Civil
Liberties
I. Definition -Civil Liberties – those personal freedoms that are protected for all individuals and that generally deal with individual freedom. Civil Liberties are what the government may not do to individuals. “CONGRESS shall make no law…”
A) Associated
with the value of freedom as opposed to Civil Rights which are
guarantees of equal treatment and equal protection under the law and associated
with the value of equality.
B) No civil liberty is absolute as the argument can be made that under certain circumstances freedom must be sacrificed in favor of order.
C) It is the determination of when that is appropriate that causes conflict.
D) Police Power – the authority to legislate for the protection of the health, morals, safety, and welfare of the people.
E) Interpretations of the meaning of civil liberties vary over time and from individual to individual.
1) Original intent – interpret the Constitution as the authors interpreted it- Constitutional fundamentalism
2) Reinterpretation
of the Constitution to fit modern times.
“The Constitution was designed to be adjusted to the various crises
of human affairs.” Chief Justice
John Marshall
II. Applying
the Bill of Rights to the States - The
Theory of Incorporation
A) The Constitution, written and ratified, applied to the national government not to state governments.
1) The purpose of the bill of Rights was to restrict the power of the Central government.
2) Citizens of different states had different rights and citizenship requirements varied from state to state.
B) Liberties granted in the Constitution
1) Habeas Corpus – must show cause for imprisonment
2) No Bill of Attainder – trial and punishment in Congress
3) No ex post facto law – you cannot punish someone for violating a law that was passed after they committed the act in question
4) Trial by jury
5) No religious test for office
6) No impairment of contracts
C) Liberties Granted in the Bill of Rights
1) Free expression, speech, press, religion, assembly, petition
2) Right to keep and bear Arms
3) No quartering of soldiers
4) No unreasonable search or seizure
5) No self incrimination or double jeopardy
6) Speedy trail by jury, assistance of counsel
7) Jury trials in civil suits
8) No excessive bail or cruel or unusual punishment
9) Rights not spelled out are still held by the people
10) Powers not given to the Federal Government or denied to the states are reserved to the states or to the people.
III. The First
Step – Defining Dual Citizenship
A) The process of applying the Bill of Rights to the States required that the issue of dual citizenship (state and national) be spelled out.
B) Barron v. Baltimore (1833) (5th Amendment - just compensation) Interpretation of the Constitution as non-incorporation.
The Constitution of the United States was established by the people of the United States for themselves, for their own government, and not for the government of the individual states. .... If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. Chief Justice Marshall
C) Dred Scott v. Sanford (1857) Africans could not be citizens of any state.
A free negro of the African race, whose ancestors
were brought to this country and sold as slaves, is not a "citizen"
within the meaning of the Constitution of the United States.
Since the adoption of the Constitution of the United
States, no State can by any subsequent law make a foreigner or any other
description of persons citizens of the United States, nor entitle them to the
rights and privileges secured to citizens by that instrument.
A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State. Chief Justice Taney
D) The
14th Amendment – Clear definition of dual citizenship. After the Civil War, slavery was abolished
and African Americans were given the right to vote. The problems of the Scott
decision were eliminated by the 14th amendment.
1) Section
1. All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. 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 the equal protection of the
laws.
2) Section 2. Removed the 3/5th rule for representation and mandated reduction in representation for any similar disenfranchisement.
3) Section 3. Former Confederates could not serve in public office unless Congress stated that they could
4) Section 4. No financial compensation for losses incurred in the Civil War
5) Section
5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
E) Early Interpretation of the 14th Amendment
1) Used to protect business interests but did little for other civil liberties. Laws allowing for State regulation of business, minimum wage laws, worker safety, child labor, right to strike etc. were found to be Unconstitutional under the theory of substantive due process – such laws interfered with the freedom of companies to make contracts with workers. (Lochner v. New York) This view did not change until 1937. – The end of the second period of the court.
2) On the other hand the very group the amendment was directed toward (former slaves and free blacks) were denied its protection.
(a) If it was an individual or business it was not a state action and could not be prohibited
(b) After 1896 – discrimination was affirmed by the separate but equal doctrine.
IV. Step
Two – Incorporation of Fundamental Liberties
A) Gitlow v. New York (1925) - New York had passed a law against criminal anarchy “Advocating the overthrow of the government by force.” Benjamin Gitlow was a communist arrested for distributing communist literature.
1) A previous in case (Schenk v. the US (1919) had ruled against a first amendment protection for distributing material urging draft resistance.
2) In
Gitlow Justice Sanford wrote for a 7/2
majority: “For present purposes we may and do assume that freedom of speech
and of the press -- which are protected by the First Amendment from abridgment
by Congress -- are among the fundamental personal rights and
"liberties" protected by the due process clause of the Fourteenth
Amendment from impairment by the States.”
