Civil liberties = protections the
Constitution provides against the
abuse of government power
 Discuss
the relationship of the Bill of
Rights to the concept of democratic rule
of the majority, and give examples of
tension between majority rule and
minority rights. Explain how the politics
of civil liberties may at times become a
mass issue, and over several examples
 Civil
liberties are the protections you
have against the government
 Most of our civil liberties originate in the
Bill of Rights—although there are others
like Habeas Corpus found in the
Constitution itself
 How is this different than civil rights?
 Amendment
One
• Religion
 Establishment Clause
 Free Exercise Clause
• Speech
• Press
• Peaceable Assembly
• Petition for redress of grievances
 Amendment Two
• “…the right of the people to keep and bear arms
shall not be infringed.”
 Amendment Four
• Search & Seizure
 Amendment Five
• Grand Jury
• Double Jeopardy
• Eminent Domain
Amendment Six
• Speedy and Public Trial
• Assistance of counsel
 Amendment Eight
• Cruel and unusual punishment
• Excessive bail and fines
 Amendment Nine
• The listing of rights in the Constitution does not
deny those retained by the people
 Amendment Ten

• Everything not listed here left to the states to decide
 Explain
how the structure of the federal
system affects the application of the Bill
of Rights. How has the Supreme Court
used the Fourteenth Amendment to
expand coverage in the federal system?
Discuss changing conceptions of the dueprocess clause of the Fourteenth
Amendment
 Originally, the
BOR only protected
people from the Federal Government
• Added as a promise that the new, and stronger,
federal government wouldn’t get too strong
• It was assumed that each state had its own bill of
rights
 Most of them did
 Barron
v. Baltimore (1833)
• Eminent Domain Protection
• Supreme Court ruled that the BOR only applied
to the Federal government
• States rights (10th Amendment) were viewed as
more important than national supremacy
• But…What happens if your state doesn’t want to
protect your civil liberties?
 “The
powers not delegated to the United
States by the Constitution, nor prohibited
by it to the States, are reserved to the
States respectively, or to the people.”
 Due
Process Clause: “no state shall
deprive any person of life, liberty or
property without due process of law”
 Equal Protection Clause: “no state shall
deny to any person within its jurisdiction
the equal protection of the laws”
In NO, the slaughterhouses were
located upriver and the offal
dumped into the river was
contaminating the city’s water
supply
 The Louisiana state legislature
closed all upriver slaughterhouses and gave a monopoly to
the Crescent City Livestock, Inc.
which would be located
downriver.

I don’t have the privilege
to earn a living! The
Louisiana Law is
unconstitutional because
it violates the 14th
A
group of local butchers
brought suit arguing that
the law violated the
“privileges and
immunities” clause of the
newly enacted Fourteenth
Amendment.
 Section
Does this
section
mean that
now the
states have
to follow
the Bill of
Rights?
1. All persons born or
naturalized in the United States,
and subject to the jurisdiction
thereof, are citizens of the United
States and of the State wherein they
reside. No STATE shall make or
enforce any law which shall
abridge (deprive) the privileges or
immunities of citizens of the United
States;…
The “privileges or immunities’ clause
was primarily designed to grant
equality to the slave race.
Furthermore, the clause does not
require a state to extend privileges
(like the right of every person to
start a slaughterhouse). The clause
merely requires states to apply its
laws equally to state residents and
out-of-staters.
Louisiana’s slaughterhouse law does not
violate the 14th amendment
Justice Samuel F. Miller
Author of the Majority Opinion
 “…nor
shall any state deprive any
person of life, liberty, or property
without due process of law; nor (shall
any state) deny any person within its
jurisdiction the equal protection of
the law.”
 On
a case-by-case basis SCOTUS has
nationalized (meaning applied to states)
the BOR
 Once an amendment has been
incorporated, you are protected from
both the federal and the state
governments
 The
5
1
4
6
14th Amendment is a sponge
 The 14th Amendment soaks up the
1st, 2nd, 4th and portions of the 5th,
6th, 8th and 9th Amendments
 The SCOTUS squeezes the
sponge over state and local
governments and soaks with a
new constitutional standard
I borrowed this idea from some dude online
 1925
(Gitlow v. New York): declared
federal guarantees of free speech and
free press also applied to states
 1937 (Palko v. Connecticut): certain rights
must apply to the states because they are
essential to “ordered liberty” and they
are “principles of justice”
 1965 (Gideon v. Wainwright) Right to
Counsel an essential right
 Gideon
was not allowed an attorney
after being arrested for a felony
 A Florida STATE judge told Gideon
that the 6th Amendment didn’t apply
to him because he wasn’t being
charged with a FEDERAL crime –
therefore the state didn’t have to
honor Gideon’s 6th Amendment
protections
 From
prison, Gideon
petitioned the Supreme
Court to use the Due
Process Clause to “soak
up” the 6th Amendment
and get a new trial – this
time with an attorney
 He applied for a writ of
certiorari
Gideon v. Wainwright
14th
Amendment
Due Process
Clause
6th Amendment
Right to counsel
(attorney)
All people in the US,
whether charged in
federal or state court,
have the right to an
attorney (for felony
charges)
Ruling applies
to all the states
State laws change if necessary
Does the Bill of Rights apply to State Governments?
NO!
The BARRON WALL – stops the States from having to follow the Bill of Rights
Gitlow v. New
York (1925)
Freedom of
Speech—1st
McDonald v.
Chicago (2010)
Right to Bear
Arms—2nd
Gideon v.
Wainwright (1963)
Right to
Counsel—6th
Near v. MN
(1931)
Freedom of the Press—1st
3rd
Mapp v. Ohio
(1961)
4th
7th
Griswold v.
Ct
(1965)
Privacy—9th
 The
First Amendment protects freedom
of speech, press, assembly, religion and
petition.
 Freedom of religion is protected in two
clauses
• The Free Exercise Clause
• The Establishment Clause
 Insures
that no law may impose particular
burdens on religious institutions
 Prohibits abridgement of the freedom to
worship (or not to worship)
 Some conflicts between religious
freedom and public policy continue to be
difficult to settle.

