GOVT 2305 The Executive – Definitions and Historical Background.
GOVT 2305 Civil Liberties and the Bill of Rights.
-
Upload
johnathan-may -
Category
Documents
-
view
225 -
download
0
Transcript of GOVT 2305 Civil Liberties and the Bill of Rights.
The final constitutional principle we will discuss
is individual liberty.
The fancy term we will use is civil liberty.
Note that other principles are contained in the constitution, but
these (most notably equality) were added to the document after the original document was ratified.
For past blog posts on relevant material for this section, click on
these:
Bill of Rightscivil liberties
establishment clausefirst amendment
free exerciseprocedural liberty
Two quick definitions of the term “civil liberty.”
1 - The protections of individuals from the arbitrary powers of government.
2 - “the freedom of a citizen to exercise customary rights, as of speech or
assembly, without unwarranted or arbitrary interference by the government.”
So civil liberties are guarantees against arbitrary power and in favor of the ability to engage in certain activities central to self
government.
You can find more expansive definitions, thoughts and comments here:
About.comACLU: This Week in Civil Liberties
Cato Institute: Civil LibertiesDavid Hume, Of Civil Liberty
Wikipedia
Note: A civil liberty is not the same as a civil right.
Freedom of speech is a civil liberty. The right to equal protection is a civil right.
We will cover this more fully in the next section.
Civil liberties are established by limiting the government.
Specific limits are placed on its powers. The question is how is this
best done?
As we will see, there are two ways to do so.
The first is to design the system so that its various parts check each other. The second is to place explicit limits on
the powers of government in a document called a Bill of Rights.
The Federalists thought the republican design, in addition to
the checks and balances was sufficient to limit governing power, but the Anti-Federalists needed a
further guarantee.
This guarantee would become the first Ten Amendments, also known
as the Bill of Rights.
Have a quick look through it by clicking here: U.S. Bill of Rights.
Its short, it wont take long.
The Bill of Rights places two general types of limitations on the
powers of the national government:
SubstantiveProcedural
Example: You are free to say what you wish because government is limited from passing laws which
restrict speech.
(we will analyze exceptions to this in due course)
A procedural limit refers to how the executive and judicial powers
can be used.
The Due Process of Law
Example: How, and under what conditions, can someone be
searched? And if one is accused of a crime, what justifies a trial? And one goes to trial, what rights does
a defendant have in a court of law?
Basic Fact:
The U.S. Bill of Rights has ten sections – these are the first ten
amendments to the Constitution. There is no separate section titled “the bill of rights.” the term simply refers to the first ten amendments.
Some useful links regarding the Bill of Rights.
- Its History and Significance- Wikipedia
- James Madison and the Bill of Rights
It is relatively short and vague. As is the rest of the Constitution. It is
commonly reinterpreted, often controversially so.
Example: A recent Supreme Court case dealt with the question
whether gaming was constitutionally protected speech.
Bills of Rights were commonly attached to state constitutions. It
was argued that they were necessary because the states had –
as we know – powers that were “many and undefined.” States
could potentially pass laws that treated people arbitrarily and
limited individual freedom.
As we will see soon, many states – and colonies before them – did
restrict religious freedom. Many had state sponsored religions.
Hamilton and Madison both argued that a national bill of rights
was unnecessary because the national government’s powers
were “few and defined.”
Think about it – Congress has no delegated power to pass laws on
religion and speech, etc ….
The Anti-Federalists were unconvinced and demanded that a
Bill of Rights be added to the document to ensure that specific limits were placed on the national
government.
Five states, including Massachusetts, ratified the
Constitution on the condition that such amendments be added
immediately.
James Madison agreed to introduce and push it through the House when he became a member
of it.
He thought it was harmless.
The addition of the Bill of Rights is therefore a product of a
compromise between the Federalists and the Anti-
Federalists.
It was the subject of Federalist #84 (wikipedia). Its argument was
rebutted in Anti Federalist #84.
Noah Webster for example.
It is impossible to spell out all the rights of individuals. To only list a few would imply that others did
not exist.
Listing six freedoms in the First Amendment might lead others to
suggest that these are the only ones that exist.
If the right is not explicitly written in the Constitution, it may be
argued that the power does not exist.
Here’s an example of this reasoning. It involves the rights of
gays and lesbians and whether they sexual orientation is covered
by the equal protection clause.
Clarence Thomas’ Dissenting Opinion in Lawrence v. Texas.
I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the
Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with
another adult does not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather,
is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the
Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both
in its spatial and more transcendent dimensions,” ante, at 1.
