Civil Liberties
“Your rights as Americans”
Founding Documents
• Declaration of Independence - “We hold
these truths to be self-evident; that all men
are created equal, that they are endowed
by their Creator with certain unalienable
rights, that among these are life, liberty,
and the pursuit of happiness.”
• Constitution – framers believed in natural
rights
Writ of Habeas Corpus
• Art. 1, Sec. 9
• “Produce the body”
• Requires government officials to present a
prisoner in court and to explain to the
judge why the person is being held
Ex Post Facto Laws
• “after the fact”
• Being charged for committing a crime, that
wasn’t a crime when the person committed
the action
Bills of Attainder
• Legislative act that punishes an individual
without judicial trial
• Court should decide guilt, not Congress
Bill of Rights
1. Free speech, press, assembly, petition,
religion
2. Right to bear arms
3. Prohibits quartering soldiers
4. Restricts illegal search and seizures
5. Provides grand juries, restricts eminent
domain (gov can’t take private property
unless compensation), prohibits forced
self-incrimination, double jeopardy (can’t
be charged for the same crime twice)
Bill of Rights
6. Outlines criminal court procedure
7. Trial by jury
8. Prevent excessive bail and cruel and
unusual punishment
9. Amendments 1-8 do not necessarily
include all possible rights of the people
10. Reserves for the states any powers not
delegated to Fed. Gov by Constitution
14th Amendment
• “privileges and immunities” – Constitution
protects all citizens
• Due process – prohibits abuse of life,
liberty, or property of any citizen, state
rights were subordinate to Fed rights
• Equal protection clause – Constitution
applies to all citizens equally
Due Process
• Appears in both the 5th & 14th Amendment
• Forbids national AND state governments
to “deny any person life, liberty, or
property without due process of law.”
• The Supreme Court has refused to provide
a precise definition of due process
• Procedural – fair hearing or formal trial
• Substantive – fundamental fairness
Incorporation Doctrine
• Gitlow v. New York began the
incorporation process using the Due
Process Clause of the 14th Amendment to
extend most protections of the Bill of
Rights to the states
• This has been a gradual process using
individual court cases
Religion
• “Establishment” Clause – prohibits the
gov’t from establishing an official church
– A “wall of separation between Church and
State” is created by the 1st Amendment (TJ)
• “Free Exercise” Clause – allows people to
worship (or not) as they please
– A religion cannot make an act legal that is
otherwise illegal. Sorry Rastafarians and
Aztecs. 
The Lemon Test
Aid to church related schools must:
• (1) have a secular (denoting attitudes,
activities, or other things that have no
religious or spiritual basis) purpose
• (2) neither advance nor inhibit religion
• (3) not foster an excessive government
entanglement with religion.
Free Speech
• DOES NOT mean that you can “say
anything you want”… but pretty close
• Founders saw free speech as a
fundamental natural right
• Guarantees of free speech are meant to
protect expressions of unpopular views
– “The freedom to differ is not limited to things
that do not matter much.” Justice Jackson
– Wrong or offensive ideas force us to sharpen
our own views. John Stuart Mill
Limits on Free Speech
• Threat to national security or creating a safety
concern (Clear and Present Danger Test)
• Libel – false written statement attacking
someone’s character, with intent to harm
• Commercial speech – advertising can be limited to
serve a “substantial public interest.”
• Youthful speech – student speech can’t be
“disruptive” to educational environment
• Obscenity – not protected, hard to define
– Pornographic materials
• Symbolic speech – action to convey a message
- Flag Burning, Armbands to protest war
Prior Restraint
• Prior restraint is the attempt to limit
freedom of the press by preventing
materials from being published.
– This has been ruled as censorship and is not
allowed since it violates freedom of the press
– The Pentagon Papers – New York Times was
allowed to publish materials about Vietnam
– School districts have been given broad
latitude to censor school newspapers
Right to Privacy
• Not mentioned in the Constitution
• Griswold v. Connecticut (1965)
– Incorporated the 9th Amendment using the
right to privacy found in the unstated liberties
implied by the explicitly stated rights in the Bill
of Rights (1st, 3rd, 4th, and 5th)
• Roe v. Wade (1971)
– Based on the right to privacy established by
Griswold
Search and Seizure
• The protection against “unreasonable
searches and seizures” (4th Amendment)
• Exclusionary Rule (Weeks v. US 1914)
– Prevent police abuse
– “tainted” evidence cannot be used in court
– Federal cases ONLY
• Mapp v. Ohio (incorporated the 4th)
– Police were looking for evidence of one criminal
activity but found another
– Lack of “probable cause” excluded the evidence
Self-incrimination
• No one “shall be compelled to be a
witness against himself.” 5th Amendment
• Miranda v. Arizona 1966
– Ernesto Miranda was a mentally challenged
drifter accused of kidnapping and rape
– He signed a written confession after 2 hours
of interrogation – he was never informed of
his constitutional rights
– All suspects must now be “read their rights”
Right to Counsel
• The accused shall enjoy the right to have
the assistance of counsel for his defense,
as guaranteed by the 6th Amendment
• Gideon v. Wainwright
– Gideon was accused of breaking and entering
and robbery
– His request for counsel was denied
– His conviction was overturned
Right v. Right
• Most cases are not simple since we all
enjoy liberties and rights
• The conflicts occur because situations often
pit two competing rights against each other
• Ex. – The Patriot Act
• Ex. – freedom of press v. national security
– Is it more important to have a free press or
military secrets?