CH 5Civil Liberties

Framer’s view

Constitution states what government could do, not what state governments could not do

Created a federal government with limited powers

Not necessary to create a bill of rights Ratification debate-fear of growing

national powers Bill of Rights Added Did the Bill of Rights apply to states?

Civil rights in conflict

Protection that the Constitution provides against the abuse of government power

Competing right of citizens and duties of government

1. Sedition Act of 1798 2. espionage and Sedition Act of

1917 3. Smith Act of 1940

The Bill of Rights

14th Amendment-1868

Liberties passed in Bill of rights only applied to the federal govt

Constitution silent on what states could do or not do to residents

Civil war Amendments-13-15th Amendments

14th Amendment applied certain rights to state governments

Process Called Selective Incorporation-Court applies Bill of Rights to the States

The 14th Amendment

All 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 the equal protection of the laws.

3 clauses of 14th Amendment *Citizenship clause in the “privileges

and immunities” clause *a due process clause the prohibits

abuse of “life, liberty, and property” *an “equal protection” clause that

protects civil rights

1st AmendmentFirst AmendmentCongress 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 of the people peaceably to assemble, and to petition the Government for a redress of grievances.

1st Amendment-religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

1. Establishment Clause2. Free Exercise Clause

Key Issues!

Very complex legal interpretations Does the 1st Amendment require complete

separation of church and state-it does not Free exercise clause clearer of the 2 Government can not prevent the exercise

of religion You can pretty much do what you want as

long as you don’t harm others Limits on free exercise to protect public

health and safety

The Free Exercise of religion Reynolds v. United States, (1878),

held that religious duty was not a suitable defense to a criminal indictment. George Reynolds was a member of The Church of Jesus Christ of Latter-day Saints, charged with bigamy after marrying Amelia Jane Schofield while still married to Mary Ann Tuddenham in Utah Territory

Sherbert v. Verner

was a 7th Day Adventist case that required that government demonstrate a “compelling government interest” before denying unemployment compensation to someone who was fired because her job conflicted with her religion.

The Religious Freedom Restoration Act of 1993 , (also known as RFRA), is a 1993

United States federal law aimed at preventing laws that substantially burden a person's free exercise of their religion, state cannot pass a law that places an undue burden on someone practicing religion

Held Unconstitutional in 1997

Oregon v. Smith,

state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. If the law is secular in intent and has a rule of general applicability it can restrict religious practice

Church of the Lukumi Babalu Aye, Inc. v. Hialeah, was a case in which the 

Supreme Court of the United States held that an ordinance passed in Hialeah, Florida, forbidding the "unnecessar[y]" killing of "an animal in a public or private ritual or ceremony not for the primary purpose of food consumption", was unconstitutional. 

Poisonous snakes?

Amish compulsory school attendance

Mandatory vaccinationsJacobson v. Massachusetts, 197 U.S. 11 (1905), Court upheld the authority of states to enforce compulsory vaccination laws. The Court's decision articulated the view that the freedom of the individual must sometimes be subordinated to the common welfare and is subject to the police power of the state

Conscientious objectors and mandatory military service

The Establishment Clause

Ambiguous phrase…what does it mean?

No National religion? No government involvement in

religion? Wall of separation between church

and state? Topic of great controversy in

American history

1947-Everson v New Jersey

New Jersey town reimbursed parents for the cost of transported their children to parochial schools

Upheld program based on child benefit theory

Erected “Wall of separation” principleGovt cannot require a person to

profess or disprofess a religion, cannot aid one religion, some religions, or all religions

Lemon 3 part Test (lemon v Kurtzman)-1971 3 part test to determine under what

circumstances government involvement is improper

1. It has a secular purpose 2. Its primary effect neither

advances nor inhibits religion 3. It does not foster an excessive

entanglement with religion

Engel v Vitale (1962)

Banned prayers, even non-sectarian prayers in schools

Lee v Weisman (1992)

Banned clergy led prayers at graduation ceremonies

Santa fe Independent School district v Doe (2000) Students may not lead prayers

before the start of a football game at a public school

Other cases…

Court has banned…. Laws prohibiting the teaching of

evolution or giving equal time to creationism in science classes

Released time for religious instruction inside the schools

Court has upheld….Vouchers for private schoolsEqual access laws for religious groups

Nativity scenes??