There would be no way to make this argument if there was no First
Amendment because the rights cannot be limited to those listed.
Was this what Hamilton was concerned about here?
“. . . bills of rights, in the sense and in the extent in which they are contended for, are not only
unnecessary in the proposed constitution, but would even be dangerous. They would contain various
exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to
do?”
Nevertheless, a bill of rights was proposed and debated during the
Constitutional Convention
(August 20).
It was not accepted.
But it is also argued that a statement of the specific liberties held by the people is essential to the formation of a free society.
It clearly establishes the importance of these rights.
Every time we read the First Amendment, for example, we are
reminded of the importance of religious liberty as well as that of
speech, press, assembly and petition.
They attain a unique status among all liberties.
And once the 14th Amendment was added to the Constitution these
rights guaranteed by the national government has to be recognized
by the state governments.
Many states didn’t.
The rights listed in the Bill of Rights evolved over time.
Some of this history we have discussed, so this concept should
be familiar by now.
The Charter of Liberties (1100) was issued by Henry I in order to convince the nobility and the
church that he would abide by the law.
These were a bit random, and were soon forgotten. But they
would become the model for the Magna Carta which established specific procedural limits on the
power of the monarchy.
As we know, Magna Carta was forced upon John by the nobility. It was intended to minimize arbitrary rule and establish certain defined
rights on the part of freemen.
No freeman could be punished unless it was in accordance with
the law of the land.
The term freeman is worth digging into further. These rights did not
apply to everyone.
- Wikipedia: Freeman
A handful of its provisions establish what we now know as the rule of law – or procedural liberty as we
are calling it now.
38. No bailiff for the future shall, upon his own unsupported
complaint, put anyone to his "law", without credible witnesses brought for this purposes.
39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon
him, except by the lawful judgment of his peers or by the law
of the land.
Respectively these establish the idea that convictions must be
based on eyewitness testimony, convictions must be rendered by a jury, and that justice is available to
all.
Much of the 6th Amendment – which establishes the procedural
liberties of criminal defendants - is based on this.
The Petition of Right was written to remind Charles I of the “ancient
rights and liberties” agreed to in Magna Carta.
As discussed earlier, Magna Carta had been forgotten over time.
The petition was written by Edward Coke who modified Magna Carta to apply to all subject of the
crown, not just the nobility.
All subjects of the crown should have liberties from the arbitrary
actions of the government.
Charles was unconvinced and suspended Parliament as a result.
But he would be executed soon enough, and the Scottish Stuarts
would be removed in the Glorious Revolution, which led – as we
know to:
This document, backed by a powerful Parliament, would not only ensure that the procedural
limitations placed on the power of the monarch would be secure, but it also added substantive liberties
as well.
The English Bill of Rights• . . . it is the right of the subjects to petition the king,
and all commitments and prosecutions for such petitioning are illegal;
• . . . the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
• . . . the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;
• . . . excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
Aspects of the First, Second, and Eighth Amendment can be found here.
But notice that religious liberty is not recognized. Protestants are privileged over Catholics (this is something to think about prior to our discussion of equal protection
and civil rights). Early colonies had religious requirements.
Recall that part of what motivated the colonists in the 1760s through the revolution was that they were not recognized as Englishmen and were not granted the rights given
to Englishmen.
The Declaration of Independence would establish that the liberties
of Englishmen should apply to the white, property owning, male
inhabitants of the colonies.
Note: what happened here was similar to what would occur later
in American history.
We cover the expansion of liberties to other groups in society when we
discuss civil rights.
The Declaration is based on John Locke’s argument in the
Second Treatise on Government.
We covered this material previously so it should be familiar
to you.
It establishes that certain rights are unalienable in the individual.
But again – they didn’t apply to everyone. The notion of individual
liberty existed, but was very limited.
Here are two other useful documents. They help us
understand how the subject of individual liberty was handled
elsewhere.
The Virginia Declaration of Rights was also written by Jefferson and
was intended to serve as Virginia’s Bill of Rights.
Each document is far more forceful than the U.S. Bill of Rights in how
they state these rights.
Certain things are inherent in the individual and must be guaranteed proactively. The US Bill of Rights is
more passive.
The Bill of Rights does not make similar statements. It is really less
about the rights of individuals than it is about limiting the power of
government.
The document assumes that people have certain liberties, and establishes them by negating the power of government to interfere
with those liberties.
The First Amendment, for example, starts with the phrase
“Congress shall make no law.” The subject of the document is not the people and what they can do, but government and what it cannot
do.
