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.Ninth Amendment  Tenth Amendment reserves rights to states and people.Tenth Amendment

Incorporation  Until 20th century, Bill of Rights did not apply to states.  14th Amendment’s due process clause raises questions.due process clause  Begins to apply after Gitlow v. New York (1925).Gitlow v. New York  Case is first step in incorporation doctrine.incorporation doctrine.  Not all guarantees have been incorporated.  Selective incorporation of fundamental freedoms.Selective incorporation fundamental freedoms

First Amendment: Establishment  Prevents government from establishing religion.  Have been years of debate over scope of clause.  Lemon test (1971) sets clearest boundaries.Lemon test  Secular, no religious effect, no entanglement.  Applied most frequently to religious schools.  Aid used to be books only; has been broadened.  Also limits other actions, e.g. prison ministries.

First Amendment: Free Exercise  Government cannot interfere with religious practice.  Is not absolute; necessity can outweigh freedom.  Still, laws must be neutral toward religion.

Free Speech and Press  First Amendment meant to guard against prior restraint.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 1919.clear and present danger test  Modified in 1969 to be direct incitement test.direct incitement test

Protected Speech  Court will rarely tolerate prior restraint.  Court also protects symbolic speech.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 jurisdiction.

First Amendment: Assembly  Assembly and petition have been controversial.  Tied closely to speech and press.  If speech crosses 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).D.C. v. Heller

Fourth Amendment  First of the due process rights.due process rights  Protects against unfair searches and seizures.  Probable cause required to issue a warrant.  May search person, plain view, anything in control.  No warrant needed with reasonable suspicion.  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.

Exclusionary Rule  Derived from Fourth and Fifth Amendments.  Bars use of illegally seized evidence at trial.  Established largely in Mapp v. Ohio (1961).Mapp v. Ohio  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.  Trial should be speedy and of peers.  Jury selection has been subject of much debate.  In past, African Americans and women were excluded.

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.  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.  Extended to abortion in Roe v. Wade (1973).  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.habeas corpus  Allow for use of techniques such as water-boarding.

Figure 5.1- Methods of Execution  Back

Table 5.1- Selective Incorporation  Back

Ninth Amendment When the Bill of Rights was first proposed, the major argument against it was that by specifying some rights that the government was not free to violate, there would be the implication that the government was free to violate any rights not specifically protected in the Constitution. The Ninth Amendment was written to address this concern. Back

Tenth Amendment The Federal Government only has the right to enforce those laws in the Constitution. If it is not stated in the Constitution then that enforcement will go to the States or the People. Back

Due Process Clause The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. The Supreme Court of the United States interprets the Clauses as providing four protections: 1. that in court cases the law be fair and not arbitary where one may get a different degree of guilt; 2. no person be deprived of life, liberty or due process of the law; 3. An adequate amount of time is given to prepare for losing your rite; 4. The process is fixed and right and not given to endless decision making by the courts. As a side, Louisiana does not follow this Clause, they follow a Napoleonic Code which says a Judge can make his own interpretation of a law. Back

Gitlow v. New York The case of Gitlow v. New York deals with a man named Benjamin Gitlow. This man was considered to be a Socialist and a potential anarchist. The United States government viewed this man as a threat because he believed in a type of government that the United States did not practice. Benjamin Gitlow was charged with violating “Anti Anarchist” laws because he spread magazines and newspapers which degraded the United States government and preached anti- government views Back

Incorporation Doctrine. The interpretation that demands that because of the Fourteenth Amendment that all state and local governments also guarantee those rights of due process Back

Selective Incorporation That judicial interpretation that says not ALL of the protections found in the Bill of Rights are applicable to the interpretation of the Fourteenth Amendment. When judges are chosen for the Supreme Court, this is one of the items that they have to expound on. The Senate chooses the candidate and how they interpret the Amendment (conservative or liberal or moderate) will determine how good a candidate they are. Back

Fundamental Freedoms Those rights that the Court says to be essential to maintaining order, liberty and justice Back

Lemon Test A practice or policy is constitution if it: 1. has a secular purpose; 2. neither advances or inhibits religion; and 3. Does not foster the government to be involved with any sort of religion. Back

Prior Restraint The doctrine that prohibits the government from stopping speech or publication before the fact (act) actually occurs. Back

Clear and Present Danger Test From Schenck v. U.S., the Court has to decide if the “words used” could create a clear and present danger that would bring ill wind to the USA especially if the US wishes to prevent those ills In the 1920s there were a lot of anarchists around that were pushing for communist or socialist type of governments. Many times these organizations would use unions as their armies (by striking) to get the government to change positions. Back

Direct Incitement Test From Brandenburg v. Ohio, a person can advocate an illegal action as a protection of the First Amendment, UNLESS it causes lawlessness, like a riot or burning down of the city. This is keep the government from playing (Big Brother from 1984) Back

Symbolic Speech Symbols, Signs, or other methods of expression that can be considered methods of free speech The rainbow flag is an example of this freedom, in the ‘70s displaying this flag would get you arrested or discriminated against. Back

D.C. v. Heller The right to own a firearm is a Constitutional law and DC could not enforce the local law stating that having a firearm would be an arrestable offense DC put this law in effect to end a gang war that was going on. At that time it was not unusual to have almost a 1000 people die from bullets in any given year. Imagine the pressure placed upon the local law by the US Government…how does it look to the rest of the world when your capitol has so many gun deaths in a year. Back

Due Process Rights A claim that the government cannot undertake a particular act vis-à-vis an individual or set of individuals without according them an opportunity to be heard. Back

Mapp v. Ohio Evidence found when without a search warrant will not be allowed accessible in the court of law. Police were looking for a person from a bench warrant (sent by the judge to find someone) and went into the home and found some material that called for a change in government. When they found the people, they charged them under the Clear and Present Danger Act….oops they didn’t have a search warrant. Back

Writ Habeas Corpus Prisoners have the right to know what they are being charged. The Judge can also determine if there is enough evidence to hold the prisoner in jail, if not, then the prisoner is set free. back