1. AMERICAN GOVERNMENT POWER & PURPOSE
Chapter 4
Civil Liberties
Theodore J. Lowi
Benjamin Ginsberg
Kenneth A. Shepsle
Stephen Ansolabhere

2. Civil Liberties and Civil Rights Are Not the Same
Civil liberties are protections of citizens from improper governmental action—what government must not do.
Civil rights are the legal or moral claims that citizens are entitled to make on the government—how government must treat you.
Discussion:
Students are frequently confused by the distinction between these two terms so it is important to point out to them that they are different. Another way of defining the difference is that civil liberties refers to the protections in the Bill of Rights while civil rights refers to issues relating to equal protection and equal access to government.

3. Basis of Civil Liberties: The Bill of Rights
Remember that to get the Constitution ratified, Federalists had pledged to amend the Constitution by adding a Bill of Rights.
Adopted by late 1791, the ten amendments that now make up the Bill of Rights include both substantive and procedural restraints on governmental power.
Discussion:
As the text points out, the Bill of Rights is a series of “thou shalt nots.” Some of these are substantive restraints—limitations on what the government can do. For instance, the Third Amendment prohibits the government from quartering soldiers in people’s homes. Other provisions are procedural restraint —limitations on how government can do certain things. For instance, government may imprison a person for committing a crime but not until the person is provided with a wide variety of procedural protections (trial by jury, no double jeopardy, speedy trial, etc.).

4. Ninth Amendment: Bill of Rights Not Exhaustive
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
This addressed the Federalist concern that a list of rights would suggest that the list was exhaustive and that there were no other liberties people enjoyed.

5. Clicker Question
Delegates to the Constitutional Convention did not include a Bill of Rights in the Constitution because
the Constitution was already too long.
the delegates believed that the federal government already had too much power.
the delegates believed that the federal government could not abuse power not already given to it.
the delegates did not believe that the people should have these liberties.
Answer: C

6. Clicker Question
Delegates to the Constitutional Convention did not include a Bill of Rights in the Constitution because
the Constitution was already too long.
the delegates believed that the federal government already had too much power.
the delegates believed that the federal government could not abuse power not already given to it.
the delegates did not believe that the people should have these liberties.
Answer: C

7. Dual Citizenship
The First Amendment says, “Congress shall make no law respecting an establishment of religion . . .”
This is the only amendment that addresses itself to Congress only.
For instance, the Fifth Amendment says simply that “no person” shall be denied due process of law.

8. Clicker Question
Does the Bill of Rights restrain only the federal government or does it also restrain state governments?
The Bill of Rights restrains only the federal government.
State governments are also restrained.
Discussion:
This clicker question can be used to start a discussion on the question of dual citizenship.

9. Dual Citizenship and Barron v. Baltimore (1833)
The city of Baltimore had been disposing of sand and gravel near a wharf owned by John Barron, rendering the wharf commercially useless.
Barron sued the city of Baltimore on the Fifth Amendment grounds that he had been deprived of property without compensation.
The Supreme Court ruled against Barron, stating that “the Fifth Amendment must be understood as restraining the power of the General Government, not as applicable to the States.”

10. Dual Citizenship and Barron v. Baltimore (1833)
The Court confirmed the idea of “dual citizenship”—that each American is a citizen of the federal government and, separately, a citizen of one of the states.
Dual citizenship means that citizens have liberties that protect them against action by the federal government and a separate set of liberties that protect them against action by state governments.
Example:
The “full faith and credit clause” requires that each state honor the “public Acts, Records, and Proceedings” that take place in any other state. This has traditionally meant that if two people are married in, say, New York, all the other states must recognize that marriage and provide the couple with all the same benefits and privileges the couple would receive had they been married in any of those states. But this has led to controversy, as some states have legalized gay marriage and others have not. The State of New York, for instance, legalized gay marriage in But do the other states have to recognize a gay couple married in New York as legally married in those states? In enacting the 1996 Defense of Marriage Act, Congress said no. In 2013, in United States v. Windsor, the Court struck down the provision of DOMA related to the federal recognition of gay marriage and therefore ruled that the federal government must recognize same-sex marriages authorized by states like New York, but the Court was silent on the question of whether other states must recognize those marriages as valid.

