Chapter 5: Fundamental American Liberties PDF

11/21/24 CHAPTER 5: FUNDAMENTAL AMERICAN LIBERTIES Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 1 Civil Liberties are A. Governmental freedoms, designed to protect its power B. Individual freedoms that place limitati...

11/21/24 CHAPTER 5: FUNDAMENTAL AMERICAN LIBERTIES Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 1 Civil Liberties are A. Governmental freedoms, designed to protect its power B. Individual freedoms that place limitations on the power of government C. Rights guaranteed to the people and protected by government Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 2 Civil Rights are A. Government freedoms, designed to protect its power B. Freedom of speech and press C. Rights guaranteed to the people and protected by government Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 3 1  11/21/24 Rights in a Democracy The idea that individuals had rights and were citizens originated from Enlightenment thinkers Contrasted with prevailing view that individuals had no rights against the power of gov’t and were subjects. Individuals with rights must be respected and their rights protected by gov’t Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 4 Rights in a Democracy Because rights represent power, they are subject to conflict and controversy – Individuals' rights can conflict with each other – Individuals' rights can conflict with society's needs and the demands of collective living Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 5 Rights in a Democracy Importance of asserting political narrative for protecting individual rights – Gun ownership DC v Heller (2008) NY State Rifle v Bruen (2022) – Right to privacy Griswold v Conn (1965) Roe v Wade (1974) Dobbs v Jackson (2022) – Religious liberties Groff v DeJoy (2023) 303 Creative LLC v. Elenis (2023) Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 6 2  11/21/24 Discussion Question: Rights in a Democracy Individual rights can conflict with societal needs. In the wake of 9/11, Congress passed the Patriot Act, instituting airport security, intercepting emails, wiretaps, and Gov’t access to individual’s library and purchase records. COVID-19 led to state restrictions, including stay at home orders, gathering size, and face-mask requirements. Did gov’ts go too far in restricting individual liberties in both of these situations? Or were these restrictions on individual liberties justified? Why? Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 7 Rights in a Democracy How Do We Resolve Conflicts About Rights? These conflicts often revolve around what is considered fair versus who’s benefitting Who wins vs loses can change over time – Courts Have protected individual rights (expansion of religious rights, some 9/11 rulings) and have contracted individual rights (Japanese incarceration) – Congress Both expanded rights (Civil Rights Act and Voting Rights Act) or limited (House Un-American Activities and Patriot Act) Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 8 Rights in a Democracy How Do We Resolve Conflicts About Rights? – President Solicitor General or propose legislation or sign executive orders – The people ACLU, NAACP, Christian Coalition, Sierra Club, NRA, Common Cause often use courts or lobby for legislation Protest movements - BLM, Civil Rights, LGBTQ+, Women’s March (2017), Pro-Life, Pro-Choice etc.. Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 9 3  11/21/24 Which of the following rights are listed in the constitution, but not in the Bill of Rights? A. Habeas Corpus B. Bill of Attainder C. Ex post facto laws D. All of the above Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 10 The Bill of Rights and Incorporation Application of the Bill of Rights Prior to Civil War: Limitations directed toward Congress and the actions of the Federal Government, but not state governments – Barron v Baltimore (1833) Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 11 The 14th Amendment: No State Shall... make or enforce any law which shall abridge the privileges and immunities of citizens; deprive any person of life, liberty, or property without due process, nor deny any person the equal protection of the laws. 12 4  11/21/24 When the 14th amendment was ratified in 1868, the Supreme Court immediately began applying the bill of rights to the actions of states. A. True B. False Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 13 Incorporation is the process by which the Supreme Court makes A. Congressional laws applicable to the President’s actions. B. the protections of the bill of rights applicable to the states. C. presidential edicts valid. D. businesses “incorporated.” Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 14 The Bill of Rights and Incorporation Protections in the Bill of Rights made applicable to actions of state governments thru 14th Amendment Chicago, Burlington & Quincy v Chicago (1897) applies 5th A’s just compensation requirement Gitlow v. New York (1925) incorporated 1st A’s free speech/press protections to actions of the state Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 15 5  11/21/24 The Bill of Rights and Incorporation SCOTUS made itself the arbiter of which parts of the Bill of Rights should be applied to state actions versus automatically incorporating all of the B of R. – To be incorporated, right must be “fundamental”. Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 16 Rights Incorporated All of 1st 2nd Amendment Right to Bear Arms 4th Warranted Searches and Exclusionary Rules 5th Due process, Double Jeopardy, and Self incrimination 6th Public, Speedy, Impartial, Jury trial with Counsel (in cases where liberty is at stake) 8th Cruel and Unusual punishment, Excessive Fines and Bail 17 Rights unincorporated 3rd Quartering Soldiers 5th Right to indictment by Grand Jury 6th Right to Jury in Civil Law cases States can pass laws and act on these issues in such a way that it violates the federal constitution. 