Unit 3: Foundations of American Liberties & Rights

What is the difference between civil liberties and civil rights?

• Civil Liberties

  • The personal guarantees and freedoms that the Federal Government cannot abridge by law, constitution, or judicial interpretation.

• Civil Rights

  • The government-protected rights of individuals against arbitrary or discriminatory treatment by governments or individuals

What are the sources of liberties & rights?

• Bill of Rights

• SCOTUS

• Legislative Action

• Amendments

How are civil liberties and civil rights protected

• Role of the Bill of Rights

  • Added to the Constitution to appease Anti-Federalists

  • Federalists saw the Bill of Rights as clarifications

  • List was not exhaustive but the government did not have expanded rights

• 14th Amendment

  • Citizenship Clause

    • Section that outlines citizenship requirements

  • Due Process Clause - civil liberties

    • Guarantees that all citizens must be given due process of law

  • Equal Protection Clause - civil rights

    • Guarantees that all citizens must receive equal protection under the law

    • Right of all persons to have the same access to the law and courts and to be treated equally by law and courts

The Courts & the 14th Amendment

• Until 1868, Bill of Rights only applied to cases involving the Federal Government

• 14th Amendment opened the idea that the Bill of Rights could be applied to states

• SCOTUS wrestled with how best to apply it and when

• Selective Incorporation Doctrine

  • A judicial doctrine whereby most but not all of the protections found in the Bill of Rights are made applicable by the 14th Amendment

  • Application of each amendment is only considered on a case by case basis

What are the four freedoms housed in the First Amendment?

• Freedom of Religion

• Freedom of the Press

• Freedom of Peaceful Assembly

• Freedom of Speech

Freedom of Religion

• Free Exercise Clause

  • Prohibits the US government from interfering with a citizen’s right to practice their religion

  • Required Case:

    • Wisconsin v. Yoder

• Establishment Clause

  • Forbids government from establishing an official religion, also forbids favoring one over another

  • Required Case:

    • Engel v. Vitale

Freedom of Speech

• Speech

  • The Courts provide the same standard of protections for both speech and press

  • Speech includes expression of words, lack of words, pictures, and actions

• Not always absolute — not always protected

  • If invites danger, is obscene, and violates existing law

  • Reverence of free expression doesn’t mean expression is tolerated at all times under all conditions

• Required Case:

  • Schenck v. US

    • Established Clear and Present Danger

  • Civil Liberties tend to shrink during times of crisis

• Symbolic Speech

  • Courts have developed regulations regarding time, place, and manner for symbolic speech

    • Restrictions can’t suppress the content of expression

    • Regulations must serve a significant government interest

    • Restrictions must be normally tailored

    • Suppression can take place if there is a better time, place. and manner to express

  • Required Case

    • Tinker vs. Des Moines

Freedom of the Press

• The Courts provide the same standard of protections for the press as they do other types of speech

• Average citizen has the right as much as a journalist

• The government can’t invoke Prior Restraint

  • Prior Restraint - Right to stop spoken/printed expression in advance

• Libel —

  • Written statements of defamation on a person’s character

• Slander —

  • Untrue spoken statements of defamations on a person’s character

• Required Case:

  • New York Times v. US

Second Amendment

• Well Regulated Militia is necessary to security

• The Right of the People to keep and bear arms shall not be infringed

• Concern at the time was the power of the federal government

  • Not necessarily owning a firearm

Federalism and Gun Policy

• States have made and continue to make their own gun-related laws

• National gun laws exist based on the commerce clause

The Courts and Gun Policy

• Gun policy represents the concept of federalism in a myriad of ways

• The courts intercede when state laws possibly violate Federal law or the 2nd Amendment

• Required Case

  • McDonald vs. Chicago

  • 2nd Amendment and its application to states through the 14th Amendment

• Related Case

  • DC vs. Heller

The Right to Privacy

• There is no established amendment that guarantees a person’s right to privacy

• Instead, that right is housed in the penumbras, or shadows. of other amendments

  • 1,3,4,5,9

• This concept was established in Griswold vs. CT

• Required Case

  • Roe vs. Wade

  • Right to privacy under the due process clause of the 14th Amendment

Property and the 5th Amendment

• Nor shall private property be taken for public use, without just compensation

  • Taking Clause of Eminent Domain

• Allows federal government to take private land for public use

Eminent Domain

• When government wants private land for public use

• Related Case

  • Kelo vs. New London

Civil Liberties of Accused Criminal Defendants

Protections in the Constitution

• Writ of Habeas Corpus

  • To be held indefinitely without proof or judgement

• Ex Post Facto Laws

  • To be arrested for something after it was made a crime

• Bills of Attainder

  • Legislative acts that impose punishment without a trial

Two Types of Due Process

• Procedural

  • Addresses the manner in which the law is carried out

• Substantive

  • Addresses the essence of the law; does it violate a basic right to life, liberty, property

Rights of the Accused

• Procedural Due Process also guarantees that the accused are treated fairly according to the law

• The 4th, 5th, 6th, and 8th Amendments have been incorporated to the states to protect these rights

4th Amendment

• Right of the people

  • To be secure in their person’s

  • Against unreasonable searches and seizures

• Protections

  • Seeks to prevent an overpowering police state

  • Warrants Search/Arrest

    • Must have probable cause

  • There are exceptions to warrant requirements

  • Once evidence is obtained, the next hurdle is what can and can’t be used against you in a court of law

“In Plain Sight” Rule

• Things in plain view of the accused person and places or things that the arrested person could to touch/reach or otherwise in the arrestee’s immediate control

• Evidence obtained in this manner can be used against you in a court of law

Exclusionary Rule

• Evidence obtained in an illegal manner cannot be used against you in a court of law

• This was incorporated to state in the case Mapp vs. Ohio (1961)

Searches and Schools

• Tinker upheld that student’s constitutional rights don’t stop at the door

• Have fewer protections against searches than in a different sphere (public)

  • New Jersey vs TLO (1985)

5th Amendment

• Protections

  • Double Jeopardy

    • Can’t be tried for the same crime twice

  • Self Incrimination

    • You do not have to take the stand in your own trial

    • Challenge is illegally obtained confessions not knowing it can be used against you

6th Amendment

• Protections

  • Right to a speedy trial

  • Jury of your peers

  • Right to know the charges brought against you; you can know the witnesses

• The right to counsel

  • When you can have a lawyer appointed if you couldn’t afford one

  • Right to counsel during police interrogation

  • Gideon vs. Wainwright

    • Incorporated right to a lawyer in all cases

8th Amendment

• Makes sure the punishment fits the crime

• Most hot button issue is the death penalty

  • States can use a variety of methods

  • States can also get rid of it

    • Example of federalism