1. Civil Liberties
Chapter 5
CHAPTER 5: CIVIL LIBERTIES

2. In this chapter you will:
Learn about the rise of civil liberties
Examine the right to privacy—a controversial liberty that is not mentioned in the Constitution and involves abortions and same-sex marriage.
Study the freedom of religion
Explore the right to free speech – and it ‘s special status
Study the right to bear arms
Consider the rights of the accused
Reflect on the difficult balance between fighting terrorism and protecting civil liberties.
CHAPTER 5: CIVIL LIBERTIES

3. Civil Rights and Civil Liberties
Civil liberties restrict government action to protect individual rights.
Civil Rights
Civil rights require government action to help secure individual rights.
CHAPTER 5: CIVIL LIBERTIES

4. The Rise of Civil Liberties
The Supreme Court neatly defined civil liberties in West Virginia State Board of Education v. Barnette: The Bill of Rights withdraws certain subjects from political controversy and places them beyond the reach of majorities and officials.
The Bill of Rights did not apply to the states until the Fourteenth Amendment declared that no state could deprive any citizen of life, liberty, or property.
The Court has applied the Bill of Rights to the states one right at a time between 1897 (no taking of property without compensation) and 2010 (the right to bear arms).
CHAPTER 5: CIVIL LIBERTIES

6. Privacy
The Court discovered a right to privacy implicit in the shadows of the First, Third, Fourth, Fifth, and Ninth Amendments.
The Court applied the right to privacy to strike down laws banning abortion. In Roe v. Wade, the court issued a rule prohibiting states from interfering during the first trimester.
Later cases permitted states to balance abortion rights with protections for the unborn.
»» The Court extended privacy rights to same-sex couples by striking down antisodomy laws.
CHAPTER 5: CIVIL LIBERTIES

7. Freedom of Religion
The First Amendment has two clauses protecting religious rights: The government may not establish a religion (the establishment clause), and it may not interfere with the free exercise of religion (free exercise clause).
The courts have ruled on establishment cases by trying to approximate Jefferson’s wall separating church and state. Government action is permissible if it meets the three criteria known as the Lemon test: It must have a secular purpose, neither advance nor inhibit religion, and not excessively entangle government in religion. A more recent view known as accommodation simply requires that government not promote one religious view over another.
In protecting the free exercise of religion, the courts traditionally asked if the government had a compelling interest for imposing a burden.
CHAPTER 5: CIVIL LIBERTIES

8. Freedom of Speech
Free speech is crucial to democracy, and the Court gives it a privileged position—even against angry public opposition to flag burning, cross burning, or homophobic displays at military funerals.
Free speech can be curtailed if it poses a “clear and present danger.” Today, the Court requires the danger to be both imminent and likely to occur.
There are limits to free speech, including fighting words and student speech.
CHAPTER 5: CIVIL LIBERTIES

9. Freedom of the Press
The rules for freedom of the press reflect those of free speech and strongly protect free expression.
The courts are especially skeptical of any effort to impose prior restraint. New media make it almost impossible to even try.
Obscenity is not protected by the First Amendment. The Court has spent a long time wrestling with what counts as obscenity and now uses the three-part Miller test.
CHAPTER 5: CIVIL LIBERTIES

10. The Right to Bear Arms
Some critics see the Second Amendment as an outmoded defense of citizen militias.
Others see it as an important individual right—perhaps even the most important right in the entire Constitution.
In 2010, the Supreme Court incorporated the right to bear arms as an essential individual right, though state and local restrictions have largely been upheld in lower courts.
CHAPTER 5: CIVIL LIBERTIES

11. The Rights of the Accused
The Bill of Rights places special emphasis on the rights of those accused of crimes. Even so, American incarceration rates are the highest in the world.
The police may not search or seize without a warrant (with minor exceptions); they must inform suspects of their right to remain silent; the accused have a right to legal counsel. The courts have widened the right to counsel, but it is often limited by a lack of funding for public defenders.
CHAPTER 5: CIVIL LIBERTIES

