Next Chapter 10 Copyright © by Houghton Mifflin Harcourt Publishing Company US Government:...

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Copyright © by Houghton Mifflin Harcourt Publishing Company

US Government: Principles in Practice


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Chapter 10: Civil Liberties Overture

Section-1 Protecting Constitutional Rights

Section-2 First Amendment Freedoms

Section-3 Protecting Individual Liberties

Section-4 Crime and Punishment


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• The Bill of Rights protects Americans’ civil liberties and civil rights.• In some cases, government may place limits on individual freedoms for the sake of the

common good.• The Supreme Court has established that many of the provisions of the Bill of Rights limit the

actions of state and local governments as well as of the federal government.

Section 1 at a GlanceProtecting Constitutional Rights


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Main IdeaThe United States was formed out of a belief that individuals had certain important liberties and rights. The Constitution’s Bill of Rights protects these liberties and rights.

Reading Focus• What is the Bill of Rights, and what does it protect?• What are the limitations on civil liberties and rights?• How does the Fourteenth Amendment help protect civil liberties?

Protecting Constitutional Rights


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Political Parties and Democracy


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The Bill of Rights

After Independence• States adopted own constitutions, most of which protected liberties • 1787: delegates gathered to draft new national constitution, but there was little talk of

protecting individual rights until end of convention• George Mason wrote Virginia Declaration of Rights, proposed including bill of rights; others

argued state constitutions enough to protect rights• Mason’s proposal defeated; few specific protections of individual rights included in

Constitution

A firm commitment to gain personal freedoms drove American colonists to break from Great Britain in the Revolutionary War. The colonists were trying to protect their rights, including “Life, Liberty, and the pursuit of Happiness.” Eventually this quest led to the creation of the Bill of Rights.


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The Ten Amendments• To win ratification of Constitution, supporters agreed to add bill of rights as soon as new

national government met — James Madison began drafting amendments

— Some feared listing individual rights might imply government would protect only those rights

•Amendment added stating that listing specific rights did not mean other rights denied to the people• December 1791: 10 amendments became part of Constitution — Civil liberties: basic freedoms to think and act; all people have them;

protected from government abuse — Civil rights: rights of fair and equal status, treatment, right to participate in

government—though these rights not originally guaranteed for all

Protecting Constitutional Rights {continued}


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SummarizingList the sequence of events that led to the creation of the Bill of Rights.

Reading Check


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Answer(s): independence from Britain declared, states adopt constitutions, new national Constitution drafted, a bill of rights is promised during the ratification battle, Constitution ratified, Bill of Rights ratified

Reading Check

SummarizingHow is public opinion related to public policy?


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Limits on Civil Liberties and RightsThe Bill of Rights sets limits on government, but people do not have complete freedom to do whatever they choose. To protect the common good, there are limits on individual liberties and rights.

When Rights Conflict• Framers: ideal government one that limited liberties as little as possible• Personal freedoms limited when one person’s exercise of a freedom harms another person

• Supreme Court has examined limits of different constitutionally protected freedoms over the years, continues to do so

• Example: government can limit free speech in wartime when that speech might aid enemy—such as publishing information about tactics of soldiers


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The Role of the Courts • Balancing protection of civil liberties a challenge for government• Government maintains balance through courts• Courts cannot bring action on their own; only issue rulings when cases brought before

them• Early on many who needed rights protected had no access to court system

• Most Supreme Court cases protecting civil rights occurred after early 1900s• Some cases came through actions of interest groups like National Association for the

Advancement of Colored People (NAACP), American Civil Liberties Union (ACLU), Mexican American Legal Defense and Education Fund (MALDEF)

• Groups’ involvement in cases had important impact on courts’ decisions about liberties, rights


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SummarizingWhy are individual liberties and rights sometimes limited?

Reading Check


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Answer(s): to protect other citizens and the nation

Reading Check

SummarizingWhy are individual liberties and rights sometimes limited?


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Civil Liberties and the Fourteenth Amendment

The Due Process Clause• 14th Amendment: intended to protect rights of formerly enslaved African Americans after

the Civil War• Forbade states from passing laws to deprive any of “life, liberty or property without due

process of law”—following established legal procedures• Supreme Court says 14th Amendment’s due process clause guarantees Bill of Rights applies

to states• Incorporation doctrine holds that certain protections are essential to due process of law,

therefore states cannot deny protections to the people

The Bill of Rights was intended to limit the actions of the federal government. This does not mean that state and local governments can deny individuals their civil liberties and rights. The Supreme Court has ruled that most Bill of Rights protections apply to state and local governments as well.


