1. Order and Civil Liberties
Chapter 15
Order and Civil Liberties

3. The Bill of Rights
The failure to include a Bill of Rights was one of the most important obstacles to the adoption of the Constitution.
As it was originally written, the Bill of Rights imposed limits on the national government but not on the state governments.

4. Why was a Bill of Rights NOT added in Philadelphia?
Framers had created a limited government
Many states had own Bills of Rights
Fear of “forgotten rights”
Some citizen rights were included in the Constitution (ie., habeas corpus, trial by jury)

5. The Bill of Rights and the States
Even before its amendment, the Constitution set some limits on both the national and the state governments with regard to citizens’ rights in Art. I Sec. 9 &10
No Bills of Attainder (a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial) 
No Ex Post Facto (“after the fact” laws)
No impairment to the Obligations of Contracts

6. The Bill of Rights
The protection of civil liberties in the Bill of Rights has been the center of conflict between the basic values of freedom and order.

7. The Bill of Rights and the States
Before the 14th Amendment (1868), states used the ruling of Barron v. Baltimore (1833) which allowed the states to follow their own bills of rights and NOT the national government’s Bill of Rights.
After the ratification of the 14th Amendment, most of the individual protections found in the U.S.Bill of Rights now applies to the states.
This is called “incorporation of the 14th”!

8. The Incorporation of the Bill of Rights

9. “Fundamental Personal Rights”
Gitlow v. New York (1925)
Selective
Incorporation
Fourteenth Amendment
“Fundamental Personal Rights”

10. 1st Amendment Freedom of Speech (slander)
Freedom of Press (libel and prior restraint)
Freedom of Religion
Free to Assemble
Right to petition the government

11. Alien and Sedition Acts (1798)
The Sedition Act, provided for fines or imprisonments for individuals who criticized the government, Congress, or the President in speech or print.

12. Espionage and Sedition Acts (1917 and 1918)
Espionage Act, provided for fines up to $10,000 and 20 years imprisonment for those convicted of interfering with military recruitment.

13. Schenck v. the United States (1919)
“clear and present danger” test
"Fire"

14. “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that will bring about the substantive evils that Congress has a right to prevent…” -Justice Oliver Wendell Holmes

15. Freedom of Expression
The freedom of expression clause confers on individuals the right to unrestricted discussion of public affairs, as long as public order is not directly threatened!!

16. The Bill of Rights in Times of Crisis
USA Patriot Act Oct 2001
Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act

17. Copyright © Houghton Mifflin Company. All rights reserved.

18. Speech NOT Protected Clear and Present Danger Fighting Words Obscenity
Slander (spoken defamation of character)

19. Chaplinsky v. New Hampshire (1942)
“Fighting Words”
At what point would the “average” person respond to what is said to them?
What is “offensive” speech and when does it cross over the line?
Fighting words are not protected speech because those words inflict injury or tend to incite an immediate disturbance of the peace

20. Brandenburg v. Ohio (1969)
The 1st and 14th Amendments protected speech advocating violence at a KKK rally because it did not call for “imminent lawless action”
SCOTUS gives wide latitude for the expression of threatening political speech

21. Tinker v. Des Moines (1969)
Symbolic expression, or nonverbal behavior, has been upheld by the Court; although it is generally less protected than free speech, the courts have upheld certain types of symbolic expression.
Tinker v. Des Moines and the use of armbands to protest the Vietnam War in public school

22. Texas v. Johnson (1989)

23. State cannot "force" patriotism, nor ban anti- patriotic activities.
Expression as Speech: Flag-burning
Texas v. Johnson (1989) SCOTUS upholds a TX appeals court's interpretation of the First Amendment as protecting a citizen's right to make a political statement by a burning privately-owned US flag.
State cannot "force" patriotism, nor ban anti- patriotic activities.

24. Miller v. California (1973)
This case decided that obscene material is not protected but also gave states and localities flexibility in determining what is obscene using the following guidelines:
The work taken as a whole appeals to the prurient interest (lustful)
The work portrays sexual conduct in a patently offensive way
The work taken as a whole lacks serious literary, artistic, political or scientific value.