Government involvement in religious
activities is constitutional if it meets the
following test, called the Lemon Rule or
Test (Lemon v. Kurtzman, 1971):
1. Secular purpose
2. Primary effect neither advances nor inhibits
religion
3. No excessive government entanglement with
religion
 Using
a quote from a private letter
written by Thomas Jefferson
 He wrote of the need for “a wall of
separation between church and state”
 The Supreme Court has applied this to
Establishment cases
 Recently the court has begun to lower the
wall
• Neutrality and excessive entanglements
 Lynch v. Donnelly (1984)
• 5-4 said that a nativity/holiday scene did not
violate the establishment clause
• Apply the 3 prong Lemon Test
• Court as Constitutional “interior designers”
 1989 court ruled that a sole crèche display violated
the 2nd prong of the Lemon Test
 1989 court ruled that a menorah beside a Christmas
tree was OK
 New York public school prayer (1962)
• “Almighty God, we acknowledge our
dependence upon Thee, and we beg Thy
blessings upon us, our parents, our teachers and
our country”
• Engel v. Vitale (6-1) ruled that official state
approval of prayer was unconstitutional
• Moment of silence (no), prayer before games
(no), prayer before graduation (no), student
initiated/led before or after school or events
(yes)
 Vouchers
• TODAY: Tax dollars go to public schools
• W/Vouchers: Tax dollars would go to whatever
school parents chose to send a student
• Problems with this?
 Establishment
Clause
• Engel v. Vitale (school prayer)
• Lemon v. Kurtzman (state funding of private
religious schools)
 Free
Exercise Clause
• Reynolds v. United States (polygamy)
• Oregon v. Smith (drug use in religious
ceremonies)
 List
the categories under which the
Supreme Court may classify “speech.”
Explain the distinction between
“protected” and “unprotected” speech
and name the various forms of
expression that are not protected under
the First Amendment. Describe the test
used by the Court to decide the
circumstances under which freedom of
expression may be qualified.
 Freedom
of Expression a summary
phrase for speech and press
 As a general rule, the Court does not
permit restraint of material prior (called
prior restraint) to publication (New York
Times v. Sullivan).
 There are limitations on freedom of
expression, including speech that
presents “a clear and present danger,”
defamation, and obscenity.
 Libel: a
written false statement defaming
another
 Slander: a defamatory oral statement
 Public figures must also show the words
were written with “actual malice”—with
reckless disregard for the truth or with
knowledge that the words were false.






