America’s Democratic Republic

1. America’s Democratic Republic Ch. 4: Civil Liberties

2. Introduction • The meaning of our freedoms is constantly questioned and subject to change • The Framers supported liberty but defined it narrowly • Civil liberties in America have been greatly expanded over the life of our country

3. Civil Liberties in the Constitution • The Framers were especially concerned about founding a society in which liberty was encouraged • The Framers believed that government itself was capable of threatening liberty

4. Civil Liberties in the Constitution • Civil liberties: freedoms protected by constitutional provisions, laws and practices from certain kinds of governmental interference • Two categories • Expression, belief and association • Protections for those accused of criminal activities

5. Civil Liberties in the Constitution • The Framers protected few liverties from the national and state governments • Protected liberties not so much by writing them down, but by developing • Republican government • Separation of powers • Checks and balances • federalism

6. Civil Liberties in the Constitution • The Framers thought some liberties were so crucial that they wrote them into the Constitution • Anti-Federalists criticized the lack of liberties in the Constitution, so • Bill of Rights

7. Civil Liberties in the Constitution • Few of our most cherished liberties are actually found in the Constitution • Developed through • Political activities • Government • Social movements • Interest groups • Individuals

8. Rights and Liberties in the 19th Century • Economic liberty in the Early Republic • Many of the liberties in the Constitution protect not individual freedoms, but property rights

9. Rights and Liberties in the 19th Century • Economic liberty in the Early Republic • The Marshall Court (1801-1835) • Contract clause was used to protect unwarranted state action • Expanded property rights • Cases • Barron v. Baltimore (1833) • Fletcher v. Peck (1810) • Dartmouth College v. Woodward (1819)

10. Rights and Liberties in the 19th Century • Economic liberty in the Early Republic • Taney Court (1836-1864) • Distinguished between private property used to encourage economic growth and that used for mere enjoyment • Cases • Charles River Bridge v. Warren Bridge (1837) • Dred Scott v. Sanford (1857)

11. Rights and Liberties in the 19th Century • Economic Liberty After the Civil War • 14th Amendment • Due process clause • Supreme Court interpreted this clause as a protection for businesses against the states regulatory efforts • Lochner v. New York (1905) • Property rights expand, refined, and altered to assist the industrial economy

12. Nationalization of the Bill of Rights • The Bill lf Rights is the foundation of American Freedom • Until the 20th century, it did not apply to the states • Became applicable to the states through selective incorporation • Bill of Rights is not fully incorporated

13. Nationalization of the Bill of Rights • Beginnings of incorporation • 14th Amendment: three clauses prohibit states from violating the rights and liberties of those living in them • Citizenship clause • Privileges and immunities clause • Due process clause

14. Nationalization of the Bill of Rights • How do we get incorporation? • United States v. Carolene Products Company (1938) • Footnote Four and Harlan Fiske Stone • Most state legislation would receive ordinary scrutiny; i.e., the Court would assume state actions constitutional unless convinced otherwise

15. Nationalization of the Bill of Rights • How do we get incorporation? • United States v. Carolene Products Company (1938) • Footnote Four and Harlan Fiske Stone • Some activities would automatically be presumed unconstitutional unless states could prove otherwise • Contradict specific prohibitions in the Bill of Rights • Restrict the democratic process • Discriminate against racial, ethnic or religious minorities

16. Freedom of Speech • Speech can take many forms, including political, symbolic and money • Gitlow v. New York (1925) • Incorporation of free speech clause in First Amendment • Must show a “clear and present danger” • More political speech is protected than not

17. Freedom of Speech • Not every type of speech is protected • That which leads or has led directly to violence or vandalism • Interfered with constitutional rights of others • Disrupting a legitimate government function • Passed on classified info • Trespassing

18. Freedom of Speech • To restrict political speech attempt must be • Content neutral • Serve a legitimate government purpose • Narrowly tailored • Not have a chilling effect

19. Freedom of Speech • Speech mixed with conduct may be restricted if • Restrictions are narrowly tailored and aimed at conduct • Speech is unmolested

20. Freedom of Speech • Suppression of Free Expression • Internal security and national defense • Historic incidents during • War • National crisis

21. Freedom of the Press • Gitlow v. New York (1925) included press • Issues • Prior restraint • Protection of sources • Cases • New York Times v. Sullivan (1964) • New York Times v. United States (1971)

22. Freedom of the Press • Offensive Media – Pornography • Legal term is obscenity • Not protected, but • Argument has been over the definition of obscenity • Miller v. California (1973) • Appeals to prurient interest • Specific definition of what sexual conduct is obscene • Work as a whole lacks serious literary, artistic, political or scientific value (LAPS test)

23. Freedom of the Press • Offensive Media – Pornography • If the work survives any one element of Miller, it is not obscene • LAPS is judged on the testimony of expert witnesses, not community standards • If all three parts of Miller are met, community standards can be used

