The Struggle For Democracy Ch. 15 – Freedom: The Struggle for Civil Liberties

The Struggle For Democracy

Ch. 15 – Freedom: The Struggle for Civil Liberties

Critical Thinking Questions

What—if anything—should be done about so-called hate speech?

Where should the line be drawn between freedom and security? For instance, should we turn to racial profiling? Random searches?

Civil Liberties

Definition: constitutional provisions, laws and practices that protect individuals from governmental interference The Framers were especially concerned in

establishing as free a society as possible

Civil Liberties

Civil liberties = negative freedoms; they are protecting us from the government Primarily embodied in the Bill of Rights Guarantees of government equality

Do not forget: the law—and that includes civil liberties—is what the judges say it is!

Civil Liberties

Or as some witty person said: “The law is what the judge had for lunch.”

Civil Libertiesin the Constitution Original constitution specifically protected

only a few liberties from the national government and almost none from the states

Framers signaled out a few freedoms too crucial to be left unmentioned Prohibitions against suspending the writ of

habeas corpus, passing ex post facto laws and bills of attainder

Civil Libertiesin the Constitution Anti-Federalists objected to the

absence of a more specific listing This led to the Bill of Rights (ratification?)

Made the Constitution more democratic by Enhancing political liberty Guaranteeing a context of free political expression Enhancing popular sovereignty

Civil Libertiesin the Constitution Many of the freedoms we enjoy today are not

mentioned in the Constitution Many of our rights and liberties were

established by government officials, judges, political leaders, and groups

Some of our rights have evolved As the culture has changed Through partisan and ideological competition

Rights & Libertiesin the 19th Century Most common liberty protected was

property rights (e.g., government cannot impair the obligation of contracts)

Property rights in the Marshall Court (1801-35) Bill of Rights did not apply to the states Barron v. Baltimore (1833)

Rights & Libertiesin the 19th Century Property Rights

Taney Court (1836-64) Favored property used in ways that encouraged

economic growth versus mere enjoyment Property rights and humans

Dred Scott v. Sanford (1857)

Rights & Libertiesin the 19th Century Property rights after the Civil War

14th Amendment Designed to guarantee citizenship and rights to

newly freed slaves Due process clause says that no state may

“deprive a person of life, liberty, or property, without due process of law”

Equal protection clause

Rights & Libertiesin the 19th Century Property rights

They were slowly expanded, refined, and changed during the 19th century to make them consistent with an emerging industrial society

Very little attention paid to The judicial protection of civil liberties Progress in the rights of blacks and women

20th Century Changes

New approaches to property rights, civil rights and political liberties because of Structural transformations in the economy and in

the culture Efforts of political groups and social movements Actions of government officials


Nationalization of the Bill of Rights Remember that the Bill of Rights did not originally

apply to the states. (What is the logical conclusion of this?)

The Supreme Court gradually applied the Bill of Rights to the states through a process called selective incorporation; that is, the process by which the Bill of Rights has been found to apply to the states and the federal government


Types of incorporation None: the states will be bound only by what is

dictated in the 14th Amendment’s due process clause

Selective: some portions of the Bill of Rights are made part of the due process clause

Total: the protections in the Bill of Rights are so fundamental that all of them should apply to the states via the due process clause


U.S. v. Carolene Products Company, Footnote Four, and standards for the courts Suspect scrutiny: the concept that actions by

elected officials violate constitutional rights Contradict specific prohibitions in the Constitution,

including those in the Bill of Rights Restrict the democratic process and Discriminate against racial, ethnic, or religious

minorities


Due Process versus Equal Protection Concepts can overlap Court will use equal protection clause (States

cannot set up illegal categories to justify treating people unfairly) if A law singles out and classifies groups of people for

different treatment Equal protection does not mean equal

treatment


Due Process versus Equal Protection (con’t) Concepts can overlap

Court will use due process clause if the law applies across various group lines such as race or gender and

Law deprives all of liberty


Origins of Equal Protection – Race 14th Amendment (1868)

Meant to stop states from discriminating against newly freed slaves

Courts for several generations ruled this to include only state action, and even weakened that aspect of it