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Key Cases

• Process of incorporation found in number of Supreme Court cases

• Chicago, Burlington & Quincy Railroad Company v. Chicago—required states to give owners fair compensation when taking private property

• 1920s: flurry of 1st Amendment freedom cases

• Gitlow v. New York: Court agreed New York State could forbid man from plotting to overthrow government, but states must respect freedom of speech

• 1931, Near v. Minnesota: Court incorporated freedom of press

• 1937, DeJonge v. Oregon: incorporated freedom of assembly

• 1947, Everson v. Board of Education: limits against establishment of religion

• Multiple rulings incorporating other amendments

• Court has not incorporated all of Bill of Rights into 14th Amendment

• Incorporating many rights has proved important for protection of rights, liberties


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SummarizingHow has the incorporation of the Bill of Rights into the Fourteenth Amendment affected the protection of civil liberties?

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Answer(s): It has extended the protections by applying the Bill of Rights to the state governments.

Reading Check

SummarizingHow has the incorporation of the Bill of Rights into the Fourteenth Amendment affected the protection of civil liberties?


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• The First Amendment protects five freedoms that are fundamental to the American concept of liberty: religion, speech, press, assembly, and petition.

• Government may not act to establish an official religion, support one religion over another, or tell people what they must believe in matters of religion.

• The First Amendment gives every person the right to express his or her opinion. While this guarantee protects unpopular speech, free expression is not unlimited.

Section 2 at a GlanceFirst Amendment Freedoms


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Main IdeaThe First Amendment protects five fundamental freedoms that are central to the American notion of liberty: the freedoms of religion, speech, the press, assembly, and petition.

Reading Focus• How does the First Amendment guarantee religious freedom?• What are the guarantees of and limits on the freedoms of speech and of the press?• What are the guarantees of and limits on the freedoms of assembly and petition?

First Amendment Freedoms


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The First Amendment


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Chief among the freedoms guaranteed by the First Amendment is the freedom of religion. • Central factor in development of United States• Many came to colonies for freedom to practice faith without discrimination faced in home

countries.• First Amendment forbids government from establishing official religion, and guarantees

people’s right to “free exercise” of own religion

Religious Freedom

The Establishment Clause • Establishment clause declares that government cannot take actions to create official

religion or support one religion over another.• Through incorporation doctrine, state governments face same prohibition• Separation of church and state—how separated should they be?• Religious displays on public property? Public money used to support religious schools?


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Public Displays• Court issue: legality of government-sponsored religious displays• 1984, Lynch v. Donnelly: Supreme Court ruled that acknowledging religion in Christmas

display did not necessarily mean government promotion of it

• 2005: two 5–4 Supreme Court decisions regarding Ten Commandments• Two Kentucky courthouses sued for displaying copies of Ten Commandments along with

other historical documents including Constitution• Kentucky case ruled unconstitutional—focused excessively on religious aspects of Ten

Commandments• Texas sued for stone marker of Ten Commandments on state capitol grounds• Texas case ruled constitutional—marker part of historical, educational display, did not

primarily promote a religion


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Religion and Education• First Supreme Court case exploring limits of establishment clause based on educational

issues• 1947, Everson v. Board of Education: Court upheld New Jersey plan to use public money to

bus students to private schools• Did not violate establishment clause because did not single out students attending religious

schools• 1962, Engel v. Vitale: Court said public school prayer violated establishment clause even

though it was not based on specific religion• 1971, Lemon v. Kurtzman: established Lemon Test, law must meet all three standards in

order to be found constitutional: — Must have secular purpose

— Major effects must neither advance nor inhibit religion — Must not encourage “excessive government entanglement with religion”


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Free Exercise of Religion

• Free exercise clause guarantees each person right to hold any religious beliefs they choose

• Government cannot tell person what he/she must believe

• However, religious practices can be limited in some cases

• 1990, Employment Division of Oregon v. Smith: government can punish illegal drug use even if drug use part of religious practice

• 1878, Reynolds v. United States: Court ruled government could ban Mormon practice of polygamy

• Laws regulating behavior can be constitutional as long as laws neutral, do not target specific religious group

• 1940, Minorsville School District v. Gobitis: upheld expelling child from public school for refusing to salute flag, recite Pledge of Allegiance

• 1943: Court reversed self when Jehovah’s Witnesses were assaulted during World War II

• Some court rulings uphold religious freedom when state laws cause harmful consequences to members of religious groups


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Identifying the Main IdeaWhat two main guarantees regarding religion are protected by the First Amendment?

