Civil liberties and Due Process

1. Civil liberties and Due Process

2. Introduction • Limited government means more than specific enumerated powers, separation of powers, checks and balances, and federalism. • It also means specific guarantees that government will not infringe upon our rights and will protect them against abuse. • Tradition of Bill of Rights traces back to Magna Carta 1216 and British Bill of Rights 1689, as well as state constitutions. • More recently, UN Universal Declaration of Human Rights 1948 (but Supreme Court says it is not legally binding on US)

3. Bill of Rights • Originally no US bill of rights although state constitutions had them. • Demanded by antifederalists like Patrick Henry during ratification debates. • Federalists (supporters of Constitution) argued it was unnecessary but as a compromise agreed to add one. • First ten amendments, written by James Madison added during first Congress early 1790s.

4. Negative Civil Liberties • Prohibitions on government actions that infringe on our natural rights. • Generally, contain the words “no” or “not.” • Look at the Bill of Rights. Which ones are negative civil liberties?

5. Discussion • Note that the Bill of Rights states these rights as absolutes—no ifs, ands, or buts. • Can you think of examples of justifiable government actions that interfere with our rights? Consider, for example, the 4th Amendment

6. My Answer • The USA PATRIOT Act allows for some warrantless searches and wiretaps to fight the war on terror. • Generally, during wartime and national emergencies we see less protections for our civil liberties. • Civil liberties must be balanced against other legitimate functions of government, such as national security and public safety. • Does that give government officials too much discretion?

7. Positive Civil Liberties • Constitutional rights that demand action by the federal government to protect our liberties. • Look at Bill of Rights. Which ones? • In addition, key provisions of the 14th Amendment, while stated in the negative, as prohibitions against state violations of rights, are interpreted to require the federal government to intervene.

8. Due Process • Fundamental fairness in formal legal proceedings to protect against arbitrary denial of life, liberty, and property. • Applies not just to court proceedings but all government actions. • Do you have due process at school against arbitrary actions?

9. Due Process Rights in Main Body of the Constitution • Article I section 9— • Right of Habeas Corpus protects right to liberty against unjust imprisonment • No Bills of Attainder—legislation that declares a political opponent to be a criminal • No ex post facto laws—declaring past legal actions now to be illegal • All of these address tyrannical actions of British monarchs.

10. Protections Against Unreasonable Search and Seizure • Where in Bill of Rights? • What does a lawful police search require? • May the police search a car without a warrant? • May the police search everyone in car they have stopped, or only the driver?

11. Answers • 4th amendment • Probable cause (some evidence of a crime beyond mere suspicion); a detailed written warrant specifying what police are looking for and where; signed by a judge.

12. Question • Is evidence not listed on the warrant but obtained in a warranted search admissible in court?

13. Answer • No in general. Mapp v. Ohio 1961 • This is called the Exclusionary rule. Warrants don’t allow police to sift through everything you own to see what they can pin on you. • But see United States v. Leon 1984 “good faith” exception. If police are conducting a warranted search in good faith and stumble upon evidence of another crime, it may be used.

14. Others In Bill of Rights • Amendment V: due process, no self incrimination, no double jeopardy, just compensation for taking private property • Amendment VI: trial by jury in criminal cases, right to defend oneself in court • Amendment VII: trial by jury in law suits, and common law (established legal system) • Amendment VIII: against cruel and unusual punishment

15. Discussion • Miranda v. Arizona 1966—”You have the right to remain silent” must be said when arresting a suspect to protect the right against self incrimination. • Is that enough? Watch this video and you decide: https://www.youtube.com/watch?v=WkLHXKHb1Vc • What techniques do police use to legally coerce a confession?

16. Discussion • Rodney King beating by LA police in 1991 ignited the worst urban riots in US history. • Watch first 4 minutes https://vault.fbi.gov/rodney-king/video/rodney-king-video • Police were found not guilty for beating in first trial, but found guilty in second trial, • Did that violate prohibition against double jeopardy?

17. Answer • They were found not guilty of assault under California law but tried again in federal court for violating King’s civil rights and found guilty. • This is called the “dual sovereign” doctrine. Some claim this is a loophole that could be challenged in the Supreme Court. • What about the OJ Simpson cases? • First trial was in criminal court • Second trial was a civil lawsuit brought by Goldman’s parents.

18. Death Penalty • Is death penalty “cruel and unusual punishment” • Other nations consider it torture and won’t extradite accused persons to US for capital crimes • Lethal injection has failed on several occasions causing very painful deaths lasting 2 hours • Bucklew v. Precythe 2019 Supreme Court refused to overturn death penalty by lethal injection

19. Review • Civil liberties found in the Bill of Rights and elsewhere are constitutional protections of individual rights that protect us from the abuse of power. • Due process, the right to be treated fairly by the police and by courts of law, is a fundamental set of civil liberties found in Amendments 2-8. • Controversies arise in the application of these civil liberties to particular cases, and the need to balance against other constitutional principles, requiring the Supreme Court to interpret them.