Chapter 4: Civil Liberties
eminent domain
Power of a government to take private property for public use.
Third Amendment protects what right?
Prevent soldiers from quartering in my house - most consider this obsolete - reflects broader idea that our homes lie within a "zone of privacy"
ex post facto laws
used to punish crimes that were not crimes at the time they were committed, or it can be used to increase the severity of punishment after the fact.
writ of habeas corpus
used in our common-law legal system to demand that a neutral judge decide whether someone has been lawfully detained
due process clause
14th amendment clause stating that no state may deprive a person of life, liberty, or property without due process of law - people must be treated fairly and impartially by government officials
List Three Categories of Bill of Rights
1. Basic Individual Freedoms (1st-4th amendments) 2. Protection for people suspected or accused of criminal activity (Fourth (partly), 5th - 8th 3. Guarantee for state role (9th & 10th)
Describe the origin of civil liberties in the U.S. context
1. Core of fight for independence: people have fundamental rights and liberties 2. Declaration of Independence doesn't guarantee specific freedoms, but "all men are create equal" inspiration for civil rights, women's rights 3. Three areas in Dec. Of Indep. where liberties protected: a. Bill of Attainder prohibited b. Prohibition of ex post facto laws c. Limiting Congress from suspending writ of habeus corpus 4. At times, national security issues trumped individual liberties - internment of Jap-Americans during WWII - Obama detaining suspected terrorists 5. Constitution ratified w/o Bill of Rights, but agreed to add as amendments - NY, Virginia, Massach. wouldn't sign w/o this agreement 6. Federalists: no Bill of rights necessary; Anti-Federalists wanted Bill of Rights 7. Bill of Rights added by First Congress
Has their been any controversy over the interpretation of the first amendment ?
1. Disputes over how much the govt can acknowledge a religious belief ex. allows God in motto: In God We Trust, prayers before meetings 2. Jehovah Witnesses beliefs contradict laws/school rules - don't believe in military participation, saluting flag, reciting Pledge of Allegiance, door-to-door evangelism 3. Hobby Lobby, objected to providing morning-after pill with employer insurance 4. Wedding cake for gay couple 5. Peyote case: men used hallucinogenic peyote plant as part of religious sacrament and were fired; Supreme court ruled that "compelling govt interest" standard should not apply 6. Freedom of Expression controversies rare until 1900s. - 1917s: supporters of Communism jailed; - Schenck v US (1919) encouraging draft dodging, jailed 7. Defining obscenity difficult; Use Miller test
What liberties and rights are guaranteed by first amendment?
1. Establishment clause: Congress is prohibited from creating or promoting a state-sponsored religion (this now includes the states too) - at time US founded, many countries had established church, fought wars over religion - can't favor one religion over another 2. Free Exercise Clause , limits the ability of the government to control or restrict religious practices. 3. Freedom of Expression - free speech, press, assembly and petition
Identify the key positions on civil liberties taken at the Constitutional Convention
1. Federalists - only needed limited set of enumerated powers of Congress and their limitations - separate bill of rights not needed - Hamilton: Constitution did not need to regulate every concern, only general interests - James Madison: since US govt hasn't repealed state declaration of rights, no Bill of Rights necessary 2. Anti-Federalists - Wanted Bill of Rights - Thought elastic clause would allow Congress to pass laws which would limit rights unless amendments made granting people rights - federal govt's power should be restrained
Explain the Civil War origin of concern that the states should respect civil liberties
1. Pre-civil war, Supreme Court ruled against expanding Bill of Rights to curb power of states - Barron v Baltimore: ruled Bill of Rights applied only to actions of fed. govt 2. After civil war, passed two amendments b/c South was passing 'black codes', restricted rights of former slaves a. 14th amendment,: - state can't pass law abridging rights of citizens of US - due process clause:can't deprive person of life, liberty or property b. 15th amendment: extended right to votes to black voters
What rights are protected by the Sixth Amendment?
