Chapter 18

Civil Liberties

THEME A - The Politics of Civil Liberties:

1. Sedition Act (1798)

2. Espionage and Sedition Act (1917 - 1918)

3. Smith Act (1940)

The Supreme Court, which has defined the limits of free expression throughout the twentieth century has functioned as a delayed-action brake, first accepting efforts to limit expression and then, after the crisis died down, overruling them. "Clear and present danger" test developed by the Supreme Court.

THEME BBill of Rights Freedoms

Amendment IAmendment IAMENDMENT IAMENDMENT ICongress shall make no law respecting an establishment of Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a peaceably to assemble, and to petition the Government for a redress of grievances.redress of grievances.Libel is not protected by the first amendment, but public figures Libel is not protected by the first amendment, but public figures have little protection against libel unless actual malice can be have little protection against libel unless actual malice can be demonstrated.demonstrated.Obscenity is also not protected. Test is community standards.Obscenity is also not protected. Test is community standards.First amendment does not require a clear separation of church First amendment does not require a clear separation of church and state.and state.Three part test concerning government involvement in religious Three part test concerning government involvement in religious activitiesactivities1. Activity must have a secular - non religious purpose1. Activity must have a secular - non religious purpose2. Activity can neither advance nor inhibit religion2. Activity can neither advance nor inhibit religion3. Activity can not foster excessive government with religion 3. Activity can not foster excessive government with religion

Church and stateChurch and state

– The free exercise clause: no state The free exercise clause: no state interference, similar to speech interference, similar to speech

Law may not impose special burdens on religion Law may not impose special burdens on religion

But no religious exemptions from laws binding all But no religious exemptions from laws binding all

Some cases difficult to settle Some cases difficult to settle – Conscientious objection to war, military service Conscientious objection to war, military service – Refusal to work Saturdays; unemployment Refusal to work Saturdays; unemployment

compensation compensation – Refusal to send children to school beyond eighth Refusal to send children to school beyond eighth

gradegrade

AMENDMENT IIAMENDMENT II

A WELL REGULATED MILITIA, being necessary to A WELL REGULATED MILITIA, being necessary to the security of a free State, the right of the people the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.to keep and bear Arms, shall not be infringed.

Eighteenth-century Americans strongly preferred a Eighteenth-century Americans strongly preferred a volunteer citizen army, militia, to a professional, volunteer citizen army, militia, to a professional, standing army in peacetime. They feared that a standing army in peacetime. They feared that a large national army might fall under the rule of large national army might fall under the rule of some ambitious leader who aspired to become a some ambitious leader who aspired to become a military dictator. This amendment was designed to military dictator. This amendment was designed to guarantee to states the right to maintain a militia. guarantee to states the right to maintain a militia. It did not restrict the power of federal and state It did not restrict the power of federal and state governments to regulate private ownership of governments to regulate private ownership of weapons, unless such regulations interfered with weapons, unless such regulations interfered with the militia.the militia.

AMENDMENT IIAMENDMENT II

A series of Supreme Court decisions have argued A series of Supreme Court decisions have argued that the second amendment guarantees only a that the second amendment guarantees only a collective right to bear arms in a "well-regulated collective right to bear arms in a "well-regulated militia" run by the state. The original militias were militia" run by the state. The original militias were organized forces whose members were subject to organized forces whose members were subject to a host of legal requirements imposed by the a host of legal requirements imposed by the states. The second amendment, therefore, was states. The second amendment, therefore, was intended only to protect the states' rights to intended only to protect the states' rights to maintain they own militias, and therefore it maintain they own militias, and therefore it permits all levels of government to limit private permits all levels of government to limit private assess to firearms. The second amendment is a assess to firearms. The second amendment is a historic anachronism, since the type of citizen historic anachronism, since the type of citizen militia envisioned by the Founding Fathers is militia envisioned by the Founding Fathers is extinct.extinct.

