Fundamental American Liberties Chapter 4

In this chapter we will learn about The difference between civil rights and civil liberties and what they mean in a democratic society The meaning of the Bill of Rights and its relationship to the states Several protections afforded to U.S. citizens by the Bill of Rights: the freedoms of religion, speech, and the press; the right to bear arms; the rights of people accused of crimes; and the right to privacy

Civil rights and civil liberties Civil liberties Individual freedoms that place limitations on the power of government. In general, civil liberties protect our right to think and act without governmental interference. Civil rights Refer to the extension of government action to secure citizenship rights for all members of society.

A careful balancing act Individuals’ rights can conflict with each other. For example, one person’s right to share a prayer with classmates at the start of the school day could conflict with another student’s right not to be subjected to a religious practice against his or her will. Additionally, individuals’ rights can conflict with society’s needs and the demands of collective living; for instance, an individual’s right to decide whether or not to wear a motorcycle helmet may conflict with society’s need to protect its citizens and avoid the cost of paying someone else’s medical bills.

The Bill of Rights First ten amendments Opposed by Federalists because they said the entire Constitution “was a Bill of Rights” Supported by Anti-Federalists Eventually used as a compromise to help ratify the Constitution

What does it do? The Bill of Rights spells out a list of protections for U.S. citizens. It tells the government what it cannot do. Unlike the main body of the Constitution itself, it does not spell out the structure of our government. It lists our civil liberties.

Main concepts Before even looking at the Bill of Rights, it helps to put it in the proper framework. The Constitution provides for the right of habeas corpus, which means that the government cannot fail to bring prisoners, at their request, before a judge and inform the court why they are being held and what evidence is against them.

Main concepts, cont’d Both the national and the state governments are forbidden to pass bills of attainder, which are laws that single out a person or group as guilty and impose punishment without trial. Neither can they pass ex post facto laws, which are laws that make an action a crime after the fact, even though it was legal when carried out.

Main concepts, cont’d Additionally, one must also understand that the Bill of Rights, as written, was directed to Congress, the national government. It was not originally designed to limit the conduct of state governments; however, over the years, Supreme Court decisions have made clear that state governments must abide by the Bill of Rights. This is known as the incorporation doctrine.

First Amendment: The establishment clause First Amendment guarantee that the government will not create and support an official state religion. Separationists believe there should be a wall of separation between church and state. Accommodationists contend that the state should not be separate from religion but rather should accommodate it, without showing a preference for one religion over another.

The free exercise clause First Amendment guarantee that citizens may freely engage in the religious activities of their choice. The Supreme Court has ruled in the past that there need not be a “compelling state interest” to limit religious freedom. However, more recent cases suggest that any governmental limits on religious expression will be stricken down unless the government, whether state or federal, has a compelling state interest.

Value of freedom of expression Informed citizenry Watchdog for government Voice for the minority Preservation of the truth

Restrictions on sedition Sedition: speech that criticizes the government Clear and present danger test: If there were no immediately threatening circumstances, the language in question would be protected, and Congress could not regulate it. The clear and present danger test was slow to catch on. Imminent lawless action test: Replaces the clear and present danger test. Political speech can be restricted only if it is aimed at producing or was likely to produce “imminent lawless action.” Mere advocacy of specific illegal acts is protected unless it leads to immediate illegal activity.

Restricting other types of speech Symbolic speech: Most symbolic speech is protected. The Supreme Court has had a difficult time with this issue. Obscenity and pornography: In the Miller test, the Court asks “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law” and “whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value” (called the SLAPS test).

Censorship on the Internet Most attempts to restrict speech on the Internet have failed. In 2003 the Supreme Court did uphold the Children’s Internet Protection Act, which required public libraries that received federal funds to use filtering software to block material deemed harmful to minors, such as pornography. However, these filters can create some problems. We can probably expect some flux in the laws on Internet censorship as the courts become more familiar with the medium itself and the issues surrounding it.

Restricting other types of speech, cont’d Fighting words: words whose express purpose is to create a disturbance and incite violence in the person who hears the speech. The Supreme Court has held that threatening and provocative language is protected unless it is likely to “produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” It has also ruled that offensive language, though not protected by the First Amendment, may occasionally contain a political message, in which case constitutional protection applies.

Freedom of the Press Prior restraint : A restriction on the press before its message is published. Allowed only in narrow circumstances, such as when national security is at stake. Libel (defamation in printed form) and slander (defamation by spoken word): Public figures must show falsity and harm, just as private individuals must, but they also must prove malice and that it is not an obvious parody or joke.

Second Amendment: The right to bear arms In defense of an individual right to bear arms Protect hunting and other leisure activities, self-defense, protect family and property Not the government’s business to regulate gun use Supreme Court rules Second Amendment guarantees an individual right to bear arms (2008). The Court took ruling a step further in 2010, holding that not only could the federal government not violate an individual’s right to bear arms, but neither could a state government.

Second Amendment: The right to bear arms, cont’d In opposition to an individual right to bear arms They say that the arguments in favor of right to bear arms don’t apply to the Second Amendment because it doesn’t spell out an individual’s right to bear arms, only a militia’s Gun control leads to less violence and fewer gun-related deaths. The Second Amendment only gives the militia the rights to bear arms, not individuals. No right is absolute.

The rights of criminal defendants Defendants entitled to due process of the law, which means that laws must be reasonable and fair, and that those accused of breaking the law— and who stand to lose life, liberty, or property as a consequence—have the right to appear before their judges to hear the charges and evidence against them, to have legal counsel, and to present any contradictory evidence in their defense.

The rights of criminal defendants, cont’d Fourth Amendment: protection against unreasonable searches and seizures o The exclusionary rule mandates that illegally obtained evidence cannot be used against a defendant. o Numerous exceptions to the general rule that the police need a warrant to search. o Living in the age of terrorism had made it so that these exceptions are used more frequently.

The rights of criminal defendants, cont’d. Fifth Amendment o Miranda rights o The right against testifying against oneself at trial o Double jeopardy o The right to face one’s accuser

The rights of criminal defendants, cont’d. Sixth Amendment: right to counsel o Gideon v. Wainwright (1963) o The right to a speedy and public trial; trial cannot be so publicized that defendant does not get a fair trial o Right to a trial by jury

The rights of criminal defendants, cont’d Eighth Amendment o No cruel and unusual punishment allowed o Furman v. Georgia (1972) o McClesky v. Kemp (1987) o Baze v. Rees (2008) o Death penalty still legal in many states

The right to privacy Reproductive rights –Griswold v. Connecticut (1965) –Roe v. Wade (1973) Gay rights –Bowers v. Hardwick (1986) –Lawrence v. Texas (2003)

The right to privacy, cont’d. The right to die –Suspending treatment E.g., Terri Schiavo case –The terminally ill E.g., The Oregon case

Civil liberties and citizenship In the United States, we are accustomed to thinking about citizenship as a status that confers on us certain rights. Although obligation without rights is an authoritarian dictatorship, rights without obligation leads to a state of nature—anarchy— with no government at all. The status of a citizen in a democracy requires both rights and duties in order to “Keep the Republic.”