Ch. 4: Civil Liberties

Introduction
 The meaning of our freedoms is constantly questioned and subject to change
 The Framers supported liberty but defined it narrowly
 Civil liberties in America have been greatly expanded over the life of our country

Civil Liberties in the Constitution
 The Framers were especially concerned about founding a society in which liberty was encouraged
 The Framers believed that government itself was capable of threatening liberty

Civil Liberties in the Constitution
 Civil liberties: freedoms protected by constitutional provisions, laws and practices from certain kinds of governmental interference
 Two categories
 Expression, belief and association
 Protections for those accused of criminal activities

Civil Liberties in the Constitution
 The Framers protected few liverties from the national and state governments
 Protected liberties not so much by writing them down, but by developing
 Republican government
 Separation of powers
 Checks and balances
 federalism

Civil Liberties in the Constitution
 The Framers thought some liberties were so crucial that they wrote them into the
Constitution
 Anti-Federalists criticized the lack of liberties in the Constitution, so
 Bill of Rights

Civil Liberties in the Constitution
 Few of our most cherished liberties are actually found in the Constitution
 Developed through
 Political activities
 Government
 Social movements
 Interest groups
 Individuals

Rights and Liberties in the 19 th Century
 Economic liberty in the Early Republic
 Many of the liberties in the Constitution protect not individual freedoms, but property rights

Rights and Liberties in the 19 th Century
 Economic liberty in the Early Republic
 The Marshall Court (1801-1835)
 Contract clause was used to protect unwarranted state action
• Expanded property rights
 Cases
 Barron v. Baltimore (1833)
 Fletcher v. Peck (1810)
 Dartmouth College v. Woodward (1819)

Rights and Liberties in the 19 th Century
 Economic liberty in the Early Republic
 Taney Court (1836-1864)
 Distinguished between private property used to encourage economic growth and that used for mere enjoyment
 Cases
• Charles River Bridge v. Warren Bridge (1837)
• Dred Scott v. Sanford (1857)

Rights and Liberties in the 19 th Century
 Economic Liberty After the Civil War
 14 th Amendment
 Due process clause
• Supreme Court interpreted this clause as a protection for businesses against the states regulatory efforts
 Lochner v. New York (1905)
 Property rights expand, refined, and altered to assist the industrial economy

Nationalization of the Bill of Rights
 The Bill lf Rights is the foundation of
American Freedom
 Until the 20 th century, it did not apply to the states
 Became applicable to the states through selective incorporation
 Bill of Rights is not fully incorporated

Nationalization of the Bill of Rights
 Beginnings of incorporation
 14 th Amendment: three clauses prohibit states from violating the rights and liberties of those living in them
 Citizenship clause
 Privileges and immunities clause
 Due process clause

Nationalization of the Bill of Rights
 How do we get incorporation?
 United States v. Carolene Products Company
(1938)
 Footnote Four and Harlan Fiske Stone
• Most state legislation would receive ordinary scrutiny ; i.e., the Court would assume state actions constitutional unless convinced otherwise

Nationalization of the Bill of Rights
 How do we get incorporation?
 United States v. Carolene Products Company
(1938)
 Footnote Four and Harlan Fiske Stone
• Some activities would automatically be presumed unconstitutional unless states could prove otherwise
 Contradict specific prohibitions in the Bill of Rights
 Restrict the democratic process
 Discriminate against racial, ethnic or religious minorities

Freedom of Speech
 Speech can take many forms, including political, symbolic and money
 Gitlow v. New York (1925)
 Incorporation of free speech clause in First
Amendment
 Must show a “clear and present danger”
 More political speech is protected than not

Freedom of Speech
 Not every type of speech is protected
 That which leads or has led directly to violence or vandalism
 Interfered with constitutional rights of others
 Disrupting a legitimate government function
 Passed on classified info
 Trespassing

Freedom of Speech
 To restrict political speech attempt must be
 Content neutral
 Serve a legitimate government purpose
 Narrowly tailored
 Not have a chilling effect

Freedom of Speech
 Speech mixed with conduct may be restricted if
 Restrictions are narrowly tailored and aimed at conduct
 Speech is unmolested

Freedom of Speech
 Suppression of Free Expression
 Internal security and national defense
 Historic incidents during
 War
 National crisis

Freedom of the Press
 Gitlow v. New York (1925) included press
 Issues
 Prior restraint
 Protection of sources
 Cases
 New York Times v. Sullivan (1964)
 New York Times v. United States (1971)

Freedom of the Press
 Offensive Media – Pornography
 Legal term is obscenity
 Not protected, but
 Argument has been over the definition of obscenity
 Miller v. California (1973)
 Appeals to prurient interest
 Specific definition of what sexual conduct is obscene
 Work as a whole lacks serious literary, artistic, political or scientific value (LAPS test)

Freedom of the Press
 Offensive Media – Pornography
 If the work survives any one element of Miller, it is not obscene
 LAPS is judged on the testimony of expert witnesses, not community standards
 If all three parts of Miller are met, community standards can be used

