Chapter+4


 * Civil Liberties and Civil Rights (Chapters 4, 5 & Woll sources 16, 18, 21, 24)**


 * Supreme Court Video-must see**

C4 Overview
 * 1) Understand the constitutional basis of civil liberties and the Supreme Court’s role in defining them.
 * 2) Explain the nature of and issues involving constitutional freedoms in America.
 * 3) Understand the impact of civil liberties on democracy and the scope of government.
 * 4) Understand the historical and constitutional basis for the struggle for equal rights.
 * 5) Understand the impact of civil rights on democracy and the scope of government.



Argument Wars

Test

Bill of Rights Quizlet

=__**BILL OF RIGHTS**__=

First Amendment
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 of the people peaceably to assemble, and to petitition the Government for a redress of grievances.

Second 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.

Third Amendment
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner; nor in time of war, but in a manner to be prescribed by law.

Fourth 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.

Fifth 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 offence 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.

Sixth 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 defence.

Seventh Amendment
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of common law.

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

<span style="color: #423a38; font-family: gtam,Arial,Helvetica,&#39;Nimbus Sans L&#39;,sans-serif; font-size: 1.22222rem;">Ninth Amendment
<span style="color: #423a38; font-family: cschoolbook,Georgia,&#39;Times New Roman&#39;,&#39;DejaVu Serif&#39;,serif; font-size: 19.999980926513672px;">The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

<span style="color: #423a38; font-family: gtam,Arial,Helvetica,&#39;Nimbus Sans L&#39;,sans-serif; font-size: 1.22222rem;">Tenth Amendment
<span style="color: #423a38; font-family: cschoolbook,Georgia,&#39;Times New Roman&#39;,&#39;DejaVu Serif&#39;,serif; font-size: 19.999980926513672px;">The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Chapter 4. Civil Liberties and Public Policy


 * Civil Liberties = individual legal and constitutional protection against the government.**

Although our civil liberties are formally established in the Bill of Rights, the courts, police, and legislatures determine their meaning.

Example = freedom of speech seems pretty clear cut – we can chose to say or not say whatever we please. However, in the real world, this issue is much more complex. Can I use this political science lecture to preach about the importance of finding God? Or to preach about how abortion is murder? And homosexuality is wrong? No.

Because our civil liberties are not always as straightforward as they appear, civil liberty debates normally end up in the courts.

The Supreme Court is the final interpreter of the content and scope of our liberties, and that is why this chapter is littered with important Supreme Court rulings.

In addition, if we are to understand our civil liberties, it is essential that we understand the Bill of Rights.

The Bill of Rights & the States

The Bill of Rights was passed by the 1st Congress in 1789, and ratified by the States by 1791.

Bill of Rights = first ten amendments of the Constitution; defines basic liberties such as freedom of religion, speech, the press; rights of the defendant; right to bear arms…

1st Amendment = established the four great liberties – freedom of the press, speech, religion, and of assembly.

However, if you take a look at the 1st Amendment, it begins “Congress shall make no law…”

What is the problem with this? A literal reading of this would suggest that states do not have to comply.

What would happen if a state passed a law that violated a protection guaranteed in the Bill of Rights? Nothing. Barron v. Baltimore (1833) = Supreme Court decision holding that the Bill of Rights applied only to the federal government, not to states and cities.

A century later, the Supreme Court changed their point of view. Gitlow v New York (1925) = Supreme Court decision holding that freedom of the press and speech are “fundamental personal rights and liberties protected by the due process clause of the 14th Amendment”; therefore, neither the state nor the federal government can infringe these rights.

14th Amendment = a constitutional amendment adopted after the Civil War, stating that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; 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 law.”

Incorporation Doctrine = as a result of the passage of the 14th Amendment and the subsequent Gitlow decision, the Supreme Court was able to nationalize the Bill of Rights. In other words, the Supreme Court nationalized the Bill of Rights by making most of its provisions applicable to the states through the 14th Amendment.