Reading Check


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Answer(s): Government cannot establish an official religion, nor can it prevent people from holding any religious beliefs they choose.

Reading Check

Identifying the Main IdeaWhat two main guarantees regarding religion are protected by the First Amendment?


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Freedom of Speech and of the Press

Why Freedom of Speech and of the Press?• Decisions in U.S. government made by representatives of people• People must have access to full range of opinions, information• Must be able to discuss, criticize government without fear of punishment• Open meeting laws require government to act in public• Freedom of Information Act: federal government must release most documents to press,

public on request• Protecting freedom of speech, press challenging in cases of unpopular ideas• First Amendment exists especially to protect such ideas

The First Amendment forbids Congress from making any law abridging freedom of speech or the press; but the Supreme Court has ruled that government may place limits on these freedoms, especially when issues of national security are concerned.


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• Individuals who believe selves to be slandered or libeled may take legal action

• 1964, New York Times Co. v. Sullivan: public officials have fewer legal protections against libel than private citizens

• Involved ad in New York Times describing racial discrimination in Alabama

• Supreme Court rejected libel suit• Court: to be libelous, false statement

about public official must demonstrate “actual malice”

• Limits to protection of even unpopular ideas

• Government can limit speech, printed material judged obscene

• False advertising also outlawed• Freedom of speech, press does not give

person right to knowingly harm another• Constitution does not protect defamation,

false statements that harm another person — Slander: spoken defamatory statement — Libel: defamation in print

Limits on Freedoms


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• During wartime certain speech or writings may be treasonous, such as publishing information about location, tactics of American forces

• Sedition: legal term for speech, actions that inspire revolt against government

• Courts have upheld laws banning seditious speech• Attempts to define seditious speech, analyze whether or not it has been protected by First

Amendment, have caused much controversy

Limits on Freedoms {continued}

• Government may limit First Amendment freedoms in name of national security, to prevent treason, sedition

• Treason: crime of making war against United States or giving “aid and comfort” to its enemies


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The Alien and Sedition Acts

• 1798: United States on verge of war with France• Federalist Party controlled presidency; Congress passed Alien and Sedition Acts; intended

to protect country from domestic dissent during war• Supposedly outlawed “false, scandalous, and malicious” statements about U.S. government

• In reality, new laws designed to silence Federalists’ rivals, Democratic-Republicans• 1800: anger over acts brought about defeat of President John Adams• Three of four acts later repealed or allowed to expire• One, Alien Enemies Act, still in effect; allows president to deport resident aliens if their

home countries at war with United States


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The Ten Amendments• World War I, Congress passed Espionage Act, Sedition Act—targeting criticism of

government, interference with war effort• 1919, Schenck v. United States: Court upheld conviction of man charged with interfering

with war effort by publishing flyer urging men to refuse to serve in military • Oliver Wendell Holmes wrote Schenck decision — Established idea that speech can be limited if it creates “clear and present

danger” of an outcome that government has right to prevent — Later changed view, argued for specific definition of dangerous speech• 1927, Whitney v. California: state has power to punish those whose words might encourage

crime, disturb peace, harm public welfare• Eve of U.S. entry into World War II — Outlawed calling for forceful overthrow of United States — Also outlawed organizing, joining group with such views

A “Clear and Present Danger”


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The First Amendment and the Media

• First Amendment also protects freedom of press• Acknowledges importance of free media in democratic society• Government has tried to balance need for media freedom, rights of others, issues of

national security• Radio, television broadcasters have fewer First Amendment protections than print media;

government regulates public airwaves• Certain language and content limited or prohibited

• Cable systems do not use public airwaves, have greater freedom• Internet also less subject to government regulation• Trying to limit pornography on Internet largely unsuccessful• 1997, Reno v. American Civil Liberties Union: Court rejected law seeking to regulate