Nativity scenes

Pawtucket, RI-Nativity scene as part of a Christmas display in a local park was ok

Pittsburg, PA-Could not put a nativity scene next to a courthouse, but could display a Menorah next to a Christmas tree

10 commandments displays

Texas ten commandments monument-June 27, 2005 Allowed by court The surrounding 22 acres (89,000

m²) contained 17 monuments and 21 historical markers commemorating the "people, ideals, and events that compose Texan identity."

Kentucky courthouse-June 27, 2005 Large visible displays of the 10

commandments inside the courthouse

Court banned because it was religious in nature!

Summary!-Wilson

The actual decisions are hard to summarize

Court seems deeply divided and confused!!

“The efforts to define the “wall of separation” will continue to prove to be as difficult as the Court’s earlier efforts to decide what is interstate and what is local commerce.”

Freedom of Expression

Congress shall make no law….abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble.

Thomas Jefferson

Freedom from prior restraint Freedom from censorship from

government

What about national security and speech?

Sedition Act of 1798Espionage and Sedition Act of 1917

Schenck v United States (1919) Charles T Schenck Convicted of

violating espionage act Mailed circulars urging men not to

register for the draft

Oliver Wendell Holmes-Chief Justice “clear and present” danger doctrine

Gitlow v New York (1925)

Benjamin Gitlow convicted of violating NY state sedition law

SC said that the Bill of Rights applied to the states via the due process clause of the 14th Amendment

1940’s and 50’s-Cold War

Smith Act of 1940-illegal to be member of party calling for overthrow of US government

Key issue! Are words enough to convict, or actions have to accompany the words?

Brandenburg v Ohio (1969)

Clarence Brandenburg-Ohio KKK-staged a cross burning rally and hurled insults against black and Jews

Police told him the clear the street and arrested him

Danger must be “clear and imminent”

1977-American Nazi Party v Skokie

Symbolic Speech

Speech that is meant to convey an political message

Landmark cases

Tinker v Des Moines (1969)-Public School students can wear black arm band to protest Vietnam

Texas v Johnson

Texas state law banning the burning of the flag declared to be unconstitutional

What about obscenity?-not generally given 1st Amendment protection Miller v California (1973) average person, applying contemporary community

standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest;

the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and

"the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Barnes v Glen Theater (1991) Kitty Kat lounge and Glen theater

running live female exotic dancer in violation of Indiana decency laws requiring basic coverage of the dancer’s bodies

Girls argument: Our freedom of expression meant to convey sexuality violated by statute

SC Justice David Souter

Nudity itself is not inherently expressive conduct.

4 forms of speech not protected under the 1st 1. Obscenity 2. defamation Libel-written statement that defames

the character of another person Slander-spoken words that defame

the character of another person 3. False advertising 4. Symbolic Speech

Defamation of a public figure 1. must show that the statement is

false 2. must prove actual malice and a

“reckless disregard” for the truth 3. must prove actual harm

Who is a person??

What about interest groups, corporations, and children? Do they have free speech rights? Yes! With limitations…

Commercial speech

More limits on commercial than non-commercial speech

Cigarettes, liquor, and gambling False advertising claims regulated by

FTC Airwaves regulated by FCC

Campaign Finance Laws

Mccain-Feingold Campaign Finance reform Law-restricted corporate advertising in campaigns

Citizens United case-Corporations and interest groups have 1st Amendment rights and cannot be restricted from running campaign ads

Children??

Hazelwood v Kuhlmeier (1988)

Student run school newspaper class Principle was censoring articles Do the students shed their

constitutional rights to freedom of speech at the schoolhouse door?

2nd Amendment

 "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.”

Collective right? Individual liberty? Limits on gun ownership?

Hunting

Military Tradition

Prohibition

U.S v Miller

Federal government can regulate the transport of sawed off shotguns as part of the interstate commerce clause

2nd Amendment applies only too certain types of weapons

Nov 22, 1963

April 4, 1968

Dec 8, 1980

March 1981

Brady Law

Federal law that mandates criminal background check and waiting periods to purchase a firearm

Assault Weapons Ban

1994 Law passed by Congress that banned certain types of high magazine semi-automatic weapons for civilian use

DC v Heller

Wash DC passes ban on handguns and unregistered weapons in the federal district of Columbia

SCOTUS overrules, says that 2nd Amendment grants an individual right to gun ownership for traditionally lawful purposes-upholds restrictions on guns

Mass killing

32 killed - April 16, 2007 - Virginia Tech in Blacksburg, Virginia. A gunman, 23-year-old student Seung-Hui Cho, goes on a shooting spree killing 32 people in two locations and wounds an undetermined number of others on campus. The shooter, Seung-Hui Cho then committed suicide.

