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American National Government PL-102 Instructor Walter Pearn
Chapter 4: Civil Liberties
Chapter Objectives
Define civil liberties and civil rights.
Describe the origin of civil liberties in the U.S. context.
Identify the key positions on civil liberties taken at the Constitutional Convention.
Explain the Civil War origin of concern that the states should respect civil liberties.
Identify the liberties and rights guaranteed by the first four amendments to the Constitution.
Chapter Objectives
Explain why in practice these rights and liberties are limited.
Explain why interpreting some amendments has been controversial.
Identify the rights of those suspected or accused of criminal activity.
Explain how Supreme Court decisions transformed the rights of the accused.
Explain why the Eighth Amendment is controversial regarding capital punishment.
Course Objectives
Describe how the Ninth and Tenth Amendments reflect on our other rights.
Identify the two senses of “right to privacy” embodied in the Constitution.
Explain the controversy over privacy when applied to abortion and same-sex relationships.
Applying the Bill of Rights to the States
The Bill of Rights was added to the Constitution in 1791.
In 1833, the Supreme Court ruled that the protections of the Bill of Rights applied only to the actions of the federal government, not the states.
Following the ratification of the Fourteenth Amendment in 1868, the Bill of Rights has gradually been applied to the state governments as well.
This process is referred to as selective incorporation.
Applying the Bill of Rights to the States
Today, most of the protections of the Bill of Rights limit the actions of both the states and the federal government.
The problems facing the Supreme Court center on the specific meaning of the various protections of individual liberties found in the Bill of Rights.
Still, the Supreme Court continues to face cases that raise difficult, complex, and highly controversial issues concerning civil liberties.
Civil Liberties/Civil Rights
Civil Liberties- limitations of government, designed to protect personal freedoms.
Civil Rights- guarantees of equal treatment form government entities.
Declaration of Independence
In writing the Declaration of Independence Thomas Jefferson drew on the ideas of John Locke to express the colonists’ belief that they had certain inalienable or natural rights that no ruler had the power or authority to deny to his or her subjects.
Although the Declaration of Independence does not guarantee specific freedoms, its language was instrumental in inspiring many of the states to adopt protections for civil liberties and rights in their own constitutions, and in expressing principles of the founding era that have resonated in the United States since its independence.
In particular, Jefferson’s words “all men are created equal” became the centerpiece of struggles for the rights of women and minorities
bill of attainder
Is a law that convicts or punishes someone for a crime without a trial, a tactic used fairly frequently in England against the king’s enemies.
Prohibition of such laws means that the U.S. Congress cannot simply punish people who are unpopular or seem to be guilty of crimes.
An ex post facto law has a retroactive effect: it can be used to punish crimes that were not crimes at the time they were committed, or it can be used to increase the severity of punishment after the fact.
Habeas Corpus
Finally, the writ of habeas corpus is used in our common-law legal system to demand that a neutral judge decide whether someone has been lawfully detained.
Particularly in times of war, or even in response to threats against national security, the government has held suspected enemy agents without access to civilian courts, often without access to lawyers or a defense, seeking instead to try them before military tribunals or detain them indefinitely without trial.
For example, during the Civil War, President Abraham Lincoln detained suspected Confederate saboteurs and sympathizers in Union-controlled states and attempted to have them tried in military courts, leading the Supreme Court to rule in Ex parte Milligan that the government could not bypass the civilian court system in states where it was operating.2
Ex parte Quirin
During World War II, the Roosevelt administration interned Japanese Americans and had other suspected enemy agents—including U.S. citizens—tried by military courts rather than by the civilian justice system, a choice the Supreme Court upheld in Ex parte Quirin.
More recently, in the wake of the 9/11 attacks on the World Trade Center and the Pentagon, the Bush and Obama administrations detained suspected terrorists captured both within and outside the United States and sought, with mixed results, to avoid trials in civilian courts. Hence, there have been times in our history when national security issues trumped individual liberties.
The Free Exercise Clause
The Supreme Court has held that although individuals are free to hold whatever religious views they wish; the government may prohibit certain religious practices.
However, particularly in recent years, the courts have required that the government demonstrate a compelling state interest in order to lawfully restrict the free exercise of religion.
Bill of Rights
| Rights and Liberties Protected by the First Ten Amendments | |
| First Amendment | Right to freedoms of religion and speech; right to assemble and to petition the government for redress of grievances |
| Second Amendment | Right to keep and bear arms to maintain a well-regulated militia |
| Third Amendment | Right to not house soldiers during time of war |
| Fourth Amendment | Right to be secure from unreasonable search and seizure |
| Fifth Amendment | Rights in criminal cases, including due process and indictment by grand jury for capital crimes, as well as the right not to testify against oneself |
| Sixth Amendment | Right to a speedy trial by an impartial jury |
| Seventh Amendment | Right to a jury trial in civil cases |
| Eighth Amendment | Right to not face excessive bail, excessive fines, or cruel and unusual punishment |
| Ninth Amendment | Rights retained by the people, even if they are not specifically enumerated by the Constitution |
| Tenth Amendment | States’ rights to powers not specifically delegated to the federal government |
Due Process Clause
States “nor shall any State deprive any person of life, liberty, or property, without due process of law.”
This provision is similar to the Fifth Amendment in that it also refers to “due process,” a term that generally means people must be treated fairly and impartially by government officials (or with what is commonly referred to as substantive due process).
Although the text of the provision does not mention rights specifically, the courts have held in a series of cases that it indicates there are certain fundamental liberties that cannot be denied by the states. For example, in Sherbert v. Verner (1963), the Supreme Court ruled that states could not deny unemployment benefits to an individual who turned down a job because it required working on the Sabbath.9
The Establishment Clause
This clause has been interpreted as intending to prohibit excessive governmental involvement in religion.
Most of its meaning has been derived from a number of Supreme Court decisions that have centered on three issues:
1. Aid to Parochial Schools
2. School Prayer
3. Religious Displays on Public Property
selective incorporation
of the Bill of Rights into the practices of the states; in other words, the Constitution effectively inserts parts of the Bill of Rights into state laws and constitutions, even though it doesn’t do so explicitly.
When cases arise to clarify particular issues and procedures, the Supreme Court decides whether state laws violate the Bill of Rights and are therefore unconstitutional.
Due Process
For example, under the Fifth Amendment a person can be tried in federal court for a felony—a serious crime—only after a grand jury issues an indictment indicating that it is reasonable to try the person for the crime in question.
(A grand jury is a group of citizens charged with deciding whether there is enough evidence of a crime to prosecute someone.)
But the Supreme Court has ruled that states don’t have to use grand juries as long as they ensure people accused of crimes are indicted using an equally fair process.
Blue Laws
But some laws that may appear to establish certain religious practices are allowed.
For example, the courts have permitted religiously inspired blue laws that limit working hours or even shutter businesses on Sunday, the Christian day of rest, because by allowing people to practice their (Christian) faith, such rules may help ensure the “health, safety, recreation, and general well-being” of citizens.
They have allowed restrictions on the sale of alcohol and sometimes other goods on Sunday for similar reasons.
The free exercise clause
Limits the ability of the government to control or restrict religious practices.
This portion of the First Amendment regulates not the government’s promotion of religion, but rather government suppression of religious beliefs and practices.
Much of the controversy surrounding the free exercise clause reflects the way laws or rules that apply to everyone might apply to people with particular religious beliefs.
For example, can a Jewish police officer whose religious belief, if followed strictly, requires her to observe Shabbat be compelled to work on a Friday night or during the day on Saturday? Or must the government accommodate this religious practice, even if it means the general law or rule in question is not applied equally to everyone?
Aid to Parochial Schools
Although the establishment clause requires a “wall of separation” between church and state, the Court has determined specific exceptions to this rule.
In Lemon v. Kurtzman (1971), the Supreme Court outlined a three-part test to determine the constitutionality of state aid to parochial schools.
