Civil liberties refer to rights of individuals against government intrusion found in the Bill of Rights

Civil rights concerns the rights of groups against discrimination or the positive protections of group rights by government.

Civil Liberties

The Bill of Rights protected citizens from the national government, but the same protections did not automatically apply to the states.

In Gitlow v. New York 1925 the Supreme Court argued that fundamental personal rights are protected from infringement by the states because of the due process clause.

The 14th amendments due process clause created the possibility that some or all of the Bill of Rights might restrict actions by state governments.

Since that time most, but not all, of the Bill of Rights have been incorporated into the states. This is known as the incorporation doctrine.

The Incorporation Doctrine

For a public school class to begin with a prayer? Why or why not?

For students to meet at the Logan flagpole to have a prayer before school?

To have “in God we trust” on our money or “under God” in our pledge of allegiance?

Is it constitutional?

Court Cases: Engel v. Vitale (1962) The court ruled that prayer in a public school is unconstitutional.

The establishment clause pertains to the separation of church and state. The free exercise clause prohibits the government from interfering in the way religion is practiced.

Lemon Test: Lemon v. Kurtzman (1971) a law or state action regarding religion was constitutional if:

1. There is a secular purpose2. The primary effect is not to advance or inhibit religion3. Government is not excessively entangled with religion

First Amendment: Freedom of Religion

To yell fire in a crowded theater? To write something that is false about a

person?

Is it constitutional?

You cannot say anything you want about someone else.

Defamation of character is not legal. Stating untruths about a person orally is slander. Writing untruths is called libel. When this is done on

purpose it is done with actual malice.

In Schenck v. US (1919) Supreme Court held that words that incite are not protected. The test was whether these words constituted a clear and present danger (e.g. yelling fire in crowded theater.)

1st Amendment: Freedom of Speech

For students to wear an armband at school protesting the war in Afghanistan?

Yes. Students had the right to wear armbands during Vietnam War. It was protected as symbolic speech. Tinker v. Desmoines 1969

Is it constitutional?

For American Nazis to march in a Jewish community in the US?

Is it constitutional?

Hate speech, or symbolic displays of hate are protected (e.g. cross burnings and racist propaganda) as in the case of the American NAZI party marching in Skogie Illinois.

In a case involving the Ku Klux Klan the Supreme Court Ruled in that the state could not limit the Klan’s speech or ideas, unless it could be proven that their activities incited violence. Brandenburg v. Ohio (1969)

Freedom of speech and assembly

Can the US government censor an article that they don’t like or think makes the government look bad?

No. The government cannot censor a press story it doesn’t like. For example, the New York Times published the Pentagon Papers during the Vietnam War. The Supreme Court in NY Times v US ruled there can be no prior restraint on a story.

Is it constitutional?

Many states or cities pass gun control laws, which limit certain types of weapons or limit gun use?

In a recent Supreme Court hearing, the gun control laws passed in Chicago were challenged by proponents of the second amendment.

The key question was whether the second amendment is a fundamental individual right which should be incorporated into state laws, or a right that pertains to “well regulated state militias,”giving the right to states and localities to put limits on guns.

Is it constitutional?

1. Do think current legislative attempts to:Ban assault riflesRequire universal background checksLimit the number bullets in a clipare Constitutional? 2. Do you think these measures would reduce gun violence?

What’s the verdict

Can the police search your home without a warrant?

Can the police search your car without a warrant?

Is it Constitutional?

Protects people from unreasonable search and seizure.

The Court argued the exclusionary rule, that evidence obtained illegally is not admissible in court. Mapp v. Ohio 1961

The police can search a vehicle without a warrant if there is a valid reason to stop the vehicle in the first place.

4th amendment - search and seizure

The right of privacy is not mentioned in the Constitution. However, the Supreme Court found that such a right was implied.

The Supreme Court struck down a state law that prohibited birth control counseling and made the use of contraceptives by married couples illegal. The Court argued that privacy is protected through the first, third, fourth, fifth and ninth amendments. Griswold v. Connecticut (1965) .

Is there a right to privacy?

Privacy has also become more important with changes in technology. The courts rule regularly on the right of law enforcement to tap phones, take bank records, check computer searches etc. These issues fall under the 4th amendment.

The argument over these issues has increased since 9/11 where Americans are regularly drawing the balance between security and privacy.

The Right to Privacy

A person can’t be tried twice for the same crime – double jeopardy.

People have right to speedy trial Miranda v. Arizona (1964) gives the accused

the Right to remain silent Any statement can be used in evidence Right to have an attorney present during

questioning An attorney appointed if defendant can’t afford

one (Gideon v. Wainwright 1963)

5th and 6th amendments Due process and public trial

Do you think the death penalty constitutes “cruel and unusual punishment” described in the eighth amendment? Why or why not?

The death penalty was upheld by Supreme Court

The 8th Amendment

Due process is the principle that government must respect all legal rights of a person (found in 5th and 14th amendments)

Procedural due process means that people who go before a court are guaranteed a fair trial

Substantive due process means that each person has fundamental rights found in American history or traditions and these cannot be violated (e.g. Civil rights etc.)

Two types of Due Process