Chapter 15

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A Balancing Act  How well do the courts respond to conflicts that pit freedom against order or freedom against equality?  Are freedom, order, or equality ever unconditional? 3

To Pledge or Not to Pledge, That is the Question 4

Constitutional Rights  Framers did not include a bill of rights in the Constitution  To ensure ratification, 12 amendments submitted to the states  Ten ratified in 1791  Civil liberties – restraints on government  Civil rights – powers and privileges that cannot be taken away 5

Britain’s Bill of Rights  Britain has no written constitution  Began enforcing the Human Rights Act in October 2000  In 2008, a joint committee of Parliament recommended consensus-based UK Bill of Rights and Freedoms  Would not give power of judicial review 6

Freedom of Religion  Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.  Two different guarantees:  Establishment clause  Free-exercise clause  At the time, religion believed to be an issue for state, not national government 7

Freedom of Religion  Supreme Court rulings on freedom of religion not definitive  Freedom of belief unlimited, but freedom to practice a belief can be limited  Government cannot benefit directly from practice of religion, but can indirectly benefit  Because most Americans identify with a religious faith, majoritarians would argue government should support religion 8

The Establishment Clause  Bars government sponsorship or support of religious activity  “A wall of separation between church and State”  Lemon v. Kurtzman (1971) established test for determining constitutionality of programs and laws under establishment clause:  Must have secular purpose  Primary effect not to advance or inhibit religion  Must not entangle government excessively with religion 9

Establishment Clause Key Cases  Lemon v. Kurtzman  Agostini v. Felton  Zelman v. Simmons-Harris  Lynch v. Donnelly  Salazar v. Buono  Engle v. Vitale 10

The Crux of the Matter 11

School Prayer  Supreme Court consistently equates prayer in public schools with government support of religion  No state-approved prayer  No Bible reading or Lord’s Prayer  No nonsectarian prayers at graduation  No student-led prayers at public high school football games  Religions training only after school hours  These rulings support minority rights but cause majority discontent 12

Team Religion Moves from Field to Stands 13

Let Us Pray 14

The Free-Exercise Clause  Supreme Court has avoided absolute interpretations of this restriction  Rulings attempt to distinguish religious beliefs from actions based on those beliefs  Some areas of conflict:  Military service  Working on the Sabbath 15

Three-Pronged Test  Sherbert v. Verner (1963): First Amendment protects observance as well as belief  Neutral laws that burden the free exercise of religion subject to strict scrutiny:  Justified by “compelling government interest”  Narrowly tailored to achieve legitimate goal  Least restrictive means to achieve that interest 16

Freedom of Expression  Congress shall make no law….abridging the freedom of speech, or of the press; or of the right of people to peaceably assemble, and to petition the Government for a redress of grievances.  Majority of the Supreme Court have never agreed this guarantee absolutely inviolable 17

Freedom of Expression  Does not mean elimination of risk of ostracism or criticism by others  Supreme Court generally rules against prior restraint, but does sometimes rule to limit expression  Can regulate and punish advocacy of ideas that promote highly probable lawless action  Can limit means of communicating ideas 18

Freedom of Speech  Clear and present danger test established in Schenck v. United States (1919)  Protections for speech and press applied to states in Gitlow v. New York (1925)  Dennis v. United States (1951) established grave and probable danger test  Finally, Brandenburg v. Ohio (1969) expanded right to political speech through imminent lawless action ruling 19

Symbolic Expression  Generally less protected than pure speech  However, certain types protected  Tinker v. Des Moines Independent County School District (1969) said school did not show forbidden conduct would substantially interfere with school discipline 20

Order Versus Free Speech: Fighting Words and Threatening Expression  Fighting words exception to protections of free speech  First defined in Chaplinsky v. New Hampshire  Federal Court ruled Communications Decency Act of 1996 unconstitutional  Recent attempts to limit speech on the Internet also found unconstitutional  Reno v. ACLU (1997)  Internet seen as more like free press than television 21

Freedom of the Press  Government “shall make no law….abridging the freedom…of the press.”  Ability to collect and report information without government interference essential to free society 22

Shock Jock Rocks 23

Defamation of Character  Libel is written defamation of character  Because of New York Times v. Sullivan (1964), public officials must prove actual malice  Other public figures added in 1967  Even outrageous and offensive criticisms of public figures protected 24

Prior Restraint and the Press  Prior restraint places unacceptable burden on free press  Ruling in New York Times v. United States (1971) concluded the government had not shown publication of Pentagon Papers would cause immediate, inevitable, and irreparable harm 25

Freedom of Expression Versus Maintaining Order  Freedom of the press does not override needs of law enforcement  Freedom of the press and expression can be limited in schools, provided restrictions serve a “valid educational purpose.”  Articles in school newspapers  “Bong Hits 4 Jesus” 26

Hey Dudes, Let’s Protest 27

The Rights to Assemble Peaceably and to Petition the Government  Congress shall make no law…abridging …the right of the people to peaceably assemble, and to petition the government for a redress of grievances.”  Roots of the right to petition in the Magna Carta; right to assemble came later  When freedom and order conflict, justices of the Supreme Court strike the balance 28

The Right to Bear Arms  A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.  Gun control advocates believe amendment supports only right to maintain collective militias  Gun rights advocates assert amendment protects right of individuals to own and use guns 29

Regulation of Guns  In District of Columbia v. Heller (2008), Supreme Court ruled individuals have right to keep loaded handgun at home for personal defense  After that ruling, still unanswered questions:  Does this ruling apply to the states?  Does this ruling apply to other kinds of guns?  What is the standard for future challenges to gun restrictions?  Later, in McDonald v. Chicago (2010), Supreme Court ruled state and local governments cannot prohibit right to bear arms 30

Right to Bear Arms 31

Applying the Bill of Rights to the States  Major purpose of Constitution to define divisions of power between national and state governments  Initially, Bill of Rights applied only to national government  Fourteenth Amendment’s due process clause used to apply Bill of Rights to the states 32

The Fourteenth Amendment: Due Process of Law  Section 1….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. 33

Due Process Clause  Supreme Court’s interpretations of the due process clause applied Bill of Rights’ limitations to the states  Two central meanings:  Requires government to follow appropriate procedures  Forbids unreasonable government action 34

The Fundamental Freedoms  First application of due process clause in 1897 and involved Fifth Amendment’s prohibition against taking private property without just compensation  Supreme Court ruled due process also protected free speech and free press from limitations by the states 35

Figure 15.2 The Selective Incorporation of the Bill of Rights 36

The Fundamental Freedoms  Definition of fundamental freedoms a slow process  Critical test in Palko v. Connecticut (1937)  Supreme Court moved from “fair and enlightened sense of justice” to “American scheme of justice”  Palko finally overturned in

Criminal Procedure: The Meaning of Constitutional Guarantees  Fourth through Eighth amendments specify government’s behavior in criminal proceedings  Some variations allowed at state level  Differences in jury size and requirement for a unanimous verdict allowed 38

Fundamental Rights Applied to States  Right to an attorney defined by Gideon v. Wainwright (1963)  Right to jury trial guaranteed in Duncan v. Louisiana (1968)  Suspects must be informed of constitutional rights as a result of Miranda v. Arizona (1966) 39

Miranda v. Arizona  Established warning requirement for those taken into custody and questioned  You have the right to remain silent  Anything you say can be used against you in court  You have the right to talk to an attorney of your own choice before questioning  If you cannot afford to hire a lawyer, a lawyer will be provided without charge 40

Search and Seizure  Protection against arbitrary search and seizure applied to states by Wolf v. Colorado (1949)  Allowed states to decide how to handle illegally obtained evidence  Exclusionary rule applied to states by Mapp v. Ohio (1961)  United States v. Leon established good faith exception  Other exceptions include lack of “knock and announce” and police negligence 41

Wiretapping in the Digital Age  Communications Assistance for Law Enforcement Act (CALEA) governs wiretaps  Emergence of voice over Internet protocol calls complicates interceptions  Complicated compliance  Enormous data volumes  Encryption, especially with Skype 42

The USA PATRIOT Act  Government decision to forgo some liberties to secure greater order after terrorist attack on September 11, 2001  This shift worries some civil libertarians  One area of concern is Section 215, covering warrantless searches of private records 43

Detainees and the War on Terrorism  President George W. Bush designated detainees as “enemy combatants” and denied access to attorneys and hearings  Supreme Court rejected this position in two cases decided in 2004  Other cases challenged Bush administration policies  Hamadan v. Rumsfeld (2006)  Boumediene v. Bush (2008) 44

The Ninth Amendment and Personal Autonomy  The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people  Griswold v. Connecticut (1965) ruling asserted a “zone of privacy” in intimate, personal choices  Privacy rights guaranteed by the Ninth Amendment and applied to the states by the Fourteenth Amendment 45

Roe v. Wade (1973)  Ruling legalizing abortion based on concept of constitutional privacy rights  Affected laws of 46 states  Treats the three trimesters of pregnancy differently  Subsequent Supreme Court rulings have allowed some restrictions on abortion  Use concept of “undue burden”  Abortion issue pits freedom against order 46

Personal Autonomy and Sexual Orientation  Right-to-privacy cases opened way for consideration of other social issues involving homosexuals  Bowers v. Hardwick (1986)  Lawrence and Garner v. Texas (2003)  Defense of Marriage Act of 1996  State laws banning or allowing same-sex marriage or unions  Pluralist mechanisms like the initiative and referendum offer a way to overturn judicial intervention 47

Adam and Eve or Adam and Steve? 48