Civil Liberties

1. Civil Liberties “Your rights as Americans”

2. Founding Documents • Declaration of Independence - “We hold these truths to be self-evident; that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” • Constitution – framers believed in natural rights

3. Writ of Habeas Corpus • Art. 1, Sec. 9 • “Produce the body” • Requires government officials to present a prisoner in court and to explain to the judge why the person is being held

4. Ex Post Facto Laws • “after the fact” • Being charged for committing a crime, that wasn’t a crime when the person committed the action

5. Bills of Attainder • Legislative act that punishes an individual without judicial trial • Court should decide guilt, not Congress

6. Bill of Rights • Free speech, press, assembly, petition, religion • Right to bear arms • Prohibits quartering soldiers • Restricts illegal search and seizures • Provides grand juries, restricts eminent domain (gov can’t take private property unless compensation), prohibits forced self-incrimination, double jeopardy (can’t be charged for the same crime twice)

7. Bill of Rights 6. Outlines criminal court procedure 7. Trial by jury 8. Prevent excessive bail and cruel and unusual punishment 9. Amendments 1-8 do not necessarily include all possible rights of the people 10. Reserves for the states any powers not delegated to Fed. Gov by Constitution

8. 14th Amendment • “privileges and immunities” – Constitution protects all citizens • Due process – prohibits abuse of life, liberty, or property of any citizen, state rights were subordinate to Fed rights • Equal protection clause – Constitution applies to all citizens equally

9. Due Process • Appears in both the 5th & 14th Amendment • Forbids national AND state governments to “deny any person life, liberty, or property without due process of law.” • The Supreme Court has refused to provide a precise definition of due process • Procedural – fair hearing or formal trial • Substantive – fundamental fairness

10. Incorporation Doctrine • Gitlow v. New York began the incorporation process using the Due Process Clause of the 14th Amendment to extend most protections of the Bill of Rights to the states • This has been a gradual process using individual court cases

11. Religion • “Establishment” Clause – prohibits the gov’t from establishing an official church • A “wall of separation between Church and State” is created by the 1st Amendment (TJ) • “Free Exercise” Clause – allows people to worship (or not) as they please • A religion cannot make an act legal that is otherwise illegal. Sorry Rastafarians and Aztecs. 

12. The Lemon Test Aid to church related schools must: • (1) have a secular (denoting attitudes, activities, or other things that have no religious or spiritual basis) purpose • (2) neither advance nor inhibit religion • (3) not foster an excessive government entanglement with religion.

13. Free Speech • DOES NOT mean that you can “say anything you want”… but pretty close • Founders saw free speech as a fundamental natural right • Guarantees of free speech are meant to protect expressions of unpopular views • “The freedom to differ is not limited to things that do not matter much.” Justice Jackson • Wrong or offensive ideas force us to sharpen our own views. John Stuart Mill

14. Limits on Free Speech • Threat to national security or creating a safety concern (Clear and Present Danger Test) • Libel – false written statement attacking someone’s character, with intent to harm • Commercial speech – advertising can be limited to serve a “substantial public interest.” • Youthful speech – student speech can’t be “disruptive” to educational environment • Obscenity – not protected, hard to define • Pornographic materials • Symbolic speech – action to convey a message - Flag Burning, Armbands to protest war

15. Prior Restraint • Prior restraint is the attempt to limit freedom of the press by preventing materials from being published. • This has been ruled as censorship and is not allowed since it violates freedom of the press • The Pentagon Papers – New York Times was allowed to publish materials about Vietnam • School districts have been given broad latitude to censor school newspapers

16. Right to Privacy • Not mentioned in the Constitution • Griswold v. Connecticut (1965) • Incorporated the 9th Amendment using the right to privacy found in the unstated liberties implied by the explicitly stated rights in the Bill of Rights (1st, 3rd, 4th, and 5th) • Roe v. Wade (1971) • Based on the right to privacy established by Griswold

17. Search and Seizure • The protection against “unreasonable searches and seizures” (4th Amendment) • Exclusionary Rule (Weeks v. US 1914) • Prevent police abuse • “tainted” evidence cannot be used in court • Federal cases ONLY • Mappv. Ohio (incorporated the 4th) • Police were looking for evidence of one criminal activity but found another • Lack of “probable cause” excluded the evidence

18. Self-incrimination • No one “shall be compelled to be a witness against himself.” 5th Amendment • Miranda v. Arizona 1966 • Ernesto Miranda was a mentally challenged drifter accused of kidnapping and rape • He signed a written confession after 2 hours of interrogation – he was never informed of his constitutional rights • All suspects must now be “read their rights”

19. Right to Counsel • The accused shall enjoy the right to have the assistance of counsel for his defense, as guaranteed by the 6th Amendment • Gideon v. Wainwright • Gideon was accused of breaking and entering and robbery • His request for counsel was denied • His conviction was overturned

20. Right v. Right • Most cases are not simple since we all enjoy liberties and rights • The conflicts occur because situations often pit two competing rights against each other • Ex. – The Patriot Act • Ex. – freedom of press v. national security • Is it more important to have a free press or military secrets?