April, 2012

1. April, 2012 Objective: Students will identify civil liberties in the Constitution and Bill of Rights guaranteed to Americans in order to justify if/when the government can limit these liberties. Homework: - Work on your Unit 5 PowerPoint Project! - AP Exam Content Questions due May 1 - AP Exam = May 15

2. Confirmation Hearing: - Nominee testifies in front of the Senate Judiciary Committee - Judicial candidate is screened on their views, qualifications, and sometimes personal matters Clarence Thomas Controversy: - At the end of Thomas’ hearing, Anita Hill accused him of sexual harassment - 2-week media circus followed  he was eventually confirmed 52-48 165. Describe what happens at the confirmation hearing. Why did the Senate nearly vote against the confirmation of Clarence Thomas?

3. Affirmative Action Op-Ed

4. Civil Liberties

5. Civil Rights vs. Civil Liberties Civil Rights: - what the govt. must do to ensure equal protection and freedom from discrimination - govt. helps people who have history of facing discrimination Civil Liberties: - specifies what the govt. cannotdo to Americans

6. Specific Liberties Listed in the OriginalConstitution writ of habeas corpusSHALL NOT BE SUSPENDED suspect must be allowed to challenge their arrest/detention in a public court NO bills of attainder a legislature (Congress) can’t make a statute declaring a person guilty NOex post facto laws the govt. can’tpunish you for breaking a law before the law existed Defendants must receive jury trial (federal incidents) Ban on the govt. granting titles of nobility Ban on mandating religious oaths for holding federal office

7. Political Cartoon Analysis

8. The Bill of Rights– Then and Now Civil Liberties Definition: personal freedoms that are protected for all individuals Typically involve restraining the govt.’s actions against individuals The Bill of Rights and the States: The Bill of Rights is the first 10 amendments Written to restrict the national government Since 1925, most “rights” are “incorporated” into state and local laws

9. The Bill of Rights Origins - colonists’ fear of a tyrannical government Federalists agreed to amend the Constitution to include a Bill of Rights after ratification This placed limitations on the government and thus protected citizens’ civil liberties Appeased the Anti-Federalists

10. Basics of the Bill of Rights Write down info that is a REVIEW to you. Write down info that is NEW to you.

11. Anti-federalists vs. Federalists Anti-federalists: #84 - “The most important article in any Constitution may therefore be repealed, even without a legislative act. Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought.” Federalist: #84 - “…they allege two things; one is, that though the constitution of New-York has no bill of rights… yet it contains in the body of it various provisions in favour of particular privileges and rights, which in substance amount to the same thing…” - “…For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

12. A Conflict of Liberties Video Questions: 1. Did Dr. Sheppard receive a fair trial? 2. What argument did Sheppard’s lawyer make to the SCOTUS? Do you agree? 3. In the current media age, with its all-news channels and social media, can any high-profile defendant receive a fair trial? 4. What measures can be taken to guarantee high-profile defendants a fair trial?

13. The Incorporation Doctrine Should the Bill of Rights be Applied to the States or only the Federal Government? What does “incorporation” mean? to unite or merge with something already in existence

14. Is Gun Ownership a “Fundamental Right”? * Recent case: McDonald v. Chicago (2010) * Question before the court: Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment's Privileges and Immunities or Due Process clauses and thereby made applicable to the states?

15. The Bill of Rights & State Governments The original Bill of Rights did not apply to the states! The Fourteenth Amendment (1868) eventually changes state responsibilities towards the Bill of Rights Incorporation theory: the view that most protections of the Bill of Rights applies to state governments through the Fourteenth Amendment’s “due process clause” Selective Incorporation Theory vs. Total Incorporation Theory

16. Constitutional Convention Recap * Our Federal government: A. national govt. with specific enumerated powers B. state govt’s. retained powers not delegated to the national govt. * Bill of Rights wording = prevented it from being applied to the states - a compromise between the states and newly created federal govt. prevent a unitary system

17. Text of the First Amendment Congress shall make no law (1)respecting an establishment of religion, or (2)prohibiting the free exercise thereof; or (3)abridging the freedom of speech, or of (4)the press; or (5)the right of the people peaceably to assemble, and (6)to petition the Government for a redress of grievances.

18. Judicial Interpretation Before the Civil War (Before the 14th Amendment) * Barron v. Baltimore (1833): Does the Fifth Amendment (eminent domain) deny the states as well as the national government the right to take private property for public use without justly compensating the property's owner? * Court’s Decision: - Bill of Rights only applied to NATIONAL govt. ONLY!

