American Law: Civil Liberties

American Law Chapter 4: Civil Liberties

Liberties Protected in the Constitution

  • Limiting the Crime of Treason

  • Habeas Corpus (Art 1 § 9)

    • Right of an individual not to be held in unlawful custody.

    • Right to court review.

    • SCOTUS found that habeas applied at Guantanamo Bay (Gitmo).

  • Prohibition of Ex Post Facto Laws (criminal only)

    • Retroactive laws apply to events that occurred before the law's passage.

    • Must seriously disadvantage the accused; mere changes in procedure are permitted.

  • Prohibition on Bills of Attainder

    • Defined through U.S. v. Brown: Legislative acts that apply punishment to individuals or groups without a judicial trial are prohibited.

    • Example Question: Are executive orders by Trump against law firms considered bills of attainder?

The Contract Clause

  • Constitutional Provision:

    • No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make anything but gold or silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

  • Motivation for the Constitutional Convention

    • Establish protection for contracts.

  • SCOTUS during the Great Depression:

    • Stated that “the reservation of the protective power of the state is read into all contracts,” suggesting a degree of governmental control over contract enforcement.

Bill of Rights

  • Jefferson vs. Madison

    • Jefferson supported a Bill of Rights, stating: “You must specify your liberties and lay them down on paper.”

    • Madison opposed, with his draft binding states as well, contended by advocates for states' rights.

  • Incorporation

    • Began in the late 19th century with the 14th Amendment: “No state shall… deprive any person of life, liberty or property without due process of law.”

    • From 1897 onwards, SCOTUS interprets this clause as incorporating the Bill of Rights, making these rights applicable to state and local governments.

    • Rights not yet incorporated:

    • 3rd Amendment

    • Grand Jury Clause of the 5th Amendment

    • 7th Amendment

Incorporation as a Process

  • **Cases Incorporating Provisions of the Bill of Rights into the Fourteenth Amendment: **

    • Establishment of Religion:

    • Everson v. Bd of Education (1947)

    • Free Exercise of Religion:

    • Cantwell v. Connecticut (1940)

    • Freedom of Speech:

    • Gitlow v. New York (1925)

    • Freedom of the Press:

    • Near v. Minnesota (1931)

    • Freedom of Assembly:

    • DeJonge v. Oregon (1937)

    • Petition for Redress of Grievances:

    • Edwards v. South Carolina (1963)

    • Right to Bear Arms:

    • McDonald v. Chicago (2010)

    • Unreasonable Search and Seizure:

    • Wolf v. Colorado (1949)

    • Double Jeopardy:

    • Benton v. Maryland (1969)

    • Self-Incrimination:

    • Malloy v. Hogan (1964)

    • Just Compensation:

    • Chicago, B&Q RR v. Chicago (1897)

    • Right to Speedy Trial:

    • Klopfer v. North Carolina (1967)

    • Right to Public Trial:

    • In re Oliver (1948)

    • Right to Trial by Impartial Jury:

    • Duncan v. Louisiana (1968)

    • Right to Confront Witnesses:

    • Pointer v. Texas (1965)

    • Right to Compulsory Process:

    • Washington v. Texas (1967)

    • Right to Counsel:

    • Gideon v. Wainwright (1963)

    • Cruel and Unusual Punishment:

    • Robinson v. California (1962)

    • Excessive Bail:

    • Schilb v. Kuebel (1971)

    • Excessive Fines:

    • Timbs v. Indiana (2019)

Freedom of Religion: Free Exercise

  • Rights:

    • Absolute right to express religious views and assemble with other believers.

    • Right to solicit funds and proselytize, subject to time, manner, and place restrictions.

  • Case Example: Roman Catholic Diocese of Brooklyn v. Cuomo

    • Majority opinion states that constitutional rights cannot be set aside, even during a pandemic, noting that restrictions on worship effectively hinder First Amendment guarantees.

Free Exercise: Unconventional Religious Practices

  • Reynolds v. U.S. (1879):

    • Anti-polygamy statute applied to members of Latter Day Saints.

    • Ruling: The free exercise clause does not allow violation of laws that promote public welfare or morality.

  • Sherbert v. Verner (1963):

    • Case of a Seventh-day Adventist fired for refusing to work on Saturday.

    • Ruling established the Sherbert Test:

    • The individual must demonstrate sincere religious belief.

    • The government must show an undue burden has been imposed.

    • If so, the government must prove the means are the least restrictive to achieve a compelling interest.

  • Further Developments:

    • In 1972, SCOTUS exempted Amish from compulsory school laws.

