Civil Liberties
Civil Liberties
Chapter 10: Civil Liberties
Section 1: Protecting Constitutional Rights
Section 2: First Amendment Freedoms
Section 3: Protecting Individual Liberties
Section 4: Crime and Punishment
Civil Liberties
Section 1 at a Glance
Protecting Constitutional Rights
• The Bill of Rights protects Americans’ civil liberties and civil
rights.
• In some cases, government may place limits on individual
freedoms for the sake of the common good.
• The Supreme Court has established that many of the
provisions of the Bill of Rights limit the actions of state and
local governments as well as of the federal government.
Civil Liberties
Protecting Constitutional Rights
Main Idea
The United States was formed out of a belief that individuals had
certain important liberties and rights. The Constitution’s Bill of
Rights protects these liberties and rights.
Reading Focus
• What is the Bill of Rights, and what does it protect?
• What are the limitations on civil liberties and rights?
• How does the Fourteenth Amendment help protect civil
liberties?
Civil Liberties
The Importance of the Bill of Rights
Civil Liberties
The Bill of Rights
A firm commitment to gain personal freedoms drove American colonists
to break from Great Britain in the Revolutionary War. The colonists were
trying to protect their rights, including “Life, Liberty, and the pursuit of
Happiness.” Eventually this quest led to the creation of the Bill of Rights.
After Independence
• States adopted own constitutions, most of which protected liberties
• 1787: delegates gathered to draft new national constitution, but there was
little talk of protecting individual rights until end of convention
• George Mason wrote Virginia Declaration of Rights, proposed including bill of
rights; others argued state constitutions enough to protect rights
• Mason’s proposal defeated; few specific protections of individual rights
included in Constitution
Civil Liberties
Civil Liberties
The Bill of Rights (cont’d.)
The Ten Amendments
• To win ratification of Constitution, supporters agreed to add bill of
rights as soon as new national government met
– James Madison began drafting amendments
– Some feared listing individual rights might imply government would
protect only those rights
• Amendment added stating that listing specific rights did not mean
other rights denied to the people
• December 1791: 10 amendments became part of Constitution
– Civil liberties: basic freedoms to think and act; all people have them;
protected from government abuse
– Civil rights: rights of fair and equal status, treatment, right to participate
in government—though these rights not originally guaranteed for all
Civil Liberties
Civil Liberties
Civil Liberties
Sequencing
List the sequence of events that led to the
creation of the Bill of Rights.
Answer(s): independence from Britain declared,
states adopt constitutions, new national Constitution
drafted, a bill of rights is promised during the ratification
battle, Constitution ratified, Bill of Rights ratified
Civil Liberties
Limits on Civil Liberties and Rights
The Bill of Rights sets limits on government, but people do not have complete
freedom to do whatever they choose. To protect the common good, there are
limits on individual liberties and rights.
When Rights Conflict
• Framers: ideal government one that limited liberties as little as possible
• Personal freedoms limited when one person’s exercise of a freedom harms
another person
• Supreme Court has examined limits of different constitutionally protected
freedoms over the years, continues to do so
• Example: government can limit free speech in wartime when that speech
might aid enemy—such as publishing information about tactics of soldiers
Civil Liberties
The Role of the Courts
• Balancing protection of civil liberties a challenge for government
• Government maintains balance through courts
• Courts cannot bring action on their own; only issue rulings when cases
brought before them
• Early on many who needed rights protected had no access to court system
• Most Supreme Court cases protecting civil rights occurred after early 1900s
• Some cases came through actions of interest groups like National
Association for the Advancement of Colored People (NAACP), American Civil
Liberties Union (ACLU), Mexican American Legal Defense and Education
Fund (MALDEF)
• Groups’ involvement in cases had important impact on courts’ decisions
about liberties, rights
Civil Liberties
Summarizing
Why are individual liberties and rights
sometimes limited?
Answer(s): to protect other citizens and the
nation
Civil Liberties
Civil Liberties and the Fourteenth Amendment
The Bill of Rights was intended to limit the actions of the federal
government. This does not mean that state and local governments can
deny individuals their civil liberties and rights. The Supreme Court has
ruled that most Bill of Rights protections apply to state and local
governments as well.
