Civil Liberties Institutional Civil liberties are limitations or

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Civil Liberties -Institutional Civil liberties are limitations or restrictions on collective action. ons are

Civil Liberties -Institutional Civil liberties are limitations or restrictions on collective action. ons are designed to solve collective action problems, and in the United States among the most important Constitutional instruments created for this purpose are civil liberties and civil rights. - Constitutional principles of civil liberties and civil rights presented in the Bill of Rights also regulate collective action.

Civil Liberties • Generally speaking, civil liberties limit collective action by restricting the government’s

Civil Liberties • Generally speaking, civil liberties limit collective action by restricting the government’s jurisdiction. • Civil Rights, on the other hand, regulate collective action by establishing important decision rules for the government’s conduct. • Jurisdiction over civil liberties and civil rights issues is primarily exercised by the courts.

Civil Liberties • Supreme Court’s jurisdiction over constitutional issues is derived from Article III

Civil Liberties • Supreme Court’s jurisdiction over constitutional issues is derived from Article III of the Constitution, from statutes, and from prior decisions of the Court itself. • Congress’s jurisdiction stems from Article II of the Constitution, which gives Congress the power to make the laws, and from its role in the process of amending the Constitution, as defined in Article V.

Civil Liberties • Courts are heavily influenced by history. • Every court decision recites

Civil Liberties • Courts are heavily influenced by history. • Every court decision recites the history of prior court decisions relating to the principles at hand. The history is called precedent. • When courts issue their decisions, they constantly refer to the opinions of prior courts to justify their interpretations, logic, and ultimate findings.

Civil Liberties Origins of The Bill of Rights: - Such as proposal by the

Civil Liberties Origins of The Bill of Rights: - Such as proposal by the Virginia delegate George Mason had been turned down with little debate in the waning days of the Constitutional Convention in September 1787 because of argument made by Alexander Hamilton and other Federalists. - Fears/Concerns of the Federalists 1. How could the national government abuse powers not given to it in the first place. 2. Hamilton argued that a bill of rights would weaken the new government by limiting its jurisdiction.

Civil Liberties Origins of Bill of Rights Cont: - Thomas Jefferson argued that the

Civil Liberties Origins of Bill of Rights Cont: - Thomas Jefferson argued that the omission of a bill of rights was a major imperfection of the new Constitution. - While James Madison did not believe that a bill of rights was necessary he argued for one. - Madison argued that a bill of rights would embody the ideals for character of fundamental maxims of free Government.

Civil Liberties • Ten of the original 17 amendments proposed were accepted, they became

Civil Liberties • Ten of the original 17 amendments proposed were accepted, they became known as the Bill of Rights. They became part of the Constitution on December 15, 1791. • Civil Liberties: can be defined as protections of citizens from improper government action. • As Jefferson put it, a bill of rights, “is what people are entitled to against every government on earth. ”

Civil Liberties • Civil Rights could be called a bill of liberties because they

Civil Liberties • Civil Rights could be called a bill of liberties because they – focus on what government NOT do. • The Bill of Rights is a series of “thou shalt nots” • Best-know procedural rule = A person is innocent until proven guilty. This rule does not question the government’s power to punish someone for committing a crime; it questions only the way the government determines who committed the crime.

Civil Liberties • Americans might be entitled to other constitutional protections not formally included

Civil Liberties • Americans might be entitled to other constitutional protections not formally included in the Bill of Rights. This concern was addressed by the Ninth Amendment, which declares that the enumerations in the Constitution of some rights, “shall not be construed” to mean that the people do not retain others rights as well.

Civil Liberties Dual Citizenship: - The question of the Bill of Rights also limits

Civil Liberties Dual Citizenship: - The question of the Bill of Rights also limits state governments was settled in 1833 in a way that may seem odd to Americans today. The case was Barron vs. Baltimore: Facts: - In paving the streets, the city of Baltimore had disposed of so much sand gravel in the water near John Baron’s wharf that the value of the wharf for commercial purposes was virtually destroyed.

Civil Liberties Ruling: - Baron sued the city under the Fifth Amendment, unconstitutionally depriving

Civil Liberties Ruling: - Baron sued the city under the Fifth Amendment, unconstitutionally depriving him of his property. - Chief Justice Marshall: Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated… If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.

Civil Liberties What in the World does that mean? - Fifth Amendment is to

Civil Liberties What in the World does that mean? - Fifth Amendment is to restrain the Federal Government, not the State Governments. - In other words, if an agency of the national government had deprived Barron of his property, there would have been a different ruling!!

