Civil Liberties, Civil Rights, and Constitutional Incorporation
Crown v. Zenger (1735) and Freedom of the Press
Historical Context: In 1735, approximately 40 years prior to the American Revolution, John Peter Zenger—a German immigrant residing in the English colonies—published printed critiques that were unflattering to the King of England.
Etymological Note on Surnames: Surnames of German origin frequently end in the letters "-er" (such as Miller; Parker serves as an English exception) and often begin with the letter "Z".
Legal Representation and Defense: Zenger was represented by attorney Andrew Hamilton (who was not related to Alexander Hamilton). Hamilton served as Zenger's legal advocate.
The Defense of Truth: Hamilton argued that citizens must maintain the legal right to criticize the government or the monarch provided that the information being presented is factually true and verifiable.
Legal Standard for Criticism: Criticism of public officials or institutions cannot be punished if the claims are backed by quantifiable facts (such as documented instances of mistreatment, unfair grading, or arbitrary policies). Conversely, spreading deliberately false rumors or unquantifiable falsehoods remains subject to legal punishment and civil liability.
Foundations of Common Law
Definition of Common Law: Common law refers to a body of unwritten legal principles, traditions, and understandings that are recognized as legally binding simply because they have existed and been honored for centuries.
Origins: Common law originated strictly within the English legal system and was subsequently inherited by the legal framework of the United States.
Customary Common Law Examples:
Traffic Merging Protocol: At St. Ursula Academy (SUA), an unwritten protocol exists along Indian Road to manage morning entry traffic: vehicles turning right into the facility allow alternating vehicles turning left from across the street to enter ( alternating merge pattern) to avoid severe traffic backup.
Traffic Signal Failure: When an electrical outage disables a traffic light, drivers universally understand that the intersection must be treated as a four-way stop, granting right-of-way to whichever vehicle arrived first.
Civil Liberties versus Civil Rights
Civil Liberties: Personal guarantees and fundamental freedoms that the government is constitutionally barred from abridging or removing through statutes, executive orders, or judicial rulings.
Rooted in Thomas Jefferson's natural rights philosophy of inalienable rights ("life, liberty, and the pursuit of happiness").
These are inherent freedoms that individuals possess by birth.
Civil Rights: Government-enforced protections designed to prevent arbitrary or discriminatory treatment of individuals by governmental bodies or private entities.
Enumerated Rights: Civil rights are explicitly listed, categorized, and numbered within the text of the United States Constitution.
Post-9/11 Public Opinion and Political Perspectives on Liberties
2001 Public Opinion Data: Immediately following the September 11 terrorist attacks, of Americans (a clear plurality/majority) agreed that it was essential to surrender civil liberties in order to curb terrorism.
Long-Term Opinion Shift: Six to eight years after 2001 (during the Obama administration), public willingness to sacrifice civil liberties declined substantially.
Democratic Perspective on Shift: Attributes the change in public sentiment to Republican overreach following 9/11, specifically citing domestic phone wiretapping programs, warrantless surveillance, and the unpopular war in Iraq where anticipated weapons of mass destruction were not located.
Republican Perspective on Shift: Attributes the change to media influence, arguing that continuous news coverage criticized administration policies and eroded public faith in national security initiatives.
The Antifederalist Movement and the Creation of the Bill of Rights
Antifederalist Motivations: Antifederalists strongly resisted ratifying the Constitution due to intense fear of establishing an overbearing central government that would recreate the tyranny of the English monarchy.
Historical Monarchy Exchange: During the first official ambassadorial meeting between the King of England and John Adams, the King remarked: "I hope America doesn't suffer unduly for a brunt of a monarchy."
Political Dominance: Federalists held executive power for the first three presidential terms under George Washington and John Adams.
Ratification Requirement: To successfully ratify the Constitution, the support of of the 13 states was required. James Madison authored the Bill of Rights to secure the necessary votes from hesitant Antifederalists.
Lineage of American Political Parties: The Antifederalist ideology evolved into the Democratic-Republican Party, which later laid the groundwork for the modern Democratic Party. The Federalist ideology favored central security structures, aligning with foundational tenets of the modern Republican Party.