The Due Process Clause
• 14th Amendment: intended to protect rights of formerly enslaved African
Americans after the Civil War
• Forbade states from passing laws to deprive any of “life, liberty or property
without due process of law”—following established legal procedures
• Supreme Court says 14th Amendment’s due process clause guarantees Bill
of Rights applies to states
• Incorporation doctrine holds that certain protections are essential to due
process of law, therefore states cannot deny protections to the people
Civil Liberties
Key Cases
• Process of incorporation found in
number of Supreme Court cases
• 1920s: flurry of 1st Amendment
freedom cases
• Chicago, Burlington & Quincy
Railroad Company v. Chicago—
required states to give owners fair
compensation when taking private
property
• Gitlow v. New York: Court agreed
New York State could forbid man
from plotting to overthrow
government, but states must
respect freedom of speech
• 1931, Near v. Minnesota: Court
incorporated freedom of press
• Multiple rulings incorporating other
amendments
• 1937, DeJonge v. Oregon:
incorporated freedom of assembly
• Court has not incorporated all of Bill
of Rights into 14th Amendment
• 1947, Everson v. Board of
Education: limits against
establishment of religion
• Incorporating many rights has
proved important for protection of
rights, liberties
Civil Liberties
Civil Liberties
Summarizing
How has the incorporation of the Bill of Rights
into the Fourteenth Amendment
affected the protection of civil liberties?
Answer(s): It has extended the protections by
applying the Bill of Rights to the state
governments.
Civil Liberties
Section 2 at a Glance
First Amendment Freedoms
• The First Amendment protects five freedoms that are
fundamental to the American concept of liberty: religion,
speech, press, assembly, and petition.
• Government may not act to establish an official religion,
support one religion over another, or tell people what they must
believe in matters of religion.
• The First Amendment gives every person the right to express
his or her opinion. While this guarantee protects unpopular
speech, free expression is not unlimited.
Civil Liberties
First Amendment Freedoms
Main Idea
The First Amendment protects five fundamental freedoms that
are central to the American notion of liberty: the freedoms of
religion, speech, the press, assembly, and petition.
Reading Focus
• How does the First Amendment guarantee religious freedom?
• What are the guarantees of and limits on the freedoms of
speech and of the press?
• What are the guarantees of and limits on the freedoms of
assembly and petition?
Civil Liberties
The First Amendment
Civil Liberties
Religious Freedom
Chief among the freedoms guaranteed by the First Amendment is
the freedom of religion.
• Central factor in development of United States
• Many came to colonies for freedom to practice faith without discrimination
faced in home countries.
• First Amendment forbids government from establishing official religion, and
guarantees people’s right to “free exercise” of own religion
The Establishment Clause
• Establishment clause declares that government cannot take actions to
create official religion or support one religion over another.
• Through incorporation doctrine, state governments face same prohibition
• Separation of church and state—how separated should they be?
• Religious displays on public property? Public money used to support
religious schools?
Civil Liberties
Public Displays
• Court issue: legality of government-sponsored religious displays
• 1984, Lynch v. Donnelly: Supreme Court ruled that acknowledging religion in
Christmas display did not necessarily mean government promotion of it
• 2005: two 5–4 Supreme Court decisions regarding Ten Commandments
• Two Kentucky courthouses sued for displaying copies of Ten Commandments
along with other historical documents including Constitution
• Kentucky case ruled unconstitutional—focused excessively on religious
aspects of Ten Commandments
• Texas sued for stone marker of Ten Commandments on state capitol grounds
• Texas case ruled constitutional—marker part of historical, educational display,
did not primarily promote a religion
Civil Liberties
Civil Liberties
Religion and Education
• First Supreme Court case exploring limits of establishment clause based on
educational issues
• 1947, Everson v. Board of Education: Court upheld New Jersey plan to use
public money to bus students to private schools
• Did not violate establishment clause because did not single out students
attending religious schools
• 1962, Engel v. Vitale: Court said public school prayer violated establishment
clause even though it was not based on specific religion
• 1971, Lemon v. Kurtzman: established Lemon Test, law must meet all three
standards in order to be found constitutional:
— Must have secular purpose
— Major effects must neither advance nor inhibit religion
— Must not encourage “excessive government entanglement with religion”
Civil Liberties
Civil Liberties
Free Exercise of Religion
• Free exercise clause guarantees
each person right to hold any
religious beliefs they choose
• Government cannot tell person
what he/she must believe
• However, religious practices can be
limited in some cases
• Laws regulating behavior can be
constitutional as long as laws
neutral, do not target specific
religious group
• 1940, Minorsville School District v.
