Chapter 10: Civil liberties

The Conflicts of Understanding Our Freedoms

Why did British first colonize the New World? -What two main factors drove them leave Europe behind them?-Consider the first two colonies

History of American rights1) Economic Opportunities2) Religious Freedom

What is the problem with too much freedom or rights?

- How does this shape the national discourse on rights?

- Government must always consider the common good (General Welfare). How does this affect the conversation on rights?

History of American Rights- National debate (not colonial)

Constitutional Convention: -George Mason, representative from Virginia, proposed the inclusion of a Bill of Rights to the Constitution, but was rejected. (He later refused to sign the Constitution)-The debate continued into the ratification process.-In order for the federalists to win over enough support, they agreed to the addition of the Bill of Rights which was ratified in December, 1791.

Civil Liberties v. Civil rights

Civil Liberties: basic freedoms to think and act that all people have and that are protected against government abuse.-speech, assembly, religion (what right?)

Civil Rights: rights of fair and equal status and treatment and the right to participate in government.-Based on gender, race, ethnicity (whose right?)-Civil rights have not always been guaranteed or accessible to all members of society (even today). -Civil rights are an extension of the 14th amendment.

Negative v. positive rights

negative rights: rights that come from the government’s inability to act. (example: free speech)

positive rights: rights that come from the government’s ability to act. (example: public schools)

LImits

When does one’s own rights conflict with another’s?- Smoking in public, owning a gun, taxing for a

government program, freedom of speech

The role of the courts: - Balance the protection of civil liberties and protection of

the common good.- They can strike down laws made by government and

they can limit individual freedoms.- Courts can only issue rulings on cases in which are

brought before them by other parties (private parties must challenge laws).

First Amendment- The cornerstone of democracy

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right to the people peaceably to assemble, and to petition the Government for a redress of grievances.- Amendment I

- All other liberties stem from the liberties protected within it.

- Democracy is impossible without these specific liberties.

Religious freedomOne of the principles guided by British colonization

1) forbids the government from establishing an official religion (establishment clause)

2) guarantees people’s right to a “free exercise” of their own religion. (free exercise clause)

selective incorporation- certain protections from government are essential to due process; thus, states cannot deny these protections to the people.

“A wall of separation of church and state.” – Thomas Jefferson

Lemon test- religious freedom and schools

Lemon v. Kurtzman: struck down a law that allowed public funding for the teaching of non-religious subjects at private schools, including religious schools.

Precedent: The Lemon Test- Laws must meet the following criteria

1) It must have a secular or non-religious purpose

2) Its major effects must neither advance nor inhibit religion

3) It must not encourage “excessive government entanglement with religion.”

Freedom of speech and pressIn order for a democracy to be successful, the people need access to a

full range of opinions, beliefs, and information.

Includes: public and private speech, symbols, and actions.

- Texas v. Johnson- Flag Burning is a Constitutional form of expression (Speech cannot be prohibited even if society finds it to be offensive or disagreeable).

- Tinker v. Des Moines- A Iowa school district could not prevent students symbolic speech if does not interfere with the school’s purpose and student speech cannot be restricted at the school door.

- To Protest the war in Vietnam, students wore black armbands which were promptly banned at school.

Limits on speech1)Clear and Present Danger Test: “The most

stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”- (Schenck v. United States-1919)

2)Libel: spoken defamatory statement

3)Slander: Defamation in print

4)Treason: the offense by one to overthrow their own government or harm the sovereign.

5)Sedition: speech or actions that inspire revolt against the government.

Freedom of Assembly: People have the right to meet together and express their views peacefully.

- Government can limit time, manner, and place of gathering (but the content cannot guide restrictions).

Freedom of Petition (redress of grievances): petition- a formal request to one in authority about a specific cause.

Rights of the Accused- Why are these important?

4th Amendment: No unreasonable searches and seizures.

search warrant: a court order allowing law enforcement officials to search a person or location.

5th AmendmentAn indictment: a formal charge (accusation) from a grand jury. To determine if a trial is necessary.

No double jeopardy: If found innocent of a specific crime, one cannot be tried again for the same crime.

Right to remain silent: to protect people form being forced to testify against themselves.Presumed innocent until proven guilty (YOU can’t be the only evidence)

Miranda v. Arizona: created Miranda rights as a safeguard

Due Process: one must not be denied their rights due to them by the law of the land until following the legal process.

Eminent Domain: Private land for Public use

6th Amendment: Trial by juryEntitled to a lawyer; if you can’t afford one, the government must provide you with one.

8th Amendment: Forbids cruel and unusual punishment.Bail: a sum of money used as a security deposit. Bail is returned upon appearance in court. No excessive bail.

Capital Punishment is constitutional (Supreme Court).

Additional Rights

2nd Amendment: A well regulated militia, being necessary to the security of a free state, the right of the people to bear arms, shall not be infringed.Regulation is allowed.

3rd Amendment: No quartering in times of peace.

7th Amendment: The right to a jury trial in civil cases of the amount $20.civil case: lawsuits that involve disagreements between citizens, and not between the citizens and their government (crime). (criminal law v. civil law)

9th Amendment: Makes it clear that citizens have rights that are not mentioned in the Bill of Rights.

10th Amendment: The powers not delegated to the United States [federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people.

Expanding the Constitution

13th Amendment: Abolished slavery.

14th Amendment: Granted citizenship to all those born or naturalized in the United States, and equal protection under the law.

17th Amendment: Provided for the elections of U.S. senators by popular vote instead of state legislatures.

18th Amendment: Prohibition- the outlawing of sale and manufacturing of alcohol in the United States. (repealed by the 21st Amendment)

19th Amendment: women received the right to vote.

26th Amendment: the right to 18 year olds to vote.

14th amendment-

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 equal protection of the laws.

1)Defines citizenship2)Requires that government follow certain procedures before punishing a person.3)Equal Protection Clause: laws must applied equally