Civil Liberties GOV 30 Fall 2010

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Fourteenth Amendment

Fourteenth Amendment (1868) Two key provisions of the 14 th Amendment 1. Civil Liberties Provision: No state “may deprive any person of life, liberty or property, without due process of law.” Civil Rights Provision: No state may “deny to any person... the equal protection of the laws.”

Procedural Due Process Substantive Due Process

First Amendment “Congress shall make no law….abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.”

“The Court has seldom lagged far behind or forged far ahead of America.”

“No person shall be … deprived of life, liberty, or property, without due process of law.” - The Fifth Amendment

“Nor shall any State deprive any person of life, liberty, or property, without due process of law.” - The Fourteenth Amendment

- First Amendment “Congress shall make no law…. abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.”

Selective Incorporation

- Second Amendment “The Right of the People to keep and bear Arms shall not be abridged.”

District of Columbia v. Heller District of Columbia v. Heller (June 26, 2008)June Says that the 2 nd Amendment protects the right to bear arms. Does not specifically say it applies to all states, so there are some who still deny that incorporation has finally taken place.

Key Changes in the Rights of the Accused Constitutional Provision:Search and Seizure Amendment:4 th Warren Court: Mapp v. Ohio, 1961 Must have valid search warrant, or evidence is excluded. Limitation by Post- Warren Court: United States v. Leon, 1984 If officer believes warrant is valid, search OK.

Key Changes in the Rights of the Accused Constitutional Provision:No self-incrimination Amendment:5th Warren Court: Miranda v. Arizona, 1966 Must be read rights before questioning, or evidence excluded. Limitation by Post- Warren Court: Harris v. New York, 1971 Evidence may be introduced if accused testifies in own defense.

Key Changes in the Rights of the Accused Constitutional Provision:Impartial Jury Amendment:6th Warren Court: Sheppard v. Maxwell, 1966 Excessive pre-trial publicity precludes fair trial Limitation by Post- Warren Court: Publicity OK if certain safeguards are followed:

Procedural Safeguards 1.Postpone trial until publicity subsides. 2.Judge instructs jury to ignore outside information. 3.Jury sequestered. 4.Change trial venue

Key Changes in the Rights of the Accused Constitutional Provision:Legal Counsel Amendment:6 th Extensions by Warren Court: Gideon v. Wainwright, 1963 State provides public defender, if necessary. Limitation by Post- Warren Court: No Limitation

Clear and Present Danger

Schenck v. United States

“When we are dealing with the Caucasian race we have methods that will test the loyalty of them…..But when we deal with the Japanese …we cannot form any opinion that we believe to be sound.” -Earl Warren, Future writer of the opinion in Brown v. Board of Education

Chaplinsky v. New Hampshire

Fighting words

Absolutist doctrine Congress can only pass laws that regulate the time, manner, and place in which speeches may be given.

Fundamental freedoms

Flag Burning Case R. A. V. vs. City of St. Paul (1992) Fighting words may be banned, but not just fighting words of a specific type.

Issue Ads at Election Time Citizens United v. Federal Elections Commission, 2010 Mc Cain-Feingold 2002 banned issue ads spending outside campaign spending limits in the 60 days prior to general election or 30 days prior to primary election. Declared unconstitutional.

Commercial speech

Libel

Procedural Due Process Substantive Due Process

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” - The Ninth Amendment

Lochner v. New York

Lochner Reasoning by Justice Holmes dissenting “It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways... A Constitution is not intended to embody a particular economic theory...It is made for people of fundamentally differing views.”

Griswold v. Connecticut

Roe v. Wade

“In Griswold v. Connecticut, the Court held a Connecticut birth control law unconstitutional. The Griswold decision can be rationally understood only as holding that the Connecticut statute substantively invaded the liberty that is protected by the Due Process Clause of the 14th Amendment. Several decisions of this court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause….That right reasonably include the right of a woman to decide whether or not to terminate her pregnancy.” -Justice Potter Stewart for the majority

“While the court’s opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, the result it reaches is more closely attuned to the majority opinion... in that case. The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the state may impose in each one partakes more of judicial legislation than it does of a determination of the intent of the drafters of the 14th Amendment. The states have had restrictions on abortion for at least a century.” -Justice William Rehnquist

Planned Parenthood of Southeastern Pennsylvania v. Pennsylvania

O’Connor on Stare decisis “Where…the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe…the promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.” -Justice Sandra Day O’Connor

Bowers v. Hardwick

Lawrence v. Texas (2003) “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent.” Justice Anthony Kennedy

“Nor shall any State deprive any person of life, liberty, or property, without due process of law.” - The Fourteenth Amendment

“He who knows only his own side of the case, knows little of that.” -John Stuart Mill

Percentage Opposed to Allowing Communists to Make a Speech