Civil Liberties Chapter 4 CHAPTER 4 CIVIL LIBERTIES

Civil Liberties Chapter 4 CHAPTER 4: CIVIL LIBERTIES

In this chapter, you will learn: • The rise of civil liberties. • The right to privacy—a controversial liberty that is not mentioned in the Constitution and involves abortion and same-sex marriage. • The freedom of religion. • The right to free speech and its special status. • The right to bear arms. • The rights of the accused. • The difficult balance between fighting terrorism and protecting civil liberties CHAPTER 4: CIVIL LIBERTIES

Civil Rights and Civil Liberties Civil liberties restrict government action to protect individual rights. Civil Rights Civil rights require government action to help secure individual rights. CHAPTER 4: CIVIL LIBERTIES

The Rise of Civil Liberties • The Supreme Court neatly defined civil liberties in 1943 in West Virginia State Board of Education v. Barnette: The Bill of Rights withdraws certain subjects from political controversy and places them beyond the reach of majorities and officials. • The Bill of Rights did not apply to the states until the Fourteenth Amendment required that no state could deprive any citizen of life, liberty, or property. • The Court applied the Bill of Rights to the states one right at a time between 1897 (no taking of property without compensation) and 2010 (the right to bear arms). CHAPTER 4: CIVIL LIBERTIES

Privacy • The Court discovered a right to privacy implicit in the shadows of the First, Third, Fourth, Fifth, and Ninth Amendments. • The Court applied the right to privacy to strike down laws banning abortion. In Roe v. Wade, the court issued a rule prohibiting states from interfering during the first trimester. • The Court extended privacy rights to same-sex couples by striking down antisodomy laws. CHAPTER 4: CIVIL LIBERTIES

Freedom of Religion • The First Amendment has two religious clauses: The government may not establish a religion and it may not interfere with the free exercise of religions. • The courts have ruled on establishment cases by trying to approximate Jefferson’s wall separating church and state. Government action is permissible if it meets three criteria known as the Lemon test: It must have a secular purpose, neither advance nor inhibit religion, and not excessively entangle government in religion. A more recent view (known as accommodation) simply requires that government not promote one religious view over another. • In protecting the free exercise of religion, the courts traditionally asked if the government had a compelling interest for imposing a burden. CHAPTER 4: CIVIL LIBERTIES

Freedom of Speech • Free speech is crucial to democracy, and the Court gives it a privileged position—even against angry public opposition at flag burning, cross burning, or homophobic displays at military funerals. • Free speech can be curtailed if it poses a “clear and present danger. ” Today, the court requires the danger to be both imminent and likely to occur. • There are limits to free speech, including fighting words and student speech. CHAPTER 4: CIVIL LIBERTIES

Freedom of the Press • The rules for freedom of the press reflect those of free speech and strongly protect free expression. • The courts are especially skeptical of any effort to impose prior restraint. The new media makes it almost impossible to even try. • Obscenity is not protected by the First Amendment. The court has spent a long time wrestling with just what counts as obscenity and now uses the three-part Miller test. CHAPTER 4: CIVIL LIBERTIES

Right to Bear Arms • Some critics see the Second Amendment as an outmoded defense of citizen militias. • Others see it as an important individual right— perhaps even the most important right in the entire Constitution. • In 2010, the Supreme Court incorporated the right to bear arms as an essential individual right. Since then, however, most state and local restrictions have been upheld. CHAPTER 4: CIVIL LIBERTIES

Right of the Accused • The Bill of Rights places special emphasis on the rights of those accused of crimes. Even so, American incarceration rates are the highest in the world. • The police may not search or seize without a warrant (with minor exceptions); they must inform suspects of their right to remain silent; the accused have a right to legal counsel. The courts have widened the legal right but it is often limited by underfunded public defenders. CHAPTER 4: CIVIL LIBERTIES

Right of the Accused • Under current interpretation, capital punishment is not considered “cruel and unusual punishment. ” However, the number of executions has been falling. • Between 1962 and 1968, the Supreme Court vastly expanded the rights of the accused. Recent Court decisions have tilted the balance back toward law enforcement. CHAPTER 4: CIVIL LIBERTIES

