Chapter 4: Civil Liberties

XIV Amendment (Fourteenth Amendment)

"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." This provides for a single national citizenship. "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Unites States; nor shall any state deprive any person of life, liberty, or property, without due process of law." HOWEVER, this amendment did not initially extend the Bill of Rights to the states.

Bowers v. Hardwick

"heterosexual and homosexual sodomy". Overturned 17 years later by Lawrence v. Texas saying that state legislatures no longer had the authority to make private sexual behavior a crime.

The Federalists in Massachusetts, South Carolina, New Hampshire, Virginia, and New York made an "__________" to add a Bill of Rights and a promise to confirm _____________.

"unwritten but unequivocal pleadge" to add a Bill of Rights and a promise to confirm (in what became the tenth amendment) the understanding that all powers not delegated the the national government or explicitly prohibited to the states were reserved to the states or to the people.

What were the two main arguments against adding a Bill of Rights to the Constitution? Who made these arguments?

1) It was irrelevant in a constitution providing the national government with only delegated powers. So how could the government abuse powers it was not given in the first place? 2) Bill of Rights would weaken the new government by limiting its jurisdiction before it even had an opportunity to organize itself. Alexander Hamilton and other Federalists

How many amendments were adopted by the House? How many amendments were adopted by the Senate? How many of the amendments were ratified by the necessary 3/4ths of the states?

17; 12; 10. The Ten Amendments became a part of the Constitution on December 15, 1791.

In what year did more provisions of the Bill of Rights become incorporated?

1961. Until 1961, only the first amendment had been fully and clearly incorporated into the Fourteenth Amendment. After 1961, several other important provisions of the Bill of Rights were incorporated.

What was the most important item of business/consideration for the first Congress meeting under the new Constitution?

A consideration of a proposal of an added bill of rights to the Constitution. There was an original proposal of this by the Virginia delegate George Mason.

Grand Jury

A jury that determines whether sufficient evidence is available to justify a trial. They play an important role in federal criminal cases. Grand juries do not rule on the accused's guilt or innocence. Considered the "oldest institution known to the Constitution."

What is the best known procedural rule?

A person is innocent until proven guilty. This rule does not question the government's power to punish someone for committing a crime, it only questions the way the government determines who committed the crime.

Libel

A written statement made in "reckless disregard of the truth" and considered damaging to a victim because it is "malicious, scandalous, and defamatory"

When did signs of change come for the incorporation of the amendments?

After 1954 in Brown v. Board of Education when the Supreme Court overturned the infamous Plessy v. Ferguson. Brown clearly indicated that the supreme court was going to be expansive about civil liberties because in that case the Court effectively promised that it was actively going to subject the states and all actions affecting civil rights and civil liberties to a strict scrutiny.

When did the Bill of Rights become a vital instrument for the extension of civil liberties?

After the civil war and the revolutionary Fourteenth Amendment intervened.

Prior restraint.

An effort by a government agency to block the publication of material it deems libelous or harmful in some other way: censorship. In the United States, the Courts forbid prior restraint except under the most extra ordinary circumstances.

Slander

An oral statement made in reckless disregard of truth and considered damaging to the victim because it is "malicious, scandalous, and defamatory"

Where is Congress given jurisdiction for constitutional issues?

Article II, which gives Congress the Power to make the laws, and from its role in the process of amending the Constitution (as defined in Article V).

Where in the Constitution is the Supreme Court given jurisdiction over constitutional issues?

Article III of the Constitution, from Statutes, and from prior decisions of the Court itself.

How did Justice William Brennan define obscenity?

As speech or writing that appeals to the "prurient interest" - that is books, magazines, films, and other material whose purpose is to excite lust as this appears to the average person, applying contemporary community standards"

Which court case confirmed dual citizenship?

Barron v. Baltimore.

Why did the Supreme Court declare Ohio's Criminal Syndicalism Act unconstitutional?

Because it punished persons who "advocate, or teach the duty, necessity, or propriety [of violence] as a means of accomplishing industrial or political reform"

Why do many believe that a Bill of Liberties would be a better name for the Bill of Rights?

Because the amendments focus on what government must NOT do (thou shall nots), limiting its jurisdiction.

Which case reversed the Palko case?

Benton v. Maryland (1969). Incorporated double jeopardy.

In criminal cases, guilt has to be proved ____________.

Beyond reasonable doubt.

With the exception of ______ which are subject to federal regulation, the press is protected under the doctrine prohibiting _______.

Broadcast media; Prior restraint

Civil *liberties* are ______ or ______ on collective action.

Civil liberties are limitations or restrictions on collective action. They define certain spheres of activity in which the government's authority/jurisdiction to interfere with individual conduct is limited.

What is among the most important constitutional instruments in the Unites States for solving collective action problems?

