Chapter 16Civil Liberties
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Fiorina, Peterson, Johnson, and Mayer
New American Democracy, Sixth Edition
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Origins of Civil Liberties in the U.S.
Evolution of civil liberties in the United States has been shaped by Supreme Court rulings
Also affected by
– Political debates
– Interest group activism
– Election outcomes
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Origins of the Bill of Rights
Articulation of basic freedoms found in colonial America
– During Revolution, Patriots trampled on rights of Tories – called them traitorous
Constitution did not include explicit protection for individual civil liberties
States responsible for things such as regulating speech and the press
Only when ratification of Constitution was in danger did a federal Bill of Rights emerge
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Few Liberties Pre-Civil War
Bill of Rights originally applied only to national government—NOT the states
– Several states supported Congregationalist ministers with tax money for several decades
– Some Bill of Rights provisions did not explicitly mention federal or state government, leaving possibility that they applied to both
Barron v. Baltimore (1833)
Slavery
– Dred Scott v. Sandford
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Applying the Bill of Rights
The Civil War transformed the Bill of Rights
Civil Rights Amendments
– The 13th, 14th, 15th Amendments, which abolished slavery, redefined civil rights and liberties, and guaranteed the right to vote to all adult male citizens
Due Process Clause
– Found in the 5th and 14th Amendments to the Constitution: forbids deprivation of life, liberty, or property without the due process of law
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Applying the Bill of Rights
Language in the 14th Amendment applied the due process clause to the states
But, the Supreme Court did not immediately conclude that the states must abide by the entire Bill of Rights
– If it did, would be difficult to enforce
– Gradual approach: selective incorporation
• the case-by-case incorporation, by the courts, of the Bill of Rights into the due process clause of the 14th Amendment
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Freedom of Speech, Assembly, and Press
“Congress shall make no law…abridging the freedom of speech, or of the press; or the right of people peaceably to assemble…”
Three liberties closely intertwined
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Free Speech and Majoritarian DemocracyMadison and Tyranny of the Majority
Place free speech outside the reach of powerful majorities
John Stuart Mill: in the free exchange of ideas, truth would eventually triumph over error
– But what of vicious or offensive speech?
– Mill states that even if such ideas were built on error, only by allowing it to be expressed can its proponents be denied the privilege of false martyrdom
– Example: racial hatred and prejudice
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From “Bad Tendency” to “Clear and Present Danger”
Bad Tendency:
– A rule from English law saying that expression could be punished if it could ultimately lead to illegal behavior
First major Supreme court decisions affecting freedom of speech arose out of the conscription of young men into the army during WWI
Schenck : socialist who mailed anti-conscription materials to draft-age men
– Found guilty of the 1917 Espionage Act (law that made it illegal to obstruct armed forces recruitment)
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From “Bad Tendency” to “Clear and Present Danger”Supreme Court reviewed case and enunciated
the Clear and Present Danger doctrine
The principle that people should have complete freedom of speech unless their language endangers the nation
Meaning open to interpretation
Abrams v. United States (1919), Holmes attempt to fine-tune the doctrine
Stromberg v. California (1931) gave 1st Amendment protection to extremely unpopular opinions
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Fighting WordsThe principle endorsed by the Supreme Court that some words constitute violent acts and are therefore not protected under the 1st Amendment
Chaplinsky v. New Hampshire
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Balancing DoctrineFreedom of speech must be balanced
against other competing interests
Circumstances matter
Dennis v. United States (1951)
– Was used to reinterpret and place limits on the clear and present danger doctrine
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Fundamental Freedoms Doctrine
Doctrine stating that laws impinging on the freedoms that are fundamental to the preservation of democratic practice are to be scrutinized by the courts more closely than other legislation
Fundamental freedoms: speech, press, assembly, and religion
Texas v. Johnson (1989)
United States v. Eichman (1990)
R.A.V. v. City of St. Paul (1990)
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Freedom of the PressPrior restraint doctrine
Legal doctrine that gives individuals the right to publish without submitting material to a government sensor
Near v. Minnesota (1931)
New York Times v. United States (1971)
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Freedom of AssociationConsidered inseparable from freedom of speech and assembly
Dennis v. United States
NAACP v. Alabama (1958)
Boy Scouts of aAmerica v. Dale (2000)
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Limitations on Free Express
Commercial Speech
– Advertising or other speech made for business purposes may be regulated
– E.g. Cigarette advertising on television and radio is forbidden
Obscenity
– Publicly offensive language or portrayals with no redeeming social value
– Redrup v. New York (1967)
– Miller v. California (1973)
Libel
– False statement defaming another
– New York Times v. Sullivan
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Freedom of ReligionGuaranteed by two clauses:
– Establishment of religion clause
– Free exercise of religion clause
The first denies the government to establish any single religious practice as superior
The second protects the right of individuals to practice their religion without government interference
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Establishment of Religion Clause
Separation of church and state doctrine
The principle that a wall should separate the government from religious activity
Meek v. Pittenger (1975)
– Public monies cannot be used for payment to religious-school teachers, for curricular materials, or for any other expense at such schools, except for textbooks and the cost of transporting students to school
Agostini v. Felton
– The court ruled that public school teachers can provide specialized remedial instruction in religious schools so long as this instruction does not discriminate against students on the basis of religion
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Free Exercise of Religion Clause
Seems to instruct states not to interfere with religious practices
– Education policy
Wisconsin v. Yoder (1972)
Oregon v. Smith (1990)
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Establishment of Religion or Free Exercise?