11. Fourteenth Amendment
The Fourteenth Amendment seems to apply the Bill of Rights to the states:
All persons born or naturalized in the United States are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.
Discussion:
The first part of the Fourteenth Amendment seems to confirm the concept of dual citizenship. But the second clause clearly suggests the protections provided by the Bill of Rights must now be protections against state government action as well. The first clause can be used to launch a discussion with students about how citizenship is established. One of the recent matters of controversy raised by those on the right is whether a child born in the United States to parents who are here illegally is a citizen of the United States, even though his or her parents are not. The language of the Fourteenth Amendment seems to suggest clearly these children are citizens.

12. Selective Incorporation
As early as 1873, the Court ruled that the Fourteenth Amendment did NOT apply the Bill of Rights to the states.
In 1897, the Court held that the just compensation clause of the Fifth Amendment would be applied to the states.
This began a long, slow process of “selective incorporation”—the application of the liberties in the Bill of Rights, one by one, to the states.
Discussion:
Selective incorporation is one of the most difficult concepts in the entire text for students to understand. Many scholars have argued that the Fourteenth Amendment clearly intends “total incorporation.” But to this day, the Court has not agreed. Interestingly, the first of the liberties to be selectively incorporated was the very liberty that Barron argued applied to his case against the city of Baltimore in But the Court was clear in stating that only this one provision of the Fifth Amendment was being incorporated into the Fourteenth Amendment—not all of the Bill of Rights nor even all of the protections in the Fifth Amendment.

13. Selective Incorporation
Discussion:
The first major wave of selective incorporation began with Gitlow v. New York (1925) and incorporated only the freedom of speech provision of the First Amendment—not the whole First Amendment. As late as 1937, the Court was still loath to incorporate any other rights beyond the First Amendment. In that year, in Palko v. Connecticut, the Court refused to incorporate the Fifth Amendment protection against double jeopardy into the Fourteenth Amendment. Frank Palko had been convicted of second-degree murder, but the state of Connecticut had appealed to get a new trial for first-degree murder. Palko was convicted of first-degree murder in that second trial. Because Connecticut’s state constitution had no protection against double jeopardy and because the U.S. Supreme Court refused to incorporate the Fifth Amendment’s protection against double jeopardy into the Fourteenth Amendment, Frank Palko was eventually executed for first-degree murder. The second wave of incorporation really began in the 1960s as the Court began to incorporate most of the liberties in the Bill of Rights, but still one by one.

14. Selective Incorporation: Still Selective
Some parts of the Bill of Rights are still not incorporated into the Fourteenth Amendment.
The most recent incorporated right is the Second Amendment’s right to bear arms.
In McDonald v. Chicago (2010), the Court ruled that the right to defend oneself is “fundamental to the Nation’s scheme of ordered liberty.”
Discussion:
Just two years earlier, in District of Columbia v. Heller, the Court had struck down the D.C. gun ban, clearly establishing an individual’s right to bear arms. But the Heller ruling applied to the actions of the District of Columbia, not to a state. This left open the question of whether this right would be applied to state and local statutes banning guns. In McDonald v. Chicago, Justice Samuel Alito, writing for the majority, settled this question by using the test referenced above—deciding whether the right to bear arms is a liberty that is fundamental to the concept of ordered liberty. The Court, by a 5–4 majority, said it is. It is a useful activity to have students listen to the opinion announcement by Justice Alito at the oyez.org website, as Justice Alito provides a somewhat detailed history of selective incorporation. They can do that by using this URL: and then clicking on the link for “Opinion Announcement.” There they can listen to Justice Alito’s announcement of the majority opinion and they can hear Justice Stephen Breyer’s dissent. You can ask students to write a short paper on which of these views of the case (Alito’s or Breyer’s) is the better argument and why.

15. The Bill of Rights Today: Freedom of Religion
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The first clause is the Establishment Clause. This is sometimes referred to as
the separation of church and state.
The second clause is the Free Exercise Clause. This protects a citizen’s right to believe and practice whatever religion he or she chooses.

16. The Bill of Rights Today: Freedom of Religion
The Lemon test and the Establishment Clause: Government can be involved with religion if
it has a secular purpose.
its effect is neither to advance nor inhibit religion.
it does not create excessive entanglement.
Discussion: Does prayer time in a public school violate the Lemon test?

