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Chapter 3 - Section 1

Introduction

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.                                                                                                                                                         – Benjamin Franklin

     Civil Liberties are the "God given" rights you are born with. Freedom is central to the political culture of the United States. It always has been. Many early colonists fled to the new world seeking religious or political freedom. As early as 1641 the Massachusetts General Court adopted the “Body of Liberties” enumerating the individual freedoms that could not be interfered with in the Massachusetts Colony. Thomas Jefferson, in the Declaration of Independence, stressed the importance of our unalienable right to liberty which, he claimed, had been repeatedly thwarted by King George’s “long train of abuses and usurpations.” In part, the emphasis on individual freedom in the United States stems from the Classical Liberal tradition which stresses the importance of government’s role in protecting the natural rights of individuals; however, beyond that, government should interfere with the lives of individuals as little as possible.

     Essential to ones life and livelihood are the four essential freedoms: freedom from want, freedom of life, freedom of liberty and freedom of security. This emphasis on freedom is not without limits. When people are fearful, the ideal of freedom may become secondary or even inconsequential. In his attempts to explain motivations for behavior, Abraham Maslow (1954) notes that there is a hierarchy of human needs; individuals must first satisfy their basic physiological needs and their needs for security and order before they are motivated by higher order concerns such as freedom, justice or self-actualization. In other words, fear and insecurity are very basic concerns that often trump concerns for freedom and justice.

     One cannot have maximum amounts of both order and freedom; there must be some balance between the two. Where that line is drawn is one of the central concerns of government and politics. Are citizens willing to give up personal freedoms and treat some groups unequally for an increased sense of security? Can political actors manipulate citizens’ sense of fear in order to justify abridging civil liberties and civil rights? Do some individuals work for higher order goals such as freedom and justice even at the threat of direct harm to themselves? These are some of the practical concerns for civil liberties in politics both today and always.

Open to Debate: The Patriot Act

     Just 45 days after the September 11, 2001 terrorist attacks, Congress passed the USA Patriot Act with virtually no debate. The Patriot Act was written by federal law enforcement officials at the U.S. Attorney General’s office and was intended to provide law enforcement officials with the tools necessary to discover terrorist plots and fight a “war on terrorism”. Although the U.S. has by far the strongest conventional military force in the world, the Bush administration argued that the Patriot Act was necessary because of the unconventional nature of the threat posed by terrorism. A war on terrorism, after all, is not a war against large armies holding territory with military equipment, but a war against small groups of individuals who don’t wear uniforms and who seek to destroy civilian targets.

     While the September 11, 2001 attacks have underscored the very real threat of terrorist attacks, the Patriot Act has been criticized for removing some checks on law enforcement officials. These checks limit the degree to which government can interfere with the private lives of all individuals in the United States. The framers of the Constitution included such limitations in the Bill of Rights as a result of their experiences with the capricious abuse of power by English magistrates.

     Section 215 of the Patriot Act allows the FBI to order any person or entity to turn over “any tangible things,” so long as the FBI “specif[ies]” that the order is “for an authorized investigation…to protect against international terrorism or clandestine intelligence activities.” However, the FBI need not have any probable cause or even reasonable grounds to believe their target is engaged in any criminal activity. The subject of investigation need not be linked to any foreign power. Anyone asked to turn over information under section 125, such as a library, is prohibited from revealing that fact to anybody else. Such measures raise constitutional concerns. The Fourth Amendment of the Constitution normally prohibits surveillance and searches without showing probable cause and obtaining a warrant from a judge. Without the Patriot Act, there are already laws on the books that allow the U.S. government the power to engage in surveillance a long as they have probable cause that the suspect has committed or is likely to commit a crime or if the suspect is believed to be the agent of a foreign power or a spy.

     The Patriot Act also potentially threatens constitutional protected free speech. For example, the FBI could invoke Section 215 of the Patriot Act simply because someone is reading a particular book, visiting a certain web site, or expressing a certain view; all activities guaranteed to individuals under the First Amendment of the Constitution. While fighting terrorism is certainly important, the concern is that this act will have a chilling effect on political discourse. People may be much less comfortable speaking their mind or criticizing government policy if they think their actions are being monitored. These concerns are not merely academic. A University of Illinois study that examined some 1500 libraries suggested that by December 2001, the FBI had already approached over five percent of all libraries with requests for information under the Patriot Act. What do you think? Is the Patriot Act necessary? The answer remains open to debate. And the debate must include whether it should be legal to suspend the constitutional rights of citizens to protect the country?

Unconstitutional: The War on Civil Liberties

Chapter 3 - Section 2

Civil Liberties

     As noted in chapter one, the ideal of democracy is one of the central tenets of the political culture of the United States. What is it about democracy that is so important to U.S. political culture? On the surface, the opportunity to choose between various candidates for political office is certainly important, but what is perhaps even more important than the mechanisms of democratic decision making are the freedoms that all individuals possess in the United States: freedom of speech, freedom of religion, freedom of assembly, freedom from unreasonable search and seizure, etc. These freedoms are not universally shared throughout the world; in many societies, citizens do not have the opportunity to protest government actions or policies. Many people live in fear of being taken away and tortured or killed without due process of the law. It is the freedoms and protections from the capricious use of power by the U.S. government that is one of the central features of the ideal of democracy in the United States.

     These freedoms are collectively known as civil liberties. Civil liberties are the freedoms individuals have which are protected from government interference by constitutional provisions, laws, and practices. These are the protections that limit the degree to which the government can interfere in the lives of individuals. These liberties stem from the natural rights which John Locke theorized every human has simply by virtue of being human. As noted in chapter two, Jefferson integrated Locke’s conceptualization of natural rights into the Declaration of Independence. Our modern civil liberties are primarily codified in the first ten amendments to the United States Constitution which are collectively known as the Bill of Rights.