The Lemon test states that the law must have a secular purpose, that the primary effect of the program must not be either to promote or to interfere with religion, and that the government’s policy must not result in “excessive entanglement” of church and state.
In recent years, conservatives on the Supreme Court have limited the scope of the Lemon test, permitting state assistance in cases “where a government aid program is neutral with respect to religion.”
School Prayer
In 1962, the Supreme Court ruled in the case Engel v. Vitale that a state-approved nondenominational prayer given in public schools violated the establishment clause.
Since then, the Court has consistently ruled that prayers and Bible reading in public schools are an unconstitutional establishment of religion.
Religious Displays on Public Property
The Supreme Court’s rulings on the constitutionality of religious displays in public places have varied depending on the specific facts and the nature of each individual situation.
For example, in 2005 a broad, long-standing historical display at the Texas State Capitol that included a depiction of the Ten Commandments was permissible, while the presence of framed copies of the Commandments on the walls of two courthouses in Kentucky was not permitted.
conscientious objectors
Individuals who claim the right to refuse to perform military service on the grounds of freedom of thought, conscience, or religion—have also been controversial, although many conscientious objectors have contributed service as non-combatant medics during wartime.
To avoid serving in the Vietnam War, many people claimed to have a conscientious objection to military service on the basis that they believed this particular war was unwise or unjust. However, the Supreme Court ruled in Gillette v. United States that to claim to be a conscientious objector, a person must be opposed to serving in any war, not just some wars.16
Sherbert test.
In the 1960s and 1970s, the Supreme Court decided two cases in which it laid out a general test for deciding similar cases in the future.
In both Sherbert v. Verner, a case dealing with unemployment compensation, and Wisconsin v. Yoder, which dealt with the right of Amish parents to homeschool their children, the court said that for a law to be allowed to limit or burden a religious practice, the government must meet two criteria.
It must demonstrate both that it had a “compelling governmental interest” in limiting that practice and that the restriction was “narrowly tailored.” In other words, it must show there was a very good reason for the law in question and that the law was the only feasible way of achieving that goal.
This standard became known as the Sherbert test. Since the burden of proof in these cases was on the government, the Supreme Court made it very difficult for the federal and state governments to enforce laws against individuals that would infringe upon their religious beliefs.
Freedom of Speech, Press, Assembly, and Petition
The First Amendment provides that “Congress shall make no law abridging the freedom of speech, or of the press.”
However, the courts have regularly ruled that such protections are not absolute and that the government does have the right to limit freedom of speech in certain circumstances.
Censorship: The Rule Against Prior Restraint
Prior restraint means preventing or censoring materials before they are published, displayed, or spoken.
Perhaps the most famous case involving prior restraint was the decision of the U.S. Supreme Court in the “Pentagon Papers” case in 1971.
In that decision, the Court ruled that “any system of prior restraints of expressions comes to this Court bearing a heavy presumption against its constitutional validity; the Government thus carries a heavy burden of showing justification for imposition of such a restraint.”
Historically, the government has rarely met such a burden.
Sedition: Advocacy of Illegal Acts
Sedition may be defined as speech or writing that advocates or incites discontent or rebellion against government.
The Sedition Acts of 1798 and 1918 prohibited speech and writings that were critical of government.
The Smith Act of 1940 made it illegal to advocate, or conspire to advocate, the overthrow of the government.
The law was upheld in the case of Dennis v. United States (1951).
Later the Court ruled that advocating the overthrow of the government, as an abstract doctrine, was protected by the First Amendment.
In Brandenburg v. Ohio in 1969, the Court ruled that speech must show imminent danger and a likelihood that the danger will actually occur to violate the First Amendment.
Protecting Public Order: The First Amendment in Public Places
The right to use public forums is very broad, but the government may place certain restrictions on potentially disruptive activities.
The right to use public streets and other places for meetings and marches is generally protected.
The Supreme Court reaffirmed this basic right in 2011 when it determined that members of the Westboro Baptist Church were within their rights when they demonstrated near a military funeral using such slogans as “Thank God for Dead Soldiers.”
