruling claimed the Supreme Court was inventing
protections not specified by the Constitution
D. Controversy over Abortion
1. American are deeply divided on abortion
2. Roe v. Wade, 1973: Supreme Court decision holding that a state ban
on all abortions was unconstitutional
a. the decision forbade state control over abortions during the 1st
trimester of pregnancy, permitted state to limit abortions to protect
the mother’s health in the 2nd trimester, and permitted state to
protect the fetus during the 3rd trimester (except when the mother’s
life or health was in danger)
3. numerous state and federal regulations have been passed which prohibit
the use of state and/or federal funds for abortions
4. Webster v. Reproductive Health Services, 1989: the Court upheld a
Missouri law the forbid the use of state funds or state employees to
perform abortions
5. the Court has also upheld laws requiring minors to notify one or both
parents or a judge before obtaining an abortion
6. Rust v. Sullivan, 1991: the Court held that a Department of Health and
Human Services ruling-specifying that family planning services receiving
federal funds could not provide women any counseling regarding
abortion-was constitutional
a. on his 3rd day in office President Clinton lifted the ban on
abortion counseling
7. Panned Parenthood v. Casey, 1992: the Supreme Court loosened its
standard for evaluating restrictions on abortion from one of “strict
scrutiny” of any restraints on a “fundamental right” to one of “undue
burden” that permits considerably more regulation
a. the Court upheld a 24 hour waiting period, a parental or judicial
consent requirement for minors, and a requirement that doctors
present women with information on the risks of the operation
b. the Court did strike down a law requiring women to tell her
husband of her intent to have an abortion
8. Sternberg v. Carhart, 2000: the Court held that Nebraska’s law
banning partial birth abortion was unconstitutional because it placed
undue burden on women seeking an abortion by limiting their options to
less safe procedures and because the law provided no exception for cases
where the health of the mother was at risk
9. Freedom to Access Clinic Entrances Act – 1994: makes it a federal
crime to intimidate abortion providers or women seeking abortions
10. Court has also upheld laws that call for buffer zones around clinics
a. Madsen v. Women’s Health Center, 1994: upheld 30 foot
buffer zone
E. A Time to Live and a Time to Die
1. One of the most difficult issues facing our high-tech society is whether
there is a right to choose to die or a right for parents to choose to allow
their children to die
2. many of the issues surrounding birth and death were crystallized in two
“Baby Doe” cases in the early 1980’s
a. Baby Doe was a baby born in Indiana in 1982 with Down
Syndrome
1. the parents refused to give the child surgery in which the
doctors said was necessary
2. the doctors went to court to get permission, but the court
ruled for the parents and the child died
b. Baby Jane Doe was born in New York in 1983 with spina bifida
1. parents and doctors both agreed against surgery,
however a 3rd party sued to protect people with disabilities
a. parents won again and the Supreme Court once
again affirmed parents’ rights to make medical
decisions for their children
b. Baby Jane Doe survived
F. another difficult issue facing society is who has custody of children produced
by in-vitro fertilization and artificial insemination, and who has custody of frozen
embryos
G. Adults choosing to die
1. Cruzan v. Director, Missouri Department of Health, 1990: Supreme
Court recognized a limited constitutional right for patients to refuse
unwanted medical treatment, a form of suicide
2. Vacco v. Quill and Washington v. Glucksburg, 1997: Supreme Court
ruled that there is no constitutional right to physician-assisted suicide and
that states may prohibit it if they wish
VI. Understanding Civil Liberties
A. American government is both democratic (because it is governed by officials
elected by the people and answerable to them) and constitutional (because it has a
fundamental organic law, the Constitution, that limits the things government can
do)
B. the democratic and constitutional components of government can produce
conflicts, but they also reinforce one another
C. Civil Liberties and Democracy
1. the rights ensured by the 1st Amendment are essential to democracy
2. Individual participation and the expression of ideas are crucial
components of democracy, but so is majority rules, which can conflict
with individual rights
3. the rights guaranteed by the 4th, 5th, 6th, 7th, and 8th Amendments
protect all Americans; but they also make it harder to punish criminals
4. ultimately, the courts decide what constitutional guarantees mean in
practice: although the federal courts are the branch of government least
subject to majority rule, the courts enhance democracy by protecting
liberty and equality from the excesses of majority rule
D. Civil Liberties and the Scope of Government
1. today’s government is huge and commands vast, powerful technologies
a. it is virtually impossible to hide from the police, the FBI, the
IRS, or any other government agency
2. because Americans can no longer avoid the attention of government,
strict limitations on governmental power are essential (those set forth in
the Bill of Rights)
3. in general, civil liberties limit the scope of government
a. sometimes however, like with the issue of protecting the right to
abortion, it is necessary to expand government in order to protect
freedoms