Civil Liberties: constitutionally protected freedoms (protected by BoR, due process) – Free from...
40
CIVIL LIBERTIES Related Text: Govt in America, Ch
-
Upload
sherman-copeland -
Category
Documents
-
view
217 -
download
1
Transcript of Civil Liberties: constitutionally protected freedoms (protected by BoR, due process) – Free from...
CIVIL LIBERTIES
Related Text: Govt in America, Ch
Rights & Freedoms• Civil Liberties: constitutionally protected
freedoms (protected by BoR, due process)
– Free from unnecessary gov’t infringement
• Civil Rights: constitutional guarantees of all persons to due process and equal protection (5th & 14th)
• Legal privileges: granted by gov’t – can be restricted
Bill of Rights & States• History of BoR
–Federalist vs. Antifederalist positions–Originally applied only to nat’l gov’t,
not states (Barron v. Baltimore, 1833)
• 14th amendment (1868): applies specifically to States, respecting rights of all persons–Citizenship clause–Due process clause–Equal protection clause
Rights – Original Constitution
• Right to apply for writ of habeas corpus – intended to prevent unjust detainment– Gov’t can’t suspend, unless in case “of
rebellion or invasion of public safety”– New issues with terrorism: what about
“enemy combatants”? Where is U.S. civilian court jurisdiction vs. military?
–Decision: non-citizens in Gitmo have habeas right, use civilian courts
• Gov’t can’t pass ex post facto laws to disadvantage of person in a criminal trial
Bill of Rights & States• Gitlow v. New York (1925): first
selective incorporation case, applied 1st amendment to the states– Legislature can restrict speech/publication if
they have “tendency” to result in action dangerous to public security
• Through 14th, most of BoR protections are now incorporated to states– Drastically altered federal relationship;
Courts final arbiters of these disputes
“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.”
Amendment 1
1st Amendment - RELIGION• Free exercise clause and establishment clause
sometimes in conflict
Establishment clause:
• Debate: total gov’t neutrality toward religion vs. gov’t just not establishing official or showing preference to one sect?
• Lemon v. Kurtzman (1971): 3 part test …– (1) does law have secular legislative
purpose?
– (2) does law neither advance nor inhibit religion?
– (3) does law avoid “unnecessary entanglement”?
1st Amendment - RELIGION• Where does “wall of separation” lie?
– Endorsement test
– Nonpreferentialist test
– Strict separation
• Engel v. Vitale (1962): prayer in public schools violates est. clause
1st Amendment - RELIGIONFree Exercise clause:• Before 90s, religious practices given
“mantle of protection”; burden on gov’t to prove compelling interest, least restrictive manner
• The Yoder Test–Wisconsin v. Yoder (1972):– (1) Has the gov’t action created a burden on
the free exercise of religion?– (2) Is there a sufficiently compelling state
interest to justify this infringement of liberty?– (3) Has the gov’t used the least intrusive
means possible to achieve the gov’t’s legitimate goal?
1st Amendment - RELIGIONFree Exercise clause:• Employment Division of Oregon v. Smith
(1990): law burdening religious behavior OK as long as neutral in wording and application & doesn’t apply solely to religious practice
• Employment Division of Oregon v. Smith (1990):
Use of illegal drugs during religious ceremony not protected by 1st amend.
1st Amendment - RELIGIONFree Exercise clause:• Church of Lukumi Babalu Aye v. City of
Hialeah (1993): laws burdening religious practice that are not neutrally applied to all must undergo the most rigorous scrutiny– Must advance compelling state interests &
use least intrusive means possible to protect public interest
• Church of Lukumi Babalu Aye v. City of Hialeah (1993):
Sacrifice of animals during religious service – okay or not?
“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.”
Amendment 1
1st Amendment – EXPRESSION
• Belief vs. speech vs. action Speech & Public Order:• Clear & present danger test (Schenk v.
U.S.)
**”Imminent lawless action” test replaced C&PD (Brandenburg v. OH): intent, imminence, & likelihood of criminal act
• Preferred position test (speech given special place of protection)
*”Hate speech”
1st Amendment – EXPRESSION
Protected Speech• Symbolic speech is often protected• Most attempts at prior restraint
assumed unconstitutional – Exceptions: military/security matters; HS
student papers
• Laws restricting speech must be–Clear (no vagueness)–Least restrictive means possible–Content/viewpoint neutral**
1st Amendment – EXPRESSIONNonprotected Speech• Libel & slander: NY Times v. Sullivan:
actual malice• Obscenity: Miller v. California:
community standards, conduct described in law specific & offensive, lacking in “value”
• Fighting words: intended to cause injury to hearer, or incite immediate breach of peace
• Commercial speech: less protected, discourage false or misleading ads
“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.”
Amendment 1
Press• Prior restraint protected
– Can be punished after publication (libel/slander; private vs. public persons)
• Free press vs. fair trial• No federal shield laws for reporters, but
some states have passed them• Freedom of Information Act: most records
of federal exec agencies public record– Burden on gov’t to say why withholding info
1st Amendment – EXPRESSION
1st Amendment – EXPRESSION
• Broadcasting gets least 1st am. protection
• FCC grants licenses, regulates, imposes fines for misuse–Can’t censor, but protected in
imposing sanctions • Internet treated uniquely – most
attempts by Congress to implement restrictions struck down
“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.”
