Human Rights/Civil Liberties. Chapter 13: Constitutional Freedoms Debate over human rights goes...
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Transcript of Human Rights/Civil Liberties. Chapter 13: Constitutional Freedoms Debate over human rights goes...
Human Rights/Civil LibertiesHuman Rights/Civil Liberties
Chapter 13: Constitutional Freedoms
Debate over human rights goes back to ratification debates Federalists vs. Antifederalists Result: The Bill of Rights: guarantees rights of
individuals, limitations & restrictions on government
Civil liberties (negative) vs. civil rights (positive) No one has right to do anything he/she please
Have right as long as it does not infringe upon rights of others
Example: Right to freedom of speech but no one enjoys the freedom of absolute freedom of speech
What are civil liberties?What are civil liberties?
Protections against the government, Protections against the government, guarantees of safety, freedom of thought, guarantees of safety, freedom of thought, etc.etc.Examples include:Examples include:– Freedom of religionFreedom of religion– Freedom of speechFreedom of speech– Right to petitionRight to petition– Right to counselRight to counsel– Protection from search and seizureProtection from search and seizure
Development & Application of the Development & Application of the Bill of RightsBill of Rights
The ConstitutionThe Constitution– Limited Government—no titles of nobility, no ex post facto, etcLimited Government—no titles of nobility, no ex post facto, etc– Bill of Rights (Federalists/Anti-Federalists debate)Bill of Rights (Federalists/Anti-Federalists debate)
Can states deny people their rights?Can states deny people their rights?– State Constitutions—Bill of RightsState Constitutions—Bill of Rights– Barron v. Baltimore (1833)Barron v. Baltimore (1833)
Does the Federal Bill of Rights apply to the states?Does the Federal Bill of Rights apply to the states?No, it only protects from the national governmentNo, it only protects from the national government
1414thth Amendment Due Process Clause— Amendment Due Process Clause—No state shall No state shall deprive any person of life, liberty, or property without due deprive any person of life, liberty, or property without due process of lawprocess of law
1414thth Amendment & Incorporation Amendment & Incorporation
Selective Incorporation:Selective Incorporation: the process in which the the process in which the courts have gradually applied the BoR to the courts have gradually applied the BoR to the states through various court decisionsstates through various court decisions
Gitlow v. New York, 1925—Gitlow v. New York, 1925—11stst application of the application of the Bill of Rights to the states Bill of Rights to the states (freedom of speech)(freedom of speech)
Other examples:Other examples:– Mapp v. Ohio, 1964 Mapp v. Ohio, 1964 (4(4thth amendment) amendment)– Gideon v. Wainwright, 1963Gideon v. Wainwright, 1963 (6 (6thth amendment) amendment)
Today, almost all are incorporated (applicable to Today, almost all are incorporated (applicable to the states)the states)
11stst Amendment Amendment
Five basic freedoms:Five basic freedoms:– Freedom of religionFreedom of religion– Freedom of speechFreedom of speech– Freedom of the pressFreedom of the press– Right to petitionRight to petition– Right to assembleRight to assemble
How are religious liberties How are religious liberties protected in the Constitution?protected in the Constitution?
11stst Amendment Amendment– Establishment ClauseEstablishment Clause– Free Exercise ClauseFree Exercise Clause
1414thth Amendment (applies it to the states) Amendment (applies it to the states)
Establishment ClauseEstablishment Clause
““Congress shall make no law respecting an Congress shall make no law respecting an establishment of religion…”establishment of religion…”Government cannot establish a national religion or aid Government cannot establish a national religion or aid religionreligionCreates a “wall of separation” between church and stateCreates a “wall of separation” between church and state—how high is the wall?—how high is the wall?Does it simply prevent favoritism towards a religion or Does it simply prevent favoritism towards a religion or prohibit govt. encouragement of religious activity or prohibit govt. encouragement of religious activity or some support for religion?some support for religion?How is religion part of American life and government?How is religion part of American life and government?– Oaths of office, military chaplains, prayer in Congress, money, Oaths of office, military chaplains, prayer in Congress, money,
pledge of allegiance, tax exempt statuspledge of allegiance, tax exempt status
Establishment Clause & EducationEstablishment Clause & Education
Can a school district pay busing costs for students to go Can a school district pay busing costs for students to go to a private school?to a private school?– Yes—Everson v. Board of Education, 1947 (safety issue vs. Yes—Everson v. Board of Education, 1947 (safety issue vs.