Wisconsin v. Yoder – What happens when the establishment and exercise clause conflict?
– Did the Amish receive preferential treatment?
– What about the armed services hiring chaplains for overseas members?
– School choice debate
Zelman v. Simmon-Harris
– Found constitutional a small voucher program serving low-income families in Cleveland even though the vouchers were used for religious schools
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Law, Order and Rights of Suspects
Elections affect court interpretations of the procedural rights of the accused.
– Interfere with the ability of police to find and prosecute criminals
Election politics and criminal justice
– Must “do something”
– Warren Court
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Search and Seizure4th Amendment
– Your house cannot be searched without your permission unless a search warrant, based on evidence that a crime has probably been committed, is issued by a court
Exclusionary rule
– Legal standard that says that illegally obtained evidence cannot be admitted in court
– Mapp v. Ohio (1961)
– Headlong flight
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Immunity Against Self-Incrimination
5th Amendment
– Protects individuals from torture and coerced confessions by saying the persons cannot be forced to testify against themselves
Miranda v. Arizona (1966)
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Impartial Jury6th Amendment– Requirement that a jury must be impartial
Sheppard v. Maxwell (1966)– Safeguards put into place to ensure impartial juries
• postponement until public attention subsided• screening of jurors• instruction of the jurors to consider the evidence of
the trial• sequestration• changing of trial venue
Nebraska Press Association v. Stuart (1976)– “Pre-trial publicity—even pervasive, adverse publicity –
does not inevitably lead to an unfair trial”
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Legal Counsel6th Amendment
Gideon v. Wainwright (1963)
– All citizens accused of serious crimes are constitutionally entitled to legal representation
– Office of public defender
• low pay
• systems and standards vary widely from state to state
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Double Jeopardy5th Amendment
Benton v. Maryland (1969)
– States cannot try a person twice for the same offense
– But a person can be tried in the federal courts, even if acquitted in a state court
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Rights in Practice: Habeas CorpusWrit of habeas corpus
A judicial order that a prisoner be brought before a judge to determine the legality of his or her imprisonment
The Great Writ
– Preserves the right of the accused to the due process of law
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Rights in Practice: The Plea Bargain
Agreement between prosecution and defense that the accused will admit having committed a crime, provided that other charges are dropped and the recommended sentence is shortened
Extensive use of plea bargain at issue
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The Right of Privacy9th Amendment:
– “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”
Right of privacy not explicit in Constitution
– In 1960s and 1970s this right was recognized by the Court with regard to private sexual behavior and abortion
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Regulation of Sexual Behavior
Griswold v. Connecticut (1965)
– Right to use contraceptives
– Majority agreed
Bowers v. Hardwick (1986)
– Georgia law prohibiting sodomy under which two homosexuals had been convicted
– Behavior not supported by majority: court held state could regulate
– But in Lawrence v. Texas (2003), Court reversed itself on this topic.
• Bowers should not be a biding precedent.
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Abortion: Right to Life or Right to Choose?
Roe v. Wade (1973)
– Court ruled that right to privacy was broad enough to include at least a partial right of abortion
– launched powerful political movements
• right-to-life
• pro-choice
Planned Parenthood v. Casey (1992)
– Compromise decision: upheld some of the restrictions on abortion but left intact the principle that states cannot outlaw all abortions
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Privacy in the Information AgeKyllo v. United States (2001)
Court considered whether police departments could make use of thermal imaging equipment to examine a suspect’s home without a search warrant
Found for the defendant: using imaging technology basically equal to unconstitutional search