American Government

American Government Civil Liberties

Civil Liberties: Outline • -definition • -historical roots • -3 “P’s”: privacy, political, punishment • -selective incorporation

Contrasting Liberties from Rights • freedoms from government • limits on what government can legally do to individuals • “negative” rights -- not freedom “to” but rather freedom “from” • contrast with civil rights (freedoms guaranteed by government)

Historical Roots • Based in classical liberal political theory • individual is key element in society • Ironically perhaps, grows out of both • British traditions • reaction to British abuses in the colonies • Those who won our independence believed the final end of the state was to make men free to develop their [personal] faculties. – Louis Brandeis

Historical Roots, cont. BRITISH LIBERAL TRADITION • Magna Carta(1215) • first written limits on king • included guarantees of due process, local and speedy trials, no cruel or unusual punishments BRITISH ABUSES of LIBERTY • turbulent 1500s brought era of numerous abuses in Britain • Protestant v Catholic • Crown v Parliament • Elizabeth (1998)

Historical Roots, cont. BRITISH ABUSES of LIBERTY • The Star Chamber • Inquisitional court • government = accuser, prosecutor, judge, and jury American Colonies under British Rule: • no protection against self incrimination … torture • Massachusetts was “enlightened” • torture only after confession (accomplices) • couldn’t be “barbarous or inhumane” • general search warrants (writs of assistance) • used extensively to catch smugglers The Pillory • “In the Star Chamber the council could inflict any punishment short of death, and frequently sentenced objects of its wrath to the pillory, to whipping and to the cutting off of ears…”

The Original Tea Party:American Response to Writs of Assistance (and other usurpations):

British Influences on Constitution • British abuses led to calls for explicit bill of rights in the Constitution • Antifederalist • Madison opted not to include it in original • Constitution established limited government with enumerated powers • Rights inherently protected by constitutional checks and balances • Comes around – authors Bill of Rights himself • Bill of Rights added in First Congress • First 10 Amendments to the Constitution

The Three P’s • Bill of Rights outlines three basic types of civil liberties: • Privacy • Participation • Punishment

Privacy • right to be left alone by government • based on 1st, 3rd, and 4th Amendments • 1st: speech, press, religion, assembly • 3rd: quartering of troops • 4th: “unreasonable searches and seizures” • “persons, houses, papers, and effects” • no general writs • Griswold v CT (1965) • “penumbral” right to privacy

Participation • based originally on Article 1 and 1st Amendment • “the House of Representatives shall be composed of Members chosen every second Year by the People of the several States….” • “Congress shall make no law respecting … the right of the people … to petition government for a redress of grievances.” • Baker v. Carr – One Person, One Vote

punishment • Rights you enjoy when the government seeks to punish you for a crime or misdemeanor • Based in the 4th, 5th, 6th, 7th, & 8th amendments • Was a major focus of the Bill of Rights b/c of British abuses during colonial rule

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 petition the Government for a redress of grievances.

Freedom of Speech • Time, place, or manner restrictions • These get the lowest level of scrutiny and are usually upheld, unless their requirements have an especially burdensome impact on speech. • Content / Viewpoint-based restrictions • Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny (strict), and are almost always overturned, unless they fall into one of the courts special exceptions.

Speech (con’t) • Holmes’ clear and present danger test • Speech that presents a clear and present danger may also be restricted. • The canonical example, enunciated by Justice Oliver Wendell Holmes, is falsely yelling "Fire!" in a crowded movie theater. • The trend since Holmes's time has been to restrict the clear and present danger exception to apply to speech which is completely apolitical in content. • Flag burning case: Texas v. Johnson • Exceptions: • Obscenity - Justice Potter Stewart famously quipped: “I know it when I see it.”

Protected and Unprotected Speech • Types of speech • Political Speech Protected • Libel (slander) Partial • Obscenity Partial • Symbolic Speech Partial • Commercial Speech Not Protected

Political Speech • Centrality of Political Speech • Though not absolute, freedom of expression occupies a higher, or more preferred position than other constitutional rights • Within expression, political speech has a preferred position • Buckley v. Valeo: contributions to candidates are political speech • Cannot limit spending of own money • Can limit but not prevent contributions to candidates (exception: corporations)

Campaign-Finance Reform • CFR (1970’s): • Federal Election Campaign Act (FECA) • provisions included: • new, stricter and more comprehensive contribution and expenditure limits for campaigns and other committees • full public financing for presidential general election campaigns, • an independent agency to enforce campaign finance laws: The Federal Election Commission

CFR (con’t) • CFR (2000’s): • Bipartisan Campaign Reform Act of 2002 • It eliminated all soft money donations to the national party committees • but it also doubled the contribution limit of hard money, from $1,000 to $2,000 per election cycle, with a built-in increase for inflation. • In addition, the bill aimed to curtail so called "issue ads" by banning the use of corporate or union money to pay for broadcast advertising that identifies a federal candidate within 30 days of a primary or nominating convention, or 60 days of a general election. So-called “electioneering communications.”