19. 5th Amendment “No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation ” * Intent Limit the powers of the NATIONAL GOVERNMENT

20. The 14th Amendment is Ratified (1868) Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

21. The Power of the 14th Amendment Due Process Clause: Substantive Due Process vs. Procedural Due Process Equal Protection Clause: “When can states treat people differently?”

22. The US Supreme Court declared that the 14th Amendment forces the State & Local Govts. to incorporate (include) the Bill of Rights.

23. Interpreting the Meaning of the 14th Amendment “…nor shall any STATE deprive (remove) 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.” 1. Incorporation: States must provide due process rights to its citizens—includes providing Bill of Rights protections!! 2. Equal Protection Clause: States must treat its citizens equally!!

24. Changes Come… * Gitlow v. New York (1925): - Gitlow accused of inciting a forceful overthrow of the govt. - Court decided for the first time that parts of the Bill of Rights apply to the states - Court stated that freedom of speech and of the press “are among the fundamental personal rights and liberties protected by the due process clause of the 14th Amendment from impairment by the states.” - Doctrine of Selective Incorporation begins!

25. Gitlow v New York (1925) “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress—are among the fundamental personal rights and “liberties”protected by the due process clause of the Fourteenth Amendment from impairment by the states.”

26. Selective Incorporation Becomes Precedent * Palko v Connecticut (1937): - rejected total incorporation - established the standard to guide the process of selective incorporation: defined “fundamental” rights “found to be implicit in the concept of ordered liberty [and] so rooted in the traditions and consciences of our people as to be ranked as fundamental” would be applied (incorporated) to the states - What is a “fundamental” right?

27. Does the Entire Bill of Rights Apply to the States? * Total Incorporation vs. Selective Incorporation: If we had total incorporation: A. How would we apply the Seventh Amendment? state court systems would be required to have a trial by jury in civil suits where the amount in dispute exceeded 20 dollars  Can you imagine the traffic jam!?! B. How would we apply the Tenth Amendment? (“…powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people”) - applying the 10th to the states seems illogical

28. The Supreme Court Defines “Fundamental Rights” * A “fundamental right” = “[something] deeply rooted in nation’s history and foundation.” - Duncan v. Louisiana, 1968 On a separate sheet of paper: - Based upon the legal definition above, write down a “fundamental right” you feel should be labeled as FUNDAMENTAL thus this liberty is something the national, state, local government should not be able to deny - Justify your response!

29. Is Privacy a Constitutionally Protected Liberty?

30. Background Info: Privacy Rights? * There is no explicit Constitutional right to privacy  it is an interpretation by the Supreme Court drawn from the 1st, 3rd, 4th, 5th, 9th, 14th Amendments * The right was established in 1965 in Griswold v. Connecticut

31. Griswold v. Connecticut (1965) * Justice William O. Douglas (writing for the majority in Griswold) ruled that the right was to be found in “…the "penumbras“ (shadows) formed by Emanations (things sent out) from those guarantees that help give them substance…” “The spirit” of the liberties in Amendments1,3,4,5,9,14 provide the Constitutional rationale for privacy rights Constitutional Liberties: Using the opinion, summarize how each of these amendments justify privacy 1st: 3rd: 4th: 5th: 9th: 14th:

32. Privacy & Abortion Rights * Roe v. Wade(1973) held that governments could not prohibit abortions B/C this ban violates a woman’s right to privacy - Since 1973, the Supreme Court has limited abortion rights… * Planned Parenthood of PA v. Casey (1992): upheld Roe (abortion still allowed), but… upheld PA laws that limited abortion rights: - pre-abortion counseling is OK - a 24-hour waiting period is OK - parental/judicial permission for girls under 18 is OK

33. DefiningDue Process Procedural Due Process vs. Substantive Due Process

34. Due Process Due Process: Constitutional principle; federal and state govt. can’t deprive an individual of “life, liberty, or property” by unfair or unreasonable actions. * Source: (1)5th & 14th Amendments specifically mention “Due Process” (2) Bill of Rights & Supreme Court Cases specify our specific due process guarantees

35. Procedural vs. Substantive Due Process ProceduralDue Process: procedures the govt. must follow before taking away a persons “life, liberty, and property” - “specifically listed liberties” govt. can’t deny - Some examples: - Habeas Corpus rights - trial by jury - legal counsel - eminent domain - Not Very Controversial!

36. Procedural vs. Substantive Due Process Substantive Due Process: UNSPECIFIED constitutional liberties that the govt. can’t deny unless the govt. can prove an important reason to restrict the liberty Courts often decide if liberty can be regulated!! - “When can the govt. deprive personal freedoms to achieve a compelling (very necessary) objective? - Examples: When can the government…limit speech rights? limit marriage rights? protect/diminish privacy rights? - To answer these questions, years of case law have created 3 tests (see next slide) - Very Controversial Fears of courts being too Active & Loose in their Constitutional interpretations

37. Procedural Due Process: - SPECIFICALLY listed constitutional liberties the govt. CANNOT deny - Examples? Substantive Due Process: - UNSPECIFIED constitutional liberties** the govt. CANNOT deny unless the govt. can prove an important reason to restrict the liberty ** = “Fundamental Rights” not found in the Constitution Comparing Procedural Due Process & Substantive Due Process

38. The Origins of the “Strict Scrutiny”Test “All legal restrictions which curtail the civil rights of a single racial are immediately suspect. This is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to more rigid scrutiny.” - Justice Hugo Black, Korematsu v. US (1944)

39. Allowable Liberty Infringement? • 3 Tests used to Determine Liberty Infringement via Case Law Liberty Depriving Tests Issues Involved Explanation of Test Strict Scrutiny Test race, religion, alienage, “Fundamental Rights” The govt. must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest Substantial Relationship Test (Intermediate Scrutiny Test) gender The govt. must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest. social/economic, age, sexual orientation Rational Basis Test The govt. need only show that the challenged classification is rationally related to serving a legitimate state interest.

40. Strict Scrutiny Test - Used for the following issues: race, religion, alienage, “Fundamental Rights” 1) Does the law further a compelling state interest (ENDS must be compelling)? and 2) What MEANS are being used by the state to meet the compelling state interest?  and 3) Are the MEANS necessary or narrowly tailored? (If the law is found too broad, it will be ruled unconstitutional) Rational Basis Test - Used for the following issues: social/economic, age, sexual orientation 1) What is the Objective of the Law (ENDS)and 2) What MEANS are being used by the state to meet that objective? and 3) Are the MEANS rationally related to the ENDS? ** In order to determine if a law limiting liberty is constitutional, courts use one of the following test: Intermediate Scrutiny Test - Used for the following issues: Gender The policy being challenged must further an important govt. interest in a way that is substantially related to that interest

41. Roe v. Wade (1973) & Strict Scrutiny Law in Question: Texas had law banning all abortions and claimed a compelling State Interest in protecting unborn human life Question before the Supreme Court: Does the 14th Amendment protect a women’s right to have an abortion? Court’s Decision: the right to privacy is a fundamental right and that this right "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" *Based on these grounds, the Court applied strict scrutiny: - The Court acknowledged that banning abortion was a legitimate interest, BUT it held that the interest is not compelling until a fetus becomes "viable" (capable of "meaningful life outside the mother's womb") - The Court held that a state may prohibit abortion after the point of viability, except in cases where abortion is necessary to preserve the life or health of the mother, but the Texas law was not narrowly tailored to achieve this objective!!

42. “Testing” the 3 Liberty Depriving Tests: Which test should be used? 1. The state government feels that a person must be at least 17 years old to legally get a drivers license. 2. A city government passes a law banning animal sacrifice because of sanitation and animal cruelty conflicts. 3. A government funded military academy only accepts male candidates, while women candidates must attend a separate government funded military academy. 4. The state of Shulmanistan uses a progressive tax system—those people who earn more income must pay more taxes than those people who earn less income. 5. A state makes it illegal to marry someone of the same sex.

43. The PatriotAct What is more important: protecting our Civil Liberties or protecting National Security??

44. Privacy Rights versus Security Issues * Privacy rights have taken on particular importance since September 11, 2001 * The USA Patriot Act: expanded govt’s anti terrorism powers Concerns about civil liberty violations

45. Pros - Allows law enforcement to use surveillance against more crimes of terror - Law enforcement can conduct investigations without tipping off terrorists - more info sharing/cooperation among government agencies - Law enforcement officials may obtain a search warrant anywhere a terrorist related activity occurs - Higher maximum penalties for various crimes likely to be committed by terrorists; eliminates/lengthens the statutes of limitations for certain terrorism crimes and lengthens them for other terrorist crimes Cons - FBI can demand “any tangible thing,” including books, letters, diaries, library records, medical and psychiatric records, financial information, membership lists of religious institutions, and genetic information without your knowledge or consent - The FBI needs only to tell a judge (no need for evidence or probable cause) that the search protects against terrorism. * Civil Liberties worries Pros & Cons of the Patriot Act

46. Laughing at the Patriot Act!