Chapter 4- Civil Liberties
civil liberties- guarantees/freedoms in our Constitutional system that the government cannot abridge without due process
For much of our history, the legal interpretation of the BoR was that it ONLY applied to the federal govt. State & local govts
were not required to gurantee citizens’ rights. Beginning in 1925, the Supreme Court began to expand the application of some
of the Bill of Rights guarantees beyond the federal level using a concept known as the incorporation doctrine.
What is the incorporation doctrine ?
the application of some of the rights protected in the Bill of Rights (BoR) to the individual state govts
What is the legal basis for incorporation ?
the due process clause of the 14th amendment -"nor shall any State deprive any person of life, liberty, or property, without due process of law"
What is the dispute over incorporation ?
many argue that it conflicts with the 10th amendment and that states should have the power to decide for themselves
What is the first case to apply the BoR to states ?
Gitlow v NY, 1925 -- ruled that free speech rights did in fact apply to state govts as well as to the federal govt
identify the cases that incorporate the following rights:
establishment clause- Everson v. Board of Education, 1947- over public transportation reimbursement to parochial schools
free exercise clause- Cantwell v CT, 1940 - over requiring a permit to solicit for charitable/religious purposes
speech- Gitlow v NY, 1925
right to an attorney in felony crimes- Gideon v. Wainwright, 1963- state must provide an attorney if you cannot afford one
right to privacy- Griswold v. CT, 1965-- access to oral contraception – overturned a CTstate law which made it a crime for a
physician to prescribe oral contraceptives (even to married couples who desired it) ----court ruled that a woman had an
understood right to privacy when it came to control of her own body
What is prior restraint ? govt action to prevent certain material from being published-- blocking publication of certain topics
How often is it used ? Why/ why not ?
almost never, except in cases when national security could be an issue -- was declared unconstitutional in 1931
What case settled this issue ?
Near v. Minnesota, 1931
What was the issue/ruling in the ’78 case Zurcher v. Stanford ?
there was a protest on campus that turned into a riot-- police wanted access to pictures taken by the school paper to identify &
arrest students who violated laws -- paper refused on the grounds of free press protection of the privacy of their sources
SC ruled in favor of the police -- riot was in a public place-- no expectation of privacy
What is the significance of Roth v. US, 1957 ?-- ruled that obscenity is NOT protected as free speech
problem-- WHAT constitutes obscenity ? ---very subjective term
Which case is applied more often for this issue ? Miller v. California, 1973 - establishes an obscenity "test"
What type/category of speech is restricted most ? Why ?
commercial speech -- to prevent false claims & fraud, maintain truth in advertising, for consumer safety, etc.
What legal restrictions can be placed on the right to assemble ?
local govts can restrict the time, place, and manner of the assembly -- cannot apply restrictions based on content
Which amendments in the BoR, and parts of the Constitution generally apply to criminal cases ?
4th, 5th, 6th, 8th -- also --Art I, sect 9 - writ of habeas corpus, Art. III, sect 2 - right to jury trial
**basically ALL stages are protected-- from the time of being a suspect, through arrest, trial, conviction & sentencing
What is the importance of Mapp v. Ohio,1961 ?
ruled that evidence obtained in violation of Constitutional rights (i.e. - without a proper warrant) could NOT be used in court
(what “rule” did it establish?) known as the "exclusionary rule"
What are some exceptions/arguments against the exclusionary rule ?
if the evidence would have been found anyway, "good faith" mistakes, clerical errors
What are the requirements established by Miranda v. Arizona,1966 ?
that suspects must be informed of certain rights prior to being questioned by authorities-right to remain silent, if you speak what you say can be used in court, right to an attorney, state will provide an attorney
if unable to afford (notice- Gideon rights get "piggybacked onto the informing part of Miranda)
What is a plea bargain ? being allowed to plead guilty to a lesser charge for a smaller penalty
What are arguments for/against it ?
avoid a trial-- save time & $$, guaranteed a conviction / gives the appearance of "getting off too lightly" & avoiding punishment
Today, most 8th amendment cases involve what issue ?
the death penalty -- whether capital punishment is in & of itself cruel & unusual
Why did we have contradictory rulings 4 years apart in: Furman v. Georgia,’72 & Gregg v. Georgia,’76 ?
Furman -- ruled that the death penalty was applied in a discriminatory manner, therefore unconstitutional
Gregg -- (after states rewrote sentencing guidelines) -- ruled that the death penalty itself was NOT cruel & unusual if applied
fairly
What death penalty issue was upheld in 1989 ? Is this still applicable ?
that defendants who were 16 or 17 years old at the time of the crime could be subject to the death penalty
NO-- overturned in 2005 -- can only be given capital punishment if at least 18 at the time the crime was committed
From which amendment do we get the right to privacy ?
none specifically, but possibly implied by all of them (plus looking at the 9th)
What has, to date, been the most controversial right to privacy case ?
**Griswold established right to privacy (over access to birth control)
Roe v. Wade, 1973 -- "legalized abortion" --based upon a woman's right to privacy-- the court ruled that privacy protection "is
broad enough to encompass a woman's decision whether or not to terminate her pregnancy"
struck down state laws that made performing/obtaining an abortion a crime --only allowed in first trimester of pregnancy
-- later term abortions are still illegal except in very specific circumstances
since Roe, the trimester measure has been changed-- now the cut off is generally "viability"
- defined as "potentially able to live outside the mother's womb, albeit with artificial aid"
List some changes/restrictions applied to Roe v. Wade since 1973 -- (esp. from Planned Parenthood v Casey, ’92)
no federal funding of abortion services
mandatory informing of risks
a 24-48 hour waiting period
notification of parents of minors or requiring judicial consent for minors
NOT accepted-- requiring spousal consent
some new, very recent laws -TX, 2011 & Virginia, 2012 -- requiring a **sonogram /**ultrasound at least 24 hours before an abortion
** important – the type of ultrasound required in these circumstances is VERY intrusive