…. BUT… he added
It is a fundamental principle, long established, that
the freedom of speech and of the press which is secured by the Constitution,
does not confer an absolute right to speak or publish, without responsibility,
whatever one may choose, or an unrestricted and unbridled license that gives
immunity for every possible use of language and prevents the punishment of
those who abuse this freedom.
So the First amendment did apply to the states but Gitlow violated the Clear and present danger test and so was guilty.
B) The Court applied this principle to Freedom of the Press (Near v. Minnesota
1931) and the Right to Assembly (DeJonge v. Oregon 1937)
V. Third Step – Incorporating Criminal Protections- Occurs during the Civil Liberties Period of the Court – a liberal interpretation favoring freedom over order
A) Palko v. Connecticut (1939) In a case which challenged the retrial and conviction for murder the court found that although the first amendment might apply to the states, the 5th did not.
We have said that, in appellant's view, the
Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth.
His thesis is even broader. Whatever would be a violation of the original bill
of rights (Amendments I to VIII) if done by the federal government is now
equally unlawful by force of the Fourteenth Amendment if done by a state. There
is no such general rule. Justice
Benjamin Cardozo
B) Benton v. Maryland (1969) It is finally accepted that all of the Bill of Right apply to the states only in 1969. Recently, however, this Court has increasingly looked to the specific guarantees of the [Bill of Rights] to determine whether a state criminal trial was conducted with due process of law. In an increasing number of cases, the Court has rejected the notion that the Fourteenth Amendment applies to the States only a "watered-down, subjective version of the individual guarantees of the Bill of Rights. . . Justice Thurgood Marshall
VI. Incorporation and Bush Nominee to the Court
A) The issue of incorporation has recently arisen in the nomination fight over Janice Rogers Brown. In an article entitled “Beyond the Abyss: Restoring Religion to the Public Square, she argued against constitutional prohibition of states laws sanctioning religious practice stating, "The historical evidence supporting what the Supreme Court did here is pretty sketchy," The argument on the other side is pretty overwhelming" that the 14th Amendment failed to apply the Bill of Rights to the states.
B) Judge Brown has also spoken out against actions taken during the second period of the court that regulate business and provide the social safety net: "Where government moves in, community retreats, civil society disintegrates, and our ability to control our destiny atrophies," she told the Federalist Society at the University of Chicago Law School. "The result is: families under siege, war in the streets, unapologetic expropriation of property, the precipitous decline of the rule of law, the rapid rise of corruption, the loss of civility and the triumph of deceit."
VII.
Incorporation of the Bill of Rights
|
Amendment |
Important Cases |
|
First Amendment Freedom of Religion – establishment Free exercise Freedom of Speech Freedom of the Press Right of Assembly |
Engle v. Vitale 1962 Cantwell v. Connecticut 1940 Gitlow v. New York 1925 Near v. Minnesota 1931 DeJonge v. Oregon 1937 |
|
Second Amendment |
Not incorporated* - that is no case has applied or defined this protection to state laws. |
|
Third Amendment |
Not Incorporated |
|
Fourth Amendment Unreasonable search and seizure Probable cause – exclusionary rule |
Wolf v. Colorado 1949 Mapp v. Ohio 1961 |
|
Fifth Amendment Right to grand jury in criminal cases No double jeopardy Right to remain silent Just compensation for government seizure |
Not incorporated Benton v. Maryland 1969 Malloy v Hogan 1964 B&O RR v Chicago (1897) |
|
Sixth Amendment Right to a speedy trial Right to a public trial Right to a jury trial in criminal cases Right to cross examine witnesses Right to impartial trial Right to counsel |
Klopfer v. North Carolina 1967 In re Oliver 1948 Duncan v. Louisiana 1968 Pointer v. Texas 1965 Parker v. Gladden 1966 Gideon v. Wainwright 1963 |
