CHAPTER 10: CIVIL
LIBERTIES
The Conflicts of Understanding Our
Freedoms
Why did British first colonize the New
World?
- What two main factors drove them
leave Europe behind them?
- Consider the first two colonies
HISTORY OF AMERICAN RIGHTS
1) Economic Opportunities
2) Religious Freedom
What is the problem with too much freedom or rights?
- How does this shape the national discourse on rights?
- Government must always consider the common good
(General Welfare). How does this affect the
conversation on rights?
HISTORY OF AMERICAN RIGHTS- NATIONAL
DEBATE (NOT COLONIAL)
Constitutional Convention:
- George Mason, representative from Virginia, proposed
the inclusion of a Bill of Rights to the Constitution, but
was rejected. (He later refused to sign the Constitution)
- The debate continued into the ratification process.
- In order for the federalists to win over enough support,
they agreed to the addition of the Bill of Rights which
was ratified in December, 1791.
CIVIL LIBERTIES V. CIVIL RIGHTS
Civil Liberties: basic freedoms to think and act that all
people have and that are protected against government
abuse.
- speech, assembly, religion (what right?)
Civil Rights: rights of fair and equal status and
treatment and the right to participate in government.
- Based on gender, race, ethnicity (whose right?)
- Civil rights have not always been guaranteed or
accessible to all members of society (even today).
- Civil rights are an extension of the 14th amendment.
NEGATIVE V. POSITIVE RIGHTS
negative rights: rights that come from the
government’s inability to act. (example: free
speech)
positive rights: rights that come from the
government’s ability to act. (example: public
schools)
LIMITS
When does one’s own rights conflict with another’s?
- Smoking in public, owning a gun, taxing for a
government program, freedom of speech
The role of the courts:
- Balance the protection of civil liberties and protection of
the common good.
- They can strike down laws made by government and
they can limit individual freedoms.
- Courts can only issue rulings on cases in which are
brought before them by other parties (private parties
must challenge laws).
FIRST AMENDMENT- THE CORNERSTONE OF
DEMOCRACY
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right to the
people peaceably to assemble, and to petition the
Government for a redress of grievances.- Amendment I
- All other liberties stem from the liberties protected within it.
- Democracy is impossible without these specific liberties.
RELIGIOUS FREEDOM
One of the principles guided by British colonization
1) forbids the government from establishing an official religion
(establishment clause)
2) guarantees people’s right to a “free exercise” of their own
religion. (free exercise clause)
selective incorporation- certain protections from government
are essential to due process; thus, states cannot deny these
protections to the people.
“A wall of separation of church and state.” – Thomas Jefferson
LEMON TEST- RELIGIOUS FREEDOM AND SCHOOLS
Lemon v. Kurtzman: struck down a law that
allowed public funding for the teaching of
non-religious subjects at private schools,
including religious schools.
Precedent: The Lemon Test- Laws must meet
the following criteria
1) It must have a secular or non-religious
purpose
2) Its major effects must neither advance nor
inhibit religion
3) It must not encourage “excessive
government entanglement with religion.”
FREEDOM OF SPEECH AND PRESS
In order for a democracy to be successful, the people need access to a full range
of opinions, beliefs, and information.
Includes: public and private speech, symbols, and actions.
-
Texas v. Johnson- Flag Burning is a Constitutional form of expression (Speech
cannot be prohibited even if society finds it to be offensive or disagreeable).
-
Tinker v. Des Moines- A Iowa school district could not prevent students
symbolic speech if does not interfere with the school’s purpose and student
speech cannot be restricted at the school door.
- To Protest the war in
Vietnam, students wore black
armbands which were
promptly banned at school.
LIMITS ON SPEECH
1) Clear and Present Danger Test: “The most
stringent protection of free speech would not
protect a man in falsely shouting fire in a theatre
and causing a panic. [...] The question in every
case is whether the words used are used in such
circumstances and are of such a nature as to
create a clear and present danger that they will
bring about the substantive evils that Congress
has a right to prevent.”- (Schenck v. United
States-1919)
2) Libel: spoken defamatory statement
3) Slander: Defamation in print
4) Treason: the offense by one to overthrow their
own government or harm the sovereign.
5) Sedition: speech or actions that inspire revolt
against the government.
Freedom of Assembly: People have the right to meet
together and express their views peacefully.
-
Government can limit time, manner, and place of
gathering (but the content cannot guide restrictions).
Freedom of Petition (redress of grievances): petition- a
formal request to one in authority about a specific
cause.
RIGHTS OF THE ACCUSED- WHY ARE THESE
IMPORTANT?
4th Amendment: No unreasonable searches and seizures.
search warrant: a court order allowing law
enforcement officials to search a person or location.
5th Amendment
An indictment: a formal charge (accusation) from a
grand jury. To determine if a trial is necessary.
No double jeopardy: If found innocent of a specific
crime, one cannot be tried again for the same crime.
Right to remain silent: to protect people form being forced
to testify against themselves.
Presumed innocent until proven guilty (YOU can’t be the
only evidence)
Miranda v. Arizona: created Miranda rights as a safeguard
Due Process: one must not be denied their rights due to
them by the law of the land until following the legal process.
Eminent Domain: Private land for Public use
6th Amendment: Trial by jury
Entitled to a lawyer; if you can’t afford one, the government
must provide you with one.
8th Amendment: Forbids cruel and unusual punishment.
Bail: a sum of money used as a security deposit. Bail is
returned upon appearance in court. No excessive bail.
Capital Punishment is constitutional (Supreme Court).
ADDITIONAL RIGHTS
2nd Amendment: A well regulated militia, being necessary to the
security of a free state, the right of the people to bear arms, shall
not be infringed.
 Regulation is allowed.
3rd Amendment: No quartering in times of peace.
7th Amendment: The right to a jury trial in civil cases of the amount
$20.
 civil case: lawsuits that involve disagreements between citizens,
and not between the citizens and their government (crime).
(criminal law v. civil law)
9th Amendment: Makes it clear that citizens have rights that are not
mentioned in the Bill of Rights.
10th Amendment: The powers not delegated to the United States
[federal government] by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or the people.
EXPANDING THE CONSTITUTION
13th Amendment: Abolished slavery.
14th Amendment: Granted citizenship to all those born
or naturalized in the United States, and equal
protection under the law.
17th Amendment: Provided for the elections of U.S.
senators by popular vote instead of state
legislatures.
18th Amendment: Prohibition- the outlawing of sale
and manufacturing of alcohol in the United States.
(repealed by the 21st Amendment)
19th Amendment: women received the right to vote.
26th Amendment: the right to 18 year olds to vote.
14TH AMENDMENTAll 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 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; nor deny to any person within its jurisdiction
equal protection of the laws.
1) Defines citizenship
2) Requires that government follow certain procedures before
punishing a person.
3) Equal Protection Clause: laws must applied equally