5/5/10 7:02 PM 5/5/10 7:02 PM The Bill of Rights not in the original Constitution notion of protecting minority rights was too appealing memory of British denials of civil rights fresh in memory Madison promised of bill of rights ratified December 15, 1791 federalists wanted majority rule First Amendment ?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 now the people peaceably to assemble, and to the petition of the Government for a redress of grievances.? Second Amendment ?A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.? Third Amendment ?No Soldier shall, in time of peace be quartered in ay house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.? Fourth Amendment ?The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, hall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or tings to be seized.? Fifth Amendment ?No personal shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice but in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; no shall private property be take for public use, without just compensation.? Sixth Amendment ?In all criminal prosecution?s the accused shall enjoy the right to a speedy trial, by an impartial jury of the State and district wherein the crime shall have been committed; and the be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.? Seventh Amendment ?In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, an not fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.? Eighth Amendment ?Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.? Ninth Amendment ?The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.? Tenth Amendment ?The powers not delegated to the United States by the Constitutions, nor prohibited by it to the States, are reserved to the States respectively, or to the people.? Twenty Seventh Amendment ?No law varying the compensation for the service of Senators and Representatives shall take effect until an election of Representatives shall have intervened.? Fourteenth Amendment (July 9, 1886) ??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; nor deny to any person within its jurisdiction of the equal protection of the laws?? Selective Incorporation (see power point slides for minor cases) Brown v. Board of Education Thrugood Marshall Based on the equal protection clause of the 14th Amendment ended ?separate by equal? doctrine first articulated in Plessy v. Ferguson (1896). Opponents saw it as usurping states; rights. Baker v. Carr inequitable political districts violate the 14th Amendment?s equal protection clause. compliance swifter and reaction less violent than with Brown v. Board of Education Enforcement was easier court has lately backslid on Baker v. Carr Georgia?s Congressional districts former ? more random new ? more organized Roe v. Wade Trimester 1: abortion decisions entirely up ot woman and doctor Trimester 2: state may regulate abortions to promote maternal health trimesters 3: state may forbid abortion, except to save mother?s life. two criticisms one two Readings Civil Liberties Fiorina, Chapter 14. Origin of Civil Liberties in the United States civil liberties never mentioned in the U.S. Constitution fundamental freedoms that protect a people from tyranny promise freedom from government interference civil rights ? guarantee equal treatment by the government bill of rights first 10 amendments of Constitution Selective Incorporation initially Bill of Rights did not apply to state/local governments failed to mention level of government to which laws applied Barron v. Baltimore Chief Justice John Marshall ruled ?These amendments contain no expressions indicating an intention to apply them to the state governments. This court cannot so apply them.? declared that the due process clause of the Fifth Amendment only protected Barron?s property from the national government civil liberties expanded after the Civil War civil rights amendments thirteenth ? which abolished slavery fourteenth ? which redefined civil rights and liberties fifteenth ? which guaranteed voting rights to all adult, male citizens selective incorporation initially, Supreme Ct limited the impact of the new due process clause ruled that it restricted only stsate actions that were fundamentally unfair then, began ?incorporating? various liberties into the meaning of the due process clause federal courts have limited what state governments may do in the areas of free expression religious freedom privacy criminal justice Freedom of Expression freedom of speech press assembly important for conducting elections in a democratic society social change first amendment The Evolution of Free Speech Doctrine prior restraint doctrine initially, free expression guaranteed only that a speaker or write could deliver a message w.out officials censoring it first Clear and Present Danger first major Supreme Court decision affecting freedom of speech arose when the Untied States started conscripting soldiers to fight in WW1 Espionage Act made it illegal to obstruct military recruitment Schenck v. United States disturbed a mailing urging draft-age men to resist their conscription into the armed forces Supreme Ct accepted conviction clear and present danger doctrine Justice Oliver Wendell Holmes explained that free speech did not extend to messages posing a ?clear and present danger to the US War effort no person has the right to falsely cry ?fire? in a crowded theater Stromberg v. California Near v. Minnesota Balancing Doctrine WW11 the Smith Act censorship law in response to public outrage against fascism second ?Red Scare? balancing doctrine allowed courts to ?balance? freedom of speech against other public interests Dennis v. United States 11 nonviolent Communist party leaders faced prison sentences for spreading writings that espoused the revolutionary overthrow of government court ruled in favor ?balance?must be struck in favor? of the governmental interest in resisting subversion Fundamental Freedoms Doctrine fundamental freedoms doctrine the principle that some civil liberties are basic to the functioning of a democratic society and require vigorous protection Carolene Products footnote some freedoms, such as freedom of speech, might deserve a ?preferred position? in the Constitution because of their central importance to an electoral democracy. Supreme Court?s government principle during the Vietnam War the Nixon Administration help expand civil liberties by trying to grab too much power Pentagon Papers case Symbolic Speech flag burning Texas v. Johnson conviction