Civil Liberties

1. Civil Liberties Freedom from govt interference Limits on what govt can do No’s Bill of Rights – National Govt

2. Incorporation of Bill of Rights • 14th Amendment “due process” clause • Due process = Bill of Rts ? • Due process = some of Bill of Rts ? • Due process have no relation to Bill of Rts? • Selective incorporation • most of Bill of Rts protections binding on states • Incremental jud’l decisions – Table 5.1

3. Privacy • not specifically mentioned in the Constitution • Question of how to define • Warren & Brandeis HLR (1890) “right to be let alone” • Illustrates the non-absolute nature of “rights”

4. Privacy • implied in or derived from other rights • 1st, 3rd, 4th, 5th, and 9th amendments create a penumbra – Justice Douglas • 14th liberty interest • two strands of constitutional interpretation re. privacy • 4th amendment protection against “unreasonable search and seizure” • reproductive privacy

5. Katz v. United States (1967) • “Fourth Amendment cannot be translated into a general right to privacy” • “Virtually every governmental action interferes with privacy to some degree.”

6. Katz v. United States (1967) • “Reasonable expectation of privacy” – 2 part test: • person have exhibited an actual (subjective) expectation of privacy • the expectation be one that society is prepared to recognize as ‘reasonable’ (objective)

7. Drug Testing in Public Schools • Veronia School District v. Acton (1995) • Oregon • drug testing of student athletes upheld • 6-3 opinion • purpose of testing: • prevent student athletes from using drugs • protect their health and safety • provide drug users with assistance • Court upheld suspicionless drug testing of athletes

8. Bd of Ed of Pottawatomie County v. Earls (2002) • testing of all middle and high school students involved in extracurricular activities • Oklahoma • choir member • 5-4 decision (Breyer – key to majority) • school’s custodial responsibility and authority -> limited expectation of privacy • intrusion/invasiveness of procedure – controlled • reasonable

9. Reproductive Privacy • Griswold v. Connecticut (1965) • struck down a CT law that prohibited the prescription or use of contraceptives as an infringement on marital privacy • 7-2 decision but disagreement as to constitutional basis • Douglas – penumbra created “zones of privacy” • 9th Amendment protects rights not expressly mentioned • “liberty” of 14th amendment

10. Eisenstadt v. Baird (1972) • MA law made it a felony to give anyone other than a married person contraceptive medicines or devices • established that privacy was right of individual • “Equal protection” of 14th Amend

11. Roe v. Wade (1973) • TX statute made it a felony for anyone to perform an abortion except to save the life of the woman • 7-2 decision ruled unconstitutional • right to privacy encompasses a woman’s decision to terminate a pregnancy • 14th Amend – lower court said 9th

12. Roe v. Wade (1973) • not absolute right – state has interest in • safeguarding health – 2nd trimester • protecting potential life – 3rd trimester

13. Webster v. Reproductive Health Services (1989) • Missouri statute • Preamble – life begins at conception • Viability tests • Prohibitions on public funds for counseling

14. Webster v. Reproductive Health Services (1989) • 5-4 decision • 4 justices – Rehnquist, White, Scalia & Kennedy would have reversed Roe • 4 justices – Blackmun, Brennan, Marshall & Stevens would have upheld Roe • O’Connor – upheld providions but not overturn Roe

15. Planned Parenthood of SE PA v. Casey (1992) • 5-4 decision • O’Connor – abolished trimester and established “undue burden” • Only part of PA law ruled unconstitutional was notification of spouse • Legal “gray”

16. Stenberg v. Carhart (2000) • Nebraska “late term” or “partial birth” abortion prohibition was vague and unenforceable • 5-4 decision