27 killed - December 14, 2012 - Sandy Hook Elementary School - Newtown, Connecticut. Adam Lanza, 20, guns down 20 children, ages 6 and 7, and six adults, school staff and faculty, before turning the gun on himself. Investigating police later find Nancy Lanza, Adam's mother, dead from a gunshot wound. The final count is 28 dead, including the shooter.

4th Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What if the police seize evidence in an illegal way? 1. Use the evidence and punish the

police. 2. Discard the evidence altogether.

Exclusionary Rule

1. right to be free from illegal searches and seizures

2. right not to be compelled to give evidence against themselves

Mapp v Ohio Cleveland police break into the

apartment of Dollree Map in search of illegal narcotics, arrested for possessing obscene pictures-no warrant

Court used exclusionary rule for the 1st time

Reasonable warrant less searches It is reasonable in a general way for

the police to search

1. You 2. Things in plain view 3. Things or places under your

immediate control

The 4th Amendments and schools What protections do student shave

from unreasonable searches and seizures?

TLO v New Jersey (1985)-”reasonable suspicion” justified search

Safford v Reading (2013)-there was no reasonable suspicion to justify such an intrusive search

5th Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Miranda v. Arizona

Statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination prior to questioning by police, and that the defendant not only understood these rights, but voluntarily waived them.

6th Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense

Gideon v. Wainwright, (1963) Supreme Court unanimously ruled

that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own attorneys.

Relaxing the exclusionary rule 1. good faith exceptions 2. if evidence would have been

“inevitably found”

8th Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

Furman v. Georgia, (1972)

ruled on the requirement for a degree of consistency in the application of the death penalty. The case led to a de facto moratorium on capital punishment throughout the United States because of the way it was carried out, it was not intrinsically against the 8th amendment

Gregg v. Georgia, (1976),

reaffirmed the United States Supreme Court's acceptance of the use of the death penalty, said that it must be non-mandatory, non-discriminatory, and non-arbitrary

SC has ruled that executing 1. mentally retarded people is

unconstitutional 2. juveniles is unconstitutional 3. lethal injection in constitutional 4. California's overcrowded prisons

is a violation of the 8th Amendment

Sept 11, 2001

USA Patriot Act

The USA PATRIOT Act is an Act of Congress that was signed into law by George W. Bush on October 26, 2001. Its title is a ten-letter backronym (USA PATRIOT) that stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001".

What it does!

1. Telephone taps based on suspects 2. Internet Taps 3. Voice mail seizures 4. Sharing of grand jury investigations 5. immigration: AG may hold a non-citizen

who is a national security risk for 7 days 6. Money laundering: US may track movement

of money across US borders 7. Crime: eliminates the statutes of limitation

on terrorist crimes and increases the penalties 8. section 213-”sneak and peak” warrants

Afghanistan-2001

Iraq-2003

War On Terror-President Bush On November 13, 2001, President

George W. Bush signed an executive order authorizing the creation of military tribunals for the detention, treatment and trial of certain non-citizens in the war against terrorism.

Gitmo-Guantanamo Bay Naval Base

Issues?

Do captured terrorists have access to the courts?

Bush says no…they are not POWS or criminal defendants…they are unlawful enemy combatants.

Hamdi v Rumsfeld

Yaser Esam Hamdi-US citizen-detained in Afghanistan and captured in the battlefield has the ability to challenge his detention in US courts-he has basic due process rights

Boumediene v. Bush

Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at theGuantanamo Bay detention camps in Cuba, has a right to file a writ of habeas corpus

Other issues…Surveillance

1978-Congress passes FISA-Foreign Intelligence Surveillance Act

President had to go before secret court to authorize surveillance

Lower standard than probable cause NSA Program to intercept telephone

calls and emails between Americans and foreigners

Edward Snowden

Rendition