1. Right to speedy, public trial 2. impartial jury 3. right of accused of crimes to present witnesses in their own defense (if necessary, compelling them to testify) and to confront and cross-examine witnesses presented by prosecution 4. right to attorney a. Gideon v Wainwright: anyone accused of crime was entitled to an attorney even if couldn't afford one; - increased need for public defenders
Identify the two senses of "right to privacy" embodied in the Constitution
1. Sexual Privacy a. Griswold v Connecticut, struck down state law forbidding even married couple from using any form of birth control b. Roe v Wade - right to abortion c. Lawrence v Texas - right to gay sex 2. Privacy of Communications and Property - cameras, transponders in vehicles so don't stop for tolls, GPS, tracking emails, phone calls, drones
free exercise clause
A First Amendment provision that limits the ability of the government to control or restrict religious practices - regulates govt suppression of religious beliefs and practices - ex. Does a Jewish policy officer have to work on Friday night when that's when she observes Shabbat
Establishment Clause
Clause in the First Amendment that says the government may not establish an official religion.
civil rights
Guarantees that government officials will treat people equally and that decisions will be made on the basis of merit rather than race, gender, or other personal characteristics - Declaration of Independence states "all mean are created equal"
civil liberties
Limitations on government power, intended to protect freedoms that governments may not legally intrude on
Is the right to freedom of expression absolute?
No. 1. Incitement of a criminal act, "fighting words" and threats are not protected - illegal to burn cross 2. obscenity, exception 3. Business restrictions a. must disclose nutritional info on food/beverage containers b. warning labels on tobacco products c. prices advertised by airline include all taxes and ffes d. advertising regulated
Symbolic Speech
Non-verbal communication such as wearing clothing like an armband that carried a political symbol or raising a fist in the air, for example
Freedom of Expression
Part of the First Amendment protecting freedom of speech, press, assembly, and the right to petition the government.
conscientious objectors
Person who refuses to enter the military or bear arms due to moral or religious reasons
Fourth Amendment protects what right?
Places limits on searches and seizures - govt officials are required to apply for and receive a search warrant prior to a search or seizure
What rights are protected by the Eighth Amendment?
Protection against harsh punishments 1. Excessive bail not required 2. No excessive fines imposed 3. No cruel and unusual punishments inflicted
What rights does the Fifth Amendment protect?
Related to rights of accused 1. Serious crimes can be prosecuted only after an indictment has been issued by a grand jury - applies only to felonies - does not apply to states 2. Protects individuals against double jeopardy 3. Protection against self-incrimination 4. prohibits the federal government from depriving people of their "life, liberty, or property, without due process of law." 5. takings clause: private property [cannot] be taken for public use, without just compensation - protection of individuals' economic liberty
Seventh Amendment
Right to a jury trial in civil cases
Sixth Amendment
Right to a speedy trial by an impartial jury
Fourth Amendment
Right to be secure from unreasonable search and seizure
Controversy over 2nd Amendment
Right to bear arms 1. Debate over whether right to arm for civil defense or right of people to have guns 2. regulations introduced in 1930s in response to organized crime and in 1960s b/c of violent street protests, 1980s after assassination attempt on Pres. Reagan 3. District of Columbia v. Heller, Supreme Court ruled that some gun control laws did violate 2nd Amendment
What rights are protected by the Ninth Amendment?
Right to ensure that those interpreting the Constitution would recognize that the listing of freedoms and rights in the Bill of Rights was not exhaustive - critics: can use amendment process to add rights which were omitted supporters: protects rights of minority, so that they are not subject to whims of popular majorities
First Amendment
Right to freedoms of religion and speech; right to assemble and to petition the government for redress of grievances
Second Amendment
Right to keep and bear arms to maintain a well-regulated militia
Eighth Amendment
Right to not face excessive bail, excessive fines, or cruel and unusual punishment
Third Amendment
Right to not house soldiers during time of war
Fifth Amendment
Rights in criminal cases, including due process and indictment by grand jury for capital crimes, as well as the right not to testify against oneself
What rights are protected by Seventh Amendment?
