Civil Liberties

1. 4 Civil Liberties Gilles Mingasson/Getty Images

2. 4.1 The Bill of Rights • Unpopular at Constitutional Convention • George Mason proposed these “rights” preface the constitution • Representatives unanimously defeated resolution • Federalists argument against Bill of Rights • State constitutions already had guaranteed rights so Fed. guarantees were unnecessary • Would be dangerous! Constitution enumerates rights to Fed. Govt. (Art 1, sec. 8) In Federalist 84, Hamilton argued “Why declare things that shall not be done?” • Would be impractical to enforce

3. 4.1 The Bill of Rights is NOT an all inclusive list • Ninth Amendment (IX) • Makes clear the special list of rights is NOT all inclusive…that other rights can, may and do exist or are implied • Tenth Amendment (X) • Powers not delegated to the national government are reserved to the states or to the people

4. 4.1 The Incorporation Doctrine: The Bill of Rights Made Applicable to the States • Initially, the Bill of Rights ONLY applied to Federal Govt • Fourteenth Amendment - Bill of Rights applies to actions of states, not just federal government. • Due process clause of 14th Amendment - No “state” shall deprive…Applied to Bill of Rights • Substantive due process – Standard whereby the States had legal burden to prove their laws constituted a valid exercise of power to regulate health, welfare or public morals - Gitlow v New York (1925).

5. 4.1 Selective Incorporation and Fundamental Freedoms • Supreme Court has not automatically made all specific guarantees in the Bill of Rights applicable to the States • That’s called: Selective Incorporation (table 4.1) • Fundamental Freedoms – defined by the Court as essential to order, liberty and justice

6. 4.1 TABLE 4.1 When did selective incorporation make the Bill of Rights applicable to the states? continued on next slide

7. 4.1 TABLE 4.1 When did selective incorporation make the Bill of Rights applicable to the states?

8. 4.2 The Establishment & Free Exercise Clause • Separation of church and state (Jefferson’s letter to Danbury Baptists Jan 1, 1802…Reynolds v US (1878) • Lemon test Lemon v Kurtzman (1971) a practice or policy was Constitutional but .. • Did NOT have secular purpose • Did NOT advance or prohibit a religion • Did NOT entangle government with religion • Free exercise clause not absolute • Some religious rites considered illegal • State must provide compelling reason to limit exercise of religion.

9. 4.3 Freedoms of Speech and the Press • Alien and Sedition Acts • Censored criticisms of the government • Federalist govt (Adams) trying to censor Democratic-Republicans (Jefferson) • Slavery, Civil War, and Rights Curtailments • Speech again censored (illegally) by Lincoln • World War I and anti-government speech Schenck v US (1919) – established Clear and Present Danger test

10. Protected & Unprotected Speech and Press 4.3 • Protected speech • Limiting prior restraint - NY Times v US (1971) • Symbolic speech - Stromberg v California (1931) & Tinker v Des Moines (1969) • Hate speech - R.A.V. v City of St. Paul (1992) • Unprotected speech • Libel and slander – NY Times v Sullivan (1964) • Fighting words – Chaplinsky v New Hampshire (1942) • Obscenity – Roth v US (1957)

11. 4.3 Freedoms of Assembly and Petition • Freedom to assemble hinges on peaceful conduct – DeJong v Oregon (1937) • Subject to rules regarding free speech • Freedoms of assembly and petition relate to those of speech and press. If words spoken cross constitutional lines, events may no longer be protected

12. Included to prevent Congress from disarming state militias Dred Scott v. Sandford (1857) The right to bear and carry arms a basic right of citizenship US v Miller (1839) Court upheld National Firearm Act tax on auto and sawed-off D.C. v Heller (2008) Court ruled 2nd Amendment protected right to own a firearm for personal protection 4.4 Second Amendment: Right to Keep and Bear Arms

13. 4.5 The Rights of Criminal Defendants • The Fourth Amendment and Searches and Seizures • Wolf v Colorado (1949) - unreasonable search and seizure • Weeks v US – (1914) – established exclusionary rule • Mapp v Ohio (1961) – evidence illegally obtained is inadmissible • The Fifth Amendment: Self-Incrimination and Double Jeopardy • Miranda v Arizona (1966) – coercion and self-incrimination • Mallory v Hogan (1964) – self-incrimination

14. 4.5 The Fifth Amendment : Self-Incrimination and Double Jeopardy • Protection against self-incrimination • Miranda v. Arizona (1966) • Right to remain silent • Knowledge that what you say can be used against you • Right to an attorney present during questioning • Right to have an attorney provided if you cannot afford one • Double jeopardy

15. 4.5 Rights of Criminal Defendants • The Sixth Amendment and Right to Counsel • Gideon v Wainwright (1963) – the right to counsel is a necessity not a luxury • The Sixth Amendment and Jury Trials • The right to confront witnesses is not an absolute right. Supreme Court ruled (1990) that the testimony of a 6-year old abuse victim was permissible by closed-circuit TV • Also includes right to speedy & public trial, jury of peers (racial and gender) • The Eight Amendment and Cruel and Unusual Punishment • Furman v Georgia (1972) – issued a moratorium on the death penalty because it was being imposed arbitrarily • Gregg v Georgia (1976) – Ruled Georgia’s rewriting of the death penalty statute was constitutional

16. 4.6 Right to Privacy • Griswold v Connecticut (1965) – the court decided that various portions of the Bill of Rights (1st, 3rd, 4th, 9th and 14th) cast what the court called “prenumbras” or unstated liberties on the fringes of stated rights. Ban on contraception violated marriage privacy. • Roe v Wade (1973) – 1st trimester absolute right to privacy terminate pregnancy under the 9th Amendment. • Bowers v Hardwick (1986) – Upheld anti-sodomy laws • Lawrence v Texas (2003) – Overturned its Bowers decision finding Texas law unconstitutional on privacy grounds

17. 4.7 The Fourth Amendment • The USA PATRIOT Act and impact on illegal search and seizure • Private records • Search of private property • Collection of foreign intelligence • Information about who is sending and receiving communications • Supreme Courts ruling in favour of state “DUI” checkpoints without probable cause or search warrant.