Civil Liberties

1. Civil Liberties

2. Bill of Rights • Not in original Constitution- framers believed it was implied. Believed limited powers implied our rights. Nope! • Why do liberties become an issue? • RIGHTS IN CONFLICT • Privacy vs Security (9/11) • Freedom of Speech vs Freedom of Religion • Free press vs Common defense ( Pentagon Papers)

3. Amendments • First- 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.

4. Free press • Without it, you get this

5. Second- A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

6. So which prevails?

7. Third- No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

8. Fourth- 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 Warrantsshall 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.

9. Fifth- No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of agrand 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 offence 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.

10. Sixth- In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

11. Seventh- In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

12. Eighth-Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

13. Ninth- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

14. Tenth- 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.

15. 14th Amendment • All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.

16. 14th is important • Applied Bill of Rights to the states • Barron v. Baltimore (1833)- Bill of Rights does not apply to states, BUT, then comes the 14th amendment in 1868 • Gitlow v. New York (1925)- States must protect free speech. Floodgates opened.

17. Freedom of Religion • Two parts-Free exercise and establishment

18. Free exercise- Can not stop religious activity except when hurting others or breaking laws (ex. Polygamy with Mormon Church) • Church of LukumiBabalu Aye v Hialeah- City banned animal sacrifices. Supreme Court struck down the law based on free exercise • Locke v Davey – Supreme Court upheld a decision by a college to offer scholarships, using tax dollars, for majors except theology

19. Establishment clause- the state can not mandate a religion • Everson v Board of Education(1947)- First time SC took on the clause. States could reimburse religious schools for the cost of busing students to school. • McCollum v Board of Education (1948)- SC ruled school could not bring in religious speakers • Engel v Vitale (1962)- Shot down prayer in school

20. Supreme Court- 2 views • To hold that a state cannot, consistently with the First and Fourteenth Amendments, utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not...manifest a governmental hostility to religion or religious teachings….The First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other …. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable. (Justice Black in McCollum v Board of Education)

21. Supreme Court- 2 views • We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs …. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish ….When the state encourages religious ….it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs (Justice Douglas in Zorach v Clauson)

22. Lemon v Kurtzman • Lemon test ( 1971)- 3 parts • Is it secular? • Is it a promotion of religion? • Does it foster excessive government entanglement with religion? Results mixed- Ten commandments can be posted, but then again it can’t ( Texas, yes, as part of a larger display of monuments. Kentucky, no, it was posted in courthouse. The rulings were on the same day) Make sense??

23. Free speech • Protected speech: • 1. Symbolic- Flag burning protected ( Texas v Johnson). Burning draft cards not protected Why the difference? • Tinker v Desmoines(1969)- Arm bands in school to protest war are OK. Must not be disruptive to learning.

24. 2. Prior restraint- Not allowed, that is censorship • NY Times v US (1971)- Pentagon Papers- Government can not stop publication, can only act after the fact.

25. 3. Hate speech-Blacks fought to win freedoms during civil rights movement, now look to suppress them in effort to halt hate speech • Many universities have speech codes- UCONN bans” inappropriately directed laughter” and ‘ conspicuous exclusion of students from a conversation”. Courts have not been kind to the codes.

26. Search and seizure • 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 Warrantsshall 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.

27. Exclusionary Rule • Principle based on federal Constitutional law that evidence illegally seized by law enforcement officers in violation of a suspect's right to be free from unreasonable searches and seizures cannot be used against the suspect in a criminal prosecution.

28. SC and exclusionary rule • Weeks v US (1914)- Exclusionary rule established. Warrentless search used to convict Weeks if illegal gambling. Conviction overturned. • Mapp v Ohio (1961)- Mapp convicted of possession of obscene material after search for bombing suspect. Conviction overturned. 4th applied to states

29. Everything has exceptions

30. 4th amendment exceptions • Search following a lawful arrest • Automobile searches- 1. probable cause that car has contraband 2. car is mobile 3. plain view items 4. lower expectation of privacy • Plain view-Search for drugs yields plain view guns • Stop and frisk- based on reasonable suspicion. Feel what seems like weapon, then search is permissible

31. How does it work?

33. Emergency exceptions- 1. Hot pursuit 2. Evanescent evidence ( evidence could disappear) • Consent- “Oh God, what have I done”? Applies to all in apartment or car even if only one consents • Private citizen- Acting as citizen, not police agent. Also, UPS/FedEX/USPS can inspect packages, intentionally or accidentally . Employers can search your stuff ( private business) • Good faith exception- warrant issued, go to wrong house

34. Courts undoing exclusionary rule • Nix v Williams (1983)- Williams suspected of murder. He was coerced into telling police where the body was after he was promised he would not be questioned without an attorney present. At the same time a search party was closing in on the body. The court ruled that the confession was admissible as the body would have inevitably been found anyway

35. Court undoing exclusions • Herring v US (2009)- Herring arrested after a neighboring law enforcement agency thought they had a warrant for skipping a court date. Warrant was actually cancelled. But a second agency carried out the warrant and found drugs and firearms. Chef Justice Roberts wrote that “the exclusionary rule is not an individual right”