Freedom of Religion

The 1st Amendment contains two elements regarding religion and government.

Establishment Clause = part of the 1st Amendment that states that “Congress shall make no law respecting an establishment of religion”

Free Exercise Clause = a 1st Amendment provision that prohibits government from interfering with the practice of religion; we can worship as we please.

However, sometimes these freedoms conflict.

Establishment Clause

Example: There has been significant debate over aid to church related schools and prayer in public school = parochiaid = aid to parochial schools. Many argue that most of the aid is distributed disproportionately, with most of the money going to Roman Catholic Schools because they have the largest school system in the country. Others claim that the money is going to the student, not the school, and that is what is most important.

Lemon v Kurztman (1971) = the Supreme Court declared that aid to church related schools must meet the Lemon test. (1) Have a secular legislative purpose; (2) Have a primary effect that neither advances nor inhibits religion; and (3) Not foster an excessive government ‘entanglement’ with religion.

Illustrations of Lemon Test:

Zelman v Simmons-Harris (2002) = Supreme Court decision that upheld a state providing families with vouchers that could be used to pay for tuition at religious schools.

Engel v. Vitale (1962) = Supreme Court decision holding that state officials violated the 1st Amendment when they wrote a prayer to be recited by NY’s schoolchildren.

School District of Abington Township, Pennsylvania v. Schempp (1963) = Supreme Court decision holding that a Pennsylvania law requiring Bible reading in schools violated the establishment clause of the 1st Amendment.


 * Drawing a line between neutrality toward religion and promotion of it is not easy – as illustrated in last Thursday’s class. This delicate balance ensures that these types of cases will continue to surface before the Court.

Free Exercise Clause

The 1st Amendment also guarantees the free exercise of religion; we should be able to practice our religion anyway we want.

However, the Supreme Court has pass down mixed rulings. For instance, the Court has upheld laws forbidding polygamy, but it has also prohibited states from forcing Jehovah’s Witnesses to participate in flag-saluting ceremonies in public schools.

Church of the Lukumi Babalu Aye, Inc v. City of Hialeah (1993) = the Court overturned a Hialeah ordinance which prohibited the use of animal sacrifices in religious rituals. The Justices concluded that governments that permit other forms of killing animals cannot ban sacrifices or ritual killings. The Court found no compelling state interest that justified the abridgment of the freedom of religion.

Freedom of Expression

A democracy depends on the free expression of ideas. Americans pride themselves in their free and open society.

However, this does not mean you can shout “fire” in a theater and cause havoc. Therefore, the Courts have been called upon to decide where to draw the line between permissible and impermissible speech.

Prior Restraint

Prior Restraint = censorship = in accordance with the 1st Amendment and the Supreme Court case Near v. Minnesota (1931), the government cannot prevent material from being published; this would be viewed as a way for the government to limit the press.

Near v. Minnesota (1931) = Supreme Court decision holding that the 1st Amendment protects newspapers from prior restraint.

Free Speech and Public Order

The only time that government can limit speech is when it provokes a clear and present danger or substantive evils. Schenck v. United States (1919) = Supreme Court upholding the conviction of a socialist who had urged young men to resist the draft during WWI. Justice Holmes declared that the government can limit speech if the speech provokes a clear and present danger of substantive evil.

Free Press and Fair Trails

The Bill of Rights contains some internal conflict = freedom of the press versus right to a fair trail = OJ Simpson

There is also the issue of protecting sources used by reporters to withhold information from the prosecution or defense in a criminal case

Zurcher v. Stanford Daily (1978) = Supreme Court held that a proper search warrant could be applied to a newspaper as well as anyone else without violating the 1st Amendments freedom of the press.

Obscenity

Given that we have freedom of speech and the press, deciding what is and isn’t obscene is a difficult task.

Roth v. United States (1957) = Supreme Court ruled that “obscenity is not within the area of constitutionally protected speech or press.” Although the Court ruled that obscenity is not protected by the 1st Amendment, determining what is obscene has proven difficult.

