Upload
kimberly-whalen
View
222
Download
0
Tags:
Embed Size (px)
Citation preview
The Struggle For Democracy
Ch. 15 – Freedom: The Struggle for Civil Liberties
Critical Thinking Questions
What—if anything—should be done about so-called hate speech?
Where should the line be drawn between freedom and security? For instance, should we turn to racial profiling? Random searches?
Civil Liberties
Definition: constitutional provisions, laws and practices that protect individuals from governmental interference The Framers were especially concerned in
establishing as free a society as possible
Civil Liberties
Civil liberties = negative freedoms; they are protecting us from the government Primarily embodied in the Bill of Rights Guarantees of government equality
Do not forget: the law—and that includes civil liberties—is what the judges say it is!
Civil Liberties
Or as some witty person said: “The law is what the judge had for lunch.”
Civil Libertiesin the Constitution Original constitution specifically protected
only a few liberties from the national government and almost none from the states
Framers signaled out a few freedoms too crucial to be left unmentioned Prohibitions against suspending the writ of
habeas corpus, passing ex post facto laws and bills of attainder
Civil Libertiesin the Constitution Anti-Federalists objected to the
absence of a more specific listing This led to the Bill of Rights (ratification?)
Made the Constitution more democratic by Enhancing political liberty Guaranteeing a context of free political expression Enhancing popular sovereignty
Civil Libertiesin the Constitution Many of the freedoms we enjoy today are not
mentioned in the Constitution Many of our rights and liberties were
established by government officials, judges, political leaders, and groups
Some of our rights have evolved As the culture has changed Through partisan and ideological competition
Rights & Libertiesin the 19th Century Most common liberty protected was
property rights (e.g., government cannot impair the obligation of contracts)
Property rights in the Marshall Court (1801-35) Bill of Rights did not apply to the states Barron v. Baltimore (1833)
Rights & Libertiesin the 19th Century Property Rights
Taney Court (1836-64) Favored property used in ways that encouraged
economic growth versus mere enjoyment Property rights and humans
Dred Scott v. Sanford (1857)
Rights & Libertiesin the 19th Century Property rights after the Civil War
14th Amendment Designed to guarantee citizenship and rights to
newly freed slaves Due process clause says that no state may
“deprive a person of life, liberty, or property, without due process of law”
Equal protection clause
Rights & Libertiesin the 19th Century Property rights
They were slowly expanded, refined, and changed during the 19th century to make them consistent with an emerging industrial society
Very little attention paid to The judicial protection of civil liberties Progress in the rights of blacks and women
20th Century Changes
New approaches to property rights, civil rights and political liberties because of Structural transformations in the economy and in
the culture Efforts of political groups and social movements Actions of government officials
20th Century Changes
Nationalization of the Bill of Rights Remember that the Bill of Rights did not originally
apply to the states. (What is the logical conclusion of this?)
The Supreme Court gradually applied the Bill of Rights to the states through a process called selective incorporation; that is, the process by which the Bill of Rights has been found to apply to the states and the federal government
20th Century Changes
Types of incorporation None: the states will be bound only by what is
dictated in the 14th Amendment’s due process clause
Selective: some portions of the Bill of Rights are made part of the due process clause
Total: the protections in the Bill of Rights are so fundamental that all of them should apply to the states via the due process clause
20th Century Changes
U.S. v. Carolene Products Company, Footnote Four, and standards for the courts Suspect scrutiny: the concept that actions by
elected officials violate constitutional rights Contradict specific prohibitions in the Constitution,
including those in the Bill of Rights Restrict the democratic process and Discriminate against racial, ethnic, or religious
minorities
20th Century Changes
Due Process versus Equal Protection Concepts can overlap Court will use equal protection clause (States
cannot set up illegal categories to justify treating people unfairly) if A law singles out and classifies groups of people for
different treatment Equal protection does not mean equal
treatment
20th Century Changes
Due Process versus Equal Protection (con’t) Concepts can overlap
Court will use due process clause if the law applies across various group lines such as race or gender and
Law deprives all of liberty
20th Century Changes
Origins of Equal Protection – Race 14th Amendment (1868)
Meant to stop states from discriminating against newly freed slaves
Courts for several generations ruled this to include only state action, and even weakened that aspect of it
20th Century Changes
Classifications Under Equal Protection Strict scrutiny
When based on race or national origin “Must be necessary to serve a compelling state
interest to be constitutional under the Equal Protection Clause”
20th Century Changes
Classifications Under Equal Protection (con’t) Middle level scrutiny
Based on gender and illegitimacy “Law must be substantially related to important
governmental interests to be constitutional under Equal Protection Clause”
20th Century Changes
Classifications Under Equal Protection (con’t) Rational basis
Used for social and economic laws, which do not classify on the basis of race, gender, or illegitimacy
“Law must be rationally related to legitimate governmental objectives to be constitutional under Equal Protection Clause”
20th Century Changes
Due Process 14th Amendment (1868): “No state shall deprive a
person of life, liberty or property without due process of law” Due process
incorporates most of the Bill of Rights Includes procedural due process, i.e., guarantees fair
procedure Includes substantive due process, i.e., bars arbitrary laws
no matter how fair the procedure
20th Century Changes
Speech Gitlow v. NY (1925): state is bound by the First
Amendment More speech is covered than not Still some limitations (e.g., fighting words) Major exception? Concern for internal security
20th Century Changes
Speech (con’t) Hallmark of a democratic society Where does the government draw the line
between A person’s right to speak? The rights of others to speak or to not hear speech
they find offensive?
