Civil Liberties Lecture Notes PDF

BY THE PEOPLE: Debating American Government James A. Morone and Rogan Kersh Chapter: Civil Liberties © 2023 Oxford University Pres  The Rise of Civil Liberties (1 of 2) Civil rights and civil liberties...

BY THE PEOPLE: Debating American Government James A. Morone and Rogan Kersh Chapter: Civil Liberties © 2023 Oxford University Pres  The Rise of Civil Liberties (1 of 2) Civil rights and civil liberties – Civil liberties: limits placed on government to allow individuals to exercise their personal freedoms – Civil rights: freedom to participate in the full life of the community (to vote, use public facilities, and exercise equal economic opportunity) – The battle for civil rights led to more robust civil liberties © 2023 Oxford University Pres  The Rise of Civil Liberties (2 of 2) Purpose – “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials” (Supreme Court, 1943) Slow rise – Bill of Rights originally applied only to the national government – Fourteenth Amendment “No state shall...deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.” Selective incorporation: extending protections from the Bill of Rights to the state governments, one right at a time. © 2023 Oxford University Pres Incorporation of the Bill of Rights into the Fourteenth Amendment. THE BILL OF RIGHTS YEAR KEY CASE I. Free exercise of religion* 1940 Cantwell v. Connecticut No establishment of religion 1947 Everson v. Board of Education Free press 1931 Near v. Minnesota** Free speech 1925 Gitlow v. New York Right to peaceful assembly 1937 De Jonge v. Oregon Right to petition government 1963 NAACP v. Button II. Right to keep and bear arms 2010 McDonald v. Chicago III. No quartering of soldiers Not incorporated IV. No unreasonable search and seizure 1949 Wolf v. Colorado No search and seizure without a warrant 1961 Mapp v. Ohio V. Right to grand jury indictment Not incorporated No double jeopardy 1969 Benton v. Maryland No forced confession 1964 Escobedo v. Illinois Right to remain silent 1966 Miranda v. Arizona No seizure of property without compensation 1897 Chicago, Burlington, and Quincy Railroad Co. v. City of Chicago © 2023 Oxford University Pres Incorporation of the Bill of Rights into the Fourteenth Amendment THE BILL OF RIGHTS YEAR KEY CASE VI. Right to public trial 1948 In re Oliver Right to speedy trial 1967 Klopfer v. North Carolina Right to trial by impartial jury 1966 Parker v. Gladden Right to confront witnesses 1965 Pointer v. Texas Right to compel supportive witnesses to appear 1967 Washington v. Texas Right to counsel in capital punishment cases 1932 Powell v. Alabama Right to counsel in any criminal trial 1963 Gideon v. Wainwright VII. Right to jury trial in civil cases Not incorporated VIII. No excessive bail Not incorporated No excessive fines imposed 2019 Timbs v. Indiana No cruel and unusual punishment 1962 Robinson v. California IX. Rights not limited to rights listed in the first eight Not relevant to incorporation amendments X. Powers not delegated to the national government reserved to Not relevant to incorporation the states and the people * Notice that First Amendment rights were incorporated early in the process. Most protections for those accused of crimes were applied between 1962 and 1968. ** Boldfaced cases are discussed in this chapter. © 2023 Oxford University Pres  Privacy (1 of 3) Penumbras and emanations – Penumbras: “the shadows” of the amendments give people a right to make their own choices free from government interference – Emanations: guarantees that flow out from other amendments, such as the Third, were designed to protect privacy – Ninth Amendment declares that other rights exist besides the ones mentioned in the Constitution that are retained by the people – Griswold v. Connecticut (1965) was one of the first © 2023 Oxford University Pres  Privacy (2 of 3) Roe v. Wade (1973) – Drew on the right to privacy – Struck down a Texas law banning abortion within the first three months of pregnancy Planned Parenthood v. Casey (1992) – Replaced Roe’s judicial rule with a judicial standard Judicial rule: hard-and-fast boundaries between what is lawful and not Judicial standard: guiding principle that help governments make judgment calls © 2023 Oxford University Pres  Privacy (3 of 3) Sex between consenting adults – Right to privacy extended to same-sex couples – Lawrence v. Texas (2003) Clashing principles © 2023 Oxford University Pres  Freedom of Religion (1 of 3) First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” There are two primary clauses relating to freedom of religion: – Establishment clause – Free practice (exercise) clause © 2023 Oxford University Pres  Freedom of Religion (2 of 3) The Establishment Clause – Government may not establish an official religion – Lemon v. Kurtzman (1971) Secular purpose Neither advance nor inhibit religion Must not excessively entangle government in religion – Two Perspectives Strict separation: strict principles articulated in the Lemon test for judging whether a law establishes a religion Accommodation: government does not violate the establishment clause as long as it does not confer an advantage to some religions over others © 2023 Oxford University Pres  Freedom of Religion (3 of 3) Free Exercise of Religion – Sherbert or balancing test Government cannot impose a significant burden on an individual’s ability to exercise their faith Did the government have a compelling interest for imposing the burden? – Employment Division v. Smith Neutrality test If law applied to everyone and does not target a religious group, the Court will permit it – Religious Freedom Restoration Act of 1993 (RFRA) Required federal and state governments to use Sherbert balancing test Congress lacked constitutional authority to order balancing test New Congressional Act and 21 state RFRA laws passed, restoring Sherbert balancing test © 2023 Oxford University Pres  Freedom of Speech (1 of 3) A preferred position – Of all civil liberties, free speech holds a preferred position (i.e., when another right conflicts with the right to free