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)
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