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CIVIL LIBERTIES & CIVIL RIGHTS. What’s the difference? (Protection from govt. versus protection of govt ; Liberty versus equality) THREE THEMES a.) gradual nationalization b.) Federal Courts as major policymakers c.) Nothing is absolute. BILL OF RIGHTS .
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CIVIL LIBERTIES & CIVIL RIGHTS What’s the difference? (Protection from govt. versus protection ofgovt; Liberty versus equality) THREE THEMESa.) gradual nationalizationb.) Federal Courts as major policymakers c.) Nothing is absolute
BILL OF RIGHTS 1.) political freedoms: Amendments I (speech, press, religion, assembly, petition) and II (bear arms) 2.) rights of the accused: IV search & seizure, V self-incrim., VI speedy trial/impartial jury/counsel/witnesses, VIII no exc. Bail or C&U punishment 3.) property rights III (quartering) and V (takings clause) WHY SO MUCH EMPHASIS ON RIGHTS OF THE ACCUSED?
DOES THE BoR APPLY TO THE STATES? ORIGINAL ANSWER: “No” (Barron vs. Baltimore, 1833) THE CIVIL WAR AMENDMENTS: 13th (slavery), 15th (voting rights) and the all-important 14th ----Three important but ambiguous phrases in 14tha.) due process of lawb.) privileges and immunitiesc.) equal protection
DOES THE BoR APPLY TO THE STATES Slaughterhouse Cases (1873): answer still “no” Gradual incorporation of BoR into state constitutions----Started with political freedoms (1920s and 1930s)----Continued with rights of the accused (1950s and 1960s) Now: mostly ‘Yes’ (3 exceptions)
SUPREME COURT EVOLVED RULES for deciding CL cases FREEDOM OF SPEECH RESTRICTIONS --Schenck v. US (1919): “clear and present danger” – makes freedom of speech partly contingent on external conditions --”Fighting words” -- Slander/libel --- doesn’t apply to political or even public figures--Does symbolic speech count too?
FREEDOM OF SPEECH AND PRESS OBSCENITY--1957 Roth v. US: “community standards” and “prurient interest” --1973 Miller v. California: community standards, need for specifics, lacking in other value PRESS ISSUES--No “prior restraint” --Intra-BoR conflict: what if freedom of the press interferes with rights to fair trial and confront witnesses?
FREEDOM OF RELIGION More intra-BoR conflict: between “establishment” clause and “free exercise” clause Frequently recurring issues1.) Govt. aid to religious schools and charities: the Lemon v. Kurzman test (1971) 2.) School prayer and Bible reading: Engel v. Vitale (1962) 3.) Religious displays on govt. property:Commandments, Nativity Scenes, etc. 4.) Can otherwise illegal activities be legalized as part of religious practice? “Compelling govt interest/least restrictive manner” standard replaced by “neutrality” standard
SECOND, FOURTH, and FIFTH AMENDMENTS What does the 2nd Amendment really mean? DC v. Heller (2008) Fourth Amendment: The Exclusionary Rule (applied to Feds in 1914, states in 1961 w/Mapp v. Ohio) Fifth Amendment: self-incrimination (Miranda v. Arizona 1966); what double jeopardy means (and doesn’t mean)
Civil Liberties: 6th thru 9th Amendments 6th AmendmentEvolution of right to counsel, culminating in Gideon v. Wainwright (1963) 8th Amendment – is the death penalty “cruel and unusual”?No executions took place between 1972-1976; Gregg v. Georgia created guidelines for valid death penalty laws Right to privacy: where is it? “penumbras” of 3rd, 4th, 5th, & 9th AmendmentsGriswold v. Connecticut (1965)Roe v. Wade (1973); Lawrence v. Texas (2003)