Internet pornography, in part because users not likely to encounter offensive content by accident—ruled law violated First Amendment’s guarantee of free speech


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• 1971, New York times Co. v. United States: President Richard Nixon tried to stop New York Times publication of Pentagon Papers, classified documents about Vietnam War policy

• White House argued publication of papers would threaten national security• In reality, publication would reveal that U.S. officials had long misled public about war• Court ruled government failed to prove need for prior restraint; Pentagon Papers were

published

Prior Restraint Another freedom of press issue is prior restraint: government action that seeks to prevent materials from being published1931, Near v. Minnesota: Court ruled prior restraint almost always unconstitutionalSomeone could be punished if law broken, but not if officials believed law might be violated in the future


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Symbolic Speech

• Supreme Court has granted some First Amendment protections to symbolic speech: communication of ideas through symbols, actions

• Protected as long as speech does not pose major threat to property, public order

• 1931, Stromberg v. California: Court overturned conviction of woman displaying red flag as symbol of opposition to organized government

• Ruled California law overly vague, restricted free speech

• 1969, Tinker v. Des Moines Independent Community School District: Supreme Court ruled Iowa school could not prevent students from wearing black armbands as Vietnam War protest

• 1989, Texas v. Johnson: burning American flag as part of political protest protected act of free speech

• Cannot prohibit expression of idea simply because society finds idea offensive, disagreeable


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Drawing ConclusionsWhy are freedom of speech and freedom of the press so important in our democratic system?

Reading Check


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Answer(s): possible answer—They allow citizens access to a wide range of ideas about politics and encourage discussion of government policies and active participation in government.

Reading Check

Drawing ConclusionsWhy are freedom of speech and freedom of the press so important in our democratic system?


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Freedoms of Assembly and Petition

The Constitution includes protections for those convicted of crimes. The Framers were anxious to protect the American people from possible abuse of government powers.•People have right to meet together, express views peacefully•People have right to make opinions known to government through petitions designed to force government to consider issue, allow vote

Landmark Cases • 1937, DeJonge v. Oregon: ruling recognized right to peaceably assemble as basic right,

incorporated into 14th Amendment making it illegal for states to deny this right• 1963, Edwards v. South Carolina: students denied right to assemble, petition for redress of

grievances; if assembly is peaceful, cannot be stopped simply because bystanders ARE disorderly


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• 1971, New York times Co. v. United States: President Richard Nixon tried to stop New York Times publication of Pentagon Papers, classified documents about Vietnam War policy

• White House argued publication of papers would threaten national security• In reality, publication would reveal that U.S. officials had long misled public about war• Court ruled government failed to prove need for prior restraint; Pentagon Papers were

published

• In general, government cannot limit right of assembly, petition based on protesters’ points of view• Only in extreme cases—protesters encouraging violent acts—does government have strong reason to limit First Amendment freedom• Governments can place reasonable restrictions on time, manner, place of gatherings• Citizens can be required to obtain permit to hold demonstration

Limits on Assembly and Petition


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Freedom of Association

• Freedom of association—the right to join with others, share ideas, work toward common purpose

• Phrase does not appear in First Amendment

• Supreme Court has determined freedoms guaranteed by First Amendment establish right to freedom of association

• 1958, National Association for the Advancement of Colored People v. Alabama ex rel. Patterson

• Alabama had tried to force NAACP to give state list of members

• NAACP feared publicizing names would lead to violence, harmful consequences

• Supreme Court agreed: forcing release of members’ names would harm freedom to associate

• Found Alabama’s actions violation of Constitution


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Drawing ConclusionsWhat are the purposes of the freedoms of assembly and petition?

Reading Check


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Answer(s): allows people to meet together, express their ideas and make their views known to the government

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Drawing ConclusionsWhat are the purposes of the freedoms of assembly and petition?


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Debating the Issue: Prayer in Public Schools

Does the Constitution permit prayer in public schools?The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This protection of religious freedom both forbids the government from establishing an official religion and guarantees Americans’ right to freely exercise their own religious beliefs. But what about prayer in public schools? Some Americans believe that allowing prayer in public schools is an unconstitutional government support for religion. Others believe that the right to pray in public schools is an essential religious freedom.