Civil rights and civil liberties. They also help regulate collective action.

Civil *rights* are the ______ determining _______.

Civil rights are the rules determining who may participate or be represented in collective-decision making processes, as well as regulating the ways in which the government can and cannot treat its citizens.

Generally speaking, how do civil rights and civil liberties affect collective action?

Civil rights regulate collective action by establishing important decision rules for the government's conduct. Civil liberties limit collective action by restricting the government's jurisdiction.

Does commercial speech have full First Amendment protection?

Commercial speech such as newspaper or television advertising does NOT have full first amendment protection because it cannot be considered political speech. A big concern is false and misleading advertisement.

Recite the two distinct clauses that the First Amendment provides for the freedom of religion.

Congress shall make no law (1) respecting an establishment of religion (establishment clause), or (2) prohibiting the free exercise thereof (free exercise clause)

The First Amendment treats the freedoms of assembly and petition as _______ to the freedoms of religion and political speech.

Equal.

Gideon v. Wrainwright.

Established the right to counsel in a criminal trial. One of the most famous cases that expanded the fourteenth amendment's reach.

Define Precedent.

Every court decision recites the history of prior court decisions relating to the principles at hand. Seldom will a court depart from established precedent.

Originally, the limits in the Bill of Rights applied only to the _______.

Federal Government It took a series of Supreme Court decisions in the twentieth century to apply these limits to the states as well.

What are two of the most controversial forms of symbolic expression allowed under the Constitution?

Flag burning and cross burning.

Religious Freedom Restoration Act (RFRA) of 1993

Forbids any federal agency or state government to restrict a person's free exercise of religion unless the federal agency or state government demonstrates that its action "furthers a compelling government interest" and "is the least restrictive means of futhering that compelling governmental interest."

Which amendments are the essence of the due process of law?

Fourth Fifth (where due process shows up) Sixth Eighth

Can state and federal governments enact regulations governing speech?

Generally speaking, state and federal governments may enact reasonable regulations governing the time, place, and manner of speech so long as they do not discriminate against particular messages or messengers.

The Fifth Amendment

Grand Jury Double Jeopardy Self-Incrimination Eminent Domain

In the second revolution (involving the Bill of Rights and the Fourteenth Amendment) the court ________________.

Had to assume an active role, which required close review, not of Congress but of the laws of STATE LEGISLATURES and the decisions of state courts to apply a single national Fourteenth Amendment standard to the rights and liberties of all citizens.

In the first revolution (the area of commerce) the Court ________.

Had to decide to assume a passive role by not interfering as Congress expanded the meaning of the Commerce clause of Article I Section 8.

Many jurisdictions have drafter ordinances banning forms of expression designed to assert _______ toward one or another group.

Hatred. Such ordinances seldom pass constitutional muster.

Why did James Madison fight for a Bill of Rights?

He recognized the urgency of obtaining the Antifederalists' support for the Constitution and new government.

Mapp v. Ohio

Illustrates the exclusionary rule

When did the first modern free speech case arise?

Immediately after World War I. It involved persons who had been convicted under the Federal Espionage Acts of 1917 for opposing American involvement in the war. The supreme court upheld the act and refused to protect the speech rights of the defendants on the grounds that their activities presented a clear and present danger to security.

One example of a case that passed the lemon test

In 1995, the Court narrowly ruled that a student religious group at the University of Virginia could not be denied student activities funds merely because it was a religious group espousing a particular viewpoint about a deity.

Why were the provisions for due process added in the Bill of Rights?

In order to improve the probability that the standard of reasonable doubt will be respected.

Where are America's most important civil liberties found?

In the Constitution's Bill of Rights.

How do freedom of assembly and freedom of petition go beyond freedom of speech?

It is speech associated with action.

Who said "In part, this reflects the growing appreciation that commercial speech is part of the free flow of information necessary for informed choice and democratic participation?"

Louis Fisher

Define Militia.

Militia was understood at the time of the founding to be a military or police resource for state governments, and militias were specifically distinguished from armies and troops, which came within the Sole constitutional jurisdiction of congress.

At first the right to council was met by assigning lawyers from the community as a formal public obligation, now ____________.

Most states and cities now have created an office of public defender whose state employed professional defense lawyers typically provide poor defendants with much better legal representation.

As with the Federalism revolution, the constitutional revolution in civil liberties was a movement toward ___________.

Nationalization.

Does the Constitution specifically mention a right to privacy?

No but the Ninth Amendment declares that the rights enumerated by the constitution are not an exhaustive list.

Is the provision for a grand jury incorporated in the fourteenth amendment to apply to state criminal prosecutions?

No, thus some states operate without a grand jury. In those states the prosecuting attorney simply fills out a "bill of information" affirming that there is sufficient evidence available to justify a trial.

