Chapter 4: Civil Liberties

Civil rights

determine who can participate or be represented in collective decision making and regulates the ways that govt can treat citizens

• regulate collective action by establishing rules for govt conduct

civil liberties

limit collective action by restricting govt jurisdiction

ORIGINS OF THE BILL OF RIGHTS

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why had framers not originally supported bill of rights

• federalists said that bill of righst is irrelevant in constitution that provided govt w/ only delegated powers so how can abuse powers not given to it?

  • checks and balances supposed to prevent this instead of weakening new govt

James madison

• want antifederalists support so pushes for doc

  • says ideals would get “character of fundamental maxims of free government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion”

when did bill of rights pass

dec 15, 1791

• 10 ratified amendments

civil liberties real def

protections of citizens from improper governmental action

• personal liberty

• what govt must NOT do

  • both substantitive (what power to do) and procedural (how supposed to act)

NATIONALIZING BILL OF RIGHTS

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why did the bill of rights have to be nationalized

only first amendment explicitly limits national govt so unclear whether other amendments put limits on state govts too

Barron v. Baltimore

said that no provision existed preventing state government from mess up this guys property (a wharf) only state govt did + establish dual citizenship

• bill of righst doesnt apply to decisions or procedures of state/local govts

dual citizenship

every us citizen is both a citizen of national govt and separately a citizen of the states

america vs everyone else, nationalization and states

bc states predate fed and still have a lot of their own power, nationalizing norms for government powers started slowly (compared to other places where state govt exists to carry out federal action)

Fourteenth Amendment

• words of 14th amendment make it so that it imposes bill of rights on states and reverses barron v. baltimore

• Union NEEDED to be united, less state power after civil war

  • nationalizes bill of rights by nationalizing definition of citizenship

Slaughter-House Cases

Court rules that federal govt under no obligation to protect the “privileges and immunities” of citizens of a particular state against arbitrary actions by that state’s government

Civil Rights Act of 1875

• disregards slaughter house case precedent

• distinguished between state action and private action - state officials cannot but private individuals and entities can"

  • In the 1883 Civil Rights Cases, the Supreme Court undermined the Slaughter-House precedent by ignoring its core declaration that the Reconstruction Amendments had "one pervading purpose": the protection of newly emancipated Black citizens. While the 1873 Slaughter-House ruling acknowledged a federal duty to guard Black Americans from systemic oppression, the 1883 Court abandoned this racial-protection rationale to rule that Congress could not prohibit private discrimination. Instead of fulfilling the spirit of the amendments, the Court weaponized a narrow view of federalism to strip Black citizens of protections against public exclusion, laying the groundwork for the Jim Crow era.

why and when was it actually nationalized

• expansion of federal authority over state authority in late 1800’s → court supporting federalization

  • courts compelling states to follow remaining bill of rights pars se

selective incorporation

application of provisions of the bill of rights one by one

Overturning of Barron

1897 - states can’t take your private property

• only incorporates “property” part from 5th amendment (BECAUSE that part is also in the fourteenth amendment) and not considering “life” or “liberty”

has the fourteenth amendment come to incorporate all the bill of rights within the states

No, the Fourteenth Amendment has not incorporated all of the Bill of Rights to apply to the states. [1, 2]

How Incorporation Works

• Selective Incorporation: The Supreme Court uses a case-by-case approach known as selective incorporation via the Due Process Clause of the Fourteenth Amendment. [1, 2]

• Most Rights Apply: The Court has ruled that almost all fundamental guarantees in the Bill of Rights apply to state and local governments. [1, 2]

• Total Incorporation Rejected: The Supreme Court has consistently rejected "total incorporation," which would automatically apply every single federal provision to the states at once. [1]

Unincorporated Exceptions

A few specific parts of the Bill of Rights still do not apply to state governments: [1]

• Third Amendment: The right against quartering soldiers in private homes.

• Fifth Amendment: The right to a grand jury indictment in criminal cases.

• Seventh Amendment: The right to a jury trial in civil lawsuits

why not all

• It nationalized most of the Bill of Rights: Before the Fourteenth Amendment, the Bill of Rights only protected you from the federal government. States could technically censor speech or ban guns if their own state constitutions allowed it.

  • The "Vehicle" for Nationalization: The Supreme Court used the Fourteenth Amendment's Due Process Clause ("nor shall any State deprive any person of life, liberty, or property, without due process of law") to force states to respect federal rights.

THE CONSTITUTIONAL REVOLUTION IN CIVIL LIBERTIES

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Brown v. Board of Education

• Jump-starting changes in the constitution

• leads to an increased number of civil liberties

• court promised that it would look at all legislation and actions affecting civil rights and liberties with scrutiny

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constitutional revolution = move towards ____

nationalization

how did the court move to nationalize?