24. Freedom of the Press • Offensive Media – Pornography • New York v. Ferber (1982): states can prohibit production, distribution and sale of child porn • Communications Decency Act (1996) • Violated First Amendment • Overly broad or vague

25. Freedom of Religion • Competing issues • Free exercise clause • Establishment clause • “wall of separation between church and state” (Thomas Jefferson) • Where is the line drawn? • Incorporated

26. Freedom of Religion • Lemon Test: avoiding the establishment of religion • Lemon v. Kurtzman (1971) • Law has a secular purpose • Primary effect of law does not retard nor advance religion • Prohibits excessive government entanglement between state and religion

27. Freedom of Religion • Religion in Public Schools • Since early 1960’s, the Court has consistently struck down laws regarding a moment of silence • Wide range of constitutionally protected religious activity in schools

28. Freedom of Religion • Religion in Public Schools • Cases • Engle v. Vitale (1962) • Court struck down required recitation of nondenominational prayer • Lee v. Weisman (1992) • Court struck down school-sponsored prayers at graduations • Santa Fe Independent School District v. Doe (2000) • Court struck down student-led prayers at school-sponsored events

29. Freedom of Religion • Religion in Public Schools • Other issues • Voluntary class prayer or moment of silence • Constitutional amendment re: school prayer • School curriculum • Evolutionary biology v. creationism or intelligent design

30. Privacy • Not mentioned in the Constitution • Inherent in the Bill of Rights • 4th Amendment + 9th Amendment • “penumbras” • Griswold v. Connecticut (1965) • Fundamental right may exist, but • Nature? • Scope?

31. Privacy • Cases • Roe v. Wade (1973) • Constitutional right to terminate pregnancy • Lawrence v. Texas (2003) • Overturned Bowers v. Hardwick (1986) • Constitutionally protected right to privacy regarding consenting sexual conduct

32. Privacy • Right to die • Court has neither endorsed nor rejected this right • Assisted suicide

33. Privacy • Private Communications • Government surveillance • USA Patriot Act • Warrantless phone and Internet searches

34. Rights of the Accused • Framers included this in the main part of the Constitution • Five of the ten rights in the Bill of Rights deals with these issues • Issue? • Controlling crime v. protection from wrongful prosecution, conviction and incarceration

35. Rights of the Accused • Unreasonable Search and Seizure • Fourth Amendment • Mapp v. Ohio (1961) • Exclusionary rule

36. Rights of the Accused Rights of the Accused • Unreasonable Search and Seizure • Warren Court (1953-1969) • Expand rights of the accused • Burger Court (1969-1986) • Limited those rights • Authorized a “good-faith” exception to exclusionary rule

37. Rights of the Accused Rights of the Accused • Unreasonable Search and Seizure • Rehnquist Court (1986-2003) • “Retroactive probable cause” • Further limits against exclusionary rule

38. Self-Incrimination • Fifth Amendment • Warren Court • Miranda V. Arizona (1966) • Burger Court • Upheld Miranda, but allowed exceptions • Rehnquist Court • Coerced confession may be “harmless error,” but • Upheld Miranda four times between 2000 and 2004

39. Right to Counsel • Sixth Amendment • Powell v. Alabama (1932) • Legal counsel for indigent accused of capital crime • Gideon v. Wainwright (1963) • Defendants accused of any felony entitled to a lawyer • States must supply a lawyer to indigent

40. Capital Punishment • Eighth Amendment • Furman v. Georgia (1972) • “Cruel and unusual punishment” because • “Capricious and arbitrary” • Gregg v. Georgia (1976) • Capital punishment not inherently cruel or unusual if procedures were nonarbitrary and nondiscriminatory • “Obstacle course” for states wanting to use death penalty • Defendant allowed to show mitigating circumstances

41. Capital Punishment • Important Death Penalty Cases • McCleskey v. Kemp (1987) • Race and death penalty • Penry v. Lynaugh (1989) • Execution of the retarded • Stanford v. Kentucky (1989) • Execution of a minor

42. Capital Punishment • Important Death Penalty Cases • McClesky v. Zant (1991) • Limited avenues and means of challenging convictions • Kenney v. Tamayo-Reyes (1992) • Limited right of death row inmates convicted in state courts to appeal to Supreme Court

43. Capital Punishment • Death Penalty • Decrease in support • Fairness • Wrongful convictions • Quality of defense • Race • Use of DNA

44. Civil Liberties and Struggle Against Terrorism • Wars inevitably lead to curtailment of civil liberties • President George W. Bush and war on terrorism • Treatment of detainees • Spying, wiretapping, etc. • Torture • USA Patriot Act

45. Civil Liberties • Expansion in U. S. • Gaps in wealth and income = fewer liberties • The state does sometimes curtail liberties • Constant vigilance

46. Chapter 4: Civil Liberties The End