Protecting Public Order: The First Amendment in Public Places
The Court determined that the protests touched on important public issues and were protected free speech, despite the unsavory nature of the demonstration.
However, authorities may prohibit such actions as the blocking of traffic, demonstrating near a school when classes are in session, or blocking the entrance to a public building.
The government may also make reasonable regulations regarding the time, place, and manner of public meetings.
Protecting Public Morals: Obscenity
Obscenity is not protected by the First Amendment, but the Court has had difficulty defining it.
Generally, local communities are allowed to define obscenity by their own standards and to regulate its availability with zoning ordinances.
The Court has held that individuals may possess obscene material for private use in the home, but this protection does not cover those materials considered child pornography.
Libel and Slander
Spoken and written defamation is not protected by the First Amendment, but the Court has held that criticisms of government officials in regard to their authorized duties cannot be classified as slander or libel and is thus protected.
Unlike public figures, such as celebrities and public officials, private individuals are granted greater protections against defamatory statements.
The First Amendment and Campaign Spending
In the case of Buckley v. Valeo (1976), the Supreme Court ruled that several provisions of the Federal Election Campaign Act of 1974 were unconstitutional—specifically those that placed limits on the amounts candidates could spend on campaigns and on the amount of personal money a candidate could spend in promoting his or her own candidacy.
Other efforts to establish restrictions on campaign spending have also encountered opposition from the courts.
In 2010, the Supreme Court invalidated a federal law that had restricted corporations and labor unions from spending money to influence elections.
The Court determined that these entities had the same free speech rights as individuals.
The Right of Association
In NAACP v. Alabama (1958), the Supreme Court found that, although not specifically mentioned in the Constitution, the right of free association can be derived from the First Amendment.
Thus, the right to associate with various groups and organizations is protected.
In a controversial decision in 2000, the Court upheld the right of the Boy Scouts of America to bar persons who are known to be gay from the leadership positions in the organization.
Commercial Speech
Before 1970, the courts had been reluctant to extend First Amendment protections to commercial speech.
However, since 1970, the courts have ruled that commercial speech is protected by the First Amendment provided it is not false or misleading and does not promote unlawful activity.
Symbolic Speech
Freedom of speech is not limited to words alone; it includes some forms of expressive conduct that are referred to as symbolic speech.
These include acts such as flying a flag or wearing an armband.
In 1989 and 1990, the Court struck down laws making it a federal crime to burn or deface the American flag.
Free Press and a Free Trial
In certain instances, the First Amendment freedom of the press can clash with the Sixth Amendment right of a person accused of a crime to a fair and impartial jury.
In these cases the Court has favored restrictions on the press. For example, judges may control the flow of information to the news media to restrict statements made in relation to the court case being held.
The First Amendment does not give television stations the right to have cameras in the courtroom, but government may, if it chooses, grant that right.
The Rights of the Criminally Accused
In the Constitution, most of the rights of the criminally accused appear in the Bill of Rights.
These rights were intended to protect citizens against certain types of conduct by law enforcement authorities and judges.
Their purpose was to prevent innocent people from being wrongly convicted, even though a few guilty ones might go free.
Search and Seizure
The Fourth Amendment provides for people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.
The courts have interpreted the Fourth Amendment as generally requiring a warrant before such searches and seizures can take place.
However, the courts have established a growing number of exceptions to the warrant requirement. For example, the Supreme Court has held that the police may search a person who has been lawfully arrested, may also stop and frisk a person who is acting suspiciously, and have broad authority to search vehicles that they have stopped.
Exception to the warrant requirement
Search incident to arrest Open Fields
Plain view Abandonment
Consent Regulatory/Administrative Searches
Stop and frisk (Private Searches) Exigent Circumstances
Automobile Impound & Inventory
Open Fields
Exclusionary Rule
Under certain circumstances, evidence seized during an illegal search may fall under the exclusionary rule of evidence, which prohibits its use in court proceedings.
The purpose of the exclusionary evidence rule is to deter the use of illegal searches and seizures by the police.
A number of exemptions to the exclusionary evidence rule exist.
