Civil Liberties Chapter 18 What are civil liberties

Civil Liberties Chapter 18

What are civil liberties? n n Individual freedoms that are protected by restraining the government’s actions against individuals. LIMITATIONS on government’s ruling power n Origin: Colonists’ fear of national government tyranny and trampling on our rights! Founder’s belief: Government is obligation to protect natural, unalienable rights (Declaration of Independence) Bill of Rights (first ten amendments to the Constitution) protects individual liberties against intrusions by the national government n n Broad Guidelines Courts interpret these liberties through court cases and judicial interpretation Civil Rights and Liberties are protected by the Constitution, Bill of Rights, 14 th Amendment, Supreme Court decisions, and legislation

Constitution and Civil Liberties n n n n n Rights specifically mentioned in the body of the Constitution: Writ of Habeas corpus n “Produce the body” = a court order requiring government officials to present a prisoner in court and to explain to the judge why the person is being held n Federal judge may order the jailer to show cause why the person is being held, and the judge may order the prisoner’s immediate release n May be suspended by Congress No Bills of attainder n Legislative act that punishes an individual without judicial trial; prohibited No Ex Post Facto laws n Retroactive criminal law that makes an action a crime that was not a crime when committed, or that may increase punishment for a crime after it was committed; prohibited Trial by jury in federal courts in criminal cases Protection as citizens move from one state to another No titles of nobility Limits on punishment for the crime of treason No religious oaths for holding federal office Guarantee of repbulican government for all states

Bill of Rights (First 10 Amendments – ratified 1791) n n n First Amendment – freedom of speech, press, assembly, petition, and religion; prohibits Congress from establishing a national religion Second Amendment – right to bear arms Third Amendment – prohibits the quartering of soldiers in any house Fourth Amendment- restricts unwarranted searchers and seizures Fifth Amendment – provides grand juries, restricts eminent domain (govts right to take private property for public use), prohibits forced self-incrimination and double jeopardy) being tried twice for the same crime

Bill of Rights (Cont’d) n n n Sixth Amendment – outlines criminal court procedures (right to a fair and speedy trial) Seventh Amendment – guarantees trial by jury in civil cases (+$20) Eighth Amendment – prevents excessive bail and cruel and unusual punishment (death penalty debate? ) Ninth Amendment – all other rights reserved to the people (Amendments 1 -8 does not necessarily include ALL possible rights of the people) Tenth Amendment – reserves for the states all powers not delegated to the nat’l govt (reserved powers)

Bill of Rights and State Governments? Bill of Rights was first intended to limit the power of the national government l While the Bill of Rights protected the people from the national government it did not protect the people from state governments. l l 14 th Amendment changed this: Bill of Rights extends to states are restricted from infringing on the civil liberties of its citizens l In 1868 the Fourteenth Amendment became a part of the Constitution, imposing step-by-step most of the Constitutional protections of civil liberties upon state governments. l **Incorporation Theory: The view that most of the protections of the Bill of Rights apply to state governments through the Fourteenth Amendment’s due process clause. l

Fourteenth Amendment “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. ” l Protects citizen’s rights from abuse by STATE governments: l *a citizenship clause that protects “privileges and immunities” l A due process clause that prohibits abuse of “life, liberty, or property” l An equal protection clause that has been an important basis of the modern civil rights movement l

Incorporation of the 14 th Amendment l Barron v. Baltimore (1833, prior to 14 th Amendment) l l l Supreme Court rules that the Bill of Rights did not apply to state laws ( assumption that state Bill of Rights would be sufficient) 14 th Amendment’s “due process” clause (1868) created slow integration of the Bill of Rights to apply to state governments through pivotal Supreme Court cases (1925 -1969) Gitlow v. New York (1925) Ben Gitlow passed out pamphlets that supported socialism and overthrow of the government and was found guilty of breaking a New York act of inciting a rebellion l Appealed to Supreme Court that stated ”fundamental personal rights” like freedom of speech are protected from intrusion by states by the Due Process Clause of the 14 th Amendment l l Gideon v. Wainwright (1963) l Clarence Gideon was sent to prison for robbing a pool hall in a Florida court but was not given a state-appointed attorney; appealed and won case to Supreme Court for violation of the 6 th Amendment (right to counsel)

