Chapter 4 Civil Liberties

The Rise of Civil Liberties The Supreme Court neatly defined civil liberties in 1943: The Bill of Rights withdraws certain subjects from political controversy and places them beyond the reach of majorities and officials. The Bill of Rights did not apply to the states until the Fourteenth Amendment required that no state could deprive any citizen of life, liberty, or property. The Court applied the Bill of Rights to the states one right at a time between 1897 (no taking of property without compensation) and 2010 (the right to bear arms).

Privacy The Court discovered a right to privacy implicit in the shadows of the First, Third, Fourth, Fifth, and Ninth Amendments. The Court applied the right to privacy to strike down laws banning abortion. In Roe v. Wade, the court issued a rule prohibiting states from interfering during the first trimester. The Court extended privacy rights to same-sex couples by striking down antisodomy laws in 2003.

Freedom of Religion The First Amendment has two religious clauses: The government may not establish a religion and it may not interfere with the free exercise of religions. The courts have ruled on establishment cases by trying to approximate Jefferson’s wall separating church and state. The Court requires three things of government action: It must have a secular purpose, neither advance nor inhibit religion, and not excessively entangle government in religion (the three requirements are known as the Lemon test). A more recent view (known as accommodation) simply requires that government not promote one religious view over another. In protecting the free exercise of religion, the courts traditionally asked if the government had a compelling interest for imposing a burden.

Freedom of Speech Free speech is crucial to democracy, and the Court gives it a privileged position—even against angry public opposition to flag burning, cross burning, or homophobic displays at military funerals. Free speech can be curtailed if it poses a “clear and present danger.” Today, the court requires the danger to be both imminent and likely to occur. There are limits to free speech, including fighting words and student speech.

Freedom of the Press The rules for freedom of the press reflect those of free speech and strongly protect free expression. The courts are especially skeptical of any effort to impose prior restraint. The new media makes it almost impossible to even try. Obscenity is not protected by the First Amendment. The court has spent a long time wrestling with just what counts as obscenity and now uses the three-part Miller test.

The Right to Bear Arms Some critics see the Second Amendment as an outmoded defense of citizen militias. Others see it as an important individual right—perhaps even the most important right in the entire Constitution. In 2010, the Supreme Court incorporated the right to bear arms as an essential individual right.

The Rights of the Accused The Bill of Rights places special emphasis on the rights of those accused of crimes. Even so, American incarceration rates are the highest in the world. The police may not search or seize without a warrant (with minor exception); they must inform suspects of their right to remain silent; the accused have a right to legal counsel. The courts have widened the legal right but it is often limited by underfunded public defenders. Under current interpretation, capital punishment is not considered “cruel and unusual punishment.” However, the number of executions has been falling. Between 1962 and 1968, the Supreme Court vastly expanded the rights of the accused. Recent Court decisions have tilted the balance back toward law enforcement.

Fighting Terrorism and Protecting Liberty The response to 9/11 and subsequent terror attacks created a new debate about the balance between civil liberties and public safety. With the Snowdown revelations, controversy rose up about the NSA data collection of phone records and Internet surveillance. The debate centers on whether the practice is constitutional and what controls might be necessary to safeguard privacy rights. In 2015, the USA Freedom Act reauthorized the Patriot Act with new limitations – and forbade the use of bulk data collection.