Gobitis: upheld expelling child from
public school for refusing to salute
flag, recite Pledge of Allegiance
• 1990, Employment Division of
Oregon v. Smith: government can
punish illegal drug use even if drug
use part of religious practice
• 1878, Reynolds v. United States:
Court ruled government could ban
Mormon practice of polygamy
• 1943: Court reversed self when
Jehovah’s Witnesses were
assaulted during World War II
• Some court rulings uphold religious
freedom when state laws cause
harmful consequences to members
of religious groups
Civil Liberties
Civil Liberties
Identifying the Main Idea
What two main guarantees regarding religion
are protected by the First Amendment?
Answer(s): Government cannot establish an
official religion, nor can it prevent people from
holding any religious beliefs they choose.
Civil Liberties
Freedom of Speech and of the Press
The First Amendment forbids Congress from making any law abridging
freedom of speech or the press; but the Supreme Court has ruled that
government may place limits on these freedoms, especially when issues of
national security are concerned.
Why Freedom of Speech and of the Press?
• Decisions in U.S. government made by representatives of people
• People must have access to full range of opinions, information
• Must be able to discuss, criticize government without fear of punishment
• Open meeting laws require government to act in public
• Freedom of Information Act: federal government must release most
documents to press, public on request
• Protecting freedom of speech, press challenging in cases of unpopular ideas
• First Amendment exists especially to protect such ideas
Civil Liberties
Limits on Freedoms
• Limits to protection of even
unpopular ideas
• Government can limit speech,
printed material judged obscene
• False advertising also outlawed
• Freedom of speech, press does not
give person right to knowingly harm
another
• Constitution does not protect
defamation, false statements that
harm another person
– Slander: spoken defamatory
statement
– Libel: defamation in print
• Individuals who believe selves to
be slandered or libeled may take
legal action
• 1964, New York Times Co. v.
Sullivan: public officials have fewer
legal protections against libel than
private citizens
• Involved ad in New York Times
describing racial discrimination in
Alabama
• Supreme Court rejected libel suit
• Court: to be libelous, false
statement about public official must
demonstrate “actual malice”
Civil Liberties
Limits on Freedoms (cont’d.)
• Government may limit First Amendment freedoms in name of national
security, to prevent treason, sedition
• Treason: crime of making war against United States or giving “aid and
comfort” to its enemies
• During wartime certain speech or writings may be treasonous, such as
publishing information about location, tactics of American forces
• Sedition: legal term for speech, actions that inspire revolt against
government
• Courts have upheld laws banning seditious speech
• Attempts to define seditious speech, analyze whether or not it has been
protected by First Amendment, have caused much controversy
Civil Liberties
Civil Liberties
The Alien and Sedition Acts
• 1798: United States on verge of war with France
• Federalist Party controlled presidency; Congress passed Alien and
Sedition Acts; intended to protect country from domestic dissent
during war
• Supposedly outlawed “false, scandalous, and malicious” statements
about U.S. government
• In reality, new laws designed to silence Federalists’ rivals,
Democratic-Republicans
• 1800: anger over acts brought about defeat of President John Adams
• Three of four acts later repealed or allowed to expire
• One, Alien Enemies Act, still in effect; allows president to deport
resident aliens if their home countries at war with United States
Civil Liberties
A “Clear and Present Danger”
• World War I, Congress passed Espionage Act, Sedition Act—targeting
criticism of government, interference with war effort
• 1919, Schenck v. United States: Court upheld conviction of man charged with
interfering with war effort by publishing flyer urging men to refuse to serve in
military
• Oliver Wendell Holmes wrote Schenck decision
– Established idea that speech can be limited if it creates “clear and
present danger” of an outcome that government has right to prevent
– Later changed view, argued for specific definition of dangerous speech
• 1927, Whitney v. California: state has power to punish those whose words
might encourage crime, disturb peace, harm public welfare
• Eve of U.S. entry into World War II
– Outlawed calling for forceful overthrow of United States
– Also outlawed organizing, joining group with such views
Civil Liberties
The First Amendment and the Media
• First Amendment also protects freedom of press
• Acknowledges importance of free media in democratic society
• Government has tried to balance need for media freedom, rights of others,
issues of national security
• Radio, television broadcasters have fewer First Amendment protections than
print media; government regulates public airwaves
• Certain language and content limited or prohibited
•
•
•
•
Cable systems do not use public airwaves, have greater freedom
Internet also less subject to government regulation
Trying to limit pornography on Internet largely unsuccessful
1997, Reno v. American Civil Liberties Union: Court rejected law seeking to