Schenck (1919) printed anti-government pamphlets
The “Clear and Present Danger” test
“The most stringent protection of free speech would
not protect a man in falsely shouting fire in a theater
and causing a panic”
• Oliver Wendell Holmes
Ordinary times it would be allowed, but wartime was
not ordinary
Tinker v. Des Moines (1969) protesting as protected
speech
Texas v. Johnson (1989) flag burning is protected
speech
 Reno
v. ACLU (1997)
• Court ruled the Internet was more like the print
media (which the Government has fewer
controls over) than television
• The Communications Decency Act was found
unconstitutional—it tried to make it a crime for a
person to knowingly circulate “patently
offensive” sexual material to sites where
children could view it
 Roth
v. US (1957)
• Established the obscenity test – “whether to the
average person, applying a contemporary
community standards, the dominant theme of the
material taken as a whole appeals to inciting
lustful thoughts (prurient interest).”
 Justice Potter Stewart’s
• “I know it when I see it”
test
 Miller v. California (1973):
• Something is obscene if: (called the Miller Test)
 Appeals to prurient interests
 Portrays sexual conduct in a patently offensive way
 Work as a whole lacks serious literary, artistic,
political, or scientific value
 Local standards determine the first two prongs
 Some
speech can be made illegal, even
though it conveys a political message
(example: burning a draft card).
 However, statutes cannot make certain
types of symbolic speech illegal: e.g.,
flag burning is protected speech.
 Commercial
speech, such as advertising,
can be restricted; the Federal Trade
Commission (FTC) prohibits false claims.
 In FCC v. Pacifica (1978) the Court upheld
restrictions on foul language over the
public airways.
 Federal Communication Commission
 More
on how a court case moves its way
through the judicial system in America


Step 1: A crime is committed
Step 2: Police investigate
• Gather evidence
• Arrest suspect

Step 3: Convene grand jury
• Grand jury: citizens are presented with evidence against
suspect
• Decide if there is enough evidence to indict the suspect. This is
a formal charge resulting in a trial date
 Note: most cases are pled out (plea deal) to a lesser charge, this can
happen any time before step 6

Step 4: Arraignment
• Suspect hears charges against him
• Enters a plea (guilty, not guilty or unable to stand trial)
• Bail is set or denied

Step 5: Trial
• Both sides present their case before an unbiased jury

Step 6: Verdict
• Guilty
• Not guilty (acquit or acquittal)
• Hung jury

Step 7: Sentencing
• Lawyers present character witnesses
 Mitigating circumstances: show criminal deserves less harsh
punishment (family, friends, etc.)
 Aggravating circumstances: show criminal deserves more harsh
punishment (police, people hurt by crime, etc.)



Step 8: Appeal to higher court
Step 9: Punishment
Or start civil court proceedings (lawsuit)
 Two
guarantees:
• Right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures
• And no warrants shall issue but upon probable cause
 What
is the difference between “probable
cause” and “reasonable suspicion”
• NJ v. TLO
0%
No
info



Hunch
Suspicion
Reasonable
grounds
Probable
cause
50%
95%
100%
Preponderance
of evidence
Beyond
reasonable
doubt
Certainty
No Information: means the officer doesn’t know anything about
the location of evidence linked to a crime
Hunch: means the officer has a gut feeling that something is not
right, but the officer cannot point to any specific facts: it is
something like intuition
Suspicion: means the officer knows a minor fact or knows some
larger fact from an unknown or unreliable source that suggests
evidence may be located somewhere. For instance, an officer
stops a person on the street to ask a question and the person
quickly puts a hand in a pocket. Or, the officer may find a piece of
paper on the street, which says that a particular person is selling
drugs.

Reasonable grounds (also reasonable belief or reasonable
suspicion): means the officer knows several minor facts or a
larger fact or, a larger fact from a source of unknown reliability
that points to a particular person engaging in some criminal
activity. For example, a teacher standing outside a girls’
bathroom smells cigarette smoke coming from the bathroom. The
only two girls in the bathroom then leave together. The teacher
has reasonable grounds, but not probable cause, to believe the
girls have cigarettes in their purses (violation of a school rule)

Probable cause: means an officer has enough to lead a
reasonable person to believe that the items searched for are
connected with criminal activity and will be found in the place to
be searched. For example, an increase of 200-300 percent in
power consumption within a building is not enough alone to
establish probable cause to believe that a drug-growing
operation is under way inside. However, such an increase, with
other suspicious facts including an anonymous phone call
claiming that people at a certain place are growing drugs, is
enough for probable cause and a search warrant



