Civil Liberties and Civil Rights Are Not the Same• Civil Liberties are protections of citizens from improper governmental action; what government must not do

• Civil Rights are the legal or moral claims that citizens are entitled to make on the government; how government must treat you

The Bill of Rights Checks Majority Rule

• Remember that to get the Constitution ratified, Federalists had pledged to amend the Constitution by adding a Bill of Rights

• Antifederalists saw the need for these protections against potential tyranny of a strong federal gov’t

• Adopted by late 1791, the ten amendments that now make up the Bill of Rights include both substantive and procedural restraints on governmental power

Reigning in Majorities

• The clear and absolute language of the Bill of Rights offers little latitude to politicians who might want to change protected liberties, but some amendments not so clear cut:– Establishment Clause• Does it prevent silent prayer in public schools

– 8th amendment• What is “cruel and unusual”?

Dual Citizenship

• The First Amendment says, “Congress shall make no law respecting an establishment of religion …”

• But this is the only amendment addressing itself only to Congress

• For instance, the Fifth Amendment says simply that “no person” shall be denied due process of law

Dual Citizenship and Barron v. Baltimore

(1833)• The city of Baltimore had been disposing of sand and gravel near a wharf owned by John Barron, rendering the wharf commercially useless

• Barron sued the city of Baltimore on the Fifth Amendmebt grounds that he had been deprived of property without compensation

• The Supreme Court ruled against Barron, stating “the Fifth Amendment must be understood as restraining the power of the General Government, not as applicable to the States”

Dual Citizenship and Barron v. Baltimore

(1833) • The Court confirmed the idea of “dual citizenship” – that each American is a citizen of the national government and, separately, a citizen of one of the states

• Dual citizenship means that citizens have liberties that protect them against national government action and a separate set of liberties that protect them against state government action

Extending Civil Liberties: Incorporation

The Fourteenth Amendment seems to apply the Bill of Rights to the states:– All persons born or naturalized in the United States … 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 life, liberty, or property, without due process of law

Extending Civil Liberties

• Incorporation is the process of bringing state laws and practices under the Bill of Rights protections by applying the 14th amendment to the states.– Altered the balance of power between

Washington DC and the states and expanded the range of protections offered by the Bill of Rights

Selective Incorporation through Judicial Interpretation

• As quickly as 1873, the Court ruled that the Fourteenth Amendment did NOT apply the Bill of Rights to the states

• In 1897, the Court held that the just compensation clause of the Fifth Amendment would be applied to the states

• This began a long, slow process of “selective incorporation” – one-by-one application of the liberties in the Bill of Rights to the states

Selective Incorporation

Major vs Peripheral Rights

• Major Rights– Litigated heavily and developed in detail by the

Court

• Peripheral Rights– Parameters have not been fully developed– Examples• Right of assembly • Takings clause

Selective Incorporation:Still Selective

• Some parts of the Bill of Rights are still not incorporated into the Fourteenth Amendment

• The most recent incorporated right is the Second Amendment’s right to bear arms

• In McDonald v. Chicago (2010), the Court ruled that the right to defend oneself is “fundamental to the Nation’s scheme of ordered liberty”

The Bill of Rights Today:

Freedom of Religion• “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

• The first clause is the Establishment Clause. This is sometimes referred to as the separation of church and state

• The second clause is the Free Exercise Clause. This protects a citizen’s right to believe and practice whatever religion he or she chooses

The Bill of Rights Today:

Freedom of ReligionThe Lemon test and the Establishment Clause – Government can be involved with religion if:– it has a secular purpose– its effect is neither to advance nor inhibit religion

– it does not create excessive entanglement

Does prayer time in a public school violate the Lemon test?

Freedom of Religion: from Lemons to Neutrality

• By the 1990s, the Lemon test was fading from establishment decisions.

• Justices tested a policy’s neutrality.• Neutrality Test: used to root out policies that preferred

religious groups over nonreligious groups engaged in similar activities.– Tax credits for religious school tuition OK if also available

for secular schools.– Religious groups can meet in public schools as long as they

follow the same rules as other groups.

The Bill of Rights Today:

Freedom of Speech• “Congress shall make no law … abridging the freedom of speech”

• The Westboro Baptist Church (Kansas) pickets the funerals of American soldiers killed in action with signs reading “Thank God for Dead Soldiers” because they believe these deaths are punishment from God for America’s tolerance of sin

• Does the Constitution protect this speech?

The Bill of Rights Today:

Freedom of Speech• Freedom of speech is not absolute– Clear and present danger test – does the speech present a “clear and present danger” to society?

