Chapter 15
ORDER AND CIVIL
LIBERTIES
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A Balancing Act
 How well do the courts respond to
conflicts that pit freedom against order
or freedom against equality?
 Are freedom, order, or equality ever
unconditional?
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To Pledge or Not to Pledge,
That is the Question
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Constitutional Rights
 Framers did not include a bill of rights in
the Constitution
 To ensure ratification, 12 amendments
submitted to the states
 Ten ratified in 1791
 Civil liberties – restraints on government
 Civil rights – powers and privileges that
cannot be taken away
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Britain’s Bill of Rights
 Britain has no written constitution
 Began enforcing the Human Rights Act
in October 2000
 In 2008, a joint committee of Parliament
recommended consensus-based UK Bill
of Rights and Freedoms
 Would not give power of judicial review
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Freedom of Religion
 Congress shall make no law respecting the
establishment of religion, or prohibiting
the free exercise thereof.
 Two different guarantees:
 Establishment clause
 Free-exercise clause
 At the time, religion believed to be an
issue for state, not national government
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Freedom of Religion
 Supreme Court rulings on freedom of
religion not definitive
 Freedom of belief unlimited, but freedom to
practice a belief can be limited
 Government cannot benefit directly from
practice of religion, but can indirectly benefit
 Because most Americans identify with a
religious faith, majoritarians would argue
government should support religion
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The Establishment Clause

Bars government sponsorship or support of
religious activity
 “A wall of separation between church and State”

Lemon v. Kurtzman (1971) established test for
determining constitutionality of programs
and laws under establishment clause:
 Must have secular purpose
 Primary effect not to advance or inhibit religion
 Must not entangle government excessively with
religion
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Establishment Clause Key Cases
 Lemon v. Kurtzman
 Agostini v. Felton
 Zelman v. Simmons-Harris
 Lynch v. Donnelly
 Salazar v. Buono
 Engle v. Vitale
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The Crux of the Matter
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School Prayer

Supreme Court consistently equates prayer
in public schools with government support
of religion
 No state-approved prayer
 No Bible reading or Lord’s Prayer
 No nonsectarian prayers at graduation
 No student-led prayers at public high school
football games
 Religions training only after school hours

These rulings support minority rights but
cause majority discontent
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Team Religion Moves
from Field to Stands
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Let Us Pray
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The Free-Exercise Clause
 Supreme Court has avoided absolute
interpretations of this restriction
 Rulings attempt to distinguish religious
beliefs from actions based on those beliefs
 Some areas of conflict:
 Military service
 Working on the Sabbath
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Three-Pronged Test
 Sherbert v. Verner (1963):
First
Amendment protects observance as well
as belief
 Neutral laws that burden the free exercise
of religion subject to strict scrutiny:
 Justified by “compelling government
interest”
 Narrowly tailored to achieve legitimate goal
 Least restrictive means to achieve that
interest
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Freedom of Expression
 Congress shall make no law….abridging
the freedom of speech, or of the press; or
of the right of people to peaceably
assemble, and to petition the Government
for a redress of grievances.
 Majority of the Supreme Court have
never agreed this guarantee absolutely
inviolable
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Freedom of Expression
 Does not mean elimination of risk of
ostracism or criticism by others
 Supreme Court generally rules against
prior restraint, but does sometimes rule
to limit expression
 Can regulate and punish advocacy of ideas
that promote highly probable lawless action
 Can limit means of communicating ideas
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Freedom of Speech
Clear and present danger test established in
Schenck v. United States (1919)
 Protections for speech and press applied to
states in Gitlow v. New York (1925)
 Dennis v. United States (1951) established
grave and probable danger test
 Finally, Brandenburg v. Ohio (1969) expanded
right to political speech through imminent
lawless action ruling

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Symbolic Expression
 Generally less protected than pure
speech
 However, certain types protected
 Tinker v. Des Moines Independent County
School District (1969) said school did not
show forbidden conduct would
substantially interfere with school
discipline
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Order Versus Free Speech: Fighting
Words and Threatening Expression

Fighting words exception to protections of free
speech
 First defined in Chaplinsky v. New Hampshire


Federal Court ruled Communications Decency
Act of 1996 unconstitutional
Recent attempts to limit speech on the Internet
also found unconstitutional
 Reno v. ACLU (1997)
 Internet seen as more like free press than television
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Freedom of the Press
 Government “shall make no
law….abridging the freedom…of the
press.”
 Ability to collect and report information
without government interference
essential to free society
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Shock Jock Rocks
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Defamation of Character
 Libel is written defamation of character
 Because of New York Times v. Sullivan (1964),
public officials must prove actual malice
 Other public figures added in 1967
 Even outrageous and offensive criticisms of
public figures protected
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Prior Restraint and the Press
 Prior restraint places unacceptable
burden on free press
 Ruling in New York Times v. United States
(1971) concluded the government had not
shown publication of Pentagon Papers
would cause immediate, inevitable, and
irreparable harm
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Freedom of Expression
Versus Maintaining Order
 Freedom of the press does not override
needs of law enforcement
 Freedom of the press and expression can
be limited in schools, provided
restrictions serve a “valid educational
purpose.”
 Articles in school newspapers
 “Bong Hits 4 Jesus”
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Hey Dudes, Let’s Protest
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The Rights to Assemble Peaceably
and to Petition the Government
Congress shall make no law…abridging …the
right of the people to peaceably assemble,
and to petition the government for a redress
of grievances.”
 Roots of the right to petition in the Magna
Carta; right to assemble came later
 When freedom and order conflict, justices of
the Supreme Court strike the balance

