Poli Sci 101 ch 5

Political Science: Chapter 5 Conflicting Rights: Rights conflict in 2 ways: Individual rights conflict School Prayer Individual rights vs. the good of society Drug laws, wearing seat belt Liberties do no occur in a vacuum?they are subjected to conflict and controversy John Locke: liberty does not equal license We do no simply have the liberty to do whatever we please as long as it does not harm others; however we do have some fundamental liberties that the government can not take away. Solving Conflicts about Rights: The courts Congress Civil Rights Act, 1994 Crime Bill, RFRA The President Uses powers of persuasion The people Interest groups like the ACLU and The Rutherford Institute and the NRA and NOW The Bill of Rights: First 10 amendments Opposed by Hamilton in Federalist No. 84 Supported by Anti-Federalists Eventually used as a compromise to help ratify the Constitution Blueprint of the ideal relationship between liberty and community Initially protected citizens only against the federal government (did not apply to states) Incorporation Doctrine: Supreme Count began to apply the Bill of Rights to the states via the incorporation doctrine Due process clause of the 14th Amendment. Incorporates some provisions of the Bill of Rights against the states Selective Incorporation: those rights ?implicit in the concept of ordered liberty? would be incorporated against the states Palko v. Conneticut (1937) How the Bill of Rights Changed the Constitution Added specific restriction on the power of the national government?designed to assure limited government. Reinforced federalism by recognizing that powers not given to the national government were reserved for the states and the people Eventually the Bill or Rights, especially as interpreted by the U.S. Supreme Court through the 14th amendment, became a major force for democracy through the protection of civil liberties and the expansion of civil rights. First Amendment: Overview ?Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances.? First Amendment: Freedom of Religion Contains 2 guarantees to protect religious freedom: Establishment Clause and Free Exercise Clause These overlap, but also point in different directions and seek to achieve different things Every political community must reconcile the demands of religious faith (or denial) with the beliefs of others, as well as with the collective welfare of the community The Establishment Clause: First Amendment guarantee that the government will not create and support and official church. Separationists vs. Accomodationists Lemon Case 1971: 3 part test Government aid must have a secular purpose Primary effect is neither to advance nor inhibit religion Funding does not lead to excessive governmental entanglement with religion. The Free Exercise Clause First Amendment guarantee that citizens may freely engage in the religious activities of their choice. There must be a ?compelling state interest? to limit religious freedom (Sherbert v. Verner, 1963) There need not be a ?compelling state interest? to limit religious freedom (Employment Division, Department of Human Resources v. Smith, 1988) Value of Freedom of Expression: Informed citizenry Watchdog for government Voice for the minority Preservation of the truth First Amendment: Speech that Criticizes Government: Bad Tendency Test Allows speech to be punished if it leads to punishable actions Clear and Present Danger Test Allows language to be regulated only if it presents an immediate and urgent danger Imminent Lawless Action Test Restricts speech only if it is aimed at producing or is likely to produce imminent lawless action Is the standard for regulating ?political? speech today Restricting Other Types of Speech: Symbolic Speech United States v. O?Brien (1968) Burning a draft card at a war protest rally was not protected speech because law was content-neutral and not aimed at restricting expression. Tinker v. Des Moines School District (1969) Court struck down a school rule forbidding students to wear black armbands as an expression of their opposition to the Vietnam War?said fear of disturbance was not a sufficient state interest to suppress expression. United States v. Eichman (1989) Declared statute making it a crime to desecrate the flag unconstitutional because it was aimed at suppressing expression Obscenity and Pornography Roth v. United States (1957) Miller (1973) 3-part test: The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest The ?the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law? And ?the work, taken as a whole, lack serious artistic, political or scientific value? Hate Speech and Fighting Words: Chaplinsky v. New Hampshire (1942) Court ruled that fighting words ?contribute nothing to the expression of ideas or truth? and the value of fighting words is outweighed by society?s interest in ?order and morality? Texas v. Johnson (1989)- flag burning In a 5-4 opinion, Court struck down a Texas statute that prohibited the ?desecration of venerated objects?, such as the U.S. flag R.A.V. v. City of St. Paul (1992) Court