Chapter 5 Civil Liberties

Bill of Rights First Ten Amendments Passed by Congress is 1789, ratified by the states in 1791 Compromise between the Federalists and Anti-Federalists Designed initially to LIMIT the powers of national gov. Barron v. Baltimore

Incorporation Doctrine 14th Amendment Applied Bill of Rights to the states Due process (along with 5th amendment) Gitlow v. New York States not completely free to limit freedom of speech/political expression Near v. Minnesota States could not restrict freedom of press

Selective Incorporation Not all Bill of Rights have been incorporated Palko v. Connecticut 5th Amendment: double jeopardy NOT a fundamental right/liberty

1st Amendment: Freedom of Religion Colonists STRONG dislike and distrust in established religion Establishment Clause “Congress shall make no law respecting an establishment of religion” Free Exercise Congress shall not prohibit the free practice of religion.

Establishment Clause Thomas Jefferson’s Wall of Separation Engel v. Vitale Nondenominational prayer in school unconstitutional Lemon v. Kurtzman: Lemon test to determine constitutionality 1) Must have a secular purpose 2) Neither advances nor prohibits religion 3) Not foster gov entanglement with religion

Establishment Clause Agostini v. Felton: public teachers used in parochial schools, not an excessive entanglement of church and state Zelman v. Simmons-Harris: vouchers used in parochial schools

Free Exercise Clause NOT absolute freedom When secular law conflicts with religion, free exercise is often denied Employment division of Oregon v. Smith Restrictions include Snake handling Polygamy Illegal drug use

Freedom of Speech Alien and Sedition Act Lincoln and Civil War 1798 to ban any political criticism by the Jeffersonian Democratic-Republicans of the Federalist Congress Made criticism of gov a federal offense Acts expired before Court could rule on them Lincoln and Civil War Lincoln arrested editors who were critical of him

Freedom of Speech WWI and Anti-Government Speech Espionage Act Schenck v. United States 1919 Distribution of anti-war pamphlets unconstitutional Clear and present danger test Brandenburg v. Ohio 1969 Advocacy of illegal action is legal unless imminent lawless action is intended or likely to occur

Protected Speech Prior restraint Symbolic Speech New York Times Co. v. U.S. aka Pentagon Papers (1971) Symbolic Speech Flying a communist flag, burning American flag, and wearing black armbands in protest of Vietnam Hate and unpopular speech

Unprotected Speech Libel and Slander Fighting Words New York Times v. Sullivan (1964): “actual malice” Fighting Words Chaplinsky v. New Hampshire Obscenity and Pornography Roth v. U.S. “utterly without redeeming social importance” Miller v. California (1973)

2nd Amendment “a well-regulated militia” perspective “the right to bear arms” perspective Government should regulate (and restrict?) the ownership and use of guns Citizens should be able to own guns with little to no restrictions from the government McDonald v. Chicago--incorporation of 2nd Amendment onto the states

2nd Amendment U.S. v. Miller Upheld the National Firearms Act of 1934 1994 Violent Crime Control and Law Enforcement passed by Congress

8th Amendment Death Penalty Furman v. Georgia Gregg v. Georgia Put a short term end to death penalty Gregg v. Georgia Overturned Furman v. Georgia Supreme Court exempted those under the age of 15 and those who are mentally retarded

Right to Privacy Abortion Birth Control Right to Die Right to privacy implied by Bill of Rights Right to use birth control or secure an abortion Roe v. Wade Birth Control Griswold v. Connecticut Right to Die Individuals could terminate medical treatment if they could express, or done so in writing, their desire to terminate medical treatment if they become incompetent

Civil Liberties (Cont.) Chapter 15 Part II Terms

A law that says someone is guilty of a crime without a trial Bills of Attainder A law that says someone is guilty of a crime without a trial Ex Post Facto Law (More Latin!) “After the fact”--a law making something a crime after it has occurred Example? Selective Incorporation Cool sponge illustration on p.479 Application of Bill of Rights to the States by using the due process clause of the 14th Amendment 1st, 2nd, 4th, 5th, 6th, 8th, 9th

Rights of the accused Gideon v. Wainwright Background: man arrested for theft, didn’t have money for a lawyer, had to represent himself at trial Result: Court found that the 6th Amendment applied to the states, each defendant needs a lawyer; if he cannot afford one, it’s provided by the state. Miranda v. Arizona Background: man accused of kidnapping and rape was questioned for two hours without a lawyer and confessed Result: Court found that the 5th Amendment right to protection from self-incrimination applies. We now have the “Miranda Rights”

Search and Seizure cases Mapp v. Ohio Background: woman accused of crimes, shown a “warrant” and found pornography (which was then illegal) Result: established “Exclusionary Rule,” that is, evidence illegally obtained will no longer be used in court. Other questions regarding the 4th Amendment Sobriety checkpoints Wiretapping GPS devices on cars

Terrorism vs. privacy USA Patriot Act allows for government to surpass what we would expect about our personal privacy How do/should we handle people arrested for terrorism: in the US? outside of the US?

Griswold v. Connecticut The Right to Privacy Not in the constitution Constructed by combining different Amendments the perfect example of Judicial Activism Griswold v. Connecticut Background: Planned Parenthood was distributing birth control, which violated a state law Result: use of birth control allowable, created the right of privacy based on 1st, 3rd, 4th, 5th, 6th, and 9th Amendments

The Right to Privacy (cont.) Roe v. Wade Background: Texas law forbade abortions at any point of pregnancy. “Roe” sued to be able to have an abortion. Precedent: without Griswold, the decision in Roe could not have worked Result: abortion is legal 1st trimester specifically OK 3rd trimester specifically not OK reinforced the right of privacy based on 1st, 3rd, 4th, 5th, 6th, and 9th Amendments Issues: viability, 2nd trimester

The Right to Privacy (cont.) Planned Parenthood v. Casey Background: Pennsylvania law tried to restrict abortion with restrictions: a doctor would inform the woman about the procedure and side effect of an abortion and the woman would then wait 24 hours spousal notification is required parental consent for those under 18 Result: abortion is still legal Justice O’Connor said the spousal notification provision placed an “undue burden” on women and was unconstitutional The Right to Privacy (cont.)

The Right to Privacy (cont.) Lawrence and Garner v. Texas Background: Texas law forbade heterosexual and homosexual sodomy. Two men were accused of violating the law and challenged its constitutionality. Precedent: Bowers v. Hardwick (1986) Result: law is unconstitutional and in short, consenting adults may do what they want in the privacy of their own homes. This case is now the current precedent. The Right to Privacy (cont.)