Courts and Civil Rights n n Ambiguity (lack of clearness) and broad guidelines of the Bill of Rights creates conflict between people’s absolute freedoms and their limitations SO who decides? ? n **Courts use judicial review (Court’s power to judge the constitutionality of a law or government regulation) to interpret these constitutional ideas and n n set precedents through specific cases U. S. Supreme Court takes on only those cases that answer a major, controversial question their decision applies to the entire nation Decisions about the limit of our freedoms constantly change depending on the justices on the Supreme Court (life term)

First Amendment: Freedom of Religion • Establishment clause – prohibits the establishment of a church officially supported by the national government – “Congress shall make no law respecting an establishment of religion” – Separation of Church and State (? ) – Applied to questions of government aid to religious schools, school prayers, evolution teaching • Free Exercise Clause – Guarantees the free exercise of religion – A person can hold any religious belief or none at all – UNLESS a religious practice works against public policy and public welfare • Examples: vaccinations required, no illegal drug, polygamy, use of poisonous snakes

Supreme Court’s Interpretation of the Establishment Clause: • National, state, and local governments CANNOT: – Set up a church – Pass laws that aid one religion, all religions, or shows preference to one religion over another – Force a person to remain away from a church or profess a belief/ disbelief in a religion – Punish a person for professing their beliefs/ disbeliefs nor for attending/ not attending a church – Tax to support any religious activity or institution – Participate in the affairs of any religious organizations or groups

Major Issues and Questions with the Establishment Clause l l l l Can the government use taxpayer’s money (that is used to pay for public schools) to support religious based private schools? Can educational vouchers (tax payer’s money) be used to “purchase” education at a religious school? Can students pray in school through school supported and school led prayer? Does moment of silence promote religion and praying? Can students pray over a loud speaker at sporting events and graduation? Can the Ten Commandments be posted in public places? Can evolution and the Biblical creation story be taught in school? Should religious speech in public places be protected?

Aid to Church-related schools Can the government use tax payer’s money (that is used to pay for public schools) to support religious based private schools? In general, such aid is prohibited by the establishment clause but recently, the Supreme Court has permitted aid that goes to all schools, religious or public. n n Everson v. Board of Education (1947) n n n Plaintiff tried to sue NJ school district for reimbursing parents for the cost of transporting students to all schools (incl. religious) Supreme Court ruled that reimbursements were appropriate since busing is a “religiously neutral” activity; but states cannot support one religion over another Lemon v. Kurtzman (1971) n n Direct state aid cannot be used to subsidize religious instruction, but can be used for secular purposes; “an excessive government entanglement with religion” should be avoided Aquilar v. Felton (1997) n n Supreme Court overturned a 1985 decision that ruled unconstitutional state aid for disadvantaged students who attend religious schools

School Vouchers n n Can educational vouchers (tax payer’s money) be used to “purchase” education at a religious school? Some states’ attempts at education reform include granting student vouchers that can be used at any public or private school, including religious schools. The Supreme Court (2002) has ruled that this is permissible, since it is the parents, not the state, that is choosing to subsidize the religious school.

Prayer in school n Can students pray in school through school supported and school led prayer? n Engel v. Vitale (1962) The Supreme Court ruled that officially sponsored prayer and posting the 10 commandments in schools violates the establishment clause. Can schools allow a moment of silence or does it unconstitutionally promote religion and praying? n n Wallace v. Jaffree (1985) Banned Alabama’s moment of silence law that provided for a one-minute period of silence for “meditation or voluntary prayer” n The court has allowed school districts to have a moment of silence when such an event was conducted as a secular rather than religious occasion. Can students pray over a loud speaker at sporting events and graduation? Supreme Court ruled that students in public schools cannot use a school’s public address system (loud announcer) to pray at sporting events, but may at graduation. n n n

