Civil Liberties

1. Civil Liberties From left, Luke Remchuk, Kevin Newcomb and Jay Hartman were among demonstrators for free speech on Monday at the Supreme Court building NYT March 19, 2006 Bong Hits for Jesus Case

2. California city tries using eminent domain to help underwater homeowners http://www.marketplace.org/topics/economy/california-city-tries-using-eminent-domain-help-underwater-homeowners 5th Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand 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 offense 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

3. CIVIL LIBERTIES do not equal . . . Civil Rights CIVIL LIBERTIES are freedoms that are guaranteed to the individual. Civil rightsare policies that extend basic rights to groups historically subject to discrimination CIVIL LIBERTIES are restraints on government. Civil rights declare what the government must do or provide.

4. Civil Liberty . . . A right to education? Or Civil Right . . . A right to equal treatment? FIRST DAY The Supreme Court’s decision in Brown v. Board of Education integrated the schools. But today its meaning is at issue. Here, the first day of desegregation, on Sept. 8, 1954, at Fort Myer Elementary School in Fort Myer, Va NYT Dec 10 2006

5. Remember. . . The original Constitution has several civ liberties protections . . . The framers thought they were done. . . What are those protections again?

6. US Constitution: Article I, Section 9 Section 9 - Limits on Congress The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. (No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.)(Section in parentheses clarified by the 16th Amendment.) No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

7. Plus, said the famers . . . all state const. protected citizens from gov’t with their own civ libs protections. Why more?

8. "[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse." --- Thomas Jefferson December 20, 1787

9. Congress OF THE United Statesbegun and held at the City of New-York, onWednesday the fourth of March, one thousand seven hundred and eighty nine. The Preamble to The Bill of Rights THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz. ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

10. The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. Proposed to assuage the fears of Anti-Federalists who had opposed Constitutional ratification, these amendments guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and reserve some powers to the states and the public as·suage transitive verb \ə-ˈswāj also -ˈswāzh or -ˈswäzh\  1. to lessen the intensity of (something that pains or distresses) :  ease <unable to assuage their grief> 2  o pacify, quiet <vainly strove … to assuage an implacable foe — Edward Gibbon> 3. to put an end to by satisfying :  appease, quench <assuaging his thirst>

11. So most of our Civil Liberties are found in the ___________ ___ _______ Which does not make them civil rights . . . They are civil liberties Time for . . .the Bill of Rights hand game . . . .. . http://www.youtube.com/watch?v=LYG_f-y8-VY

12. So . . . the Bill of Rights was written to restrict whom??? Amendment I 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.

13. What if it is a state law at issue? The prayer in question: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." Monday, June 25, 1962: Engel v. Vitale

14. At first the Supreme Court said the Bill of Rights does NOT restrict the states (Barron v Baltimore 1833) But in 1925 it says . . . Say . . . How about them civil war amendments? The 14th Amendment states "nor shall any State deprive any person of life, liberty, or property, without due process of law”

15. Facts of the Case  Gitlow, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law. Gitlow v. New York, 268 U.S. 652 (1925), was a decision by the United States Supreme Court decided on June 8, 1925, which ruled that the Fourteenth Amendment to the United States Constitution had extended the reach of certain limitations on federal government authority set forth in the First Amendment—specifically the provisions protecting freedom of speech and freedom of the press—to the governments of the individual states

16. The court starts to “nationalize” the bill of rights.. . . ONE BY ONE . . . In a process known as Selective incorporation The idea is that certain liberties are so fundamental to our concept of freedom and limited government that the state can not deny you of them without “due process”

18. 2010 McDonald v Chicago

19. SELECTIVE INCORPORATION

20. Palko test (from Palko v Connecticut) any right that is so important that liberty would not exist without it must be upheld by states Warren court has incorporated most--not surprisingly What's left: 3rd, grand jury part of 5t,. h7th (right to jury in civil cases) ; 8th (freedom from excessive fines and bail)