Terrorism, Non-Citizens, and Civil Liberties • The response to 9/11 and subsequent terror attacks created a new debate about the balance between civil liberties and public safety. • With the Snowden revelations, controversy arose about the NSA data collection of phone records and Internet surveillance. While Congress legislated some limits after the revelations, in 2018, Congress reauthorized the surveillance without major new protections. • Most Constitutional rights apply to non-citizens. However, they are also ruled by immigration laws which offer more limited rights. CHAPTER 4: CIVIL LIBERTIES

Chapter Summary • Civil liberties are the limits we put on governing bodies (and the majorities that elect them) so that individuals can exercise their rights and freedom. Disputes are usually resolved by the courts and guided by the Bill of Rights. • The Bill of Rights did not apply to the states until the Fourteenth Amendment required that no state could deprive any citizen of life, liberty, or property. • . CHAPTER 4: CIVIL LIBERTIES

Chapter Summary • The Supreme Court applied the Bill of Rights to the states one right at a time between 1897 (no taking property without compensation) and 2010 (the right to bear arms). The process is known as incorporation. CHAPTER 4: CIVIL LIBERTIES

Chapter Summary • The Court discovered a right to privacy implicit (in the shadows) in the First, Third, Fourth, Fifth, and Ninth Amendments. The Court applied the right to privacy to strike down laws banning abortion. In Roe v. Wade the Court issued a rule prohibiting states from interfering during the first trimester. In Planned Parenthood v. Casey, the Court replaced the rule (which applies in all cases) with a standard (that permits some exceptions) forbidding laws that put “an undue burden” on the right to privacy. The Court extended privacy rights to same-sex couples by striking down antisodomy laws in 2003 and bans on same-sex marriage in 2015. CHAPTER 4: CIVIL LIBERTIES

Chapter Summary • The Constitution bans government from establishing (or favoring) a religion. In one view, this means separating church and state. For many years, the three-part Lemon test guided judicial decisions in cases involving religion. A more recent view requires simply that government not promote one religious view over another. CHAPTER 4: CIVIL LIBERTIES

Chapter Summary • The Constitution also forbids government from interfering with religious practice (the free exercise clause. ) The courts traditionally asked if the government had a compelling interest for imposing a burden—the Sherbert test. In 1990, the court shifted and required only that the government action be neutral and apply to everyone. Congress, state governments, and religious groups pushed back and the courts have, once again, returned to the traditional Sherbert test. CHAPTER 4: CIVIL LIBERTIES

Chapter Summary • The Constitution also forbids government from interfering with religious practice (the free exercise clause. ) The courts traditionally asked if the government had a compelling interest for imposing a burden—the Sherbert test. In 1990, the court shifted and required only that the government action be neutral and apply to everyone. Congress, state governments, and religious groups pushed back and the courts have, once again, returned to the traditional Sherbert test. CHAPTER 4: CIVIL LIBERTIES

Chapter Summary • Free speech is crucial to democracy, and the Court gives it a privileged position—even against angry public opposition to flag burning, cross burning, or homophobic displays at military funerals. Free speech can be curtailed if it poses a “clear and present danger. ” Today, the Court requires the danger to be both imminent and likely to occur. There are limits to free speech involving fighting words, student speech, commercial speech, and obscenity. CHAPTER 4: CIVIL LIBERTIES

Chapter Summary • Some critics see the Second Amendment as an outmoded defense of citizen militias. Others see the right to bear arms as an important individual right—perhaps the most important liberty in the Constitution. In 2010, the Supreme Court ruled it an essential constitutional right. CHAPTER 4: CIVIL LIBERTIES

Chapter Summary • The Bill of Rights places special emphasis on the civil liberties of those accused of crimes. Even so, American incarceration rates are the highest in the world. The police may not search or seize without a warrant, they must inform suspects of their right to remain silent, and the accused have a right to legal counsel. Under current interpretation, capital punishment is not considered “cruel and unusual punishment—but public opinion appears to be slowly changing. ” CHAPTER 4: CIVIL LIBERTIES

Chapter Summary • Terror attacks created a new debate about the balance between civil liberties and public safety. • Most Constitutional rights apply to non-citizens. However, they are also ruled by immigration laws which offer more limited rights. CHAPTER 4: CIVIL LIBERTIES