Chapter 4 Civil Liberties The Bill of Rights: A Charter of Liberties Nationalizing the Bill of Rights The 1st Amendment and Freedoms of Religion, Speech, Press and Assembly The 2nd Amendment and the Right to Bear Arms Rights of the Criminally Accused The Right to Privacy The Future of Civil Liberties

The Bill of Rights: A Charter of Liberties Article I Protection —Writ of Habeas Corpus —Bills of Attainder —Ex Post facto Laws How does the Bill of Rights provide for individual liberties? What are the differences between substantive and procedural restraints?

Substantive vs. Procedural Liberties Substantive liberties are restraints on what the government shall and shall not have the power to do. For example, restricting freedom of speech, religion, or press Procedural liberties are restraints on how the government is supposed to act. For example, citizens are guaranteed due process of law.

Nationalizing the Bill of Rights (The Incorporation Issue) The U.S. Supreme Court began applying the Bill of Rights to state action by utilizing the Fourteenth Amendment. The Court selectively applies the liberties on a case by case basis.

4-2 Incorporating the Bill of Rights into the 14th Amendment

The First Amendment: Freedom of Religion The establishment clause provides that Congress shall make no law respecting an establishment of religion. Issues include — school prayer, nativity scenes, Pledge of Allegiance — bible class, evolution, The 10 Commandments, private school vouchers. — Lemon Test. (secular, religiously neutral, avoid government religious entanglement.) The free exercise clause protects the right to believe and practice whatever religion one chooses. Issues include — polygamy, religious holidays, — peyote at work.

The First Amendment: Freedom of Speech Speech is not an absolute freedom. What forms of speech are protected by the First Amendment? What forms of speech are not protected?

The First Amendment: Freedom of Speech “Congress shall make no law... Abridging the freedom of speech, or of the press....” Strict scrutiny places the burden on the government to prove that a restriction on speech or press is constitutional. — Speech that presents a clear and present danger is not protected by the First Amendment. (Sedition and “fighting words”) — Libel and slander is not protected. — Obscenity is not protected. — Symbolic speech (nonverbal, e.g. flag burning) is protected speech.

Freedom of the Press Clear and Present Danger Test –a threat to public order Preferred-Position Doctrine –government must prove limiting is absolutely necessary Prior Restraint –censorship and national security

Freedom of Assembly Parades, marches, protests, demonstrations. Court allows requiring permits. Assembling versus loitering. KKK, Nazis, Crips and Bloods.

The 2nd Amendment: The Right to Bear Arms Is the right to bear arms guaranteed by the Bill of Rights? How is its exercise restricted?

The 2nd Amendment: 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 an bear Arms, shall not be infringed.”

The 3rd Amendment: Quartering Troops During peacetime with owners consent During war only by previously established laws.

Rights of the Criminally Accused Do criminals have rights? How do the Fourth, Fifth, Sixth, and Eighth Amendments provide for due process of the law?

The 4th Amendment : Rights of the Criminally Accused “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause....” Failure to comply with the Fourth Amendment restricts the use of evidence pursuant to the exclusionary rule (Mapp v. Ohio)

The 5th Amendment: Rights of the Criminally Accused Individuals have the right to a grand jury to determine the merit of criminal charges. A person cannot be tried for the same crime twice (double jeopardy). Individuals have the right to remain silent and cannot be compelled to testify against themselves in a criminal case. Property cannot be taken by the government without just compensation.

The 6th Amendment: The Right to Counsel “In all criminal prosecutions, the accused shall... Have the Assistance of Counsel.” Gideon v. Wainwright establishes the right to counsel in all felony cases.

The 7th Amendment Lawsuits in amount exceeding $20, the right to trial by jury shall be preserved. Evidence heard by jury shall only be reconsidered using appropriate common law appeals process.

The 8th Amendment: Cruel and Unusual Punishment The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishment. The death penalty was declared unconstitutional in 1972, but was reinstated in 1976, after procedural changes were implemented.

The Right to Privacy What is the right to privacy? How has it been derived from the Bill of Rights? What form does the right to privacy take today?

The Right to Privacy Griswold v. Connecticut (1965) created a “zone of privacy” when it was ruled that the state of Connecticut could not prohibit the use of contraceptives. —The U.S. Supreme Court concluded that a right to privacy was created through the First, Third, Fourth, Fifth and Ninth Amendments.

The Right to Privacy: Abortion In Roe v. Wade (1973), the right to privacy was extended when the U.S. Supreme Court declared restrictive abortion statutes unconstitutional. In Webster v. Reproductive Health Services (1989), the U.S. Supreme Court upheld restrictions on the use of public facilities for abortions. In Planned Parenthood v. Casey (1992), the court narrowed the scope of Roe v. Wade.

The Right to Privacy: Right to Die Assisted suicide. –Most states say no and court agrees. In 1997 Oregon became first state to allow assisted suicide.

Privacy on the Internet Cyber-cookies Online marketing of consumer information. Drivers license data bases. Medical record information. Individual must grant permission for release of information.

The Future of Civil Liberties The Rehnquist Court has not actually reversed important decisions made by the Warren or Burger Courts. The current balance of justices makes any significant reversals unlikely.

4-7 Support for Rights of Criminal Defendants has Declined

The Citizen’s Role The liberties that are protected by the Bill of Rights are essential to guarantee a free society. Only in a free society can we participate in the process of making decisions that shape the way we live.