regulate Internet pornography, in part because users not likely to encounter
offensive content by accident—ruled law violated First Amendment’s
guarantee of free speech
Civil Liberties
Civil Liberties
Prior Restraint
• Another freedom of press issue is prior restraint: government action that
seeks to prevent materials from being published
• 1931, Near v. Minnesota: Court ruled prior restraint almost always
unconstitutional
• Someone could be punished if law broken, but not if officials believed law
might be violated in the future
• 1971, New York times Co. v. United States: President Richard Nixon tried to
stop New York Times publication of Pentagon Papers, classified documents
about Vietnam War policy
• White House argued publication of papers would threaten national security
• In reality, publication would reveal that U.S. officials had long misled public
about war
• Court ruled government failed to prove need for prior restraint; Pentagon
Papers were published
Civil Liberties
Symbolic Speech
• Supreme Court has granted some
First Amendment protections to
symbolic speech: communication
of ideas through symbols, actions
• Protected as long as speech does
not pose major threat to property,
public order
• 1969, Tinker v. Des Moines
Independent Community School
District: Supreme Court ruled Iowa
school could not prevent students
from wearing black armbands as
Vietnam War protest
• 1931, Stromberg v. California:
Court overturned conviction of
woman displaying red flag as
symbol of opposition to organized
government
• Ruled California law overly vague,
restricted free speech
• 1989, Texas v. Johnson: burning
American flag as part of political
protest protected act of free speech
• Cannot prohibit expression of idea
simply because society finds idea
offensive, disagreeable
Civil Liberties
Civil Liberties
Drawing Conclusions
Why are freedom of speech and freedom of the
press so important in our democratic system?
Answer(s): possible answer—They allow citizens
access to a wide range of ideas about politics and
encourage discussion of government policies and active
participation in government.
Civil Liberties
Freedoms of Assembly and Petition
The First Amendment’s final two protections prohibit government
from denying people the right “peaceably to assemble, and to
petition the Government for a redress of grievances.”
• People have right to meet together, express views peacefully
• People have right to make opinions known to government through
petitions designed to force government to consider issue, allow vote
Landmark Cases
• 1937, DeJonge v. Oregon: ruling recognized right to peaceably assemble as
basic right, incorporated into 14th Amendment making it illegal for states to
deny this right
• 1963, Edwards v. South Carolina: students denied right to assemble, petition
for redress of grievances; if assembly is peaceful, cannot be stopped simply
because bystanders ARE disorderly
Civil Liberties
Civil Liberties
Limits on Assembly and Petition
• In general, government cannot limit right of assembly, petition based on
protesters’ points of view
• Only in extreme cases—protesters encouraging violent acts—does
government have strong reason to limit First Amendment freedom
• Governments can place reasonable restrictions on time, manner, place of
gatherings
• Citizens can be required to obtain permit to hold demonstration
• Citizens can be denied right to make excessive noise
• Citizens can be kept off private property, prevented from invading privacy of
others
• Any rules must serve clear, valid purpose
• Any rules must be applied evenly, without regard to content of demonstrator’s
message
Civil Liberties
Freedom of Association
• Freedom of association—the right
to join with others, share ideas,
work toward common purpose
• Phrase does not appear in First
Amendment
• Alabama had tried to force NAACP
to give state list of members
• NAACP feared publicizing names
would lead to violence, harmful
consequences
• Supreme Court has determined
freedoms guaranteed by First
Amendment establish right to
freedom of association
• 1958, National Association for the
Advancement of Colored People v.
Alabama ex rel. Patterson
• Supreme Court agreed: forcing
release of members’ names would
harm freedom to associate
• Found Alabama’s actions violation
of Constitution
Civil Liberties
Drawing Conclusions
What are the purposes of the freedoms of
assembly and petition?
Answer(s): allows people to meet together,
express their ideas and make their views known
to the government
Civil Liberties
Debating the Issue: Prayer in Public Schools
Does the Constitution permit prayer in public schools?
The First Amendment states that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof.” This protection of religious freedom both forbids the
government from establishing an official religion and guarantees
Americans’ right to freely exercise their own religious beliefs. But what
about prayer in public schools? Some Americans believe that allowing
prayer in public schools is an unconstitutional government support for
religion. Others believe that the right to pray in public schools is an
essential religious freedom.
Civil Liberties
Debating
the Issue
Civil Liberties
Section 3 at a Glance
Protecting Individual Liberties
• The Second Amendment protects the right to keep and bear
arms. The Third and Fourth Amendments guard the rights to
security of home and person.