20th Century Changes
Speech: two approaches Meiklejohn
Political speech must be absolutely protected = democracy
Private speech can be restricted to protect others’ interests
Holmes: Democracy requires a “free marketplace of ideas” in
which any view can be expressed Limits on speech only when the state is endangered
20th Century Changes
Speech: laws infringing on public speech are constitutional if Limiting the use of fighting words Law is not overly broad nor under-inclusive State can show that the dangers of the speech
were such that it was necessary to override free speech
Actions may also be protected if they have symbolic value
20th Century Changes
Obscenity Not protected by the First Amendment Difficulty recognizing it Different standards
1957: “average person. . community standards. . dominant theme. appeals to prurient interest
1966: material utterly without redeeming social value
LAPS test
20th Century Changes
Speech: Slander: speech that is untruthful, malicious or
damaging to a person’s reputation Libel: published material that damages a person’s
good name in an untruthful and malicious way Private individuals: a higher status of protection Public officials: must show that the speech or
printed material was said or printed with knowledge that it was false or with reckless disregard for the truth
20th Century Changes
Press: this freedom must be balanced against The government’s right to secrecy An individual’s right to privacy or to personal
reputation A defendant’s right to a fair trial An individual’s personal and moral sensibilities
20th Century Changes
Freedom of the Press Major expansion occurred in NY Times v.
Sullivan (1964): Protected newspapers against trivial or incidental
errors when reporting on public persons
20th Century Changes
Press Prior restraint
Only justified when the publication will directly and irreparably harm the nation or its people
Harmful publications that may not be censored may be subsequently punished
20th Century Changes
Religion First Amendment contains two sometimes
contradictory messages Prohibits Congress from making laws prohibiting the free
exercise of religion Prohibits Congress from establishing a religion
Religious actions are not absolutely protected “ceremonial deism”
20th Century Changes
Religion (con’t) Two views regarding the establishment of
religion High wall of separation (Jefferson & Madison) Government accommodation: government aid
that is indirect, available to all groups, and is religiously neutral
20th Century Changes
Religion (con’t) Lemon Test (1971): The Supreme Court ruled
that government aid to religious institutions is constitutional if the state can prove Law has a secular purpose Law’s primary purpose neither advances nor inhibits
religion Law does not foster “excessive government
entanglement” with religion
20th Century Changes
Religion (con’t) Secular regulation rule: one cannot claim a
constitutional right to an exemption from a non-religious law on free exercise grounds
Least-restrictive-means test: a state may be asked by the Court to find a less burdensome way to enforce regulations that might interfere with the rights of citizens to practice their religion
20th Century Changes
Religion (con’t) Prayer in public schools
Supreme Court outlawed mandatory, organized prayer in 1962
This means that prayer organized or endorsed by teachers or school administrators most likely would be ruled unconstitutional
Why?
