CIVIL LIBERTIES STUDENT NOTES 5.1

US Constitution (1789) failed to enumerate individual freedoms Bill of Rights (1791) - Protects individual freedoms from government intrusion –Interpreted by courts and legislature CIVIL LIBERTIES – the protections the Constitution provides against the abuse of government power LIMITS GOVERNMENT POWER TO PROTECT INDIVIDUAL ACTION

At first applied to federal rights but not states –“CONGRESS SHALL MAKE NO LAW…” First eight Amendments guarantee the federal gov will not trample on certain individual liberties Altered over time –14th Amendment nationalized Bill of Rights - INCORPORATION DOCTRINE –Prevented state gov. officials from abusing people’s liberties

Constitution and Bill of Rights contain competing rights and duties –Articles of Constitution: what federal gov. can do –Bill of Rights: what federal gov. can’t do FREEDOM V. ORDER V. LIBERTY Tiger Woods has the right to privacy, but the media can blast him with rumors KKK can march through DC to freely express themselves…but not without a permit to keep the peace

5 sections, only two currently important (first and fifth): –1) All persons born or naturalized in the US, and subject to jurisdiction thereof, are citizens of the US and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the US; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction they equal protection of laws DUE PROCESS CLAUSE EQUAL PROTECTION CLAUSE –5) The Congress shall have power to enforce, by appropriate legislation, the provisions of this article

DUE PROCESS OF LAW A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious. In 5 th Amendment – FED In 14 th Amendment - STATES

Incorporation Doctrine: Process of applying Bill of Rights to states Most, but not all, applied Supreme Court could examine citizens' rights on a (selective part) case-by-case basis and employ the protections afforded by the Bill of Rights as needed –Gradually and NEVER COMPLETELY –Binds the states to accept for their citizens most of the rights and freedoms set forth in BOR

YEARAMENDMENTPRECEDENTMNEMONIC CASE YOU ARE WRITING DOWN ABOUT 40 CASES, SO USE MORE THAN ONE SHEET OF PAPER

SIGNIFICANT CASES 1833 Barron v. Baltimore –Bill of Rights does not apply to states 1925 Gitlow v. New York –Bill of Rights DOES apply to states! –First Amendment protected by due process clause of 14th Amendment –Upheld conviction –Began selective incorporation “For present purposes we may and do assume that freedom of speech and of the press – which are protected by the First Amendment from abridgement by Congress – are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the states.”

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances”

ESTABLISHMENT CLAUSE –Congress shall make no law respecting the establishment of a religion –Courts may not favor one religion –Maintain a “wall of separation” FREE EXERCISE CLAUSE –Prohibits the abridgement of citizens’ freedom to worship, or not, as they please –Government can neither promote nor discriminate religious beliefs

“Wall of Separation” Should football players be allowed to pray before a game? Should graduating seniors be lead in a prayer at graduation ceremonies? Should parochial schools obtain tax dollars to benefit the schools like public schools do? Should families receive vouchers (tax dollars) in order to go to parochial schools? Should the 10 Commandments be posted at schools? Should you be able to voluntarily pray in school? Should you learn about creation or evolution in school? Should holiday decorations be used in government buildings? Should Mormons practice polygamy?

Religious belief is absolute, practice may be restricted if conflict w/ criminal laws

"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country."

Established the LEMON TEST Test to determine if GOVERNMENT funding to schools is breaking the establishment clause

Preferred position doctrine – fundamental to other freedoms and provide basis for other liberties. Types of speech: pure, speech plus, symbolic Not automatically protected: –Libel (oral = slander) – defamation False information that can greatly harm a person’s reputation TRUE statements have FULL constitutional protection

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. CLEAR AND PRESENT DANGER

IMMINENT LAWLESS ACTION –Gov cannot suppress advocacy that promotes lawless action unless imminent

Students don't "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate"

On-campus speech which is neither obscene, vulgar, lewd, indecent or plainly offensive nor advocating illegal drugs at a school-sponsored events, Tinker applies limiting the authority of schools to regulate the speech, whether on or off-campus, unless it would materially and substantially disrupt classwork and discipline in the school.