• The Supreme Court has interpreted the Constitution as
protecting a right to privacy.
• The Constitution’s guarantees of due process require that
government act in accordance with fair and public laws in
whatever it does.
Civil Liberties
Protecting Individual Liberties
Main Idea
A key purpose of the Bill of Rights is to protect individuals from
government abuses. Several amendments limit the government’s
power and protect individual rights against government actions.
Reading Focus
• What are the purposes of and limits on the right to keep and bear arms?
• How does the Bill of Rights guarantee the security of home and person?
• How has the right to privacy developed?
• How and why does the Constitution guarantee due process of law?
Civil Liberties
Limits on Government
Civil Liberties
The Right to Keep and Bear Arms
• Second Amendment, one of most heavily debated amendments today
• Included to protect rights of states to form militias, ease fears of those
worried about standing army controlled by federal government
– Some believe this protects individual right to own all kinds of firearms
– Others believe amendment only protects rights of states to form militias
• Only one major Supreme Court ruling
• 1939, United States v. Miller: Court upheld law placing restrictions on
possession of some types of guns often used by criminals
• Said amendment protected only guns that might be used by people in militia
• Since Miller, Supreme Court has not addressed issue of gun control
– Some lower courts have made decisions on gun control laws
– 2007: federal appeals court overturned Washington, D.C., law banning
almost all ownership of handguns or rifles
Civil Liberties
Summarizing
What is the controversy
over the Second Amendment?
Answer(s): Some believe it protects only the
rights of states to form militias; others believe it
allows citizens to own all types of firearms.
Civil Liberties
Security of Home and Person
The Third Amendment
• British military sometimes quartered—housed—soldiers in colonists’ homes
• Sometimes paid for food, shelter; often did not
• Declaration of Independence listed quartering of troops among many
American complaints against British
• Third Amendment forbids government from housing troops in private houses
during times of peace without consent of owner
• During war, troops can only occupy private houses as prescribed by law
• Military forces cannot simply take over house without due process
Today the Third Amendment is largely forgotten by most Americans. Forced
quartering of troops has never been the subject of a Supreme Court case.
Civil Liberties
Security of Home and Person (cont’d.)
The Fourth Amendment
Search and Seizure
• Fourth Amendment also result of
hated British practice in colonial
times: use of writs of assistance
• Fourth Amendment also forbids
“unreasonable searches and
seizures”
• Writ, a legal document that gave
British authorities wide power to
search private homes, businesses
• Sets terms for issuing search
warrant, document giving police
legal authority to search private
property
• Could conduct searches without
probable cause, strong likelihood
they would find evidence of a crime
• Fourth Amendment written to
protect Americans against such
abuses, has proved to be important
guarantee of personal security
• Government can issue search
warrant only after authorities have
proved to a judge there is probable
cause for a search
• Warrant must describe what will be
searched, seized
Civil Liberties
• Officials an enter in emergency without warrant, must follow strict rules
• Only search for evidence directly related to crime being investigated
• May seize other evidence only if it is in “plain view”
• 1987, Arizona v. Hicks: “plain view” did not extend to serial numbers
• 1914, Weeks v. United States: evidence obtained illegally may not be used
against person in court; known as exclusionary rule
• 1961, Mapp v. Ohio: conviction overturned because evidence seized in illegal
search
• Fourth Amendment does not always require police to obtain warrant
• Person’s right to be free does not reach outdoors
• Police can search through person’s trash without warrant
Civil Liberties
Security of Home and Person (cont’d.)
Pedestrians and Cars
• Legally speaking, stopping a person considered a seizure
• Police can stop someone on basis of reasonable suspicion
• Once stopped, police may search person if there is concern for safety of
police officer, others
• To arrest, police must be able to show probable cause
• Fourth Amendment relates to stopping, searching vehicles
• Can stop, search autos without warrant under some circumstances
• Can stop drivers observed committing traffic violations
• May seize evidence in plain view, search any place within reach or control of
vehicle’s occupants
• In some cases may also search auto’s trunk without warrant
Civil Liberties
Security of Home and Person (cont’d.)
Electronic Communications
• Fourth Amendment protects person’s “papers”
• Courts have had to decide if this applies to new means of communication—
telegraph, telephone, Internet
• 1928, Olmstead v. United States: wiretapping not illegal search
• 1967, Katz v. United States: Court reversed self; wiretapping now requires
probable cause warrant
• Post-9/11, USA PATRIOT Act gave law enforcement agencies more freedom
to search telephone, e-mail communications, business, medical, library
records
• 2007: parts of act struck down; gave officials too much power to search
phone, Internet records without court oversight
• 2005: NSA secret program monitoring communications prompted debate of
violations
Civil Liberties
Civil Liberties
Security of Home and Person (cont’d.)
