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

Think-Write-RoundRobin Should people who burn the American flag get arrested? Should newspaper editors go to jail if they print false information about a presidential candidate?

Think-Write-RoundRobin 3. Should protesters be allowed to block traffic on major highways during their protests? 4. Should people be allowed to give as much of their own money as they want to political candidates?

The Bill of Rights Debate over necessity at Constitutional Convention. Exists in state constitutions for personal liberties in 1787 Concerns of Anti Federalists Added in 1791 and drew upon earlier documents VA Declaration of Rights, English Bill of Rights, and Magna Carta I-VIII Guarantees specific rights and liberties. Ninth Amendment states other rights exist. Tenth Amendment reserves rights to states and people.

Think-Pair-Share Why did Federalists argue that a bill of rights was unnecessary? Why did Anti-Federalists disagree?

Incorporation Until 20th century, Bill of Rights did not apply to states. 5th and 14th Amendment’s due process clause raises questions about rights. 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.

Table 5.1- Selective Incorporation  Pg 157 Back

First Amendment 1st 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 1st Amend. embraces 2 concepts: “Freedom to believe and freedom to act. The 1st is absolute, but in the nature of things, the 2nd cannot be.” 1. Establishment Clause 2. Free Exercise Clause

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”

Think-Pair-Share Establishment Clause: Free Exercise Clause:

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 (Schenck vs US). Give rise to clear and present danger test in 1919. 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.

Rally Robin Identify different forms of Symbolic Speech

Rally Robin Identify different forms of Unprotected Speech

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.

Rally Coach Members of a neo-Nazi organization dressed in WWII German military uniforms conduct a parade in a Jewish neighborhood. Protestors burn the American flag on the steps of the Capitol building on a 4th of July celebration.

Rally Coach An online wiki group publishes thousands of classified U.S. military documents about the Afghanistan war. The local chapter of the Ku Klux Klan opens an office three blocks from the 16th Street Baptist Church in Alabama where 4 small African American girls were killed after a bomb exploded.

Rally Coach Cartoons of the prophet Muhammad, depicted as a terrorist, are printed on large signs and set up on public property across the street from a mosque. A political organization spends thousands of dollars in advertising to encourage people not to vote in the next election.

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.

Think-Write-RoundRobin Should high school students be subject to drug testing if they participate in 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.

Rally Robin Identify different rights found within the Miranda Rights

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.

Think-Pair-Share Explain how the equal protection clause prohibits discrimination in the jury selection process

Seventh Amendment Allows the right to a jury trial even in civil cases, which exceed twenty dollars. Never been incorporated to include all states. However, most states voluntarily apply this rule.

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

Team Does the death penalty violate the Eighth Amendment? Yes No

Class Does the death penalty violate the Eighth Amendment? Yes No

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

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

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

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

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