CIVIL LIBERTIES

Difference Between Civil Liberties and Civil Rights? Civil Rights Civil Rights Freedom from governmental discrimination (unequal treatment). Freedom from governmental discrimination (unequal treatment). Bill of Rights Bill of Rights The first 10 amendments of the Constitution, which form the basis of civil liberties. The first 10 amendments of the Constitution, which form the basis of civil liberties. Civil liberties Civil liberties Freedoms that citizens enjoy from government interference Freedoms that citizens enjoy from government interference Freedom of speech, press, assembly, and religion; guarantees of due process and other protections given to criminal defendants. Freedom of speech, press, assembly, and religion; guarantees of due process and other protections given to criminal defendants. Understand the difference? Understand the difference? Right to assembly = civil liberty. BUT if government decides only people with red hair can assemble and others could not, that would be discrimination and a violation of civil rights. Right to assembly = civil liberty. BUT if government decides only people with red hair can assemble and others could not, that would be discrimination and a violation of civil rights.

Protection of individual rights applies to …. ALL PERSONS, aliens a/w/a citizens ALL PERSONS, aliens a/w/a citizens BUT… BUT… KOREMATSU v. U.S. – 1944, rights can be suspended if …. KOREMATSU v. U.S. – 1944, rights can be suspended if …. What about the question of education of illegal aliens? What about the question of education of illegal aliens? PLYER v. DOE, 1982 PLYER v. DOE, 1982 TX could not deny funding for education to children who were illegal immigrants (5-4 decision) TX could not deny funding for education to children who were illegal immigrants (5-4 decision) The right to an education is based on where a person lives, not their alien status.

The Bill of Rights & the States: The Original Understanding The Bill of Rights originally thought to limit ONLY the power of the national government … not the power of the states. Barron v. Baltimore (1833) 5 th Amendment eminent domain case – Barron damaged by action of city of Baltimore (“took” land – his wharf - w/o compensation) Court held that Bill of Rights restrained ONLY the national government – they did not restrain states and cities – city of Baltimore wins. Some felt Court had gone too far in saying states & cities were not restrained by ANY of Bill of Rights.

Gitlow v. New York, 1925 Gitlow v. New York, 1925 Free Speech & press case Free Speech & press case (anarchist/socialist speech/leaflet) (anarchist/socialist speech/leaflet) What happened in the case? What happened in the case? Began the “incorporation doctrine” Began the “incorporation doctrine” Says most of the protections in the Bill of Rights are also covered by the 14 th Amendment’s due process clause and therefore also apply to the states Says most of the protections in the Bill of Rights are also covered by the 14 th Amendment’s due process clause and therefore also apply to the states What is incorporation? What is incorporation? Applying the Bill of Rights to the states. Applying the Bill of Rights to the states. Means that an amendment limits not only the federal government, but the state governments as well. Means that an amendment limits not only the federal government, but the state governments as well. Total incorporation: making every specific provision of the Bill of Rights applicable to the states – hasn’t happened. Total incorporation: making every specific provision of the Bill of Rights applicable to the states – hasn’t happened. Selective incorporation: making only the most essential provisions applicable to the states. Selective incorporation: making only the most essential provisions applicable to the states.

SELECTIVE INCORPORATION & THE 14 TH AMENDMENT Selective Incorporation i Selective Incorporation is the process that has evolved, through court cases and rulings, used by SCOTUS to insure the rights of the people are not violated by state laws or procedures. Protections are incorporated (applied) to the states, on a case-by-case basis, via the 14 th Amendment. The cases that apply the Bill of Rights to the states. Fourteenth Amendment, Sec. One, prohibits any state from depriving "any person of life, liberty, or property, without due process of law." Fourteenth Amendment, Sec. One, prohibits any state from depriving "any person of life, liberty, or property, without due process of law."

DUE PROCESS Federal 5 TH Amendment says Federal government may not deprive a person of life, liberty or property without due process of law 14 th Amendment States 14 th Amendment places this same restriction on the States “Due Process” simply means gov’t cannot deny rights to any person that are considered basic/essential to the American concept of ordered liberty. Your right to fair treatment. Government must respect all of the legal rights that are owed to a person according to the law.

Two Types of Due Process

DUE PROCESS Two types: Procedural due process – deals with HOW the gov’t acts Gov’t has to act fairly & within the rules – for example, you have the right to be notified of charges or proceedings,, the opportunity to be heard at these proceedings, and right to an attorney, etc. Gov’t has to act fairly & within the rules – for example, you have the right to be notified of charges or proceedings, Miranda warnings, the opportunity to be heard at these proceedings, and right to an attorney, etc. Substantive due process provides that the laws, policies, rules of gov’t must be fair --- the “WHAT” Rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary- freedom of speech and religion, etc. Rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary- freedom of speech and religion, etc.

By the 60s, most of Bill of Rights were incorporated. By the 60s, most of Bill of Rights were incorporated. “Selective” Incorporation though because only certain rights have been selected and incorporated via the 14 th Amendment. “Selective” Incorporation though because only certain rights have been selected and incorporated via the 14 th Amendment. Most recent incorporation – 2 nd Amendment Most recent incorporation – 2 nd Amendment Which ones have NOT been incorporated? Which ones have NOT been incorporated? All Right to indictment by grand jury

Do you understand selective incorporation? Initially, the United States Constitution did little to protect citizens from actions of the states. In the twentieth century, the Supreme Court interpreted the Constitution to protect the right of citizens from state governments in a process called incorporation. (a)Define selective incorporation. (2 points) (b)For TWO of the following, EXPLAIN how each has been incorporated. Each of your explanations must be based on a specific and relevant Supreme Court decision. (4 points) First Amendment Rights of criminal defendants Privacy rights

Which of the following is true about the Bill of Rights? A.It enumerates the power of the federal government to pass laws protecting individual rights. B.It enumerates the power of state governments to pass laws protecting individual rights. C.It limits the power of state governments. D.It limits the power of the federal government. Do you understand selective incorporation?

What was the Supreme Court's decision in Barron v. Baltimore? What was the Supreme Court's decision in Barron v. Baltimore? A) The Bill of Rights did not restrict the actions of state governments. A) The Bill of Rights did not restrict the actions of state governments. B) All citizens are entitled to substantive due process. B) All citizens are entitled to substantive due process. C) The direct incitement test is consistent with the First Amendment's guarantee of freedom of speech. C) The direct incitement test is consistent with the First Amendment's guarantee of freedom of speech. D) Government can not infringe on citizens' "fundamental freedoms.“ D) Government can not infringe on citizens' "fundamental freedoms.“ E) The incorporation doctrine is an unconstitutional infringement on states’ rights. E) The incorporation doctrine is an unconstitutional infringement on states’ rights.

FREEDOM OF RELIGION Fundamental belief is that free expression, including freedom of religion, is necessary to a free society.

What’s the difference between the establishment and free exercise clauses? Prevents gov’t from establishing any religion No state-sponsored churches (such as the Church of England) Establishment Protects citizens' right to practice their religion as they please But only so long as the practice does not run afoul of "public morals" or a "compelling" governmental interest. Free Exercise 1 st Amedment

Is it actually in the Constitution?

Two Clauses: Establishment and Free Exercise Establishment Clause: Controversy: does it simply prohibit favoring one religion over another?.... OR Jefferson’s “wall of separation” between church and state? the wall prohibited not only favoritism of a particular religion, but also ANY support for ANY religion at all. Read the clause – what do you think? “Congress shall make no law respecting an establishment of religion….”

Lemon v. Kurtzman, 1971 Landmark case on government aid to church-related schools Was NOT allowed in this case Court set out 3 pronged “Lemon” test: Aid must have a secular purpose Primary effect must not advance nor inhibit religion Must not create excessive gov’t “entanglement” with religion So, is government support of religious schools establishing religion? Courts apply the “Lemon Test” to determine. NAISNE!

Permissible “religious” activities: Gov’t aid for textbooks, equipment, lunches, at parochial schools but NOT teacher salaries – why not? Can schools deny religious meetings on campus? NO Equal Access Act: schools that receive federal funds must allow student religious meetings on campus if it opens its doors to other student meetings Can schools subsidize religious publications? YES, if they subsidize other student group publications; U of VA was required to subsidize student religious magazine just like it did other student publications

SCHOOL PRAYER –ESTABLSHMENT CLAUSE: Engle v. Vitale, 1962 Engle v. Vitale, 1962 Forbids the sponsorship or encouragement of prayer by public school officials State officials had written non- sectarian prayer to be recited by NY schoolchildren at beginning of day; ACLU brought case Court said religious beliefs were embodied in it even though not explicit Abbington School District v. Schempp Same ruling in Abbington School District v. Schempp, 1963 – PA law that allowed a Bible passage to be read at beginning of day held unconstitutional

Gallup polls show that majority of American public has never supported Court’s opinion on school prayer Gallup polls show that majority of American public has never supported Court’s opinion on school prayer Has it gone too far – has it gone far enough? Has it gone too far – has it gone far enough? 1992 – school sponsored prayer at graduation held to be unconstitutional; again in – school sponsored prayer at graduation held to be unconstitutional; again in – student-led prayer at football game held to be unconstitutional 2000 – student-led prayer at football game held to be unconstitutional

Other Establishment issues: LA required schools to teach creation science in addition to Darwin – Sup. Ct. struck it down in Displays of religious symbols a confusing issue: Nativity scenes CAN be okay …. case by case basis …allowed sometimes if Santa Claus, or other secular symbols, there also Ten Commandments generally not allowed to be posted in public buildings … BUT, conflicting 2005 cases. Oklahoma Supreme Court most recently ruled to remove a Ten Commandments statue on state grounds.

FREE EXERCISE CLAUSE “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Free Exercise clause protects individuals’ right to BELIEVE – but not to DO – whatever they wish. What kinds of actions might society find necessary that are forbidden by certain religions – or vice versa? Mormons –– Ct. held in Reynolds v. U.S. that practice of polygamy impaired the public interest and denied Mormons this “religious” practice. Amish – Ct. held in Wisconsin v. Yoder that Amish children CAN be released from compulsory education after 8 th grade

FREE EXERCISE CLAUSE Santeria case, Hialeah, FL: Are animal sacrifices part of “free exercise” of religion? Court said yes in this case The Hialeah ordinances failed because they applied exclusively to the church. The ordinances singled out the activities of the Santeria faith. What about Christian Scientists & their beliefs?