religious favoritism)religious favoritism)
What else can religious schools be compensated for?What else can religious schools be compensated for?– Lemon Test Lemon Test (Lemon v. Kurtzman, 1971)—3 prong test: Does it…(Lemon v. Kurtzman, 1971)—3 prong test: Does it…
serve a religious purpose?serve a religious purpose?create excessive entanglement?create excessive entanglement?have a primary purpose of advancing or inhibiting religion?have a primary purpose of advancing or inhibiting religion?
– Acceptable for reimbursement: textbooks, state mandated tests, Acceptable for reimbursement: textbooks, state mandated tests, interpreter, lunchesinterpreter, lunches
Establishment Clause & EducationEstablishment Clause & Education
Prayer in schoolPrayer in schoolCan schools lead students in non-denominational Can schools lead students in non-denominational prayer? prayer? "Almighty God, we acknowledge our dependence upon "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."and our Country."
– No—Engel v. Vitale, 1962No—Engel v. Vitale, 1962
Bible readings and the Lord’s Prayer?Bible readings and the Lord’s Prayer?– No—Abington v. Schempp, 1963No—Abington v. Schempp, 1963
Moment of silence for meditation/prayer?Moment of silence for meditation/prayer?– No—Wallace v. Jaffree, 1985No—Wallace v. Jaffree, 1985
School sponsored prayer at graduation?School sponsored prayer at graduation?– No—Lee v. Weisman, 1992No—Lee v. Weisman, 1992
Prayer at football game?Prayer at football game?– No—Santa Fe Independent School District v. Doe, 2000No—Santa Fe Independent School District v. Doe, 2000
Establishment Clause & EducationEstablishment Clause & Education
EvolutionEvolutionCan a school ban the teaching of evolution?Can a school ban the teaching of evolution?– No—Epperson v. Arkansas, 1968No—Epperson v. Arkansas, 1968
Can a school require the teaching of Can a school require the teaching of creationism?creationism?– No—Edwards v. Aguilard, 1987No—Edwards v. Aguilard, 1987
Student GroupsStudent GroupsCan religious groups meet on school grounds?Can religious groups meet on school grounds?– Yes—Westside v. Mergens, 1990Yes—Westside v. Mergens, 1990
Establishment Clause & Public Establishment Clause & Public PlacesPlaces
Can religious figures be part of a Christmas Can religious figures be part of a Christmas display on city property?display on city property?– Yes—Lynch v. Donnelly, 1984Yes—Lynch v. Donnelly, 1984– Must include secular symbolsMust include secular symbols
Can the Ten Commandments be posted at Can the Ten Commandments be posted at government facilities?government facilities?– Yes and noYes and no– Schools—no (Stone v. Graham, 1980)Schools—no (Stone v. Graham, 1980)– Texas State Capitol—yes (Van Orden v. Perry)Texas State Capitol—yes (Van Orden v. Perry)– Courthouses—no?Courthouses—no?
Is this constitutional?Is this constitutional?
Nope.Nope.
Free Exercise ClauseFree Exercise Clause
Government cannot restrict beliefs, but may Government cannot restrict beliefs, but may restrict actionsrestrict actions
Free Exercise of Religion Issues/CasesFree Exercise of Religion Issues/Cases
Polygamy?Polygamy?– Reynolds v. U.S. (1879) Govt. may outlaw polygamyReynolds v. U.S. (1879) Govt. may outlaw polygamy
—subversive to good order—subversive to good order
Compulsory Education past 8Compulsory Education past 8thth grade? grade?– No—Wisconsin v. Yoder, 1972No—Wisconsin v. Yoder, 1972
Mandatory Vaccinations?Mandatory Vaccinations?