Freedom of Speech vs. National Security – Historical Perspective n n Framer’s intentions and early practices: govt put little emphasis on protecting freedom of speech in the face of nat’l crisis (order at expense of liberty) Sedition Act of 1798 n n n Espionage Act of 1917 (during WWI) n n John Adams was threatened with French war Made it a crime to write, utter, or publish anti-government statements with the “intent to defame” Forbade false statements that intended to interfere with U. S. military forces or materials to be mailed if they violated the law or advocated resistance to government Sedition Act of 1918 (during WWI) n n Forbade individuals to write, utter, or publish language intended to incite resistance to U. S. govt Thousands were arrested and deported

Freedom of Speech vs. National Security – n Historical Perspective 2 Schneck v. U. S. (WWI, Espionage Act) Socialist Charles Schneck mailed circulars to young men urging them to resist military draft; was convicted of violating the Espionage Act n Supreme Court said any language that directly caused an illegal act was not protected by the 1 st Amendment n Established the “Clear and present danger test” – language that creates a clear and n present danger to national security can be restricted

Freedom of Speech vs. National Security – Historical Perspective 3 n Smith Act (WWII) n n n Internal Security Act of 1950 n n Punishment for willfully advocating the overthrow of the government Punishment for membership in a group that advocated the overthrow of govt “Red scare” (fear of communist espionage) era Required Communist organizations to register and publish membership lists (many were questioned and arrested) 1950 shift (Supreme Court leaned toward free speech, no restrictions during Vietnam War) Brandenburg v. Ohio (1970 s) n n KKK leader was convicted for inciting mob action by saying “We’ll take the ** street later” but conviction was overturned by Supreme Court who said his speech did not incite “imminent” action Established that speech can only be restricted if it incites “imminent” unlawful action

Restrictions on Free Speech n Slander (knowingly false verbal defamation of character); n Libel- a written defamation of character n n Public figures must meet higher standards than ordinary people to win a libel suit (prove actual malice). Unprotected Speech n n Obscenity (difficulty with definition) Pornography/Internet Pornography (places it can be sold; child pornography illegal) n n Communications Decency Act (1997) ruled unconstitutional because it infringed on free speech Symbolic Speech – an action meant to convey a political message n n Not usually protected for fear of illegal actions; “fighting words” or advocacy of inciting illegal activity is restricted (burning a cross is illegal) Texas v. Johnson (1989 exception) – flag burning is legal since it does not incite illegal actions

Privacy Rights and Women u u “Right to privacy” not explicitly in Constitution but implied in due process clause Griswold v. Connecticut (1965) • Doctor was arrested for giving birth control devices to women; violated a Connecticut law that forbade the use of contraceptives • Supreme Court overruled – unstated right to privacy, including right to family planning u Roe v. Wade (1973) • Right to privacy as the liberty to choose to have an abortion before the baby is viable (-3 months) u Webster v. Reproductive Health Services (1989) • Supreme Court upheld a Missouri law that banned use of taxpayer-supported facilities to perform abortions

Rights of the Accused • Fourth Amendment u u No unreasonable or unwarranted search or seizure. No arrest except on probable cause. • Fifth Amendment u u No coerced confessions. No compulsory self-incrimination. • Sixth Amendment u u Legal counsel. Informed of charges. Speedy and public jury trial. Impartial jury by one’s peers. • Eighth Amendment u u u Reasonable bail. No cruel or unusual punishment. Furman v. Georgia

Rights of the Accused 2 • 5 th Amendment forbids self incrimination • Miranda v. Arizona: requires the police to inform suspects of their rights (Miranda v. Arizona 1966). u Right to remain silent, to have a lawyer present, etc. • Exceptions to the Miranda Rule. These include a “public safety” exception, a rule that illegal confessions need not bar a conviction if other evidence is strong, and that suspects must claim their rights unequivocally. • Video Recording of Interrogations. In the future, such a procedure might satisfy Fifth Amendment requirements. u u u No Unreasonable Search and Seizure – 4 th Amendment In order to prevent police abuse, no searches of private property are permissible unless there is “probable cause” that indicates a crime may have occurred Mapp v. Ohio (1961) • Police broke into home of Dollree Mapp for illegal gambling suspicions, but instead arrested Mapp after finding obscene materials; she claimed police had no probably cause to suspect her for that crime so the evidence seized could not be used in court • The Exclusionary Rule. This prohibits the admission of illegally seized evidence