gov chapter 4: civil liberties

civil liberties

protections of citizens from improper governmental action; they limit the collective actions government can take by restricting the government’s jurisdiction (ONLY national defense and police powers)

ex: libertarians want to limit government intervention and connection in their lives

civil rights

legal or moral claims that citizens are entitled to make on the government (how the government MUST treat citizens)

civil liberties and the bill of rights

history principle: choices made at one point in time continue to have consequences later

1. Constitution ratified, amended by adding Bill of Rights

2. 10 amendments include substantive and procedural restraints on governmental power

1st Amendment

limits government from enforcing laws that infringe on one’s individual liberties:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

2nd Amendment

right to bear arms is not infringed

cases:

1. D.C. v. Heller (2008): SCOTUS struck down a D.C. gun regulation based on an individual’s right to own a gun

2. McDonald v. Chicago (2010): applied this right to the states through selective incorporation

4th Amendment

offers protection against unreasonable searches and seizures

cases:

1. Mapp v. Ohio (1961): Ms. Mapp was suspected of owning a bomb. However, the police didn’t find a bomb, but found pornographic materials that were illegal to have according to the Ohio statute. She was charged and convicted under this law but argued in court that these materials were illegally seized because no warrant was produced. SC ruled in favor of Mapp.

2. exclusionary rule was developed (first used in Weeks v. Ohio 1914)

exclusionary rule

requirement that courts exclude evidence obtained in violation of the 4th Amendment; evidence that is illegally obtained may not be used against someone in the court of law

controversial activities under the exclusionary rule

1. mandatory drug testing: Court looks more favorably upon these policies when public safety is at risk

2. new technology: thermal imaging, GPS tracking, cell phone data

3. “stop and frisk” police tactic

5th Amendment

provides for:

1. grand juries: determines whether sufficient evidence is available to justify a trial; do not rule on the accused’s guilt or innocence)

2. protection from double jeopardy (being tried more than once for the same crime)

3. defense against self-incrimination: includes the Miranda rule (Miranda v. Arizona 1966), that persons under arrest must be informed of their legal rights, including the right to counsel, before undergoing police interrogation

Miranda v. Arizona

Ernesto Miranda was arrested for the kidnapping and rape of an 18-year-old woman. The woman had identified Miranda in a lineup, and Miranda had confessed after two hours of questioning; he also signed a statement that his confession had been obtained voluntarily. Nevertheless, the Court ruled that the confession was inadmissible because Miranda had not been made aware of his rights, including his rights to remain silent and to consult an attorney.

1. Miranda rule: anyone under arrest must be informed of their legal rights (ex: you have the right to remain silent, etc.)

eminent domain

1. eminent domain: 5th Amendment also provides for the “takings clause” which protects citizens against the government taking private property without just compensation

   • not directly connected to persons accused of crimes, however it is essential to the concept of sovereignty

2. 2019 court ruled that property owners can file federal suits that challenge local land-use regulations if they believe that they restrict their property rights

6th Amendment

provides for:

1. speedy and public trial

2. impartial jury

3. right to confront one’s accusers and the right to counsel

cases:

1. Gideon v. Wainwright (1961): incorporates the right to counsel in the 14th Amendment, a right that extends to any trial that holds the possibility of imprisonment. (Gideon could not afford an attorney and asked the judge to appoint an attorney for him)

2. Ramos v. Louisiana (2020): SC ruled that guilty verdicts or criminal charges require unanimity under the protections of this amendment

8th Amendment

prohibts excessive bail, excessive fines, and cruel and unusual punishment

• has encouraged debates over the death penalty to pursue; does the definition of “cruel an unusual punishment” apply to the death penalty?

• is the use of torture to extract information for national security violate the 8th amendment?

cases:

1. Timbs v. Indiana (2019): incorporated the excessive fines clause to the states; clause was applicable to state action regarding asset forfeiture

9th Amendment

addresses the Federalist concern that a list of rights would suggest that the list was exhaustive and that there were no other liberties people enjoyed; “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

• some argue that the 9th Amendment has proved that the right to privacy is implied and not prohibited by any other part of the Constitution

14th Amendment

seems to apply the Bill of Rights to the states:

1. clause 1: “All persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside.”