    • The case Employment Division v. Smith (1990) rejected Native Americans' claims for drug-use exemptions (peyote). Justice Scalia noted that neutral laws do not allow for exercise clause challenges.

  • Religious Freedom Restoration Act (1993):

    • Congress's response to Employment Division v. Smith.

    • Overturned by SCOTUS in 1997, ruling RFRA unconstitutional as an imposition on state powers.

    • In 2003, SCOTUS upheld Sherbert in case involving customs agents confiscating DMT tea for religious use.

Do Businesses Have Religious Rights?

  • Masterpiece Cake Shop:

    • SCOTUS ruled in favor of a cake shop owner who refused to make a wedding cake for a same-sex couple, citing Free Exercise Clause violations by the Colorado Civil Rights Commission.

    • The Court emphasized that while the religious beliefs of business owners are protected, they cannot deny service under public accommodations laws.

    • Cited Newman v. Piggie Park Enterprises, Inc. where a similar claim was rejected, highlighting the frivolity of the argument.

303 Creative (2023)

  • Case Description:

    • Lorie Smith, a graphic designer, wishes to expand her business to create wedding websites but opposes same-sex marriage on religious grounds.

    • The Colorado Anti-Discrimination Act prohibits public businesses from discriminating based on sexual orientation.

    • Held that the First Amendment prohibits Colorado from compelling a website designer to produce messages contrary to their beliefs.

    • Acknowledges public accommodations laws while upholding individual constitutional rights.

Mamhoud v Taylor (2025)

  • Case Overview:

    • Addresses whether public schools burden parental religious exercise by enforcing sexual education without opt-out provisions.

    • Focuses on a curriculum including LGBTQ-themed storybooks, which allegedly contradicts parents' religious beliefs, invoking Wisconsin v. Yoder.

    • The court applied the principle that government policies must not infringe on parental rights concerning their children's religious upbringing.

Religious Rights of Individuals Under Government Control

  • Military:

    • SCOTUS upheld a military dress code that restricted religious attire. Congress later allowed service members to wear religious religious symbols unless duty is interfered with.

  • Prisoners:

    • Holt v. Hobbs (2015): Muslim prisoner allowed to grow a beard based on the Sherbert Test.

Separation of Church and State: The Establishment Clause

  • Lemon v. Kurtzman (1971): Established the Lemon Test for laws:

    • Must have a secular legislative purpose.

    • Principal effect must neither advance nor inhibit religion.

    • Must not foster excessive governmental entanglement with religion.

School Prayer

  • Early 1960s Warren Court prohibited prayer/Bible reading in public schools.

  • Important cases:

    • 1996 SCOTUS struck down an Alabama minute of silence law.

    • 2000 SCOTUS invalidated student-led prayer at sporting events.

Kennedy v. Bremerton School District (2022)

  • Facts:

    • Teacher Kennedy claims he was fired for private prayer at midfield, while the district counters he was fired for public displays of prayer that pressures students.

  • Decision:

    • Gorsuch dismissed the precedence of the Lemon Test, focusing instead on historical understanding of the Constitution.

    • Dissent by Sotomayor emphasized the possible implications for the rights of students.

Evolution and Creationism

  • Historical Context:

    • 1925 Scopes Trial: Convicted for teaching evolution but reversed on a technicality.

    • 1987 Edwards v. Aguillard: Invalidated a law requiring equal time for creationism, citing failure to meet the Lemon Test.

Aid to Religious Schools

  • Previous Standards: Aid can be given to religious schools as part of general benefit programs.

  • Notable cases:

    • 1997 upheld NYC program providing remedial education in religious schools.

    • Carson v. Makin (2022): States required to fund religious schools equivalent to other private schools, even for religious instruction.

Governmental Acknowledgment of Religion

  • Courts more tolerant of religious activities outside of schools:

    • Town of Greece v. Galloway (2014): Prayer allowed at town meetings.

    • American Legion v. American Humanist Assoc.: SCOTUS allowed a cross on public land, defining it as having a secular purpose to honor veterans.

Free Expression and Freedom of Assembly

  • Fostering free information flow between people and representatives.

  • Key Cases:

    • Schenck v. U.S. (1919): Upheld conviction for anti-war leaflets, emphasizing context of speech.

    • Brandenburg v. Ohio (1969): Broadened free speech rights by protecting a KKK rally.

Expressive Conduct

  • Traditional view that conduct isn’t protected changed, with SCOTUS now protecting civil rights related actions:

    • U.S. v. O’Brien (1968) upheld conviction for burning draft cards based on legitimate government interests.