Bill of Rights Rap

Chapter 3 - Section 3

Incorporation

     The first amendment of the Constitution begins “Congress shall make no law…”, implying that these amendments applied only to the national government and not necessarily the states. The central concern in 1787 was with the new larger national government and the popular fears of the power it would be able to wield. State governments were less of a concern as they were felt to be more under the control of the general public and many state constitutions already contained bills of rights. However, in the wake of the civil war, it was quite clear that states would have to be required to protect the civil liberties of all of the individuals living within their borders. This led to the passage of the Fourteenth Amendment, adopted in 1868, which formally extends, or incorporates, civil liberty protections to the states “no state…shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws.”

     The passage of the Fourteenth Amendment ushered in the process of incorporation in which the civil liberty protections which originally only applied to the national government came to apply to state and local governments as well. It may seem somewhat obvious that if the national government is limited from interfering with basic liberties such as freedom of speech and freedom from cruel and unusual punishment, state governments should be limited in interfering with these liberties as well. However the protections in the Bill of Rights only came to apply to the states in piecemeal fashion through a process of selective incorporation. As cases dealing with state abridgement of various aspects of the Bill of Rights came before the Supreme Court, these freedoms might come to be incorporated to the states.

    The first major incorporation decision wasn’t until 1925 in Gitlow v. New York. This decision extended first amendment protection of freedom of speech to the states. Other rulings extending civil liberty protections to the states followed over the next 45 years. Some of the more notable cases, a few of which will be examined in greater detail below, were Near v. Minnesota (1931) which incorporated the freedom of the press (First Amendment); Mapp v. Ohio (1961) which incorporated protections against using material seized in an illegal search as evidence in a trial (Fourth Amendment); Gideon v. Wainwright (1963) which incorporated the right to have an attorney in all criminal felony cases (Sixth Amendment); and Griswold v. Connecticut (1965) which ruled that all individuals are entitled to a right to privacy from national, state and local governments as implied by First, Third, Fourth, Fifth, and Ninth amendments to the Constitution. The Second amendment was incorporated in 2010 with the case McDonald vs City of Chicago. The Third, and Seventh remain unincorporated.

     The incorporation of civil liberties to the states greatly enhances the protection of our basic rights. For instance, most exercises of the rights of speech and assembly occur at the state level and these rights are now protected accordingly. As states retain the responsibility for the vast majority of law enforcement activity in the United States, incorporation also provides some consistency to the protection of basic constitutional rights. Persons accused of the similar crimes in Minnesota or Texas may expect to face different sentences but they can also expect to have their same basic constitutional rights protected.

Bill of Rights: First 10 Amendments to the U.S. Constitution

Chapter 3 - Section 4

The First Amendment: Freedom of Expression

     The First Amendment is particularly important in protecting individuals’ freedom of expression. The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise therof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” While you’ve undoubtedly heard these words before, please consider a few questions before you go on to examine the First Amendment in greater detail:

· 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, should others 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?

     If you are like most Americans, you probably agree that each of these freedoms are important and should be protected. Additionally you probably think freedom of religion is a good idea as is freedom of the press; these are, after all, central tenets of our political culture. However, please consider a few further questions:

· Should people be allowed to burn the American flag?

· Should the Ku Klux Klan or the Nazi party be allowed to hold marches or rallies?

     While you may still agree these freedoms should be protected, widespread support for these protections diminishes once questions move from abstract to more specific cases. It turns out that most Americans support civil liberties in theory, but when it comes to more controversial situations, support drops dramatically. However, people don’t burn the American flag for warmth; they burn it to express a political opinion. The Supreme Court ruled that this is a protected form of symbolic speech in Texas v. Johnson (1989). Gregory Lee Johnson was accused of burning an American flag outside of the 1984 Republican National Convention in Dallas. The Supreme Court ruled that “if there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” However, before you run outside to test your civil liberty protections, you may wish to consider that while the right to burn the American flag may be protected constitutionally, it is not necessarily protected culturally. The vast majority of Americans view the practice as, at best, unproductive and divisive and, at worst, as unpatriotic and seditious even though many of these same individuals recognize that burning the flag is a form of political speech.

     While most Americans are, and should be, basically comfortable expressing their political views without fear of government reprisals, popular sentiments may inhibit some speech. For instance, during times of war many individuals are afraid to question the advisability of using force abroad for fear of being criticized as unpatriotic or not properly supportive of U.S. troops. However, one may argue that this is the time at which critical views are most necessary. John Stuart Mill, a Classical Liberal writing in the 19th century, argues that the danger of silencing any dissenting opinion is that the dissenting view may turn out to be correct and, even if it is not, silencing such dissent deprives others of the opportunity to challenge and invigorate their own views through comparison with views which may be in error. Following this line of reasoning, critics of war are valuable in order to challenge government policy and ensure that the right decisions are being made about such grave and important matters.

Bill of Rights

     While you may have agreed individuals should have free speech and be allowed to assemble and petition the government, many don’t agree these protections should apply to the Ku Klux Klan or the American Nazi Party. However, it is the speech of unpopular groups that is most in need of protection. The Republican Party or the American Legion is not likely to need first amendment protections for assembly or speech, because such speech reinforces popular beliefs and attitudes. Popular speech doesn’t need to be defended; controversial speech does.

    Currently, there are strong fears about terrorist attacks from Middle Eastern countries and there exists wide popular support for limiting the rights of Arab Muslims, even those who are U.S. citizens. Polls indicate that many Americans would approve of more extensive airport screening of Arabs, requiring Arabs to carry special IDs, or even allowing special surveillance of Arabs. In January 2017, just a week or so after taking office, President Donald Trump issued an executive order banning all refugees into the US, and banning immigrants, visitors and permanent US residents from seven majority Muslim nations from entering the United States, arguing that this was done as a “mandate to keep America safe.” This order was met by massive protests in the streets of many US cities and large backlash movement of Americans with signs and social media posts asserting “We Are All Americans.” Yet, many people seem to feel that drastic times may call for drastic measures, and public opinion on this executive order was somewhat mixed with nearly 50% saying they supported it. However, before any such actions are undertaken by government, one should also consider the situation of other groups that have historically been considered particularly dangerous or otherwise not worthy of the protections offered to all Americans. What happened to the Native-Americans during the westward expansion; the Japanese during World War II; or African-Americans during the Civil Rights Movement? Was it a good idea to forgo constitutional protections for these groups at those times? In retrospect, the answer is no. Liberties are constitutionally codified because they are necessary to protect minority groups from the passions of the majority.

     Can’t speech from groups that advocate such reprehensible ideas as genocide or racism be silenced? The courts have ruled that as long as those ideas exist only in the abstract and do not target specific individuals, such speech is protected. For example, even though it is reprehensible, burning a cross in a public place may be protected as a form of symbolic speech but burning a cross in the front yard of an African-American family is clearly meant to intimidate a particular individual and would not be allowed.

     While freedom of speech and freedom of assembly are essential to democracy, that doesn’t mean that these rights are absolute or that people assemble and promote their political agenda anytime, anywhere. Government also has an interest in maintaining order, allowing for the uninterrupted flow of commerce, and keeping the peace. While one person may claim they have the freedom to express unpopular political views, another can claim the freedom to be free from intimidation and threat. Similarly, while one may criticize the actions of an elected official, making false statements with the intent of damaging said individual’s reputation is not allowed; this would be considered  libel  if written or  slander  if spoken. Such distinctions were first established in Schenck v. United States (1919). In this case Chief Justice Oliver Wendell Holmes established the clear-and-present-danger test for determining when the government could restrict speech. He famously remarked that one could not falsely yell “fire” in a crowded theater because others could easily become injured in the ensuing panic. Interestingly, Schenck was convicted for the distribution of anti-war pamphlets which the court ruled could significantly harm U.S. involvement in World War I. It is doubtful whether such a conviction would be upheld today. During the Cold War, convictions were upheld for individuals who were members of the Communist Party for advocating the violent overthrow of the United States but by the Vietnam era, speech critical of U.S. government policy was much more widely accepted.

Chapter 3 - Section 5

The First Amendment: Freedom of Religion

     In addition to freedom of expression, the first amendment also addresses freedom of religion. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Constitution addresses two different topics in this passage: the establishment of religion and the free exercise of religion. In the establishment clause, the Framers of the Constitution clearly meant to avoid any state-sponsored church such as that found in England or in some of the colonies. Although many of the original colonists fled Europe to avoid religious persecution, once in the New World, many showed themselves to be relatively intolerant to other religious practices. For instance, Samuel Argall, governor of Virginia from 1616 to 1618, punished those who failed to attend church with prison terms and forced labor. The establishment clause, in the words of Thomas Jefferson, was meant to erect a “wall of separation of Church and State.” The establishment clause has been defined through various Supreme Court rulings to mean that the government can neither support nor discriminate against any church. However this, in turn, raises a number of difficult questions:

· Can public schools require a moment of silence for voluntary prayer?

· Can tax dollars be used to support education at parochial schools?

· Can religious icons such as the Ten Commandments or the Christian Cross be displayed on public property?

· Can schools require students to recite the Pledge of Allegiance even though it contains the words, “under God”?

God and the United States Constitution

    The answers to these questions are particularly thorny as religion is one of those issues about which people feel very strongly. One’s religious views are deeply tied to one’s own identity and ideology. Interestingly, even though the Declaration of Independence argues that individuals are “endowed by their Creator with certain unalienable rights,” religious identification is much stronger now than it was at the time of the Revolutionary War. At that time only 20 percent of American adults adhered to a church in any significant way and about 77 percent are affiliated with a religious institution today. However, the numbers of Americans who say they believe in God and who attend church services regularly has fallen off in the past twenty years. (Pew 2015) even though it has been declining, such strong religious fervor in the United States certainly adds a significant degree of intensity to the debate over the separation of Church and State.

     The debate over school prayer has been one of the most contentious political issues of recent decades. Should students be allowed to pray? Should students be required to pray or even be required to hear prayer? What about a moment of silence? Like other Constitutional issues, the application of the First Amendment to the issue of school prayer has been determined through various Supreme Court decisions. Students, like everyone else, are accorded, by the First Amendment, the freedom to exercise their own religion. This means that the government must accommodate religious practice unless there is a compelling reason to not do so. Students are certainly allowed to pray among themselves. However, the schools, as an agent of the government, may not require student prayer (Engel v. Vitale, 1962) or even allow their public address system to be used for student-sponsored prayer. Indeed, an Alabama law requiring one minute of silence (Wallace. V. Jaffree, 1985) was struck down as “an endorsement of religion lacking any clearly secular purpose.” However, it has been held that both Georgia’s and Virginia’s laws requiring a moment of silence at the beginning of the school day did not violate the first amendment as these were established to create a moment of quiet reflection without religious intent. However in Texas it is allowed for school prayer at sporting events if it is student led.  It cannot be led by paid school officials.

     Similar compromises have been reached in issues relating to government aid for Church-related education. Some funding, for textbooks, lunches, computers, and assistance for special education students, etc., has been allowed; but funding for teachers’ salaries and similar items have not. Such decisions are based on the Lemon v. Kurtzman (1971) case which forbids “excessive government entanglement with religion.”

     This debate has been most salient recently around the issue of school vouchers. School voucher systems give parents a certain amount of money from the State to send students to the school of their choice. This raises the question of whether using state money for parochial schools violates the establishment clause of the first amendment. Most recently, a sharply divided Supreme Court ruled that an Ohio law that allows parents of children in failing schools in Cleveland to receive tax-supported vouchers to attend the school of their choice does not violate the establishment clause of the first amendment because students had the option to use the vouchers at either public, parochial, or private schools. If students do use tax-supported vouchers at parochial schools, this raises the additional question of whether these schools will have to follow the same disability and civil rights laws required of public schools. This decision will likely be revisited.