Rights of those engaged in civil disputes 1. Right of trial by jury preserved 2. limits the ability of judges to reconsider questions of fact, rather than of law, that were originally decided by a jury - ex. if jury decides person was responsible for action, if case appealed, appeals judge cannot decide someone else is responsible
Ninth Amendment
Rights retained by the people, even if they are not specifically enumerated by the Constitution
Tenth Amendment
States' rights to powers not specifically delegated to the federal government
economic liberty
The belief that individuals should be allowed to pursue their economic self-interest without government restrictions. - their right to obtain, use, and trade tangible and intangible property for their own benefit.
selective incorporation
The process by which provisions of the Bill of Rights are brought within the scope of the Fourteenth Amendment and so applied to state and local governments. ex. 2nd amendment, right to bear arms, do all states have to uphold this law?
self-incrimination
The right to remain silent - The situation occurring when an individual accused of a crime is compelled to be a witness against himself or herself in court. The Fifth Amendment forbids self-incrimination. - phrase for it: "taking the fifth" - suspects required to be informed of right against self-incrimination when interrogate
Controversy related to Fifth Amendment
Use of eminent domain 1. Used by economically connected big businesses to build new factories, sports teams seeking new stadium 2. Kelo v City of New London: officials took land from middle=class neighborhood and built pharmaceutical company corporate campus
Lemon Test
Used to decide whether a law or action that might promote a particular religious practice should be allowed to stand: 1. Action or law must not lead to excessive govt entanglement with religion 2. Action or law cannot inhibit or advance religious practice; should be neutral 3. Action or law must have some secular purpose, non-religious justification
Miranda warning
Warnings that police must read to suspects prior to questioning that advises them of their rights.
obsenity
acts or statements that are extremely offensive under current societal standards.
What powers are protected by the Tenth Amendment?
Where the federal government has not exercised power, the states may do so a. does not mean that states can engage in interposition or nullification by blocking federal laws/actions - used to allow Supreme Court to strike down federal law requiring states to do something, ex., conduct gun background checks b. States can used to guarantee more rights than guaranteed by federal govt - Ex. right to free public education; gave women right to vote b/f amendment
PATRIOT Act
a law passed by Congress in the wake of the 9/11 attacks that broadened federal powers to monitor electronic communications; the full name is the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act)
bill of attainder
a law that punishes a person accused of a crime without a trial or a fair hearing in court
search warrant
a legal document, signed by a judge, allowing police to search and/or seize persons or property
undue burden test
a means of deciding whether a law that makes it harder for women to seek abortions is constitutional
common-law right
a right of the people rooted in legal tradition and past court rulings, rather than the Constitution, inherited from English law that predated the federal and state constitutions
Sherbert test
a standard for deciding whether a law violates the free exercise clause; a law will be struck down unless there is a "compelling governmental interest" at stake and it accomplishes its goal by the "least restrictive means" possible
plea bargain
agreement between the defendant and the prosecutor in which the defendant pleads guilty to the charge(s) in question, or perhaps to less serious charges, in exchange for more lenient punishment than he or she might receive if convicted after a full trial
bail bond
allows person accused of crime to pay a fraction of the money (typically 10 percent) to a person who sells bonds and who pays the full bail amount
prior restraint
government censorship of information before it is published or broadcast
exclusionary rule
improperly gathered evidence may not be introduced in a criminal trial
blue laws
laws designed to restrict personal behavior in accord with a strict code of morality
probably cause
legal standard for determining whether a search or seizure is constitutional or a crime has been committed
bail
payment of money that allows a person accused of a crime to be freed pending trial;
Miller Test
rule used by the courts in which the definition of obscenity must be based on local standards 1. does average person, using community standards, find that work appeals to prurient interest 2. does work depict/describe sexual conduct in offensive way 3. does work lack serious literary, artistic, political, or scientific value
double jeopardy
the prosecution of a person twice for the same offense.