Civil Liberties - In 1897, when the Supreme Court held that due process clause

Civil Liberties - In 1897, when the Supreme Court held that due process clause of the 14 th Amendment did in fact prohibit states from taking property for public use without just compensation. - The power of public agencies to seize private property is called eminent domain. According to the 5 th Amendment, private owners must be paid “just compensation” by the government if it decides that it needs their property.

Civil Liberties • No further expansion of civil liberties through incorporation occurred until 1925,

Civil Liberties • No further expansion of civil liberties through incorporation occurred until 1925, when the Supreme Court held that freedom of speech is “among the fundamental personal rights and liberties protected by the due process clause of the 14 th Amendment from impairment of states. • This one-by-one application of the provisions of the Bill of Rights is known as “selective incorporation. ”

Civil Liberties Read Palko on pg. 112 -113 - For more than 30 years

Civil Liberties Read Palko on pg. 112 -113 - For more than 30 years after the Palko case, the 19 th century framework was sustained, but signs of change came after 1954. - Brown vs. Board of Education, when the SC turned over the infamous Plessy vs. Fegurson case. Plessy was a civil rights case involving the “equal protection” clause of the 14 th Amendment, but was not an issue of applying Bill of Rights to the states.

Civil Liberties - Nevertheless, Brown indicated clearly that the SC was going to be

Civil Liberties - Nevertheless, Brown indicated clearly that the SC was going to be expansive about civil liberties because in that case the Court effectively promised that it was actively going to subject he states and all actions affecting civil rights and civil liberties to strict scrutiny.

Civil Liberties • Gideon vs. Wainwright- Established the right to counsel in a criminal

Civil Liberties • Gideon vs. Wainwright- Established the right to counsel in a criminal trial. • In Mapp v. Ohio, the Court held that evidence obtained in violation of the 14 th Amendment ban on unreasonable searches and seizures would be excluded from trial. • The police hated the “Exclusionary Rule” that was created through the Mapp vs. Ohio case.

Civil Liberties Miranda Rule: - That arrested persons be informed of the rights to

Civil Liberties Miranda Rule: - That arrested persons be informed of the rights to remain silent and have counsel present during interrogation. - By 1969, in Benton vs. Maryland, the Supreme Court had come full circle regarding the rights of the criminally accused, explicitly reversing the Palko ruling and thereby incorporating double jeopardy.

Civil Liberties The First Amendment and Freedom of Religion: - The Bill of Rights

Civil Liberties The First Amendment and Freedom of Religion: - The Bill of Rights begins by guaranteeing freedom, and the First Amendment provides that freedom in two distinct clauses. 1. Congress shall make no law respecting an establishment of religion. 2. Prohibiting the free exercise thereof.

Civil Liberties • The Establishment Clause and the idea of “no law” regarding the

Civil Liberties • The Establishment Clause and the idea of “no law” regarding the establishment of religion could be interpreted in several possible ways. 1. Is that the government is prohibited from establishing an official church. 2. The nonpreferentialist or accommodationist view, which holds that the government may not take sides among competing religions but is not prohibited from providing assistance to religious institutions or ideas so long as it shows no favoritism. 3. Wall of separation between church and state that cannot be breached by the government. The concept of a wall of separation was Jefferson’s own formulation.

Civil Liberties Lemon Test: - In 1971, after 30 years of cases involving religious

Civil Liberties Lemon Test: - In 1971, after 30 years of cases involving religious schools, the Court attempted to specify some criteria to guide its decisions and those of lower courts, indicating, for example, in a decision invalidating state payments for the teaching of secular subjects in parochial schools, circumstances under which the Court might allow certain financial assistance.

Civil Liberties Lemon vs. Kurtzman: 1. It had a secular purpose 2. Its effect

Civil Liberties Lemon vs. Kurtzman: 1. It had a secular purpose 2. Its effect was neither to advance nor to inhibit religion. 3. It did not entangle government and religious institutions in one another’s affairs.

Civil Liberties Pledge: - 2004, the question of whether the phrase “under God” in

Civil Liberties Pledge: - 2004, the question of whether the phrase “under God” in the Pledge of Allegiance violates the establishment clause was brought before the SC. - It was written in 1892, the pledge had been used in schools without any religious references. - In 1954, during the Cold War, Congress voted to change the pledge, in response to the “godless Communism” of the Soviet Union.

Civil Liberties Pledge Cont: - In 2003, Michael Newdow, and atheist argued that the

Civil Liberties Pledge Cont: - In 2003, Michael Newdow, and atheist argued that the reference to God turned the daily recitation of the pledge into a religious exercise. - Court ruled that Newdow lacked a sufficient personal stake in the case to bring the complaint. This inconclusive decision by the Court left “under God” in the pledge while keeping the issue alive for possible resolution in a future case. - What do you think and why?