25. “Do ya’ ever have one of those days, when everything seems UNCONSTITUTIONAL?”

26. Freedom of Press
The First Amendment guarantees that government will not interfere with the freedom of the press.
Libel (defamation of character in print) can be used in lawsuits; but not always against public officials.
In NY Times v. Sullivan (1964) all statements about public officials are protected unless the speaker lied with the intent to defame.
“Pentagon Papers Case” = NY Times v. US (1971) prior restraint (censorship) should not have been used on the publication of classified documents about the Vietnam War. National security was not a justification.

27. Freedom of Religion
The First Amendment prevents government from interfering with freedom of religion in two different ways:
1. the establishment clause, prevents government from establishing a national religion and
2. the free exercise clause, prevents government from interfering with the exercise of religion

28. 1st Amendment and The Establishment Clause
Wall-of-Separation Prinicple

29. President Jefferson to the Danbury, CT Baptist Ministers Association (1803)
“Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.”

30. Incorporation of the establishment clause via the 14th Amendment.
Everson v. B.O.E. (1947)
New Jersey’s reimbursement to parents of parochial and private school students for the cost of bussing their children to school was legal because the assistance went to the child, NOT the church.
Reimbursing parents of parochial school students for the cost of transporting their kids was permitted. Bussing is a religiously “neutral” activity.
Incorporation of the establishment clause via the 14th Amendment.

31. Engel v. Vitale (1962)
New York’s requirement for a state composed prayer to begin the school day is unconstitutional
“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen”

32. Freedom of Religion & Establishment Clause
The Supreme Court has affirmed the establishment clause, which requires government to maintain religious neutrality but does not bar all assistance to religious institutions.
The current standard for assessing whether or not the establishment clause has been violated was established by the Court in Lemon v. Kurtzman (1971)

33. “Lemon Test”– a 3 pronged approach
Lemon v. Kurtzman (1971)
The case held that government programs and laws under the clause must:
have a secular purpose (not religious)
have a primary effect that does not advance or inhibit religion
not entangle the government excessively with religion.
“Lemon Test”– a 3 pronged approach

34. Lemon v. Kurtzman (1971)
SCOTUS struck down a PA law reimbursing religious schools for textbooks and teacher salaries. The decision held that the program did not violate the Constitution based on 3 key measures

35. Wallace v. Jaffree (1985)
NO set aside time for
voluntary prayer

36. Lee v. Weisman (1992) NO religious leaders leading prayer at
graduation

37. Freedom of Religion & Free Exercise Clause
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

38. 1st Amendment and The Free Exercise Clause
Protects religious beliefs, but NOT all actions based on those beliefs…
NO human sacrifice for example!

39. Reynolds v. United States (1878)
A man may NOT have more than one wife (polygamy) even if it is based on religious grounds. Government may not regulate beliefs but can regulate actions such as marriage.

40. Wisconsin v. Yoder (1972)
Amish children can quit school in 8th grade

41. Freedom of Religion
Contemporary interpretation of the free exercise clause of the First Amendment protects religious beliefs but not actions that may be harmful or anti-social.

42. Employment Division v. Smith (1990)
NO use of hallucinogenic drugs (peyote)
on religious grounds

44. 2nd Amendment Right of states to maintain a militia
Right of citizens to keep and bear arms

45. 2nd Amendment Has been the focus of heated controversy in recent years
Though restrictions on gun ownership have passed constitutional muster, prohibitions on gun ownership may infringe on the Second Amendment
Gun control advocates argue that the right to bear arms should apply only to state militias, not to individuals.

46. 2nd Amendment
In 2008 SCOTUS did something it had not done in 70 years; it ruled on the meaning of the 2nd Amendment in District of Columbia v. Heller
DC had passed a law that banned virtually all handguns and required all “long” guns to be kept unloaded and disassembled or trigger-locked. Mr. Heller believed his 2nd Amendment rights were violated. SCOTUS agreed with Heller and overturned the law in a 5-4 vote. The majority of the bench put emphasis on the “right of the people to bear arms” not just for militia service.
McDonald v. Chicago (2010)

47. 3rd Amendment
Prohibits the national government from forcing citizens to provide shelter for the military during times of peace.
Quartering of troops may happen under conditions of war if clearly spelled out by law.

