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3CivilLiberties.pptxCivil Liberties
POSC 121 Braunwarth
Freedom
The idea of liberty is central to our political culture
Classical Liberal tradition
Declaration of Independence
What are Civil Liberties?
Individual protections from certain types of government interference
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Civil Liberties
Where can they be found?
Primarily in the Constitution
Anti-Federalists wanted the federal government to honor civil liberties so got the Bill of Rights
Why put these types of freedoms in a Constitution? Why not simply codify as regular law?
Incorporation
Originally applied only to Congress “Congress shall make no law…”
But through various Supreme Court decisions and the 14 th amendment protections came to apply to the states as well
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Incorporation
1925 Gitlow v. New York extended freedom of speech protections to states
1931 Near v. Minnesota: incorporated freedom of press protections
1961 Mapp v. Ohio: incorporated 4th amendment
1963 Gideon v. Wainwright: extended the 6th amendment right to an attorney to states
Incorporation
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Does this mean that people have an individual right to have whatever guns they want or is this right wrapped up in a Militia?
This was decided in 2010 and only then incorporated to the states
Some questions for you
Do you favor free speech for all no matter what their views might be?
If the government makes a decision that most people think is a good one, do you think other people should be allowed to criticize it?
Do you think people should be allowed to hold a peaceful demonstration to ask the government to act on some issue?
Some more questions:
Should people be allowed to burn the American flag?
Settled in Texas v. Johnson
Another Question:
Should the KKK or the Nazis be allowed to hold marches and rallies?
Support for Civil Liberties
It turns out that most Americans support Civil Liberties in the abstract
But when it comes to controversial situations, support drops dramatically
Popular views don’t need protection, it is unpopular views that need protection
We must respect the rights of all groups, not just the ones we like, that is the point of the bill of rights
Freedom of Speech
"if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.“
Justice Oliver Wendell Holmes, Jr. in United States v. Schwimmer (1929)
Why Can’t We Limit Civil Liberties of “Bad” groups?
Constitutionalism: Constitutional limits on government are essential to democracy.
Protecting unpopular views ensures the protection of all of our views (if unpopular views are stricken, who’s next?)
If we outlaw views, we lose the opportunity to hear all sides of an issue (John Stuart Mill)
We need gadflies to provide a check on government and the majority so we can progress (Martin Luther King)
Whatever is forbidden becomes attractive
“Bad” is a function of time and place
Once you accept the Classical Liberal ideal that we are all equally rational, there is no rationale for exclusion. (Susan B. Anthony)
Why can’t we limit the Civil Liberties of certain “bad” groups?
It’s in the Constitution. The Constitution places limits on government.
A Limited Government is essential to a democracy.
There must be both direct limits on the rulers (i.e. terms of office) and limits on the degree to which government can interfere in the lives of the ruled.
It really goes back to the Classical Liberal tradition. Once we acknowledge that all men are created equal, there is little justification for excluding people based on race, gender, religion, sexual orientation, etc. (Susan B. Anthony).
If we outlaw views, we lose the opportunity to hear all sides of an issue
It keeps our ideals fresh and allows us to challenge our beliefs.
It keeps us from becoming inpatient
Important check on government. We need to have gadflies to expose folly so that we can progress (Socrates, Martin Luther King).
Sometimes the most unpopular groups (i.e. protestors opposed to a war) might have a point that’s worth paying attention to.
Who decides who is bad?
Tyranny of the majority/The Paradox of Democracy
Bad is a function of time and place. In retrospect we have not done a good job historically in this area.
If we outlaw one group that is nearly universally accepted as being “bad” that still sets the precedent for the next group to be outlawed
It’s a slippery slope
Sometimes the forbidden becomes attractive simply because it is forbidden.
Does the DARE program help kids resist drugs or does it just put ideas into their heads (the data says the latter).
Why did you first try smoking, drinking, sex?
Protection of Civil Liberties
What groups have been historically been excluded in the U.S.?
Women, African-Americans, Homosexuals, Japanese, Chinese, Socialists, Indians
At various times the majority felt these groups were “beyond the pale”
Civil Liberties are the protection of the minority from the tyranny of the majority
What about the rights of the community?
Historically this argument has been used to limit the freedoms of a minority
What is the paradox of democracy?
