CIVIL LIBERTIES are the personal rights and

CIVIL LIBERTIES • are the personal rights and freedoms that the federal government cannot abridge, either by law, constitution, or judicial interpretation.

Civil Liberties • are limitations on the power of government to restrain or dictate how individuals act.

The First Constitutional Amendments: The Bill of Rights • The Bill of Rights consists of the first ten amendments to the Constitution and includes specific guarantees such as free speech, free press, and religion.

The Incorporation Doctrine • The Bill of Rights was designed to limit the powers of the national government. • In 1868, the 14 th Amendment was added to the Constitution. The amendment begins: “No state shall. . deprive any person, of life, liberty, or property without due process of law. ” • Its language suggested that the protections of the Bill of Rights also extended to state infringement of those rights.

The Incorporation Doctrine • In 1925, the Court ruled in Gitlow v. New York that states could not abridge free speech due to the Fourteenth Amendment's Due Process Clause.

• This was the first step in the development of the incorporation doctrine whereby the Court extended Bill of Rights protections to restrict state actions. • Not all of the Bill of Rights has been incorporated. There has never been a case about the Third Amendment. • Others have been incorporated very late, such as the case District of Columbia v. Heller about the Second Amendment in late 2008.

First Amendment Guarantees: Freedom of Religion The First Amendment states that: “Congress shall make no law • respecting an establishment of religion, • or prohibiting the free exercise thereof; …”

• The first clause is known as the establishment clause. • The second clause is the free exercise clause.

The Establishment Clause • The Establishment Clause of the First Amendment guarantees that the government will not create and/or support an official state religion.

The Supreme Court and the Establishment Clause • The Supreme Court has held fast to the rule of strict separation between church and state when issues of prayer in public school are involved. • In the early 1960 s, the Court ruled that official lead prayer and bible reading is unconstitutional. • In Engel v. Vitale, the Court ruled that even nondenominational prayer could not be required of public school children.

Lemon v. Kurtzman • In 1971, the Court ruled that New York state could not use state funds to pay parochial school teachers’ salaries. • To be Constitutional the challenged law must 1. have a secular purpose. 2. neither advance nor inhibit religion. 3. not foster excessive government entanglement with religion. • Example: In 1980, this Lemon Test was used to invalidate a Kentucky law that required the posting of the Ten Commandments in public school classrooms.

The Free Exercise Clause • “Congress shall make no law. . . prohibiting the free exercise thereof (religion)” is designed to prevent the government from interfering with the practice of religion. • This part of the first amendment is less controversial • Only comes up in rather unusual cases.

Such as…

First Amendment Guarantees: Freedom of Speech and Press • In the United States we each have the right to speak our mind (within some broad limits). • The best way to understand this protection is to think about what sorts of speech are not protected.

• Schenck v. United States (1919) the Supreme Court upheld the conviction of Schenck (a secretary of the Socialist Party) for interfering with the draft during war time.

• Justice Holmes defined the “Clear and Present Danger” test in the Schenck case. • “Even the most stringent protection of free speech would not protect a man falsely shouting fire in a crowded theatre. ” Justice Holmes.

Also, not protected are “fighting words” these depend on context.

Libel and Slander • Libel is a written statement that defames the character of a person. • Slander is spoken words that defame the character of a person.

• In the United States, it is difficult to prove libel or slander, if “public persons” or “public officials” are involved.

Obscenity and Pornography • Efforts to define obscenity have perplexed courts for years. Public standards vary from time to time, place to place, and person to person. • Work that some call “obscene” may be “art” to others. Justice Potter Stewart once said he couldn't define obscenity, but "I know it when I see it. " The ambiguity of definition still exists and is becoming even more problematic with the Internet.

No nationwide consensus exists that offensive material should be banned. • So, over the years the courts have deferred to local or “community” standards.

Expansion of free speech protection Symbolic speech--symbols, signs, and other methods of expression. The Supreme Court has upheld as constitutional a number of actions including: • flying a communist red flag • burning the American flag

• Prior Restraint – a government action that prevents material from being published. • In effect, the United States government cannot order this. • In NYT v. United States (1971) the Court ruled that the publication of the top-secret Pentagon Papers could not be blocked.

Difficult Cases Hate Speech – hate speech is the new frontier. Also classed as Unpopular Speech. Campus speech zones, city ordinances, and the Communications Decency Act are just a few examples.