2. clause 2: “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.”

however, the Court ruled that the 14th Amendment does NOT apply to the Bill of Rights to the states

nationalizing the bill of rights

1. 1st Amendment: “Congress shall make no law respecting an establishment of religion . . . .”

   a. this is the only amendment that exclusively addresses the national government; (ex: 5th Amendment says that “no PERSON” shall be denied due process of law)

Barron v. Baltimore (1833)

City of Baltimore had been disposing of sand and gravel near a wharf owned by John Barron, rendering the wharf commercially useless. Barron sued the city of Baltimore on 5th Amendment grounds, stating that he had been deprived of property without compensation. SC ruled against Barron, stating that the 5th Amendment “must be understood as restraining the power of the General Government, not as applicable to the States.”

Thus, the court confirmed the idea of “dual citizenship”- that each American is a citizen of the federal government and, separately, a citizen of one of the states.

dual citizenship

citizens have liberties that protect them against action by the federal government and a separate set of liberties that protect them against action by state governments

each American is a citizen of the federal government AND a citizen of one of the states.

selective incorporation

the application of liberties in the Bill of Rights, one by one, to the states

selective incorporation: the Bill of Rights

this ruling, that the Bill of Rights did NOT apply to the states, did not change until the SC began to gradually nationalize the Bill of Rights

in 1897, the Court held that the “just compensation clause” of the 5th Amendment would be applied to the states. This began the slow process of selective incorporation:

1. 1930s: several 1st Amendment protections were applied to the states

2. 1960s: Court required the states to adhere to a number of provisions of the Bill of Rights (mainly for the criminally accused)

constitutional revolution in civil liberties

SC’s decision in Brown v. Board of Education (1954), which found state-level school segregation laws unconstitutional, started a constitutional revolution

Court effectively promised that it would actively subject the states and all congressional legislation or executive actions affecting civil rights and civil liberties to strict scrutiny

notable cases:

1. Miranda v. Arizona: ruled that arrested persons must be informed of their legal rights to remain silent and have counsel present during police interrogation (Miranda rule)

bill of rights today: freedom of religion

1. first clause of the 1st amendment: establishment clause (separation of church and state)

2. second clause of the 1st amendment: free exercise clause (protects the right of citizens to believe and practice whatever religion they choose)

a “wall of separation” (Jefferson) should be maintained between government and religion

• ex: SCOTUS’s position on school prayer

• does the emergence of Christian nationalism violate the establishment clause?

lemon test

1. Lemon v. Kurtzman (1971): lemon test and the establishment clause hold that the government can be involved religion IF:

   • it has a secular purpose

   • its effect is neither to advance nor inhibit religion

   • it does not create excessive entanglement

     • generally used in relation to government aid to religious schools

2. Elk Grove United School District v. Newdow (2004): dad of school child accused the “under God” line in the pledge of allegiance a violation of the separation between church and state. Court ruled that this statement does not violate the separation of church and state and has since left it in the pledge of allegiance

free exercise clause

protects the right of people to believe and practice whatever religion they choose, including the right to be a nonbeliever

cases:

1. Holt v. Hobbs (2015): Arkansas prisoner is allowed to grow a beard based on religious beliefs

2. EEOC v. Abercrombie & Fitch (2015): company cannot discriminate in hiring against a woman wearing a head scarf

   • SC determined that the Religious Freedom Restoration Act, which requires a “compelling” government interest for requiring individuals to obey a law violating their religion, does NOT apply to the states BUT may be applied to federal actions

bill of rights today: freedom of speech

Westboro Baptist Church pickets funerals of American soldiers in action with signs reading “Thank God for Dead Soldiers” because of their belief that these deaths are punishment from God for America’s tolerance of sin

Court ruled that this is protected speech.

political speech

most protected kind of speech and subject to strict scrutiny (government must show that the law served a “compelling state interest”)

freedom of speech is NOT absolute:

