Civil Liberties

Occupy Wall Street Update

★ First ten amendments to Constitution that guarantee specific rights and liberties. The Bill of Rights

★ The Bill of Rights was intended to apply to the national government...not the states. ★ Gitlow v. New York (1925) began a process of using the Fourteenth Amendment’s due process clause to require states to guarantee the rights stated in the Bill of Rights. The Incorporation Doctrine

★ Most but not all guarantees in the Bill of Rights have been made applicable to the states. The Incorporation Doctrine

First Amendment: Freedom of Religion ★ Two clauses Establishment Clause Free Exercise Clause

First Amendment: Freedom of Religion

Freedom of Religion - Establishment Clause  Congress shall make no law respecting an establishment of religion.  Prevents government from establishing a religion.  There have been years of debate over the scope of the clause.  Establishment clause does not prohibit government from supporting religion in general.

Freedom of Religion - Establishment Clause What the Supreme Court has ruled about school prayer:

★ Public schools cannot compose official prayers for students to recite. ★ Public schools cannot have a student- led pre-game prayer using the school’s public-address system. ★ Public schools cannot authorize moments of silence for meditation and voluntary prayer...but can have moments of silence for secular purposes (meditate on days’ activities). Freedom of Religion - Establishment Clause

★ Governments can give money to parents to allow them to send their children to private or religious schools. ★ Supreme Court now appears willing to support programs so long as they provide aid to religious and nonreligious schools alike, and the money goes to persons who exercise free choice over how it is used. Freedom of Religion - Establishment Clause

5 Should we take “under God” out of the Pledge of Allegiance? ABC Video - Church & State and Pledge of Allegiance on-login.jsp?logoutAction=render on-login.jsp?logoutAction=render Freedom of Religion - Establishment Clause

★ Should we take “under God” out of the Pledge of Allegiance? ★ 9th U.S. Circuit Court of Appeals: Schools do not require students to recite the pledge. “Under God” was added to separate the U.S. from the communists, not for religious purposes. Freedom of Religion - Establishment Clause

Freedom of Religion - Free Exercise Clause  Congress shall make no law...prohibiting the free exercise thereof;  Protects a person’s right to worship or believe as he or she wishes.  Does not mean that individuals can act in any way they want. In Reynolds v. United States (1878) the Supreme Court ruled that a Mormon could not practice polygamy since polygamy is prohibited by federal law.

Freedom of Religion - Free Exercise Clause  How does the proposal to build a mosque (or Muslim community center) near Ground Zero fit into the First Amendment?  n/july-dec10/groundzero_08-10.html n/july-dec10/groundzero_08-10.html

Freedom of Speech & Press  Congress shall make no law...abridging the freedom of speech.  Right to free speech is not absolute. In Schenck v. U.S. (1919) the Supreme Court said Schenck did not have the right to encourage draftees to defy the draft during WWI. This established the clear and present danger test. Modified in 1969 to be direct incitement test (“imminent lawless action”).

★ ABC Video - Funeral Protesters Push the Limits of Free Speech ★ on-login.jsp?logoutAction=render on-login.jsp?logoutAction=render Free Speech

Protected Speech & Publications  Court will rarely tolerate prior restraint - government cannot curb ideas before they are expressed.  Court also protects symbolic speech. Texas v. Johnson (1989) - burning the American flag is a form of speech protected under the First Amendment.

Protected Speech & Publications  Wikileaks 

Second Amendment  A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Protects the right to bear arms. Written to protect state militias.

Second Amendment ★ D.C. v. Heller (2008) - Second Amendment protects a personal right to keep and bear arms for lawful purposes. ★ McDonald v. Chicago (2010) - Cities and states must abide by the Second Amendment. ★ Supreme Court still has not elaborated on what kind of gun control laws would offend the Constitution.

Fourth Amendment  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause... Protects against unfair searches and seizures.

Fourth Amendment ★ Police can search someone if there is reasonable suspicion they are committing or about to commit a crime. ★ With reasonable suspicion...police may search the person, things in plain view, and anything the person could touch or reach. ★ New issues include cars, borders, and drug tests.

Fifth Amendment  No person shall be...compelled in any criminal case to be a witness against himself...nor be deprived of life, liberty, or property, without due process of law. Prevents self-incrimination. Due process is a principle that the government must respect all of the legal rights owed a person according to the law.

Fifth Amendment ★ Miranda v. Arizona (1966) is the landmark case. ★ Miranda rights inform suspects of right to silence, any statements he/she makes can be used against him/her, and right to presence of attorney.

Miranda v. Arizona (1966)

Exclusionary Rule  Derived from Fourth and Fifth Amendments.  Illegally seized evidence cannot be used at trial.  Established largely in Mapp v. Ohio (1961).  Growing number of “good faith exceptions.”

Sixth Amendment  Protects right to counsel and jury trial in criminal cases.  Gideon v. Wainwright (1963) sets precedent for counsel.

Eighth Amendment  Protects against cruel and unusual punishment.  Most common application is the death penalty.  Minors and mentally retarded are excluded from death penalty.  Growth of innocence projects and DNA evidence are causing some to question death penalty.

Right to Privacy  A right to privacy is not explicitly stated in the Constitution or Bill of Rights.  In Griswold v. Connecticut (1965) the Supreme Court ruled that a right to privacy is implied by other constitutional rights guaranteed in the First...Third... Fourth...Fifth...and Ninth Amendments.

Right to Privacy  Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  First Amendment right to practice one’s religion implies the right to exercise private...personal beliefs.  Fourth Amendment guarantee against unreasonable searches and seizures implies that we are to be secure in our homes and should not fear that police will show up at our doorsteps without cause.

Right to Privacy  Griswold v. Connecticut (1965) Case involved a challenge to the constitutionality of an 1879 Connecticut law prohibiting the dissemination of information about and/or the sale of contraceptives. Court ruled the law violated marital privacy.

Right to Privacy

Right to Privacy extended to Abortion  Roe v. Wade (1973) - Supreme Court held that the “right of privacy...is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”  Roe v. Wade ruled a Texas law unconstitutional which allowed abortions only when they were necessary to save the life of the mother.

Right to Privacy extended to Abortion

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.

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