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The Right to Bear Arms
A well-regulated militia, being necessary to
the security of a free State, the right of the
people to keep and bear arms, shall not be
infringed.
 Gun control advocates believe amendment
supports only right to maintain collective
militias
 Gun rights advocates assert amendment
protects right of individuals to own and use
guns

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Regulation of Guns


In District of Columbia v. Heller (2008), Supreme
Court ruled individuals have right to keep
loaded handgun at home for personal defense
After that ruling, still unanswered questions:
 Does this ruling apply to the states?
 Does this ruling apply to other kinds of guns?
 What is the standard for future challenges to gun
restrictions?

Later, in McDonald v. Chicago (2010), Supreme
Court ruled state and local governments cannot
prohibit right to bear arms
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Right to Bear Arms
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Applying the Bill of Rights
to the States
 Major purpose of Constitution to define
divisions of power between national and
state governments
 Initially, Bill of Rights applied only to
national government
 Fourteenth Amendment’s due process
clause used to apply Bill of Rights to the
states
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The Fourteenth Amendment:
Due Process of Law
 Section 1….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.
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Due Process Clause
 Supreme Court’s interpretations of the
due process clause applied Bill of Rights’
limitations to the states
 Two central meanings:
 Requires government to follow appropriate
procedures
 Forbids unreasonable government action
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The Fundamental Freedoms
 First application of due process clause in
1897 and involved Fifth Amendment’s
prohibition against taking private
property without just compensation
 Supreme Court ruled due process also
protected free speech and free press
from limitations by the states
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Figure 15.2
The Selective Incorporation
of the Bill of Rights
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The Fundamental Freedoms
 Definition of fundamental freedoms a
slow process
 Critical test in Palko v. Connecticut (1937)
 Supreme Court moved from “fair and
enlightened sense of justice” to
“American scheme of justice”
 Palko finally overturned in 1969
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Criminal Procedure: The Meaning
of Constitutional Guarantees
 Fourth through Eighth amendments
specify government’s behavior in criminal
proceedings
 Some variations allowed at state level
 Differences in jury size and requirement for a
unanimous verdict allowed
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Fundamental Rights
Applied to States
 Right to an attorney defined by Gideon v.
Wainwright (1963)
 Right to jury trial guaranteed in Duncan
v. Louisiana (1968)
 Suspects must be informed of
constitutional rights as a result of
Miranda v. Arizona (1966)
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Miranda v. Arizona
 Established warning requirement for
those taken into custody and questioned
 You have the right to remain silent
 Anything you say can be used against you in
court
 You have the right to talk to an attorney of
your own choice before questioning
 If you cannot afford to hire a lawyer, a
lawyer will be provided without charge
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Search and Seizure

Protection against arbitrary search and
seizure applied to states by Wolf v. Colorado
(1949)
 Allowed states to decide how to handle
illegally obtained evidence

Exclusionary rule applied to states by Mapp
v. Ohio (1961)
 United States v. Leon established good faith
exception
 Other exceptions include lack of “knock and
announce” and police negligence
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Wiretapping in the Digital Age
 Communications Assistance for Law
Enforcement Act (CALEA) governs
wiretaps
 Emergence of voice over Internet
protocol calls complicates interceptions
 Complicated compliance
 Enormous data volumes
 Encryption, especially with Skype
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The USA PATRIOT Act
 Government decision to forgo some
liberties to secure greater order after
terrorist attack on September 11, 2001
 This shift worries some civil libertarians
 One area of concern is Section 215, covering
warrantless searches of private records
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Detainees and the
War on Terrorism

President George W. Bush designated
detainees as “enemy combatants” and
denied access to attorneys and hearings
 Supreme Court rejected this position in two
cases decided in 2004

Other cases challenged Bush administration
policies
 Hamadan v. Rumsfeld (2006)
 Boumediene v. Bush (2008)
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The Ninth Amendment and
Personal Autonomy
The enumeration in the Constitution, of
certain rights, shall not be construed to deny
or disparage others retained by the people
 Griswold v. Connecticut (1965) ruling asserted
a “zone of privacy” in intimate, personal
choices

 Privacy rights guaranteed by the Ninth
Amendment and applied to the states by the
Fourteenth Amendment
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Roe v. Wade (1973)

Ruling legalizing abortion based on concept
of constitutional privacy rights
 Affected laws of 46 states
 Treats the three trimesters of pregnancy
differently

Subsequent Supreme Court rulings have
allowed some restrictions on abortion
 Use concept of “undue burden”

Abortion issue pits freedom against order
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Personal Autonomy and
Sexual Orientation

Right-to-privacy cases opened way for
consideration of other social issues involving
homosexuals





Bowers v. Hardwick (1986)
Lawrence and Garner v. Texas (2003)
Defense of Marriage Act of 1996
State laws banning or allowing same-sex marriage
or unions
Pluralist mechanisms like the initiative and
referendum offer a way to overturn judicial
intervention
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Adam and Eve or Adam and Steve?
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