1. clear and present danger test: does the speech present a “clear and present danger” to society? (**no long used by the courts, has been replaced by the imminent lawless action standard)

political speech cases

1. Buckley v. Valeo (1976): ruled that campaign spending limits for federal candidates violate freedom of speech

2. Citizens United v. FEC (2010): ruled corporate funding of independence corporations have speech rights as well

3. McCutcheon v. FEC (2014): struck down aggregate limits on contributions

in all three of these decisions, the Court maintained that limits on political spending amounted to limits on free speech

symbolic speech

protections for actions that symbolically convey a message are very broad

• ex: while flag burning has been allowed, the Court upheld a federal law criminalizing destruction of a draft card for service in the Vietnam war

the court generally looks favorably on conducts that can be considered a form of symbolic expression

speech plus

speech accompanied by activities such as sit-ins, picketing, and demonstrations

bill of rights today: freedom of the press

1st amendment also provides for freedom of the press; court ruled that prior restraint (effort by a government agency to block publication of material by a newspaper or magazine) is a violation of the freedom of the press

cases:

1. Near v. Minnesota (1931): Jay Near had been restrained from publishing a variety of hateful, racist, and anti-Semitic pieces by a Minnesota statute. The Court ruled for Near, arguing that Near can be sued for libel and slander but he cannot be restrained ahead of time from printing his views. The case also incorporated the freedom of the press into the Fourteenth Amendment and applied it to the states.

libel and slander

some speech is not protected at all:

1. libel: a written statement made in “reckless disregard of the truth” and considered damaging a victim because it is “malicious, scandalous, and defamatory”

2. slander: an oral statement of libelous nature

however, the print media essentially have been able to publish anything they want about public figures

obscenity and pornography

proven impossible to clearly define where protection ends and unprotected speech begins

• recent battles over obscenity have focused on internet pornography:

• SC rules that “adults have a constitutional right to receive” such material while allowing public libraries to install filters on computers and outlawing the sale, creation, and possession of child pornography

Miller v. California (1973)

Miller had sent out mailings with pornographic content and was found guilty. The constitutional question: Can a state, under the 1st Amendment guarantees of free speech and free press, prosecute publishers of materials considered “obscene” by local authorities?

Decision: Court ruled in favor of California and established three criteria for new statutes regulating obscenity:

1. Would the average person, “applying contemporary community standards” find that the work, when viewed as a whole, appealed to “prurient interest”?

2. Does the work describe or depict sexual conduct in a patently offensive way?

3. Taken as a whole, does the work lack “serious literary, artistic, political, or scientific value?”

this criteria, however, is extremely broad, hard to define, and extremely subjective.

student speech

student speech is conditionally protected:

1. Morse v. Frederick (2007): high school student held up a sign saying “Bong Hits 4 Jesus” as the Olympic torch went by. The Court ruled that this is NOT protected speech

   • these student speech debates occur at the college level as well

hate speech and commercial speech

1. hate speech: it can be difficult to resolve exactly what constitutes hate speech; however, the court has ruled that a state can consider whether a crime was motivated by bias against a minority group and render more severe punishment

2. commercial speech: court has broadened the freedom of companies to market and advertise their products

rights of the criminally accused

various amendments guarantee the rights of the criminally accused:

1. due process: requirement that citizens be treated according to the law and be provided adequate protection for individual rights

   • 4th, 5th, 6th, and 8th Amendments constitute the essence of due process, although it is not technically states until the end of the 5th Amendment

right to privacy

not expressly stated in the Bill of Rights:

1. Griswold v. Connecticut (1965): Connecticut had a statute forbidding the use of contraceptives. The Court invalidated the law based on a “zone of privacy” in the 3rd, 4th, and 5th Amendments

2. Roe v. Wade (1973): decision on abortion cemented the right to privacy (right to be left alone)

   • 2021 SCOTUS overturned Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization decision

in recent decades, the right to privacy has come to encompass the privacy rights of gay men and women (court’s 2015 declaration of state bans on same-sex marriage as unconstitutional)

right to die

right to die is relatively unexplored within the court:

1. Gonzales v. Oregon (2006): Court upheld an Oregon law that allowed doctors to assist terminally ill patients seeking to end their lives

technological changes and privacy

technological change has been a recent problem within the courts, confronting them with a number of privacy issues that could not have been forseen

history and collective action principles

application of the Bill of Rights to specific cases yields Court rulings that become fixed laws for long periods of time (history principle and precedent)

civil liberties are also a good example of collective action; civil liberties are LIMITATIONS on collective action