This is distinct from a positive liberty which places an obligation
on a governing authority to actively provide for the right.
This is a good definition of a civil right.
For example, many people consider education to be a right,
which means that we are obligated to provide it.
But there is no language mandating it on the national level.
1 - It is Undemocratic.
It establishes that, for example, certain laws cannot be passed, even if the majority supports it. This minimizes the ability of the
majority to impose its will on the minority.
This is meant to save the minority from the majority, but it does so by
limiting the majority.
This explains why the implementation of these
limitations can be very unpopular.
2 - Civil Liberties are not Absolute.
They can be limited if doing so secures the greater interest of
society.
Example:
Freedom of Speech does not protect you from being punished
for falsely shouting fire in a crowded theater.
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater 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.
– Oliver Wendell Holmes, Schenck v. U.S.
A related concept:
Ordered Liberty
People are free to act within the confines of what it takes to have
an orderly society.
Another example:
“The Constitution is not a suicide pact” - Eric Posner
Can restrictions on searches and seizures be too restrictive on the ability of government to enforce
the law?
Controversy: What factors justifiably limit constitutional
liberties?
How do we define the greater interest of society?
This is an ongoing source of controversy, but it is generally held
that liberties have their limits. Establishing those limits is an
ongoing source of controversy.
4 – The specific recognition of rights is up to the Supreme Court.
This involves controversies over how the Constitution is to be interpreted and what role the
court should have in overturning legislation.
Examples of rights established by Supreme Court Decisions:
The Right to PrivacyOne Person One Vote
Miranda WarningsRights of Corporations
The Right to Privacy
The Supreme Court recognized in Griswold v. Connecticut within the
broad language of the Constitution, a right to privacy.
One Person One Vote
in Baker v Carr the Supreme Court ruled against the existence of uneven districts because they
violated an implicit guarantee that votes be equal.
Miranda Warnings
In Miranda v Arizona the court argued that the Fifth Amendment right against self incrimination had
to be made clear to criminal suspects.
Rights of Corporations
In Citizens United v. FEC the Supreme Court argued that corporations have the same
speech rights as citizens.
Controversy: How expansively should rights be inferred from the
document?
How should the Constitution be interpreted? As discussed
previously, this is highly controversial.
This is material we covered before. Constitutional language can be interpreted in different ways:
- Strictly- Loosely
Those who argue for a strict interpretation tend to battle over
whether meaning must be determined by trying to figure out the intent of those who wrote the
document, or by sticking to the narrow reading of the text.
Those who argue for loose interpretations often argue that
the loose language in the Constitution is intended to allow for flexibility in how it is applied.
This is often referred to as the Living Constitution. The document must be adapted to the changing
circumstances of society, including the changing morals of the
community.
One with a loose interpretation of the Constitution is likely to see
rights embedded within the document that are not
acknowledged by those with a strict interpretation
Example: Privacy / Abortion
Key current controversy: Do “evolving standards of decency”
mean that the juvenile death penalty is cruel and unusual?
Competitive elections often include statements regarding a
candidate’s viewpoint concerning how the Constitution should be
interpreted.
5 – Originally the Bill of Rights applied only to the national
government, but the 14th Amendment made it applicable to
the states.
“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 …”
This made the restriction placed on the national government applicable to state and local governments as well.
States could not deny liberties to American citizens. Their citizens were also American citizens, so the conflict
was inevitable.
Controversy followed since states were no longer able to deny certain
liberties to their citizens.
They were freer to speak, organize and use the press. They also had freedoms
against the arbitrary use of law enforcement.
Supreme Court cases the apply national civil liberty restrictions to
state governments contain language stating that the national limit applies to the states through
the 14th Amendment.
The doctrine of “equal protection of the laws” was also established in the 14th Amendment, but we cover
that when we discuss civil rights.
Responding to demands by the states ratifying conventions, James
Madison introduced several constitutional amendments to the House of Representatives when it
first met.
One of the rejected amendments was a right to conscience.
“No State shall violate the equal rights of conscience, or the
freedom of the press, or the trial by jury in criminal cases.”
To repeat a point made above:
There are two types of liberties established in the Bill of Rights,
substantive and procedural.
We will review each.
First Amendment: Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
It establishes six specific liberties:
EstablishmentFree Exercise
SpeechPress
Peaceful AssemblyPetition
More attention is paid to this amendment than to any other. We
will dig into these controversies soon.
Second Amendment: A well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.
Until several years ago, the Supreme Court had never clarified the meaning
of the opening phrase.