17. The Bill of Rights Today: Freedom of Speech
“Congress shall make no law…abridging the freedom of speech.”
The Westboro Baptist Church (Topeka, Kansas) pickets the funerals of American soldiers killed in action with signs reading “Thank God for Dead Soldiers” because they believe these deaths are punishment from God for America’s tolerance of sin.
Does the Constitution protect this speech?
Discussion:
The Court ruled 8–1 that this was protected speech. Writing for the Court, Chief Justice John Roberts said, “As a nation we have chosen to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

18. The Bill of Rights Today: Freedom of Speech
Freedom of speech is not absolute.
Clear and present danger test—does the speech present a “clear and present danger” to society?
Libel and slander are not protected.
Morse v. Frederick (2007)—A student holds up a “Bong Hits 4 Jesus” sign as the Olympic torch goes by.
The Court rules that this is not protected speech.
Discussion:
Morse v. Frederick is always a favorite case for discussion with students. Jon Stewart discusses Morse v. Frederick, among other cases from 2007, in a clip that can be found here:
On a more serious note, the 5–4 opinion of the Court can be heard here:

19. The Bill of Rights Today: Freedom of Speech
In general, one’s speech rights go only as far as not to infringe on someone else’s rights.
Speech that directly incites damaging conduct is labeled “fighting words” and may be regulated.
But what constitutes “fighting words” is not fully settled.
Political speech is the most protected kind of speech.
Discussion:
Texas v. Johnson (1984) is a good example of the protection of political speech. In 1984, a protestor outside the Republican National Convention, which was being held in Dallas, burned an American flag. Texas had a statute that prohibited desecration of a venerated object, including the American flag. In a 5–4 ruling, the Court struck down the Texas statute on the grounds that flag burning is expressive conduct protected by the First Amendment.

20. Speech Plus
Speech plus is speech accompanied by activities such as sit-ins, picketing, and demonstrations.
Protection of this speech is conditional and is acceptable only if balanced by considerations of political order.

21. Clicker Question
Is it constitutional for your school to ban the use of racial epithets in the classroom?
Yes No
Answer: Probably not.
The Court has ruled that ordinances that ban specific references do not pass constitutional muster and anything that applied to all groups would probably be too broadly written to pass such muster. It is useful to discuss the issue, however, as strong arguments can be made on either side. It could be argued that allowing the use of racial epithets can create a dangerous and even violent situation or that it could make it difficult for students to learn if there is a culture of intimidation. On the other hand, most “hate speech” ordinances are, of necessity, drawn in broad terms that the courts generally see as too restrictive.

22. The Bill of Rights Today: Freedom of the Press
The First Amendment also provides for freedom of the press.
The Court has ruled that this means, among other things, no prior restraint—an effort by a government agency to block the publication of material it deems harmful or libelous.
Discussion:
The Court ruled prior restraint is a violation of the freedom of the press in the 1931 case Near v. Minnesota. Jay Near had been restrained from publishing a variety of hateful, racist, and anti-semitic pieces by a Minnesota statute. The Court ruled for Near, arguing that Near can be sued for libel and slander but he cannot be restrained ahead of time from printing his views. The case also incorporated the freedom of the press into the Fourteenth Amendment and applied it to the states. The story of the case can be found in a terrific book that can be used as an extra reading for students called Minnesota Rag.

23. The Bill of Rights Today: Search and Seizure
The Fourth Amendment offers protection against unreasonable searches and seizures.
Exclusionary Rule: Developed in the 1961 case Mapp v. Ohio, it is the ability of the courts to exclude evidence obtained in violation of the Fourth Amendment.
Discussion:
The exclusionary rule is often well known to students because it is prominently featured in television legal dramas like the CSI and Law and Order series. Students frequently enjoy discussions applying the exclusionary rule to the kinds of searches police are able to conduct with new methods and technologies. For instance, can police use evidence obtained by use of a search dog in a narcotics roadblock (the Court has said no because there is no public-safety reason for the search), or can police use evidence obtained using thermal-imaging devices from a distance without a warrant (the Court has said no to this also)?

