Civil Liberties Notes

A.P. U.S. Government – Civil Liberties
I. Impact of Major Early Documents
A. Declaration of Independence
B. The Constitution (in original form)
1. Trial by jury, protection to move from state to state
2. Limited definition of treason, no religious oaths for state office, guaranteed
republican government for all states
3. Writ of Habeas Corpus – requirement for the government to explain to a judge
why a prisoner is being held
4. No ex post facto laws
5. No bills of attainder – power of the legislative branch to find someone guilty
of a crime without a trial in court
C. The Bill of Rights
II. Other Sources of Civil Liberties and Civil Rights
A. 14th Amendment – protects violations of rights and liberties by STATE governments
1. Citizenship clause that protects “privileges and immunities”
2. Due Process clause
a. Incorporation of the Bill of Rights to the states
b. Bill of Rights originally only protected from the national government
(Barron v. Baltimore – 1833)
c. Selective Incorporation – gradual incorporation of liberties and rights at
the state level through the use of individual court cases
i. Ex. Gitlow v. New York (1925)
ii. Almost all civil liberties from the Bill of Rights have now been
incorporated at the state level
3. Equal Protection clause (basis of modern civil rights protections)
B. Use of judicial review by the U.S. Supreme Court (especially since the New Deal era)
C. Legislative Action by Congress (ex. Civil Rights Act of 1964)
III. First Amendment
A. Freedom of Religion
1. Establishment Clause
a. Protection from a state established religion
b. Implied “separation of church and state”/”wall of separation” Jefferson
c. Engle v. Vitale (1962) – ban on school led prayer
d. Later rulings ban use of Lord’s Prayer in schools and regular use
of moments of silence
e. Conflicted rulings on school prayers at graduation ceremonies
and sports events
f. Use of religious symbols in public facilities
i. Protected if within a historical Context (Ten Commandments in
a courtroom, nativity display among secular symbols)
ii. Use in singularity is not protected
g. Lemon v. Kurtzman (1971) - test for secular funding of religious
i. Funding must be secular in nature
ii. Must have a neutral effect on religion
iii. Cannot create “an excessive government entanglement
with religion”
h. School Vouchers
i. Protection as tax-exempt institutions upheld
j. Controversy over President Bush’s (43) Office of Faith Based
2. Free Exercise Clause
a. Religious freedom in and of itself is not an excuse for every kind of
b. Examples of constitutionally upheld bans of actions in religious
i. Polygamy
ii. Use of poisonous snakes
iii. Refusal by parents to provide medical care to children
iv. Use of illicit drugs – Oregon v. Smith (1990)
B. Freedom of Speech and Press
1. Interpreted as the most fundamental right that Americans enjoy, according the
Supreme Court
2. Issues with National Security
a. Sedition Act (1798)
b. Restrictions by Lincoln during the Civil War
c. World War I
i. Espionage Act (1917) and Sedition Act (1918)
ii. Schenck v. U.S. (1919) ---- “Clear and Present Danger” Test
d. McCarthyism via the Smtih Act (1940) and the Internal Security Act
e. Brandenburg v. Ohio (1969) – “Imminent Action” Test
3. Automatic restrictions on free speech
a. Libel (printed) & Slander (spoken)
i. Knowingly providing false public statements with the intent of
achieving “actual malice”
ii. Hard to successfully prove in court (less protection for famous
b. Obscenity – difficult to define
i. Roth v. U.S. (1957) – work “utterly without redeeming social
importance…with the dominant theme appealing to
prurient interests”
ii. Miller v. California (1973) work that has “patently offensive
material as a whole and lacks serious literary, artistic,
political or scientific value”
iii. Use of community standards to define
iv. Concerns over restrictions on the internet (ex. Communications
Decency Act – 1996)
4. Symbolic speech
a. Generally not protected under the First Amendment (ex. fighting
words – curse words on network TV, burning crosses with an
intent to intimidate, direction to harm others, etc.)
b. Notable exceptions
i. Tinker v. Des Moines (1968) – use of arm bands in public school
to protest war
ii. Texas v. Johnson (1989) – flag burning to protest the
C. Freedom of Assembly
1. DeJonge v. Oregon (1937)
2. Restrictions regarding private property (even for public use – shopping malls)
3. Restrictions on public property
a. Prisons & courtrooms
b. Use of permits
IV. Second Amendment
A. Is this right intended as a personal freedom or community protection (militias)?
B. Traditional views on guns vs. modern concerns
C. D.C. v. Heller (2008) – protects individual ownership rights
D. McDonald v. Chicago (2009) – individual ownership protection incorporated at the
state level
V. Fourth Amendment
A. Protection from “unreasonable searches and seizures”
B. Use of “reasonable suspicion” and “probable cause” standards to conduct searches
and obtain a warrant
C. Exclusionary Rule – evidence obtained illegally cannot used as evidence in court
1. U.S. v. Weeks (1914)
2. Map v. Ohio (1961) – incorporated at the state level
3. Good faith exceptions
4. Inevitable discovery
VI. Fifth Amendment
A. Protection from self-incrimination
1. Burden of proof falls on the state, not the accused
2. Escobedo v. Illinois (1963)
3. Miranda v. Arizona (1966) – creation of Miranda rights
B. Protection from “double jeopardy” – criminal vs. civil trial implications
C. Due Process
1. Procedural due process – use of formal steps (ex. fair trial, formal arraignment)
2. Substantive due process – spirit of fundamental fairness when applying
D. Grand jury protection
E. Eminent Domain
1. Power of the government to claim private property for public use
2. Loss of private property must include fair compensation (market value)
3. What is “public use”?
4. Kelo v. New London (2005)
VII. Sixth Amendment
A. Right to Counsel – Gideon v. Wainwright (1963)
B. Right to jury of one’s peers – gender and racial implications historically
C. Right to confront witnesses and obtain own in one’s defense
VIII. Eighth Amendment
A. Protection from “cruel and unusual” punishment
B. Death penalty controversy
1. Furman v. Georgia (1972) – way that states applied death penalty was
2. Gregg v. Georgia (1976) – upholds right of states to have death penalty
punishments for first degree murder convictions
IX. Right to Privacy
A. An implied right – taken from the 4th and 9th Amendments
B. Griswold v. Connecticut (1965) – first implication of the “right to privacy”, applies to
protection to access birth control
C. Abortion rights
1. Roe v. Wade (1973)
2. Webster v. Reproduction Health Services (1989) – protects a state’s right to not
have to use tax money to support abortion clinics
3. Planned Parenthood v. Casey (1992) - upholds ability of states to having
“waiting periods” before abortions are to be performed
4. Partial Birth Abortion Act (2003) – upheld in Gonzalez v. Planned Parenthood