Amendment 1
1st Amendment – ASSEMBLY & PROTEST
Assembly
• Gov’ts CAN place “reasonable” time, place, & manner restrictions [Cox v. NH (1941)]
–Any restriction cannot be applied b/c of content, must apply to all fairly
Right to Associate
• Freedom to associate & join groups w/o gov’t interference– NAACP v. Alabama (1958)
• NAACP didn’t have to comply with AL’s request to turn over their membership list.
1st Amendment – ASSEMBLY & PROTEST
• Protest rights: – Protects peaceful, not violent
– Can protest in private areas that have public purpose (shopping mall, parking lot, etc)
• Hill v. Colorado (2000): can est. a “buffer” around targets of protest
• Though civil disobedience peaceful, not constitutionally protected
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.
Amendment 2
“Collective” right vs.
“individual” right?
2nd Amendment – BEAR ARMS
Recent developments …• D.C. v. Heller (2008): first time
SCOTUS est. 2nd as an “individual” right– Precedent favored “collective right”
interpretation w/ focus on militia preamble
• McDonald v. Chicago (2010): incorporated 2nd to states
• NOW: cannot ban owning a gun BUT can put limits on ownership requirements
• D.C. v. Heller (2008):
• McDonald v. Chicago (2010):
SUMMARY OF CRIMINAL RIGHTS AMENDMENTS
• No unreasonable search/seizure• Need probable cause, warrant signed
by judge; warrant must be specific
4th
• Indictment by grand jury in federal criminal court for capital charge
• No double jeopardy• Protection from self-incrimination• Guarantee of due process of law• Gov’t has power of eminent domain
5th
Property Rights: Eminent Domain• Must give “fair market value” as
compensation
• Kelo v. City of New London (1994): can take private property for private purposes if it enhances community as a whole
Controversy: should gov’t be able to use power of E.D. for private economic
development?
http://www.intellectualtakeout.org/library/chart-graph/eminent-domain-legislation-status-
kelo
SUMMARY OF CRIMINAL RIGHTS AMENDMENTS
• Guarantee of speedy & public trial• Trial by impartial jury of peers in
district where crime committed• Informed of charges against; have
ability to obtain witness in defense• Right to confront your accuser• Right to defense counsel (at no cost)
6th
• No excessive bail or fines• No cruel or unusual punishment
8th
SUMMARY OF CRIMINAL RIGHTS AMENDMENTS
• No “person” denied equal protection & due process of law
*used to selectively incorporate protections from Bill of Rights into due process clause, affecting states
14t
h
Rights of Criminal SuspectsUnreasonable Search & Seizure: 4th Am.• Need probable cause, warrant
– Must be relatively specific
• Mapp v. Ohio (1961): incorporated exclusionary rule to states
• Many exceptions to warrant requirement!– Ex: consent; reasonable suspicion
• PATRIOT ACT: how to balance civil liberties with protection from terrorism?
Rights of Criminal SuspectsRight to Remain Silent: 5th Am.• No forced self-incriminationMiranda Warning: 5th & 6th Am.• Miranda v. Arizona (1966): suspects
must be notified of rights to silence and lawyer if in custody, before interrogation– Failure to do so = ??
• Critics: hampers ability of police to do their jobs
Right to Counsel: 6th Am.• Gideon v. Wainwright (1966): counsel
must be provided at no expense
Fair Trial Procedures*Vast majority of criminal cases end in
guilty pleas, don’t go to full trialFour Stages of Criminal Process:
1) Pretrial• Grand jury indictment in capital case
– Information; not required of states2) Trial• Can accept plea bargain or go to trial• 6th: right to petit jury
TRIAL – The DetailsPublic Trial:
• Can’t bar press from room in general (only certain kinds in room during trial)
• Defendant has right to freedom from outside interference
– Can request delay or change of venue if publicity too great during pre-trial
Big Q: Does the freedom of press conflict with right to fair trial?
TRIAL – The DetailsSpeedy Trial: how long is too long?• Gov’t must vigorously pursue the accused to
accord him speedy trial• Gov’t can impose statutes of limitations/other
laws to mandate quick time frame• Gov’t cannot try someone in absentia Impartial Jury• History of conflict in including ppl of minority
demographics (Jim Crow)• Process of vior dire-question and rejection of
jurors• States can decide requirements of unanimity
Fair Trial Procedures3) Sentencing• Verdict: guilty or not guilty• Judge usually hands down sentence• Issues: death penalty, three strikes
laws4) Appeal• If believe denied constitutional right or
due process/equal protection of laws • 5th: double jeopardy only for same
gov’t
Fair Trial ProceduresWar on Terrorism
• Hamdi v. Rumsfeld (2004): detainees can challenge detention before judge (habeas)
• Boumediene v. Bush (2008): terror suspects can challenge detention in civilian courts
Death Penalty• U.S. is one of only industrialized nations
still using death penalty• Gregg v. Georgia (1976): death
penalty must be proportionate to severity of crime, consider record & character of offender– Leaves sentence in judge/jury’s hands
• Some populations have been excluded
Privacy Rights• Griswold v. CT (1965): privacy is
implied in 4th & 9th
• Roe v. Wade (1973): abortion is protected by the right to privacy.
• Women’s rights cases –> abortion
