Civil LibertiesPROTECTS CITIZENS AGAINST GOVERNMENT RESTRAINT

First…a discussionMORSE V. FREDERICK—YES THIS IS A REAL CASE

Here’s What We’ll Learn… Civil Liberties under the original Constitution Incorporation First Amendment rights and restrictions

(scholars…get ready to argue!) Due Process rights Privacy rights Rights of the accused Capital Punishment

Civil Liberties Under the Original Constitution Habeas Corpus—court order

directing that a prisoner be presented in court and charges explained Probably can never be suspended

(Lincoln tried in the Civil War)

Enemy combatants???

Ex Post Facto Laws—also banned (retroactive punishments)

Bill of Rights added

Then…Amendment 14 and the Due Process Clause (Civil War Amendment)

Incorporation Originally: Bill of Rights only applied to the Federal Government’s dealings with the citizens

Then the 14th Amendment guaranteed under the Due Process Clause that all citizens had to be treated equally Substantive Due Process (limits

what government can do) Procedural Due Process (how

laws are applied)

Gitlow v. New York (1925) began incorporation, the case-by-case extension of the bill of rights to the states

Pearson Education, Inc. © 2006

Selective Incorporation of the Bill of Rights

Update! McDonald v. Chicago

(handgun band) incorporated this in

2010

The First Amendment

Rights From Amendment I

Speech Press Religion Assembly Petition the Government

Freedom of Speech “Congress shall make no law

…abridging the freedom of speech…”

Pure speech v. symbolic speech

Is this an absolute right? When can it be LEGALLY

taken awayEndangering public safetyAdvocating illegal activity

Overthrow of Government (esp. wartime)

When Can It Be Regulated? Flag burning in a protest?

YES (Texas v. Johnson)

Burning Draft Card?

No (US v. O'Brien)

Picketing a private residence?

NO (Frisby v. Schultz)

Three part test to uphold:

Within powers of government

Regulation must be unrelated to free speech

Other channels of speech are available

Unprotected Speech Sedition: urges resistance

to lawful authority or government overthrow

Defamatory speech: false speech; damages character or reputation Libel (written)

Slander (spoken)

Public official? OK

Obscenity Fighting words: violent

reaction Student speech: can be

regulated

The Court's Test Evolution of established

limits:1. Clear and present danger

(immediate danger)

2. Bad Tendency Doctrine (Restricted if it tended to lead to an illegal action)

3. Preferred Position Doctrine—Speech should almost NEVER be restricted (speech has a preferred position in the constitution)

1. These are fundamental rights; will assume law is unconstitutional)

Freedom of Religion“Congress shall

make no law…respecting the establishment of religion…[or] prohibiting the free exercise of religion…”

Establishment Clause

Free Exercise Clause

Separationof Church and State

Establishment Clause No state-sponsored

religion Wall of separation: how

high? Pledge of Allegiance

Money

Everson v. Board of Ed (1947) New Jersey

Public $ used to bus

Upheld (furthered education, not religion)

Lemon Test

Lemon v. Kurtzman (1971) State aid to church is legal as along as:

1. Have a non-religious purpose

2. Can’t advance or inhibit religion

3. Avoid excessive government entanglement in religion

Engel v. Vitale (1962) Teaching of Intelligent Design?

Free Exercise Clause Polygamy (Reynolds v.

US) Amish & compulsory

education laws (Wisconsin v. Yoder)

Jehovah’s Witnesses must salute the flag (West Virginia State Board of Education v. Barnette)

Using peyote (Employment Division v. Smith)

Press, Assembly, PropertyLET’S DO SOME RESEARCH

Non-First Amendment RightsSHS SOCIAL STUDIES

Amendment IV (privacy)

III: Quartering troops Searches & seizures

—must be reasonable Probable cause Search warrant Signed by judge

Exclusionary rule

Right to Privacy

Griswold v. Connecticut (1965) Roe v. Wade (1973) Ohio v. Akron Center (1990): parental consent

under 18 Lawrence v. Texas (2003): Adults have a right

to consensual sexual relations with one another

Is A Warrant Needed?

Belief that someone committed a felony? Yes

Crime committed in presence of police? No

Garbage cans Yes (unless garbage has been taken out)

Drug test No

Vehicle No (even things in the vehicle)

Wiretap Yes

More Amendments…

Amendment V: self-incrimination (Miranda v. Arizona)

Amendment V: double jeopardy (both state & federal laws violated?)

Amendment VI: assistance of counsel (Gideon v. Wainwright) 5 years

Amendment VIII

Against cruel & unusual punishment Punishment must fit the crime

Death penalty? Furman v. Georgia (1972): unconstitutional Gregg v. Georgia (1976): constitutional if death

penalty if certain procedures are followed—separate deliberations; specific crimes; appeals)