Chapter 14 (Civil Liberties)

1. Chapter 14 (Civil Liberties) “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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Declaration of Independence

2. I. Power and Individual Liberty • Governments are necessary to protect the liberties of the weak from the will of the strong. However, governments may become so strong that gov’t itself may infringe upon individual liberty. • Democracies do not protect liberties by themselves. Certain rules must be included so that some liberties are never subject to majority preference (i.e. Paradox of Democracy). • Incorporation – Since Civil War, the Supreme Court has begun to apply all of the Bill of Rights to the states through the 14th amendment.

3. II. Freedom of Religion – Congress can not prohibit “free exercise” or make a law “respecting an establishment of religion.” *Americans are more religious than any other advanced industrialized nation (belief in God and church attendance). *70% of Americans belong to churches, synagogues, or other religious assemblies. *35% attend religious services in a normal week A. Free Exercise of Religion – this is not an absolute freedom (few freedoms are). Conduct, even when it is considered religious, can be regulated (i.e. 1879 and Mormon polygamy). Belief is absolutely protected, but not practice (Santeria animal sacrifice protected). B. No Establishment of Religion – “wall of separation” (Jefferson letter) or simply no official establishment of a particular religion (8 of 13 states had established churches; whatever states do, fed gov’t can not)?

4. C. What Constitutes Establishment? • Strict-Separation or No-Aid Doctrine – Government and religion should remain independent (Jefferson). Lemon Test: • Must have a secular purpose • As its primary effect, must neither advance nor inhibit religion. • Must not foster “an excessive government entanglement with religion.” 2. Accommodation Doctrine – Government may extend benefits to religion in a nondiscriminatory fashion and support a Judeo-Christian heritage. 3. Equal Treatment Doctrine – this argument suggests that if a government enterprise favors or supports nonreligious entities, then government is guilty of “prohibiting the free exercise” of religion by placing religion at a disadvantage (e.g. University of Virginia and funding publications).

5. *Mid 1980s, if teaching evolution, then creationism must be taught too. Banned. *“The neutrality or equal treatment principle says the University of Virginia could decide to fund no student publications, but once it had decided to fund them, it could no more decide to fund all secular publications and exclude religious publications than it could fund all religious publications and exclude secular ones.” – Stephen V. Monsma John Witte: If James Madison was a strict separationist, it was much easier for him to be in early 19th century; states were free to regulate religion and the government was small. Not so today (incorporation and a huge government involved in all spheres of society). Some degree of cooperation is inevitable. D. Religion in the School (can in Congress) • -Engle v. Vitale (1962) banned prayer in schools. • -Abington Township v. Schempp (1963) school directed Bible reading. • -State of Alabama and a period of silence for “meditation or voluntary prayer” • -graduations and football games (student led or school worker, still unconstitutional).

6. Freedom of Speech (not absolute again, Congress can make “some” laws) • Preferred Position Doctrine – the Supreme Court has gradually given the 1st amendment special attention and protection since these freedoms are necessary for the public to correct the government. • Clear and present Danger Doctrine – speech can be restricted if it creates a serious and immediate danger to society. • Symbolic Speech – The 1st amendment has been broadened to consider freedom of expression a form of speech (e.g. burning the flag and wearing anti-war arm bands to school). But not absolute (burning draft cards, school dress codes). • Speech and Public Order – Even speech that may create public disorder or significant offense is protected (including hate speech on college campuses where it is often banned).

7. Hate crimes or Hate speech – the court has held that judges may not take a criminal’s “beliefs” into consideration during sentencing. But they have also held that a criminal’s motive can be considered, which can include hate. • Commercial Speech – courts have typically held that laws can not restrict advertisements (e.g. lawyer ads). Yet, the FCC has been allowed to regulate ads on TV and radio (e.g. cigarettes and whisky; “truth” in advertising). • Libel and Slander – speech intended to harm a person is not protected, but malice must be proven before prosecution.

8. IV. Obscenity and the Law *Obscenity has been defined in many ways (lewd, filthy, indecent, disgusting and obscene) A. Slackening Standards (RothTest): Roth v. United States (1957) – standards for obscenity: • average person • community standards • society at large (not particular states or communities) • dominant theme is not obscene • “utterly without redeeming social or literary merit” • “sex and obscenity are not synonymous”

9. B. Tightening Standards: Miller v. California (1973) – narrower language • -retained average person and community standards language • -redefined community to mean local community • -included “patently offensive” with much more explicit language • -traded “#5” with “lacks serious literary, artistic, political, or scientific value” Results: • more convictions: ‘without redeeming merit’ is harder to prove and lacks value • local standards allows some things to be regulated in some communities while not in others

10. C. Child pornography – forget it NAMBLA (consensual). Conviction is easy. D. The Information Highway – Regulating the internet is much harder, especially under current legal standards. Congress tried in 1996 (communications and decency act). Court struck it down. IV. Right to Bear Arms *“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.”

11. A. Bearing Arms - the individual right view: gun ownership is necessary to prevent tyranny *what is common among oppressed people throughout history? How have their oppressors succeeded in controlling them (in many cases the oppressors were fewer than the oppressed). 23 states with concealed laws. B. State Militias – the collective view: protects only the right of states to form militias. They emphasize a “well-regulated militia.” *Militia Act of 1792 = “required ‘every free white male citizen of the representative states, resident therein, who is or shall be of the age of 18 years and under the age of 45 years’ to be enrolled in the militia and equipped with ‘a good musket,’ a bayonet, and ’24 rounds of ammunition.” Private Ownership?

12. V. Death Penalty • a disproportionate number of executed killers have been poor, uneducated, and nonwhite • The average sentence for murder is 14 years • The average time served is 8.5 years (some states more than others). • 650 executions since 1976; 575,000 murders. Sure, Swift, Severe? A. Prohibition against Unfair Application – From 1967 – 1971, the death penalty was not used once. In Furman v. Georgia (1972) ruled that capital punishment violated the 8th (ambiguously applied) and 14th amendment (cruel and unusual). States rewrote laws trying to ensure fairness and uniformity and clearly specified crimes where it is usable.

13. B. Death Penalty Reinstated – These revised laws upheld constitutional tests and the court practically reversed itself in 1976. However, they ruled that all death penalty cases must be reviewed by State supreme courts. • Racial Bias – 14th amendment’s Equal Protection Clause implies that there not be biases in the administration of punishment. • Although white murderers are as likely to receive the death penalty as black murderers, some evidence suggests that if the victim is white, a sentence of death is more likely (82% of the murder victims in death penalty cases are white, 13% are black). But whites are also overwhelmingly more likely to be the victims of capital crimes (which are more likely to result in death sentences: serial killings, violent crimes coupled with murder, and “stranger” victims or unknown to assailant).

14. D. Delays – On average, just over 10 years can pass between death sentences and executions due to the number of appeals considered. The Court has begun to limit the number of appeals that produce these delays. When this number is reached, the only hope that a prisoner has is a pardon.