chapter 16 civil liberties © 2009, pearson education fiorina, peterson, johnson, and mayer new...

Chapter 16Civil Liberties

© 2009, Pearson Education

Fiorina, Peterson, Johnson, and Mayer

New American Democracy, Sixth Edition


Origins of Civil Liberties in the U.S.

Evolution of civil liberties in the United States has been shaped by Supreme Court rulings

Also affected by

– Political debates

– Interest group activism

– Election outcomes


Origins of the Bill of Rights

Articulation of basic freedoms found in colonial America

– During Revolution, Patriots trampled on rights of Tories – called them traitorous

Constitution did not include explicit protection for individual civil liberties

States responsible for things such as regulating speech and the press

Only when ratification of Constitution was in danger did a federal Bill of Rights emerge


Few Liberties Pre-Civil War

Bill of Rights originally applied only to national government—NOT the states

– Several states supported Congregationalist ministers with tax money for several decades

– Some Bill of Rights provisions did not explicitly mention federal or state government, leaving possibility that they applied to both

Barron v. Baltimore (1833)

Slavery

– Dred Scott v. Sandford


Applying the Bill of Rights

The Civil War transformed the Bill of Rights

Civil Rights Amendments

– The 13th, 14th, 15th Amendments, which abolished slavery, redefined civil rights and liberties, and guaranteed the right to vote to all adult male citizens

Due Process Clause

– Found in the 5th and 14th Amendments to the Constitution: forbids deprivation of life, liberty, or property without the due process of law


Applying the Bill of Rights

Language in the 14th Amendment applied the due process clause to the states

But, the Supreme Court did not immediately conclude that the states must abide by the entire Bill of Rights

– If it did, would be difficult to enforce

– Gradual approach: selective incorporation

• the case-by-case incorporation, by the courts, of the Bill of Rights into the due process clause of the 14th Amendment


Freedom of Speech, Assembly, and Press

“Congress shall make no law…abridging the freedom of speech, or of the press; or the right of people peaceably to assemble…”

Three liberties closely intertwined


Free Speech and Majoritarian DemocracyMadison and Tyranny of the Majority

Place free speech outside the reach of powerful majorities

John Stuart Mill: in the free exchange of ideas, truth would eventually triumph over error

– But what of vicious or offensive speech?

– Mill states that even if such ideas were built on error, only by allowing it to be expressed can its proponents be denied the privilege of false martyrdom

– Example: racial hatred and prejudice


From “Bad Tendency” to “Clear and Present Danger”

Bad Tendency:

– A rule from English law saying that expression could be punished if it could ultimately lead to illegal behavior

First major Supreme court decisions affecting freedom of speech arose out of the conscription of young men into the army during WWI

Schenck : socialist who mailed anti-conscription materials to draft-age men

– Found guilty of the 1917 Espionage Act (law that made it illegal to obstruct armed forces recruitment)


From “Bad Tendency” to “Clear and Present Danger”Supreme Court reviewed case and enunciated

the Clear and Present Danger doctrine

The principle that people should have complete freedom of speech unless their language endangers the nation

Meaning open to interpretation

Abrams v. United States (1919), Holmes attempt to fine-tune the doctrine

Stromberg v. California (1931) gave 1st Amendment protection to extremely unpopular opinions


Fighting WordsThe principle endorsed by the Supreme Court that some words constitute violent acts and are therefore not protected under the 1st Amendment

Chaplinsky v. New Hampshire


Balancing DoctrineFreedom of speech must be balanced

against other competing interests

Circumstances matter

Dennis v. United States (1951)

– Was used to reinterpret and place limits on the clear and present danger doctrine


Fundamental Freedoms Doctrine

Doctrine stating that laws impinging on the freedoms that are fundamental to the preservation of democratic practice are to be scrutinized by the courts more closely than other legislation

Fundamental freedoms: speech, press, assembly, and religion

Texas v. Johnson (1989)

United States v. Eichman (1990)

R.A.V. v. City of St. Paul (1990)


Freedom of the PressPrior restraint doctrine

Legal doctrine that gives individuals the right to publish without submitting material to a government sensor

Near v. Minnesota (1931)

New York Times v. United States (1971)


Freedom of AssociationConsidered inseparable from freedom of speech and assembly

Dennis v. United States

NAACP v. Alabama (1958)

Boy Scouts of aAmerica v. Dale (2000)


Limitations on Free Express

Commercial Speech

– Advertising or other speech made for business purposes may be regulated

– E.g. Cigarette advertising on television and radio is forbidden

Obscenity

– Publicly offensive language or portrayals with no redeeming social value

– Redrup v. New York (1967)

– Miller v. California (1973)