speech, generally the right to free speech will be protected) Political speech – Clear and present danger Charles Schenck guilty of violating Espionage Act Pamphlets urged men not to enlist for World War I Court doctrine that permits restrictions of free speech if officials believe that the speech will lead to a prohibited action such as violence or terrorism – The clear and present danger test stood for over 50 years and was rewritten in 1969, saying that a state may not interfere with speech unless the speech “incites imminent lawless action” and is likely to actually produce such action. © 2023 Oxford University Pres  Freedom of Speech (2 of 3) Symbolic speech – Act, rather than actual speech, used to demonstrate a point of view – May not intimidate others Limits to free speech: fighting words – “Personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction” (Supreme Court, 1942) – Expressions inherently likely to provoke violent reactions are not necessarily protected by the First © 2023 Oxford University Pres  Freedom of Speech (3 of 3) Limited protections: student speech – Students “do not shed their constitutional right to freedom of speech or expression at the schoolhouse gate” – Balance student rights with the schools’ education mission – Students less protection than adults © 2023 Oxford University Pres  Freedom of the Press (1 of 3) Freedom of the press follows most of the rules as freedom of speech and shares “preferred position” Prior restraint – Legal effort to stop speech before it occurs (in effect, censorship) – Shift from print to digital media has changed the question from whether prior restraint should be permitted to whether it is possible, although in at least some cases it might be © 2023 Oxford University Pres  Freedom of the Press (2 of 3) Obscenity – Obscenity is not a form of protected speech, although its interpretation is often criticized as being somewhat subjective – The Miller test for obscenity holds that speech is not protected if it has all three of the following characteristics: "The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest" "It depicts sexual conduct in a patently offensive way" "The work lacks serious literary, artistic, political, or scientific value.” – Court flatly forbids child pornography © 2023 Oxford University Pres  Freedom of the Press (3 of 3) Libel – Publishing falsehoods about a person is not protected, nor is slander, which is speaking falsehoods about a person – Courts have made it difficult for public officials or celebrities to win libel or slander cases; they must prove statements were made with malicious intent or “a reckless disregard for the truth” – In U.S., burden of proof is on the official seeking to demonstrate libel against themselves In English law, burden is on the writers to prove the truth about the speech © 2023 Oxford University Pres  The Right to Bear Arms (1 of 2) Right to bear arms is found in the Second Amendment – “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.” On one hand: amendment simply protects colonial-era militias On another: amendment guarantees the right to own weapons © 2023 Oxford University Pres  The Right to Bear Arms (2 of 2) A relic of the Revolution? – Protected militias – Citizens volunteered for service in local militias that defended nation – Forbids national government from disarming local militias The palladium of all liberties? – Many see as the most important right of all – The one right that allows rights to exist at all – Supreme Court moving to defend gun rights – Second Amendment incorporated in 2010 © 2023 Oxford University Pres  The Rights of the Accused (1 of 4) The rights that protect people accused of crimes are found in the Fourth, Fifth, Sixth, and Eighth Amendments Thirty-one different rights for those who face criminal charges © 2023 Oxford University Pres  The Rights of the Accused (2 of 4) The Fourth Amendment: search and seizure – “The right to be left alone” – Protects citizens from unlawful searches and obtaining of evidence. There must be probable cause, typically demonstrated through a warrant, for a search to occur. – Exclusionary rule: evidence obtained in an illegal search may not be introduced in a trial Based in the Mapp v. Ohio (1961) decision © 2023 Oxford University Pres When are search warrants required? © 2023 Oxford University Pres  The Rights of the Accused (3 of 4) The Fifth Amendment: rights at trials – Grand jury: a jury that decides whether there is enough evidence for the case to go to trial – Double jeopardy: an individual cannot be tried twice for the same offense – Miranda warnings: set of rights that police officers are required to inform suspects of, including the right to remain silent The Sixth Amendment: the right to counsel – Guarantees a speedy and public trial by an impartial jury – Lawyers must be provided for those who cannot afford them © 2023 Oxford University Pres  The Rights of the Accused (4 of 4) The Eighth Amendment: fines and death penalty – Proponents argue that some crimes are so terrible that justice demands capital punishment – Opponents respond that killing people is immoral and that no government should be given the power to “play God” © 2023 Oxford University Pres Map of state executions in the United States. The federal government has executed thirteen prisoners in the past five years. © 2023 Oxford University Pres  Terrorism, Noncitizens, and Civil Liberties (1 of 2) USA Patriot Act: sought to enhance national security, passed in the aftermath of September 11, 2001 terrorist attacks Contacts with forbidden groups – Rules enhanced that bar Americans from offering aid to terrorist organizations © 2023 Oxford University Pres  Terrorism, Noncitizens, and Civil Liberties (2 of 2) Domestic terrorism: use of violent criminal acts by American citizens to advance ideological goals, often aimed at minority groups The rights of noncitizens – Most basic Constitutional rights extended to noncitizens – Immigration laws apply to noncitizens, which has different procedural standards and more restricted rights © 2023 Oxford University Pres