24. The Bill of Rights Today: Rights of the Accused
Various amendments and rulings guarantee the rights of the criminally accused.
The Fifth Amendment provides protection against self-incrimination and double jeopardy.
Miranda rights
Discussion:
Virtually all Americans are familiar with Miranda rights. The right to know one’s rights stemmed from Miranda v. Arizona. Ernesto Miranda was arrested for the kidnapping and rape of an 18-year-old woman. The woman had identified Miranda in a lineup and Miranda had confessed after two hours of questioning; he also signed a statement that his confession had been obtained voluntarily. Nevertheless, the Court ruled that the confession was inadmissible because Miranda had not been made aware of his rights, including his right to an attorney.

25. The Bill of Rights Today: Rights of the Accused
The Sixth Amendment provides for:
a speedy and public trial
an impartial jury
the right to confront one’s accusers
the right to counsel
Gideon v. Wainwright (1961) incorporates the right to counsel into the Fourteenth Amendment.
Book/Movie Recommendation:
Clarence Earl Gideon was convicted in a Florida court of breaking and entering and petty larceny. He was sentenced to five years in jail and personally wrote an appeal to the Supreme Court on the grounds that he had not been given an attorney even though he could not afford one himself and even though he had asked the judge to appoint an attorney to represent him. The story of Gideon is told in a book, Gideon’s Trumpet, by Anthony Lewis, and in a movie of the same name. The book and movie are useful for classes, not just for discussing the right to counsel but also because they provide a good depiction of how the Court operates and a good explanation of how the process of selective incorporation works.

26. The Bill of Rights Today: Rights of the Accused
The Eighth Amendment prohibits “excessive bail,” “excessive fines,” and “cruel and unusual punishment.”
The ban on cruel and unusual punishment has served as a lightning rod for debate over the death penalty and, more recently, over torture.
Discussion:
A recent piece on 60 Minutes focusing on Justice Antonin Scalia featured Lesley Stahl pressing Scalia on the question of whether the prohibition on cruel and unusual punishment extends to torture of terror suspects. Scalia argued that it does not. You can see the segment here:
This clip can be used to launch a discussion on torture and the Eighth Amendment, or you can have students write a short response on whether they agree with Scalia’s argument.

27. The Bill of Rights Today: Right to Privacy
The right to privacy is not expressly stated in the Bill of Rights.
Connecticut had a statute forbidding the use of contraceptives.
In Griswold v. Connecticut (1965), the Court invalidated the law based on a “zone of privacy” in the Third, Fourth, and Fifth Amendments.
Roe v. Wade (1973) cemented the right to privacy.
Discussion:
Others have argued that the right to privacy can be found in the Ninth Amendment, which states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In other words, the right to privacy is implied and it is not prohibited by any other part of the Constitution. Griswold v. Connecticut also incorporated the right to privacy into the Fourteenth Amendment and applied it to the states.

28. Civil Liberties, History, and Collective Action
As we have seen, the application of the Bill of Rights to specific cases yields rulings from the Court that become fixed rules, at least for long periods of time.
This is a good example of the History Principle at work—how we got here matters.
It is also a good example of the Collective Action Principle at work, as civil liberties are limitations on collective action.

29. Clicker Question: Review
The process of selective incorporation
is complete. The entire Bill of Rights has been applied to the states.
was rejected by the Supreme Court in favor of total incorporation.
has applied almost all of the liberties in the Bill of Rights to the states over time.
was employed by the Supreme Court in Barron v. Baltimore.
Answer: C

30. Clicker Question: Review
The process of selective incorporation
is complete. The entire Bill of Rights has been applied to the states.
was rejected by the Supreme Court in favor of total incorporation.
has applied almost all of the liberties in the Bill of Rights to the states over time.
was employed by the Supreme Court in Barron v. Baltimore.
Answer: C

31. The Right to Die
The right to die is a relatively unexplored area for the Court.
In 2006, in Gonzalez v. Oregon, the Court upheld an Oregon law that allowed doctors to assist terminally ill patients seeking to end their lives.
On what constitutional grounds can the Court’s decision be supported?
Free Response:
This issue can be used to assess whether students have absorbed the key concepts on civil liberties. Students can hear the arguments in the case and the opinion of the Court here: