Civil Liberties in the Constitution

  • Civil liberties are constitutional provisions, laws, and practices that protect individuals from governmental interference. Found primarily in the Bill of Rights. They protect us from the government.
  • Civil rights are guarantees by government of equal treatment to all citizens.  (The word equality does not appear in the Constitution.)
  • Constitutional liberties
  • The original Constitution specifically protected only a few liberties from the national government and almost none from state governments.
  • The safeguard against tyranny that the framers preferred was to give the national government little power with which to attack individual liberties.
  • The framers singled out a few crucial freedoms initially in the Constitution.
  • Prohibition against suspending the writ of habeas corpus except when public safety demanded it due to rebellion or invasion
  • Prohibition against passing bills of attainder
  • Prohibition against passing ex post facto laws

What the anti-federalists were for…

  • Objections to the absence of a more specific listing led the Federalists to promise that a bill of rights would be proposed as a condition for ratifying the Constitution.
  • Selective Incorporation
  • The framers were more concerned about intrusions by the national government than by state governments.
  • Congress wanted to extend the reach of the Bill of Rights when it approved the Fourteenth Amendment.
  • Privileges and immunities clause
  • Due process clause
  • The Supreme Court was slow in nationalizing or incorporating the Bill of Rights.
  • Nationalization of the Bill of Rights
  • BOR originally intended to apply to the national government.
  • Barron v. Baltimore- 1833-BOR does not apply to the states

Speech today

  • Speech:  laws infringing on public speech are constitutional if
  • Limiting the use of fighting words
  • Law is not overly broad nor under-inclusive
  • State can show that the dangers of the speech were such that it was necessary to override free speech
  • Actions may also be protected if they have symbolic value

Unprotected Speech

  • Pornography v. obscenity (legal term)
  • The courts have held that obscenity is not protected by the First Amendment, but the definition of obscenity has been contested for half a century.
  • Miller v. California (1973)
  • three-part test
  • Concerns about the availability to minors of sexually offensive material on the Internet
  • Communications Decency Act (1996)
  • Reno, Attorney General of the United States v. ACLU (1997)

Freedom of the Press

  • Libel is a false statement about a person or defamation of his character in print or in a visual portrayal on television.
  • Slander is such a statement or defamation by speech.
  • New York Times v. Sullivan (1964)
  • newspapers protected against trivial or incidental errors when they were reporting on public persons
  • Private individuals:  a higher status of protection
  • Public officials:  must show that the speech or printed material was said or printed with knowledge that it was false or with reckless disregard for the truth
  • Symbolic speech-expressions of beliefs are protected under the 1st Amendment as a form of protected speech
  • Texas v. Johnson (1989)
  • flag desecration falls under free expression protections

Free Exercise of Religion

  • For much of our history, the Supreme Court deferred to the states on the issue.
  • West Virginia v. Barnette (1943)
  • overturned Minersville School District v. Gobitis (1940)
  • firmly established free exercise of religion as protected against the states
  • Overall, freedom of religious belief is absolutely protected, while freedom of religious action is not absolute.
  • Employment Division v. Smith (1990)-peyote case
  • Establishment of Religion
  • The establishment clause in the First Amendment states that “Congress shall make no law respecting an establishment of religion.”
  • Everson v. Board of Education (1947)-catholic busing constitutional
  • McCollum v. Board of Education (1948)- program teaching religious instruction unconstitutional
  • Zorach v. Clauson (1952)-religious instruction outside of school during school day constitutional
  • Accommodationist approach-the government may extend benefits to religious groups for nonreligious activities that benefit the community.
  • US Army Chaplains- www.usachcs.army.mil

o    The Lemon Test is used in order to determine if a law is unconstitutional under the establishment clause of the 1st Amendment.

  • Lemon v. Kurtzman (1971) -The Supreme Court ruled that government aid to religious institutions is constitutional if the state can prove
  • 1. law must have a secular purpose
  • 2. the primary effect of the law must be neither to advance nor retard religion
  • 3. government must never foster excessive entanglements between state and religion

Religion in Public Schools: Prayer

  • Since the early 1960s, the Court has consistently ruled against nondenominational prayer or a period of silent prayer in the public schools.
  • Engel v. Vitale (1962)-school prayer unconstitutional
  • Lee v. Weismann (1992)-prayer at graduation unconstitutional
  • Santa Fe Independent School District v. Doe (2000)-school prayer at football games or other school sponsored events unconstitutional
  • Religion in Public Schools: Curriculum
  • In Kitzmiller v. Dover Area School District (2005), the Court rejected the idea of teaching intelligent design to students.
  • Creationism-God created the earth (as in the Bible)
  • Intelligent design- idea that world is so complex it could not have evolved as scientists have proposed (evolution). Argument is that God had to have helped, but not explicitly stated. An alternative to teaching creationism.
  • Privacy
  • The freedom to be left alone in our private lives (the right to privacy) is not specifically mentioned in the Constitution, but exists in the penumbras of the First, Third, Fourth, Fifth & Ninth Amendments
  • Griswold v. Connecticut (1965)
  • the right to privacy is inherent in the Bill of Rights
  • became an important precedent for Roe v. Wade (1973)-upheld a women’s right to choose an abortion free from state interference in the first trimester of pregnancy
  • Since the 1980s the courts have narrowed this, allowing restrictions based on age, legal status, etc.
  • Gonzales v. Carhart (2006)-made partial birth abortion ban constitutional
  • Privacy
  • The “right to die”
  • Terri Schiavo case
  • Gonzalez v. Oregon (2006)

Rights of the Accused

  • Five of the first ten Constitutional Amendments focus on this issue
  • The Fourth Amendment–
  • Unreasonable searches and seizures
  • Weeks v. US (1914): exclusionary rule created
  • Mapp v. Ohio (1961): exclusionary rule and 4th amendment applies to the states
  • 5th and 6th Amendment
    • Miranda v. Arizona (1966)
    • Miranda warnings

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