Electronic and Other Forms of Surveillance
In Katz v. United States (1967), the Court applied the warrant requirements of the Fourth Amendment to telephone tapping and electronic listening devices.
In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act, which legalized electronic surveillance by the federal, state, and local governments—provided such activities remained within the scope of the Fourth Amendment as defined by the Court in the Katz decision.
Freedom from Self-Incrimination
The Fifth Amendment provides protection against self-incrimination.
This protection applies not only to people who are actually suspected of criminal wrongdoing but also to those who testify before investigatory bodies such as grand juries and congressional committees.
1963 landmark case Miranda v. Arizona.
This provision became binding on the states in 1964.
The Fifth Amendment also requires that the silence of an accused person not be interpreted as an indication of guilt.
Indictment by Grand Jury
A grand jury examines a formal charge against an accused person to determine whether there is sufficient evidence to hold the accused for trial.
If so, the grand jury returns an indictment. An indictment is one of the Bill of Rights guarantees that is not binding on the states.
Many states substitute a bill of information—which is an affidavit filed by a prosecutor—for a grand jury indictment.
Double Jeopardy
The protection against double jeopardy means that a person cannot be tried for the same offense twice if the first trial resulted in a not-guilty verdict (Acquittal).
However if new evidence is obtained a defendant could be charged and tried again. The new charge can not be the same as the first. Example defendant charged with murder and acquitted can not be charge with murder again if new evidence arises. The defendant could then be charged with aggravated manslaughter or manslaughter.
The Right to Counsel
The first procedural guarantee in the Bill of Rights to be incorporated against the states through judicial interpretation was the right of a defendant to an attorney when charged with a capital offense (Powell v. Alabama, 1932).
Beginning with Gideon v. Wainwright (1963), Sixth Amendment protection has been applied to the states in all felony trials.
In 1972, this protection was extended further when the Court determined that the right to counsel protects people in misdemeanor cases (NJ Disorderly persons offenses) in which a person might be imprisoned.
The Right to an Impartial Jury
The Sixth Amendment guarantees that persons accused of a crime are represented by an attorney.
An important issue related to this is jury selection.
Examination of prospective jurors, or voir dire, is the primary means by which an impartial jury is selected.
Confessions
Two important questions arise when discussing the constitutionality of confessions.
First is whether statements obtained by the police from persons accused of crimes violated their protection against self-incrimination.
Second is whether an accused person should have a right to counsel when questioned by the police.
The most famous case arising from the use of confessions is Miranda v. Arizona (1966), in which the Supreme Court ruled that police must follow a set of procedural rules before they can question someone.
However, in recent years, the Court has determined that there may be specific instances where the police are not required to read Miranda warnings (Pedigree information upon arrest “name, address, date of birth, next of kin ect is ok. Information during motor vehicle stop ok)
“Cruel and Unusual Punishment” and the Death Penalty
There have been many recent questions as to whether the death penalty constitutes cruel and unusual punishment.
The Supreme Court has upheld the states’ rights to execute criminals.
The Court has held that state death penalty laws meet certain standards. For example, the Court must take into consideration both mitigating factors (age, prior convictions) and aggravating (type of violence used) factors.
Also, jurors, not judges, must decide the factual issues in each case.
Detainees and the War on Terrorism
International law traditionally sets forth rules governing the treatment of the enemy in a time of war. The Geneva Convention (1929), for example, establishes rules governing how prisoners of war must be treated.
The question of how to handle terrorism suspects seized by the United States in Iraq and Afghanistan has raised important questions in this respect.
President Bush regularly argued that the protections of the Geneva Convention do not apply in this case, because detainees are “enemy combatants,” not foreign soldiers.
Detainees and the War on Terrorism
In 2006, Congress passed the Military Commissions Act, which established a separate trial procedure for prisoners accused of terrorist acts and suspended their right to habeas corpus.
In 2008, the Supreme Court determined that enemy combatants are entitled to the protections of habeas corpus.
President Barack Obama has vowed to close the military prison at Guantanamo Bay, Cuba, but the facility is still open and houses more than 100 detainees.
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