The Second Amendment: The Right to Keep and Bear Arms • The Second Amendment states that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. ”

At the state and local level we see arguments about it.

The Third Amendment • Is about the quartering of soldiers and has never been incorporated.

Rights of Criminal Defendants Are the due process rights and the procedural guarantees provided by the Fourth, Fifth, Sixth, and Eighth Amendments

Fourth Amendment • The Fourth Amendment’s general purpose • is to deny the government the authority to make general searches. • The Supreme Court has interpreted the Fourth Amendment to allow the police to search • the person arrested, • things in plain view of the accused, • and places or things that the person could touch or reach, or which are otherwise in the arrestee’s “immediate control. ”

Fourth Amendment • Provides protection against “unreasonable” searches and seizures • Requires search warrants-probable cause • Cases about this right often involve technology or the issue of probable cause.

One change in recent years involves the exclusionary rule. • The Exclusionary Rule comes from the court case Weeks v. United States (1914). • It said that evidence, no matter how convincing, cannot be admitted in court if it was not properly obtained.

Since the 1980’s courts have allowed for “good faith” mistakes with the exclusionary rule • For example: a search warrant lists Jason Lindsay at Apartment 3 A rather than Jason Lindsey at Apartment 3 B.

Fifth Amendment • The Fifth Amendment states that “No person shall be …compelled in any criminal case to be a witness against himself. • So defendants cannot be required to take the stand in a trial.

The Fifth amendment also contains the famous double jeopardy protection. • “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”

• The most famous case with the 5 th amendment is Miranda v. Arizona 1966 and the question of voluntary confessions. • From the case we have our famous “Miranda Rights”

Sixth Amendment • The Sixth Amendment guarantees a right to counsel. • In the past this meant that a defendant could hire an attorney. • Since most criminals are poor they did not have counsel.

• In Gideon v. Wainwright (1963), Gideon, a poor man, was accused of a crime and denied a lawyer. • The Supreme Court ruled unanimously that a lawyer was a necessity in criminal court, not a luxury. The state must provide a lawyer to poor defendants in felony cases.

The th 6 Amendment also requires • A speedy and public trial. • Trial by jury in criminal cases. • The right of the defendant to confront witnesses and see the evidence presented against him.

The th 7 Amendment • Not very controversial, it guarantees a trial by jury in civil lawsuits…. such as business disputes, etc.

Eighth Amendment • The Eighth Amendment prohibits cruel and unusual punishment. • It is most often used in arguing death-penalty cases. • The Supreme Court has heard many cases about the death penalty since 1971. • Basically, the Supreme Court has said that it does not consider the death penalty cruel and unusual for murder.

Cases the Supreme Court is interested in are about • How the death penalty is arrived at and how it is applied. • For example, what should be the minimum age for the death penalty, is it racially biased in application, or what is the minimum standard of mental competency required.

Capital Punishment in the United States

More recently, the courts have had some cases about other forms of punishment. • Such as prolonged periods of solitary confinement.

The th 9 Amendment • “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. ”

For example: The Right to Privacy

The Right to Privacy Abortion • In Roe v. Wade (1973) the Supreme Court ruled that a Texas law prohibiting abortion violated a woman's constitutional right to privacy. • This is one reason the case remains controversial, because the decision cited a right that is not “textual”.

The Right to Privacy The Right to Die • Cruzan v. Director, Missouri Department of Health (1990). • In a 5 -4 ruling, the Court rejected a right to privacy in cases of assisted suicides or euthanasia, but argued that living wills, written when competent, were constitutional. • In 1997, the Court ruled that there was no constitutional right to assisted suicide.

The th 10 Amendment • “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ” • In other words, the states can have differing laws so long as they do not clash with the Constitution.

Recent Controversies • There have been some important new cases related to the “War on Terrorism”

The first set of issues: • How does the U. S. detain and prosecute foreign prisoners suspected of terrorism? • What rules apply to the interrogation and treatment of foreign detainees?

For example, Extraordinary Rendition Khaled El Masri

The second set of issues: • Does the danger of terrorism change the way the U. S. government policies its own citizens? • For example, what about the NSA’s surveillance of telephone communication without a warrant?

In 2003 the Congress intervened in this project by the Department of Defense and slashed its budget.

Over these issues the current administration, Congress, and the Courts have had several disagreements. • Thus, as throughout our history, current cases will lead to new rules about and interpretations of the liberties contained in the Bill of Rights.