Testing for Drugs
• Courts have held private employers have wide freedom to test their workers
to discourage illegal drug use
• Governments face limits in ability to test their workers
• Can test employees whose jobs may affect public safety—pilots, drivers
Protections for Students
• Supreme Court: public school students have fewer Fourth Amendment rights
than general population
• Court has ruled school’s need to ensure safe learning environment can
override privacy concerns
• School officials may search for drugs, weapons, randomly test student
athletes for drugs, require other students participating in extracurricular
activities be tested for drugs
Civil Liberties
Civil Liberties
Summarizing
How do the Third and Fourth Amendments
protect Americans’ security?
Answer(s): Third Amendment—by preventing
the government from quartering troops in private
homes; Fourth Amendment—by forbidding
unreasonable searches and seizures
Civil Liberties
The Right to Privacy
Throughout this section there have been references to the Supreme
Court’s protection of a right to privacy. Yet the Constitution makes no
explicit reference to such a right. Where does this right come from?
Implied
Zones of Privacy
• Fourth Amendment implies people
can expect not to have their privacy
violated by unreasonable searches
• Court embraced right to privacy,
stating several amendments create
“zones of privacy,” including right of
married couples to make decisions
about birth control
• Some argue right to privacy should
be considered part of concept of
liberty guaranteed by due process
clauses of Fifth, Fourteenth
Amendments
• 1965, Griswold v. Connecticut
• 1973, Roe v. Wade: citing right to
privacy, Court held state law could
not deny woman right to abortion in
first three months of pregnancy
Civil Liberties
Civil Liberties
Drawing Conclusions
Where does the concept of the
right to privacy come from?
Answer(s): implied in the Fourth, Fifth, and
Fourteenth Amendments
Civil Liberties
Due Process of Law
The concept of due process is key to the protections provided by the Bill of
Rights. Due process requires that government act fairly and reasonably in
accordance with established laws. Due process limits government’s police
power, or its ability to regulate behavior for the common good.
Procedural Due Process
• Procedural due process: certain
procedures must be followed
before punishing person
• 1979, Mackey v. Montrym: state
can take away driver’s license if
driver refused breath test;
penalizing without finding guilty
• Getting drunk drivers off road
strong enough reason to deny due
process
Substantive Due Process
• Substantive due process:
concerns whether laws themselves
are fair and just
• Based on idea that people have
rights that cannot be taken away,
even by laws passed properly
• 1873, Slaughterhouse Cases:
dissenting opinion became basis
for later rulings on due process
Civil Liberties
Civil Liberties
Contrasting
What is the difference between procedural
and substantive due process?
Answer(s): Procedural due process involves
issues concerning the fairness of legal
procedures; substantive due process involves
the fairness of the laws themselves
Civil Liberties
Section 4 at a Glance
Crime and Punishment
• The Constitution protects rights of people accused of
crimes, including the right to a fair trial.
• People convicted of crimes also have certain rights. The
Constitution prohibits government from imposing
excessive fines or cruel and unusual punishments.
Civil Liberties
Crime and Punishment
Main Idea
The Constitution contains many features that help ensure that
people accused of a crime receive fair and reasonable
treatment—from arrest to trial to punishment.
Reading Focus
• How does the U.S. justice system address both civil law and criminal law?
• How does the Constitution guarantee the rights of those accused of a crime?
• What are the major constitutional guarantees for ensuring fair trials?
• How does the Constitution address the punishment of persons convicted of
crimes?
Civil Liberties
Protections for the Accused
Civil Liberties
The U.S. Justice System
The basic freedoms to think and to act as we choose are guarded by
the U.S. justice system, which also provides protections for persons
accused of crimes and for those convicted of crimes. The justice
system seeks fair and impartial outcomes for disputes of all kinds. It
follows rules and guidelines to resolve lawsuits, criminal trials, and
other disputes.
Types of Law
• Law commonly classified into two categories
• Civil law covers private disputes between people over property, relationships
• People who violate civil law often fined, otherwise punished, not imprisoned
• Criminal law is system for dealing with crimes, punishments
• People who violate criminal law may be fined, imprisoned, even executed
Civil Liberties
The U.S. Justice System (cont’d.)