     The issue of religious monuments on public property has also generated intense debate of late. In one case, the Chief Justice of the Alabama Supreme Court, Roy Moore, was removed from the bench in 2003 for failing to remove a granite monument engraved with the Ten Commandments from the rotunda of the Alabama Supreme Court building. Judge Moore argued that the granite marker was a historical monument to the roots of U.S. law but federal courts found that such a monument violated the establishment clause of the first amendment.

     The issue of the Pledge of Allegiance has also been hotly contested recently. The Pledge of Allegiance was written by Francis Bellamy, a Baptist minister, in 1892. The Rev. Bellamy advocated the creation of a planned (socialistic) economy with political, social and economic equality for all. The pledge originally read “I pledge allegiance to my Flag and to the Republic for which it stands, one nation, indivisible, with liberty and justice for all.” The words “under God” were only added in 1954, at the height of the Cold War, by President Eisenhower in response to a campaign from the Knights of Columbus, a Catholic religious organization. The words were intended to differentiate the United States from the “godless” communists and resulted in the creation of what is simultaneously both a secular and a religious pledge, which may or may not violate the first amendment.

     The separation of church and state is very clearly specified in the constitution.  However there are many issues that present a very sticky slope where this issue is concerned.

     Case in point.  Dallas County Community Colleges, Richland College, has a building that is a dedicated Mosque.  According to separation of church and state this is illegal.  The legality in question is that if a community college is accepting any State, or Federal funds to maintain the buildings on campus it would be illegal according the constitution for this building to exist.

The Bells of St. Mary: No 'under God' in Pledge of Allegiance

Open to Debate: One Nation Under God?

     What do you think? Most people would argue that prayer is not a harmful thing in itself but many would also maintain that “government established religions and religious persecutions go hand in hand” as the Supreme Court ruled in the Engle v. Vitale case? Does reciting the words “under God” in the Pledge of Allegiance the equivalent to pledging support for Christian monotheism or is it largely a ceremonial and religiously neutral activity? What about those who practice a religion other than Christianity? This debate is likely to continue for some time to come.

     Many states in the United States have expressed the concern over removing this “one nation under god”, statement from the pledge.  Is this a clear violation of the separation doctrine?

Chapter 3 - Section 6

The Second Amendment

     The Second Amendment to the United States Constitution reads: “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.” The specific meaning of this amendment, perhaps more than any part of the Constitution, is open to debate with different interests interpreting the Amendment to their own ends. The primary debate centers around whether the second part of the Amendment, “the right of the people to keep and bear arms, shall not be infringed,” was intended to confer a right to individuals to own guns in order to secure their freedom or whether this second clause only has meaning relative to the first clause. That is, that the second amendment only confers a collective right to own firearms as part of a military unit. The Amendment was designed for militia members of the colonies that did not have a clear and standing militia.  The Amendment never stated that arms for individuals was a guaranteed right under the constitution, however the interpretation has been twisted and translated to benefit those who would argue the rights of individuals not involved in a militia.

     The first major Supreme Court ruling directly addressing the meaning of the Second Amendment was United States v. Miller(1939). The piece of legislation in question was the National Firearms Act of 1934 (NFA), passed in response to the outcry over the St. Valentine’s Day Massacre, which required the registration of certain types of firearms (such as fully automatic firearms and short-barreled rifles and shotguns). In its ruling, the Supreme Court maintained that the NFA was constitutional under the Second Amendment. The ruling laid out the argument that the intended meaning of the right to bear arms was significant only in the context of “the preservation and efficiency of a well regulated militia.” The precedence of this ruling, and this interpretation of the Second Amendment, dominated the debate over gun control for the next sixty years. However, the Miller ruling was not incorporated to the states which left a wide degree of latitude for states to create their own gun control laws restricting or protecting ownership. In recent years, well-organized interests, in particular the National Rifle Association, have been very successful at the state level protecting gun ownership.

     Then, in 2008, the Court broke with precedent in the landmark Columbia v. Heller case. In this ruling, the Supreme Court held that the Second Amendment confers an individual right to possess a firearm for personal protection. The case in question centered on a 1975 District of Columbia ordinance that banned the private ownership of all hand guns and required that all other firearms, including rifles and shotguns, be kept “unloaded and disassembled or bound by a trigger lock.” However, as the District of Columbia falls under the jurisdiction of the federal government, again the second amendment was not incorporated to the states. This ruling does, however, apply to federal enclaves such as national parks. This ruling only heightened the debate over gun control and the Second Amendment. The stage was set for a further showdown for a resolution of this debate nationally.

     That showdown came when the Supreme Court heard McDonald v. Chicago (2010). The case in question was brought by Otis McDonald, 76, who asked the Supreme Court to overturn Chicago’s strict ban on handguns in the home. For nearly 30 years, Chicago has banned the possession of handguns and automatic weapons in the city. Mr. McDonald argued that, as long as criminals ignored the ban in his crime-ridden neighborhood, he should have the right to have a gun in his home for protection. The city of Chicago noted that the ordinance only applies to handguns, which are the overwhelming weapon of choice for killing other people; handguns were used in 402 of 412 firearm homicides in Chicago in 2008. McDonald asked the justices to have the Heller ruling incorporated to the states. This has presented an interesting ideological quandary for many interested in the issue. Traditionally, liberals have been in favor of the incorporation of the Bill of Rights as these rights have typically expanded personal liberties and protected individuals from the capricious use of power by the states. However, in this case, liberals found themselves in the position of opposing incorporation in order to protect gun control laws, such as the one in Chicago which was imposed in 1982 to help combat the rampant gang and firearm violence that plagued the city. The Court (2010) held that the right of an individual to keep and bear arms is protected by the Second Amendment and is incorporated by the due process clause of the Fourteenth Amendment and thus applies to the states.