overturned the principle purpose of free speech is to invite dispute flag burning = ?expressive conduct? Limitations on Free Speech speech that lack full protection commercial speech libel public figures requires that the source made false statements knowingly or with reckless disregard for the truth New York Times Co. v. Sullivan obscenity offensive communications with no redeeming social value other than titillation Miller v. California determination depends in part on local community standards Freedom of Religion two clause in the First Amendment Congress shall make no law (a) respecting an establishment of religion or (b) prohibiting the free exercise thereof establishment clause denies government the power to push religious practices on the citizenry free exercise clause protects the right of individuals to practice their religion The establishment Clause ban on laws ?respecting an establishment of religion? no clear meaning must have judicial interpretation liberal judges generally embrace Thomas Jefferson?s call for a strict separation of church and state overlapping spheres would (1) corrupt churches by introducing political ambitions (2) invite public officials to legislate moral odes, bullying those of different faiths The Lemon Test test for determining whether laws violate the Constitution Lemon v. Kurtzman court (a) required all laws to have clear secular (not religious) purposes (b) did not permit laws to advance or inhibit either one religion or religion in general (c ) considered it one sign of a religious establishment if the law entangled public officials with religious institutions or activities. Religion in Schools The Free Exercise Clause seems to instruct states to accommodate religious practices hard to mandate (1)someone has to decide when a set of beliefs qualifies as a ?religion? rather than just a personal preference (2)someone has to decide when a law really infringes on core religious exercises rather than just on customs (3) someone has to decide what to do when religious beliefs interfere with governmental efforts to protect other constitutional values The Sherbert Test to determine when a law unconstitutionally violates the free exercise clause Sherbert v Verner focused on whether workers could apply for unemployment benefits if they gave up work because it fell on a holy day limits on religiously motivated action had to (a) provide in a secular goal that was (b) compelling governmental interest and to do so (c) in the manner least restrictive to religious practice The Neutrality Test Oregon v. Smith when government passes a neutral, generally applicable law to prevent criminal behavior, individuals cannot claim a religious exemption congress took issue with neutrality test passed an act that protected religious practices even if a seemingly neutral law would prohibit them Free Exercise and Public Schools Establishment of Religion or Free Exercise The Right to Privacy Ninth Amendment recognizes that the people retain rights not listed in the Constitution the right to privacy the most controversial unlisted right recognized by the Supreme Court WWII Privacy: the right to be fee of public interference in personal life choices Contraception Griswold v. Connecticut Abortion Rights Roe v Wade guaranteed at least a partial right of abortion Norma McCorvey used pseudonym Jane Roe near end of America?s ?sexual revolution? Gay Rights Bowers v. Hardwick claim that privacy rights prevented Georgia from prohibiting sodomy between two consenting homosexuals Criminal Justice Rights of the Accused Chief Justice Earl Warren ? decisions that extended the meaning of the Bill of Rights broadened the interpretation of five constitutional provisions (1) protection from unreasonable search and seizure (2) immunity against self-incrimination (3) right to an impartial jury (4) right to legal counsel (5) protection from double jeopardy Search and Seizure police may not search homes w.out a court first granting them a search warrant based on evidence that a crim has probably been committed exclusionary rule Mapp v. Ohio improperly obtained evidence cannot be presented during a trial college dormitories exempt lacking an official warrant may not invalidate police searches conducted in ?good faith? United States v Leon Self-Incrimination people often confess to crimes they have not committed, due to fear/exhaustion avoidance of more serious accusations uncertainty about the implications of an accusation desire for attention/publicity Fifth Amendment recognizes the danger of self-incrimination exempts accused persons from testifying against themselves Miranda v Arizona Court required police officers to alert suspects to their rights before questioning them Miranda warning Impartial Jury requirement that a jury be impartial is difficult to meet when crimes become newsworthy Sheppard v Maxwell police accused an influential medial doctor of murdering his wife complained about new coverage jurors witnessed court overturned his conviction and provided guidelines to ensure impartial juries in the future Legal Counsel Gideon v Wainwright all citizens accused of serious crimes must have access to proper legal advice Sixth Amendment right to counsel requires courts to appoint legal representation office of public defender an attorney whose full-time responsibility is to provide for the legal defense of indigent criminal suspects Double Jeopardy Benton v Maryland states cannot try a person twice for the same offense purpose: to prevent law enforcement officials from wearing someone down by repeated prosecutions Capital Punishment Eighth Amendment prohibits ?cruel and unusual punishment? convicted criminals may not face torture, grotesque forms of execution (crucifixion and burning at the stake) or sentences grossly disproportional to the legal violations Rights in Practice: The Plea Bargain if case is newsworthy, prosecutors and courts generally observe proper constitutional procedures public is looking on, and those participating in the trial must take political pressures into account trial court judges depend on the willingness of prosecutors and defenders to settle cases before going to trial defender and a prosecutor arrange a plea bargain an agreement between prosecution and defense that the accused will admit to having committed a crime, provided that other charges are dropped and a reduced sentence is recommended Civil Liberties 4/15/10 1:35 PM 5/5/10 7:02 PM
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