Chapter 5: Civil Liberties

Objectives:

1. Explain why the courts are so important in defining civil liberties, for both the national government and the states.

   1. The courts play a vital role in defining and protecting civil liberties. The Bill of Rights specifically outlines certain freedoms that individuals have. However, it does not provide enough information on how these rights should be interpreted or how they should be applied throughout society. It is up to the courts to determine when there are exceptions to such rights and specific circumstances where our rights may have been violated. The courts are so important in defining civil liberties for both national governments and the states because the judicial branch has the power of interpretation. By having laws and precedents which protect civil liberties,  we are able to maintain a strong democratic form of government where citizens are not oppressed on the basis of religious beliefs and expression.

2. Discuss which forms of expression are not protected by the Constitution, and why.

   1. The First Amendment of the Constitution protects various forms of expression, including speech, press, assembly and petition. However, certain types of expression are not protected by this amendment and can be restricted or prohibited by law or practice. One example is obscenity, which refers to material which lacks literary, artistic or scientific value and has the overall purpose/message of appealing to one's prurient interests. Obscene materials are considered outside the realm of a protected form of expression because they can offend public morality and decency standards, however what counts as obscenity can vary from community to community because different communities have different norms and standards. Libel and defamation are not protected by the First Amendment either, as it can damage someone’s reputation, however one must prove that the libel or defamation claims are false. Fighting words are also not a protected freedom of expression, as they can provoke violence.

3. Summarize how the Constitution protects religious freedom.

   1. The Constitution guarantees religious freedom in two ways: the Establishment Clause and the Free-Exercise Clause. The Establishment Clause (“Congress shall make no law respecting an establishment of religion”) means that the government cannot show favoritism to any religion, and it cannot pass laws that promote any specific faith-based practices or activities. It ensures separation between the church and state by preventing the government from interfering with religious practice, which is known as the “wall of separation.” The Free Exercise Clause (“or prohibiting the free exercise thereof”) means that citizens are allowed to freely practice their religion without interference from the government.

4. Explain how in the 21st century, the Constitution protects civil liberties for people accused of crimes or designated as “enemy combatants.”

   1. The Constitution has many due-process protections for people who are accused of committing a crime. The Fourth Amendment protects people from unreasonable searches and seizures. Consent or a search warrant is required for searching someone else's property. The Fifth Amendment protects a person from being tried twice on the same crime (double jeopardy) and Miranda rights, which prevents a person from incriminating themself. The Sixth Amendment protects the right to counsel, no matter if you can afford a lawyer or not (Gideon v. Wainwright), and the Eighth Amendment is a protection from cruel and unusual punishments, and excessive bails.

Conflicts:

• The Constitution and the Bill of Rights contain competing rights and duties
  • One person asserts one constitutional right and another person asserts a different one
  • These clashes over civil liberties can be settled in the courts
• The US was originally composed of white European Protestants. “Americanism” was equated with the values of white Anglo-Saxon Protestants
• Overtime people of various ethnic, culture, and religious differences arrived and have different views to the meaning of certain constitutional  freedoms.

First Amendment:

• Freedom of speech
  • Essential in a representative democracy so it can operate in a healthy way
  • Government restriction must be neutral, clear, and use least-restrictive means
  • Examples of speech not protected:
  • Prior restraint - government prevents free speech before it happens.
    • Usually concerns national security
  • Clear and present danger - Schenck v. US, 1919
  • Imminent danger - fighting words
  • Defamation - slander/libel
  • Commercial speech
  • Student Speech - Tinker v. Des Moines, 1969
  • Obscenity - Miller v. California, 1973
    • Obscenity is not protecting, however it is tricky to define what is obscene
    • Communities can decide for themselves
• Freedom of Religion
  • The Establishment Clause: wall of separation
  • School sponsored prayer not allowed (Engel v. Vitale, 1962)
  • Lemon Test (Lemon v. Kurtzman, 1971): secular purpose, primary effect must not advance or inhibit religion, and no excessive government entanglement.
  • The Free Exercise Clause: allows people to freely exercise their religion without government intrusion
  • No blanket exemption from laws
  • Neutrality Test: government should take no position

Rights of the Accused (Due Process)

• 4th Amendment
  • No unreasonable search and seizure, exclusionary rule
• 5th Amendment
  • Probable cause, self incrimination, and Miranda Rights
• 6th Amendment
  • Right to Counsel, Gideon v. Wainwright
• 8th Amendment
  • No cruel and unusual punishment, no capital punishment for minors or mentally impaired

Right to Privacy (9th and 14th Amendments)

• Griswold v. Connecticut: privacy for married couples
• Roe v. Wade: individual womens body is private
• Lawrence v. Texas: interactions between same sex couples

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