Church and State Due Process. Culture and Civil Liberties Rights in Conflict Rights in Conflict Cultural Conflicts Cultural Conflicts Applying the Bill

Church and StateChurch and StateDue ProcessDue Process

Culture and Civil LibertiesCulture and Civil Liberties

Rights in ConflictRights in Conflict

Cultural ConflictsCultural Conflicts

Applying the Bill of Rights to the Applying the Bill of Rights to the StatesStates

Rights in Conflict

Examples:• Right to a fair trial vs. freedom of the

press (Sam Sheppard case)• US Government’s obligation to “provide

for the common defense” vs. freedom of the press (“Pentagon Papers case”)

• Freedom of speech vs. preservation of public order (Carl Kunz case)

Rights in Conflict

Acts of the U.S. Congress restricting civil liberties during wartime:

• Sedition Act of 1798• Espionage and Sedition Acts 1917‒1918• Smith Act 1940• Internal Security Act 1950

Culture Conflicts

Examples:• Religious displays on public property• Is bilingual education constitutionally

required?• May private associations make their own

rules concerning the right to “associate freely?”

• Balancing community sensitivities vs. personal self-expression


• Due process of lawDue process of law

• Equal protection of the lawEqual protection of the law

• Selective incorporationSelective incorporation

Copyright © 2013 CengageCopyright © 2013 Cengage


Second Amendment examples:Second Amendment examples:

• District of Columbia v. HellerDistrict of Columbia v. Heller (2008)(2008)

• McDonald v. Chicago (2010)McDonald v. Chicago (2010)


Interpreting and Applying the Interpreting and Applying the First AmendmentFirst Amendment

Freedom of Freedom of expressionexpression

Freedom of religionFreedom of religion Prior restraintPrior restraint Clear-and-present Clear-and-present

danger testdanger test

Women picketed in front of Women picketed in front of the White House, urging the White House, urging President Warren Harding President Warren Harding to release political radicals to release political radicals arrested during his arrested during his administration.administration.


Bettmann/CORBIS

What is Speech?What is Speech?

Forms of speech not Forms of speech not automatically given automatically given constitutional constitutional protection:protection:

1.1. LibelLibel2.2. ObscenityObscenity3.3. Symbolic SpeechSymbolic Speech4.4. False AdvertisingFalse Advertising

A Ku Klux Klan member uses his constitutional right to free speech to utter “white power” chants in Skokie, Illinois.

Tim Boyle/Newsmakers/Getty Images

““Symbolic speechSymbolic speech””: when : when young men burned their young men burned their draft cards during the draft cards during the 1960s to protest the 1960s to protest the Vietnam War, the Vietnam War, the Supreme Court ruled that Supreme Court ruled that it was an illegal act for it was an illegal act for which they could be which they could be punished.punished.

Bettmann/CORBIS

Commercial and Commercial and Youthful SpeechYouthful Speech

CorporationsCorporations Interest GroupsInterest Groups YouthYouth

Public schools cannot organize Public schools cannot organize prayers, but private ones can.prayers, but private ones can.

11stst Amendment Amendment Congress shall make no law respecting an establishment of Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a peaceably to assemble, and to petition the government for a redress of grievances.redress of grievances.

The First Amendment guarantees freedoms concerning religion, The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress expression, assembly, and the right to petition. It forbids Congress from both promoting one religion over others and also restricting from both promoting one religion over others and also restricting an individual’s religious practices. It guarantees freedom of an individual’s religious practices. It guarantees freedom of expression by prohibiting Congress from restricting the press or the expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. It also guarantees the right of rights of individuals to speak freely. It also guarantees the right of citizens to assemble peaceably and to petition their government. citizens to assemble peaceably and to petition their government.