Open to Debate: The Right to Bear Arms

     Following the Heller decision, many gun-rights advocates have decided to exercise their Constitutional rights by openly carrying unloaded weapons in public. The sight of groups of individuals walking along crowded California beaches carrying guns and rifles has been of understandable concern to many citizens and law enforcement personnel. Public officials have responded by proposing legislation to rescind open-carry laws which has, in turn, drawn the ire of open-carry advocates. Pushing the issue to the forefront are large Interest groups such as the National Rifle Association, (NRA). This group pushes for little to no restrictions for gun ownership in the United States.  The group is very powerful and employs thousands of lobbyist who advocate daily with lawmakers to benefit the groups beliefs. Often the expression of one right conflicts with the protection of another. Does the right of individuals to keep and bear arms trump the right of individuals to feel secure and protected from violence? This issue is not likely to be resolved quickly or easily. What do you think? The answer remains open to debate.

Chapter 3 - Section 7

Right to Privacy

     The right to privacy is not explicitly expressed in the U.S. Constitution. However, the Supreme Court has ruled that the First, Third, Fourth, Fifth, and Ninth amendments to the constitution imply a right of privacy. This reasoning was first expressed by Justice William O. Douglas in Griswold v. Connecticut (1965) which overturned a Connecticut law that prohibited the use of contraceptives. Justice Douglas argued that while these amendments don’t address privacy directly, they created “penumbras,” or shadows, that guarantee privacy. For instance, the First amendment protections for freedom of religion, speech, press, and assembly guarantee individual privacy in these areas. Similarly, the Fourth amendment guarantees people privacy in “their persons, houses, papers, and effects” as these are protected against unreasonable search and seizure by the government.

     This same line of reasoning was used in the landmark Burger Court decision, Roe v. Wade(1973), which struck down anti-abortion statutes on the grounds that “the right to privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The Court maintained that the state cannot interfere with a woman’s right to terminate a pregnancy during the first trimester of pregnancy; can only limit access to an abortion in order to protect the mother’s health during the second trimester, and could widely limit abortions during the third trimester in order to protect the health of the mother. When explaining his reasoning, Justice Harry Blackmun, the author of the majority opinion, argued that the full and equal emancipation of women in society could only be achieved if women were not limited in the ability to control their own bodies including decisions about reproduction.

     An active and vocal “right-to-life” movement developed in the wake of Roe and pressured Presidents Reagan and Bush Sr. to appoint Supreme Court Justices who would overturn Roe. Although the Roe decision has been challenged it has not been overturned; however two decisions the Supreme Court did limit access to abortions. In Webster v. Reproductive Health Services (1989), the High Court upheld a Missouri law that prohibited the use of public hospitals or any taxpayer-supported facilities for performing abortions. In Planned Parenthood v. Casey (1992) the Court upheld a Pennsylvania law which placed a number of obstacles to obtaining an abortion including required counseling, a twenty-four hour waiting period, and parental permission for girls less than eighteen years of age. The issue of abortion remains contentious and will undoubtedly play a central role in the debate over any Supreme Court nominee for the foreseeable future.

     Pro Choice v. Pro Life. Furthermore, it was argued in both Griswold and Roe that the Constitution does not regulate intimate relationships, nor, argued the court, was it intended to. A more recent Supreme Court decision which again implied that government should not regulate intimate relationships was Lawrence v. Texas (2003) which removed prohibitions on private sexual acts such as sodomy. The regulation of intimate relationships is again in the forefront of political debate. The issue at hand is that of gay marriage. Some state supreme courts have indicated that prohibitions on marriage between homosexuals would be unconstitutional in those states because those states’ constitutions contain provisions ensuring equal protection for all. Following this line of reasoning and the implied right to privacy, as mentioned above, it is likely that the U.S. Constitution would similarly fail to uphold prohibitions on same-sex marriage. Subsequently, in addition to pursuing their aims legislatively, those opposed to same-sex marriage have proposed a Constitutional Amendment banning same-sex marriage. This would change the U.S. Constitution and, if such an amendment were to pass, the traditional analysis used by the Supreme Court to limit the power of government to regulate intimate relationships and respect individuals’ right to privacy would be fundamentally challenged. As a result, decisions like Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas, would be fair game for reanalysis and could possibly be overturned. This underscores the interrelated nature of civil liberties; efforts to undermine the civil liberties of one group often end up limiting the civil liberties of others. This issue historically has been left to the States to decide on a State to State basis.   Bush Calls for Ban on Gay Marriage

Open to Debate: The Sanctity of Marriage

     In addition to the issue of privacy, which is only thinly implied in the Constitution according to the reasoning of the Supreme Court, the issue of same-sex marriage is also relevant to the First Amendment. Many of the public officials opposed to same-sex marriage argue that government should act to protect the “sanctity” of marriage. However, the first amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Does this allow the government to determine what has sanctity or is sacred? The answer remains open to debate. Given the prohibition on the establishment of religion, one could easily argue that it is illegal for government to regulate the sanctity of anything. Others argue that the United States, and its laws, were founded on a Judeo-Christian tradition and it is entirely appropriate for government to endorse certain religious values over others; one need look no farther than the “in God we trust” printed on our currency or, more relevantly, prohibitions on polygamy.

     The problem, of course, is that one person’s sanctity is another person’s blasphemy. Decisions about the sanctity of religious practices or days of worship are typically left up to houses of worship. Should decisions about the sanctity of marriage be left up to houses of worship or is it appropriate that the government become involved? Perhaps this should be left be left open to the democratic process; but should the majority be allowed to determine the rights of a minority? One of the central tenets of democracy is majority rule. But, the paradox of democracy is that even in a system of rule by the majority there must be protections for the minority. The solution to this paradox is constitutionalism; that the limitations on the degree to which the majority can interfere with the lives of the minority are protected in the Constitution. The experiences of Women, African-Americans, or the Japanese indicate that the majority often does rule according to their passions and, subsequently, these constitutional protections are necessary. The issue of same-sex marriage, like the issue of abortion, draws much of its energy on the religious fervor of those involved in the debate. This will ensure a passionate debate about these issues well into the future. Their resolution will remain open to debate. This issue has also been left to the States to decide through the voters, on a State to State basis.

