Chapter Fifteen
Order and Civil
Liberties
The Bill of Rights
• The failure to include a bill of rights was
the most important obstacle to the
adoption of the Constitution.
• As it was originally written, the Bill of
Rights imposed limits on the national
government but not on the state
governments.
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The Bill of Rights (Cont’d)
• The Constitution guarantees Americans
numerous liberties and rights.
• The protection of civil liberties in the Bill
of Rights has been a center of conflict
between the basic values of freedom and
order.
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Freedom of Religion
• The First Amendment prevents
government from interfering with freedom
of religion in two different ways.
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Freedom of Religion (Cont’d)
• The Supreme Court has affirmed the
establishment clause, which requires
government to maintain religious neutrality
but does not bar all assistance to religious
institutions.
• The current standard for assessing
whether or not the establishment clause
has been violated was established by the
court in Lemon v. Kurtzman.
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Lemon v. Kurtzman
• The case held that government programs
and laws under the clause:
• Must have a secular purpose
• Must have a primary effect that does not
advance or inhibit religion
• Must not entangle the government
excessively with religion.
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Freedom of Religion (Cont’d)
• Contemporary interpretation of the free
exercise clause of the First Amendment
protects religious beliefs but not actions
based on those beliefs.
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Freedom of Expression
• According to the dominant view, the
freedom of expression clause confers
on individuals the right to unrestricted
discussion of public affairs, as long as
public order is not directly threatened.
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Freedom of Expression (Cont’d)
• Freedom of the press prohibits the
imposition of prior restraint, censorship
before publication.
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Freedom of Expression (Cont’d)
• According to the clear and present
danger test, government has the right to
restrict freedom of speech when public
order is threatened.
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Freedom of Expression (Cont’d)
• Symbolic expression, or nonverbal
behavior, has been upheld by the Court;
although it is generally less protected than
free speech, the courts have upheld
certain types of symbolic expression.
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Freedom of Expression (Cont’d)
• Fighting words are not protected speech
because those words inflict injury or tend
to incite an immediate disturbance of the
peace.
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Miller vs. California
• Case decided that obscene material is
entirely excluded from constitutional
protection:
• The work taken as a whole appeals to the
prurient interest
• The work portrays sexual conduct in a
patently offensive way
• The work taken as a whole lacks serious
literary, artistic, political or scientific value.
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Freedom of Expression (Cont’d)
• The First Amendment guarantees that
government will not interfere with the
freedom of the press.
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The Right to Bear Arms
• The Second Amendment has been the
focus of heated controversy in recent
years.
• Though restrictions on gun ownership
have passed constitutional muster,
prohibitions on gun ownership may
infringe on the Second Amendment.
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The Right to Bear Arms (Cont’d)
• Gun control advocates argue that the right
to bear arms should apply only to state
militias, not to individuals.
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The Bill of Rights and the States
• Because of the adoption of the Fourteenth
Amendment, most of the individual
protections found in the Bill of Rights now
apply to the states.
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Figure 15.1: The Incorporation of
the Bill of Rights
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The Bill of Rights and the States (Cont’d)
• Even before its amendment, the
Constitution set some limits on both the
national and the state governments with
regard to citizens’ rights.
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The Bill of Rights and the States (Cont’d)
• The Supreme Court’s interpretation of the
due process clause in the Fourteenth
Amendment has allowed individuals to
contest state violations of their liberties.
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The Bill of Rights and the States (Cont’d)
• The Supreme Court has ruled, however,
that extension of the Bill of Rights
guarantees to the states via the due
process clause applies only to
“fundamental” rights.
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The Bill of Rights and the States (Cont’d)
• The application of constitutional
procedural safeguards in criminal
proceedings to the states has reshaped
the American criminal justice system in the
last thirty years.
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The Ninth Amendment
• The Ninth Amendment, which protects
rights not specifically enumerated in the
Constitution, has been used by the
Supreme Court to define the limits of
government encroachment on personal
autonomy.
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The Ninth Amendment (Cont’d)
• In Griswold v. Connecticut (1965), the
Court asserted that the Bill of Rights
created a zone of privacy for the individual
that gave the individual the right to make
choices regarding sexual intercourse and
reproduction.
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The Ninth Amendment (Cont’d)
• In Roe v. Wade (1973), the Supreme Court
ruled that a woman’s right to seek an
abortion during the first three months of
her pregnancy rests on the right to privacy
protected by the Fourteenth Amendment.
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