Preponderance of the evidence: is the amount of evidence
needed to be successful when suing in a civil case (see Seventh
Amendment). It means that evidence must be “more likely than
not,” or more than 50%
Beyond a reasonable doubt: is the highest amount of proof; it is
required to convict a person of a criminal charge
Certainty: means that there is not even an unreasonable doubt as
to its truth
Schools are considered a special environment in search and seizure
law
Students can be searched with less than probable cause
There must be reasonable suspicion directed to each student who is
searched. For example, a general concern about drugs will not
justify searches of all students
 With
a properly obtained search warrant: an
order from a judge authorizing the search of a
place and describing what is to be searched
and seized; judge can issue only if there is
probable cause
 What can the police search, incident to a lawful
arrest?
• The individual being arrested
• Things in plain view
• Things or places under the immediate control of the
individual
 “I
plead the fifth”
• 5th Amendment gives protection against
testifying against yourself
• Exceptions
 If you testify in your behalf you forfeit the 5th
 You cannot invoke the 5th to avoid answering an
embarrassing question
 You cannot invoke the 5th to avoid incriminating
someone else
 Double
Jeopardy: being
tried for the same crime
twice
• Exceptions
 State/Federal
 Civil/Criminal
 Hung Juries
 Appeals
 Exclusionary
rule (Mapp v. Ohio, 1961):
evidence gathered in violation of the
Constitution cannot be used in a trial
 Stems from the Fourth Amendment (freedom
from unreasonable searches and seizures)
and the Fifth Amendment (protection against
self incrimination)
 “Fruit
from a poisonous tree is poisonous”
 The
Sixth Amendment says the accused
has a right to counsel.
 State
what the Supreme Court decided in
Miranda v. Arizona, and explain why that
case illustrates how the Court operates in
most due-process cases
 Miranda
case: confessions are
presumed to be involuntary
unless the suspect is fully
informed of his or her rights
 Miranda rights apply once a
suspect is in custody.


“You have the right to remain silent (Bram v. United
States). Anything you say (Griffin v. California) can and
will be used against you in a court of law (Malloy v.
Hogan).You have the right to speak to an attorney
(Escobedo v. Illinois), and to have an attorney present
during any questioning (Brewer v. Williams). If you
cannot afford a lawyer, one will be provided for you at
government expense (Gideon v. Wainwright). Do you
understand these rights?”
Massiah v. United States once right to counsel has been
invoked (the person asks for a lawyer) they have to
stop questioning you.
 The
Eighth Amendment prohibits
excessive bail and cruel and unusual
punishment







Furman v. Georgia (1972): the death penalty, was
applied in a freakish and random fashion and was, in
this particular case, unconstitutional.
Cruel=Painful
Unusual=Punishment not associated with crime
Unusual=Punishes some but not others
States rewrote their death penalty statutes to include
aggravating and mitigating factors
Gregg v. Georgia (1976): the death penalty is an
expression of society’s outrage.
Public opinion on death penalty over 65% approve
 Not specifically in the
 Griswold v. CT (1965)
Constitution
• CT law said the use of birth control a crime
• SCOTUS overturned this law
• Specific guarantees in the 1st, 3rd, 4th and 5th
Amendments create a zone of privacy that is
protected by the 9th Amendment
 Roe
v. Wade (1973)
• 7-2 decision
• Blackmun wrote that a right to privacy existed and
that states had to respect it because of the due
process clause
Privacy
9
Privacy is found in the
"penumbras" and "emanations“ of
other constitutional protections.
• 1st trimester abortions allowed
• 2nd trimester abortions can be restricted, but not
prohibited by the states
• 3rd trimester abortions can be regulated or
prohibited except when medical judgment
determines that an abortion is necessary to save a
woman’s life
 Planned
Parenthood v. Casey (1992)
• Roe not overturned, but new limits were allowed as
long as they didn’t pose an “undue burden”
• Roe was going to be overturned until Kennedy
changed sides at the last moment
Frequency less than it has been in 40 years.
(21.9%)
 1,212,400 abortions last year recorded
 16.7% for whites, 33.5% for nonwhite
 50% under 25 (33% 20-24, 17% teen)


Approval
• 84% mother’s health, 77% rape, 72% birth
defect, 44% low income, 41% single mother,
41% any reason
 NEED TORTURE.MPG
 Patriot
Act
 Guantanamo Bay detainees
 Racial Profiling
 Torture
 Procedural
Due Process:
• Judges should look only at the “process” by
which laws were adopted
• Uphold all laws that were reasonable exercises
of the state’s “police power”
 Substantive
Due Process:
• Judges free to examine the “substance” of the
laws to determine if they deprived any person of
liberty or property
• Allows judges to substitute their views for those
of elected lawmakers
• Which type of judicial view do the two types of
due process correspond to? Judicial restraint?
Judicial activism?