struck down a Minneapolis ordinance banning certain kinds of hate speech as unconstitutional viewpoint discrimination Virginia v. Black (2003) S. Court upheld a Virginia statute that provided for enhanced criminal penalties in cases involving racial ?hate crimes? Freedom of the Press: Prior Restraint Censorship of or punishment for the expression of ideas before the ideas are printed or spoken. Supreme Court has ruled that prior restraint is particularly dangerous and almost never permits it New York Times v. United States Libel Written defamation of character Supreme Court has held that public officials and public figures (e.g. celebrities, politicians), when suing for libel, must show that a publication acted with ?actual malice?, which means not that the paper had an evil intent but only that it acted with knowledge that what was printed was false or with reckless disregard for the truth. The Right to Bear Arms: In defense of an individual In opposition to an individual right to bear arms right to bear arms Protect hunting and other * Arguments in favor don?t apply to Leisure activities the amendment. Self-Defense *Gun control leads to less violence Protect family & property and fewer gun-related deaths Not the government?s business *No right is absolute to regulate gun use Supreme Court rules Second Amendment guarantees an individual right to bear arms (2008) The Rights of Criminal Defendants: Protection against unreasonable searches and seizures 4th Amendment The exclusionary rule Protection against self-incrimination The 5th Amendment Miranda rights Right to Counsel 6th Amendment Giden v. Wainwright (1963) Protection against cruel and unusual punishment 8th Amendment Death penalty is constitutional?but may not be given to the mentally retarded or minors McClesky v. Kemp (1987) No unconstitutional racial bias to death penalty Baze v. Rees (2008) Upheld Kentucky?s lethal injection practice Right to Privacy: Better way to think about ?privacy? cases: ?autonomy? or ?human personality? or ?self-determination? Cases typically involve sexual behavior and abortion and reproductive rights and family rights and gay rights and so called ?right to die? ?Right to Privacy? is not explicit in the Constitution Right created or found by judges interpreting the Constitution States possess the police power (traditionally defined as the power to protect the ?health, safety, welfare, and morals of society?) and this often collides with a claimed ?right to privacy? Right to Privacy- Marital Rights and Reproduction: Griswold v. Conneticut (1965) contraception For the first time, found a right to privacy in the constitution as it applies to the marital relationship Struck down state law prohibiting contraceptive use Eisenstadt v. Baird (1972) Court concluded that the right to privacy extended to the unmarried as well Right to Privacy?Abortion: Roe v. Wade (1973) Involved a challenge to a Texas statute that prohibited abortion at any point in a pregnancy except to save the life of a mother Right to privacy encompassed ?a woman?s decision whether or not to terminate a pregnancy?, but Court denied that this right is absolute?sometimes the state?s interests will be compelling enough to overcome the right The state?s compelling interests are two: Protecting the fetus Protecting maternal health Planned Parenthood v. Casey (1992) Said women have a ?right to privacy? that includes the right to abortion But also said that statutes can regulate abortions at any point in a pregnancy so long as such regulations are not an ?undue burden? on the woman?s right Stenberg v. Carhart (2000) Supreme Court declared unconstitutional Nebraska?s ban on partial-birth abortions Right to Privacy?Gay Rights: Bowers v. Hardwick (1986) No constitutional right to engage in sodomy Lawrence v. Texas (2003) Homosexual conduct in the privacy of one?s residence was protected by the right to privacy?statute criminalizing homosexual behavior between consenting adults held to be unconstitutional Right to privacy protects ?certain intimate conduct? Right to Privacy??right to die? The right to die & the terminally ill Court has never ruled that there is a constitutionally protected right to die Court refused to recognize a right on the part of terminally ill patients to a ?physician-assisted suicide) (Washington v. Glucksberg (1997) and Vacco v. Quill (1997)) Three states have passed laws (mostly via referendum) making physician assisted suicide legal under certain circumstances (Washington, Oregon, Montana) Court has held that there is a right to suspend life sustaining treatment (Cruzan v. Director, Missouri Dept. of Health (1990)) E.g, Terri Schiavo case A Bill of Obligations? What should one look like? Voting? Military Service? Others? Citizens and Civil Liberties: Civil liberties are not usually simple contests between wrong and right; instead, they are competing demands: Between liberty and security; between individual rights and collective good Who ultimately bears the responsibility for protecting our civil liberties and constitutional principles? ?We the people?