1. To Accompany Comprehensive, Alternate, and Texas Editions American Government: Roots and Reform, 10th edition Karen O’Connor and Larry J. Sabato  Pearson Education, 2009  Chapter 5 Civil Liberties

2. The Bill of Rights  Debate over necessity at Constitutional Convention.  Guarantees specific rights and liberties.  Ninth Amendment states other rights exist.  Tenth Amendment reserves rights to states and people.

3. Incorporation  Until 20th century, Bill of Rights did not apply to states.  14th Amendment’s due process clause raises questions.  Begins to apply after Gitlow v. New York (1925).  Case is first step in incorporation doctrine.  Not all guarantees have been incorporated.  Selective incorporation of fundamental freedoms.Selective incorporation

4. First Amendment: Establishment  Article VI – No religious test for holding office  Prevents government from establishing religion.  Have been years of debate over scope of clause.  Lemon test (1971) sets clearest boundaries for using public funds in religious schools  Must be for secular purpose, no religious effect, no entanglement.  Applied most frequently to religious schools.  Aid used to be books only; has been broadened to include computers  Also limits other actions, e.g. prison ministries.

5. First Amendment: Free Exercise  Government cannot interfere with religious practice.  Is not absolute; necessity can outweigh freedom.  Governmental interests may supersede freedom  Polygamy, human sacrifice, snake venom used in rituals, etc.  Still, laws must be neutral toward religion.

6. Free Speech and Press  First Amendment meant to guard against prior restraint.  Alien and Sedition Acts go against this principle.  Additional prohibitions during the Civil War era.  Rise of sedition laws in the 1890s.  New limitations during World War I.  Give rise to clear and present danger test in 1919.  Modified in 1969 to be direct incitement test.

7. Protected Speech  Court will rarely tolerate prior restraint.  Court also protects symbolic speech.  Hate speech also receives growing protection.

8. Unprotected Speech  These types of speech are without social value.  Libel, or false written statements.  Slander, or untrue spoken statements.  Fighting words, or words that breach the peace.  Obscenity, which varies by state and local jurisdictions.  Lacks redeeming social importance  Based on community standards and average person’s view  Appeals to “prurient” interests

9. First Amendment: Assembly  Assembly and petition have been controversial.  Tied closely to speech and press.  If speech and actions cross line, protection may not exist.

10. Second Amendment  Protects right to bear arms.  Written to protect state militias.  Few Supreme Court decisions have discussed issues.  Congressional regulation more frequent.  Citizens’ right reaffirmed in D.C. v. Heller (2008).

11. Fourth Amendment “Respecting the dignity even of the least worthy citizen…….. raises the stature of all of us.” William O. Douglas  First of the due process rights.  Protects against unreasonable searches and seizures.  Probable cause required to issue a warrant.  Police must knock  No warrant needed with reasonable suspicion  Stop and frisk after traffic stop (to protect police)  May search person, plain view, anything in control.  Committing violation/crime or about to commit crime  Consent of one occupant unless one objects  New issues include cars, borders, and drug tests.

12. Fifth Amendment  Prevents self-incrimination and double jeopardy.  Miranda v. Arizona (1966) is landmark case.  Miranda rights inform suspects of right to silence, and the right to counsel.

13. Exclusionary Rule -  Derived from Fourth and Fifth Amendments.  Weeks v. U.S. (1914) established in federal court  Bars use of illegally seized evidence at trial.  Established largely in Mapp v. Ohio (1961).  Growing number of “good faith exceptions.”  To avoid freeing the guilty (Burger Court)  Under Burger and Rehnquist exclusionary rule used only when deliberate misconduct by police was obvious  Inevitable discovery, however, even trumped misconduct

14. Sixth Amendment  Protects right to counsel and jury trial in criminal cases.  Originally meant to allow defendant right to hire an attorney  Gideon v. Wainwright (1963) sets precedent for counsel.  Not a capital crime nor did it involve ‘special circumstances’.  Led to Betts v. Brady decision being overturned  Has led to costing the courts millions of dollars per year  Trial should be speedy and of peers.  Jury selection has been subject of much debate.  In past, African Americans and women were excluded – peremptory challenges.

15. Eighth Amendment  Protects against cruel and unusual punishment.  Most common application is the death penalty.  Briefly unconstitutional for a period in 1970s.  Used at varying rates and forms in different states.Used at varying rates and forms  Minors and mentally retarded are excluded.  Mentally retarded (2002)/Minors (2005)  Growth of innocence projects and DNA evidence.  2008 case upholds constitutionality of lethal injection.

16. Right to Privacy  Created by the courts from penumbras of constitution.  Applied first to contraception. Griswold v. Connecticut  Extended to abortion in Roe v. Wade (1973).  Webster v. Reproductive Health Services (1989)  Planned Parenthood of Southwestern PA v. Casey  Struck down husband consent form  Upheld parental consent and waiting periods  Upheld state required viability laws  Also applied in some homosexual rights cases.  Right to die movement also uses right to privacy.

17. Civil Liberties and Terrorism  Virtually all civil liberties have been affected.  USA Patriot Act and Military Commissions Act.  Place limitations on free speech rights.  Increase law enforcement’s search capabilities.  Attempt to deny habeas corpus rights to defendants.  Allow for use of techniques such as water-boarding.

18. Figure 5.1- Methods of Execution  Back

19. Table 5.1- Selective Incorporation  Back