Miller v. California (1973) = Supreme Court avoided defining obscenity by holding that community standards be used to determine whether material is obscene; but it did provide some obscenity standards = it the work sexual; it is patently offensive; does it lack literary, artistic, political, or scientific value.

Libel and Slander

Another type of expression not protected by the 1st Amendment is libel.

Libel = the publication of false or malicious statements that damage someone’s reputation (written defamation) Slander = refers to spoken defamation (verbal defamation)

New York Times v. Sullivan (1964) = this case established the guidelines for determining whether officials and public figures could win damage suits for libel. To do so, individuals must prove that the defamatory statements were made with ‘actual malice’ and reckless disregard for the truth. In other words, they have the burden of proof; they have to show that whoever wrote or said the untrue statements knew they were false and wanted to cause harm.

Symbolic Speech

The Supreme Court has ruled that some symbolic speech is protected under the 1st Amendment.

Symbolic Speech = nonverbal communication, such as burning a flag or wearing an armband.

Texas v. Johnson (1989) = Supreme Court struck down a law banning the burning of the American flag on the grounds that such action was symbolic and protected by the 1st Amendment.

Commercial Speech

Not all forms of communication receive the full protection of the 1st Amendment.

Commercial Speech is restricted far more extensively than expression of opinion on religion, politics or other matters.

Commercial Speech = communication in the form of advertising (i.e. cigarettes, condoms, tampons, mouthwash, deodorant, medicines…).

Regulation of the Public Airways

The FCC regulates the content, nature, and existence of radio and television broadcasting. These licensed stations must comply with regulations, which may conflict with 1st Amendment rights.

Miami Herald Publishing Company v. Tornillo (1974) = Supreme Court held that a state could not force a newspaper to print replies from candidates it had criticized, illustrating the limited power of the government to restrict the print media.

Red Lion Broadcasting Company v. Federal Communications Commission (1969) = Supreme Court upheld restrictions on radio and television broadcasting. These restrictions on the broadcast media are much tighter than those on the print media because there are only a limited number of broadcasting frequencies available.

Freedom of Assembly

The final great right guaranteed by the 1st Amendment is the freedom to assemble peaceably. This is the basis for forming interest groups, political parties, and professional associations, as well as picketing and protesting.

There are two facets to the freedom of assembly = the right to assemble and the right of association.

Right to Assemble: the right to get together in order to make a statement. However, this freedom often conflicts with other social values when it disrupts political order, traffic flows, peace and quite, or bystanders’ freedom to go about their business without interference.

Within reasonable limits – time, place, and manner restrictions – freedom of assembly includes the right to parades, pickets, and protests. Usually a group must apply for a permit and post a bond in order to demonstrate.

Collins v. Smith (1978) = A federal district court ruled that Skokie’s ordinance did restrict freedom of assembly and association. No community could use its power to grant parade permits to stifle free expression. The Supreme Court led this lower court decision stand.

Right to Association: the right to associate with people who share a common interest, including an interest in political change.

NAACP v. Alabama (1958) = Supreme Court protected the right to assemble peaceably by ruling that the NAACP did not have to reveal its membership list and thus subject their members to harassment.

Defendants’ Rights

Only 45 words guarantee the freedom or religion, speech, press, and assembly; the remaining words concern the rights of people accused of crimes.

Although these rights were originally intended for those accused of political crimes, they have been extended to apply to criminal justice cases as well.

Searches and Seizures

Police cannot arrest a citizen without a reason. They need evidence to make an arrest, and the courts need evidence to convict. However, the rights of the accused must also be ensured.

Probable Cause = before making an arrest, police need probable cause; in other words, reasonable grounds to believe that someone is guilty of a crime. In making an arrest, police are legally allowed to search for and seize incriminating evidence if they have probable cause.

Unreasonable Searches and Seizures = the 4th Amendment forbids unreasonable search and seizures; probable cause and/or a search warrant are required for a legal and proper search for and seizure of incriminating evidence.