– – Cornell Cornell

Church and StateChurch and State The Free Exercise ClauseThe Free Exercise Clause: Congress shall make no : Congress shall make no

law prohibiting the law prohibiting the ““free exercisefree exercise”” of religion. of religion. Congress can’t prohibit Catholics from celebrating Congress can’t prohibit Catholics from celebrating

Mass or Jews from holding a bar mitzvah.Mass or Jews from holding a bar mitzvah. The 1The 1stst Amendment has been applied to states via Amendment has been applied to states via

the due process clause of the 14the due process clause of the 14thth Amendment, Amendment, meaning state governments cannot pass such laws.meaning state governments cannot pass such laws.

Courts have treated religion like free speech: you can Courts have treated religion like free speech: you can say or do what you want as long as it does not cause say or do what you want as long as it does not cause serious harm to others.serious harm to others.

Church and StateChurch and State

Establishment ClauseEstablishment Clause: Congress shall make no law : Congress shall make no law “respecting an establishment of religion”.“respecting an establishment of religion”.

The phrase “Church and State” is not in the Bill of The phrase “Church and State” is not in the Bill of Rights nor in the debates in the First Congress that Rights nor in the debates in the First Congress that drafted the Bill of Rights. drafted the Bill of Rights.

The phrase was written by Thomas Jefferson who The phrase was written by Thomas Jefferson who was opposed to having the Church of England as the was opposed to having the Church of England as the established church of his native Virginia.established church of his native Virginia.

Church and StateChurch and State

Wall of Separation TheoryWall of Separation Theory: Court : Court ruling that government cannot be ruling that government cannot be involved with religion.involved with religion.

Read PG 115…Why was Read PG 115…Why was reimbursement allowed for reimbursement allowed for transportation to Catholic schools?transportation to Catholic schools?

How We Compare: Church and State

The American government cannot pay for or endorse any church. By contrast, The American government cannot pay for or endorse any church. By contrast, the national governments in England, Greece, Germany, Norway, and Sweden the national governments in England, Greece, Germany, Norway, and Sweden can. Moreover, until recently there were state-supported churches in France, can. Moreover, until recently there were state-supported churches in France, Italy, and Spain. Despite the absence of any governmental support for Italy, and Spain. Despite the absence of any governmental support for churches in this country, attendance in churches and synagogues is very highchurches in this country, attendance in churches and synagogues is very high—by some estimates, as much as 40 percent of our population goes to these —by some estimates, as much as 40 percent of our population goes to these institutions every week. By contrast, in countries that have or have had state-institutions every week. By contrast, in countries that have or have had state-supported churches, church attendance is rare. Only 4 percent of the English supported churches, church attendance is rare. Only 4 percent of the English and 5 percent of the French go to church at least once a week.and 5 percent of the French go to church at least once a week.

How would you explain high church attendance in a country where churches How would you explain high church attendance in a country where churches lack government backing and low attendance where they have that backing?lack government backing and low attendance where they have that backing?

Principles of Due ProcessPrinciples of Due Process That protection can be provided in at least two ways. One is to let That protection can be provided in at least two ways. One is to let

the police introduce in court evidence relevant to the guilt or the police introduce in court evidence relevant to the guilt or innocence of a person, no matter how it was obtained, and then, innocence of a person, no matter how it was obtained, and then, after the case is settled, punish the police officer (or his or her after the case is settled, punish the police officer (or his or her superiors) if the evidence was gathered improperly (for example, superiors) if the evidence was gathered improperly (for example, by an unreasonable search).by an unreasonable search).

The other way is to exclude improperly gathered evidence from The other way is to exclude improperly gathered evidence from the trial in the first place, even if it is relevant to determining the the trial in the first place, even if it is relevant to determining the guilt or innocence of the accused.guilt or innocence of the accused.

US takes the second position.US takes the second position.