– Libel and slander not protected

• Morse v. Frederick (2007) – A student holds up a “Bong Hits 4 Jesus” sign as the Olympic torch goes by

• Court rules this is not protected speech

The Bill of Rights Today:

Freedom of Speech• In general, one’s speech rights go only so far as they do not infringe on someone else’s rights– Speech that directly incites damaging conduct is “fighting words” and may be regulated

– But what constitutes “fighting words” is not fully settled

• Political speech is the most protected kind of speech

The Bill of Rights Today:

Freedom of the Press• The First Amendment also provides for freedom of the press

• The Court has ruled this means, among other things, no prior restraint – An effort by a government agency to block the publication of material it deems harmful or libelous

Freedom of the Press

• Near V Minnesota (1931)– The Court ruled prior restraint is a violation of the

freedom of the press. Near had been restrained from publishing a variety of hateful, racist, and anti-semitic pieces by a Minnesota statute. The Court ruled for Near, arguing that Near can be sued for libel and slander but he cannot be restrained ahead of time from printing his views.

The Bill of Rights Today:

Search and Seizure• The Fourth Amendment offers protection against unreasonable searches and seizure

• Not until 1967 did the Court start expanding the domain of privacy and limiting police technology to conduct warrantless searches

The Bill of Rights Today:

Search and Seizure• Katz v. United States• Court agreed that a telephone booth was a

“constitutionally protected area”• Questioned wiretap evidence– Court did not limit protections to discovery of

physical evidence– Indicated that even searches not involving

“physical penetration” of an individual’s space might be illegal

The Bill of Rights Today:

Search and Seizure• The Court generally allows police searches

without a warrant under the following circumstances:– During a valid arrest– When searching to ensure evidence is not lost– With consent of the suspect– When search occurs in “hot pursuit” – Evidence in plain view– Searching places other than residences that the Court has

decided merit low protection (cars)

Search and Seizure: illegally obtained evidence

• Exclusionary Rule – Developed in the 1961 case Mapp v. Ohio, it is the ability of the courts to exclude evidence obtained in violation of the Fourth Amendment.

• Has been relaxed over time– Improperly acquired evidence admissible if one can argue it would have been discovered anyway.

• Modern technology introducing new 4th amendment issues– Cell phone searches– DNA– GPS

The Bill of Rights Today:

Rights of the Accused• Various amendments and rulings guarantee the rights of the criminally accused

• The Fifth Amendment provides protection against double jeopardy and self-incrimination

• Miranda Rights requires defendants be advised of:– Right to remain silent– What they say can and will be used against them

– Right to an attorney– Right to end interrogation

The Bill of Rights Today:

Rights of the Accused• The Sixth Amendment provides for:– a speedy and public trial– an impartial jury– the right to confront one’s accusers– the right to counsel

• Gideon v. Wainwright (1961) incorporates the right to counsel into the Fourteenth Amendment

Giddeon’s Trumpet

• Clarence Earl Gideon was convicted of breaking and entering and petty larceny in a Florida court. He was sentenced to five years in jail and personally wrote an appeal to the Supreme Court on the grounds that he had not been given an attorney even though he could not afford one himself and even though he had asked the judge to appoint an attorney to represent him.

The Bill of Rights Today:

Rights of the Accused• The Eighth Amendment prohibits “excessive bail,” “excessive fines,” and “cruel and unusual punishment”– Execution of defendants with mental illness– Execution of juveniles– Sentencing juveniles to life without parole

• The ban on cruel and unusual punishment has served as a lightning rod for debate over the death penalty and, more recently, over torture.

Right to Privacy and the 9th Amendment

• “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”

• The explicitly guaranteed rights from penumbras– Implicit zones of protected privacy rights on which the existence of explicit rights is based.

– What actions are so personal that they should be shielded from interference by the government and other third parties?

The Bill of Rights Today:

Right to Privacy• Court’s attention mostly on reproductive rights.– Connecticut had a statute forbidding the use of contraceptives

– The Court invalidated the law based on a “zone of privacy” in Griswold v. Conn. (1965)

– Rights not limited to those specifically identified in the Constitution.

Right to Privacy

• Roe v. Wade (1973) cemented the right to privacy– “The right of privacy, whether it be founded in the 14th amendment’s concept of liberty…or…in the 9th amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

• Decision abortion’s varying legality across the states.

Right to Privacy• Roe v Wade did not wholly exempt abortion from gov’t regulation.

– States could regulate abortions from the end of the first trimester to fetus viability.• States could forbid abortions in final trimester except “for

preservation of the life/health of the mother”• States have backed away from trimester standard.

– Cannot ban abortions, but can impose regulations, as long as no undue burdens. • Waiting periods• Counseling sessions• Parental consent for minors

• Abortion remains controversial with a variety of different laws across the states.

Modern Civil Liberties

• Civil liberties remain among the most divisive and unsettle issues facing the nation– Judges come and go. The Court’s ideology

changes.– Ever changing technology questions logic of civil

liberties based on old realities.