To Accompany Comprehensive, Alternate, and Texas Editions American Government: Roots and Reform, 10th edition Karen O’Connor and Larry J. Sabato  Pearson Education, 2009  Chapter 5 Civil Liberties

The Bill of Rights  Debate over necessity at Constitutional Convention.  Exists in state constitutions for personal liberties in 1787  Concerns of Anti Federalists  Guarantees specific rights and liberties.  Ninth Amendment states other rights exist.  Tenth Amendment reserves rights to states and people.

Incorporation  Until 20th century, Bill of Rights did not apply to states.  14th Amendment’s due process clause raises questions.  Begins to apply after Gitlow v. New York (1925).  Case is first step in incorporation doctrine.  Not all guarantees have been incorporated.  Selective incorporation of fundamental freedoms.Selective incorporation

Table 5.1- Selective Incorporation  Back

1 st Cont Congress protest of Anglican and Catholic churches as official churches Jefferson and “wall of separation” Article VI – no religious test First Amendment 1879 Supreme Court bars polygamy 1940 Supreme Court says 1 st Amend. embraces 2 concepts: “Freedom to believe and freedom to act. The 1st is absolute, but in the nature of things, the 2 nd cannot be.” 1. Establishment Clause 2. Free Exercise Clause First Amendment

First Amendment: Establishment  Prevents government from establishing religion.  Have been years of debate over scope of clause.  Lemon test (1971) sets clearest boundaries. 1) Secular, 2) No religious effect, 3) No entanglement.  Applied most frequently to religious schools.  Aid used to be books only; has been broadened to include Equal Access Act in public schools.  Also limits other actions, e.g. prison ministries.

First Amendment: Free Exercise  Government cannot interfere with religious practice.  Is not absolute; necessity can outweigh freedom.  Still, laws must be neutral toward religion.  Religious Freedom Restoration Act  2006 case involving hallucinogenic hosaca tea  Questions dealing with “what is a god” and “what is religious faith”

Free Speech and Press  First Amendment meant to guard against prior restraint.  Alien and Sedition Acts go against this principle.  Additional prohibitions during the Civil War era.  Rise of sedition laws in the 1890s.  New limitations during World War I.  Give rise to clear and present danger test in  Modified in 1969 to be direct incitement test.

Protected Speech  Court will rarely tolerate prior restraint.  NY Times v. US (Nixon) 1971  Pentagon papers  Court also protects symbolic speech.  Tinker v. DesMoines School District 1969  Students wearing black anti-war armbands  Texas v. Johnson 1989  Protects Flag Burning  Hate speech also receives growing protection.

Unprotected Speech  These types of speech are without social value.  Libel, or false written statements. (Actual Malice)  Slander, or untrue spoken statements.  Fighting words, or words that breach the peace.  Obscenity, which varies by jurisdiction.  Roth v. US 1957, Miller v. California, 1973

First Amendment: Assembly  Assembly and petition have been controversial.  Tied closely to speech and press.  If speech crosses line, protection may not exist.

Second Amendment  Protects right to bear arms.  Written to protect state militias. “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”  Few Supreme Court decisions have discussed issues.  Congressional regulation more frequent.  Citizens’ right reaffirmed in D.C. v. Heller (2008).

Rights of Criminal Defendants  Writs of habeas corpus  Article I prohibitions on ex post facto laws and bills of attainder  The Fourth, Fifth, Sixth, and Eighth Amendments  Due process rights (also known as procedural guarantees, rights of defendants)

Fourth Amendment  First of the due process rights.  Protects against unfair searches and seizures.  Probable cause required to issue a warrant.  May search person, plain view, anything in control.  No warrant needed with reasonable suspicion.  New issues include cars, borders, and drug tests.

Fourth Amendment pre-employment drug screening— public employees versus private sector employees regarding drug screening 1989 Supreme Court ruling regarding drug and alcohol testing of employees 1995 Court ruling on random drug testing of public high school athletes— 1997 law requiring random drug testing of congressional employees 2002 mandatory drug testing of high school students participating in any extracurricular activities—

Fifth Amendment  Prevents self-incrimination and double jeopardy.  Pleading “The Fifth” is not an admission of guilt.  Prosecutors cannot use any non-voluntary admissions  Miranda v. Arizona (1966) is landmark case.  Miranda rights inform suspects of right to silence.

Exclusionary Rule  Derived from Fourth and Fifth Amendments.  Bars use of illegally seized evidence at trial.  Established largely in Mapp v. Ohio (1961).  Growing number of “good faith exceptions” for police  One exception is “inevitable discovery.”

Sixth Amendment  Protects right to counsel and jury trial in criminal cases.  Was not always protected in state trials.  Gideon v. Wainwright (1963) sets precedent for counsel.  Trial should be speedy and of peers.  Jury selection has been subject of much debate.  In past, African Americans and women were excluded.

Eighth Amendment  Protects against cruel and unusual punishment.  Most common application is the death penalty.  Briefly unconstitutional for a period in 1970s.  Used at varying rates and forms in different states.Used at varying rates and forms  Minors and mentally handicapped are excluded.  Growth of innocence projects and DNA evidence.  2008 case upholds constitutionality of lethal injection.

Figure 5.1- Methods of Execution  Back

Right to Privacy  Created by the courts from penumbras of constitution.  “Right to Privacy” applied first to contraception.  Extended to abortion in Roe v. Wade (1973).  Also applied in some homosexual rights cases.  Right to die movement also uses right to privacy.

Civil Liberties and Terrorism  Virtually all civil liberties have been affected.  USA Patriot Act and Military Commissions Act.  Place limitations on free speech rights.  Increase law enforcement’s search capabilities.  Attempt to deny habeas corpus rights to defendants.  Allow for use of techniques such as water-boarding.

Other Amendments - Presidency  12 th – Electors must vote separately for Pres/VP  20 th – Moved inauguration from April to January  22 nd – Limited Presidential terms to 2 elections/8 years  25 th – Addressed Presidential succession and process for replacing a vice president

Other Amendments - Congress  17 th – Provides for Direct Election of US Senators  27 th – Bans Congress from increasing salaries until after next election

Other Amendments – Civil War  13 th – Abolished Slavery  14 th – Establishes birthright citizenship; provides due process and equal protection under law to all citizens  15 th – Guarantees voting rights to African American males

Other Amendments – Voting  19 th – Grants suffrage to women  23 rd – Granted voting rights for president to DC residents  24 th – Forbids use of poll taxes in federal elections  26 th – Extends voting rights to those 18-21

Other Amendments  3 rd – No quartering of soldiers in private homes  7 th – Right to jury trial in civil suits  11 th – Removes trials involving state from federal courts  16 th – Allows Congress to levy an Income Tax  18 th – Prohibition  21 st – Repeals Prohibition