|
Seventh Amendment |
Not Incorporated |
|
Eighth Amendment No excessive bail or fines No cruel or unusual punishment |
Robinson v. California 1962 |
The First Amendment –
Fundamental Liberties
A. Importance of religious freedom in colonies indicated by primacy of religion in the Bill of Rights
B. Incorporated with the beliefs that States could have a say in religious matters.
C. Focus on Government, not private action
D. Establishment conflicts tend to involve majority religious views.
E. Free Exercise conflicts tend to involve religious minorities
F. The Framers and Religion
1) Most were Christian but the most influential in writing the Constitution saw the potential for abuse of power in unity of government and a dominant religion because religious institutions have an affinity for order over freedom
2) What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty may have found an established Clergy convenient auxiliaries. A just Government instituted to secure & perpetuate it needs them not. James Madison
3) The question before the human race is, whether the God of nature shall govern the world by his own laws, or whether priests and kings shall rule it by fictitious miracles? John Adams 1815
4) Difference
of opinion is advantageous in religion. The several sects perform the office of
a Censor morum over each other. Is uniformity attainable? Millions of innocent
men, women, and children, since the introduction of Christianity, have been
burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards
uniformity. What has been the effect of coercion? To make one half the world
fools and the other half hypocrites. To support roguery and error all over the
earth. …. History, I believe, furnishes no example of a priest-ridden people
maintaining a free civil government. This marks the lowest grade of ignorance
of which their civil as well as religious leaders will always avail themselves
for their own purposes. Thomas
Jefferson 1782
II.
Establishment Clause: Congress shall make no law
respecting an establishment of religion.
A.
Interpretation
has varied over time – as society has become more religiously pluralistic and
ethnically diverse, interpretation has undergone strict interpretation
1) Engle
v. Vitale (1962) New York Board of
Education mandated the following
prayer: Almighty God, we acknowledge our dependence upon Thee, and we beg
Thy blessing upon us, our parents, our teachers and our Country.
2“the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.” Justice Hugo Black
B.
Current
Interpretation based on Lemon v. Kurtzman
(1971)
1)
Laws
must have a secular purpose
2)
Primary
effect must not enhance or inhibit religion
3)
Must
not entangle the government with religion.
C.
Prayer
in school prohibited
1)
1962
– non denominational prayer
2)
1985
– moment of silence
3)
1992
– prayer at graduation
4)
2000
– student led prayer at football games
D.
Other
tests involve a violation of one or more of the three tests
1)
Creation
Science (2)
2)
State
Funded Parochial Schools (3) (weakening
due to acceptance of vouchers)
3)
10
Commandments displays (2)
E.
However,
Courts have ruled against state
restriction of Free Exercise aspects of religion in school
1)
Christian
School Clubs – freedom of association and neutrality
2)
Individual
and group prayer independent of school authorities
III.
Free
Exercise: or the free exercise thereof
A.
Distinction
between religious beliefs and actions based upon beliefs. Strict Scrutiny Standard – compelling interest in restricting free exercise
B.
Incorporated
in Cantwell v Connecticut (1940) The right of Jehovah’s witnesses to canvas
communities – they had been singled out by a law.
C.
Protected:
Not Saluting the flag, not working on the Sabbath,
D.
Not
protected : illegal activities – drug use, violence, child abuse - Employment Division v. Smith (1990)
1)
Congressional
Response – RFRA 1993
(a)
refrain
from limiting religious freedom, unless they have a compelling societal reason
for doing so
(b)
select
the least intrusive method to achieve their goal, if they need to restrict
religious freedom
2)
Court
Response - (Boerne v. Flores– 1997) RFRA
Unconstitutional
.
It is difficult to maintain that such laws [zoning laws affecting church expansion] are based on animus or hostility to the burdened
religious practices or that they indicate some widespread pattern of religious
discrimination in this country. RFRA's most serious shortcoming, however, lies
in the fact that it is so out of proportion to a supposed remedial or
preventive object that it cannot be uderstood as responsive to, or designed to
prevent, unconstitutional behavior. It appears, instead, to attempt a
substantive change in constitutional protections, proscribing state conduct
that the Fourteenth Amendment itself does not prohibit. Its sweeping coverage
ensures its intrusion at every level of government, displacing laws and
prohibiting official actions of almost every description and regardless of
subject matter. Its restrictions apply to every government agency and
official...and to all statutory or other law, whether adopted before or after its
enactment...It has no termination date or termination mechanism. Any law is
subject to challenge at any time by any individual who claims a substantial
burden on his or her free exercise of religion. Justice Kennedy
3) Some states have
passed versions that have survived court scrutiny
I. Seditious speech – Whenever there is a perceived threat to the US, there is a tendency to want to suppress free expression..
A. Alien and Sedition Acts 1798
1) Threat: Radicals who favored French style revolution (Jacobins)
2) Law
3) John Adams prosecuted newspaper writers who crticized his “unfounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”
B. Espionage Act 1917 - 1000 prosecuted for socialist and anti-war activities
C. Smith Act 1948 - Alien Registration required every year. Made it possible to prosecute communists for “advocating the overthrow of the US Government.”
D. The Clear and Present Danger Test
1) Schenk v. US (1919) In 1917 During WWI, Schenk handed out leaflets condemning the war and urging young men to resist the draft.
2) He was arrested and convicted under the Espionage Act. Schenk argued that his right to freedom of speech had been violated.