Is the right to bear arms absolute or conditional upon the existence of a militia (which a standing army has
made unnecessary)?
In the case DC v. Heller, the court ruled 5-4, that it was an absolute
right.
McDonald v. Chicago made this applicable – through the 14th Amendment – to the states.
Third Amendment: No Soldier shall, in time of peace be
quartered in any house, without the consent of the Owner, nor in
time of war, but in a manner to be prescribed by law.
Ninth Amendment: The enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage others retained by the people.
Establishes, controversially, that other rights may exist, but it does
not explain how these rights might be justified.
This amendment was used to help establish the right to privacy.
There is debate regarding how often, and how, it ought to be
used.
Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.
As suggested above, together these amendments define the parameters of what we know as the Due Process of
Law.
The legal system – from beginning to end – has to follow certain guidelines
to keep it from being an agent of arbitrary power.
Given the power government has to remove an individual’s life,
liberty and property, these amendments restrict the potential
that this power can be used in a discretionary or arbitrary manner.
Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
After the First Amendment, this gets more attention form the courts than almost any other
amendment.
A search must be justified. Police cannot go on “fishing expeditions” casting their nets wide to see what
they can catch.
Searches have to be based on probable cause and be based on a
warrant which states what they are looking for and where they
think they will find it.
But: how broadly will the court define “probable cause?”
What level is suspicion is necessary to justify a search?
An additional area of controversy:
The Exclusionary Rule
Can evidence gathered in an unreasonable search be excluded from being introduced in court?
Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation
This places limits on the arbitrary actions of district attorneys.
The state cannot take anyone to trial that they choose. This power is checked by a group of citizens from the broader community.
Trials can only be justified if an indictment is issued by a grand
jury, they only have one crack at finding a defendant guilty, and defendants can’t be tortured in
order to get evidence.
Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and
district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
This applies to trials. Judges must ensure that defendant know what they are accused of, can challenge accusers, have access to a lawyer, and have access to a speedy and public trial before a jury of their
peers.
Again there are significant areas of controversy:
Assistance of Counsel
How competent must public defenders be?
Seventh Amendment: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined
in any Court of the United States, than according to the rules of the common law.
Eight Amendment: Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.
This is almost word for word what exists in the English Bill of Rights.
Punishments must be proportional to the crime
The 14th Amendment was written after the Civil War to negate Dred Scott decision. The Supreme Court ruled that Scott was not a citizen
and had no right to sue in the courts.
The 14th Amendment ruled that anyone born in the US was a
citizen and states could not violate their rights (their privileges and
immunities) as Americans.
This included access to the courts.
“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”
The question soon became whether this argument applied to
all other matters raised in the Constitution as well, including the liberties guaranteed in the Bill of
Rights.
Over time these limitations on national power were applied to the states (incorporated) on a case by
case basis.
This process was called selective incorporation
The Selective Incorporation of the Bill of Rights to the States.
- Wikipedia.- Exploring Constitutional Conflicts.
- Free Legal Encyclopedia.
Beginning in early 20th Century a series of cases began to use the
14th Amendment to protect American citizens from the actions
of the states.
From Exploring Constitutional Conflicts:
1st Amendment: Fully incorporated. 2nd Amendment: Fully incorporated. 3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated. 4th Amendment: Fully incorporated. 5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment. 6th Amendment: Fully incorporated. 7th Amendment: Not incorporated. 8th Amendment: Incorporated with respect to the protection against "cruel and unusual punishments," but no specific Supreme Court ruling on the incorporation of the "excessive fines" and "excessive bail" protections.
- Be able to define “civil rights” and understand how they are protected both in the body of the Constitution and the Bill of Rights.- What is the difference between a liberty and a right?- What is the difference between a substantive and procedural freedom?- Why was the Bill of Rights added to the Constitution? What arguments were made in favor and against doing so?- What factors might be used to limit the liberties listed in the Bill of Rights?
- What predecessors influenced the Bill of Rights?- Be able to answer questions about each of the first ten amendments. - How are conflicts over the precise nature of the liberties contained in the Bill of Rights resolved? - What controversies have resulted from loose interpretations of the language in the Bill of Rights? - What impact has the 14th Amendment had on the relationship between the Bill of Rights and the states?
- What are the similarities and differences between the U.S. and Texas Bills of Rights?- What does the U.S. Bill of Rights not guarantee?- What does the First Amendment actually limit? What does this tell us about the overall structure of American government?
(Note that prior to the 14th Amendment, the Bill of Rights
applied only to the national government.)