Citizens United v. Federal Election Commission • 2010 case – dispute over whether non-profit could air film critical of Hilary Clinton w/n the BCRA time limits prior to an election. • USSC struck down part of the BCRA (McCain – Feingold), which prohibited corporations & unions from broadcasting “electioneering communications” • Partially overruled McConnell v. Federal Election Commission, which had upheld the BCRA. If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. - Justice Anthony Kennedy, Citizens United

Freedom of the Press • No Prior Restraint • Can the government stop speech before it happens? • NO! • Precedents • Near v. Minnesota (1931) • NY Times vs. USA (Pentagon Papers)

Freedom of Religion • Establishment Clause • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” • Wall of Separation • Not only no national religion, no government involvement with religion • Precedent • Lemon v. Kurtzman (1971)

Lemon Test & Establishment • The Lemon Test: • State laws must have a secular legislative purpose • State laws must not have an effect that advances or hinders a particular religion • Laws must not promote an ‘excessive’ government entanglement with religion • Future uncertain: Court has moved away from Lemon towards more of a ‘balancing’ test

Freedom of Religion • Free Exercise Clause • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” • Clearer than establishment clause, but still ambiguous • US Congress cannot regulate religion • States cannot regulate religion • Also cannot pass a law that puts undue burden on a religion • Precedent • Jehovah’s Witnesses • Santeria

Participation (con’t) • expanded in 19th and 20th centuries • 15th amendment (1870) – right to vote • 17th amendment (1913) – direct election of senators • 19th amendment (1920) – women’s right to vote • 24th amendment (1964) – eliminates poll tax • 26th amendment (1971) – right of eighteen year olds to vote • series of court cases (Baker v Carr and its progeny) enforcing one person-one vote

Punishment • protection from arbitrary, capricious, abusive or inhumane treatment of those accused or convicted of crimes • limit government’s ability to use criminal procedure for political ends • based on 4th, 5th, 6th, 7th, and 8th amendments

Punishment (con’t) • 5th amendment = indictments require grand jury, no self incrimination, no double jeopardy, due process, just compensation • 6th amendment = trial by jury in criminal cases • public, impartial, speedy, local, face accusers, compel witnesses, access to counsel • 7th amendment = jury trial in major civil cases • 8th amendment = no excessive bail; no cruel and unusual punishments

Punishment, (con’t) • difficult questions include: • death penalty (Furman v GA; Gregg v GA) • discriminatory? (McCleskey v GA); minors; mentally impaired • “good faith” exceptions to search and seizure • exceptions to self incrimination • public safety (NY v Quarles) • how impartial do juries have to be? • who can be excluded • when should counsel be provided?

Highlight: 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.”

Fourth Amendment • Privacy – protection against unreasonable searches & seizures through warrant requirement • Punishment – Exclusionary Rule: evidence gathered in violation of the Constitution cannot be used in a trial. • Caveat – applies only to government; it does not guarantee the right to be free from unreasonable searches and seizures conducted by private citizens or organizations (i.e. “Cheaters”).

Fourth Amendment & Privacy • The 4th Amendment requires the government to obtain a valid warrant in order to conduct a search or a seizure. • Valid warrants must establish “probable cause” – reasonable belief that a search or seizure would produce contraband or reveal a criminal activity • Exceptions • Plain View • Search incident to arrest

Fourth Amendment & Punishment • Exclusionary Rule (Weeks v. United States) – evidence obtained through an illegal search is “fruit of the poisoned tree” and thus cannot be used at trial. • Exceptions: • “Good Faith” – evidence collected through a defective warrants could be used where police reasonably believed it to be a good warrant (United States v. Leon) • “Inevitable Discovery” – evidence collected illegally may be admitted at court if it can be reasonably argued the evidence would have been obtained legally

Highlight: 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 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.”

Fifth Amendment Jurisprudence • Double Jeopardy – individuals may be tried only once for a particular offense • Self-Incrimination – protects witnesses from being forced to incriminate themselves. • To "plead the Fifth" or to "take the Fifth" is to refuse to answer a question because the response could form incriminating evidence • Due Process – the principle that the government must normally respect all of a person's legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty, or property • Due process embraces “fundamental fairness” & those fundamental rights that are "implicit in ordered liberty.“ • Notification of charges against you, right to be heard, etc.

Fifth Amendment Fifth Amendment • Miranda v. Arizona(1966) - Miranda Rights – Government must inform you of your rights before questioning. • The Fifth Amendment limits the power of eminent domain (the power of the government to take private property for public use) by requiring that "just compensation" be paid if private property is taken for public use. • What is “public use?” • Kelo v. City of New London– private property seized for commercial use did not violate the Fifth Amendment.

Eigth Amendment: Punishment • Eighth amendment: “Cruel & Unusual Punishment” • Furman v. Georgia • The Court's one-page per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. • However, it left the door open for states to put in place procedural safeguards that could permit the death penalty to pass constitutional muster. • Gregg v. Georgia • In a 7-to-2 decision, the Court held that a punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances. • In extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be appropriate if carefully employed.

Emanating Penumbras & Privacy Is there a right to Privacy? • Griswold v. Connecticut (1965) • “a right to privacy older then the Bill of Rights” • Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. • Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. • Roe v. Wade (1973) • a “woman’s right to privacy was so fundamental it could be infringed only when the state interest in doing so was compelling” • The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. • The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. • As a result, the laws of 46 states were affected by the Court's ruling.

Incorporation • Barron v. Baltimore (1833)– Bill of Rights does not apply to the States • Supreme Court overturns Barron & Twining -- adopts incorporation doctrine. • Incorporation is legal doctrine by which portions of the U.S. Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment. • Selective Incorporation – the incorporation doctrine has been applied piecemeal, incorporating portions of BofR one at a time. • Gitlow v. New York (1925) – 1st amendment • Wolf v CO (1949) – search & seizure • Mapp v. Ohio (1961) – exclusionary rule

Selective Incorporation Wrap-Up • Rationale for selective incorporation = “fundamental to the American scheme of justice” (Duncan v LA, 1968) Prominent Bill of Rights items not incorporated • right to keep and bear arms (2nd amendment) UPDATE! • District of Columbia v. Heller & McDonald v. Chicago • 2010: McDonald incorporates 2nd amendment • quartering troops (3rd amendment) • jury trial for civil suits (7th amendment) • also: part of 5th (grand jury) and 8th (excessive bail)

American Government