Search Warrant = a written authorization from a court specifying the area to be searched and what the police are searching for.

Exclusionary Rule = the rule that evidence, no matter how incriminating, cannot be introduced into a trail if it was not constitutionally obtained. The rule prohibits use of evidence obtained through unreasonable search and seizures. Mapp v. Ohio (1961) = Supreme Court decision ruling that the 4th Amendment’s protection against unreasonable search and seizures must be extended to states as well as the federal government.

Self Incrimination

In the US, the burden of proof rests on the police and the prosecutors. Suspects cannot be forced to help with their own convictions.

5th Amendment = designed to protect the rights of the person accused of crimes, including the protection against double jeopardy, self incrimination, and punishment without due process.

Self Incrimination = this situation occurs when an individual accused of a crime is compelled to be a witness against themselves in court. They can “take the 5th” in order to forbid self incrimination.

Miranda v. Arizona (1966) = Supreme Court decision setting guidelines for police questioning an accused person; protects them from self incrimination and protects their right to counsel. Suspects must be read their Miranda Rights = the right to remain silent; anything that they say can be used against them in a court of law; they have the right to an attorney, if they cannot afford an attorney one can be provided.

The Right to Counsel

Of the Miranda rights, the most important is the right to secure counsel.

6th Amendment = designed to protect individuals accused of crimes; it includes the right to counsel, the rights to confront witnesses, and the right to a speedy and public trial.

Gideon v. Wainwright (1963) = Supreme Court decision holding that anyone accused of felony where imprisonment may be imposed, however poor they may be, has a right to a lawyer.

Trials

Defendants are entitled to a speedy trial by an impartial jury; they have the right to be brought before a judge, and the have the right to settle out of court through a plea bargain.

Cruel and Unusual Punishment

8th Amendment = forbids cruel and unusual punishment, although it does not define this phrase.

Cruel and Unusual Punishment = the 8th Amendment prohibits cruel and unusual punishment in court sentences. Although the Supreme Court has ruled that mandatory death sentences for certain offenses are unconstitutional, it has not ruled that the death penalty itself constitutes cruel and unusual punishment.

Gregg v. Georgia (1976) = Supreme Court decision that upheld the constitutionality of the death penalty, stating that “it is an extreme sanction, suitable for the most extreme crimes.” Therefore, the Court did not believe that the death penalty constitutes cruel and unusual punishment.

McCleskey v. Kemp (1987) = Supreme Court decision that upheld the constitutionality of the death penalty against changes that it violates the 14th Amendment (equal protection clause) because minority defendants were more likely to receive the death penalty than White defendants.

The Right to Privacy

Nowhere in the Bill of Rights does it say that Americans have the right to privacy. However, concepts such as the right to exercise private beliefs or the right to protect oneself against unreasonable searches and seizures imply the right to privacy.

Right to Privacy = the right to a private personal life free from the institution of government

Controversy Over Abortion

The right to privacy unleashed a firestorm in 1973 when the issue of abortion was addressed by the Supreme Court.

Roe v. Wade (1973) = Supreme Court decision holding that a state ban on all abortions was unconstitutional. The decision forbade state control over abortions during the first trimester of pregnancy; permitted states to limit abortions to protect the mother’s health in the second trimmest; and permitted states to protect the fetus during the third trimester.

Planned Parenthood v. Casey (1992) = Supreme Court loosened its standards for evaluating restrictions on abortions from one of ‘strict scrutiny’ of any restrains on a fundamental right, to one of undue burden that permits considerably more regulation (i.e. 24 hour waiting periods, parental consent for minors…).

Conclusion

Civil liberties in America are a foundation and reflection of individualism. In general, civil liberties limit the power of government; they also protect individuals from government.

The Bill of Rights makes it clear that American government is a constitutional democracy. The Bill of Rights also proves that Americans enjoy more liberties than most people throughout the world.

Court Cases Jeopary



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