Unit 2 The Bill of Rights and Civil Liberties

Bill of Rights• Adopted in 1792 by the states 2 years after

the ratification of the Constitution.• Established the civil liberties for

Americans.• Represents a basic definition of a person’s

civil liberties-those rights of the people that the government cannot take away.• Civil liberties differ from civil rights.

Bill of Rights

• Civil liberties protect individuals from abuses of the government, whereas civil rights come about as a result of the equal protection under the law. • Both civil liberties and civil rights limit the

power of government.• Bill of Rights protects individuals against

the tyranny of the government.

Individual Rights and the Constitution • Bill of Rights turned down by Federalist forces controlling

the convention (was not necessary because the states under a federal system would protect their citizens).

• Massachusetts, South Carolina, New Hampshire, Virginia, and New York agreed to support Bill of Rights immediately.

• James Madison wrote in Federalist No. 84, “I go further and affirm that bill of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.”

Dual Citizenship• Decisions such as Marbury v Madison (1803), McCulloch v

Maryland (1819), Gibbons v Ogden (1824) defined the power of various components of government.

• Barron v Baltimore (1833), the court ruled that the Bill of Rights limited only the national government, not the states.

• John Marshall court did extend the Bill of Rights to the citizens of the states.

• Created a concept of dual citizenship, wherein a citizen was under the jurisdiction of the national government as well as the state government.

Dual Citizenship• After the 14th Amendment was passed in 1868, “No state shall

abridge the privileges and immunities of its citizens…” the people received the complete protection of the Bill of Rights.

• Southern states passed Jim Crow laws and segregation became an acceptable practice.

• The Jim Crow laws were state and local laws in the United States enacted between 1876 and 1965. They mandated de jure racial segregation in all public facilities in Southern states of the former Confederacy, with, starting in 1890, a "separate but equal" status for African Americans. The separation in practice led to conditions that tended to be inferior to those provided for white Americans, systematizing a number of economic, educational and social disadvantages.

Cases to Define/Explain significance• Dual Citizenship:Marbury v MadisonMcCulloch v MarylandGibbons v OgdenGitlow v New York

• Speech and Press:Schneck v United StatesChaplinsky v New HampshireNY Times v SullivanTinker v. Des Moines NY Times v United StatesTexas v Johnson

Freedom of Religion• “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof….”

• Component of the 1st Amendment, defines the right of the citizens to practice their religions without government interference.

• Creates separation between church and state.

Freedom of Religion• Some questions raised in this area: -To what extent does use of the word God in public institutions violate the separation of church and state? -Can states directly support parochial schools with public fund? -Can states legislate nondenominational prayer, a moment of silence, creationism as a part of the curriculum, and equal access to its facilities to religious groups? -Can clergy recite a blessing at a graduation ceremony? -Are seasonal displays at public areas allowable? -Are vouchers and public monies used for private parochial schools constitutional?

Freedom of Speech & the Press• “Congress shall make no law… abridging the

freedom of speech or of the press…”

• Protection of the citizens’ right of free expression.

• Speech can be categorized as symbolic and expressive.

• What is acceptable and what is obscene?

Freedom of Speech continued• Government has to maintain balance between

order and the ability of its citizens to criticize policy.

• Press is characterized by the written word and the ability of a publication to print material without prior review or prior restraint.

• Questions raised: -Can the government limit free speech and press during times of war or other national emergency?

Cases Continued• Freedom of ReligionEngle v VitaleLemon v KurtzmanLee v Weisman

• Freedom of AssemblyDe Jonge v Oregon

• Right to Bear ArmsUnited States v Miller

Right to Assembly• “Congress shall make no law respecting…the right of the

people peaceably to assemble, and to petition the Government for a redress of grievances.”• Central themes in final clause of the First Amendment: -Rights of people to gather in places they want and express their point of view without government interference. -Right of association -By extension the right to present their point of view to a governmental body• These rights must be balanced by restrictions such as the

time, manner, and place of assembly.

Right to Assembly

• Questions raised:-What constitutes equitable time, manner, and place restrictions on groups?-To what extent can these demonstrates take place on public and private property?-If a group or individual plans to associate with or advocates violence, can the government restrict association and the right to petition?

Right to Keep and Bear Arms• “The right of the people to keep and bear arms, shall

not be infringed.”

• Interpreted as the right of individuals to own weapons.

• National Rifle Association has become a primary interest group.

Right to Arms

• Questions raised:-Should registration and a waiting period be required for a person to own recreational guns?

-Should certain types of arms such as assault weapons be banned?

Right of Privacy• Quartering of soldiers “in time of peace” shall be illegal

“without the consent of the owner”• “The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches, seizures, shall not be violated, and no warrants shall issues, but upon probable cause…”

• The first of three amendments that deal with the due process rights of individuals, those procedural rights that protect individuals from governmental interference.

Right of Privacy• Questions raised/major issues related to Fourth

Amendment:

-To what extent can police conduct a search without a warrant and obtain evidence found to prosecute an individual?

-What methods can law officials use to obtain evidence?

-Can the right of privacy extend to social issues such as abortion?

Essay Questions• Complete an outline or rough draft for the following

questions that may (hint hint) be on the quiz tomorrow:

-The Supreme Court has attempted to balance society’s needs for protecting its citizens and guaranteeing due process to the accused.(a) Choose one of the following cases: Mapp v. Ohio (1961)

or Gregg v. Georgia (1976)(b) Evaluate how the Court’s decision affected society and

the accused by describing the facts of he case, the constitutional issues, and the significance of the decision.

Right to Procedural Due Process• “No person shall be held to answer for a capital…crime, unless on

a presentment or indictment of a Grand Jury…nor shall any person be subject for the same offense to be twice put in jeopardy…nor shall be compelled…to be a witness against himself, nor be deprived of life, liberty, or property without due process of law…”

• “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…and to be informed of the nature and cause of the accusation; to be confronted with the witness against him; to have…process for obtaining witnesses…and to have the Assistance of Counsel for his defense.”

• “…the right of trial by jury shall be preserved…”

Right to Procedural Due Process• Viewed as a series of steps established by the

Fifth, Sixth, and Seventh Amendments that protect the rights of the accused at every step of the investigation and limit how governmental power may be exercised.

• Habeas corpus: the charges made by the police upon arrest ( a right that cannot be taken away by government, found in the body of Constitution)

Eighth Amendment• “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.”

• Part of the procedural due process, an accused has the right to post bail.

• Excessive fines and cruel and unusual punishment are covered under this

• Questions: -What constitutes excessive bail?-Is the death penalty cruel and unusual punishment?

Undefined Rights• “The enumeration in the Constitution of certain rights, shall not

be construed to deny…others retained by the people.”• “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.”

• The Ninth and Tenth Amendments to the Constitution further define rights not listed in the Constitution to the people and states.

• Questions raised:-Does an individual have the right to die?-How do the courts resolve the conflict between state-developed laws and issues raised by the Bill of Rights?

Court Cases Continued• Right to Privacy: -Planned Parenthood v Casey

• Right of Procedural Due Process:-Hamdi v Rumsfeld

• Eight Amendment-Gregg v Georgia

• Undefined Rights-United States v Lopez-Gonzales v Oregon

American Polity• Read Gideon’s Trumpet by Anthony Lewis pg.

345 and answer questions

• Read Miranda v. Arizona pg. 355 and answer questions

Chapter 4 Civil Liberties Discussion (read chapters 4 &5)• Although the Supreme Court has ruled that

obscenity is not protected by the First Amendment, it has been difficult to determine precisely what is obscene.

• Try your hands at writing a definition that could be used by a court or a censorship panel to distinguish obscenity from legally protected art.

Essay for Test Grade Next Week• Using the following headline and your knowledge of United

States politics, answer the questions.

• Abortion Advocates Call Attacks on Roe v Wade the Battle for All Mothers

(a) Explain the point of view taken in the headline. (b) Identify three laws states have passed in response to Roe v Wade. (c) How did the Planned Parenthood v Casey respond to the point of view taken by the headline.

Civil Rights • Equal protection to all“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.”

Civil Rights• The history of the civil rights movement parallels

the nationalization of the Fourteenth Amendment of the Constitution.

• Even though the Civil War solved the problem of slavery and established the legitimacy and dominance of the federal government, the fact remained that many states still passed Jim Crow laws (legislation that legalized segregation even after the adoption of the Fourteenth Amendment).

Civil Rights• Segregation existed in America, and the Supreme Court in the

Plessy decision stated “separate but equal” was an acceptable standard.

• It took the landmark Brown v Board of Education decision for the movement to see results.

• Other minority groups such as women, immigrant groups, Native Americans, homosexuals, senior citizens, and the young have faced discrimination.

• Congressional legislation and Supreme Court decision have used affirmative action programs as a means of providing equality under the law.

Fourteenth Amendment• Aimed to nationalize the meaning of civil rights.

• Supreme Court ruled that the intent of the Fourteenth Amendment was to protect the freed slaves, not incorporate the Bill of Rights.

• Fourteenth Amendment applied only to the states “operating under cover of the law.”

Fourteenth Amendment• How did the Fourteenth Amendment finally become the

basis of the civil rights movement?

• It took the Supreme Court over 50 years to finally reverse Plessy.

• Brown v Board of Education signaled the beginning of equal protection under the law for African-Americans.

• There were, however, other significant First Amendment and due process cases before Brown, which started the process of incorporation.

Key Court Cases that started the process of incorporation• Gitlow v New York (1925)- freedom of speech

• Near v Minnesota (1931)- freedom of the press

• Powell v Alabama (1932)- access to a lawyer in capital cases

• DeJonge v Oregon (1937)- freedom of assembly

• Cantwell v Connecticut (1940)- freedom of religion

• Wolf v Colorado (1949)- unreasonable search and seizure

Fourteenth Amendment

• After the Brown decision, an activist Supreme Court used the principle of incorporation in many of their decisions to promote 14th Amendment due process rights and equal protection under the law.

• The criteria they used were threefold: (see next slide)

Criteria• Reasonable classification, the distinctions drawn

between persons and groups;

• The rational basis test, if the legislative intent of a law is reasonable and legitimate and serves the public good; and

• The strict scrutiny test, which places the burden on the states to prove that laws that discriminate fulfill a “compelling governmental interest.”

Civil Rights Continued• Women-Most point to Seneca Falls Convention in 1848 as beginning of the fight for equality

-Took passage of Nineteenth Amendment in 1920 for women to gain right to vote

- 1920-1960’s women’s movement was stagnant

- Case Muller v Oregon (1908) spoke about inherent differences between men and women in the workplace was the prevalent viewpoint.

Feminist Movement• The Feminine Mystique written by Betty Friedan in

1963 was the birth of feminism.

• (Now) National Organization for Women and National Women’s Political Caucus

• Proposed Amendment to Constitution, Equal Rights Amendment

• Equal Pay Acts of 1963

• Lilly Ledbetter Act

Feminist Continued• Civil Rights Act of 1964 had anti-sex discrimination

provision

• Title IX made sex discrimination in federally funded education programs illegal

• Cases to research:Reed v. Reed Craig v. BorenUAW v. Johnson Controls

Rights for Homosexuals• Attempts by gay activists and federal and state legislatures

to guarantee equal protection for homosexuals have fallen short.

• Amendment 2 in Colorado: state could not adopt any laws providing protected status for homosexuals.

• Don’t Ask Don’t Tell executive order by Bill Clinton: gays allowed to serve in military as long as they don’t disclose fact

• Gay marriage is a state issue: 6 states allow it, 30 states have constitutional amendments banning it