Were the Children's Internet Protection Act and the PROTECT act declared unconstitutional?

No. They did not violate first amendment rights.

What kind of speech was the activity of greatest concern to the framers of the Constitution?

Political speech.

Due Process.

Proceeding according to law and with adequate protection for individual rights. The Bill of Rights entitles every American to due process of law.

Eighth Amendment

Prohibits: Excessive bail or fines Cruel and Unusual punishment (death penalty big controversy)

What was the last provision/amendment (listed in our textbook) to be incorporated?

Right to bear arms (second amendment), 2010. McDonald v. Chicago.

Gideon v. Wrainwright

Right to council in all felony cases

Lemon test

Rule articulated in Lemon v. Kurtzman according to which governmental action in respect to religion is permissible if it is: - Secular in purpose - Does not lead to "excessive entanglement" with religion and - Neither promotes not inhibits the practice of religion

Some provisions in the Bill of Rights are ______ of law, some are not.

Settled areas of law.

Some of the restraints are _______, putting limits on _____ the government shall and shall not have the power to do. Other restraints are ________, dealing with ______ the government is supposed to act.

Some of the restraints are SUBSTANTIVE, putting limits on WHAT the government shall and shall not have the power to do. Other restraints are PROCEDURAL, dealing with HOW the government is supposed to act. Substantive and procedural restraints together identify the realm of civil liberties.

Define Speech Plus.

Speech accompanied by activities such as sit-ins, picketing, and demonstrations. Protection of this form of speech under the First Amendment is conditional, and restrictions imposed by state or local authorities are acceptable if properly balanced by considerations of public order.

How have speech codes at public universities been treated by the supreme court?

Speech codes at public universities have been struck down by federal judges as unconstitutional infringements on speech.

Fighting words.

Speech that directly incites damaging conduct.

The Sixth Amendent

Speedy and Public trial Be informed of the nature and cause of the accusation Be confronted with witness against him Right to Counsel

Escobedo v. Illinois

Supreme Court ruled that suspects had a right to council during police interrogations not just when their cases reached trial

Define Strict Scrutiny.

THE MOST STRINGENT STANDARD OF JUDICIAL REVIEW OF A GOVERNMENT'S ACTIONS IN WHICH THE GOVERNMENT MUST SHOW THAT THE LAW SERVES "A COMPELLING STATE INTEREST"

What does the First Amendment provide?

That Congress shall make no law: - Respecting an establishment of religion - Abridging the freedom of speech, of the press, or assembly and petition This is the only amendment in the Bill of Rights that addresses itself exclusively to the national government (most of the other amendments say "no person").

In what case was the question of whether the Bill of Rights also limits state governments settled?

The 1833 case of Barron v. Baltimore which confirmed dual citizenship (each American was a citizen of the national government and separately a citizen of one of the states). In paving its streets, the city of Baltimore had disposed so much sand and gravel in the water near John Barron's wharf that the value of the wharf for commercial purposes was virtually destroyed. Barron brought the city into court on the grounds that it had, under the Fifth Amendment, unconstitutionally deprived him of his property. Here Chief Justice Marshall said "...the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the states. This meant that the Bill of Rights did not apply to decisions or procedures of state (or local) governments.

McCreary v. ACLU

The Court determined by a 5-4 margin that a display of the Ten Commandments inside two Kentucky court houses was unconstitutional.

City of Boerne case.

The Supreme Court declared RFRA unconstitutional because it violated the separation of powers principle, infringing on the powers of the judiciary by going so far beyond its lawmaking powers that it ended up actually expanding the scope of religious rights rather than just enforcing them. The court thereby implied that questions requiring a balancing of religious claims against public policy claims were reserved strictly to the judiciary.

In 1938, freedom of speech (includes freedom of the press) was given extraordinary constitutional status when __________.

The Supreme Court established that any legislation that attempts to restrict these fundamental freedoms "is to be subjected to a more exacting judicial scrutiny... than are most other types of legislation."

Near v. Minnesota

The Supreme Court held that except under the most extraordinary circumstances, the First Amendment prohibits government agencies from seeking to prevent newspapers or magazines from publishing whatever they wish.

District of Columbia v. Heller.

The Supreme Court ruled that the federal government could not prohibit individuals from owning guns for self defense in their homes.

Exclusionary rule

The ability of courts to exclude evidence obtained in violation of the Fourth Amendment (applied to all states by the Fourteenth Amendment).

Briefly describe the Miranda Rule.

The convention derived from the Supreme Court's 1966 ruling in the case of Miranda v. Arizona whereby persons under arrest must be informed of their legal rights, including their right to counsel, before undergoing police interrogation.

Mapp v. Ohio.