Classifications Under Equal Protection Strict scrutiny

When based on race or national origin “Must be necessary to serve a compelling state

interest to be constitutional under the Equal Protection Clause”


Classifications Under Equal Protection (con’t) Middle level scrutiny

Based on gender and illegitimacy “Law must be substantially related to important

governmental interests to be constitutional under Equal Protection Clause”


Classifications Under Equal Protection (con’t) Rational basis

Used for social and economic laws, which do not classify on the basis of race, gender, or illegitimacy

“Law must be rationally related to legitimate governmental objectives to be constitutional under Equal Protection Clause”


Due Process 14th Amendment (1868): “No state shall deprive a

person of life, liberty or property without due process of law” Due process

incorporates most of the Bill of Rights Includes procedural due process, i.e., guarantees fair

procedure Includes substantive due process, i.e., bars arbitrary laws

no matter how fair the procedure


Speech Gitlow v. NY (1925): state is bound by the First

Amendment More speech is covered than not Still some limitations (e.g., fighting words) Major exception? Concern for internal security


Speech (con’t) Hallmark of a democratic society Where does the government draw the line

between A person’s right to speak? The rights of others to speak or to not hear speech

they find offensive?


Speech: two approaches Meiklejohn

Political speech must be absolutely protected = democracy

Private speech can be restricted to protect others’ interests

Holmes: Democracy requires a “free marketplace of ideas” in

which any view can be expressed Limits on speech only when the state is endangered


Speech: laws infringing on public speech are constitutional if Limiting the use of fighting words Law is not overly broad nor under-inclusive State can show that the dangers of the speech

were such that it was necessary to override free speech

Actions may also be protected if they have symbolic value


Obscenity Not protected by the First Amendment Difficulty recognizing it Different standards

1957: “average person. . community standards. . dominant theme. appeals to prurient interest

1966: material utterly without redeeming social value

LAPS test


Speech: Slander: speech that is untruthful, malicious or

damaging to a person’s reputation Libel: published material that damages a person’s

good name in an untruthful and malicious way Private individuals: a higher status of protection Public officials: must show that the speech or

printed material was said or printed with knowledge that it was false or with reckless disregard for the truth


Press: this freedom must be balanced against The government’s right to secrecy An individual’s right to privacy or to personal

reputation A defendant’s right to a fair trial An individual’s personal and moral sensibilities


Freedom of the Press Major expansion occurred in NY Times v.

Sullivan (1964): Protected newspapers against trivial or incidental

errors when reporting on public persons


Press Prior restraint

Only justified when the publication will directly and irreparably harm the nation or its people

Harmful publications that may not be censored may be subsequently punished


Religion First Amendment contains two sometimes

contradictory messages Prohibits Congress from making laws prohibiting the free

exercise of religion Prohibits Congress from establishing a religion

Religious actions are not absolutely protected “ceremonial deism”


Religion (con’t) Two views regarding the establishment of

religion High wall of separation (Jefferson & Madison) Government accommodation: government aid

that is indirect, available to all groups, and is religiously neutral


Religion (con’t) Lemon Test (1971): The Supreme Court ruled

that government aid to religious institutions is constitutional if the state can prove Law has a secular purpose Law’s primary purpose neither advances nor inhibits

religion Law does not foster “excessive government

entanglement” with religion


Religion (con’t) Secular regulation rule: one cannot claim a

constitutional right to an exemption from a non-religious law on free exercise grounds

Least-restrictive-means test: a state may be asked by the Court to find a less burdensome way to enforce regulations that might interfere with the rights of citizens to practice their religion


Religion (con’t) Prayer in public schools

Supreme Court outlawed mandatory, organized prayer in 1962

This means that prayer organized or endorsed by teachers or school administrators most likely would be ruled unconstitutional

Why?


