Civil LibertiesCivil Liberties

Civil LibertiesCivil Liberties Constitutional protections an Constitutional protections an

individual has against government—individual has against government—things govt. cannot take awaythings govt. cannot take away

To understand them, we will look at To understand them, we will look at 3 pts.3 pts. Why liberties in the BOR are importantWhy liberties in the BOR are important How they came to apply to the statesHow they came to apply to the states Why they have grownWhy they have grown

Background of Civil Background of Civil LibertiesLiberties

Why did the original constitution not Why did the original constitution not have a BOR?have a BOR?

Framers had 3 objectives in regards to Framers had 3 objectives in regards to civil libertiescivil liberties 1. Limit the federal powers (“Congress 1. Limit the federal powers (“Congress

shall make no law…”)shall make no law…”) 2. Constitution was meant for what govt. 2. Constitution was meant for what govt.

could docould do, not what they , not what they could not docould not do 3. Any mention of what they could not do 3. Any mention of what they could not do

was meant to apply to federal govt., not was meant to apply to federal govt., not state govt.state govt.

Issues with Civil Issues with Civil LibertiesLiberties

BOR contains competing rightsBOR contains competing rights Rights of one group may conflict with the Rights of one group may conflict with the

rights of anotherrights of another Government officials have sometimes Government officials have sometimes

taken action against the rights of taken action against the rights of political or religious grps.political or religious grps. During WWI it was made a crime to utter During WWI it was made a crime to utter

statements that would interfere with the statements that would interfere with the draftdraft

Cultural conflicts due to immigrationCultural conflicts due to immigration

Before Civil WarBefore Civil War Barron v. BaltimoreBarron v. Baltimore

Barron argued that the 5Barron argued that the 5thth Amendment Amendment should apply to the city of Baltimore should apply to the city of Baltimore (eminent domain)(eminent domain)

John Marshall of the Supreme Court John Marshall of the Supreme Court interpreted that BOR restrained only the interpreted that BOR restrained only the federal govt., not the states and citiesfederal govt., not the states and cities

Confirmed the idea of “dual citizenship”Confirmed the idea of “dual citizenship” This remained unchallenged until after the This remained unchallenged until after the

civil warcivil war

After the Civil WarAfter the Civil War 1414thth Amendment Amendment was passed to protect was passed to protect

the rights of recently freed slaves (1868)the rights of recently freed slaves (1868) The first section contains three sections The first section contains three sections

that limit the that limit the state govt.state govt. Privileges and Immunities— “single Privileges and Immunities— “single

citizenship”citizenship” Due Process Clause—prohibits abuse of “life, Due Process Clause—prohibits abuse of “life,

liberty, or property”liberty, or property” Equal Protection Clause—basis for civil Equal Protection Clause—basis for civil

rights mvt.rights mvt.

Slaughter-House CasesSlaughter-House Cases Louisiana govt. issued a corporation monopoly Louisiana govt. issued a corporation monopoly

over slaughterhouse business—other over slaughterhouse business—other companies sued as a violation of 5companies sued as a violation of 5thth AmendmentAmendment

Supreme Court determined that the federal Supreme Court determined that the federal government was under no obligation to government was under no obligation to protect the “privileges and immunities” of protect the “privileges and immunities” of citizens of a particular state against arbitrary citizens of a particular state against arbitrary actions by the that state’s govt.actions by the that state’s govt. Claimed 14Claimed 14thth Amendment only applied to protect Amendment only applied to protect

former slavesformer slaves

Incorporation of the Incorporation of the 1414thth Amendment Amendment

IncorporationIncorporation--the legal concept under which the legal concept under which the Supreme Court has nationalized the BOR by the Supreme Court has nationalized the BOR by making most of its provisions applicable to the making most of its provisions applicable to the states through the 14states through the 14thth Amendment ( Amendment (Gitlow v. Gitlow v. New York)New York)

Total IncorporationTotal Incorporation Supreme Court to apply the entire BOR to the Supreme Court to apply the entire BOR to the

statesstates Selective IncorporationSelective Incorporation

Supreme Court to decide, on a case-by-case Supreme Court to decide, on a case-by-case basis, which provisions of the Bill of Rights it basis, which provisions of the Bill of Rights it wished to apply to the stateswished to apply to the states