21. District of Columbia v. Heller Facts of the Case: For the first time in seventy years, the Court heard a case regarding the central meaning of the Second Amendment and its relation to gun control laws. After the District of Columbia passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating that all legal firearms must be kept unloaded and disassembled or trigger locked, a group of private gun-owners brought suit claiming the laws violated their Second Amendment right to bear arms. The federal trial court in Washington D.C. refused to grant the plaintiffs relief, holding that the Second Amendment applies only to militias, such as the National Guard, and not to private gun ownership. The U.S. Court of Appeals for the District of Columbia Circuit disagreed, voting two to one that the Second Amendment does in fact protect private gun owners such as plaintiffs. Petitioners agree with the trial court's decision that the Second Amendment applies only to militias, and further argue that (a) the Second Amendment should not apply to D.C. because it is a federal enclave rather than a state, and (b) that the D.C. legislation merely regulates, rather than prohibits, gun ownership. Respondents, although disagreeing on the merits, have also urged the Court to review the case in order to clearly define the relationship between federal gun control laws and the Second Amendment.

22. Court Weighs Right to Guns, and Its Limits Advocates of an individual right to bear arms demonstrated Tuesday outside the Supreme Court as the justices heard arguments.

23. Landmark Ruling Enshrines Right to Own Guns Demonstrators outside the Supreme Court on Thursday after the justices’ decision on the District of Columbia handgun ban.

24. Question: Whether provisions of the D.C. Code generally barring the registration of handguns, prohibiting carrying a pistol without a license, and requiring all lawful firearms to be kept unloaded and either disassembled or trigger locked violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes? 2nd Amendment: 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.

25. Conclusion:  Yes. In a 5-4 decision, the Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. The Court based its holding on the text of the Second Amendment, as well as applicable language in state constitutions adopted soon after the Second Amendment. Justice Antonin Scalia delivered the opinion of the Court. Justices John Paul Stevens and Stephen Breyer filed dissenting opinions, each joined by the other as well as Justices David Souter and Ruth Bader Ginsburg. Justice Stevens argued that the Second Amendment only protects the rights of individuals to bear arms as part of a well-regulated state militia, not for other purposes even if they are lawful. Justice Breyer agreed with Stevens' argument but also stated that even if possession were to be allowed for other reasons, any law regulating the use of firearms would have to be "unreasonable or inappropriate" to violate the Second Amendment. In Breyer's view, the D.C. laws at issue in this case were both reasonable and appropriate. June 2008

26. But the ruling in Heller did not incorporate the 2nd right? Why? So what’s that mean for state laws?

27. Gun Rulings Open Way to Supreme Court Review One court this month upheld Chicago’s ban on most handguns, while in April a California court disagreed on the constitutional issue. The differing opinions mean that the whole issue of city and state gun laws will probably head back to the Supreme Court for clarification, leading many legal experts to predict a further expansion of gun rights.

28. McDonald v. Chicago Facts of the Case:  Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after the Supreme Court issued its opinion in District of Columbia v. Heller. In that case, the Supreme Court held that a District of Columbia handgun ban violated the Second Amendment. There, the Court reasoned that the law in question was enacted under the authority of the federal government and, thus, the Second Amendment was applicable. Here, plaintiffs argued that the Second Amendment should also apply to the states. The district court dismissed the suits. On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed.

29. Question:  Does the Second Amendment apply to the states because it is incorporated by the _____________Amendment's Privileges and Immunities or _______ _________ clauses and thereby made applicable to the states?

30. Conclusion:  The Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice Samuel A. Alito writing for the majority, the Court reasoned that rights that are "fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such "fundamental" and "deeply rooted" right. Justice Alito, writing in the plurality, specified that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. He rejected Justice Clarence Thomas's separate claim that the Privileges or Immunities Clause of the Fourteenth Amendment more appropriately incorporates the Second Amendment against the states. Alito stated that the Court's decision in the Slaughterhouse Cases -- rejecting the use of the Privileges or Immunities Clause for the purpose of incorporation -- was long since decided and the appropriate avenue for incorporating rights was through the Due Process Clause.