Civil Law
• Several categories: contracts; tort
law; property law; family law
• Contract: legal agreement between
two or more parties; verbal or
written, but all legally binding
• Tort law involves actions harmful to
another person; medical
malpractice, civil rights violation
• Property law involves purchase,
sale of property; house, auto
• Family law, marriage, divorce, child
custody
Civil Lawsuits
• Civil law case called lawsuit;
plaintiff brings suit against
defendant, seeking damages,
compensation
• Alternative dispute resolution
sometimes sought rather than trial;
mediation, arbitration, negotiation
• Basic steps of trial: plaintiff hires
lawyer, files complaint; seek to
settle before trial; trial goes
forward; trial heard by jury, or
judge; jury, judge issues ruling;
decisions may be appealed
Civil Liberties
The U.S. Justice System (cont’d.)
• Criminal Law
– Deals with crime, offenses against public
– Crime occurs when person breaks local, state, federal law
– Misdemeanor crimes, relatively minor offense; traffic, petty theft
– Felony crimes, more serious; murder, sexual assault, grand theft
• Criminal Case Processes
– 5th Amendment guarantee: cannot face trial for most federal crimes
without first facing grand jury
– Grand jury decides if enough evidence to charge person with crime
– Issues formal complaint, indictment
– Accused arrested, taken into custody
– Pretrial hearings
– Plea entered
Civil Liberties
The U.S. Justice System (cont’d.)
• Criminal Case Processes (cont’d.)
– Bail—money pledged by accused as guarantee he/she will return for
trial—may be set
– Plea bargain may be reached
– If trial proceeds, complex process begins
• Jury Trial
– Jury selection comes first
– Prosecution and defense each offer evidence, witnesses
– Judge or jury decides case
– Either side may appeal decision to higher court
– If defendant found guilty, sentencing takes place at separate hearing
– Sentences depend on severity of crime: probation, prison time, capital
punishment—punishment by death—most severe sentence
Civil Liberties
Civil Liberties
Comparing and Contrasting
In the U.S. justice system, how are civil and
criminal cases similar and different?
Answer(s): Both may be settled before trial or in a
courtroom, and both involve punishments. Civil cases
cover disputes between people over property and
relationships; criminal cases involve people accused of
committing crimes.
Civil Liberties
Rights of the Accused
In our justice system, we presume that people accused of crimes are innocent
until proven guilty beyond a reasonable doubt. Balancing the rights of the
accused with the need to protect society from criminals is a major challenge.
Habeas Corpus
• Writ of habeas corpus, legal order requiring imprisoned person to be brought
before court so judge may determine whether or not imprisonment is legal
• Important protection against government abusing police power
• Has received much attention in aftermath of 9/11
• Many suspected terrorists held several years after capture with no formal
hearing, judicial process
• 2004, Hamdi v. Rumsfeld and Rasul v. Bush: unlawful enemy combatants do
have limited rights to challenge imprisonment
• 2006: Congress passed law establishing tribunal system
Civil Liberties
Civil Liberties
Rights of the Accused (cont’d.)
Grand Juries
• Fifth Amendment includes guarantee people cannot be tried for most federal
crimes without first being indicted by grand jury
• Some states do not have grand jury system
• Criminal charges brought by prosecutor in an information
Self-Incrimination
• Fifth Amendment protects accused from witnessing against him/herself
• Protection covers any government proceeding that might lead to criminal
charges; covers only spoken testimony
• Government can get people to testify against selves by granting immunity
• 1966, Miranda v. Arizona: questioning suspects without giving right to consult
with attorney violates Fifth Amendment
Civil Liberties
Self-Incrimination (cont’d.)
• Miranda decision requires police to read Miranda warnings to suspects
• Miranda warnings, list of constitutional rights: right to remain silent; anything
they say may be used against them in court; right to have attorney; courtappointed attorney provided if they cannot afford attorney
• Police failure to advise of Miranda rights may result in courts refusing to
consider confession as evidence
• Miranda warnings controversial
• Critics: some guilty people go unpunished because police did not inform of
rights
• Supporters: warnings protect innocent people from being tricked, forced into
confessing to crimes they did not commit
Civil Liberties
Civil Liberties
Rights of the Accused (cont’d.)
