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Chapter 4

Chapter 4. Civil Liberties. Civil Liberties. Warm Up. Substantive civil liberties Procedural civil liberties Civil liberties NOT in the Bill of Rights 14 th Amendment and the nationalization of the BOR Selective incorporation. Civil Liberties.

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Chapter 4

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  1. Chapter 4 Civil Liberties

  2. Civil Liberties

  3. Warm Up • Substantive civil liberties • Procedural civil liberties • Civil liberties NOT in the Bill of Rights • 14th Amendment and the nationalization of the BOR • Selective incorporation

  4. Civil Liberties • Civil liberties: protections from improper government action • Substantive: limits on what the government can or cannot do • Procedural: rules regarding how the government must act

  5. Civil Liberties • Civil liberties: a check on the majority in order to allow unpopular minorities to speak and act as they desire • They are the national means to protecting the marketplace of ideas for a healthy democracy. • Civil liberties allow people to live according to their preferences, of their own choosing.

  6. A Brief History of the Bill of Rights

  7. Dual Citizenship Barron v. Baltimore (1833) Barron sued Baltimore for rendering his wharf useless on the grounds that the city had violated his 5th Amendment rights by taking his property without just compensation.

  8. Establishing the concept of dual citizenship, the Supreme Court ruled, in Barron v. Baltimore, that the 5th Amendment and the Bill of Rights only protected citizens from the national government. “The fifth amendment must be understood as restraining the power of the general government, not as applicable to the States.” --Chief Justice John Marshall, Barron v. Baltimore

  9. When the 14th Amendment was added to the Constitution in 1868, the question of the Bill of Rights’s applicability to the states arose again.

  10. Fourteenth Amendment “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

  11. Fourteenth Amendment “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

  12. On a case-by-case basis, the Supreme Court began recognizing a role for the national government to protect citizens from state governments. Selective incorporation: the process by which different protections in the Bill of Rights were incorporated into the 14th Amendment, thus guaranteeing citizens’ protection from state as well as national governments Selective Incorporation First to be incorporated: Eminent Domain – Chicago RR v City of Chi “takings clause”

  13. Incorporation Interlude In Palko v. Connecticut (1937), the Supreme Court refused to incorporate double jeopardy (5th Amendment) on the basis that it is not a right that is “implicit in the concept of ordered liberty.”

  14. A Brief History of the Bill of Rights • Bill of Rights: The first 10 amendments to the U.S. Constitution • Bill of Rights is an Antifederalist contribution. • Nationalizing the Bill of Rights (Incorporation) • Originally understood as applying only to the federal government • Fourteenth Amendment incorporates the Bill of Rights to the states

  15. The Bill of Rights

  16. A Brief History of the Bill of Rights

  17. The First Amendment and Freedom of Religion • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . • Establishment clause • Freedom from the state imposing any particular religion • Free exercise clause • Freedom to practice religion of choice without state interference

  18. The First Amendment and Freedom of Religion Establishment Clause • Prevents an official church • Government can aid religious institutions as long as it does not favor some over others. • Wall of Separation • Lemon test: • government involvement must have a secular purpose; • its effect is neither to advance nor to inhibit religion, and; • it does not entangle government and religious institutions in each other’s affairs.

  19. The First Amendment and Freedom of Religion Free Exercise Clause • Can believe and practice religion of one’s choice • Can hold no religious beliefs without consequence • As long as it does not harm others in the name of religion (or lack thereof), it is protected.

  20. Separation between Church and State

  21. Separation between Church and State

  22. Freedom of Speech and the Press • Congress shall make no law . . . abridging the freedom of speech, or of the press . . . • Democracy requires a marketplace of ideas. • But are there limits? • In short, the Court has said “yes,” but there is a lot of latitude. • The next slide provides an example.

  23. The First Amendment and Freedomof Speech and the Press

  24. Freedom of Speech • Political Speech • Highly protected by strict scrutiny, legal standards • Must establish “compelling reasons” and narrowly defined to limit • Includes actions expressing political ideas • Ex: financial contributions to political causes, protests • Protected unless leads to immediate harm (clear and present danger) • There are a few time and place limitations. • Ex: fire in theatre; yelling at night in a neighborhood

  25. Freedom of the Press

  26. Freedom of the Press • The government cannot prevent the print media from publishing what it desires. • Press can be sued for: • negligently publishing a lie that harms a public figure. • libelous writing about issues that are not of public concern. • The rise of individuals gathering and reporting news complicates these issues. • WikiLeaks, anonymous, and online bloggers are more difficult to contain, reprimand, or otherwise penalize.