AMENDMENT IIAMENDMENT II

United States vs Miller (1939) The court sustained United States vs Miller (1939) The court sustained the conviction of Jack Miller, who had carried a the conviction of Jack Miller, who had carried a sawed-off shotgun across state lines in violation sawed-off shotgun across state lines in violation of the National Firearms Act of 1934. The court of the National Firearms Act of 1934. The court found no reasonable relationship between a found no reasonable relationship between a sawed-off shotgun and a well regulated militia.sawed-off shotgun and a well regulated militia.Presser v. Illinois (1886) The court upheld a state Presser v. Illinois (1886) The court upheld a state law banning the formation and parading of armed law banning the formation and parading of armed groups of men.groups of men.United States v. Cruikshank (1876) The court United States v. Cruikshank (1876) The court ruled that the right to bear arms "is not a right ruled that the right to bear arms "is not a right granted by the Constitution" or by the Second granted by the Constitution" or by the Second Amendment. That amendment, the court said, Amendment. That amendment, the court said, restricts the power of Congress, but not the restricts the power of Congress, but not the states, to regulate firearms.states, to regulate firearms.

WHAT THE CONSTITUTION WHAT THE CONSTITUTION SAYS ABOUT MILITIASSAYS ABOUT MILITIAS

Article I, Section 8Article I, Section 8Congress shall have the power to:Congress shall have the power to:To provide for calling forth the Militia to execute the Laws of the To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;Union, suppress Insurrections and repel Invasions;To provide for organizing, arming, and disciplining, the Militia, and To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;Militia according to the discipline prescribed by Congress;Article II, Section 2Article II, Section 2The President shall be Commander in Chief of the Army and Navy The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.except in Cases of Impeachment.

AMENDMENT IIIAMENDMENT III

No Soldier shall, in time of peace be No Soldier shall, in time of peace be quartered in any house, without the quartered in any house, without the consent of the Owner, nor in time of war, consent of the Owner, nor in time of war, but in a manner to be prescribed by law.but in a manner to be prescribed by law.

In colonial days British soldiers were often In colonial days British soldiers were often lodged in private homes, much against the lodged in private homes, much against the wishes of the colonist who owned their wishes of the colonist who owned their homes.homes.

AMENDMENT IVAMENDMENT IV

The right of the people to be secure in The right of the people to be secure in their persons, houses, papers, and effects, their persons, houses, papers, and effects, against unreasonable searches and against unreasonable searches and seizures, shall not be violated, and no seizures, shall not be violated, and no Warrants shall issue, but upon probable Warrants shall issue, but upon probable cause, supported by Oath or affirmation, cause, supported by Oath or affirmation, and particularly describing the place to be and particularly describing the place to be searched, and the persons or things to be searched, and the persons or things to be seized.seized.

Exclusionary rule - Mapp v OhioExclusionary rule - Mapp v Ohio

The exclusionary rule The exclusionary rule Most nations punish police misconduct Most nations punish police misconduct apart from the criminal trial apart from the criminal trial

United States punishes it by excluding United States punishes it by excluding improperly obtained evidence improperly obtained evidence

Supreme court rulings Supreme court rulings – 1949: declined to use exclusionary rule 1949: declined to use exclusionary rule – 1961: changed, adopted it in 1961: changed, adopted it in Mapp Mapp casecase

Search and seizure Search and seizure

When can "reasonable" searches of When can "reasonable" searches of individuals be made? individuals be made? – With a properly obtained search warrant with With a properly obtained search warrant with

probable cause probable cause – Incident to an arrestIncident to an arrest

What can police search incident to an What can police search incident to an arrest? arrest? – The individual being arrested The individual being arrested – Things in plain view Things in plain view – Things under the immediate control of the Things under the immediate control of the

individualindividual

AMENDMENT VAMENDMENT V

No person shall be held to answer for a capital, or No person shall be held to answer for a capital, or otherwise infamous crime, unless on a otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of or in the Militia, when in actual service in time of War or public danger; nor shall any person be War or public danger; nor shall any person be subject for the same offence to be twice put in subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, nor be deprived of life, liberty, or property, without due process of law; nor shall private without due process of law; nor shall private property be taken for public use, without just property be taken for public use, without just compensation.compensation.