Chapter 3 - Section 8

The Right to Die

     As a result of better medical care, increases in the standard of living, and the near-eradication of many infectious diseases, the chances of one living to the age of 100 and beyond have gone up dramatically. However, advances in the medical field have also increased the ability to keep people alive, in a variety of comatose or vegetative states, for longer and longer periods of time. Given this situation, people have become increasingly concerned over the quality of their life should they become incapacitated, whether or not they should have the right to die, and under what conditions they should have this right. Drawing on the Constitutional arguments surrounding other issues of personal privacy, the laws and court decisions on this issue have been relatively straightforward and consistent. Despite regulations outlawing suicide, courts have been sympathetic to the wishes of individuals who wish to terminate their life under certain conditions of incapacity as long as the individual has clearly expressed the circumstances under which they wish to terminate any efforts to keep them alive. Generally, such wishes must have been expressed in a living will or clearly shared with a spouse or family member who will have the responsibility for carrying out the patient’s wishes.

     Courts have been less sympathetic to those who offer to assist others in committing suicide. In the 1990s, Dr. Jack Kevorkian made headlines by assisting a number of individuals who wished to end their physical suffering by ending their life. Although many felt these acts to motivated primarily by compassion, courts have consistently sided with state laws forbidding such practices.

The Terri Schiavo Story

Chapter 3 - Section 9

Due Process

“No person…shall be…deprived of life, liberty, or property without due process of the law”                                                   Fifth Amendment to the Constitution of the United States

     Civil liberties do not only apply to freedom of speech, assembly, and religion. There are also restrictions on the degree to which the government can interfere with individual citizens in order to maintain order and fight crime as well as rules the government must follow when dealing with criminal suspects. The primary amendments that deal with the protection of criminal suspects are the Fourth (freedom from unusual searches and seizures); the Fifth (freedom from self-incrimination and a prohibition against double jeopardy); the Sixth (speedy trial, impartial jury, call and confront witnesses, right to an attorney); and the Eighth (no excessive bail or cruel and unusual punishment).

     In the 1960s, the U.S. Supreme Court, presided over by Chief Justice Earl Warren (1953-1969), made a number of important decisions relating to civil liberties and civil rights. Courts are often referred to by the name of their chief justice, although all justices are involved in the decision making of the court. In general, the Warren Court decisions challenged government policies in order to protect the rights and liberties of disenfranchised groups. In particular, three decisions greatly affected the rights of criminal defendants: Mapp v. Ohio (1961), Gideon v. Wainwright (1963), and Miranda v. Arizona (1966). These decisions were widely unpopular at the time however defenders of the decisions noted that protections for civil liberties and civil rights are in the Constitution specifically to protect the liberties and rights of unpopular groups who might suffer at the hands of the majority. Nevertheless, President Richard Nixon capitalized on the widespread discontent with Warren Court decisions in his 1968 presidential bid. This was the first time a presidential candidate ran on being “tough on crime” in any significant way as this issue was, until this time, largely seen as lying under the purview of the states. Nixon appointed Chief Justice Warren Burger (1969-1986) to carry out his “law-and-order” doctrine. President Ronald Reagan took a page from the Nixon playbook in his promises to get tough on crime and appointed William Rehnquist (1986-present) to succeed Burger as Chief Justice. Both the Burger and the Rehnquist Courts revisited many of the decisions of the Warren Court. Although the latter Courts did limit the rights of criminal defendants, the Courts stopped short of overturning the earlier Warren Court doctrine.

     One of the central constitutional provisions limiting the degree to which government can interfere with the private lives of individuals is the Fourth Amendment. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Andy Griffith

     The issue in Mapp v. Ohio (1961) was whether police could use incriminating evidence against an individual even if that evidence was obtained improperly. Police had forced their way into Dolree Mapp’s home, without a search warrant, looking for both illegal gambling material and a man wanted for a recent bombing. Although the police found neither, they did find pornographic books which were in violation of a law prohibiting the possession of obscene literature. Could police introduce this evidence at trial, even though they did not follow the proper procedures for obtaining the evidence? The Supreme Court invoked the exclusionary rule and ruled that the fourth amendment clearly states that evidence obtained illegally should be excluded from admission at trial. Critics argue that this rule allows too many criminals to go free when there is clear evidence of their guilt but the courts have decided that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, as specified in the fourth amendment, is an important freedom against the capricious actions of the state. If police want to obtain convictions, they must follow proper due process in obtaining evidence. The exclusionary rule was tempered in 1984 by the Burger Court who introduced the “good faith” exception to the exclusionary rule. In two separate cases, the court argued that if the officers acted in good faith in obtaining evidence, it can be admitted in trial even if there were technical inaccuracies in the search warrant or if the officers could prove that, although the evidence was obtained illegally, they would have obtained the same evidence by following the proper procedures.

     In the famous case of Gideon v. Wainwright (1963), the Warren court visited the issue of a defendant’s sixth amendment right to counsel. Clarence Earl Gideon was accused of breaking into a pool hall and stealing money and booze. Gideon’s request for legal representation was refused by the judge and Gideon was convicted. Gideon was not well educated but studied law books in prison and petitioned the Supreme Court to hear his case. The court ruled that the right to counsel was a necessity in felony cases and that states were obliged to appoint a lawyer if the defendant could not afford to hire one himself. Gideon was retried and, with the help of his court-appointed attorney, pointed out the flaws in the case against him. The attorney introduced arguments that strongly implicated the guilt of the star witness in Gideon’s original trial and Gideon was found to be innocent. This issue was revisited by the Burger and Rehnquist Courts who expanded the Gideon rule to misdemeanor cases which carried the threat of incarceration, probation, or suspended sentences that could result in incarceration in the future. The current debate over a defendant’s right to counsel centers around the effectiveness of said counsel. Most notable are a number of capital, or death penalty, cases in which defendants were sentenced to death even though their court-appointed attorneys slept during the trial, did not even show up for portions of the trial, or were so incompetent they were later disbarred from practicing law.