Rights of the Accused 4th Amendment tries to balance the individual’s

right to privacy with the state’s right to control crime

Exclusionary rule: evidence gathered illegally cannot be used at later trials; the Court has been chipping away at this


Due process revolution: the Fourth Amendment was incorporated into the 14th Amendment in 1961, extending the exclusionary rule to the states


Rights of the accused: shift to higher regard for crime control has reshaped these rights Warren Court (1953-69): expanded due

process Burger Court (1969-86): preserved basics but

limited further growth and introduced exceptions

Rehnquist (1986-2004): reversed many due process protections


Rights of the Accused Fifth and Sixth Amendments: right to counsel,

right against self-incrimination First standards are “voluntariness” and “totality of

circumstances” Escobedo v. IL: Once police have moved from

investigation to interrogation, the suspect has a right to counsel

Miranda Warning: A suspect must be warned of his/her right to remain silent and to have an attorney present


Rights of the Accused (con’t) Warrantless searches are allowed under

certain circumstances If incriminating evidence is in plain view Incident to an arrest Consent searches Searches of fleeing suspects Stop-and-frisk


Rights of the Accused (con’t) Limiting the exclusionary rule

“Good faith” exception where police officers thought they were acting within the law

Critical Thinking Question: Why?

Capital Punishment

The United States and Japan are the only two western, democratic, post-industrial wealthy countries that still use the death penalty

120 countries have banned or not used the death penalty in the last ten years

76 countries, including China, Iran, Kuwait and Saudi Arabia, still use the death penalty

Capital Punishment

Georgia v. Furman (1972) Ruled that the death penalty was applied in a way

that was arbitrary; that is, inconsistently applied The trigger appeared to be race Over the next four years 37 states rewrote their

death penalty laws in an effort to ensure that they were constitutional

Capital Punishment

In the 1980s in response to voters’ fears about crime and violence, the Rehnquist Court wrote several rulings that expedited the death penalty Defendants had

Too many appeals Too much time to appeal Frustrated justice

Capital Punishment

More recently, the American public, elected officials, and many judges have been rethinking the death penalty

Capital Punishment

Why? Concern about the quality of legal defense of the

accused Concerns about executing the mentally retarded Exoneration through DNA testing

Capital Punishment

The Innocence Project “A national litigation and public policy organization

dedicated to exonerating wrongly convicted people through DNA testing and to reforming the criminal justice system to prevent future injustice.”

201 people spent more than 2,500 years in jail for crimes they did not commit

Capital Punishment

In 2000 Illinois Governor George Ryan Placed a moratorium on the death penalty Appointed a blue-ribbon commission to study the

death penalty in Illinois 2003: granted clemency to 167 people on death

row


Implied rights Privacy:

Griswold v. Connecticut (1965): right is not listed in the constitutions, but exists in the penumbras (What does this word mean?) of the First, Third, Fourth, Fifth & Ninth Amendments


Implied rights (con’t) Abortion

Roe v. Wade (1973): upheld a women’s right to choose an abortion free from state interference in the first trimester of pregnancy

Since the 1980s the courts have narrowed this, allowing restrictions based on age, legal status, etc.


Implied rights (con’t) Right to die:

In 1989 the Court seemed to accept that a “competent” person might have the right to refuse medical treatment

Courts have generally said that individuals cannot assist others in ending their lives

Civil Liberties and the War on Terrorism Remember that wars have always led to

some restrictions on civil liberties Civil War: suspension of the writ of habeas

corpus World War I: The Alien Act and the Sedition Act Cold War and Korea: McCarthyism Vietnam: spying on anti-war activists

Civil Liberties and the War on Terrorism USA Patriot Act authorizes

Wiretapping and electronic surveillance Access to customer, telephone and financial

records

Civil Liberties and the War on Terrorism Executive orders signed by President George

W. Bush Use of military tribunals to try non-citizens Secret detentions, interrogations and deportations Eavesdropping and data-mining on

communications of American citizens

Civil Liberties and the War on Terrorism The Supreme Court delivered a surprising

rebuke to the Bush administration regarding civil liberties Hamdi v. Rumsfield (2004) Foreigners and American citizens detained as

“enemy combatants” can contest the basis of their detentions

Civil Liberties and the War on Terrorism The Supreme Court delivered a surprising

rebuke to the Bush administration regarding civil liberties (con’t) Roberts’ Court

All detainees at Guantanamo Bay and elsewhere are entitled to protections guaranteed under the Geneva Convention

The End

Chapter 15 – Freedom: The Struggle for Civil Liberties

Documents

The Struggle For Democracy Ch. 15 – Freedom: The Struggle for Civil Liberties