Incorporation CasesIncorporation Cases Gitlow v. New YorkGitlow v. New York

Freedom of SpeechFreedom of Speech Near v. MinnesotaNear v. Minnesota

Freedom of PressFreedom of Press Powell v. AlabamaPowell v. Alabama

Right to Counsel in capital casesRight to Counsel in capital cases DeJonge v. OregonDeJonge v. Oregon

Freedom of Assembly, right to petitionFreedom of Assembly, right to petition Cantwell v. ConnecticutCantwell v. Connecticut

Free exercise of religionFree exercise of religion

Incorporation CasesIncorporation Cases Everson v. Board of EducationEverson v. Board of Education

No establishment of religionNo establishment of religion Wolf v. ColoradoWolf v. Colorado

Right against unreasonable search and seizureRight against unreasonable search and seizure Mapp v. OhioMapp v. Ohio

Exclusionary ruleExclusionary rule Gideon v. WainwrightGideon v. Wainwright

Right to counsel in felony casesRight to counsel in felony cases Griswold v. ConnecticutGriswold v. Connecticut

PrivacyPrivacy

11stst Amendment & Freedom Amendment & Freedom of Speechof Speech

Government has felt the right to Government has felt the right to limit this freedom the most limit this freedom the most during times of war or matters of during times of war or matters of national securitynational security

Court has had to balance freedom Court has had to balance freedom of expression against values like of expression against values like public order, national security, public order, national security, and the right to a fair trialand the right to a fair trial

Conditionally Protected Conditionally Protected SpeechSpeech

LibelLibel—the publication of false statements that —the publication of false statements that are malicious and damage a person’s are malicious and damage a person’s reputation reputation

ObscenityObscenity—Not protected by 1—Not protected by 1stst Amendment Amendment unless it has political, literary, or artistic meritunless it has political, literary, or artistic merit

Difficult for the Court to define a & therefore is Difficult for the Court to define a & therefore is more regulated by state govt.more regulated by state govt.

Symbolic speech—not protectedSymbolic speech—not protected when it when it involves advocating illegal actions, involves advocating illegal actions, fighting fighting wordswords, or inciting others to commit illegal , or inciting others to commit illegal actionsactions

Conditionally Protected Conditionally Protected SpeechSpeech

Free speech of high school Free speech of high school students in public schools is students in public schools is limitedlimited Bethel School District v. FraserBethel School District v. Fraser

sexually suggestive speechsexually suggestive speech Hazelwood School District v. Hazelwood School District v.

KuhlmeierKuhlmeierCensorship of school newspaperCensorship of school newspaper

Key Court cases affecting Key Court cases affecting SpeechSpeech

Gitlow v. New YorkGitlow v. New York Schenck v. United StatesSchenck v. United States

Established clear and present danger testEstablished clear and present danger test Dennis v. United StatesDennis v. United States

Speech limited (during McCarthyism)Speech limited (during McCarthyism) Brandenburg v. OhioBrandenburg v. Ohio

Speech protected (unless it incites Speech protected (unless it incites imminent lawless action)imminent lawless action)

Chaplinsky v. State of New HampshireChaplinsky v. State of New Hampshire Fighting words not protectedFighting words not protected

Key cases Affecting Key cases Affecting Symbolic SpeechSymbolic Speech

Tinker v. Des MoinesTinker v. Des Moines Black arm bandsBlack arm bands

Virginia v. BlackVirginia v. Black Burning of a crossBurning of a cross

Texas v. JohnsonTexas v. Johnson Flag burningFlag burning

Civil Liberties in 1Civil Liberties in 1stst AmendmentAmendment

ReligionReligion Contains two elements or Contains two elements or

clauses clauses Establishment Clause Establishment Clause Free Exercise ClauseFree Exercise Clause

Establishment ClauseEstablishment Clause ““Congress shall make no law respecting an Congress shall make no law respecting an

establishment of religion…”establishment of religion…” This clause is the foundation to religious This clause is the foundation to religious

libertyliberty Has created a “wall of separation”Has created a “wall of separation”

Supreme Court has interpreted this to Supreme Court has interpreted this to mean no government involvement in mean no government involvement in religionreligion