Free Exercise ClauseFree Exercise Clause
Poisonous snake handling?Poisonous snake handling?– Animal sacrifices– Conscientious objectors?Conscientious objectors?
Use of peyote in religious ceremonies?Use of peyote in religious ceremonies?
Medical attention for children?Medical attention for children?
Compulsory recitation of Pledge of allegiance?Compulsory recitation of Pledge of allegiance?– No—West Virginia v. Barnette, 1943No—West Virginia v. Barnette, 1943
Free Exercise ClauseFree Exercise Clause
How should the courts rule in this free exercise How should the courts rule in this free exercise case?case?George Daniels was fired in 1998 for wearing a George Daniels was fired in 1998 for wearing a small gold cross on his uniform collar. Daniels, small gold cross on his uniform collar. Daniels, an evangelical Christian and 14-year decorated an evangelical Christian and 14-year decorated sergeant, had been twice ordered to stop sergeant, had been twice ordered to stop wearing the pin. He began wearing it when he wearing the pin. He began wearing it when he was a plainclothes officer. The Arlington Police was a plainclothes officer. The Arlington Police Department said the agency's interest in Department said the agency's interest in maintaining a public appearance of impartiality maintaining a public appearance of impartiality outweighed Daniels' right to promote his outweighed Daniels' right to promote his Christianity.Christianity.
11stst Amendment & Freedom of Speech Amendment & Freedom of Speech
""If liberty means anything at If liberty means anything at all, it means the right to tell all, it means the right to tell people what they do not want people what they do not want to hear."to hear." (George Orwell) (George Orwell)
Why is freedom of speech & Why is freedom of speech & press so important in a press so important in a democracy?democracy?
11stst Amendment & Freedom of Speech Amendment & Freedom of Speech
What limits has the government placed on What limits has the government placed on freedom of speech?freedom of speech?
Punishable ActsPunishable Acts– Espionage, sabotage, treasonEspionage, sabotage, treason
Alien & Sedition Acts of 1798Alien & Sedition Acts of 1798– False, scandalous, and malicious criticism of False, scandalous, and malicious criticism of
the government was a crimethe government was a crime– Expired in 1801; Jefferson pardons offendersExpired in 1801; Jefferson pardons offenders
11stst Amendment & Freedom of Speech Amendment & Freedom of Speech
Words can create a “clear and present Words can create a “clear and present danger”danger”Govt. has a legitimate right to protect Govt. has a legitimate right to protect citizenscitizens– Schenck v. U.S., 1919—upheld law Schenck v. U.S., 1919—upheld law
prohibiting passing out pamphlets urging prohibiting passing out pamphlets urging draftees to resist the wardraftees to resist the war
– Cannot yell “fire” in a crowded movie theaterCannot yell “fire” in a crowded movie theater
Other efforts in the 1920s-1950s limited Other efforts in the 1920s-1950s limited socialist/communist activitiessocialist/communist activities
11stst Amendment & Freedom of Speech Amendment & Freedom of Speech
Slander—false & malicious use of spoken Slander—false & malicious use of spoken wordswordsCommercial SpeechCommercial Speech– Cannot have false or misleading advertising, Cannot have false or misleading advertising,
illegal goods or servicesillegal goods or services– restrictions on some products (i.e. tobacco, restrictions on some products (i.e. tobacco,
hard liquor)hard liquor)
11stst Amendment & Freedom of Speech Amendment & Freedom of Speech
““Fighting words”Fighting words”
Chaplinsky v. New Hampshire, 1942Chaplinsky v. New Hampshire, 1942– State can lawfully punish someone for the use State can lawfully punish someone for the use
of insulting "fighting words".of insulting "fighting words".
Cohen v. California, 1971Cohen v. California, 1971– ““F*** the Draft” is protected as a form of F*** the Draft” is protected as a form of
political speechpolitical speech
11stst Amendment & Freedom of Speech Amendment & Freedom of SpeechSymbolic Speech—is conduct protected by the 1Symbolic Speech—is conduct protected by the 1stst Amendment?Amendment?Can you burn your draft card?Can you burn your draft card?– U.S. v. O’Brien, 1968—no, because it is government U.S. v. O’Brien, 1968—no, because it is government
issuedissued
Are students protected under the 1Are students protected under the 1stst Amendment? Amendment?– Tinker v. Des Moines, 1969—yes, your rights do not stop Tinker v. Des Moines, 1969—yes, your rights do not stop
at the front doorat the front door– Bong Hits for Jesus?Bong Hits for Jesus?
Is it legal to burn an American flag?Is it legal to burn an American flag?– Texas v. Johnson, 1989—yes, it is protected as freedom Texas v. Johnson, 1989—yes, it is protected as freedom
of expressionof expression
Is it legal to burn a cross?Is it legal to burn a cross?– Virginia v. Black, 2003—if you can prove intentVirginia v. Black, 2003—if you can prove intent
A few cases involving studentsA few cases involving students
HandoutHandout
11stst Amendment & Freedom of the Press Amendment & Freedom of the Press
Restrictions on the press (review)Restrictions on the press (review)
Libel—false & malicious use of printed Libel—false & malicious use of printed wordword
Prior restraint?? (Near v. Minnesota, NY Prior restraint?? (Near v. Minnesota, NY Times v. U.S., Hazelwood v. Kuhlmeier)Times v. U.S., Hazelwood v. Kuhlmeier)
Shield lawsShield laws
Broadcast media regulated by FCCBroadcast media regulated by FCC
11stst Amendment & Freedom of the Press Amendment & Freedom of the PressObscenity-what is obscene?Obscenity-what is obscene?““I know it when I see it.” Justice Potter, I know it when I see it.” Justice Potter, (Jacobellis v. (Jacobellis v. Ohio)Ohio)
Miller v. California, 1973Miller v. California, 1973– 3-part test to determine what is obscene3-part test to determine what is obscene
Does the average person find it to excite lust?Does the average person find it to excite lust?Does it depict or describe sexual conduct in offensive Does it depict or describe sexual conduct in offensive manner?manner?Does the work lack serious artistic, literary, political, or Does the work lack serious artistic, literary, political, or scientific value?scientific value?
Child pornography can be bannedChild pornography can be banned11stst Amendment & the Internet Amendment & the Internet– Reno v. ACLU, 1997—The Court struck down 1996 Reno v. ACLU, 1997—The Court struck down 1996
Communications Decency Act on grounds that it was Communications Decency Act on grounds that it was too broadtoo broad
Freedom of the Press--studentsFreedom of the Press--students
HandoutHandout
11stst Amendment—Right to Petition & Assemble Amendment—Right to Petition & AssembleWhat limits can be placed on the right to What limits can be placed on the right to assemble or petitionassemble or petitionTime-Place-Manner RegulationsTime-Place-Manner Regulations– Demonstrations that disrupt school, court cases may Demonstrations that disrupt school, court cases may
be prohibitedbe prohibited– States & towns may require advance notice and States & towns may require advance notice and
permitspermits– May not set arbitrary feesMay not set arbitrary fees– May be broken up if it incites violenceMay be broken up if it incites violence– May not picket outside an individual’s residenceMay not picket outside an individual’s residence– May not demonstrate or assemble on private May not demonstrate or assemble on private
property, even if for public use (shopping centers)property, even if for public use (shopping centers)
11stst Amendment—Right to Petition & Assemble Amendment—Right to Petition & Assemble
Other petition & assemble issuesOther petition & assemble issuesCan the Nazis march in a predominantly Jewish Can the Nazis march in a predominantly Jewish neighborhood?neighborhood?– National Socialist Party v. Skokie, 1977—yes National Socialist Party v. Skokie, 1977—yes
Can you protest outside an abortion clinic?Can you protest outside an abortion clinic?– Yes, but you cannot block entrance, harass, Yes, but you cannot block entrance, harass,
employees or patientsemployees or patients
Can you protest at someone’s funeral?Can you protest at someone’s funeral?– States have passed legislation/articleStates have passed legislation/article– Snyder v. Phelps, 2011Snyder v. Phelps, 2011
44thth Amendment—Search & Seizure Amendment—Search & Seizure
Protection from unreasonable search & Protection from unreasonable search & seizure—secure in your possessionsseizure—secure in your possessionsPolice must have a warrant based on Police must have a warrant based on probable cause to search homeprobable cause to search homeExclusionary RuleExclusionary Rule—evidence gained —evidence gained through an illegal search cannot be used through an illegal search cannot be used against the personagainst the person– Mapp v. Ohio, 1961—4Mapp v. Ohio, 1961—4thth Amendment applied Amendment applied
to the states via the 14to the states via the 14 thth (selective incorporation!)(selective incorporation!)
44thth Amendment—Search & Seizure Amendment—Search & Seizure
Exceptions to the ruleExceptions to the rule– Exigent factors (i.e. destruction of evidence)Exigent factors (i.e. destruction of evidence)– ““Good faith” exceptionGood faith” exception– Items found “in plain view”Items found “in plain view”– Open fieldsOpen fields– During an arrestDuring an arrest– Automobiles?Automobiles?– Garbage left outsideGarbage left outside
44thth Amendment—Search & Seizure Amendment—Search & SeizureAre students protected from search and Are students protected from search and seizure?seizure?– New Jersey v. TLO, 1985—New Jersey v. TLO, 1985—reasonable suspicion reasonable suspicion
needed for search; less strict than police officersneeded for search; less strict than police officers– Safford v. Redding, 2009—search must not be Safford v. Redding, 2009—search must not be
excessively intrusive (strip search not ok)excessively intrusive (strip search not ok)
Are mandatory drug tests an infringement on an Are mandatory drug tests an infringement on an individual’s 4individual’s 4thth amendment rights? amendment rights?– SC has upheld various programs for federal SC has upheld various programs for federal
employees (railroad workers, customs agents, etc.)employees (railroad workers, customs agents, etc.)
Can schools require drug testing of students?Can schools require drug testing of students?– Courts have upheld testing of students in extra-Courts have upheld testing of students in extra-
curricular activities (Video @ 8:45 mark)curricular activities (Video @ 8:45 mark)
44thth Amendment—Search & Seizure Amendment—Search & Seizure
Does wiretapping violate the 4Does wiretapping violate the 4thth amendment?amendment?– Katz v. U.S., 1967—wiretapping of phones Katz v. U.S., 1967—wiretapping of phones
unconstitutional w/o warrantunconstitutional w/o warrant
GPS devices on cars?GPS devices on cars?
Cell phones—tracking? (article)Cell phones—tracking? (article)
Questions about the war on terror and Questions about the war on terror and violations of the 4violations of the 4thth Amendment Amendment– NSA wiretappingNSA wiretapping– Patriot ActPatriot Act
Rights of the Accused—5Rights of the Accused—5thth, 6, 6thth, & 8, & 8thth Amendments Amendments
Provisions of the 5Provisions of the 5thth Amendment Amendment
Double Jeopardy—may not be tried for the same Double Jeopardy—may not be tried for the same crime twicecrime twice– Exceptions: state/federal crime, hung jury, Exceptions: state/federal crime, hung jury,
civil/criminal casecivil/criminal case
Eminent domain—govt. can take away your Eminent domain—govt. can take away your property for “legitimate govt. purpose”property for “legitimate govt. purpose”– Kelo v. City of New London, 2005—expands the Kelo v. City of New London, 2005—expands the
definition of govt. purpose to include commercial definition of govt. purpose to include commercial developmentdevelopment
Rights of the Accused—5Rights of the Accused—5thth, 6, 6thth, & 8, & 8thth AmendmentsAmendments
Self-incrimination—cannot be compelled Self-incrimination—cannot be compelled to be a witness against oneselfto be a witness against oneself– May only claim this right for yourself; may be May only claim this right for yourself; may be
compelled to testify against others (spousal compelled to testify against others (spousal exception)exception)
Miranda v. Arizona, 1966—have to be told Miranda v. Arizona, 1966—have to be told of your constitutional rightsof your constitutional rights
Rights of the Accused—6Rights of the Accused—6thth Amendment Amendment
Provisions include:Provisions include:– Speedy and public trialSpeedy and public trial– Know charges against youKnow charges against you– Confront witnessesConfront witnesses– Call witnessesCall witnesses– Right to CounselRight to Counsel
66thth Amendment—Right to Counsel Amendment—Right to Counsel
Powell v. Alabama, 1932—Powell v. Alabama, 1932—right to counsel in capital right to counsel in capital casescasesGideon v. Wainwright, 1963—Gideon v. Wainwright, 1963—SC incorporated 6SC incorporated 6thth Am. right Am. right to counsel to states in all to counsel to states in all criminal casescriminal casesEscobedo v. Illinois, 1964—Escobedo v. Illinois, 1964—extends the right to counsel to extends the right to counsel to when you are being when you are being questioned, not just trialquestioned, not just trial
88thth Amendment—Cruel & Unusual Punishment Amendment—Cruel & Unusual PunishmentRelevant cases:Relevant cases:Furman v. Georgia, 1972—ruled that the death Furman v. Georgia, 1972—ruled that the death penalty was being unfairly used; imposed a penalty was being unfairly used; imposed a moratoriummoratoriumGregg v. Georgia, 1976—death penalty ok if Gregg v. Georgia, 1976—death penalty ok if proper guidance provided to jurorsproper guidance provided to jurorsOther issues:Other issues:– Death penalty for mentally challenged?Death penalty for mentally challenged?– Death penalty for minors?Death penalty for minors?
Roper v. Simmons, 2005Roper v. Simmons, 2005
– Life sentences for minors?Life sentences for minors?
Civil Liberties—The Right to PrivacyCivil Liberties—The Right to Privacy
No mention of the right to privacy in the No mention of the right to privacy in the Const.Const.– 11stst major case—Griswold v. Connecticut, 1965 major case—Griswold v. Connecticut, 1965
(birth control)(birth control)– ““Penumbra”—shadows of the 1Penumbra”—shadows of the 1stst. 3. 3rdrd, 4, 4thth, 5, 5thth, ,
99thth, & 14, & 14thth Amendments Amendments
The Right to Privacy—AbortionThe Right to Privacy—Abortion Roe v. Wade, 1973—states cannot prohibit Roe v. Wade, 1973—states cannot prohibit abortion (regulations by trimesters)abortion (regulations by trimesters)Abortion rights expand over the next 15 yearsAbortion rights expand over the next 15 yearsBeginning in 1989, abortion rights begin to Beginning in 1989, abortion rights begin to narrownarrow““Undue burden” doctrineUndue burden” doctrineWebster v. Reproductive Health Services, 1989Webster v. Reproductive Health Services, 1989– No public employees/facilitiesNo public employees/facilities
Planned Parenthood v. Casey, 1992Planned Parenthood v. Casey, 1992– 24 hr. waiting period24 hr. waiting period– Parental notificationParental notification– InformationInformation– Did NOT overturn Roe thoughDid NOT overturn Roe though
Other privacy issuesOther privacy issues
Right to MarriageRight to Marriage– Loving v. Virginia, 1967Loving v. Virginia, 1967
Right to DieRight to Die– Cruzan v. Missouri Dept. of Health, 1990Cruzan v. Missouri Dept. of Health, 1990
Sexual behaviorSexual behavior– Bowers v. Hardwick, 1986Bowers v. Hardwick, 1986– Lawrence v. Texas, 2003Lawrence v. Texas, 2003– Springboard to recognizing same-sex Springboard to recognizing same-sex
marriage??marriage??