31. Justice Antonin Scalia concurred. He agreed with the Court's opinion, but wrote separately to disagree with Justice John Paul Stevens' dissent. Justice Clarence Thomas concurred and concurred in the judgment. He agreed that the Fourteenth Amendment incorporates the Second Amendment against the states, but disagreed that the Due Process Clause was the appropriate mechanism. Instead, Justice Thomas advocated that the Privileges or Immunities Clause was the more appropriate avenue for rights incorporation. Justice John Paul Stevens dissented. He disagreed that the Fourteenth Amendment incorporates the Second Amendment against the states. He argued that owning a personal firearm was not a "liberty" interest protected by the Due Process Clause. Justice Stephen G. Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, also dissented. He argued that there is nothing in the Second Amendment's "text, history, or underlying rationale" that characterizes it as a "fundamental right" warranting incorporation through the Fourteenth Amendment. Decided June 28, 2010

32. More questions What’s due process? Substantive vs Procedural Due Process the Due Process Clause of the Fourteenth Amendment , states "nor shall any State deprive any person of life, liberty, or property, without due process of law”

33. What is the facially plain meaning of the words deprive any person of life, liberty, or property, without due process of law” a state has to use sufficiently fair and just legal procedures whenever it is going to lawfully take away a persons life, freedom or possessions. before a man can be executed, imprisoned or fined for a crime, he must get a fair trial, based on legitimate evidence, with a jury, etc. These are procedural or "process" rights, like the ones Congress has to abide by in the ______ of ________

34. Substantive Due Process The doctrine of Substantive Due Process holds that the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights not enough that govt. use fair procedures in denying life, liberty, and property; the law themselves that enable govt. to do so must be fair—if the govt takes away life, lib or property, it must have appropriate justification to do so. Regardless of the procedures

35. So . . . “___________rights” are basic rights that give a person the power to have or to do specific things, even though the government wants something different-- Court roots them in the key phrase “liberty” “__________" rights are special rights that, instead, dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law otherwise gives them the power to do so.

36. Examples Police strip searches Procedural Possession of marijuana for medical purposes Substantive Police have to have a warrant before they grab it Procedural Burning the flag substantive Privacy substantive

37. Substantive are much more controversial. not the facially clear meaning of the DP passage in the Const.— it greatly expands the power of judicial review Especially when they find rights not explicitly in the Constitution

39. To illustrate Civil libs vs civil rts Facts of the Case Responding to a reported weapons disturbance in a private residence, Houston police entered John Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186 (1986), controlling.

40. Question Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled?

41. Conclusion No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice William H. Rehnquist and Justices Thomas joined, filed dissents Rehnquist Stevens O'Connor Scalia Kennedy Souter Thomas Ginsburg Majority:Stevens, O’Conner, Kennedy, Ginsberg Souter, Breyer (not picutered) Minority: Rehnquist,Scalio, Thomas

42. UNITED STATES v. WINDSOR Read handout http://www.oyez.org/ssm/

43. So let’s take a look at some of those substantive first amendment Liberties Remember—there are five and they are: Religion, Speech, Press, Assembly, Petition 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. They are not absolute . . . but if the government is going to infringe on these liberties it must show it has a Compelling state interest

44. Worried about the Feds? Check the 5th amendment: No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. SO . . . They can take your property since Govt’s have the right of “Eminent domain” . . (power of the state to expropriate private property without the owner's consent for public use (eg public utilities or roads or railroads) But it is subject to this “takings clause”

45. Freedom of Religion Note there are TWO clauses The Establishment Clause: CONGRESS shall make no law respecting an establishment of religion . . . or prohibiting the free exercise thereof The free exercise clause

46. Two views about the Establishment clause: Accomodationist View" government should bend a bit and allow a certain degree of church/state blending--e.g moment of silence Seperationist View--Government should allow no blending of church and state. There should be a "wall of separation” (TJ)

47. The Rehnquist court became more accomodationist—allowing “chinks” in the wall The Burger court had said essentially a law must have a secular purpose and can not advance nor inhibit a religion, nor entangle the state in religion (Lemon test) . . . VS O’Conner (Rehnquist court) said that a law which provides public aid is is ok as long as it does not 'endorse" a particular religion and avoids any religious content—

48. Free Exercise Clause Distinction between belief and practice At issue is often the states’ need to regulate for the health and welfare of its citizens (compelling state interest) versus an individual’s right to practice religion. . . It’s a balancing act Note these all involve some question of whether the gov’t can regulate some kind of practice, just as the est. clause was whether gov’t could est a religion—NOT private restrictions or private churches

49. There are TWO elements to the religions liberty Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; The first is known as the __________ clause The second . . . The ______ _________ clause

50. Let’s apply the law: Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. 1972 Free exercise or establishment clause? Jonas Yoder, who challenged Wisconsin's compulsory education law (LIFE).