1. 4 Civil Liberties Gilles Mingasson/Getty Images
Vehicles are one Fourth Amendment issue that has continuously troubled the Supreme Court. A Department of Homeland Security agent uses technological devices to search a van at the U.S.-Mexico border.
Gilles Mingasson/Getty Images

2. The Bill of Rights 4.1 Unpopular at Constitutional Convention
George Mason proposed these “rights” preface the constitution
Representatives unanimously defeated resolution
Federalists argument against Bill of Rights
State constitutions already had guaranteed rights so Fed. guarantees were unnecessary
Would be dangerous! Constitution enumerates rights to Fed. Govt. (Art 1, sec. 8) In Federalist 84, Hamilton argued “Why declare things that shall not be done?”
Would be impractical to enforce
The Bill of Rights protected individuals against actions by the federal government, but not by actions of the state. This changed with the addition of the Fourteenth Amendment. The Fourteenth Amendment requires state and local governments to guarantee that all individuals receive the rights outlined in the Bill of Rights.
In 1897, the Supreme Court ruled that states were accountable for substantive due process. States had to prove that state laws were not a misuse of power in regulating the health, welfare, and morals of citizens.
Applying due process to rights listed in the Bill of Rights is called the incorporation doctrine.

3. The Bill of Rights is NOT an all inclusive list
4.1
The Bill of Rights is NOT an all inclusive list
The Bill of Rights protected individuals against actions by the federal government, but not by actions of the state. This changed with the addition of the Fourteenth Amendment. The Fourteenth Amendment requires state and local governments to guarantee that all individuals receive the rights outlined in the Bill of Rights.
In 1897, the Supreme Court ruled that states were accountable for substantive due process. States had to prove that state laws were not a misuse of power in regulating the health, welfare, and morals of citizens.
Applying due process to rights listed in the Bill of Rights is called the incorporation doctrine.
Ninth Amendment (IX)
Makes clear the special list of rights is NOT all inclusive…that other rights can, may and do exist or are implied
Tenth Amendment (X)
Powers not delegated to the national government are reserved to the states or to the people

4. The Incorporation Doctrine:
4.1
The Incorporation Doctrine:
The Bill of Rights Made Applicable to the States
The Bill of Rights protected individuals against actions by the federal government, but not by actions of the state. This changed with the addition of the Fourteenth Amendment. The Fourteenth Amendment requires state and local governments to guarantee that all individuals receive the rights outlined in the Bill of Rights.
In 1897, the Supreme Court ruled that states were accountable for substantive due process. States had to prove that state laws were not a misuse of power in regulating the health, welfare, and morals of citizens.
Applying due process to rights listed in the Bill of Rights is called the incorporation doctrine.
Initially, the Bill of Rights ONLY applied to Federal Govt
Fourteenth Amendment - Bill of Rights applies to actions of states, not just federal government.
Due process clause of 14th Amendment - No “state” shall deprive…Applied to Bill of Rights
Substantive due process – Standard whereby the States had legal burden to prove their laws constituted a valid exercise of power to regulate health, welfare or public morals - Gitlow v New York (1925).

5. Selective Incorporation and Fundamental Freedoms
4.1
Selective Incorporation and Fundamental Freedoms
The Court used the doctrine of selective incorporation to determine which rights in the Bill of Rights apply to states under the due process clause of the Fourteenth Amendment.
Fundamental freedoms protected under selective incorporation include the rights defined by the Court as essential to order, liberty and justice. States are bound by these rights and must ensure that individuals have these rights. Fundamental freedoms include freedom of press, freedom of speech, and freedom of assembly.
Supreme Court has not automatically made all specific guarantees in the Bill of Rights applicable to the States
That’s called: Selective Incorporation (table 4.1)
Fundamental Freedoms – defined by the Court as essential to order, liberty and justice

6. TABLE 4.1 When did selective incorporation make the Bill of Rights applicable to the states?
As you can see in this table, not all rights have been incorporated under the Fourteenth Amendment.
continued on next slide

7. TABLE 4.1 When did selective incorporation make the Bill of Rights applicable to the states?
As you can see in this table, not all rights have been incorporated under the Fourteenth Amendment.

8. The Establishment & Free Exercise Clause
4.2
The Establishment & Free Exercise Clause
It's clear that the establishment clause prohibits the government from sanctioning an official religion. Issues involving the separation of church and state are highly controversial.
Prayer in schools went largely undisputed until the 1960s when in Engel v. Vitale (1962), the Court ruled that a mandatory prayer in public school classrooms was unconstitutional.
As a result of controversy surrounding the separation of church and state, the Court established a three-part test known as the Lemon test. This test is derived from the Lemon v. Kurtzman case of A law or government practice is allowed if it:
has a secular purpose
does not inhibit or advance religion
3) does not create an excessive entanglement of government and religion.
Separation of church and state (Jefferson’s letter to Danbury Baptists Jan 1, 1802…Reynolds v US (1878)
Lemon test Lemon v Kurtzman (1971) a practice or policy was Constitutional but ..
Did NOT have secular purpose
Did NOT advance or prohibit a religion
Did NOT entangle government with religion
Free exercise clause not absolute
Some religious rites considered illegal
State must provide compelling reason to limit exercise of religion.