The court held that evidence obtained in violation of the fourth amendment would be excluded from trial.

In cases of school sponsored observations, what was the courts view on allowing Bible reading, nondenominational prayer, etc.?

The court reasoned that school-sponsored observations, even of an apparently nondenominational character, are highly suggestive of school sponsorship and therefore violate the prohibition against establishment of religion.

Wisconsin v. Mitchell

The court ruled that a state can consider whether a crime was motivated by bias against a minority group.

Van Orden v. Perry

The court said in a 5-4 decision that a display of the 10 commandments in the Texas state capital did not violate the Constitution.

McDonald v. Chicago

The court struck down a Chicago firearms ordinance and applied the second amendment to the states as well.

Who primarily exercises jurisdiction over civil rights and civil liberties issues?

The courts. The U.S. Supreme Court in particular asserts a good deal of agenda and veto power when it comes to the interpretation of constitutional principles

Clear and Present Danger

The criterion formerly used to determine whether free speech is protected or unprotected, based on its capacity to present a "clear and present danger" to society.

What is the most severe restraint ever imposed by the constitution and the courts on the behavior of the police?

The exclusionary rule

Double Jeopardy

The fifth amendment right providing that a person cannot be tried twice for the same crime

Free Exercise Clause

The first amendment clause that protects a citizen's right to believe and practice whatever religion he or she chooses.

Establishment Clause

The first amendment clause that says, "Congress shall make no law respecting an establishment of religion." This law means that a wall of separation exists between church and state. * The government is prohibited from establishing an official church * The government may not take sides among competing religions but it is not prohibited from providing assistance to religious institutions or ideas so long as it shows no favoritism.

Preferred Position.

The higher standard of Judicial Review.

What act did congress adopt within seven years of the ratification of the Bill of Rights that made it a crime to say or publish anything that might tend to defame or bring into disrepute the government of the United States?

The infamous Alien and Sedition acts.

Explain "selective incorporation"

The one by one application of the provisions of the Bill of Rights.

In Civil suits, verdicts rest on _________________.

The preponderance of the evidence.

Define Civil Liberties.

The protections of citizens from improper governmental action.

The point and purpose of the second amendment is _________.

The provision for militias; they were to be the backing of the government for the maintenance of local public order.

Right to Privacy

The right to be left alone, which has been interpreted by the supreme court to entail individual access to birth control and abortions.

What is the first clause of the fifth amendment?

The right to have a grand jury determine whether a trial is warranted

Briefly describe the Palko case.

The state of Connecticut had indicted a man named Frank Palko for first degree murder-but a lower court found him guilty of only second degree murder and sentenced him to life in prison. Unhappy with the verdict the state of Connecticut appealed the conviction to its highest court, won the appeal, got a new trial, and succeeded in getting Palko convicted on first degree murder. Palko appealed to the supreme court on what seemed an open and shut case of double jeopardy. The justices decided that double jeopardy was NOT one of the provisions of the Bill of Rights incorporated into the Fourteenth Amendment. Palko was eventually executed for the crime.

When did the Supreme Court begin nationalizing the Bill of Rights by incorporating its civil liberties provisions into the 14th Amendment?

The very end of the 19th century. It was a process of incorporations. First eminent domain, then freedom of speech, then freedom of the press, etc.

Today's conception of civil liberties has been shaped by _________.

Their historical development and their interpretation by key political actors, especially the Supreme Court.

Who believed that an omission of the Bill of Rights was a major imperfection to the Constitution?

Thomas Jefferson and Antifederalists

What is the purpose of the Fourth Amendment?

To guarantee the security of citizens against unreasonable (improper) searches and seizures.

O'Brien Test

Under the terms of the O'Brien test, a statute restricting expressive or symbolic speech must be justified by a compelling government interest and be narrowly tailored toward achieving that interest.

Communications Decency Act

Was designed to regulate the online transmission of obscene material. Eventually the CDA was struck down.

What was the precedent setting case involving free exercise clause?

West Virginia State Board of Education v. Barnette (1943) which involved the children of a family of Jehovah's Witnesses who refused to salute and pledge allegiance to the American flag on the grounds that their religious faith did not permit it.

Briefly describe the Pledge of Allegiance.

Written in 1892, the pledge had been used in schools without any religious references. But in 1954, in the midst of the Cold War, Congress voted to change the pledge in response to the "godless Communism" of the Soviet Union. The conversion was made by adding two key words, so that the revised version read, "I pledge allegiance to the flag of the United States of America, one nation under God, indivisible, with liberty and justice for all."

Do pornography and obscenity fall outside the realm of protected speech?

Yes but it is impossible to draw a clear line defining where protection ends and unprotected speech begins.

Is every government agency constitutionally required to respect American's civil liberties?

Yes.