48. 4th Amendment
Protects citizens from unreasonable searches and seizures.
Probable cause must be established for a search to be considered legal. The police must have a reasonable basis to believe the person or place is linked to a crime.
A search or arrest warrant must be issued by a judge (signed) and be specific
in address/name/etc.

49. 4th Amendment Cases
Mapp v. Ohio (1961) states cannot use evidence that was obtained illegally at trial (exclusionary rule established)
United States v. Katz (1967) monitoring and recording conversation without permission might infringe one’s “reasonable expectation of privacy”
Vernonia School District v. Acton (1995) schools may force athletes to take random drug tests
Board of Education of Pottawatomie County v. Earls (2002) schools can require drug testing for all extra-curricular activities, not just sports.
Groh v. Ramirez (2004) an incorrectly written search warrant could result in any evidence obtained being excluded from trial
Hiibel v. Sixth Judicial District of Nevada (2004) must give your name to police officers investigating a crime since officers must have a reasonable suspicion to make an arrest; secures public safety

50. 5th Amendment
Grand Jury for felony charges only. Suspects must be indicted to justify enough evidence for a trial. The grand jury does NOT determine a verdict!
Double jeopardy protection = if found NOT GUILTY may not be tried again for the same offense.
Self incrimination = no one
may be forced to testify
against him or herself.
(Miranda v. Arizona, 1966)

51. 5th Amendment
Due process of law = the government must follow proper constitutional procedures in trials and in actions it takes against individuals
Eminent Domain = govt. can take private property at a fair price if used for the public good (fire station, highway ramp)
(Miranda v. Arizona, 1966)

52. 6th Amendment The accused shall have the right to:
Speedy trial & public trial by an impartial jury
To know all charges (habeas corpus)
Have witnesses for and against you
To obtain a lawyer (Gideon v. Wainwright 1963)

53. 7th Amendment Trial by jury in civil cases
Civil cases are private lawsuits that do not involve the government as the prosecutor:
person v. person
corporation v. person
person v. corporation
corporation v. corporation
citizen v. government
corporation v. government

54. 8th Amendment
No excessive bail – a guarantee of money deposited to release the accused from jail until trial; the $ will be returned minus some court costs at appearance of trial. Bail may not be awarded if the person is a risk.
No excessive fines
No cruel and unusual punishment

55. 9th Amendment
Citizens have other rights that may not be listed in the Constitution as belonging to the states or the national government.
The 9th Amendment, which protects rights not specifically enumerated in the Constitution, has been used by the Supreme Court to define the limits of government encroachment on personal autonomy along with the 14th Amendment

56. 9th Amendment
In Griswold v. Connecticut (1965), the Court asserted that the Bill of Rights created a zone of privacy (or penumbras) that gave the individual the right to make choices regarding sexual relations and reproduction.

57. 9th Amendment
In Roe v. Wade (1973), the Supreme Court ruled that a woman’s right to seek an abortion during the first three months of her pregnancy rests on the right to privacy protected by the 14th Amendment.
1st trimester – decision by the woman and physician
2nd trimester – state may safeguard interest of mother
3rd trimester – state may safeguard interest of potential life

58. 9th Amendment
Webster v. Reproductive Health Services (1989)-SCOTUS upheld the constitutionality of a Missouri law that denied the use of public employees or facilities in the performance of an abortion unless the mother’s life was in danger (at taxpayer’s expense) –undue burden
SCOTUS specifically declined overturning Roe v. Wade (1973) but did uphold several restrictions.

59. Planned Parenthood v. Casey (1992)
Spousal notification prior to obtaining an abortion was invalid using the 14th because it created an undue burden on married women seeking an abortion (opinion by Justice Sandra Day O’Connor)
State may regulate entire pre-viability period as long as there is no undue burden placed on the woman
In recent years the SCOTUS has withdrawn the constitutional protection shrouding abortion rights and has cast the issue into the state legislative process.

60. 10th Amendment
Power to the states and people if not mentioned in the Constitution as belonging to the national government (education, gambling, marriage).
Reinforces the principle of federalism