9. Freedoms of Speech and the Press
4.3
Freedoms of Speech and the Press
Alien and Sedition Acts
Censored criticisms of the government
Federalist govt (Adams) trying to censor Democratic-Republicans (Jefferson)
Slavery, Civil War, and Rights Curtailments
Speech again censored (illegally) by Lincoln
World War I and anti-government speech
Schenck v US (1919) – established Clear and Present
Danger test
The First Amendment protects individuals against prior restraint of speech. This means that government cannot prohibit or censor publications or speech. However, in 1798, Congress passed the Alien and Sedition Acts, which banned publications critical of the government. After the election of Thomas Jefferson, those who were convicted under these Acts were pardoned.
Before, during, and after the Civil War, freedom of speech was again restricted. Publications in favor of slavery were not permitted in the North and those opposing slavery were not permitted in the South. President Lincoln suspended free press protections of the First Amendment.
Freedom of speech continued to be curtailed between 1890 and 1900, when people were prosecuted for seditious speech, and in the early twentieth century as Socialists and Communists who appealed to the growing immigrant populations were targeted for their views on government.
In 1919 the Supreme Court ruled that speech could be punishable by law if it presented a clear and present danger to society. Any speech that would directly incite or advocate illegal action could be prohibited. However, in 1969, the court decided that even speech that advocates for illegal action is constitutional if it is not likely to produce such actions.

10. Protected & Unprotected Speech and Press
4.3
As we have discussed, Congress attempted to prohibit publications critical of the government as early as The issue of prior restraint arose again in the 1970s in New York Times Co. v. U.S. In this case, the Supreme Court ruled that the government could not block the publication of the Pentagon Papers, secret Department of Defense documents obtained by the New York Times.
The court has ruled that symbolic speech is also protected under the First Amendment. Symbolic speech implies expression through symbols or signs. Some famous decisions in favor of symbolic speech included the Court's ruling that students had the right to wear black armbands to protest the Vietnam War, and that state laws prohibiting burning are unconstitutional.
Hate speech, which belittles a person or group, is another difficult issue. It is not protected when it is conducted to intimidate groups or to disrupt activities.
Protected speech
Limiting prior restraint - NY Times v US (1971)
Symbolic speech - Stromberg v California (1931) & Tinker v Des Moines (1969)
Hate speech - R.A.V. v City of St. Paul (1992)
Unprotected speech
Libel and slander – NY Times v Sullivan (1964)
Fighting words – Chaplinsky v New Hampshire (1942)
Obscenity – Roth v US (1957)

11. Freedoms of Assembly and Petition
4.3
Freedoms of Assembly and Petition
Freedom to assemble hinges on peaceful conduct. Without this, leaders and attendees may be subject to governmental regulation and even arrest, incarceration, or civil fines. The freedom to assemble has often been controversial, especially in times of war.
The Supreme Court has rarely addressed the right to petition government. But, in 2010, the Court found that the disclosure of petitioners does not violate First Amendment rights. If individuals choose to sign a ballot initiative, then those names must be disclosed.
Freedom to assemble hinges on peaceful conduct – DeJong v Oregon (1937)
Subject to rules regarding free speech
Freedoms of assembly and petition relate to those of speech and press. If words spoken cross constitutional lines, events may no longer be protected

12. Second Amendment: Right to Keep and Bear Arms
4.4
Second Amendment: Right to Keep and Bear Arms
The Framers added the Second Amendment to ensure that Congress could not disarm state militias.
In Dred Scott v. Sanford, the right to bear arms was listed as a basic right of citizenship. This does not limit the government from taxing or regulating the sale of firearms, but individuals have the right to own them through legal means.
Through the early 1920s, few state laws were enacted to regulate firearms. In 1934, Congress passed the National Firearms Act during Prohibition, in response to the explosion of organized crime and the increase in automatic weapons. However, despite controversy over gun control, the Court has upheld the right of citizens to own firearms for personal use.
Included to prevent Congress from disarming state militias
Dred Scott v. Sandford (1857)
The right to bear and carry arms a basic right of citizenship
US v Miller (1839)
Court upheld National Firearm Act tax on auto and sawed-off
D.C. v Heller (2008)
Court ruled 2nd Amendment protected right to own a firearm for personal protection

