Civil Liberties
• Key Terms
– Civil liberties – legal and constitutional rights that
protect individuals from arbitrary acts of
government.
– Civil liberties include freedom of speech, freedom
of religion, and freedom of the press, as well as
guarantees of a fair trial.
Civil Rights
• Key Terms (cont.)
– Civil rights are policies designed to protect people
against arbitrary or discriminatory treatment by
government officials or individuals.
– Civil rights include laws against racial and gender
discrimination.
The Bill of Rights
• The Constitution, as originally written, contained
a number of specific rights and restrictions on
government authority.
• For example, the new government could not
grant titles of nobility or require a religious oath
for holding a federal office.
• When Anti-Federalists objected to the absence of
a bill of rights, the Federalists pledged that the
First Congress would draw up a list of safeguards
to protect basic rights and freedoms.
The Bill of Rights
• Led by James Madison, the First Congress
passed ten amendments popularly known as
the Bill of Rights.
• When the states ratified these amendments in
1791, they became part of the Constitution.
The Bill of Rights and the States
• The Scope of the Bill of Rights
– In 1791, every state constitution included a bill of
rights.
– The first ten amendments were intended to
restrict the new federal government, not the
existing state governments.
– It is important to note that the First Amendment
begins with the words, “Congress shall make no
law. . . “
The Bill of Rights and the States
• The Scope of the Bill of Rights
– Barron v. Baltimore (1833)
• John Barron co-owned a profitable wharf in Baltimore
Harbor. He complained that the city of Baltimore
damaged his business when a construction project
made the water too shallow for most vessels.
• Barron argued that the Fifth Amendment required the
city of Baltimore to provide him with just compensation.
• Led by Chief Justice John Marshall, the Supreme Court
unanimously ruled that the Bill of Rights “contains no
expression indicating an intention to apply them to the
state governments. This court cannot so apply them.”
The Bill of Rights and the States
• The Scope of the Bill of Rights
– Barron v. Baltimore (1833) – (cont.)
• The Supreme court thus established a precedent that
the freedoms guaranteed by the Bill of Rights did not
restrict the state governments
The Fourteenth Amendment
• Ratified in 1868, the Fourteenth Amendment
declared,
– “No state shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States nor shall any state
deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal protection
of the laws.”
The Fourteenth Amendment
• The Fourteenth Amendment contains two key
clauses that have had a significant impact on
Supreme Court decisions and U.S. politics:
– The Due Process Clause
– The Equal Protection Clause
Gitlow v. New York (1925)
• Benjamin Gitlow wrote a pamphlet entitled
“The Revolutionary Age” urging industrial
workers to strike and join in a revolution to
overthrow organized government.
• Gitlow was arrested and convicted for
violating a New York state law that made it a
crime to advocate the overthrow of the
government by force or violence.
• Gitlow argued that the New York law violated
his right to freedom of speech and the press.
Gitlow v. New York (1925) – cont.
• The Supreme Court voted to uphold Gitlow’s
conviction.
• However, the Court also ruled that “freedom
of speech and of the press . . . Are among the
fundamental personal rights and liberties
protected by the Due Process Clause of the
Fourteenth Amendment from impairment by
the states . . .”
The Incorporation Doctrine
• In Barrow v. Baltimore, the Supreme Court
ruled that the federal courts could not stop
the enforcement of state laws that restricted
the rights enumerated in the Bill of Rights.
• The Supreme Court’s decision in Gitlow v.
New York began the incorporation process of
using the Due Process Clause of the
Fourteenth Amendment to extend most of
the requirements of the Bill of Rights to the
states.
The Incorporation Doctrine
• The incorporation process did not occur at
once. Instead, it has been a gradual process by
which the Supreme Court has used a series of
individual decisions to incorporate the Bill of
Rights into the Due Process Clause of the
Fourteenth Amendment.
Test Tip
• The process of selective incorporation
generated several multiple-choice questions
and a free-response question on the 2005
exam. It is very important to know how the
Supreme Court has used the Due Process
Clause of the Fourteenth Amendment to apply
protections in the bill of Rights to the states.
• Be sure that you can discuss how the rights of
criminal defendants and privacy rights have
been incorporated.