  27. Pornography • Pornography and obscenity are difficult to define, thus hard to regulate. • Must be kept out of reach or sight of children • Obviously, Internet is not especially compliant • Child pornography is banned; harmful to children involved. • Involves several crimes unrelated to speech

  28. Fighting Words and Hate Speech

  29. Fighting Words and Hate Speech • Fighting words are hard to ban because the target of them always has the option of ignoring them. • Likewise, hate speech is difficult to ban because it is the expression of a political idea. • When words leave the realm of thought and move into direct and immediate action, their speakers can be held accountable.

  30. Commercial Speech • Commercial speech is not nearly as protected as political speech. • Typically, a government need only have a rational reason to ban an advertisement. • People can face consequences for perfectly legal speech if employers deem it problematic. • Civil liberties protect the right to express views. • There is NO right to be employed or supported by employer, public, or others who disagree.

  31. The Second Amendment andthe Right to Bear Arms

  32. The Right to Bear Arms • The Second Amendment applies to states and localities. • Banning the possession of a firearm in the home is not possible. • States and local governments can place different boundaries around waiting periods, registration, types of arms allowed, and other aspects related to access.

  33. Rights of the Criminally Accused

  34. Rights of the Criminally Accused • Due process: the right of every citizen against arbitrary action by national or state government • Procedural safeguards intended to protect the innocent by guaranteeing a fair and just process • Fourth Amendment and search and seizure • Exclusionary rule: the ability of courts to exclude illegally obtained evidence

  35. The Fifth Amendment

  36. Rights of the Criminally Accused Fifth Amendment • Grand juries • Double jeopardy • Self-incrimination • Eminent domain

  37. Rights of the Criminally Accused • Sixth Amendment • Right to counsel • Anyone facing imprisonment has the right to an attorney if they cannot afford one (public defender). • Public defender policies vary by state. • Some full-time employees of the state • Some by contract/case • Some require pro bono hours from all attorneys in the state.

  38. Rights of the Criminally Accused • Eighth Amendment • Prohibits: • excessive bail • excessive fines • cruel and unusual punishment • The death penalty is allowed, but it must follow due process carefully. • States decide whether to allow the death penalty. • If allowed, states determine execution method(s).

  39. The Eighth Amendment and Crueland Unusual Punishment

  40. Who Is in Prison? CHAPTER 4

  41. Who Is in Prison? FOREIGN CITIZENS 6% UNDER 18 0.2% PUBLIC-ORDER OFFENDERS 9% PROPERTY OFFENDERS 19% OTHER 8% HISPANIC 22% FEMALE 7% DRUG OFFENDERS 19% WHITE 32% VIOLENT OFFENDERS 52% BLACK 38% SOURCES: Bureau of Justice Statistics, "Prisoners in 2010" (2011); Roy Walmsley, "World Prison Population List,” Ninth Edition (2011), International Centre for Prison Studies, School of Law, King's College, London.

  42. Incarceration Rates Around the World Per 100,000 of the national population UNITED STATES 743 RUSSIAN FEDERATION 568 RWANDA 595 SOUTH AFRICA 316 ISRAEL 319 BRAZIL 253 IRAN 291 MEXICO 200 JAPAN 58 CHINA 122 NIGERIA 31 FRANCE 96 MYANMAR 120 INDIA 32 SWITZERLAND 79 SOURCES: Bureau of Justice Statistics, "Prisoners in 2010" (2011); Roy Walmsley, "World Prison Population List,” Ninth Edition (2011), International Centre for Prison Studies, School of Law, King's College, London.

  43. A Right to Privacy Online?

  44. Right to Privacy • Right to privacy is not explicitly written in the Constitution, but has been interpreted in the Fourth Amendment, facilitated by the Ninth • Birth control • Abortion • Homosexuality • The right to die

  45. Thinking Critically about theFuture of Civil Liberties

  46. Public Opinion Poll Do you support limitations on some civil liberties (such as freedom of speech and search and seizures), if limits on these liberties may decrease the potential of terrorist threat or increase security? • Strongly support • Support • Oppose • Strongly oppose

  47. Public Opinion Poll Should the U.S. Congress pass legislation that makes it a crime to burn the American flag? • Yes • No

  48. Public Opinion Poll Should it be legal to post personal information (address, phone numbers, where children attend school, etc.) about individuals, without their permission, on Facebook, Twitter, YouTube and other highly popular websites? • Yes • No

  49. Public Opinion Poll Should law enforcement agencies (anything from the FBI to campus police) collect user ID and information about people posting threatening statements or openly discussing any kind of illegal activity online (Facebook, Twitter or other)? • Yes • No

  50. Public Opinion Poll Should a teacher in a public school be allowed to begin his or her class with a prayer? • Yes • No

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