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• The Second Amendment protects the right to keep and bear arms. The Third and Fourth Amendments guard the rights to security of home and person.

• The Supreme Court has interpreted the Constitution as protecting a right to privacy.• The Constitution’s guarantees of due process require that government act in accordance with

fair and public laws in whatever it does.

Section 3 at a GlanceProtecting Constitutional Rights


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Main IdeaA key purpose of the Bill of Rights is to protect individuals from government abuses. Several amendments limit the government’s power and protect individual rights against government actions.

Reading Focus• What are the purposes of and limits on the right to keep and bear arms?• How does the Bill of Rights guarantee the security of home and person?• How has the right to privacy developed?• How and why does the Constitution guarantee due process of law?

Protecting Individual Liberties


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Limits on Government


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The Right to Keep and Bear Arms

• Second Amendment, one of most heavily debated amendments today• Included to protect rights of states to form militias, ease fears of those worried about

standing army controlled by federal government — Some believe this protects individual right to own all kinds of firearms — Others believe amendment only protects rights of states to form militias• Only one major Supreme Court ruling• 1939, United States v. Miller: Court upheld law placing restrictions on possession of some

types of guns often used by criminals• Said amendment protected only guns that might be used by people in militia• Since Miller, Supreme Court has not addressed issue of gun control — Some lower courts have made decisions on gun control laws — Others believe amendment only protects rights of states to form militias


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SummarizingWhat is the controversy over the Second Amendment?

Reading Check


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Answer(s): Some believe it protects only the rights of states to form militias; others believe it allows citizens to own all types of firearms.

Reading Check

SummarizingWhat is the controversy over the Second Amendment?


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Security of Home and Person

The Third Amendment• British military sometimes quartered—housed—soldiers in colonists’ homes• Sometimes paid for food, shelter; often did not• Declaration of Independence listed quartering of troops among many American complaints

against British • Third Amendment forbids government from housing troops in private houses during times

of peace without consent of owner• During war, troops can only occupy private houses as prescribed by law• Military forces cannot simply take over house without due process

Today the Third Amendment is largely forgotten by most Americans. Forced quartering of troops has never been the subject of a Supreme Court case.


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Search and Seizure•Fourth Amendment also forbids “unreasonable searches and seizures”•Sets terms for issuing search warrant, document giving police legal authority to search private property•Government can issue search warrant only after authorities have proved to a judge there is probable cause for a search•Warrant must describe what will be searched, seized

The Fourth Amendment•Fourth Amendment also result of hated British practice in colonial times: use of writs of assistance•Writ, a legal document that gave British authorities wide power to search private homes, businesses•Could conduct searches without probable cause, strong likelihood they would find evidence of a crime•Fourth Amendment written to protect Americans against such abuses, has proved to be important guarantee of personal security

Security of Home and Person {continued}


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• Officials an enter in emergency without warrant, must follow strict rules• Only search for evidence directly related to crime being investigated• May seize other evidence only if it is in “plain view”

• 1987, Arizona v. Hicks: “plain view” did not extend to serial numbers• 1914, Weeks v. United States: evidence obtained illegally may not be used against person

in court; known as exclusionary rule• 1961, Mapp v. Ohio: conviction overturned because evidence seized in illegal search

• Fourth Amendment does not always require police to obtain warrant• Person’s right to be free does not reach outdoors• Police can search through person’s trash without warrant


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• Fourth Amendment relates to stopping, searching vehicles• Can stop, search autos without warrant under some circumstances• Can stop drivers observed committing traffic violations• May seize evidence in plain view, search any place within reach or control of vehicle’s

occupants• In some cases may also search auto’s trunk without warrant

Pedestrians and Cars Legally speaking, stopping a person considered a seizurePolice can stop someone on basis of reasonable suspicionOnce stopped, police may search person if there is concern for safety of police officer, othersTo arrest, police must be able to show probable cause



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Electronic Communications• Fourth Amendment protects person’s “papers”• Courts have had to decide if this applies to new means of communication—telegraph,

telephone, Internet• 1928, Olmstead v. United States: wiretapping not illegal search• 1967, Katz v. United States: Court reversed self; wiretapping now requires probable cause

warrant• Post-9/11, USA PATRIOT Act gave law enforcement agencies more freedom to search

telephone, e-mail communications, business, medical, library records• 2007: parts of act struck down; gave officials too much power to search phone, Internet

records without court oversight• 2005: NSA secret program monitoring communications prompted debate of violations


