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Civil Liberties

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

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 cannot do. For instance, the third amendment prohibits the government from quartering soldiers in people’s homes. Other provisions are procedural restraints – limitations on how government must 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. 9th 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 listing of rights would suggest that the list was exhaustive and 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. Dual Citizenship
The First Amendment says, “Congress shall make no law respecting an establishment of religion …”
But this is the only amendment addressing itself only to Congress
For instance, the Fifth Amendment says simply that “no person” shall be denied due process of law

7. 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 Amendmebt grounds that he had been deprived of property without compensation
The Supreme Court ruled against Barron, stating “the Fifth Amendment must be understood as restraining the power of the General Government, not as applicable to the States”

8. Dual Citizenship and Barron v. Baltimore (1833)
The Court confirmed the idea of “dual citizenship” – that each American is a citizen of the national government and, separately, a citizen of one of the states
Dual citizenship means that citizens have liberties that protect them against national government action and a separate set of liberties that protect them against state government action

9. 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 life, liberty, or property, without due process of law

10. Selective Incorporation
As quickly 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” – one-by-one application of the liberties in the Bill of Rights to the states

11. Selective Incorporation
Discussion:
The first major wave of selective incorporation began with Gitlow v. New York (1925) and only incorporated 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, still one by one.

12. 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”

13. 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

14. 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
Does prayer time in a public school violate the Lemon test?

15. The Bill of Rights Today: Freedom of Speech
“Congress shall make no law … abridging the freedom of speech”
The Westboro Baptist Church (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?

16. 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 not protected
Morse v. Frederick (2007) – A student holds up a “Bong Hits 4 Jesus” sign as the Olympic torch goes by
Court rules 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:

17. The Bill of Rights Today: Freedom of Speech
In general, one’s speech rights go only so far as they do not infringe on someone else’s rights
Speech that directly incites damaging conduct is “fighting words” and may be regulated
But what constitutes “fighting words” is not fully settled
Political speech is the most protected kind of speech

18. The Bill of Rights Today: Freedom of the Press
The First Amendment also provides for freedom of the press
The Court has ruled 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.

19. Freedom of the Press Near V Minnesota (1931)
The Court ruled prior restraint is a violation of the freedom of the press. 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.

20. The Bill of Rights Today: Search and Seizure
The Fourth Amendment offers protection against unreasonable searches and seizure
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

21. 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 double jeopardy and self-incrimination
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.

22. 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 of breaking and entering and petty larceny in a Florida court. 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 well-told in a book, Gideon’s Trumpet, and in a movie by 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.

23. Giddeon’s Trumpet
Clarence Earl Gideon was convicted of breaking and entering and petty larceny in a Florida court. 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.

24. 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

25. 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
The Court invalidated the law based on a “zone of privacy” in the Third, Fourth, and Fifth Amendments in Griswold v. Conn. (1965)
Roe v. Wade (1973) cemented the right to privacy
Discussion:
Others have argued 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.

26. Civil Liberties and the History Principle
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

27. Statistical analysis of the relationship between the availability of the death penalty as a punishment and murder rates produces mixed evidence of the deterrent effect of the death penalty. In general, analysis of national crime data indicates that there is a negative relationship between the use of the death penalty and the murder rate over the last half-century. That is, as the number of executions goes up or down, the rate of murders nationwide moves in the opposite direction. In contrast, analysis that compares murder rates in states with the death penalty to states without it often finds that states that continue to utilize the death penalty have crime rates that are comparable to states that do not utilize the death penalty.
Evaluating the effectiveness of the death penalty deterrent presents substantial challenges for social science. The association between the use of the death penalty and crime rates over time is complicated by the close association between the number of executions and other law enforcement and penal policy changes. For example, increasing numbers of executions during the 1980s and 1990s were part of a larger trend of sending greater numbers of convicted criminals to prison for longer periods of time. Likewise, it is difficult to simply compare crime rates in death-penalty states and non-death-penalty states, since the comparisons are complicated by economic, social, and demographic differences among states which are associated with variance in state crime rates. 27

28. Over time, there is a reasonably strong negative relationship between the annual number of executions and the murder rate (-0.59 for the years 1960–2009). Murder rates in the United States began to rise dramatically around 1967 and remained substantially above rates observed in the early 1960s until the mid-1990s. The sharp rise in violent crime and its later decline correspond to periods of declining and then increasing use of the death penalty. This aggregate correlation supports claims that the use of the death penalty deters potential murders.
Source: Bureau of Justice Statistics, FBI Uniform Crime Report. 28

29. The increased use of the death penalty in the United States during the 1990s was part of a larger trend of increased utilization of the criminal justice system. The rate of incarceration in the United States grew steadily through the 1980s before jumping dramatically over the 1990s. The growth of the penal population in the United States was also coincident with other policy changes designed to reduce crime, including a dramatic increase in the number of police officers, and changes in the American criminal landscape, such as stabilization of the market for illegal drugs. It is therefore difficult to pinpoint the effects of a single causal force out of several reinforcing developments that occur at more or less the same time.
Source: Sourcebook of Criminal Justice Statistics, (accessed 10/31/11). 29

30. Across states, the relationship between the use of the death penalty and murder rates provides little evidence of a deterrent effect. In 2009, the murder rate in the 14 states that had abolished the death penalty completely was 4.5. Among the death-penalty states, the murder rate averaged 4.7. And, in the 11 states that conducted at least one execution, the murder rate averaged The 2009 data pattern is typical, which challenges the idea that criminals are deterred from committing murder by the availability of the death penalty.
SOURCE: Bureau of Justice Statistics, FBI Uniform Crime Report. 30

31. Across states, the relationship between the use of the death penalty and murder rates provides little evidence of a deterrent effect. In 2009, the murder rate in the 14 states that had abolished the death penalty completely was 4.5. Among the death-penalty states, the murder rate averaged 4.7. And, in the 11 states that conducted at least one execution, the murder rate averaged The 2009 data pattern is typical, which challenges the idea that criminals are deterred from committing murder by the availability of the death penalty.
SOURCE: Bureau of Justice Statistics, FBI Uniform Crime Report. 31

32. Across states, the relationship between the use of the death penalty and murder rates provides little evidence of a deterrent effect. In 2009, the murder rate in the 14 states that had abolished the death penalty completely was 4.5. Among the death-penalty states, the murder rate averaged 4.7. And, in the 11 states that conducted at least one execution, the murder rate averaged The 2009 data pattern is typical, which challenges the idea that criminals are deterred from committing murder by the availability of the death penalty.
SOURCE: Bureau of Justice Statistics, FBI Uniform Crime Report. 32