O’Connor & Sabato, Chapter 4: Civil Liberties

1. O’Connor & Sabato,Chapter 4: Civil Liberties Presentation 4.1: The Role of the Bill of Rights in American Govt.

2. Key Topics • Introduction • The Bill of Rights • The Incorporation Doctrine • The Selective Incorporation of the Bill of Rights • 1st Amendment Guarantees: Freedom of Religion • The Establishment Clause • The Free Exercise Clause

3. Introduction • The opening story about an elementary school principal announcing a ‘random search’ of students • Why did the principal feel he/she had a right to search students? • Do students have rights against random searches? • Why was the teacher fired? Were her rights violated?

4. 1a) What does the opening story tell you about the nature of civil liberties? • Individual rights must be balanced against other values • Expectation of privacy must be weighed against the safety of the community • Isaiah Berlin: “Freedom for the wolf is death for the sheep!”

5. 1b) The Bill of Rights & the Framers • The framers of the Constitution could not foresee the evolution of society • They did not have abortion, gay rights, or the right to die in mind James Madison is widely credited as the primary architect of the Bill of Rights

6. 1bi) The Nonabsolute Nature of Civil Liberties • Courts and lawmakers are often required to balance competing interests • Do we want individual liberty or safety • Are we willing to allow the FBI to tap private citizen’s phone lines in order to keep us safe from terrorists?

7. 1bii) The Problem of Irreconcilable Claims • Two liberties are often in conflict • The right of people to seek & provide abortion conflicts with Prolife supporters belief that abortion is murder Members of ‘People for Life’ picketing Sen. Arlen Specter. Picture from the People for Life website.

8. 1c) What are Civil Liberties? • Personal rights & freedoms that the federal govt. cannot take away • Civil liberties place constraints on the ability of the govt. to arbitrarily control the beliefs or behavior of its citizens • The existence of civil liberties provides the basis for limited govt.

9. 1c) Rights as ‘Trumps’ • American constitutional scholar Ronald Dworkin • Dworkin argues that rights are like trumps in a game a cards • Cannot be abridged w/out violating the rule of law NYC University Prof. Ronald Dworkin. Picture courtesy NYCU Website.

10. 2) The Bill of Rights • Most state constitutions included bill of rights • The new Constitution was viewed by many in the states as a threat to the rights and liberties of citizens • Anti-federalists did not trust the new govt.

11. 2a) The Framers & the Bill of Rights • The framers debated whether or not to include a national bill of rights • The motion was rejected as a potentially dangerous expansion of national power • The national govt. was viewed as a mechanism for coordinating the states • Not intended to directly regulate citizens

12. 2ai) The Ratification Process & the Bill of Rights • Anti-federalists fought hard for inclusion of a bill of rights • Several states only ratified the Constitution on the condition that a bill of rights be included • James Madison’s role • Campaigning in an anti-federalists district • Promised to ‘lend his talents’ to secure a national bill of rights • Won the race and kept his promise (‘a most nauseous task,’ he was reported to have said)

13. 2aii) The Significance of the 9th & 10th Amendments • The first ten Amendments to the Constitution contain the Bill of Rights • The legalistic implications of the 9th Amendment • The listing of rights does not mean that other rights do not exist • The 10th Amendment’s ‘reserved powers’ clause • Powers not delegated to the natl. govt. are reserved to the people and the states

14. 2b) The Incorporation Doctrine • Barron v. Baltimore (1833): the Supreme Court ruled that the Bill of Rights applied to the national govt. & not the states • The ratification of the 14th Amendment fundamentally changed the relationship between the Bill of Rights and the states • Implied that the states must respect some or all of the protections in the Bill of Rights

15. 2bi) The Supreme Court & the 14th Amendment • The Supreme Court refused to interpret the 14th Amendment’s ‘due process’ clause as making the Bill of Rights applicable to the states • In 1897, however, the SC began to increase its jurisdiction over the states • Imposed a substantive due process standard • Demanded that states demonstrate a ‘valid exercise’ of its police powers to regulate citizens’ health, welfare, or public morals

16. 2bii) Gitlow v. New York (1925) • Several states passed sedition laws that banned speech critical or disrespectful of govt. • Benjamin Gitlow, a socialist, printed & distributed a manifesto calling for the overthrow of the American govt. • Convicted in NY, appealed to the Supreme Court, claiming his right to speech had been violated

17. 2biii) Gitlow cont. • The Supreme Court upheld the conviction • However, the Court also concluded that the states were not completely free to limit forms of political expression • Some freedoms are fundamental & therefore protected by the due process clause of the 14th Amendment

18. 2biv) Near v. Minnesota (1931) • Jay Near published a weekly Minneapolis newspaper that regularly printed vicious attacks on various groups • Arrested under a state criminal libel law that prohibited ‘malicious, scandalous or defamatory’ publications • Near appealed his conviction, and the Court held that, while liberty of the press may be abused, immunity of the press from previous restraint is still necessary

19. 2c) Selective Incorporation • The Court has chosen to incorporate only the most important freedoms • Therefore, some but not all of the protections in the Bill of Rights have been made applicable to the states • The Court applies a heightened standard of review for freedoms it views as ‘essential’ for a functioning democracy

20. 2ci) Palko v. Connecticut (1937) • Palko robbed a music store and killed a police officer • Jury convicted of 2nd-degree murder & sentenced him to life in prison • The state appealed, arguing confusing jury instructions had led to a bad verdict • Palko was retried, convicted of 1st-degree murder, and sentenced to death

21. 2cii) Palko cont. • Palko appealed, arguing that the 2nd conviction violated the 5th Amendment’s prohibition of double jeopardy • The Court upheld the 2nd conviction, arguing that protection from double jeopardy was not an essential freedom • Palko was executed in 1938

22. 3) 1st Amendment Guarantees • 63% of Americans belong to a church or synagogue • Still, many public figures fear that America is becoming an ‘atheist’ nation • The dangers of infusing religion into politics Is religion important to you?

23. 3i) Religion in the Colonies • Many of the framers were deeply religious • However, many were non-religious, and viewed God as similar to a ‘watch-maker,’ who created the world & took no part in its day-to-day workings • Many colonists fled to the New World to escape religious persecutions; however, most colonies actively persecuted religious minorities

24. 3ii) Colonial Intolerance • Most colonies were intolerant of religious dissent • Example of the Salem Witch Trials in Massachusetts colony in 1692 The hanging of Bridget Bishop, June 10 1692. Picture courtesy Famous Am. Trials website.

25. 3iii) Colonial Intolerance cont. • Colonies angered when the British Parliament established Anglicanism & Roman Catholicism as the official religions in the colonies • The 1st Continental Congress sent a letter of protest that Catholicism be one of the official religions

26. 3iv) Religion and the Constitution • The reality of religious diversity • Puritans in MA • Quakers in PA • Catholics in Maryland • Article VI: ‘no religious Test shall ever be required as a Qualification to any Office or Public Trust under the United States’

27. 3v) The First Amendment • Begin, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” • Establishes provisional boundaries to the state regulation of religion • However, those boundaries are not absolute

28. 3a) The Establishment Clause • Conflict over the meaning of the establishment clause • How high is the ‘wall of separation’ between church and state? • Have allowed state subsidies of private religious educational institutions • However, the Court has consistently ruled that state-sponsored school prayer violates the establishment clause

29. 3ai) The Lemon Test • Based on Lemon v. Kurtzman (1971): Practices are constitutional if: • Secular purpose • Neither advanced nor inhibited religion • Did not foster ‘excessive govt. entanglement’ with religion • Since 1980’s, the Court has shown a willingness to ‘lower’ the wall of separation & ignore the Lemon test

30. 3aii) Establishment cont. • Historically, the Court adopted ‘books only’ to state aid of religious institutions • Books go to children, not the schools • In 2000, the Court voted to uphold a federal aid provision extending books and computers to religious schools • The ‘school voucher’ issue also clearly touches on the ‘establishment’ clause

31. 3b) The Free Exercise Clause • Guarantees that individuals are free to worship as they see fit – within reason! • When state laws conflict with religious law and practices, the state can limit the practice • However, the state must show that a legitimate purpose is served in the prohibition

32. 3bi) Practices Banned • Polygamy: marrying multiple partners is banned • Drug Use: using drugs as part of a religious ceremony can be prohibited • Snake Handling: handling poisonous snakes can be prohibited

33. 3bii) Prohibition or Accommodation? • The Court has generally concluded that state interests outweigh free exercise interests • Should states seek to promote greater citizen involvement in religion? • What goals are served by state neutrality in the exercise of religion?