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Testing for Drugs Courts have held private employers have wide freedom to test their workers to discourage illegal drug useGovernments face limits in ability to test their workersCan test employees whose jobs may affect public safety—pilots, drivers


Testing for Drugs Supreme Court: public school students have fewer Fourth Amendment rights than general populationCourt has ruled school’s need to ensure safe learning environment can override privacy concernsSchool officials may search for drugs, weapons, randomly test student athletes for drugs, require other students participating in extracurricular activities be tested for drugs


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SummarizingThird Amendment—by preventing the government from quartering troops in private homes; Fourth Amendment—by forbidding unreasonable searches and seizures

Reading Check


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Reading Check

SummarizingThird Amendment—by preventing the government from quartering troops in private homes; Fourth Amendment—by forbidding unreasonable searches and seizures

Answer(s): Third Amendment—by preventing the government from quartering troops in private homes; Fourth Amendment—by forbidding unreasonable searches and seizures


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The Right to Privacy

Zones of Privacy•Court embraced right to privacy, stating several amendments create “zones of privacy,” including right of married couples to make decisions about birth control•1973, Roe v. Wade: citing right to privacy, Court held state law could not deny woman right to abortion in first three months of pregnancy

Implied•Fourth Amendment implies people can expect not to have their privacy violated by unreasonable searches•Some argue right to privacy should be considered part of concept of liberty guaranteed by due process clauses of Fifth, Fourteenth Amendments•1965, Griswold v. Connecticut

Throughout this section there have been references to the Supreme Court’s protection of a right to privacy. Yet the Constitution makes no explicit reference to such a right. Where does this right come from?


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Drawing ConclusionsWhere does the concept of the right to privacy come from?

Reading Check


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Reading Check

Drawing ConclusionsWhere does the concept of the right to privacy come from?

Answer(s): implied in the Fourth, Fifth, and Fourteenth Amendments


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Due Process of Law

Substantive Due Process•Substantive due process: concerns whether laws themselves are fair and just•Based on idea that people have rights that cannot be taken away, even by laws passed properly•1873, Slaughterhouse Cases: dissenting opinion became basis for later rulings on due process

Procedural Due Process•Procedural due process: certain procedures must be followed before punishing person•1979, Mackey v. Montrym: state can take away driver’s license if driver refused breath test; penalizing without finding guilty•Getting drunk drivers off road strong enough reason to deny due process

The concept of due process is key to the protections provided by the Bill of Rights. Due process requires that government act fairly and reasonably in accordance with established laws. Due process limits government’s police power, or its ability to regulate behavior for the common good.


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ContrastingWhat is the difference between procedural and substantive due process?

Reading Check


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Reading Check

ContrastingWhat is the difference between procedural and substantive due process?

Answer(s): Procedural due process involves issues concerning the fairness of legal procedures; substantive due process involves the fairness of the laws themselves


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• The Constitution protects rights of people accused of crimes, including the right to a fair trial.• People convicted of crimes also have certain rights. The Constitution prohibits government

from imposing excessive fines or cruel and unusual punishments.

Section 4 at a GlanceCrime and Punishment


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Main IdeaThe Constitution contains many features that help ensure that people accused of a crime receive fair and reasonable treatment—from arrest to trial to punishment.

Reading Focus• How does the U.S. justice system address both civil law and criminal law?• How does the Constitution guarantee the rights of those accused of a crime?• What are the major constitutional guarantees for ensuring fair trials?• How does the Constitution address the punishment of persons convicted of crimes?

Crime and Punishment


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Protections for the Accused


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The U.S. Justice System

Types of Law• Law commonly classified into two categories• Civil law covers private disputes between people over property, relationships• People who violate civil law often fined, otherwise punished, not imprisoned• Criminal law is system for dealing with crimes, punishments• People who violate criminal law may be fined, imprisoned, even executed

The basic freedoms to think and to act as we choose are guarded by the U.S. justice system, which also provides protections for persons accused of crimes and for those convicted of crimes. The justice system seeks fair and impartial outcomes for disputes of all kinds. It follows rules and guidelines to resolve lawsuits, criminal trials, and other disputes.


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Civil Lawsuits•Civil law case called lawsuit; plaintiff brings suit against defendant, seeking damages, compensation•Alternative dispute resolution sometimes sought rather than trial; mediation, arbitration, negotiation•Basic steps of trial: plaintiff hires lawyer, files complaint; seek to settle before trial; trial goes forward; trial heard by jury, or judge; jury, judge issues ruling; decisions may be appealed

Civil Law•Several categories: contracts; tort law; property law; family law•Contract: legal agreement between two or more parties; verbal or written, but all legally binding•Tort law involves actions harmful to another person; medical malpractice, civil rights violation•Property law involves purchase, sale of property; house, auto•Family law, marriage, divorce, child custody

The U.S. Justice System {continued}


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• Criminal Law — Deals with crime, offenses against public — Crime occurs when person breaks local, state, federal law — Misdemeanor crimes, relatively minor offense; traffic, petty theft — Felony crimes, more serious; murder, sexual assault, grand theft• Criminal Case Processes — 5th Amendment guarantee: cannot face trial for most federal crimes without

first facing grand jury — Grand jury decides if enough evidence to charge person with crime — Issues formal complaint, indictment — Accused arrested, taken into custody — Pretrial hearings — Plea entered


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• Criminal Case Processes (cont’d.) — Bail—money pledged by accused as guarantee he/she will return for trial—may be set

— Plea bargain may be reached — If trial proceeds, complex process begins• Jury Trial — Jury selection comes first — Prosecution and defense each offer evidence, witnesses — Judge or jury decides case — Either side may appeal decision to higher court — If defendant found guilty, sentencing takes place at separate hearing — Sentences depend on severity of crime: probation, prison time, capital punishment—punishment by death—most severe sentence


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Comparing and ContrastingIn the U.S. justice system, how are civil and criminal cases similar and different?

Reading Check


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Reading Check

Comparing and ContrastingIn the U.S. justice system, how are civil and criminal cases similar and different?

Answer(s): Both may be settled before trial or in a courtroom, and both involve punishments. Civil cases cover disputes between people over property and relationships; criminal cases involve people accused of committing crimes.


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Rights of the Accused

Habeas Corpus• Writ of habeas corpus, legal order requiring imprisoned person to be brought before court

so judge may determine whether or not imprisonment is legal• Important protection against government abusing police power• Has received much attention in aftermath of 9/11• Many suspected terrorists held several years after capture with no formal hearing, judicial

process• 2004, Hamdi v. Rumsfeld and Rasul v. Bush: unlawful enemy combatants do have limited

rights to challenge imprisonment• 2006: Congress passed law establishing tribunal system

In our justice system, we presume that people accused of crimes are innocent until proven guilty beyond a reasonable doubt. Balancing the rights of the accused with the need to protect society from criminals is a major challenge.


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Rights of the Accused {continued}

Self-Incrimination• Fifth Amendment protects accused from witnessing against him/herself• Protection covers any government proceeding that might lead to criminal charges; covers

only spoken testimony• Government can get people to testify against selves by granting immunity• 1966, Miranda v. Arizona: questioning suspects without giving right to consult with attorney violates Fifth Amendment

Habeas Corpus• Fifth Amendment includes guarantee people cannot be tried for most federal crimes

without first being indicted by grand jury• Some states do not have grand jury system• Criminal charges brought by prosecutor in an information


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Self-Incrimination (cont’d.)• Miranda decision requires police to read Miranda warnings to suspects• Miranda warnings, list of constitutional rights: right to remain silent; anything they say may

be used against them in court; right to have attorney; court-appointed attorney provided if they cannot afford attorney

• Police failure to advise of Miranda rights may result in courts refusing to consider confession as evidence

• Miranda warnings controversial• Critics: some guilty people go unpunished because police did not inform of rights• Supporters: warnings protect innocent people from being tricked, forced into confessing to

crimes they did not commit


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Rights of the Accused {continued}

Bail• Eighth Amendment: “excessive bail shall not

be required”• Not all must be allowed to post bail• Some charged with crimes like murder not

allowed to post bail

Bills of Attainder• Bill of attainder declares person guilty;

takes away right to trial• Constitutionally prohibited from being

passed by states, Congress as violation of separation of powers

Ex Post Facto Laws• Ex post facto laws apply to events in past;

outlawed by Constitution• If not prohibited, such laws would make it

possible to punish person for actions legal at time committed

Victims’ Rights • Some feel Constitution does not sufficiently

protect victims of crimes• Victims’ rights laws defend right to be

treated with fairness, respect; be present at court proceedings, informed of outcome of trial


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Making InferencesWhy do persons accused of crimes need special protection against possible government abuse?