Libel

– False statement defaming another

– New York Times v. Sullivan


Freedom of ReligionGuaranteed by two clauses:

– Establishment of religion clause

– Free exercise of religion clause

The first denies the government to establish any single religious practice as superior

The second protects the right of individuals to practice their religion without government interference


Establishment of Religion Clause

Separation of church and state doctrine

The principle that a wall should separate the government from religious activity

Meek v. Pittenger (1975)

– Public monies cannot be used for payment to religious-school teachers, for curricular materials, or for any other expense at such schools, except for textbooks and the cost of transporting students to school

Agostini v. Felton

– The court ruled that public school teachers can provide specialized remedial instruction in religious schools so long as this instruction does not discriminate against students on the basis of religion


Free Exercise of Religion Clause

Seems to instruct states not to interfere with religious practices

– Education policy

Wisconsin v. Yoder (1972)

Oregon v. Smith (1990)


Establishment of Religion or Free Exercise?

Wisconsin v. Yoder – What happens when the establishment and exercise clause conflict?

– Did the Amish receive preferential treatment?

– What about the armed services hiring chaplains for overseas members?

– School choice debate

Zelman v. Simmon-Harris

– Found constitutional a small voucher program serving low-income families in Cleveland even though the vouchers were used for religious schools


Law, Order and Rights of Suspects

Elections affect court interpretations of the procedural rights of the accused.

– Interfere with the ability of police to find and prosecute criminals

Election politics and criminal justice

– Must “do something”

– Warren Court


Search and Seizure4th Amendment

– Your house cannot be searched without your permission unless a search warrant, based on evidence that a crime has probably been committed, is issued by a court

Exclusionary rule

– Legal standard that says that illegally obtained evidence cannot be admitted in court

– Mapp v. Ohio (1961)

– Headlong flight


Immunity Against Self-Incrimination

5th Amendment

– Protects individuals from torture and coerced confessions by saying the persons cannot be forced to testify against themselves

Miranda v. Arizona (1966)


Impartial Jury6th Amendment– Requirement that a jury must be impartial

Sheppard v. Maxwell (1966)– Safeguards put into place to ensure impartial juries

• postponement until public attention subsided• screening of jurors• instruction of the jurors to consider the evidence of

the trial• sequestration• changing of trial venue

Nebraska Press Association v. Stuart (1976)– “Pre-trial publicity—even pervasive, adverse publicity –

does not inevitably lead to an unfair trial”


Legal Counsel6th Amendment

Gideon v. Wainwright (1963)

– All citizens accused of serious crimes are constitutionally entitled to legal representation

– Office of public defender

• low pay

• systems and standards vary widely from state to state


Double Jeopardy5th Amendment

Benton v. Maryland (1969)

– States cannot try a person twice for the same offense

– But a person can be tried in the federal courts, even if acquitted in a state court


Rights in Practice: Habeas CorpusWrit of habeas corpus

A judicial order that a prisoner be brought before a judge to determine the legality of his or her imprisonment

The Great Writ

– Preserves the right of the accused to the due process of law


Rights in Practice: The Plea Bargain

Agreement between prosecution and defense that the accused will admit having committed a crime, provided that other charges are dropped and the recommended sentence is shortened

Extensive use of plea bargain at issue


The Right of Privacy9th Amendment:

– “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”

Right of privacy not explicit in Constitution

– In 1960s and 1970s this right was recognized by the Court with regard to private sexual behavior and abortion


Regulation of Sexual Behavior

Griswold v. Connecticut (1965)

– Right to use contraceptives

– Majority agreed

Bowers v. Hardwick (1986)

– Georgia law prohibiting sodomy under which two homosexuals had been convicted

– Behavior not supported by majority: court held state could regulate

– But in Lawrence v. Texas (2003), Court reversed itself on this topic.

• Bowers should not be a biding precedent.


Abortion: Right to Life or Right to Choose?

Roe v. Wade (1973)

– Court ruled that right to privacy was broad enough to include at least a partial right of abortion

– launched powerful political movements

• right-to-life

• pro-choice

Planned Parenthood v. Casey (1992)

– Compromise decision: upheld some of the restrictions on abortion but left intact the principle that states cannot outlaw all abortions


Privacy in the Information AgeKyllo v. United States (2001)

Court considered whether police departments could make use of thermal imaging equipment to examine a suspect’s home without a search warrant

Found for the defendant: using imaging technology basically equal to unconstitutional search

chapter 16 civil liberties © 2009, pearson education fiorina, peterson, johnson, and mayer new...

Documents

federal bill of rights

bill of rights provisions

bill of rights language

entire bill of rights

pearson education free

rights of tories

pearson education fiorina

amendment slide