Principles of democracy and the Constitution, all the way to civil liberties and equal protection
Chapter 15
CIVIL LIBERTIES
Civil Liberties in the Constitution
Constitutional provisions, laws, and practices that protect individuals from governmental interference.
As embodied in the Bill of Rights, civil liberties are prohibitions against government actions that threaten freedom, such as freedom of speech and religion.
Civil Liberties in the Original Constitution
Prohibition against suspending the writ of habeas corpus except when public safety demanded it due to rebellion or invasion
Civil Liberties in the original Constitution p. 2
Prohibition against passing bills of attainder: Congress cannot pass a law that singles out a person for punishment without trial.
The U.S. Supreme Court has invalidated laws under the Attainder Clause on five occasions
Ex. The Court confronted a federal law that named three people as subversive and excluded them from federal employment. The Court said that a bill of attainder:
1) specifically identified the people to be punished;
2) imposed punishment
3) did so without benefit of judicial trial.
Prohibition against passing ex post facto laws: A law that retroactively makes criminal an act that was not criminal at the time it was done
Struck down: An 18-year-old may not be prosecuted in adult court for a crime committed when 18-year-olds were under juvenile court jurisdiction
Pearson Education, Inc. © 2005
Civil Liberties in the Original Constitution p. 3
Examples of Ex Post Facto laws upheld
One current U.S. law that has a retroactive effect is the Adam Walsh Child Protection and Safety Act of 2006.
This law imposes new registration requirements on convicted sex offenders and also applies to offenders whose crimes were committed before the law was enacted.
The U.S. Supreme Court ruled in Smith v. Doe (2003) that forcing sex offenders to register their whereabouts at regular intervals, and the posting of personal information about them on the Internet, do not violate the constitutional prohibition against ex post facto laws, because these laws do not impose any kind of punishment
Bill of Rights
Objections to the absence of a more specific listing led James Madison to promise that a bill of rights would be proposed as a condition for ratifying the Constitution.
THE EARLY COURTS (1800s)
The Bill of Rights does not apply to the states.
Barron v. Baltimore (1833)
THE EARLY COURTS p. 2
Economic liberty in the early republic
On of the few protections of liberty in the original Constitution concerns private property: states are prohibited from impairing the obligation of contracts.
The importance of property rights has been reinforced by more than a century of judicial interpretation.
Little attention was paid to the judicial protection of civil liberties, and little progress was made in rights of women and African Americans.
Rights and Liberties after the Civil War
Fourteenth Amendment
-designed to guarantee the citizenship rights of the newly freed slaves.
-due process clause: No state may “deprive a person of life, liberty, or property, without due process of law.”
Nationalization of the Bill of Rights
The Supreme Court only gradually applied the Bill of Rights to the states through selective incorporation.
Standards for Incorporation
How does the Supreme Court decide whether to incorporate some portion of the Bill of Rights?
The answer is spelled out in footnote four of the Court’s opinion in U.S. v. Carolene Products Company (1938).
State actions bring strict scrutiny if they:
Contradict Constitutional prohibitions
Restrict the democratic process
Discriminate against minorities
Freedom of Speech: Political Speech
Schenck v. United States (1919)
censorship only when speech poses a “clear and present danger”
Gitlow v. New York (1925)
finally incorporated freedom of speech
but Gitlow still left in jail
role of ACLU
Increasingly, Americans seem willing to constrain or suppress political speech when it makes some members of the larger community uncomfortable.
Freedom of Speech: Actions and Symbolic Speech
Symbolic expressions may receive less protection from the Court
Texas v. Johnson (1989)
flag desecration falls under free expression protections
Suppression of Free Expression
One major exception to the expansion of freedom of expression: periodic concern about “internal security”
WWI
-restrictive state laws
-raids on offices of “radicals
Post-WWII
-Joseph McCarthy and HUAC
Post-September 11
-The USA Patriot Act
Free Exercise of Religion
The First Amendment
Prohibits Congress from making laws that prohibit the free exercise of religion
Provides that Congress shall not make laws respecting an establishment of religion
Establishment of Religion
The establishment clause has been interpreted to require that government must take a position of neutrality.
-Everson v. Board of Education (1947)
Students Rights: Morse v. Frederick (2007)
Morse v. Fredrick cont…
Chief Justice Roberts, writing for the majority, concluded that the school officials did not violate the First Amendment.
To do so, he made three legal determinations:
First, that "school speech" doctrine should apply because Frederick's speech occurred "at a school event";
Second, that the speech was "reasonably viewed as promoting illegal drug use"; and
Third, that a principal may legally restrict that speech—based on the three existing First Amendment school speech precedents, other Constitutional jurisprudence relating to schools, and a school's "important, indeed, perhaps compelling interest" in deterring drug use by students.
School Prayer
Since the early 1960s, the Court has consistently ruled against nondenominational prayer or a period of silent prayer in the public schools.
Engel v. Vitale (1962)
Stone v. Graham (1980)
Lee v. Weismann (1992)
Santa Fe Independent School District v. Doe (2000)
Yet in some cases, the Court has ruled in favor of religious groups.
Religious groups allowed to meet in public schools
Students allowed to pray on their own or in unofficial study groups
Privacy
The freedom to be left alone in our private lives (the right to privacy) is not specifically mentioned in the Constitution.
Griswold v. Connecticut (1965)
ruled that the right to privacy is inherent in the Bill of Rights
became an important precedent for Roe v. Wade (1973)
Capital Punishment
Furman v. Georgia (1972): Death penalty violates the 8th amendment protection against cruel and unusual punishment
Gregg v. Georgia (1976): Reversed Furman
Roper v. Simmons (2005) Executing a minor. The Court ruled that standards of decency have evolved so that executing minors is "cruel and unusual punishment" prohibited by the Eighth Amendment
Adkins v. Virginia (2002): the Court held that executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment