Civil Liberties: Privacy & Defendants' Rights Jamie Monogan University of Georgia February 1, 2018

Objectives By the end of this meeting, participants should be able to: Explain the process of incorporation. Identify the civil liberties protected explicitly and implicitly by the Bill of Rights.

Incorporation Process of applying Bill of Rights to the states Equal protection and due process clauses of 14th amendment Supreme Court has proceeded slowly with incorporation: Selective incorporation The Bill of Rights initially applied only to the federal government. States were not bound to provide or protect the rights found in those amendments. The 14th amendment’s due process and equal protection clauses appear to clearly state that state governments are also bound by the provisions of the Bill of Rights. However, the Supreme Court has been slow to apply these clauses to state governments. In the Slaughterhouse cases (1873) the Court ruled that the 14th amendment applied only to discrimination against African Americans. Since that time, the Court has slowly incorporated most of the Bill of Rights.

Incorporation of Bill of Rights through the 14th Amendment See Table 4.1 in the book for a more detailed list of cases.

Rights of Criminal Defendants Fourth Amendment: no unreasonable search and seizure Need probable cause for a warrant Fifth Amendment Grand jury Double jeopardy Self-incrimination Due process (takings clause) Sixth Amendment: speedy and public trial, impartial jury, and an attorney Eighth Amendment: no excessive bail, nor cruel and unusual punishment Also noteworthy: The Seventh Amendment guarantees the right to a jury trial in certain civil cases. Some important Eighth Amendment cases have related to whether the death penalty constitutes cruel and unusual punishment. The case of Furman v. Georgia (1972) banned the death penalty due to its inconsistent application by race. In 1976 the Supreme Court reaffirmed the death penalty in the case of Gregg v. Georgia.

Right to Privacy Natural Rights: Basic rights that all human beings are entitled to, whether or not they are formally recognized by government Consider the Ninth Amendment Griswold v. Connecticut (1965): Used constitutional right of privacy to strike down a law Justice William O. Douglas: Implied in the language in the Bill of Rights Free speech & assembly implies a right to privacy in one's associations Third Amendment: right not to quarter solders: zone of privacy Fourth Amendment: bans unreasonable search and seizure Fifth Amendment: ban on self-incrimination Hugo Black countered there was no specific provision in the Constitution that prohibited Connecticut's ban on birth control Is the principle of natural rights a means for the Supreme Court to "find" new rights in the Constitution? Would you have sided with Justice Douglas or Justice Black on this decision?

Assignments Friday: Bullock & Gaddie, Chapter 9 Tuesday: Maltese, Pika, & Shively, pp. 150-163

Additional Material

Gun Control 2nd amendment is vague Is right to arms unlimited or only in connection to state militias? Limits on what can and cannot be banned Assault weapons District of Columbia v. Heller (2008) Gun control is a very controversial issue in society. The U.S. has a very high gun ownership rate compared to the rest of the world and also has a high rate of violent crime. Gun control advocates believe that these two are linked and that limiting access to handguns would reduce crime. Gun rights advocates argue that possessing a firearm is both a fundamental right and can lead to less crime if people are able to defend themselves. For discussion: It can useful to read the entire text of the 2nd amendment and discuss whether this applies to individuals or to states. Ask students what they think and to discuss with a partner before opening the discussion up to the entire class. Laws banning assault weapons have typically not been successfully challenged, however the Court ruled in the Heller case that the District of Columbia’s ban on handguns was unconstitutional. In this ruling the Court effectively incorporated the 2nd amendment.

Protection of Rights and Liberties How to decide limits on rights and liberties? Moral claims of human dignity consistent with founding ideology of United States Utilitarianism in outcomes can infringe on liberties There can be a trade-off between rights and liberties. As economic liberty increases, inequality in outcomes can also increase. For example, the high tax rates that many European countries employ to fund a large welfare state infringes on the economic liberty of citizens in return for guaranteeing them basic rights to shelter, food, and health care.