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

The Bill of Rights Debate over necessity at Constitutional Convention. Guarantees specific rights and liberties. Ninth Amendment states other rights exist. Tenth Amendment reserves rights to states and people.

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

First Amendment: Establishment Prevents government from establishing religion. Have been years of debate over scope of clause. Lemon test (1971) sets clearest boundaries. Secular, no religious effect, no entanglement. Applied most frequently to religious schools. Aid used to be books only; has been broadened. 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.

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. 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. Court also protects symbolic speech. Hate speech also receives growing protection.

Unprotected Speech These types of speech are without social value. Libel, or false written statements. Slander, or untrue spoken statements. Fighting words, or words that breach the peace. Obscenity, which varies by jurisdiction.

First Amendment: Assembly Assembly and petition have been controversial. Tied closely to speech and press. If speech crosses line, protection may not exist.

Second Amendment Protects right to bear arms. Written to protect state militias. Few Supreme Court decisions have discussed issues. Congressional regulation more frequent. Citizens’ right reaffirmed in D.C. v. Heller (2008).

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.

Fifth Amendment Prevents self-incrimination and double jeopardy. Miranda v. Arizona (1966) is landmark case. Miranda rights inform suspects of right to silence.

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.”

Sixth Amendment Protects right to counsel and jury trial in criminal cases. 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.

Eighth Amendment Protects against cruel and unusual punishment. Most common application is the death penalty. Briefly unconstitutional for a period in 1970s. Used at varying rates and forms in different states. Minors and mentally retarded are excluded. Growth of innocence projects and DNA evidence. 2008 case upholds constitutionality of lethal injection.

Right to Privacy Created by the courts from penumbras of constitution. 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.

Figure 5.1- Methods of Execution  Back

Table 5.1- Selective Incorporation  Back