Most controversial is when to give federal Most controversial is when to give federal aid to parochial (religious) schools—aid to parochial (religious) schools—ultimately answered by the Lemon Testultimately answered by the Lemon Test

Key Court cases affecting Key Court cases affecting Establishment ClauseEstablishment Clause

Engle v. VitaleEngle v. Vitale Everson v. Board of EducationEverson v. Board of Education Lemon v. KurtzmanLemon v. Kurtzman

Lemon TestLemon Test Wallace v. JaffreeWallace v. Jaffree

Free-exercise clauseFree-exercise clause Govt. cannot interfere with an Govt. cannot interfere with an

individual’s practice of religionindividual’s practice of religion Law may not impose special burdens Law may not impose special burdens

on religionon religion Supreme Court’s interpretation has Supreme Court’s interpretation has

been that people have the absolute been that people have the absolute right to believe what they want, but right to believe what they want, but not the right to practices that may not the right to practices that may harm societyharm society

Key Court Cases affecting Key Court Cases affecting Free-Exercise ClauseFree-Exercise Clause

West Virginia State Board of Education West Virginia State Board of Education v. Barnettev. Barnette Flag saluteFlag salute

Reynolds v. United StatesReynolds v. United States PolygamyPolygamy

Jacobson v. MassachusettsJacobson v. Massachusetts Vaccinations Vaccinations

Wisconsin v. YoderWisconsin v. Yoder Amish kids in school Amish kids in school

Freedom of the PressFreedom of the Press Prior RestraintPrior Restraint

Government censorship of Government censorship of material before it is publishedmaterial before it is published

This is a common method of This is a common method of limiting the press in other limiting the press in other nations but is unconstitutional in nations but is unconstitutional in U.S.U.S.

Other Key Court cases Other Key Court cases Affecting the PressAffecting the Press

Near v. MinnesotaNear v. Minnesota Prior restraint extended to state Prior restraint extended to state

govt.govt. New York Times v. SullivanNew York Times v. Sullivan

Libelous speechLibelous speech New York Times v. United StatesNew York Times v. United States

aka Pentagon Papersaka Pentagon Papers

Freedom of AssemblyFreedom of Assembly The ability of people to assemble, The ability of people to assemble,

associate, and petition the govt. associate, and petition the govt. Right to parade, picket, and protestRight to parade, picket, and protest May come into conflict with the May come into conflict with the

interests of govt.interests of govt. DeJonge v. OregonDeJonge v. Oregon

ProtectedProtected Dennis v. United StatesDennis v. United States

Not protectedNot protected

Civil Liberties in the Civil Liberties in the 44thth Amendment Amendment

Protects from unreasonable search Protects from unreasonable search and seizureand seizure

Police must have probable cause & Police must have probable cause & in some cases a search warrantin some cases a search warrant Mapp v. OhioMapp v. Ohio

Exclusionary rule applied to statesExclusionary rule applied to states United States v. LeonUnited States v. Leon

““Good faith” exception to exclusionary ruleGood faith” exception to exclusionary rule

55thth , 6 , 6thth , & 8 , & 8thth AmendmentsAmendments

55thth:: Protects against self-incrimination Protects against self-incrimination & guarantees the due process of law & guarantees the due process of law for those accused of a crimefor those accused of a crime Escobedo v. IllinoisEscobedo v. Illinois Miranda v. ArizonaMiranda v. Arizona

66thth: : Right to counselRight to counsel Gideon v. WainwrightGideon v. Wainwright

8th: 8th: Cruel and Unusual punishmentCruel and Unusual punishment Furman v. GeorgiaFurman v. Georgia

Right To PrivacyRight To Privacy Not stated in the BOR but implied Not stated in the BOR but implied

through the 3through the 3rdrd, 4, 4thth, 5, 5thth, and 9, and 9thth AmendmentsAmendments Griswold v. ConnecticutGriswold v. Connecticut

ContraceptivesContraceptives Roe v. WadeRoe v. Wade

AbortionAbortion Many cases since Roe have tried to limit or Many cases since Roe have tried to limit or

regulate abortionregulate abortion Webster v. Reproductive Health ServicesWebster v. Reproductive Health Services Planned Parenthood v. CaseyPlanned Parenthood v. Casey