Civil Liberties Van Orden v. Perry: - The Court said in a 5 -4

Civil Liberties Van Orden v. Perry: - The Court said in a 5 -4 decision that a display of the Ten Commandments in the Texas state capital did not violate the Constitution. - However, in Mc. Creary v. ACLU, the Court decided at the same time 5 -4 that a display of the Ten Commandments inside two Kentucky court houses was unconstitutional.

Civil Liberties Freedom of Speech and the Press: - Because democracy depends on an

Civil Liberties Freedom of Speech and the Press: - Because democracy depends on an open political process and politics is basically talk, freedom of speech and freedom of the press are considered critical. - The Court has decided that the democratic political process must be protected at almost any cost. This higher standard of judicial review came to be called preferred position.

Civil Liberties Political Speech: - Political speech was the activity of greatest concern to

Civil Liberties Political Speech: - Political speech was the activity of greatest concern to the framers of the Constitution, even though they found it the most difficult provision to observe. - Alien and Sedition Acts: made it a crime to say or publish anything that might tend to defame or bring into disrepute the government of the United States. - The Acts intentions were to criminalize the very conduct give absolute protection by the First Amendment.

Civil Liberties Free Speech: - The first modern free speech case arose immediately after

Civil Liberties Free Speech: - The first modern free speech case arose immediately after World War I. It involved persons who had been convicted under the federal Espionage Acts of 1917 for opposing American involvement in war. - The Supreme Court upheld the act and refused to protect the speech rights of the defendants on the grounds that their activities –appeals to draftees to resist the draft-constituted a “clear and present danger” to security.

Civil Liberties Read page 121 KKK -Buckley v. Valeo: - 1976 case. Campaign finance

Civil Liberties Read page 121 KKK -Buckley v. Valeo: - 1976 case. Campaign finance reform laws of the early 1970’s, arising out of the Watergate scandal, sought to put severe limits on campaign spending, and a number of important provisions were declared unconstitutional on the basis of a new principle that spending money by or on behalf of candidates is a form of speech protected by the First Amendment.

Civil Liberties - Make sure to focus on other cases mentioned on page 121.

Civil Liberties - Make sure to focus on other cases mentioned on page 121. - Spend some time on page 122 -123

Civil Liberties Obscenity and Pornography: - According to your book, “it is easy to

Civil Liberties Obscenity and Pornography: - According to your book, “it is easy to say that pornography and obscenity fall outside the realm of protected speech, but it is impossible to draw a clear line defining where protection ends and unprotected speech begins. ” - 1957 is the first time the SC confronted this problem. (Read) - In 1964, Justice Potter Stewart confessed that although he found pornography impossible to define, “I know it when I see it. ”

Civil Liberties - Discuss is the case on page 126 concerning playboy a good

Civil Liberties - Discuss is the case on page 126 concerning playboy a good ruling?

Civil Liberties Types of Speech: 1. Political Speech 2. Symbolic Speech 3. Speech Plus-

Civil Liberties Types of Speech: 1. Political Speech 2. Symbolic Speech 3. Speech Plus- following speech with physical activity such as picketing, distributing leaflet, and other forms of peaceful demonstrations or assembly. 4. Freedom of the Press 5. Libel and Slander 6. Obscenity and Pornography 7. Commercial Speech

Civil Liberties The Second Amendment and the Right to Bear Arms: - A well

Civil Liberties The Second Amendment and the Right to Bear Arms: - A well regulated Militia, being necessary to t he security of a free state, the right of the people to keep and bear Arms, shall not be infringed. - Read page 130 - District of Columbia v. Heller (2008), the SC ruled that the federal government could not prohibit individuals from owning guns for self-defense in their homes.

Civil Liberties Rights of the Criminally Accused: - The Bill of Rights entitles every

Civil Liberties Rights of the Criminally Accused: - The Bill of Rights entitles every American to due process of law. - The concept of due process of law means that the government must respect all the legal rights to which every individual is entitled. - The 4 th, 5 th, 6 th, 8 th, Amendments, taken together, are the essence of the due process of law.

Civil Liberties Key Terms to Know: - Civil Liberties - Miranda Rule - Establishment

Civil Liberties Key Terms to Know: - Civil Liberties - Miranda Rule - Establishment Clause - Lemon Test - Free Exercise Clause - Clear and Present Danger - Speech Plus - Prior Restraint - Libel - Slander - Fighting Words - Exclusionary Rule - Grand Jury - Double Jeopardy - Eminent Domain - Right to Privacy- The right to be let alone, which has been interpreted by the SC to entail free access to birth control and abortions