Gideon v. Wainwright Clarence Gideon

     In Miranda v. Arizona(1966), the Warren Court again invoked the exclusionary rule and argued that even evidence obtained from criminal suspects themselves cannot be admitted if that evidence was obtained improperly. The i  ssue was whether police could admit the confession of Ernesto Miranda to kidnapping and rape even if they never informed him of his sixth amendment right to an attorney or his Fifth Amendment right to remain silent. The courts argued that in the intimidating environment of a police interrogation, suspects needed to be made aware of their rights. In the past, police used both physical and psychological coercion to obtain confessions thereby raising the question of whether such confessions were truly voluntary. Critics argued that the need to advise suspects of their rights before an interrogation would cripple the police’s ability to obtain confessions. However, as you are probably aware from watching various “cops and robbers” shows, police quickly adapted to the new requirement and suspects continued to confess to their crimes. Luckily in the case of Miranda, he was retried and convicted on evidence other than his confession. The Miranda warnings were revisited by both the Burger and Rehnquist Courts and, although they did loosen the Miranda requirements in certain cases involving public safety or the safety of the arresting officers, they did not overturn the Miranda ruling.

Chapter 3 - Section 10

The Eighth Amendment Incarceration

     United States has the highest incarceration rate in the world. With only 5 percent of the world’s population, 25 percent of all prisoners on the planet are incarcerated in the United States. At some point since the turn of the century, the total number of people incarcerated in local, state, and federal jails passed the 2,000,000 mark. According to the U.S. Bureau of Justice Statistics, 1 in every 31 adults, over 7.3 million people are currently either on probation, in jail, or on parole.

     The sharp increase in  prisoners began with the “war on drugs” and “get tough on crime” measures of the 1980s. Prior to this time, prison was seen as a last resort for offenders and there was a widespread belief that prisons could be used for rehabilitation and not just incapacitation. For a variety of reasons, public opinion began to shift. Many politicians found themselves both responding to, and often engendering, popular fears about the rising rates of violent crime throughout the 1960s, 1970s, and 1980s. Beginning in the mid 1990s, many states began passing three strikes laws, promising lifetime imprisonment for anyone convicted of three felonies. Currently, 26 states and the federal government have three strike laws. While these law  s remain popular with the public, critics argue that the law has created an unnecessary burden on the prison system. Further, to the degree sentences are disproportionate to the crime, concerns regarding Eighth Amendment prohibitions against cruel and unusual punishment are raised. In California, where one of the first three strikes laws was passed in 1994, there is no stipulation that the strikes be violent felonies. This has resulted in lengthy incarcerations for many individuals who would otherwise be serving much shorter terms, such as three individuals who are serving 50 years to life, without the possibility of parole, for shoplifting golf clubs, video tapes, and a slice of pizza, respectively.

     The subsequent increase in the prisoner population has strained the capacity of prison systems in many states. In California, the largest state prison system in the country, prison capacity has been exceed by a factor of 4. The system has become so overcrowded that a panel of federal judges has ruled that the state has violated Eighth Amendment protections against cruel and unusual punishment and has ordered the release of 43,000 prisoners. Critics argue that putting more criminals in jail for longer periods of time has had the unintended consequence of decreasing public safety. The lack of access to educational opportunities, drug rehabilitation programs, and vocational training in overcrowded prisons has resulted in the release of prisoners who are less prepared to become functional member of society than when they went in. California’s recidivism rate has gone up dramatically as conditions in its prisons have deteriorated, creating further burdens on the prison system as prisoners are readmitted.

California Fights Court Order to Release Prison Inmates

     However, in spite of these concerns, these tough on crime measures remain popular with the public. Lawmakers either don’t want to oppose these laws, as they do not want to appear to be soft on crime, or lawmakers are unable to do anything about laws which have been passed by voter referenda.

Chapter 3 - Section 11

The Death Penalty

     Most of the debate over the Eighth Amendment in the United States has centered on the use of the death penalty. Much of the debate has focused on concerns over racial disparities in the application of the death penalty, the degree to which the method of execution is unnecessarily painful, and the possible innocence of those on death row. The United States is the only industrialized democracy that currently uses capital punishment and is one of five countries who together carry out 95% of all executions worldwide; the others are China, Iraq, Pakistan, and Saudi Arabia. Within the United States, the methods of execution and the crimes subject to the death penalty vary by state. Some states have banned the death penalty, others have suspended it, while others advocate expanding its use.

     The current debate over capital punishment began when the practice was suspended in 1972 as a result of the Supreme Court’s decision in Furman v. Georgia. In a 5-4 decision, the Court struck down Georgia’s death penalty law on the grounds that it led to unacceptable racial disparities in executions. Only two justices, Thurgood Marshall and William Brennan, Jr., expressed the opinion that the death penalty should be proscribed in all circumstances by the Eighth Amendment’s prohibition against cruel and unusual punishment. Most observers expected few states to readopt the penalty. However, in 1976, the Court clarified its earlier ruling in Gregg v. Georgia giving tacit approval to the use of the death penalty as long as the punishment phase of a trial was separated from the actual determination of guilt or innocence. After this ruling, 37 states refined their death penalty statutes in order to meet the concerns expressed by the Court in Furman and Gregg and resumed using the death penalty.