13. The Rights of Criminal Defendants
4.5
The Rights of Criminal Defendants
Multiple amendments to the Constitution provide protection for those who have been accused of a crime. Several clauses in the Bill of Rights protect people who are accused of a crime by preventing individuals from being mistreated by overzealous law enforcement officials.
Writs of habeas corpus require law enforcement officials to provide proof that an individual is being held lawfully. Ex post facto laws, which are laws that make an act punishable even if the act was legal when it was committed, are prohibited. Bills of attainder, which punish persons or groups for crimes without the benefit of a trial, are also prohibited. This section will discuss the protections provided by the Fourth, Fifth, Sixth and Eighth Amendments.
The Fourth Amendment and Searches and Seizures
Wolf v Colorado (1949) - unreasonable search and seizure
Weeks v US – (1914) – established exclusionary rule
Mapp v Ohio (1961) – evidence illegally obtained is inadmissible
The Fifth Amendment: Self-Incrimination and Double Jeopardy
Miranda v Arizona (1966) – coercion and self-incrimination
Mallory v Hogan (1964) – self-incrimination

14. The Fifth Amendment : Self-Incrimination and Double Jeopardy
4.5
The Fifth Amendment : Self-Incrimination and Double Jeopardy
The Fifth Amendment protection against self-incrimination means that the burden of proof is on the prosecution. If you are accused of a crime, you cannot be compelled to testify against yourself. You are innocent until the state proves that you are guilty, and you don't have to help the prosecution prove their case against you.
It is possible, indeed likely, that someone who is arrested may say something incriminating under interrogation, without being aware of their constitutional rights to remain silent, to have an attorney present during questioning, and to be provided with an attorney if they cannot afford one. In the 1966 case of Miranda v. Arizona, the Supreme Court ruled that arresting officers must inform accused persons of these rights.
In addition to the previously mentioned protections, someone cannot be tried twice for the same crime. This is known as double jeopardy.
Protection against self-incrimination
Miranda v. Arizona (1966)
Right to remain silent
Knowledge that what you say can be used against you
Right to an attorney present during questioning
Right to have an attorney provided if you cannot afford one
Double jeopardy

15. Rights of Criminal Defendants
4.5
Rights of Criminal Defendants
The Sixth Amendment and Right to Counsel
Gideon v Wainwright (1963) – the right to counsel is a necessity not a luxury
The Sixth Amendment and Jury Trials
The right to confront witnesses is not an absolute right. Supreme Court ruled (1990) that the testimony of a 6-year old abuse victim was permissible by closed-circuit TV
Also includes right to speedy & public trial, jury of peers (racial and gender)
The Eight Amendment and Cruel and Unusual Punishment
Furman v Georgia (1972) – issued a moratorium on the death penalty because it was being imposed arbitrarily
Gregg v Georgia (1976) – Ruled Georgia’s rewriting of the death penalty statute was constitutional
Multiple amendments to the Constitution provide protection for those who have been accused of a crime. Several clauses in the Bill of Rights protect people who are accused of a crime by preventing individuals from being mistreated by overzealous law enforcement officials.
Writs of habeas corpus require law enforcement officials to provide proof that an individual is being held lawfully. Ex post facto laws, which are laws that make an act punishable even if the act was legal when it was committed, are prohibited. Bills of attainder, which punish persons or groups for crimes without the benefit of a trial, are also prohibited. This section will discuss the protections provided by the Fourth, Fifth, Sixth and Eighth Amendments.

16. 4.6
Right to Privacy
Griswold v Connecticut (1965) – the court decided that various portions of the Bill of Rights (1st, 3rd, 4th, 9th and 14th) cast what the court called “prenumbras” or unstated liberties on the fringes of stated rights. Ban on contraception violated marriage privacy.
Roe v Wade (1973) – 1st trimester absolute right to privacy terminate pregnancy under the 9th Amendment.
Bowers v Hardwick (1986) – Upheld anti-sodomy laws
Lawrence v Texas (2003) – Overturned its Bowers decision finding Texas law unconstitutional on privacy grounds
While the Constitution does not specifically outline the right to privacy, it was acknowledged as early as 1928 by Justice Louis Brandeis, who explained that privacy is 'the right to be left alone— the most comprehensive of rights and the right most valued by civilized men.' In this section, we will discuss privacy in terms of reproductive rights and sexual rights.

17. 4.7
The Fourth Amendment
The USA PATRIOT Act and impact on illegal search and seizure
Private records
Search of private property
Collection of foreign intelligence
Information about who is sending and receiving communications
Supreme Courts ruling in favour of state “DUI” checkpoints without probable cause or search warrant.
The USA PATRIOT Act infringes upon Fourth Amendment rights in four areas. First, it enables the government to obtain and examine an individual's private records that are held by a third party, including libraries, doctors, and universities.
Government officials can search an individual's property without first notifying the individual.
Third, according to the ACLU the Act "expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information."
Government can trace not just the contents of communication between individuals, but collect information about who is sending and receiving the information.
Activity: Review with your class the current status and provisions of the Patriot Act. An online text can be found at the Electronic Privacy Information Center (epic.org/privacy/terrorism/hr3162.html). Debate the limits of civil liberties in a post- 9/11 world. Are certain tradeoffs between liberty and security necessary?