Americas Democratic Republic Ch 4 Civil Liberties Introduction

America’s Democratic Republic Ch. 4: Civil Liberties

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

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

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

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

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

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

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

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

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

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

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

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

Nationalization of the Bill of Rights l How do we get incorporation? ¡ United States v. Carolene Products Company (1938) l 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

Nationalization of the Bill of Rights l How do we get incorporation? ¡ United States v. Carolene Products Company (1938) l 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

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

Freedom of Speech l 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

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

Freedom of Speech l Speech mixed with conduct may be restricted if ¡ Restrictions are narrowly tailored and aimed at conduct ¡ Speech is unmolested

Freedom of Speech l Suppression of Free Expression ¡ Internal security and national defense ¡ Historic incidents during War l National crisis l

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

Freedom of the Press l Offensive Media – Pornography ¡ Legal term is obscenity Not protected, but l Argument has been over the definition of obscenity l l 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)

Freedom of the Press l 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 l If all three parts of Miller are met, community standards can be used l

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

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

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

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

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

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

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

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

Privacy l Right to die ¡ Court has neither endorsed nor rejected this right ¡ Assisted suicide

Privacy l Private Communications ¡ Government surveillance ¡ USA Patriot Act ¡ Warrantless phone and Internet searches

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

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

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

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

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

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

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

Capital Punishment l Important Death Penalty Cases ¡ Mc. Cleskey l Race and death penalty ¡ Penry l v. Lynaugh (1989) Execution of the retarded ¡ Stanford l v. Kemp (1987) v. Kentucky (1989) Execution of a minor

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

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

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

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

Chapter 4: Civil Liberties The End