Bail
Bills of Attainder
• Eighth Amendment: “excessive bail
shall not be required”
• Bill of attainder declares person
guilty; takes away right to trial
• Not all must be allowed to post bail
• Constitutionally prohibited from
being passed by states, Congress
as violation of separation of powers
• Some charged with crimes like
murder not allowed to post bail
Ex Post Facto Laws
Victims’ Rights
• Ex post facto laws apply to events
in past; outlawed by Constitution
• Some feel Constitution does not
sufficiently protect victims of crimes
• If not prohibited, such laws would
make it possible to punish person
for actions legal at time committed
• Victims’ rights laws defend right to
be treated with fairness, respect; be
present at court proceedings,
informed of outcome of trial
Civil Liberties
Civil Liberties
Making Inferences
Why do persons accused of crimes need special
protection against possible government abuse?
Answer(s): possible answer—to prevent
innocent people from being punished
Civil Liberties
Landmark Supreme Court Cases
Miranda v. Arizona (1966)
Why It Matters:
Miranda v. Arizona protects the rights of criminal
suspects during police interrogations. Suspects in
police custody must be informed of their rights
before questioning.
Civil Liberties
Guarantees of a Fair Trial
The Constitution provides many safeguards for the rights of those accused of
crimes. Portions of the Fifth, Sixth, Seventh, and Eighth Amendments, as well
as Article I, guarantee the basic courtroom protections that define the
American legal system.
Speedy and Public Trial
• Sixth Amendment: “accused shall enjoy the right to a speedy and public trial”
• Innocent person may spend less time in jail, witnesses’ memories fresher,
testimony more accurate
• Public trial prevents abuses of law, allows public to monitor proceedings
• Press access to courtroom controversial; may influence jurors
• Supreme Court: televising trial does not prevent fair trial
• Courts have power to limit public access to courtrooms
• May close trial to public to ensure fair trial, protect the public interest
Civil Liberties
Trial by Jury
• 6th Amendment: right to trial by jury, incorporated into 14th Amendment
• Trial jury made up of 12 jurors; takes place in district in which crime took
place
• Bench trial: one in which judge alone hears trial; usually minor criminal trials
Right to an Adequate Defense
• Defendants must be informed of charges against them; be confronted with,
have chance to cross-examine, witnesses against them
• Adequate legal representation guaranteed; right to attorney; lawyer’s failure
to meet professional standards violation of defendant’s rights
Double Jeopardy
• Double jeopardy: no one can be made to stand trial twice for same offense
• Incorporated into 14th Amendment, but not double jeopardy if jury fails to
reach verdict and government tries case again
Civil Liberties
Summarizing
How does the Bill of Rights help ensure
a fair trial for defendants?
Answer(s): by guaranteeing a speedy and
public trial, a trial by jury, adequate defense for
the accused, protection from double jeopardy
Civil Liberties
Punishment
The Constitution includes protections for those convicted
of crimes. The Framers were anxious to protect the
American people from possible abuse of government
powers.
• Excessive Fines
– Eighth Amendment: prohibits government from imposing
excessive fines
– Limit applies only to government, not jury awards in civil cases
• Cruel and Unusual Punishments
– Eighth Amendment bans cruel and unusual punishments
– Supreme Court has never defined “cruel and unusual”
– Debate has figured into numerous cases involving death penalty
Civil Liberties
Punishment (cont’d.)
Capital Punishment
• 1972, Furman v. Georgia
• Death penalty practiced at time Bill
of Rights written
• 1976, Gregg v. Georgia
• Supreme Court has consistently
ruled capital punishment
constitutional
• Many Americans concerned about
how fairly penalty is applied
• Number of crimes for which capital
punishment applied reduced
• Most states allow death penalty
• New technology has helped prove
innocence of some convicted
criminals
• Court focused on just application of
penalty
Lethal injection has become the subject of controversy, particularly over
whether or not it constitutes cruel and unusual punishment.
Civil Liberties
Civil Liberties
Summarizing
What issues involving capital punishment
are controversial?
Answer(s): possible answer—Is it an effective
crime deterrent? Is it cruel and unusual
punishment? Is it being applied fairly?
Civil Liberties
We the People: The Citizen and the Constitution
Fundamental Rights and the Doctrine of Incorporation
Next to the preservation of the Union and the abolition of
slavery, the most important constitutional development of the
post–Civil War era was the passage of the Fourteenth
Amendment. Originally intended to protect the rights of newly
freed African Americans, the amendment has become a
principal guarantee of the fundamental rights of all Americans,
as important as the Bill of Rights itself.
• What is procedural due process?
• What is substantive due process?
• What is the doctrine of “incorporation”?