3) The Court said that, while the Constitution does protect speech, because country was at war, Schenk's freedom of speech was not protected. The ruling meant that freedom of speech could be limited in times of war.
4) The
most stringent protection of free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic. … The question in every case is
whether the words used are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent…. When a nation is at war many
things that might be said in time of peace are such a hindrance to its effort
that their utterance will not be endured so long as men fight and that no Court
could regard them as protected by any constitutional right. Justice Oliver
Wendell Holmes Majority Opinion
E. Brandenburg v. Ohio - 1969 – defines the incitement standard there must be a clear evidence of incitement to illegal activities.
F. Marches and gatherings that are by minority groups espousing beliefs abhorrent to the community must be allowed (neutraility)
1) KKK gatherings in majority black communities,
2) Nazis marching in Majority Jewish Communities
G. USA PATRIOT ACT – President and Attorney General decide what constitutes terrorist activities. _ Untested in Court
H. paradox - which protects freedom more allowing it or restricting it.
II. Offensive speech – Obscenity
A. Justice Stewart – “I can’t define obscenity, but I know it when I see it.” Not an acceptable standard.
B. Clear criteria for definition
1) offensive to the average community member
2) no redeeming social or artistic value –
3) Appealing to a prurient interest
III. Symbolic Speech - Flag Burning, black armbands draft cards (protected)
A. No Prior Restraint - Government cannot prevent publication because of what might be printed.
1) Near v Minnesota (1931)
2) Pentagon Papers - New York Times v. U.S (1971) Government must prove “ immediate, inevitable and irreparable harm”
B. Libel – New York Times v Sullivan (1964) in order to be considered libel, plaintiff must prove that erroneous information was printed with “actual malice”
1) Other cases: Westmorland, Jerry Falwell, Ariel Sharon
2) Higher standard to meet for public officials
C. Student Newspapers –
D. Hazelwood School District v. Kuhlmier (1988) Students lose broad free speech protections within public school
E. Broadcast media (TV/Radio) Stricter standards for censorship due to the fact that the public owns the airwaves
F. Internet – How to regulate a totally anarchic system of information exchange
1) Communications Decency Act – 1996
2) Child Online Protection Act - 1998
3) How can internet content be regulated?
A. Interpretation has changed over time – disturbing the peace
B. Generally cannot be restricted unless it meets the
incitement standard – greater challenge than clear and present danger.
C. Campus Speech Codes have been found to be unconstitutional
A. - in a public forum - not in private locations
1) Skokie – and the American Nazi Party (1977)
2) Malls and Airports – not considered a public space
3) Anti Abortion protests – must maintain distance
4) Anti- Bush Protestors – courts have begun to rule against the police who confine certain citizens to protest areas.
The
Second Amendment
!. The one case where the Court ruled on the interpretation of the 2nd Amendment, the court ruled that a city could ban the possession of sawed off shotguns.
Miller v. U.S (1939)
In the absence of any evidence
tending to show that possession or use of a "shotgun having a barrel of
less than eighteen inches in length" at this time has some reasonable
relationship to the preservation or efficiency of a well regulated militia, we
cannot say that the Second Amendment guarantees the right to keep and bear such
an instrument. Certainly it is not within judicial notice that this weapon is
any part of the ordinary military equipment, or that its use could contribute
to the common defense.
A. Gun rights in the US is the result of Political forces not constitutional ones …. Up until now
a. In
1997 Supreme Court Justice Clarence
Thomas wrote: "This Court has not had recent occasion to consider the
nature of the substantive right safeguarded by the Second Amendment....Perhaps,
at some future date, this Court will have the opportunity to determine whether
Justice [Joseph] Story was correct when he wrote that the right to bear arms
'has justly been considered, as the palladium of the liberties of a republic.'
" Inviting a court challenge
b. In 2002, Bush Administration argued for an interpretation of protection of private gun ownership rights (fist time an administration has taken that position)
c. Parker,
et al., v. District of Columbia, et al. – DC Court of Appeals found the Second Amendment "protects an
individual right to keep and bear arms...The activities it protects are not
limited to militia service, nor is an individual's enjoyment of the right
contingent upon his or her continued or intermittent enrollment in the
militia."
d. Supreme
court hearing is likely next year.
CRIMINAL PROTECTIONS
All persons born and naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State in which they reside.
No State shall make or enforce any law which
shall abridge the privileges and 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 any person within its jurisdiction the equal
protection of the laws
We have said that, in appellant's view, the
Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth.
His thesis is even broader. Whatever would be a violation of the original bill of
rights (Amendments I to VIII) if done by the federal government is now equally
unlawful by force of the Fourteenth Amendment if done by a state. There is no
such general rule.