Reading Check


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Reading Check

Making InferencesWhy do persons accused of crimes need special protection against possible government abuse?

Answer(s): possible answer—to prevent innocent people from being punished


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Landmark Supreme Court Cases Miranda v. Arizona (1966)

Why It Matters: Miranda v. Arizona protects the rights of criminal suspects during police interrogations. Suspects in police custody must be informed of their rights before questioning.


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Guarantees of a Fair Trial

Speedy and Public Trial• Sixth Amendment: “accused shall enjoy the right to a speedy and public trial”• Innocent person may spend less time in jail, witnesses’ memories fresher, testimony more

accurate• Public trial prevents abuses of law, allows public to monitor proceedings• Press access to courtroom controversial; may influence jurors• Supreme Court: televising trial does not prevent fair trial• Courts have power to limit public access to courtrooms• May close trial to public to ensure fair trial, protect the public interest

The Constitution provides many safeguards for the rights of those accused of crimes. Portions of the Fifth, Sixth, Seventh, and Eighth Amendments, as well as Article I, guarantee the basic courtroom protections that define the American legal system.


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Trial by Jury• 6th Amendment: right to trial by jury, incorporated into 14th Amendment• Trial jury made up of 12 jurors; takes place in district in which crime took place• Bench trial: one in which judge alone hears trial; usually minor criminal trials

Right to an Adequate Defense• Defendants must be informed of charges against them; be confronted with, have chance to cross-

examine, witnesses against them• Adequate legal representation guaranteed; right to attorney; lawyer’s failure to meet professional

standards violation of defendant’s rights

Double Jeopardy• Double jeopardy: no one can be made to stand trial twice for same offense• Incorporated into 14th Amendment, but not double jeopardy if jury fails to reach verdict

and government tries case again


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Reading Check

SummarizingHow does the Bill of Rights help ensure a fair trial for defendants?


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Answer(s): by guaranteeing a speedy and public trial, a trial by jury, adequate defense for the accused, protection from double jeopardy

Reading Check

SummarizingHow does the Bill of Rights help ensure a fair trial for defendants?


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Punishment

The Constitution includes protections for those convicted of crimes. The Framers were anxious to protect the American people from possible abuse of government powers.

• Excessive Fines — Eighth Amendment: prohibits government from imposing excessive fines — Limit applies only to government, not jury awards in civil cases• Cruel and Unusual Punishments — Eighth Amendment bans cruel and unusual punishments — Supreme Court has never defined “cruel and unusual” — Debate has figured into numerous cases involving death penalty


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Punishment {continued}

• 1972, Furman v. Georgia• 1976, Gregg v. Georgia• Most states allow death penalty• Many Americans concerned about how

fairly penalty is applied• New technology has helped prove

innocence of some convicted criminals

Capital Punishment•Death penalty practiced at time Bill of Rights written•Supreme Court has consistently ruled capital punishment constitutional•Number of crimes for which capital punishment applied reduced•Court focused on just application of penalty

Lethal injection has become the subject of controversy, particularly over whether or not it constitutes cruel and unusual punishment.


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SummarizingWhat issues involving capital punishment are controversial?

Reading Check


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Answer(s): possible answer—Is it an effective crime deterrent? Is it cruel and unusual punishment? Is it being applied fairly?

Reading Check

SummarizingWhat issues involving capital punishment are controversial?


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Fundamental Rights and the Doctrine of Incorporation Next to the preservation of the Union and the abolition of slavery, the most important constitutional development of the post–Civil War era was the passage of the Fourteenth Amendment. Originally intended to protect the rights of newly freed African Americans, the amendment has become a principal guarantee of the fundamental rights of all Americans, as important as the Bill of Rights itself.

We the People: The Citizen and the Constitution

• What is procedural due process?• What is substantive due process?• What is the doctrine of “incorporation”?


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