Pearson Education, Inc., Longman © 2006 Chapter 15 Civil Liberties Policymaking American...

Pearson Education, Inc., Longman © 2006

Chapter 15

Civil Liberties Policymaking

American Government:

Policy & Politics, Eighth Edition

TANNAHILL


In This Chapter We Will Cover:

• The constitutional basis of civil liberties policymaking

• Civil liberties issues and policies


The Constitutional Basis of Civil Liberties Policymaking

• The U.S. Constitution– The Bill of Rights is the first ten

amendments to the Constitution.– Selective incorporation involves the use

of the Fourteenth Amendment to make provisions of the Bill of Rights binding upon the states.


The Constitutional Basis of Civil Liberties Policymaking

• State Constitutions– State Constitutions affect civil liberties

policymaking. States must grant their residents all the rights guaranteed by the U.S. Constitution and may offer their residents additional rights.

– The policy areas in which state courts have been most active are abortion rights, criminal procedure, and church-state relations.


Civil Liberties Issues and Policies

Government and Religion• Establishment of Religion

–Everson v. Board of Ewing Township (1941) set test for determining the constitutionality of state aid to parochial schools

–Lemon v. Kurtzman (1971) further developed standard for evaluating the constitutionality of government actions toward religion



• Free Exercise of Religion–The First Amendment prohibits the

adoption of laws interfering with the free exercise of religion.

• Freedom of Expression–High-value expression like political

speech, art, and literature, enjoys the highest level of constitutional protection.


Standards and Tests for

Determining the Constitutionality of

Government Restrictions on Expression in

Various Fields of Law


Standards and Tests for Determining the Constitutionality of Government Restrictions on Expression in Various Fields of Law Continued



• Antigovernment Speech–The government can restrict political

expression only if it has a compelling interest that can’t be achieved by less restrictive means like expression deemed a threat to national security and public order which presents a “Clear-and-Present Danger Rule.”



• Expression that Threatens the Public Order

–Government restriction must be based on a compelling interest that can’t be achieved by lesser means.

Hate Crimes Legislation–The Supreme Court has ruled hate

crimes legislation does not inhibit expression because it is aimed at the criminal behavior rather than the expression.



• Symbolic Expression–The Supreme Court has treated

symbolic expression as if it were spoken or written expression.

• Defamation of Character–The Supreme Court has held that the

First Amendment does not protect defamatory statements.



• Obscenity–The Supreme Court has held

that the First Amendment does not protect obscenity.

Prior Restraint–Prior restraint can only be taken

in exceptional circumstances such as time of war.



• Privacy Rights– Although not specifically mentioned in the

Constitution, the Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to include a right of privacy — “zones of privacy.”

– Connecticut law regarding contraceptives– Roe v. Wade– Lawrence v. Texas


The Constitutional Basis ofCivil Liberties

• Due Process of Law and the Rights of the Accused – Due process of law is the constitutional

principle holding that government must follow fair and regular procedures in actions that could lead to an individual’s suffering loss of life, liberty, or property.


The Constitutional Basis ofCivil Liberties

• USA Patriot Act

–Allows the federal government to detain citizens suspected of terrorism for up to seven days without filing specific charges


Civil Liberties Issues and Policies• Searches and Seizures

–The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

• The Exclusionary Rule–The judicial doctrine stating that when the

police violate an individual’s constitutional rights, the evidence obtained as a result of police misconduct or error cannot be used against the defendant.



• The Miranda Warning–Accused persons must be

warned (1) they have a right to remain silent, (2) that any statements they gave may be used against them, and (3) that they are entitled to an attorney, either retained or appointed.


Civil Liberties Issues and Policies• Double Jeopardy

–The Fifth Amendment prohibits the government trying a criminal defendant a second time for the same crime.

Fair Trial–The Sixth Amendment promises a

speedy and public trial.



• Cruel and Unusual Punishments

–The Eighth Amendment prohibits cruel and unusual punishment.


Executions in the U.S., 1987-2001



• Executive Authority and Civil Liberties– Does the president have the authority to

suspend the due process guarantees of the Constitution to detain individuals that the administration believes may be a threat to national security?



• Executive Authority and Civil Liberties

–2004: In the case of Yaser Esam Hamdi, the Court found that persons deemed by the government to be enemy combatants must be given the ability to challenge their detention before a judge or other “neutral decision maker.”


Concluding Review Questions

• What is the constitutional basis for civil liberties in the United States?

• How does the Supreme Court interpret the Establishment Clause?

• Under what circumstances does a threat to national security justify a government restriction of free expression?


Concluding Review Questions

• Is symbolic speech, such as flag burning, protected by the Constitution?

• Is obscenity protected by the Constitution?

• When does the exclusionary rule apply?

Pearson Education, Inc., Longman © 2006 Chapter 15 Civil Liberties Policymaking American...

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