12. The Rights of the Accused
Under current interpretation, capital punishment is not considered “cruel and unusual punishment.” However, the number of executions has been falling and public support has waned.
Between 1962 and 1968, the Supreme Court vastly expanded the rights of the accused. Recent Court decisions have tilted the balance back toward law enforcement.
CHAPTER 5: CIVIL LIBERTIES

13. Terrorism, Non-Citizens, and Civil Liberties
The response to 9/11 and subsequent terrorist attacks created a debate about the balance between civil liberties and public safety.
With the Snowden revelations, controversy arose about the NSA data collection of phone records and Internet surveillance.
CHAPTER 5: CIVIL LIBERTIES

14. Terrorism, Non-Citizens, and Civil Liberties
While Congress legislated some limits after the revelations, in 2018, Congress reauthorized the surveillance without major new protections.
Most Constitutional rights apply to non-citizens. However, they are also ruled by immigration laws which offer more limited rights.
CHAPTER 5: CIVIL LIBERTIES

15. Chapter Summary
Civil liberties are the limits we put on governing bodies (and the majorities that elect them) so that individuals can exercise their rights and freedom. Disputes are usually resolved by the courts and guided by the Bill of Rights.
The Bill of Rights did not apply to the states until the Fourteenth Amendment required that no state could deprive any citizen of life, liberty, or property.
The Supreme Court applied the Bill of Rights to the states, one right at a time. It began in 1897 (no taking property without compensation) and continued until 2010 (the right to bear arms limits state and local governments). This process is known as incorporation.
CHAPTER 5: CIVIL LIBERTIES

16. Chapter Summary
The Court discovered a right to privacy implicit (in the shadows) in the First, Third, Fourth, Fifth, and Ninth Amendments. The Court applied the right to privacy to strike down laws banning abortion. In Roe v. Wade, the Court issued a rule prohibiting states from interfering during the first trimester. In Planned Parenthood v. Casey, the Court replaced the rule with standard forbidding laws that put “an undue burden” on the right to privacy. The Court extended privacy rights to same-sex couples by striking down antisodomy laws in 2003.
The Constitution includes two religious restrictions on government. The Establishment Clause bans the government from establishing (or favoring) a religion. In one view, this means separating church and state. For many years, the three-part Lemon test guided judicial decisions in cases involving religion. A more recent view requires simply that government not promote one religious view over another.
CHAPTER 5: CIVIL LIBERTIES

17. Chapter Summary
The Constitution also forbids government from interfering with religious practice (the free exercise clause.) The courts traditionally asked if the government had a compelling interest for imposing a burden – the Sherbert test. In 1990, the court shifted and required only that the government action be neutral and apply to everyone. Congress, state governments, and religious groups pushed back and the courts have, once again, returned to the traditional Sherbert test.
Free speech is crucial to democracy, and the Court gives it a privileged position—even against angry public opposition to flag burning, cross burning, or homophobic displays at military funerals. Free speech can be curtailed if it poses a “clear and present danger.” Today, the Court requires the danger to be both imminent and likely to occur. There are limits to free speech involving fighting words, student speech, commercial speech, and obscenity.
CHAPTER 5: CIVIL LIBERTIES

18. Chapter Summary
Some critics see the Second Amendment as an outmoded defense of citizen militias. Others see the right to bear arms as an important individual right—perhaps the most important liberty in the Constitution. In 2010, the Supreme Court ruled it an essential constitutional right.
The Bill of Rights places special emphasis on the civil liberties of those accused of crimes. Even so, American incarceration rates are the highest in the world. The police may not search or seize without a warrant, they must inform suspects of their right to remain silent, and the accused have a right to legal counsel. Under current interpretation, capital punishment is not considered “cruel and unusual punishment—but public opinion appears to be slowly changing.”
CHAPTER 5: CIVIL LIBERTIES