Comprehensive Summary of the Bill of Rights (Amendments 1–10)
First Amendment: Guarantees fundamental personal expression freedoms: freedom of speech, freedom of religion, freedom of the press, freedom of peaceful assembly, and the right to petition the government for a redress of grievances.
Second Amendment: Guarantees the right of the people to keep and bear arms.
Third Amendment: Prohibits the quartering of soldiers in private homes without the consent of the owner (enacted in response to the British military occupation and lockdown of Boston during the Revolutionary War).
Fourth Amendment: Protects citizens against unreasonable searches and seizures by requiring law enforcement to obtain a search warrant supported by probable cause.
Fifth Amendment: Outlines rights for individuals accused of crimes, including grand jury indictments, protection against double jeopardy, protection against self-incrimination, the right to due process, and the explicit right to be informed of specific criminal charges.
Sixth Amendment: Guarantees procedural rights in criminal trials, including the right to a speedy and public trial by an impartial jury, the right to confront accusers, and the right to legal counsel.
Seventh Amendment: Guarantees a trial by jury in federal civil suits where the value in controversy exceeds the historical threshold of .
Eighth Amendment: Prohibits excessive bail, excessive fines, and cruel and unusual punishments. The monetary amount set for bail must strictly fit the severity of the alleged offense (e.g., a simple retail theft cannot carry a bail bond).
Ninth Amendment: States that the enumeration of specific rights in the Constitution does not mean that other unenumerated rights retained by the people do not exist.
Tenth Amendment: Establishes the core principle of federalism by reserving all powers not explicitly delegated to the federal government, nor prohibited to the states, to the states respectively or to the people.
Labor Laws and Administrative Policies (Anecdotal Context)
Ohio Minor Labor Laws (Break Schedules):
Minors cannot legally work over consecutive hours without receiving a mandatory -minute meal break.
\text{ hours worked} = one -minute break.
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\text{ hours worked} = one -minute break and one -minute lunch break.
\text{ hours worked} = two -minute breaks and one -minute lunch break.
Retail Crime and Store Liability Incident:
Retail stores maintain strict policies prohibiting employees from physically intervening with shoplifters due to extreme safety and financial liability risks.
Case Incident: A retail employee (a former football player/ex-military member) physically tackled a shoplifter to prevent a theft. While holding the suspect's arms behind his back to restrain him, the employee accidentally cut off the suspect's air supply, causing fatal suffocation. The employee faced involuntary manslaughter charges, demonstrating why corporations prohibit physical interventions over nominal stolen goods ( to ).
High School Campus Sign-Out Handbooks: Under high school administrative guidelines (such as SUA regulations enforced by Assistant Principals like Mrs. Decker), students under years of age are legally prohibited from leaving campus grounds during school hours without documented parental approval or explicit administrative authorization, as the institution maintains legal custodial responsibility.
Barron v. Baltimore (1833) and Dual Federalism
Factual Background: John Barron owned a profitable commercial shipping wharf in Baltimore, Maryland. The city executed municipal road construction that diverted streams and accumulated sand and silt deposits around Barron's wharf, making the water too shallow for commercial vessels to dock.
Legal Action: Barron sued the city of Baltimore, claiming financial damages and alleging that the local construction violated the Fifth Amendment by taking his private property value without just compensation.
Supreme Court Ruling: The Supreme Court held that the Bill of Rights (specifically the Fifth Amendment eminent domain/takings clause) applied solely to actions executed by the national federal government, not to state or municipal governments.
Jurisdictional Impact: The ruling confirmed that state governments possessed broad local power unconstrained by federal Bill of Rights limitations, unless individual state constitutions imposed restrictions.
Gitlow v. New York (1925) and Criminal Anarchy
Factual Background: In 1919, Benjamin Gitlow, a socialist activist, was arrested for printing and distributing copies of a publication titled the Left-Wing Manifesto, which advocated mass strikes, class action, and the radical overthrow of the organized government.
State Law: Gitlow was convicted under New York’s Criminal Anarchy Law, which prohibited advocating the forcible overthrow of government.
Gitlow’s Argument: Gitlow argued that because his manifesto did not result in immediate violent action or disruption, penalizing his political speech violated First Amendment guarantees.
Supreme Court Majority Ruling (): Justice Edward Terry Sanford delivered the majority opinion, ruling that New York could constitutionally penalize speech advocating the violent overthrow of government under national security and public safety principles.
Dissenting Opinion: Justice Oliver Wendell Holmes (joined by Justice Louis Brandeis) dissented, arguing that Gitlow did not violate the Clear and Present Danger test. Holmes asserted that the manifesto was far too abstract and lacked sufficient force to create an immediate danger, rendering its suppression unconstitutional.
Constitutional Shift: Despite upholding Gitlow's conviction, Gitlow v. New York established a historic precedent by incorporating First Amendment freedom of speech protections against state laws via the Fourteenth Amendment, partially reversing the absolute state autonomy established in Barron v. Baltimore.
Substantive Due Process, Sedition, and the Alien and Sedition Acts
Substantive Due Process: A judicial interpretation of the Fifth and Fourteenth Amendments holding that the Due Process Clause protects individuals from arbitrary, unjust, or tyrannical state or federal laws, protecting basic fundamental rights regardless of the legal procedures used to pass or enforce them.
Sedition: Conduct, speech, or writing that incites resistance, insurrection, or rebellion against lawful government authority or public officials.
The Alien and Sedition Acts (1798): Enacted during the administration of Federalist President John Adams:
Alien Act: Authorized the federal government to deport non-citizens deemed dangerous to national peace and security.
Sedition Act: Criminalized writing, printing, or uttering false, scandalous, or malicious statements criticizing President Adams or the federal government.
Modern Media Practices: Major cable networks (e.g., CNN, Fox News) avoid legal liability for defamation or illegal speech by anchoring political commentary in selective, verifiable facts (such as isolated monthly inflation statistics) while avoiding outright false statements.
Incorporation Doctrine and Selective Incorporation
Incorporation Doctrine: A legal interpretation of the Constitution establishing that the Due Process Clause of the Fourteenth Amendment requires state and local governments to guarantee the fundamental protections listed in the Bill of Rights.
Selective Incorporation: The gradual, case-by-case judicial process by which the Supreme Court applies specific protections of the Bill of Rights to state governments through the Fourteenth Amendment, rather than incorporating all ten amendments simultaneously.
Unincorporated Areas: Certain constitutional provisions remain unincorporated and under exclusive state oversight, such as state educational policy (governed under Tenth Amendment state powers) or specific procedural thresholds.
Distinction from the Supremacy Clause:
Supremacy Clause: Establishes that federal statutes and the U.S. Constitution override conflicting state statutes when federal jurisdiction applies.
Incorporation Doctrine: Mandates that state laws must actively comply with fundamental federal Bill of Rights standards via Fourteenth Amendment due process guarantees.
Classroom Q&A and Student Discussions
Question on Test Scheduling:
Student Inquiry: Will the upcoming exam be administered on Friday, given the shortened class schedules on Thursday and Friday?
Instructor Clarification: The exam may occur on Friday or be moved to Monday depending on lecture progress. The instructor proposed an alternative plan to split the exam into two equal halves administered across Thursday and Friday if notes are completed early, assuring students that adequate time will be provided.
Question on Factual Misconceptions in Speech:
Student Inquiry: What occurs if an individual publishes criticism believing it to be true at the time, but later discovers the information was false?
Instructor Clarification: Legal responsibility depends on negligence and whether reasonable research was conducted. If the statement is proven false, the aggrieved party can sue civilly or demand a formal published retraction in media outlets (e.g., requesting The Blade to print a retraction over false reports of local traffic disruptions).
Question on Minor Autonomy at Age 18:
Student Inquiry: Does turning years old during senior year legally allow a student to bypass school permission policies and sign out independently?
Instructor Clarification: While turning grants adult legal status, institutional handbooks retain the authority to mandate parental signatures or administrative permission as a contractual condition of enrollment and campus safety compliance.