CHAPTER 4 Civil Liberties:

(1). Clarify the meanings of Civil liberties versus that of Civil rights.

(2). Discuss the impact of how the Constitution is interpreted & effect of original intent.

(3). Describe the origins & key features of the Bill of Rights and impact on State powers.

(4). Analyze the freedoms of the First Amendment:

ØFree Speech, its different types, historic constitutional tests & unprotected speech.

ØFreedom of Petition and Assembly & Association, and how they are regulated.

ØFreedom of the Press and its rights and limitations.

ØFreedom of Religion & conflict between Establishment & Free Exercise Clauses.

(5). Contrast the conflicting legal positions of 2nd Amendment rights and limitations.

(6). Examine the rights of criminal defendants, including: writ of habeas corpus, and

the prohibition against bills of attainder and ex post facto laws.

(7). Outline the rights protected by the: 4th, 5th, 6th, & 8th Amendments, to include:

probable cause, search warrants, exclusionary rule, immunity, & Miranda Warning.

(8). Examine the right of privacy, & discuss its basis & impact, to include: Roe v. Wade.

Ø Interpreting the Constitution:

§ Civil Liberties

§ Original Intent

· Chief Justice Taney & Dred Scott ( quote page 109)

§ Keeping up with the changing times:

· Chief Justice Warren & Brown v. Board of Education

¨ Stated: Sources re. Constitution) are inconclusive

· Hughes: “The Constitution is what the judges say it is.”

· Dealing with modern day issues of 21^st century:

¨ Cell Phones, Computers, WWW, DNA evidence

Ø The Bill of Rights and State Government:

§ The Bill of Rights

· Initial application only to Federal Government

§ Applying Bill of Rights to state & local governments

· Changing interpretations with time

· Table 4-1

Ø The First Amendment:

§ Freedom of Speech, Assembly, Press, and Religion

· Significant protections but no absolute guarantee

§ Balancing Individual Rights with that of Society’s

§ 4-3a Freedom of Speech:

· Political Speech – significant protections:

¨ The Federalists overreach- the Alien & Sedition Act

¨ Determining the balance of Political Speech

Ø Clear & Present Danger Standard

§ O.W. Holmes

Ø Bad Tendency Doctrine

Ø Incitement Standard

· Symbolic Speech

¨ Protect the Flag or what it represents?

§ 4-3b Freedom of Assembly and Association:

· Government’s right to regulate where & when

· Neutrality required (Nazis vs. Holocaust survivors)

§ 4-3c Freedom of the Press:

· Potential checks on press freedom:

¨ Prior restraint

Ø National Security vs. Freedom of the Press

§ New York Times & the Pentagon Papers

¨ Libel (vs. slander)

Ø Private vs. public standards

Ø Absence of malice

· Obscenity - Miller v. California (3 part test)

§ 4-3d Freedom of Religion: protections in conflict

· Establishment clause

¨ Lemon Test (another different 3 part test)

· Free Exercise clause

¨ Belief versus behavior

Ø The Second Amendment: The Right to Bear Arms?

§ 4-4a State Militias – Colonial experience

§ 4-4b Supreme Court Rulings:

· Cruikshank Doctrine (2^nd not applied to states)

· US v. Miller (no right to sawed off shotgun)

¨ National Fire Arms Act of 1934

¨ Reinforcement of Federal gun control laws

§ 4-4c Gun Control Laws – The Brady Bill

· Power to the States: regulating Militias

§ NRA’s position – Constitutional misinterpretation?

Ø Government and the Rights of Criminal Suspects:

§ Rules for Government behavior toward criminal suspects

· Protections of 4^th, 5^th, 6^th, & 8^th amendments

· Rights applied to states – court decisions (Table 4-1)

§ 4-5a The Fourth Amendment: Search and Seizure:

· Exclusionary rule (pro & con) & current trends

§ 4-5b The Fifth Amendment:

· Criminal Procedures for a Person Accused:

¨ Miranda Rights

Ø Bearing witness against one’s self

¨ Double jeopardy (loopholes?)

§ 4-5c The Sixth Amendment:

· Procedures for People Charged with a Crime

¨ Right to council (Gideon v. Wainwright)

¨ Right to confront accuser (exceptions?)

§ 4-5d The Eighth Amendment:

· Cruel and Unusual Punishment:

¨ Is the death penalty unconstitutional?

· Recent trends -challenging how it is applied

¨ Increasing Federal crimes punishable by death

· Applying ex post facto to punishment

Ø Privacy as a Constitutional Right:

§ Which amendments protect privacy?

· Griswold v. Connecticut (1965) court majority opinion:

¨ 1^st Amendment right of association

¨ 3^rd Amendment against quartering soldiers

¨ 4^th Amendment – no unreasonable search or seizure

¨ 5^th Amendment- no self incrimination

¨ 9^th Amendment- no explicit enumeration of all rights

Ø (see Point of Order - Box 4-2)

§ Significance of Griswold v. Connecticut?

· Roe v. Wade (1973)

¨ A women’s right to privacy – trimester rule

¨ Political & social reaction?

¨ Recent Supreme Court decisions:

Ø Allowing state to impose some restrictions:

§ barring government funding of abortions

§ notification of parents

Ø Restricting state laws: Stenburg v. Carhart (2000)

§ Ban on partial birth abortions unconstitutional

§ Clearest statement of Supreme Court’s position

§ Recent court decisions regarding privacy:

· No absolute right to privacy – Georgia on sexual acts

· No right to die (states may regulate the circumstances)

v G-4: Civil Liberties KEY TERMS:

Ø Bad tendency doctrine: The doctrine that speech need only be likely to lead to negative consequences, in Congress’s judgment, for it to be illegal. (easiest for government to prove)

Ø Civil liberties: The freedoms guaranteed to all Americans in the Bill of Rights (although some are in the body of the Constitution). These liberties include freedom of speech, freedom of religion, and the right to assemble peaceably.

Ø Clear and present danger standard: The doctrine that Congress may limit speech if it causes a clear and present danger to the interests of the country.

Ø Establishment clause: The provision in the First Amendment of the Constitution that “Congress shall make no law respecting an establishment of religion.”

Ø Exclusionary rule: The doctrine, stemming from the Fourth Amendment, that the government cannot use illegally obtained evidence in court.

Ø Free exercise clause: The provision in the First Amendment of the Constitution that “Congress shall make no law… prohibiting the free exercise” of religion.

Ø Incitement standard: The doctrine that speech must cause listeners to be likely to commit immediate illegal acts for the speech itself to be illegal. (hardest for government to prove)

Ø Libel law: Laws governing written or visual publications that unjustly injure a person’s reputation.

Ø Miranda rights: The rights against self-incrimination that the Fifth Amendment guarantees. Miranda rights include the right to remain silent during questioning, the right to know that any statements suspects make may be used as evidence against them, and the right to speak to an attorney before questioning.

Ø Obscenity law: Laws governing materials whose predominant appeal is to a prurient interest in nudity, sex, or excretion.

Ø Original intent: The theory that judges should interpret the Constitution by determining what the founders intended when they wrote it.

Ø Pentagon Papers: A set of secret government documents—leaked to the press in 1971—showing that Presidents Kennedy and Johnson misled the public about U.S. involvement in Vietnam.

Ø Prior restraint: An act of government preventing publication or broadcast of a story or document.

Ø Roe v. Wade: A 1973 Supreme Court decision that a woman’s right to privacy prevents states from barring her from having an abortion during the first trimester of pregnancy. States can impose reasonable regulations on abortions during the second trimester and can prohibit abortions under most circumstances in the third trimester.