Civil Liberties October 5, 2017

Civil liberties Civil liberties is the protection of the individual from the unrestricted power of government.

Habeas Corpus The Constitution guarantees that courts can issue a writ of habeas corpus, a court order requiring government authorities either to release a person held in custody or demonstrate that the person is detained in accordance with law. Habeas corpus protects the individual from being held in custody without charges and without trial.

People accused of wrongdoing are entitled to their day in court. Bill of attainder A bill of attainder is a law declaring a person or a group of persons guilty of a crime and providing for punishment without benefit of a judicial proceeding. People accused of wrongdoing are entitled to their day in court.

Retroactive laws are unconstitutional. Ex post facto law An ex post facto law is a retroactive criminal statute that operates to the disadvantage of accused persons. Retroactive laws are unconstitutional.

Religious tests According to the Constitution, “no religious test shall ever be required as a qualification to any office or public trust under the United States.” This provision has been interpreted to mean that no government employee, whether elected or appointed, career or political, can be required to adhere to or accept any religion or belief.

State religions

Bill of rights A bill of rights is a constitutional document guaranteeing individual rights and liberties. The U.S. Bill of Rights is the first ten amendments to the U.S. Constitution.

Initial application The Bill of Rights initially applied only to the federal government, not the states.

Selective incorporation The Due Process Clause of the Fourteenth Amendment provided the vehicle for applying most of the provisions of the Bill of Rights to the states through a process known as the selective incorporation of the Bill of Rights.

Fourteenth amendment Due process clause

Nationalization of the Bill of rights Because of selective incorporation, most of the provisions of the Bill of Rights now apply not just to the national government but also to state and local governments. For example, if Congress were to pass a law abridging freedom of speech, it would violate the First Amendment. If a state government were to pass a similar law, it would violate the First Amendment and the Fourteenth Amendment.

Colin Kaepernick Who is Colin Kaepernick and why is he in the news? Could the police arrest Kaepernick for disrespecting the flag? Could the NFL fine him? No Yes

Bill of Rights and Private Parties The Bill of Rights limits government; it does not limit private parties such as the NFL. Note: The provisions of the Bill of Rights limit the power of government only. They do not apply to private parties. In other words, your boss can fire you if he/she disagrees with your political views as long as you don’t work for the government.

Nazi Marchers Suppose you recognize the young man on the right as one of your employees. Would you fire him? Could you legally fire him? If you are a private employer, you can legally fire him because the First Amendment only applies to the government.

This is a very high standard to meet. Fundamental rights A fundamental right is a constitutional right that is so important that government cannot restrict it unless it can demonstrate a compelling or overriding public interest for so doing. This is a very high standard to meet.

Fundamental rights Freedom of expression, freedom of religion, the right to vote, and the right to be free from cruel and unusual punishments are examples of fundamental rights.

This is an easier standard to meet. Other rights To restrict rights that are not fundamental, government need only show that it is acting in pursuit of a legitimate public purpose. This is an easier standard to meet.

You Decide Suppose a city government prohibited both holding political rallies and drinking alcoholic beverages in a public park. What is the constitutional standard for justifying each action?

Political rallies Drinking alcohol Holding a political rally is a fundamental right. To ban political rallies, a government must demonstrate a compelling public interest. Drinking alcohol is not a fundamental right. Government need only show it is acting in pursuit of a legitimate public purpose.

What You Have Learned What civil liberties protections did the framers include in the original Constitution? What is the Bill of Rights? To whom (or what) does it apply? What is the nationalization of the Bill of Rights? What is the difference between fundamental rights and other rights?