18 6  11/21/24 Freedom of Religion Compromise is difficult for religious conflicts Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 19 The book characterizes someone who supports a “wall of separation” between church and state as A. an establishmentarian. B. a separationist. C. an accommodationist Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 20 The SC has ruled as unconstitutional efforts to read the 10 commandments, the Lord’s prayer, moments of silence, and nondenominational prayers in the public schools. Do you agree with these rulings? A. Agree B. Disagree Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 21 7  11/21/24 Freedom of Religion The Establishment Clause Separationists vs Accommodationists Judicial Rulings – Lemon v. Kurtzman (1971) establishes Lemon Test (separationist perspective) Does law have secular intent? Neither advances nor inhibits religion? Law fosters excessive gov’t entanglement? Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 22 Freedom of Religion The Establishment Clause Separationists vs Accommodationists Judicial Rulings – Kennedy v. Bremerton School (2022) (an Accommodationist ruling) Coach prayed silently on 50-yard line SCOTUS rules that coach’s prayers should be viewed as private speech, not gov’t speech Overturns Lemon test, but new test not established An accommodationist perspective Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 23 Group Discussion Louisiana has passed a law that requires the 10 commandments to be on display in every public and private school classroom. In light of the Bremerton School ruling, should SCOTUS uphold the LA law? Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 24 8  11/21/24 The constitution states that Congress shall make no law regarding the fee exercise of religion. Do you agree with the SC’s ruling that a child can’t be forced to salute flag if it is against their religion. A. Agree B. Disagree Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 25 Freedom of Religion The Free Exercise Clause Free exercise clause Cantwell v Conn (1940) Gov’t police power to protect its citizens can override free exercise (ritual sacrifices or gathering during a pandemic) – But must be a compelling state interest. Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 26 Do you agree that the states have a “compelling state interest” (a fundamental state purpose, which must be shown before taking rights away) to outlaw hallucinogenic drugs like peyote (Employment Division v Smith, 1990), used by some religions in sacramental ceremonies? A. Agree B. Disagree Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 27 9  11/21/24 Freedom of Religion The Free Exercise Clause Hosanna-Tabor (2012) gov’t can’t regulate hiring practices of religious organizations Affordable Care Act requirement for coverage of birth control led to Burwell v. Hobby Lobby (2012). Proliferation RFRAs in 2015-16 by state legislatures in wake of SCOTUS decision regarding same sex marriage. Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 28 Religious Freedom Restoration Act States Source: Becket: https://www.becketlaw.org/research-central/rfra-info-central/map/ 29 RFRA States require the “Sherbert Test” for any state action regarding the Free Exercise Clause of their state constitutions. Sherbert Test must meet two conditions – burden must be necessary for the "furtherance of a compelling government interest” (strict scrutiny) – rule must be the least restrictive way in which to further the government interest Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 30 10  11/21/24 Do you agree or disagree that a web designer should be able to deny her services to same-sex couples if same-sex marriages violate her religious values? A. Agree B. Disagree Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 31 Freedom of Religion (2023) Groff v. De Joy – Workers can’t be required to work on the sabbath if it’s against their religious beliefs, overturns ”undue hardship” (i.e. “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale”) precedent in TWA v Hardison (1977) 303 Creative v Elenis – Colorado web designer can’t be compelled to provide creative services to same-sex couples if same sex marriages are against her religion – Reinforces Fulton v Philly (2021) ruling supporting denial of child adoptive services for same-sex couples by a Catholic agency Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 32 Freedom of Expression Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 33 11  11/21/24 Ideally, freedom of expression empowers citizens and limits gov’t Empowers us to voice criticisms of gov’t and investigate its actions to check gov’t power Limits gov’t from censoring what we say or read Allows for the free traffic of ideas and vigorous protection of the truth Freedom of expression means we have a free press – Free press that has the power to report fully on gov’t activities, which then facilitates citizens participating more wisely in gov’t Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 34 Speech that criticizes government to promote rebellion is called: A. Sedition B. Treason C. Perdition Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 35 Your book suggests that prior to WWI, the idea of “Free speech” in the US was a sham. SCOTUS’s test of whether gov’t could regulate speech was called the “bad tendency test”, which only requires the gov’t to show that the speech will lead to punishable actions. A. True B. False Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 36 12  11/21/24 About the time to WWI, the bad tendency test was replaced by the “clear and present danger” test, which required that the gov’t show that the speech represents an immediate and urgent danger (Schenk v US and Abrams v US, 1919). A. True B. False Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 