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

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.

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

An Established Religion means that the government will create and support an official state church…often –tax dollars support that chosen church. –that church’s laws become the law of the land. –the nation’s leader usually appoint the leading clerics. –often other religions are excluded.

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.

Drafting the First Amendment They asked, “Should we establish a religion or not?” Thomas Jefferson wrote that there should be “a wall of separation between church and state.”

Arguments for Religious Freedom 1.From the Holy Roman Empire to the Church of England history indicates that when church and state are linked, all individual freedoms are in jeopardy. If government is merely an arm of God what power of government is not justified?If government is merely an arm of God what power of government is not justified? What could happen to religious minorities if government and religion were linked?What could happen to religious minorities if government and religion were linked?

Arguments for Religious Freedom 2.Many of the founding fathers believed that the spiritual purity and sanctity of religion would be ruined if it mixed with the worldly realm of politics. “If religion becomes part of the government, in Madison’s words, it results in “pride and indolence in the clergy; ignorance and servility in the laity; in both superstition, bigotry and persecution.”

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.

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  Modified in 1969 to be direct incitement test.

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

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

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.

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).

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.

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.  Grand Jury trial in capital cases

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

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.

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.

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.

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.

Figure 5.1- Methods of Execution  Back

Table 5.1- Selective Incorporation  Back