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The Struggle For Democracy

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

2 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?

3 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

4 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!

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

6 Civil Liberties in 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

7 Civil Liberties in 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

8 Civil Liberties in 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

9 Rights & Liberties in 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 ( ) Bill of Rights did not apply to the states Barron v. Baltimore (1833)

10 Rights & Liberties in the 19th Century
Property Rights Taney Court ( ) Favored property used in ways that encouraged economic growth versus mere enjoyment Property rights and humans Dred Scott v. Sanford (1857)

11 Rights & Liberties in 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

12 Rights & Liberties in 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

13 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

14 20th Century Changes 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

15 20th Century Changes 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


17 20th Century Changes 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

18 20th Century Changes 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

19 20th Century Changes 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

20 20th Century Changes 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

21 20th Century Changes 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”

22 20th Century Changes 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”

23 20th Century Changes 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”

24 20th Century Changes 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

25 20th Century Changes 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

26 20th Century Changes 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?

27 20th Century Changes Speech: two approaches Meiklejohn Holmes:
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

28 20th Century Changes 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

29 20th Century Changes 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


31 20th Century Changes 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



34 20th Century Changes 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

35 20th Century Changes 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

36 20th Century Changes 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

37 20th Century Changes 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”

38 20th Century Changes 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

39 20th Century Changes 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


41 20th Century Changes 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

42 20th Century Changes Religion (con’t) Prayer in public schools Why?
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?


44 20th Century Changes 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

45 20th Century Changes Due process revolution: the Fourth Amendment was incorporated into the 14th Amendment in 1961, extending the exclusionary rule to the states

46 20th Century Changes Rights of the accused: shift to higher regard for crime control has reshaped these rights Warren Court ( ): expanded due process Burger Court ( ): preserved basics but limited further growth and introduced exceptions Rehnquist ( ): reversed many due process protections


48 20th Century Changes 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

49 20th Century Changes 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

50 20th Century Changes 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?

51 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


53 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

54 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

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

56 Capital Punishment Why?
Concern about the quality of legal defense of the accused Concerns about executing the mentally retarded Exoneration through DNA testing

57 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

58 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

59 20th Century Changes 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

60 20th Century Changes 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.

61 20th Century Changes 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

62 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

63 Civil Liberties and the War on Terrorism
USA Patriot Act authorizes Wiretapping and electronic surveillance Access to customer, telephone and financial records

64 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


66 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

67 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

68 Chapter 15 – Freedom: The Struggle for Civil Liberties
The End Chapter 15 – Freedom: The Struggle for Civil Liberties

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