     With the dawn of the 21st century, concerns over the application of the death penalty have been reinvigorated. In 2000, Illinois Governor George Ryan, a Republican, suspended all executions in his state after DNA tests led to the release of thirteen men on death row. In 2002, the Supreme Court in Atkins v. Virginia, held that the executions of mentally retarded criminals qualified as cruel and unusual punishment under the Eighth Amendment. Further, in Roper v. Simmons (2005), the Court abolished all executions for persons who were under the age of 18 when they committed the crime for which they had been sentenced to death. In 2009, New Mexico repealed its death penalty statute, becoming only the second state (after New Jersey) to do so since executions resumed in 1976.

     Texas is the number one State for executions.  Although the death penalty reigns as king in the Texas court systems, the Supreme Court of the United States constantly reviews the death penalty.

Open to Debate: Why Should You Care if You Have Nothing to Hide?

     Why should law-abiding citizens care about the civil liberties of criminals? Nobody likes it when criminals get let off on “technicalities.” Many of you reading this may make the argument that if criminals have illegal drugs in their house or confess to a crime, they are guilty whether or not the police had the proper search warrant or reminded the suspects of their fifth-amendment rights. Why is it so important that criminals have the protection of so many civil liberties? Isn’t it more important to put criminals behind bars? While it is, of course, important to put criminals behind bars, one could also argue that it is important to be fair both to the accused and the victims. On the one hand, there is always the danger of convicting an innocent person if due process rules are not followed carefully. While, on rare occasions, innocent people are, regrettably, imprisoned for crimes they did not commit, the due process model of civil liberties ensures that every step is taken to make sure that innocent people do not go to jail, even if that means that some guilty people will go free for the moment. In many societies, there are no government restrictions on search and seizure and no rules on how criminal suspects are treated. And, while it may be true that if you have nothing to hide, do you want to live in a society in which your privacy is not protected and in which you may be forced to undergo coercion or worse in order to defend your innocence? As long as people live in fear of drug dealers and terrorists and as long as political actors are willing to exploit this fear for political gain, this question remains open to debate.

Chapter 3 - Section 12

Civil Liberties and Terrorism

     Other issues relative to civil liberties have arisen in the wake of the September 11, 2001 terrorist attacks. Soon after the attacks, the U.S. government detained over one thousand young men from countries with links to terrorist activity. In order to have the opportunity to interrogate and detain terrorism suspects, the government designated roughly 660 of these individuals as “enemy combatants”. These individuals are neither prisoners of war nor criminal defendants and thus, the government argues, they have the rights of neither. Enemy combatants were held without hearing the charges against them and without access to their lawyers. The government argued that long detentions are necessary in order to develop “an atmosphere of dependency and trust” between the interrogators and the prisoners and that this atmosphere could be tainted  by the presence of legal counsel. However, critics argued that this is, in fact, the reason the right to counsel is so important. The Bush administration maintained that the right to counsel, as specified in the Sixth Amendment to the Constitution, only applies “in all criminal prosecutions” and, as the enemy combatants are not being prosecuted, the Sixth Amendment does not apply. Such reasoning certainly evades the spirit of civil liberties in the United States if not the letter of the law itself.

     However, recourse has been made more difficult as the enemy combatants were held at the Guantanamo Bay military base in Cuba. This military base sits on land the U.S. leases from Cuba which, the government argues, is not part of the United States and is thus not under the purview of any particular court. However, in two decisions in 2004 (Hamdi v. Rumsfeld and Rasul v. Bush) the Supreme Court ruled that the degree of control exercised over Guantanamo Bay by the United States was sufficient to trigger the application of habeas corpus rights. A writ of habeas corpus is a suit brought to a court objecting to one’s own or another’s imprisonment. And, as habeas corpus rights are not dependent on citizenship, Guantanamo Bay detainees are theoretically free to bring suit challenging their detention as unconstitutional. The Bush administration responded by announcing that defendants would be tried by military tribunals. The proceedings would be kept secret indefinitely. The verdict would be decided by military officers instead of a jury and guilt would be decided by a two-thirds vote although a unanimous vote of seven is necessary to impose the death penalty. In addition, Congress stepped in and passed the Detainee Terrorism Act of 2005 denying detainee access to federal courts. The Supreme Court responded with a 2006 ruling (Hamdan v. Rumsfeld) stating that the military tribunals violated international law and that the Terrorism Act of 2005 did not apply to pending cases. Congress then passed the Military Commission Act of 2006. This act attempted to block detainee access to the courts by removing the authority of federal courts to hear detainee challenges, including all pending cases. Again, the Supreme Court ruled in 2008 (Boumediene v. Bush) that all detainees have the right to go to court to challenge the charges brought against them. Writing for the majority, Justice Anthony Kennedy argued that “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” Technically speaking, individuals who are not American citizens have no constitutional rights.  Furthermore, it is hard for these non-citizens to prove that torture is a form of cruel and unusual punishment and therefore protected by their citizenship rights.

Open to Debate:

     What do you think? Should enemy combatants have the constitutional right of habeas corpus to challenge their detention in the courts? Is a strict adherence to our civil liberties a luxury we may not be able to afford in a war against enemies who don’t wear uniforms and attack civilians with their own passenger aircraft as weapons? In a stinging dissent to the 2008 Boumediene v. Bushruling, Anthony Scalia argued that allowing detainees to have access to the courts “will almost certainly cause more Americans to be killed.” Or, are our best interests served by a strict adherence to our civil liberties and democratic ideals in order to provide a stark contrast to the ideology of the terrorists? In the Spanish elections of 2004, the Spanish public threw out the Spanish President who was one of the U.S.’s key supporters in its war in Iraq. One Spanish citizen who was interviewed replied that she voted against the incumbent because, "we in Spain do not want to adopt the U.S. model for fighting terrorism. The U.S. model entails sharp curtailments of personal liberties, coupled with huge increases in spending on the military and police. In Spain we want to take stock of why there is terrorism at all and do something about it." Are the terrorists successful to the extent we, ironically, abandon our civil liberties in our efforts to protect our freedom? The answer remains open to debate.