20th Century Changes
Rights of the Accused 4th Amendment tries to balance the individual’s
right to privacy with the state’s right to control crime
Exclusionary rule: evidence gathered illegally cannot be used at later trials; the Court has been chipping away at this
20th Century Changes
Due process revolution: the Fourth Amendment was incorporated into the 14th Amendment in 1961, extending the exclusionary rule to the states
20th Century Changes
Rights of the accused: shift to higher regard for crime control has reshaped these rights Warren Court (1953-69): expanded due
process Burger Court (1969-86): preserved basics but
limited further growth and introduced exceptions
Rehnquist (1986-2004): reversed many due process protections
20th Century Changes
Rights of the Accused Fifth and Sixth Amendments: right to counsel,
right against self-incrimination First standards are “voluntariness” and “totality of
circumstances” Escobedo v. IL: Once police have moved from
investigation to interrogation, the suspect has a right to counsel
Miranda Warning: A suspect must be warned of his/her right to remain silent and to have an attorney present
20th Century Changes
Rights of the Accused (con’t) Warrantless searches are allowed under
certain circumstances If incriminating evidence is in plain view Incident to an arrest Consent searches Searches of fleeing suspects Stop-and-frisk
20th Century Changes
Rights of the Accused (con’t) Limiting the exclusionary rule
“Good faith” exception where police officers thought they were acting within the law
Critical Thinking Question: Why?
Capital Punishment
The United States and Japan are the only two western, democratic, post-industrial wealthy countries that still use the death penalty
120 countries have banned or not used the death penalty in the last ten years
76 countries, including China, Iran, Kuwait and Saudi Arabia, still use the death penalty
Capital Punishment
Georgia v. Furman (1972) Ruled that the death penalty was applied in a way
that was arbitrary; that is, inconsistently applied The trigger appeared to be race Over the next four years 37 states rewrote their
death penalty laws in an effort to ensure that they were constitutional
Capital Punishment
In the 1980s in response to voters’ fears about crime and violence, the Rehnquist Court wrote several rulings that expedited the death penalty Defendants had
Too many appeals Too much time to appeal Frustrated justice
Capital Punishment
More recently, the American public, elected officials, and many judges have been rethinking the death penalty
Capital Punishment
Why? Concern about the quality of legal defense of the
accused Concerns about executing the mentally retarded Exoneration through DNA testing
Capital Punishment
The Innocence Project “A national litigation and public policy organization
dedicated to exonerating wrongly convicted people through DNA testing and to reforming the criminal justice system to prevent future injustice.”
201 people spent more than 2,500 years in jail for crimes they did not commit
Capital Punishment
In 2000 Illinois Governor George Ryan Placed a moratorium on the death penalty Appointed a blue-ribbon commission to study the
death penalty in Illinois 2003: granted clemency to 167 people on death
row
20th Century Changes
Implied rights Privacy:
Griswold v. Connecticut (1965): right is not listed in the constitutions, but exists in the penumbras (What does this word mean?) of the First, Third, Fourth, Fifth & Ninth Amendments
20th Century Changes
Implied rights (con’t) Abortion
Roe v. Wade (1973): upheld a women’s right to choose an abortion free from state interference in the first trimester of pregnancy
Since the 1980s the courts have narrowed this, allowing restrictions based on age, legal status, etc.
20th Century Changes
Implied rights (con’t) Right to die:
In 1989 the Court seemed to accept that a “competent” person might have the right to refuse medical treatment
Courts have generally said that individuals cannot assist others in ending their lives
Civil Liberties and the War on Terrorism Remember that wars have always led to
some restrictions on civil liberties Civil War: suspension of the writ of habeas
corpus World War I: The Alien Act and the Sedition Act Cold War and Korea: McCarthyism Vietnam: spying on anti-war activists
Civil Liberties and the War on Terrorism USA Patriot Act authorizes
Wiretapping and electronic surveillance Access to customer, telephone and financial
records
Civil Liberties and the War on Terrorism Executive orders signed by President George
W. Bush Use of military tribunals to try non-citizens Secret detentions, interrogations and deportations Eavesdropping and data-mining on
communications of American citizens
Civil Liberties and the War on Terrorism The Supreme Court delivered a surprising
rebuke to the Bush administration regarding civil liberties Hamdi v. Rumsfield (2004) Foreigners and American citizens detained as
“enemy combatants” can contest the basis of their detentions
Civil Liberties and the War on Terrorism The Supreme Court delivered a surprising
rebuke to the Bush administration regarding civil liberties (con’t) Roberts’ Court
All detainees at Guantanamo Bay and elsewhere are entitled to protections guaranteed under the Geneva Convention
The End
Chapter 15 – Freedom: The Struggle for Civil Liberties