    • Warren’s Test for governmental regulation:

    • Constitutional power must exist.

    • Advances an important governmental interest.

    • Unrelated to suppressing free expression.

    • Restrictions must be minimal.

Offensive Speech, Fighting Words, and Threats of Violence

  • Cohen v. California (1971): Court ruled against a conviction for what was considered offensive speech not directed at an individual.

  • Fighting Words: “Personal epithets likely to provoke violence.”

  • Snyder v. Phelps (2011): Upheld protest rights of controversial hate speech near military funerals.

Defamation

  • Making damaging false statements about a person:

    • Oral defamation = slander

    • Written defamation = libel

  • Important cases:

    • NYT v. Sullivan (1964): Public officials must prove “actual malice” to win a defamation suit.

    • Gertz v. Welch: Established different protections for private individuals vs. public figures.

Can the Government Use its Power to Curtail Speech?

  • Bantam Books Inc. v. Sullivan (1963): Cautioned against government coercion on speech; set limits for legality of government actions against expressions.

  • NRA v. Vullo (2024): Confirmed that government officials can't coerce private entities to suppress speech.

Obscenity

  • Not protected by First Amendment; problematic definitions lead to complex legal interpretations.

  • Groundbreaking cases include:

    • One Inc. v. Olesen (1958): Struck down postal prohibition of a gay magazine, favoring free expression rights.

    • Miller v. California: Established guidelines for determining obscenity.

Freedom of Speech by Public School Students

  • Tinker v. Des Moines: Students retain rights to free speech, provided it does not disrupt school activities.

  • Subsequent contradictory cases have clarified and somewhat limited student expression rights.

Commercial Speech

  • Businesses possess speech rights, albeit less protected than political speech.

  • Established a test for governmental regulation of commercial speech based on interest and necessity.

Prior Restraint

  • Near v. Minnesota (1931): Established a strong presumption against prior restraint of publications, allowing it only under special circumstances.

  • Pentagon Papers Case: Government couldn’t justify prior restraint, emphasizing the press's role in democracy.

Public vs. Private Forums

  • Public Forums: Restrictions are subject to strict scrutiny; compelling interests must be demonstrated.

  • Private Forums: Rational basis for restrictions must exist; SCOTUS deemed some places, like airports, private.

Freedom of Assembly

  • Edwards v. South Carolina (1963): Court overturned convictions against peaceful assembly by students.

  • Time, place, and manner restrictions must be justified by significant governmental interests.

Freedom of Association

  • Implicit in the First Amendment; involved conflicts with discrimination.

  • Key case: Roberts v. United States Jaycees affirmed government interests against gender discrimination in organizations.

The Right to Keep and Bear Arms

  • 2nd Amendment's Evolution: Initially about militia, but the SCOTUS defines it to affirm an individual’s right to bear arms in Heller (2008).

Rights of the Accused

  • Due Process of Law: Governed by 5th and 14th Amendments; requires fair notice and hearing before depriving liberty.

  • Exclusionary Rule: Evidence obtained unlawfully cannot be used in court, with several contemporary exceptions.

Rights of the Accused Continued

  • Miranda (1966): Ensures protection against compulsory self-incrimination.

  • Grand Jury Requirement: Federal government needs a grand jury indictment, not universally applicable to the states.

Due Process of Law

  • Protects private property from government interference; requires rational basis for regulation.

Double Jeopardy (5th Amendment)

  • Prohibits prosecution for the same crime by both state and federal courts; justice system elements can criticize double jeopardy interpretations.

Trial by Jury (6th Amendment)

  • Respects the rights to a speedy trial, public trial, impartial jury, compulsory witnesses, and the right to counsel.

Cruel and Unusual Punishment (8th Amendment)

  • Diverse rulings around the constitutionality of the death penalty and its enforcement.

Property Rights

  • Eminent domain must have legitimate purposes and provide compensation.

    • Notable case: Kelo v. City of New London, which ruled economic development could justify property seizure.

Protection of Unenumerated Rights (9th Amendment)

  • Addresses rights not specifically mentioned in the Constitution, suggesting broad civil liberties.

Liberty of Contract

  • Lochner v. NY (1905) affirmed the right to make contracts as a constitutionally protected liberty, resulting from early 20th-century economic regulations.

Right of Privacy

  • Griswold v. Connecticut (1965): Established a right to marital privacy regarding contraceptives as a culmination of interrelated rights within the Constitution.

Government Vaccine Mandates

  • Jacobson v. Massachusetts (1905) confirmed states could mandate vaccinations for the public good, adapting over time for contemporary health requirements.