WHAT IS THE DIFFERENCE BETWEEN A LIBERTY AND A RIGHT

Civil liberties: See your textbook for the long defn. For our purpose, liberties are things government must not do.

Civil rights: Privileges owed (e.g. by law, custom, morality) to each citizen/person in a society; such privileges impose an obligation on government to take positive action to protect citizens from actions by either government agents or other private citizens. In short, things government must take action to protect.

How are the two things related? • Should all liberties be rights? Voting vs. the 2nd amendment• Can government restrict liberties to secure rights? Property rights

vs. equality of treatment in the public sphere

HOW HAVE LIBERTIES CHANGED OVER TIME?• Why didn’t the Bill of “Rights” initially apply to the

states?– Barron v. Baltimore (1833): Can a state deprive you

of basic liberties?– That pesky 10 Amendment…

• How did the 14th Amendment change the scope of the Bill of rights:– “No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States.”

• Does this language “nationalize” the Bill of Rights? Not if you believe in Founders intent– The Slaughterhouse Cases (1873)

HOW HAS INTERPRETATION CHANGED THE APPLICATION OF THE BILL OF

RIGHTS?Why were property liberties the first of the liberties to be

“incorporated?– Eminent Domain (1897): Can a state or city (Chicago)

take your property without just compensation because the Bill of Rights wasn’t supposed to apply to these governments?

– Taking in the “public’s” interest (massively expanded taking from the 1960s forward and broader defn’s of the “public’s” interest)

– Regulation vs. regulatory taking (are the courts now imposing new limits on “taking”?)

CAN CONSITUTIONAL LIBERTIES EVER BE LIMITED BY GOVERNMENTS?

• Yes, if the government shows that there is a compelling need to do so. How much the government must justify its actions depends on which standard is used:– The rational-basis test– The strict scrutiny test is used with a)

fundamental liberties or b) suspect classes– The strict test: The government’s burden of

proof: A compelling need, a narrowly tailored solution, the only reasonable way to secure the need.

CAN THE COURT MAKE UP (DISCOVER) NEW LIBERTIES AND RIGHTS?

• The 9th Amendment: Can federal courts make up and and enforce new liberties?

• Finding a right to privacy in existing rights: 1st, 3rd, 4th, 5th and 14th Amendments

• Griswald v. Connecticut (1965)• Roe v. Wade (1973)• Planned Parenthood v. Casey (1992)• Same sex relations? Bowers v. Hardwick (1986); Lawrence v.

Texas (2002)• Why not euthanasia? (1997)• Pending issues: Same sex marriage• The 2nd Amend’s “well-regulated” militia vs. the SC (2009)

HOW HAVE LIMITATIONS ON FREEDOM OF SPEECH CHANGED OVER TIME?

• Clear and present danger doctrine• The fighting words doctrine• Absolute protection for political speech?• Is offensive speech proected?: pornography and

obscenity• Is false speech protected?: slander and libel• Can you restrict commercial speech• Are campaign donations free speech? Can you limit

how much individuals, corporations, or unions spend to advocate their political ideas?

HOW FAR HAS THE FEDERAL GOVT GONE TO ENSURE LIBERTIES (AND SOME RIGHTS)?

CRIMINAL PROTECTIONS• 4th through 8th Amendments• Palko vs. Connecticut (1937) and selective

incorporation• The Warren Court throws out the book– Mapp v. Ohio (1961)– Gideon v. Wainwright (1963)– Miranda v. Arizona (1966) – Sheppard v. Maxwell (1966)– Benton v. Maryland (1969)– Death penalty moratorium (1972-1976)