Chapter 15 ORDER AND CIVIL LIBERTIES

Learning Outcomes 15.1 Explain the role of the Bill of Rights in protecting civil liberties and civil rights Identify the mechanisms that guarantee freedom of religion Identify the free-expression clauses and describe the scope of their protection. Copyright 2014 Cengage Learning 2

Learning Outcomes 15.4 Discuss the controversy over the Second Amendment and explain how Supreme Court rulings have addressed that debate Explain the process by which Supreme Court extended from the protections of the Bill of Rights to the local and state levels of government. Copyright 2014 Cengage Learning 3

Learning Outcomes 15.6 Explain how the Supreme Court interpreted the Ninth Amendment to broaden the individual’s constitutional protection of personal privacy beyond the language in the Bill of Rights, a right not enumerated in the Constitution. Copyright 2014 Cengage Learning 4

5 To Pledge or Not to Pledge, That Is the Question

The Bill of Rights  Framers did not include a bill of rights in the Constitution  To ensure ratification of Constitution, 12 amendments submitted to the states  Became Bill of Rights  Constitution guarantees civil rights and liberties Copyright 2014 Cengage Learning 6

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Freedom of Religion  TheEstablishment Clause  First Amendment  Establishment clause  Free-exercise clause  Government Support of Religion  1879 “wall of separation between church and state”  Breeched  In 1947: transportation to parochial school students  In 1968: State loaned text books to parochial school students Copyright 2014 Cengage Learning 9

Team Religion Moves from Field to Stands Copyright 2014 Cengage Learning 10

Freedom of Religion  The Establishment Clause  Government Support of Religion (cont.)  1971, Lemon v. Kurtzman – The Lemon test  In 1997, Court loosened its application of Lemon test with the Lynch  School Prayer  Supreme Court consistently equates prayer in public schools with government support of religion  Engel v. Vitale Copyright 2014 Cengage Learning 11

Freedom of Religion  The Free-Exercise Clause:  “Congress shall make no law…prohibiting the free exercise [of religion].”  Some areas of conflict:  Military service  Working on the Sabbath  Sherbert v. Vener (1963) Copyright 2014 Cengage Learning 12

Freedom of Expression  First Amendment free-expression clauses  Freedom of Speech  Freedom of the Press  Today, clauses are deemed to bar forms of prior restraint  Supreme Court approaches  Government can regulate and punish advocacy of ideas that promote lawless action  Government may impose reasonable restrictions Copyright 2014 Cengage Learning 13

Freedom of Expression  Freedom of Speech  Clear and present danger test  Schenck v. United States (1919)  Protections for speech and press applied to states  Gitlow v. New York (1925)  More emphasis on freedom and wider latitude for expression of political ideas  Brandenburg v. Ohio (1969) – court reversed conviction  U.S. stands alone in protection of hateful speech Copyright 2014 Cengage Learning 14

‘‘Liar Liar! Pants on Fire!’’ Copyright 2014 Cengage Learning 15

Freedom of Expression  Freedom of Speech (cont.)  Symbolic expression  Courts have upheld certain types  Tinker v. Des Moines Independent County School District (1969)  Order Versus Free Speech: Fighting words and Threatening Expression  Fighting words not subject to First Amendment protection Copyright 2014 Cengage Learning 16

Freedom of Expression  Freedom of Speech (cont.)  Order Versus Free Speech: When Words Hurt  Snyder v. Phelps (2011)  Equality and Free Speech  Citizens United v. Federal Election Commission (2010) Copyright 2014 Cengage Learning 17

Freedom of Expression  Freedom of the Press  Defamation of Character  New York Times v. Sullivan (1964)  Prior Restraint and the Press  Near v. Minnesota (1931)  Freedom of expression versus maintaining order  Freedom of the press does not override requirements of law enforcement  Educators may limit speech provided restrictions serve “valid educational purpose” Copyright 2014 Cengage Learning 18

Copyright 2014 Cengage Learning 19 Hey Dudes, Let’s Protest Rallying for a Right

Freedom of Expression  The Rights to Assemble Peaceably and to Petition the Government  First Amendment Right  Roots of the right to petition in Magna Carta, right to assemble came later  When freedom and order conflict, justices of Supreme Court strike balance Copyright 2014 Cengage Learning 20

The Right to Bear Arms  Second Amendment Right  Controversy between gun control advocates and gun use advocates  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 Copyright 2014 Cengage Learning 21

Applying the Bill of Rights to the States  Purpose of Constitution  Define divisions of power between national and state governments  Set limits on nation and states regarding citizens’ rights  Initially, Bill of Rights applied only to national government Copyright 2014 Cengage Learning 22

Applying the Bill of Rights to the States  The Fourteenth Amendment: Due Process of the Law  Supreme Court’s interpretations applied Bill of Rights’ limitations to states  Two central meanings:  Requires government to adhere to appropriate procedures  Forbids unreasonable government action Copyright 2014 Cengage Learning 23

Applying the Bill of Rights to the States  The Fundamental Freedoms  In 1897, the Supreme Court declared that the states are subject to the Fifth Amendment’s prohibition against taking private property without providing just compensation.  Supreme Court ruled due process protected free speech and free press from impairment by the states  Critical test: Palko v. Connecticut (1937) Copyright 2014 Cengage Learning 24

Copyright 2014 Cengage Learning 25

Applying the Bill of Rights to the States  Criminal Procedure: The Meaning of Constitutional Guarantees  Fourth through Eighth Amendments specify government’s behavior in criminal proceedings  Duncan v. Louisiana (1968) - right to jury trial  Gideon v. Wainwright (1963) right to counsel  Miranda v. Arizona (1966) right to be informed of rights  Wolf v. Colorado (1949) protection from illegal search and seizure  United States v. Leon (1984) established good faith exception Copyright 2014 Cengage Learning 26

Applying the Bill of Rights to the States  The USA-PATRIOT Act:  Government decision to forgo some liberties to secure greater order after the September 11 terrorist attack  Shift towards order worries some civil libertarians  More than 150 communities passed resolutions denouncing act as assault on civil liberties  One area of concern is Section 215, covering warrantless searches of private records Copyright 2014 Cengage Learning 27

Applying the Bill of Rights to the States  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, an unusually aggressive position on executive power  Hamdan v. Rumsfeld (2006)  Boumediene v. Bush (2008) Copyright 2014 Cengage Learning 28

The Ninth Amendment and Personal Autonomy  Controversy: From Privacy to Abortion  Griswold v. Connecticut (1965)  Established principle that Bill of Rights as a whole creates a right to make certain intimate, personal choices  Basis for 1973 Roe v. Wade - legalized abortion based on concept of constitutional privacy rights  Subsequent Supreme Court rulings have allowed restrictions on abortion  Webster v. Reproductive Health Services (1989) Copyright 2014 Cengage Learning 29

The Ninth Amendment and Personal Autonomy  Personal Autonomy and Sexual Orientation  Bowers v. Hardwick (1986) – held that Constitution does not protect homosexual relations  Lawrence and Garner v. Texas (2003) – Court said prior Bowers decision wrong  Defense of Marriage Act of 1996  Same-sex marriage remains a flashpoint for conflict  States dealing with issues of sexual orientation and same sex marriage Copyright 2014 Cengage Learning 30

Copyright 2014 Cengage Learning 31 Prop 8: Time to Demonstrate