Civil Civil LibertiesLibertiesChapter Five

• Has the existence of a formal Bill of Rights really secured the freedoms of Americans?

• Does the Supreme Court’s primacy in this area of public policy imply that democracy requires an institution of unelected judges for its protection? What other ways of protecting civil liberties might there be?

• What roles, if any, do Congress, the president, and the states play in defining civil liberties?

• Since the Bill of Rights does not mention “right of privacy,” how can the Supreme Court deem privacy to be a fundamental constitutional right?

Civil LibertiesCivil Liberties

• Reining in majorities• Bill of Rights checks majority rule– designed to limit the capacity of government to

impose conformity costs on those individuals and minorities whose views differ from those of the majority

Nationalization of Civil LibertiesNationalization of Civil Liberties

• The Constitution in 1787 did not seriously address civil liberties

• The Framers originally believed a bill of rights was unnecessary– Federalist No. 84

• Anti-federalists believed differently– they won and Bill of Rights was added

Writing Rights and Liberties into Writing Rights and Liberties into the Constitutionthe Constitution

• The Constitution actually acquired civil liberties protections in several steps:– Bill of Rights

• Baltimore v. Barron (1833)• Bill of Rights only applied to federal government

• Incorporation via the Fourteenth Amendment• the rights of citizenship were not subject to state controls• due process and equal protection• 1873 Slaughterhouse cases - “privileges and immunities”

– 5–4 decision held that Fourteenth Amendment applied to African Americans and no one else

The First Ten AmendmentsThe First Ten Amendments

• Selective incorporation– Fifth Amendment (1897) – First Amendment freedoms (speech, press, and religion) in

1930s and 1940s.– Fourth, Fifth, and Sixth covered in the 1960s.– contemporary focus on rights of privacy.

• Judicial interpretation– role of the justice

The First Ten AmendmentsThe First Ten Amendments

• Free expression and national security– Early years of twentieth century—Court rejected arguments

for nationalizing free speech guarantees through the Fourteenth Amendment• left to state governments

– Did seek to define the degree to which federal legislation must protect free speech• Schenck v. United States (1919)• clear and present danger test• Gitlow case (1925)• clear and probable danger test—Dennis v. U.S.• Texas v. Johnson (1989)

Freedom of SpeechFreedom of Speech

• In a 1969 decision involving the Ku Klux Klan– speech that endorses “lawless action” cannot be

punished unless such action is “imminent”

• Right of National Socialist Party to march in 1977 supported by the Court.

Hate SpeechHate Speech

• Obscenity not protected by the First Amendment.– Difficulty: determining what is obscene versus merely

pornographic– Early censorship: basically left to the locals, librarians,

postmasters, and movie censors• pornography thrived• Roth v. United States (1957)

– community standards

– Policy shifted back to the states• Miller v. California

– Continuing struggle• Child Online Protection Act (1998)• Children’s Internet Protection Act (2000)

Sexually Explicit SpeechSexually Explicit Speech

• Freedom of the press crucial to democracy.– Framers viewed a free press as yet another

“check” against political abuse

• Press versus individual rights and privacy– right to a fair trial– libel and slander

Freedom of the PressFreedom of the Press

• Establishment and freedom of exercise– first real decision in 1899—Court allowed federal government to

subsidize a Catholic hospital open to all patients

• 1947 the Supreme Court applied the due process clause to the establishment provision and therefore placed the states under the same restraints as the federal government– federal subsidies to churches

• Lemon v. Kurtzman (1971)– Lemon Test—question of “neutrality”

– test of policy’s neutrality—Grumet case (1994)– more recent decisions focus on non-religious education activities of

religious groups; generally supportive of federal funding

Freedom of ReligionFreedom of Religion

• Only real wall separating church and state not yet breached by the Supreme Court– In Engel v. Vitale (1962) • Court ruled the state composed school prayer was

unconstitutional. The next year it invalidated Bible readings in public schools.• amendments allowing school prayer• in 2001 a federal appeals court turned away a challenge

to a Virginia law permitting a moment of silence at the start of each class day; the court let the decision stand

School Prayer and Bible ReadingSchool Prayer and Bible Reading

• Incorporation– Jehovah witness case ruling in 1940

• Freedom to act and believe– Jehovah witness case in 1940– Employment Division v. Smith (1990)– animal sacrifice case in 1993• if a law is not neutral “it is invalid unless it is justified by

a compelling interest and is narrowly tailored to advance that interest.”

Free ExerciseFree Exercise

• remove the criminal process from politics and protect the individual citizen from the raw power of the state.– Bill of Rights

• Fourth Amendment—illegal search and seizure– Katz v. United States– Mapp v. Ohio—exclusionary rule

• Fifth Amendment—self-incrimination, double jeopardy– Miranda v. Arizona - Miranda rights– Benton v. Maryland—nationalization

• Sixth Amendment - speedy trial, impartial jury, right to counsel– Gideon v. Wainwright

• Eight Amendment—cruel and unusual punishment– Furman v. Georgia and Gregg v. Georgia

Criminal RightsCriminal Rights

• USA Patriot Act (2001): – focus on finding and prosecuting terrorists• 900 provisions• sunset provisions—expire in 2005• renewed in 2006

– litigation issues• separation of powers • 2004 ruling re: detainees and their habeas corpus

petitions

Criminal Rights and National Criminal Rights and National SecuritySecurity

• not explicitly stated in the Bill of Rights or elsewhere in the Constitution.– Ninth Amendment—unstated rights

• Supreme Court did not recognize its existence until 1965.– penumbras

PrivacyPrivacy

• Griswold v. Connecticut (1961)• Eisenstadt v. Baird (1972)• Roe v. Wade (1973)• this area remains controversial

Childbearing ChoicesChildbearing Choices

• Court has protected some aspects of privacy and not others.

• homosexual acts– 1986 the Court allowed Georgia law prohibiting

homosexual acts between consenting adults to stand– Court reversed itself in 2003 in Lawrence v. Texas with a 6–

3 vote stating that such laws were unconstitutional– canvass of state laws

• 1986 half of all states had sodomy laws• 2003 only thirteen retained those laws

Other Life ChoicesOther Life Choices

• Right to bear arms– Second Amendment—personal right to hold weapons

versus right to form militias– United States v. Miller—personal right interpretation– June 2008 District of Columbia v. Heller

• 5–4 decision evidence of an opinion split, with the majority adopting the individual rights interpretation of the Second Amendment.

Emerging Bill of Rights Issues: Emerging Bill of Rights Issues: Guns and PropertyGuns and Property

• “Private property [shall not] be taken for public use, without just compensation”

• Area of law has gone in new direction: environmental policy• Owners of land that have been designated protected have

charged that the federal government is violating the Fifth Amendment and “taking” their property without just compensation

• Kelo v. City of New London– Court held that city’s decision to take private property for economic

development did in fact satisfy the “public use” requirement of the Fifth Amendment.

The “Takings” ClauseThe “Takings” Clause

• Right to die issues– 1990 the Court rejected the right to die—even the removal

of life-support equipment—as a fundamental privacy act

– 1994 Oregon voters pass Death with Dignity Act

– 2001 Oregon law challenged by Attorney General Ashcroft

– 2006 Supreme Court held that the attorney general did not have the authority to make such a determination

Other Life ChoicesOther Life Choices

• Modern civil liberties number among the most divisive and unsettled issues facing the nation.– prominent role of the Supreme Court– conflict with principles of democracy?• there are means to counter Court decisions • Court is limited as well• will of the people

– if strong and steady likely to impact policy

Assessing Civil Liberties as Public PolicyAssessing Civil Liberties as Public Policy