AMENDMENT VIAMENDMENT VI

In all criminal prosecutions, the accused shall In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the impartial jury of the State and district wherein the crime shall have been committed, which district crime shall have been committed, which district shall have been previously ascertained by law, shall have been previously ascertained by law, and to be informed of the nature and cause of the and to be informed of the nature and cause of the accusation; to be confronted with the witnesses accusation; to be confronted with the witnesses against him; to have compulsory process for against him; to have compulsory process for obtaining witnesses in his favor, and to have the obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.Assistance of Counsel for his defence.Attorney present, remain silent - MirandaAttorney present, remain silent - Miranda

Confessions and self-incriminationConfessions and self-incrimination

Extension of rights in the Extension of rights in the 1960s 1960s – EscobedoEscobedo – MirandaMiranda

Escobedo and MirandaEscobedo and Miranda

Escobedo v. Illinois Escobedo v. Illinois (1964): If (1964): If requested, a lawyer must be present requested, a lawyer must be present during policy interrogation before an during policy interrogation before an indictment is madeindictment is made

Miranda v. ArizonaMiranda v. Arizona (1966): (1966): Accused individuals have the right to Accused individuals have the right to remain silent and must be informed remain silent and must be informed of their rights.of their rights.

AMENDMENT VIIAMENDMENT VII

In Suits at common law, where the In Suits at common law, where the value in controversy shall exceed value in controversy shall exceed twenty dollars, the right of trial by twenty dollars, the right of trial by jury shall be preserved, and no fact jury shall be preserved, and no fact tried by a jury, shall be otherwise re-tried by a jury, shall be otherwise re-examined in any Court of the United examined in any Court of the United States, than according to the rules of States, than according to the rules of the common law.the common law.

AMENDMENT VIIIAMENDMENT VIII

Excessive bail shall not be required, Excessive bail shall not be required, nor excessive fines imposed, nor nor excessive fines imposed, nor cruel and unusual punishments cruel and unusual punishments inflicted.inflicted.

AMENDMENT IXAMENDMENT IX

The enumeration in the Constitution, of The enumeration in the Constitution, of certain rights, shall not be construed to certain rights, shall not be construed to deny or disparage others retained by the deny or disparage others retained by the people.people.This amendment simply makes clear that This amendment simply makes clear that the Bill of Rights does not list all the rights the Bill of Rights does not list all the rights of the people. Two rights not specifically of the people. Two rights not specifically stated are the right to engage in the stated are the right to engage in the political activity and the right to privacy. political activity and the right to privacy. Privacy is cited in the Roe and Griswald Privacy is cited in the Roe and Griswald CasesCases

AMENDMENT XAMENDMENT X

The powers not delegated to the The powers not delegated to the United States by the Constitution, United States by the Constitution, nor prohibited by it to the States, are nor prohibited by it to the States, are reserved to the States respectively, reserved to the States respectively, or to the people.or to the people.The division of powers between the The division of powers between the national and state governments is national and state governments is the essence of our federal system the essence of our federal system (federalism). (federalism).

The first ten amendments, which make up the so-called Bill of Rights, were designed to calm the fears of the mild opponents of the Constitution in its original form. The amendments were proposed to the state legislatures by the first Congress that assembled under the Constitution in 1789 and were ratified in 1791. Some of the framers had argued that the Bill of Rights was not necessary since the national government did not in any case have the power to do what was expressly forbidden in the proposed amendments.

Terrorism and Civil Liberties Terrorism and Civil Liberties USA Patriot Act USA Patriot Act

– Telephone and internet taps, voice mail Telephone and internet taps, voice mail seizure seizure

– Grand jury information exchange Grand jury information exchange – Detainment of non-citizens and deportation Detainment of non-citizens and deportation

of aliens of aliens – Money laundering Money laundering – Crime and punishmentsCrime and punishmentsExecutive order for use of military courts Executive order for use of military courts – Trial before commission of military officers, Trial before commission of military officers,

may be secret may be secret – two-thirds vote for conviction, appeal to two-thirds vote for conviction, appeal to

secretary of defense and the presidentsecretary of defense and the president

SELF TEST