37 Do you agree or disagree with SCOTUS’s decision freeing a KKK leader who taught violence against racial minorities because it was not speech that would produce “imminent lawless action.” (Brandenburg v Ohio, 1969) A. Agree B. Disagree Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 38 Freedom of Expression Symbolic Speech Burning of the American flag – United States v. Eichmann (1990), the Court declared the Flag Protection Act of 1989 unconstitutional Cross-burning – Ruled in 2003 as not protected under the First Amendment if it intended as a threat of violence Freedom of assembly – People can meet and express their views collectively and their association is protected as a form of political expression (gov’t can’t compel membership lists) Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 39 13  11/21/24 Freedom of Expression Obscenity and Pornography More restrictive in the 1970s Miller test (Miller v CA, 1973) – definition of obscenity must be based on local standards Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 40 Freedom of Expression Fighting Words and Offensive Speech Fighting words – Speech intended to incite violence – Can’t regulate unless there is a ”clear and present danger”. Offensive language not protected unless associated with political content Political correctness – language that demeans any group should be minimized to reduce negative societal impact – Led to adoption of speech codes on college campuses that were struck down by SCOTUS as violation of 1 st A. Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 41 Prior restraint is A. punishment for expression of ideas before the ideas are spoken or printed. B. punishment of expression which occurs prior to an election. C. All of the above Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 42 14  11/21/24 Freedom of Expression Freedom of the Press Prior Restraint Libel – New York Times v. Sullivan (1964), the court ruled public officials must show that a publication acted with “actual malice” to sue for libel Conflict btw press and the right to a fair trial – Public has a right to know v impact on jury selection Courts issue relatively few gag orders Change of venue th – 6 A’s promise of a ”public” trial means trials are open, and press can cover the trial Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 43 Freedom of Expression Censorship on the Internet Net Neutrality (procedural vs substantive outcome) Indecent materials – Courts struck down Communication Decency Act (1997) and Child Online Protection Act (2004). Free Speech Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 44 Do you support “net neutrality”, which is a policy that internet service providers should provide the same access to all sites regardless of content or source, or do you support ISPs granting access based on how much each user has paid for access? A. Support net neutrality B. Pay for access Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 45 15  11/21/24 Do you approve or disapprove of the CDC providing information to social media platforms to help them to take down sites spreading misinformation on COVID-19? A. Approve B. Disapprve Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 46 Do you approve or disapprove of Twitter’s decision to take down the site of former President Donald Trump in the wake of the January 6th Capitol riots? A. Approve B. Disapprove Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 47 Group Discussion Why is freedom of expression so important for our democracy? Should the social media platforms make any effort to take down misinformation? Should the government be involved in taking down misinformation, especially when its source is from an overseas enemy? Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 48 16  11/21/24 The Right to Bear Arms 2nd A: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Purpose was for states to have militias to keep federal government in check – Kept legal the easy formation of militias to address state and community level needs for armed support – Since the Civil War, 2 nd A has been interpreted by gun advocates as an individual right to keep and bear arms for any reason and of any type Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 49 The Right to Bear Arms Gun legislation at Fed level has been minimal National Firearms Act (1934) regulated sale of machine guns, short barreled guns, and silencers Gun Control Act (1968) prohibits sales to felons, mental health, and minors and dealers must maintain records of gun sales Firearm Owner Protection Act (1986) created a national gun registry Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 50 The Right to Bear Arms Gun legislation at Fed level has been minimal Brady Act (1993) created National Instant Criminal Background Check System and created waiting periods for background checks Assault Weapons Ban (1994-2004) Protection of Lawful Commerce in Arms Act (2005) provides legal protections against lawsuits for firearms manufacturers Bipartisan Safer Communities Act (2022) extends background checks for those under 21, & funding for red flag and crisis intervention Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 51 17  11/21/24 The Right to Bear Arms Why Is the Right to Bear Arms Valuable? Arguments in support of individual right – Sporting/hunting, self-defense, tyranny, fundamental right Arguments against – What about liberty interests of those killed or hurt by guns? Gun deaths decrease with more gun regulations. Gun rights are not absolute. Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 52 The Right to Bear Arms Judicial Decisions Bliss v Commonwealth (1822) carrying a concealed weapon was not protected by 2nd A U.S. v Cruikshank (1876) 2nd A only restricts Congress from acting, not the states Presser v IL (1886) state legislatures may enact laws recognizing militias that may parade with arms (or not) U.S. v Miller (1939) 2nd A does not include the right to bear a sawed-off shotgun Lewis v U.S. (1980) felons can be denied gun ownership Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 53 The Right to Bear Arms Judicial Decisions DC v Heller (2008) 2nd A protects individual right to own a gun unconnected to service in a militia for home self-defense McDonald v City of Chicago (2010) 14th A incorporates 2nd A right to keep and bear arms for self-defense Caetano v Mass (2016) 2nd A extends to all firearms, even those not in existence during the founding NY State Rifle and Pistol Assn v Bruen (2022) state must demonstrate that its regulation is consistent with the nation’s historical tradition of firearm regulation, invalidates NY’s concealed carry law Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 54 18  11/21/24 Do you agree or disagree that the 2nd Amendment right to bear arms includes the right to own and shoot a high powered semi-automatic weapon like the AK-47? A. Agree B. Disagree Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 55 The Rights of Criminal Defendants Why Are the Rights of Criminal Defendants Valuable? Limits government power Innocent until proven guilty Due process of the law Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 56 The Rights of Criminal Defendants Protection Against Unreasonable Searches and Seizures Court interpretation – home is private and police can only invade with a warrant based on evidence of a crime Exceptions: What’s a reasonable police search w/out a warrant? – Search after minor infraction allowed, even full body search – If going to be jailed, invasive search is allowed for jail security – Automobiles may be search if probable cause – But, Katz v. US: a warrant must obtained before phones can be tapped – But, Cell phone – warrant must be obtained – On the other hand, mandatory drug test allowed for public good/safety Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 57 19  11/21/24 The Rights of Criminal Defendants Protection Against Unreasonable Searches and Seizures The Exclusionary Rule a. Evidence seized illegally may not be used in court to obtain a federal conviction b. Mapp v. Ohio (1961) 4th A applied to states through 14th A. c. Good Faith exception: Roberts court ruled police conduct must be “deliberate” in violating the rights of the accused for evidence to be excluded Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 58 The Rights of Criminal Defendants Protection Against Self-Incrimination 5th A: no person “shall be compelled in any criminal case to be a witness against himself.” Miranda v. Arizona (1966) police had to inform suspects of their rights to remain silent and to have a lawyer present during questioning Applied to Feds in 2000 Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 59 The Rights of Criminal Defendants Right to Counsel 6th A: accused shall “have the assistance of counsel for his defense.” Crimes Act (1790) provides indigent defense in death penalty cases Johnson v. Zerbst (1938) extends to indigent def to federal criminal cases Gideon v Wainwright (1963) incorporated 6th A through 14th A. to states for court appointed attorney – Most state public defenders are overworked Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 60 20  11/21/24 Do you believe that the death penalty for capital murder is “cruel and unusual” punishment that violates the U.S. Constitution? A. Yes B. No Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 61 The Rights of Criminal Defendants Protection Against Cruel and Unusual Punishment Furman v GA (1972) ruled GA’s and TX’s death penalty laws were unconstitutional – States rewrite their death penalty statutes McClesky v Kemp (1987) death penalty upheld by Court even though its application disproportionately impacted Blacks Baze v. Rees (2008) – the Court upheld Kentucky’s lethal injection practice Waning public support – Cost of death penalty cases, DNA testing, access to drugs for lethal injections & changing PO Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 62 Is there an explicit “right to privacy” in the U.S. Constitution? A. Yes B. No Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 63 21  11/21/24 The Right to Privacy Reproductive Rights Griswold v. Connecticut (1965) – Implied in the 1st, 3rd, 4th, 5th, and 9th Roe v. Wade (1974) – Expands Griswold precedent adds 14th A to zone of privacy which protects women’s right to an abortion Politics of abortion rights and supreme court justice nominations Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 64 The Right to Privacy Reproductive Rights Dobbs v Jackson (2022) – Overturns Roe (1974), for a right to be protected by the Constitution, it must be either explicitly spelled out in the text or “deeply rooted in [our] history and tradition.” – Aftermath of Dobbs States may choose to outlaw or permit abortion Congress may also choose to make a federal law What about the future of the ”right to privacy” regarding birth control and LGBTQ rights Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 65 Access to Abortion in the U.S. Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 66 22  11/21/24 The Right to Privacy LGBTQ Rights Bowers v. Hardwick (1986) – States have a legitimate interest in regulating same- sex behavior Lawrence v. Texas (2003) overturns Bowers on privacy grounds rooted in 14th A ”equal protection” clause In subsequent cases, also adds Civil Rights Act’s prohibition of discrimination based on sex to 14th A to protect rights of LGB LGB rights are not based on right to privacy – QT+ is really in legal limbo Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 67 Citizenship and Civil Liberties The Constitution Suggests with Rights comes Basic Duties Vote Pay taxes Serve in the military Loyalty to country Serve on juries Barbour, Keeping the Republic, 11e © 2024 SAGE Publishing. 68 23