Pearson Education, Inc., Longman © 2006 Chapter 15 Civil Liberties Policymaking American Government: Policy & Politics, Eighth Edition TANNAHILL

Pearson Education, Inc., Longman © 2006 In This Chapter We Will Cover: The constitutional basis of civil liberties policymaking Civil liberties issues and policies

Pearson Education, Inc., Longman © 2006 The Constitutional Basis of Civil Liberties Policymaking The U.S. Constitution –The Bill of Rights is the first ten amendments to the Constitution. –Selective incorporation involves the use of the Fourteenth Amendment to make provisions of the Bill of Rights binding upon the states.

Pearson Education, Inc., Longman © 2006 The Constitutional Basis of Civil Liberties Policymaking State Constitutions –State Constitutions affect civil liberties policymaking. States must grant their residents all the rights guaranteed by the U.S. Constitution and may offer their residents additional rights. –The policy areas in which state courts have been most active are abortion rights, criminal procedure, and church-state relations.

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies Government and Religion Establishment of Religion –Everson v. Board of Ewing Township (1941) set test for determining the constitutionality of state aid to parochial schools –Lemon v. Kurtzman (1971) further developed standard for evaluating the constitutionality of government actions toward religion

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies Free Exercise of Religion –The First Amendment prohibits the adoption of laws interfering with the free exercise of religion. Freedom of Expression –High-value expression like political speech, art, and literature, enjoys the highest level of constitutional protection.

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Standards and Tests for Determining the Constitutionality of Government Restrictions on Expression in Various Fields of Law

Pearson Education, Inc., Longman © 2006 Standards and Tests for Determining the Constitutionality of Government Restrictions on Expression in Various Fields of Law Continued

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies Antigovernment Speech –The government can restrict political expression only if it has a compelling interest that can’t be achieved by less restrictive means like expression deemed a threat to national security and public order which presents a “Clear-and-Present Danger Rule.”

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies Expression that Threatens the Public Order –Government restriction must be based on a compelling interest that can’t be achieved by lesser means. Hate Crimes Legislation –The Supreme Court has ruled hate crimes legislation does not inhibit expression because it is aimed at the criminal behavior rather than the expression.

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies Symbolic Expression –The Supreme Court has treated symbolic expression as if it were spoken or written expression. Defamation of Character –The Supreme Court has held that the First Amendment does not protect defamatory statements.

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies Obscenity –The Supreme Court has held that the First Amendment does not protect obscenity. Prior Restraint –Prior restraint can only be taken in exceptional circumstances such as time of war.

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies Privacy Rights –Although not specifically mentioned in the Constitution, the Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to include a right of privacy — “zones of privacy.” –Connecticut law regarding contraceptives –Roe v. Wade –Lawrence v. Texas

Pearson Education, Inc., Longman © 2006 The Constitutional Basis of Civil Liberties Due Process of Law and the Rights of the Accused –Due process of law is the constitutional principle holding that government must follow fair and regular procedures in actions that could lead to an individual’s suffering loss of life, liberty, or property.

Pearson Education, Inc., Longman © 2006 The Constitutional Basis of Civil Liberties USA Patriot Act –Allows the federal government to detain citizens suspected of terrorism for up to seven days without filing specific charges

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies Searches and Seizures –The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Exclusionary Rule –The judicial doctrine stating that when the police violate an individual’s constitutional rights, the evidence obtained as a result of police misconduct or error cannot be used against the defendant.

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies The Miranda Warning –Accused persons must be warned (1) they have a right to remain silent, (2) that any statements they gave may be used against them, and (3) that they are entitled to an attorney, either retained or appointed.

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies Double Jeopardy –The Fifth Amendment prohibits the government trying a criminal defendant a second time for the same crime. Fair Trial –The Sixth Amendment promises a speedy and public trial.

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies Cruel and Unusual Punishments –The Eighth Amendment prohibits cruel and unusual punishment.

Pearson Education, Inc., Longman © 2006 Executions in the U.S.,

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies Executive Authority and Civil Liberties –Does the president have the authority to suspend the due process guarantees of the Constitution to detain individuals that the administration believes may be a threat to national security?

Pearson Education, Inc., Longman © 2006 Civil Liberties Issues and Policies Executive Authority and Civil Liberties –2004: In the case of Yaser Esam Hamdi, the Court found that persons deemed by the government to be enemy combatants must be given the ability to challenge their detention before a judge or other “neutral decision maker.”

Pearson Education, Inc., Longman © 2006 Concluding Review Questions What is the constitutional basis for civil liberties in the United States? How does the Supreme Court interpret the Establishment Clause? Under what circumstances does a threat to national security justify a government restriction of free expression?

Pearson Education, Inc., Longman © 2006 Concluding Review Questions Is symbolic speech, such as flag burning, protected by the Constitution? Is obscenity protected by the Constitution? When does the exclusionary rule apply?