Crime and Due ProcessCrime and Due ProcessThe Exclusionary Rule- Improperly gathered evidence may not be Improperly gathered evidence may not be used in a trial.used in a trial.Used to implement two provisions of The Bill of Rights the right to Used to implement two provisions of The Bill of Rights the right to be free from unreasonable searches and seizures (4be free from unreasonable searches and seizures (4 thth Amendment) Amendment) and the right not to be compelled to give evidence against oneself and the right not to be compelled to give evidence against oneself (5(5thth Amendment). Amendment).1949- 11949- 1stst time Supreme Court considered applying the time Supreme Court considered applying the exclusionary rule. That year the court decided that the 4exclusionary rule. That year the court decided that the 4 thth Amendment prohibited police from carrying out unreasonable Amendment prohibited police from carrying out unreasonable searches and obtaining improper confessions. searches and obtaining improper confessions.

Crime and Due ProcessCrime and Due Process

Mapp v. OhioMapp v. OhioSummarize the relevant facts.Summarize the relevant facts.

What was the courts primary reason for siding with Mapp?What was the courts primary reason for siding with Mapp?What is the significance of Mapp v. Ohio?What is the significance of Mapp v. Ohio?

Hint: It’s in the book!Hint: It’s in the book!

Crime and Due ProcessCrime and Due Process

Search and SeizureSearch and Seizure When can the police search you without it being When can the police search you without it being

unreasonable?unreasonable?• Search Warrant-judge’s order authorizing a Search Warrant-judge’s order authorizing a

search.search.

• ArrestedArrested.. Giving permission for a searchGiving permission for a search ““In plain viewIn plain view”” and and ““under immediate controlunder immediate control””. .

Example: Drugs or gun on the car seat.Example: Drugs or gun on the car seat.

Miranda RuleMiranda Rule

You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?

Inside a cell at the terrorist prison in Guantanamo, Inside a cell at the terrorist prison in Guantanamo, where Muslim inmates receive a copy of the Koran,where Muslim inmates receive a copy of the Koran,a chess set, and an arrow pointing toward Mecca. a chess set, and an arrow pointing toward Mecca. p. 119p. 119

JOE SKIPPER/ Reuters/ Corbis


MEMORANDUMMEMORANDUM

To: To: Rebecca Saikia, Supreme Court JusticeRebecca Saikia, Supreme Court Justice

From: From: David Wilson, law clerkDavid Wilson, law clerk

Subject: Subject: Patriot Act and librariesPatriot Act and libraries

The Patriot Act allows the FBI to seek the records of The Patriot Act allows the FBI to seek the records of possible terrorists from banks, businesses, and libraries. possible terrorists from banks, businesses, and libraries. Many libraries claim this will harm the constitutional rights Many libraries claim this will harm the constitutional rights of Americans. You support these rights, but are also aware of Americans. You support these rights, but are also aware of the need to protect national security.of the need to protect national security.


WHAT WOULD YOU DO?WHAT WOULD YOU DO?

Arguments supporting the Patriot Act:Arguments supporting the Patriot Act:

1. The Patriot Act does not target individuals who have not 1. The Patriot Act does not target individuals who have not violated a criminal law and who do not threaten human life.violated a criminal law and who do not threaten human life.

2. For the FBI to collect information about borrowers, it must 2. For the FBI to collect information about borrowers, it must first obtain permission from a federal judge.first obtain permission from a federal judge.

3. Terrorists may use libraries to study and plan activities that 3. Terrorists may use libraries to study and plan activities that threaten national security.threaten national security.


Arguments against the Patriot Act:Arguments against the Patriot Act:

1. Freedom of speech and expression are fundamental 1. Freedom of speech and expression are fundamental constitutional guarantees that should not be infringed.constitutional guarantees that should not be infringed.

2. The law might harm groups engaged in peaceful protests.2. The law might harm groups engaged in peaceful protests.

3. The law allows the government to delay notifying people 3. The law allows the government to delay notifying people that their borrowing habits are being investigated.that their borrowing habits are being investigated.



Your decision:Your decision:

Uphold this provision ?Uphold this provision ?

Overturn this provision ?Overturn this provision ?



Documents

Church and State Due Process. Culture and Civil Liberties Rights in Conflict Rights in Conflict Cultural Conflicts Cultural Conflicts Applying the Bill