Freedom of the Press
 Offensive Media – Pornography
 New York v. Ferber (1982): states can prohibit production, distribution and sale of child porn
 Communications Decency Act (1996)
 Violated First Amendment
 Overly broad or vague

Freedom of Religion
 Competing issues
 Free exercise clause
 Establishment clause
 “wall of separation between church and state”
(Thomas Jefferson)
• Where is the line drawn?
 Incorporated

Freedom of Religion
 Lemon Test: avoiding the establishment of religion
 Lemon v. Kurtzman (1971)
 Law has a secular purpose
 Primary effect of law does not retard nor advance religion
 Prohibits excessive government entanglement between state and religion

Freedom of Religion
 Religion in Public Schools
 Since early 1960’s, the Court has consistently struck down laws regarding a moment of silence
 Wide range of constitutionally protected religious activity in schools

Freedom of Religion
 Religion in Public Schools
 Cases
 Engle v. Vitale (1962)
• Court struck down required recitation of nondenominational prayer
 Lee v. Weisman (1992)
• Court struck down school-sponsored prayers at graduations
 Santa Fe Independent School District v. Doe (2000)
• Court struck down student-led prayers at schoolsponsored events

Freedom of Religion
 Religion in Public Schools
 Other issues
 Voluntary class prayer or moment of silence
 Constitutional amendment re: school prayer
 School curriculum
• Evolutionary biology v. creationism or intelligent design

Privacy
 Not mentioned in the Constitution
 Inherent in the Bill of Rights
 4 th Amendment + 9 th Amendment
 “penumbras”
 Griswold v. Connecticut (1965)
 Fundamental right may exist, but
 Nature?
 Scope?

Privacy
 Cases
 Roe v. Wade (1973)
 Constitutional right to terminate pregnancy
 Lawrence v. Texas (2003)
 Overturned Bowers v. Hardwick (1986)
 Constitutionally protected right to privacy regarding consenting sexual conduct

Privacy
 Right to die
 Court has neither endorsed nor rejected this right
 Assisted suicide

Privacy
 Private Communications
 Government surveillance
 USA Patriot Act
 Warrantless phone and Internet searches

Rights of the Accused
 Framers included this in the main part of the Constitution
 Five of the ten rights in the Bill of Rights deals with these issues
 Issue?
 Controlling crime v. protection from wrongful prosecution, conviction and incarceration

Rights of the Accused
 Unreasonable Search and Seizure
 Fourth Amendment
 Mapp v. Ohio (1961)
 Exclusionary rule

Rights of the Accused Rights of the
Accused
 Unreasonable Search and Seizure
 Warren Court (1953-1969)
 Expand rights of the accused
 Burger Court (1969-1986)
 Limited those rights
 Authorized a “good-faith” exception to exclusionary rule

Rights of the Accused Rights of the
Accused
 Unreasonable Search and Seizure
 Rehnquist Court (1986-2003)
 “Retroactive probable cause”
 Further limits against exclusionary rule

Self-Incrimination
 Fifth Amendment
 Warren Court
 Miranda V. Arizona (1966)
 Burger Court
 Upheld Miranda, but allowed exceptions
 Rehnquist Court
 Coerced confession may be “harmless error,” but
 Upheld Miranda four times between 2000 and 2004

Right to Counsel
 Sixth Amendment
 Powell v. Alabama (1932)
 Legal counsel for indigent accused of capital crime
 Gideon v. Wainwright (1963)
 Defendants accused of any felony entitled to a lawyer
 States must supply a lawyer to indigent

Capital Punishment
 Eighth Amendment
 Furman v. Georgia (1972)
 “Cruel and unusual punishment” because
 “Capricious and arbitrary”
 Gregg v. Georgia (1976)
 Capital punishment not inherently cruel or unusual if procedures were nonarbitrary and nondiscriminatory
 “Obstacle course” for states wanting to use death penalty
• Defendant allowed to show mitigating circumstances

Capital Punishment
 Important Death Penalty Cases
 McCleskey v. Kemp (1987)
 Race and death penalty
 Penry v. Lynaugh (1989)
 Execution of the retarded
 Stanford v. Kentucky (1989)
 Execution of a minor

Capital Punishment
 Important Death Penalty Cases
 McClesky v. Zant (1991)
 Limited avenues and means of challenging convictions
 Kenney v. Tamayo-Reyes (1992)
 Limited right of death row inmates convicted in state courts to appeal to Supreme Court

Capital Punishment
 Death Penalty
 Decrease in support
 Fairness
 Wrongful convictions
• Quality of defense
• Race
 Use of DNA

Civil Liberties and Struggle Against
Terrorism
 Wars inevitably lead to curtailment of civil liberties
 President George W. Bush and war on terrorism
 Treatment of detainees
 Spying, wiretapping, etc.
 Torture
 USA Patriot Act

Civil Liberties
 Expansion in U. S.
 Gaps in wealth and income = fewer liberties
 The state does sometimes curtail liberties
 Constant vigilance

The End