• took on an active role to review the laws of state legislatures of decisions of state courts to create a single, national standard for the rights and liberties of all citizens

Gideon v. Wainwright

right to counsel in criminal trialm

Mapp. v Ohio

evidence obtained in violation of unreasonable searches and seizures would be excluded from trialy

Miranda v. Arizona (Miranda right)

arrested ppl must be informed of their legal rights to remain silent and have counsel present during interrogaton

Benton v. Maryland

incorporated rules against double jeopardy nationwide, overturning Palko (man found guilty for lesser crime in lesser court and sentenced to death in higher court, court upheld)

rulings about privacy

also coming up in 1958, “privacy in one’s association” allowed

• comes to forefront nowadads in cases about right to privacy with birth control, gay, medical suicide, and abortion

2005 cases about govt sponsored displays of religious symbols

Van Orden v. Perry (ok for 10 commandments in texas statehouse) and McCreary v. ACLU (not ok for 10 commandments in kentucky courts), diff outcomes

Free Exercise of Religion

protects citizens rights to believe and practice whatever religion they choose + rights to be a nonbeliever

-problems usually arise bc enforcing secular laws on beliefs of a group

time place and manner rule

-distinguishes between religious beliefs and actions based on those beliefs

-americans can follow any religion, but the time, place, and manner of their exercise are subject to regulations in the public interest

free exercise of religion _____

has a measure of priority over other political rights in america

THE FIRST AMENDMENT AND FREEDOM OF SPEECH AND THE PRESS

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why are freedom of speech and freedom of press considered so critical

• democracy depends on open politics and politics is talkt

two most prominent civil liberties

• freedom of religion

  • freedom of speech/press

strict scrutiny

• established in 1938, saying that attempts to restrict freedom of speech would be subject to more judicial scrutiny tha other legislation

  • speech is protected almost absolutely (in part to protect democratic political process)

political speech

• speech commenting on the actions of the govt and political leaders

  • concern of founders

Alien and Sedition Acts

crime to say or publish anything that might defame or bring into disrepute the US govt

Espionage Act

• ppl convicted for opposing American involvement in the war

• upheld bc activities created a “clear and present danger” to national security

symbolic speech, speech plus action, and rights of assembly and petition

• freedom of assembly and petition treated same as freedom of religion and political speech → closely associated but specifically associating it with action

  • can create regulations governing time, place, and manner of speech as long as its not discriminatory

O’ Brien test

• uses standard set in case of man who burned his draft card

  • a statute that restricts expressive or symbolic speech must be justified by a compelling governmental interest and be narrowly tailored to achieving that interest

speech plus

speech accompanied by physical activity like picketing, distributing leaftlets, and other forms of peaceful protest and assembly

• often protected by first amendment

  • regulated on private property or on public property when jeopardizing health, safety, and rights of others

Freedom of the Press

• protected by doctorine prohiiting prior restraint

  • except under extaordinary cirumstances, media can print whatever it wants and govt agencies shouldn’t seek to restrict that

    • can prosecute ppl who share classified info or journalists who don’t share their sources

libel and slander

libel: written statement made in “reckless disregard of truth” and damaging to victim as a “malicious, scandalous, and defamatory thing”

slander: spoken version

neither is protected but has to result from “actual malice” or “reckless disregard”, needs to be purposely wrong

obcenity and pornography

• harder to regulate and not protected

  • overly vague standards and impractical to regulate

student speech

conditionally protected speech

• tinker v. des moines - free speech applies to speech in public schools, admin needs to show that speech threatends to substantially disrupt educational activities

hate speech

ordinances banning forms of expression that assert hatred towards a specific group

• hard to understand what is considered hate speech bc varies person by person and hate speech can turn into violent actionco

commercial speech

• not full first amendment protection bc not considered political speech - some is still unprotected and is regulated but there is growing rights in this part (free flow of information)

Second Amendment

right to bear arms

• 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

• supposed to provide for militias to assist gopvt in maintaining the public order — now means an individuals right to bear arms

  • few national policies regulating firearms and standards vary by state

Gun Rights of the Criminally Accused

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Due Process

Governments must respect all legal rights owed to an idnividual

• protections deriving from 4th, 5th, 6th, and 8th amendments

civil cases due process standard

“preponderance of the evidence”

A preponderance of the evidence means that a claim is more likely to be true than not, requiring a certainty level of just over 50%

criminal cases

beyond a reasonable doubt - higher standard

-SURE that they did it

-far worse to convict an innocent man than let a guilty go free

FOURTH AMENDMENT

protection against unreasonable searches and seizures

• warrants require probable cause

• search = compromises privacy interest

  • seizure = deprives person of control over person/property

Katz test (Katz. vs united states)

4th amendment protects places where a person has a reasonable expectation of privacy

Exclusionary Rule

evidence obtained illegally (illegal search) cannot be used at trial

Mapp v. Ohio

obscene material found via raid w/o a warrant

• excusionary rule: evidence inadmissible in court

Drug Testing cases

suspicionless durg testing upheld for railroad workers and customs employees after accidents + athletes, but drug tests limited for non-safety sensitive jobs bc it diminished personal privacy

Riley vs. California (2014)

police cant search digital contents of a cell phone during an arrest w/o warrants

Terry v Ohio

Police can search someone for weapons if probable cause that they’re armed

• stop and frisk

  • racial profiling allegationsG

Government Surveilance

• 4th amendment protects political privacy and so citizens should be able to freely engage in politics w/o fearing about retaliation (ie nixon type watergate surveillance)

• surveillance can implicate even innocent ppl - not just “nothing to hide nothing to fear”

5TH AMENDMENT

guarantees five key rights that protect individuals from government overreach in legal proceedings

Grand Jury indictment

citizens who decide if theres enough evidence to bring forth charges

• has NOT been incorporated into states

  • some states use bill of info from prosector instead

Double Jeopardy

cant be tried for same crime twice (Palko v. connecticut)

selective incorporation doctrine

double jeopardy used as a test case to see if this works

• uses the due process clause of the fourteenth amendment to ensure tht the bill of rights applies to state and local govt by moving on a case by case basis

  • evaluates case by case to see whether specific rights are fundamental to ordered liberty and/or nations history

self incrimination

no one can be forced to testify against themselves

eminent domain/”takings clause”

govt can take private property for public use if offering just compensation

• property owners can sue directly in federal court over unjust takings

SIXTH AMENDMENT

• right to counsel

  • should get a speedy and public trial, impartial jury, to be confronted by witnesses against them and have a process for getting witnesses in their favor, and get counsel for their own defense

  • any trial with possible imprisonment (criminal?)

Gideon v. Wainwright

• gideon denied a lawyer in florida burglarly trial

  • landmark ruling: right to counsel applies to all felony cases + police interrogation (last part added in follow-up case)

2003 Maryland case

not just right to counsel, right to effective counsel

• defense did not tell jury about defendant’s abusive childhood

EIGHTH AMENDMENT

prohibits cruel and unusual punishment, exessive fines, exessive bail

Timbs v. Indiana

excessive fines clause applies to the states

why is it hard to debate cruel and unusual punishment

what counts as cruel and unusual changes across different factors like generations or background

Miller v Alabama

life w/o parole sentences are unconstitutional for juvenile offenders

death penalty

-court avoids ruling on whether execution itself is cruel and unusual, just method → struck down some laws bc they were applied inconsistently, but hasnt had problems since rewritten with clearer standards

-lethal injection upheld

supporters of death penalty

• deters future crime\

  • used historically

opponents of death penalty

• doesnt actually prove a deterrent effect

• costs a lot of money

• historical doesn't always mean right

• encourages vengeance

• race bias

  • life w/o parole more severe

THE RIGHT TO PRIVACY

• not an enumerated right but has been established through case laws

  • “right to be left alone”

Griswold V Connecticy

strikes down ct law banning contraceptive use

• privacy right is estalished by a “zone of privacy”

  • goldberg later tied privacy to the Ninth Amendment - rights not enumerated are retained by the ppl

Ninth Amendment

listing certain rights in constitution doesnt mean other rights don’t exist

• rights not enumerated are still retained by the people

Abortion

controversial

Roe v Wade

establishes womens right to abortion and cant be criminalized before fetal viability

Webster v. reproductive halth services

no public medical facilities for abortions

Dobbs

court rules that constitution does not grant a right to abortuon, overturning roe and states move to restrict

Same Sex orientation

also rough

obergefell

court stikes down state bans on same sex amrriage as a violation of the 14th amendment equal protection and due process ru

right to die - Gonzales vs Oregon

upholds oregon law letting doctors prescribe lethal drugs to terminally ill patients → shows that coirt isnt hostile

what does popular govt need

1) transparency from gov so citizens hold accountable

2) citizen privacy so ppl dont face retaliation for organization

CONCLUSION

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Selective incorporation once again

The Bill of Rights originally applied only to the federal government; through 20th-century selective incorporation, the Court applied most protections to the states too.

collective action principle

civil liberties exist to LIMIT collective action of the government by creating individual autonomy that govt cannot interfere with

• preventing tyranny

what power does the federal govt have over general things

does NOT have general police power but has some power in health care, education, and crime control through a broad reading of the commerce clause (states have general police power(

commerce clause

It establishes a single, unified national market and stops individual states from setting up unfair trade barriers against one another.