Can use democratic means to achieve undemocratic ends
Can we prohibit exposure to “damaging” views (i.e. pornography)?
We can limit but not exclude
If become violent or target specific people, can and should be outlawed
What about free speech on campus?
Can language offend or traumatize?
Should college students be protected from words that can marginalize and discriminate?
Or is this censorship that limits free speech?
Does this limit critical thinking and isn’t that one of the purposes and benefits of higher education?
On the one hand students can be traumatized
On the other students and faculty can be punished for unwittingly offending
Can I put the following banners in my classroom?
In God We Trust
One Nation Under God
God Bless America
God Sheds His Grace On Thee
All Men Are Created Equal, They Are Endowed By Their CREATOR
What about my first amendment rights?
Would it matter if it were a high school?
Would it matter if it were a math class?
The courts ruled that the school district could require that a Poway math teacher remove these banners
Fear
Freedom – Order tradeoff
What causes people to voluntarily give up freedom?
Fear. Need for security. Of what?
Need there be a “real” threat?
How might this lead to manipulation?
Do you agree with Franklin: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”?
War on Terror
In any time of war, it may be necessary to suspend some freedoms
Following the attacks of 9/11/01, the government sought and received greater powers to combat terrorism
Patriot Act allows government access to
213: search home without informing you
215: collect information about what books you read, what you study, your purchases, and your medical history without probably cause
216: read parts of your email and monitor what you look at online without probable cause
Protections
Aren’t these protections necessary? A war on terrorism is an unconventional war where the enemies don’t wear uniforms and attack civilians
How do we know our civil liberties won’t be abridge capriciously?
How do we know the rules will be followed?
What if we say or do things that are critical of those in power or threaten their position of power?
This is the essence of Constitutionalism; that government operates within certain rules
Freedom v. Order
Why should you care about civil liberties if you have nothing to hide?
There is always going to be a tradeoff between liberty and order
We want to be safe but we want our liberties protected.
In Hussein’s Iraq or Hitler’s Germany, if you had nothing to hide you had nothing to fear
Do we want to live in that kind of a state?
Many places have order but what makes the U.S. system great are our freedoms
“Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither and will lose both” (Franklin)
John Stuart Mill
Government is needed to create the conditions that enable people to create happiness and avoid pain
He’s all about individual Liberty
According to Mill, what is the only purpose for which power can be rightfully exercised over another?
To prevent harm to others
How do you suppose he feels about racism and sexism?
Worker protections and worker control?
With a republic, we’ve addressed individual freedom and the power of the magistrate
How else is your individual freedom stifled in modern society?
Mill is concerned about the tyranny of tastes and opinions; examples?
“Thing 10” asks: what constitutes a better lifestyle?
More material goods with less leisure time (As in the U.S.) or fewer material goods with more leisure time (as in Europe)?
The following are some further topics for your consideration:
To what degree is it appropriate for people work longer and harder than they would otherwise care to do, not for the extra money but simply out of fear of losing their job?
To what degree does (or should) one’s answer depend on one’s socio-economic status (SES)?
Beyond the provision of basic necessities, does having more goods make one happier?
What constitutes the provision of basic necessities?
What role does inequality play?
How does one justify engaging in a non-economic productive activity like surfing?
Rights of the Accused
No one likes it when criminals are let off on “technicalities”
There are two ways of looking at this:
Due Process Model: it is most important that the government obey its own laws
Crime Control Model: it is most important that the government apprehend and convict criminals
Freedom v. Order
Why should you care about those who are targets of criminal investigations if you have nothing to hide?
Innocent people occasionally do get accused of crimes and need protection
Can have a chilling effect on free speech and critical thought
Without these protections, what groups would suffer?
Groups expressing critical views: war, trade policy, Racial profiling remains a problem today
This may mean that some criminals will go free but that is a tradeoff we are willing to make as a society
The Corporation
Corporations have Limited Liability
What’s the advantage of limited liability?
Allows corporations to take much more risk and grow much bigger
Corporate Capitalism is a very different system than that envisioned by the Framers
Corporations are legal persons, but are legally obligated to ONLY be concerned with maximizing shareholder return
The Corporation
What kind of persons are corporations?
No morality
No obligation to the community
Concerned only with short-term profit
Try to get others to pay the cost of their externalities
Should corporations be treated as individuals regarding civil liberties?
