Ch t 5
Chapter
Civil Liberties
American Government: Continuity and Change
9th Edition
The First Constitutional
A
Amendments:
d
t The
Th Bill off Rights
Ri ht
† 1787 ~ Most state constitutions explicitly
protected a variety of personal liberties.
„ Speech, religion, freedom from unreasonable
search
h & seizure,
i
trial
t i l by
b jjury
† New Constitution shifted power to the natl
g
govt
„ Without an explicit guarantee of specific civil
liberties, could the natl govt be trusted to
uphold
p
the freedoms already
y granted
g
to citizens
by their states?
† Anti-Federalists voiced this concern
p.159
The First Constitutional
A
Amendments:
d
t The
Th Bill off Rights
Ri ht
† Bill of Rights addition defeated unanimously at
the federal convention
„ Federalists argued that a bill of rights was
unnecessary.
†
†
†
†
Already included by states
Foolish to list things the natl govt had NO power to do
Some Federalists supported the idea (e.g., Jefferson)
James Madison against B of R ~ until politics
intervened
„ He sought a Virginia House seat in a district that was
largely Anti-Federalist
„ Made good on his promise & became the prime author of
the B of R
p.159
The First Constitutional
A
Amendments:
d
t The
Th Bill off Rights
Ri ht
† Bill of Rights addition defeated unanimously at
the federal convention
„ Federalists argued that a bill of rights was
unnecessary.
†
†
†
†
Already included by states
Foolish to list things the natl govt had NO power to do
Some Federalists supported the idea (e.g., Jefferson)
James Madison against B of R ~ until politics
intervened
„ He sought a Virginia House seat in a district that was
largely Anti-Federalist
„ Made good on his promise & became the prime
author of the B of R
p.159
The First Constitutional
A
Amendments:
d
t The
Th Bill off Rights
Ri ht
† Bill of Rights
„ 1789 Congress sent the proposed Bill of Rights to the
states for ratification, which occurred in 1791
„ The first ten amendments to the Constitution contain
numerous specific guarantees:
† Free speech, press and religion
† Highlight Anti-Federalist fears
† Ninth Amendment
„
“The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained
y the people.”
p p
by
† Tenth Amendment
„
Reiterates that powers not delegated to the national
government are reserved to the states or to the people.
p.159-160
The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States
† Bill of Rights intended to limit powers of the
national government
† Barron v. Baltimore (1833)
„ Ruled that the natl Bill of Rights limited only the
actions of the US govt & not those of the states
† 1868 ~ 14th Amendment added to the
C
Constitution
i i
~ guaranteed
dd
due process, but…
b
„ Language suggested the possibility that some or all
of the protections guaranteed by the B of R might be
interpreted to prevent state infringement of those
rights
p.160
The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States
† Because of the ambiguity, states
continued to pass sedition laws
„ Illegal to speak/write political criticism that
threatened
h
d to diminish
di i i h respect for
f the
h govt , its
i laws,
l
or public officials
† In NY,, Benjamin
e ja
Gitlow
G t o convicted
co cted of
o
advocating the violent overthrow of the
US govt ~ free speech issue
„ His conviction was upheld in Gitlow v. NY (1925), but
the Supreme Court ruled that states were not
completely free to limit political expression
p.160
The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States
† Because of the ambiguity, states
continued to pass sedition laws
„ Illegal to speak/write political criticism that
threatened
h
d to diminish
di i i h respect for
f the
h govt , its
i laws,
l
or public officials
† In NY,, Benjamin
e ja
Gitlow
G t o convicted
co cted of
o
advocating the violent overthrow of the
US govt ~ free speech issue
„ His conviction was upheld in Gitlow v. NY (1925),
but the Supreme Court ruled that states were not
completely free to limit political expression
p.160
The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States
† Incorporation Doctrine
„ An interpretation of the Constitution that holds that the
due process clause of the 14th Amendment requires that
state & local govts also guarantee those rights
†
†
Gitlow v. New York (1925) ~ mentioned earlier
Near v. Minnesota (1931) ~ Newspaper printing hatred of Af Am,
Jews Catholics
Jews,
Catholics, & labor ldrs
ldrs. State closed it down.
down
„
Supreme Court ruled that to shut down his business would be to
permanently take away his 1st Amendment right to freedom of the press
~ libel & slander laws still apply
† Selective Incorporation
p
~ Palko v. Connecticut
((1937))
„ SC ruled that 5th Amendment prohibition against double
jeopardy (tried twice for same crime) did not apply to the
states ~ not a “fundamental” freedom. Palko had
murdered two policemen ~ executed
executed. Palko case
overruled in 1969.
† Fundamental Freedoms
„ Those rights
g
defined by
y the court to be essential to order,,
liberty, and justice
p.161
The Incorporation Doctrine: The Bill of
Rights Made Applicable to the States
† Incorporation Doctrine
„ An interpretation of the Constitution that holds that the
due process clause of the 14th Amendment requires that
state & local govts also guarantee those rights
†
†
Gitlow v. New York (1925) ~ mentioned earlier
Near v. Minnesota (1931) ~ Newspaper printing hatred of Af Am,
Jews Catholics
Jews,
Catholics, & labor ldrs
ldrs. State closed it down.
down
„
Supreme Court ruled that to shut down his business would be to
permanently take away his 1st Amendment right to freedom of the press
~ libel & slander laws still apply
† Selective Incorporation
p
~ Palko v. Connecticut
((1937))
„ SC ruled that 5th Amendment prohibition against double
jeopardy (tried twice for same crime) did not apply to the
states ~ not a “fundamental” freedom. Palko had
murdered two policemen ~ executed
executed. Palko case
overruled in 1969.
† Fundamental Freedoms
„ Those rights
g
defined by
y the court to be essential to
order, liberty, and justice
p.161
P.161
First Amendment Guarantees:
Freedom of Religion
† Many of the Framers were religious men,
but they did not support a national
church/religion
„ Article VI
† Provides that “no religious test shall ever be
required as a qualification to any office or
public trust in the United States.
States ”
„ 1st Amendment
a t of
o the
t e B of
o R imposes
poses a number
u be of
o
† Part
restrictions on the fed govt w/ respect to
the civil liberties of the people, including
freedom of religion
religion, speech
speech, press,
press
assembly, & petition
p.162
First Amendment Guarantees:
Freedom of Religion
† The Establishment (of religion) Clause
„ Over the yrs, the court has been divided on interpretation.
I there
Is
th
a “total
“t t l wall”
ll” b
between
t
church
h
h & state
t t or is
i some
governmental accommodation of religion allowed?
† The court has held fast when it comes to issues of prayer
in school
† The court has gone back & forth in its effort to
come up w/ a way to deal w/ church/state issues
„ Lemon v. Kurtzman (1971) ~ The court tried to carve out
a three-part
h
test for
f laws
l
dealing
d li
with
i h religious
li i
“establishment” issues
† The Lemon Test ~ Must pass all three.
Practice/policy is constitutional if it…
it
„ 1) has a secular purpose
„ 2) neither advances nor inhibits religion
„ 3) does not foster excessive govtal entanglement w/ relig
† Gideon Bibles to 5th grade students? Scenario
p.163
First Amendment Guarantees:
Freedom of Religion
† The Establishment (of religion) Clause
„ Over the yrs, the court has been divided on interpretation.
I there
Is
th
a “total
“t t l wall”
ll” b
between
t
church
h
h & state
t t or is
i some
governmental accommodation of religion allowed?
† The court has held fast when it comes to issues of prayer
in school
† The court has gone back & forth in its effort to
come up w/ a way to deal w/ church/state issues
„ Lemon v. Kurtzman (1971) ~ The court tried to carve out
a three-part
h
test for
f laws
l
dealing
d li
with
i h religious
li i
“establishment” issues
† The Lemon Test ~ Must pass all three.
Practice/policy is constitutional if it…
it
„ 1) has a secular purpose
„ 2) neither advances nor inhibits religion
„ 3) does not foster excessive govtal entanglement w/ relig
† Gideon Bibles to 5th grade students? Scenario Q
p.163
First Amendment Guarantees:
Freedom of Religion
† Since the early 1980s, the SC has often sidestepped
the Lemon Test altogether & appeared to be more
willing
illi
tto llower th
the wall
ll b
between
t
church
h
h & state
t t as
long as school prayer is not involved.
† Equal Access Act of 1984 ~ Bars public schools from
discriminating against groups of students based on
“religious, political, philosophical or other content of
the speech at such meetings.”
„ Upheld in 1990 when the SC ruled that a school board
board’s
s
refusal to allow a Christian Bible club to meet in a public
school during an “activity period” violated the act
„ The important factor seemed to be that the students
had free choice in their selection of activities
† 1993 ~ The SC ruled that religious groups must
be allowed to use public schools after hours if
that access is also given to other community
groups.
p.163
First Amendment Guarantees:
Freedom of Religion
† Since the early 1980s, the SC has often sidestepped
the Lemon Test altogether & appeared to be more
willing
illi
tto llower th
the wall
ll b
between
t
church
h
h & state
t t as
long as school prayer is not involved.
† Equal Access Act of 1984 ~ Bars public schools from
discriminating against groups of students based on
“religious, political, philosophical or other content of
the speech at such meetings.”
„ Upheld in 1990 when the SC ruled that a school board
board’s
s
refusal to allow a Christian Bible club to meet in a public
school during an “activity period” violated the act
„ The important factor seemed to be that the
students had free choice in their selection of
activities
† 1993 ~ The SC ruled that religious groups must
be allowed to use public schools after hours if
that access is also given to other community
groups.
p.163
The Free Exercise Clause of
the 1st Amendment
† “Cong shall make no law…prohibiting the free
exercise of religion
religion” ~ Not an absolute ~ A
matter of belief vs. practice
† State statues barring
g the use of certain illegal
g
drugs, snake handling, & polygamy have been
ruled constitutional w/ a compelling reason
† 1993 ~ SC ruled that members of the Santeria
Church (Afro-Cuban) had the right to sacrifice
animals. A city ordinance banning the act was
declared unconstitutionally aimed at the group.
p.165
The Free Exercise Clause of
the 1st Amendment
† 1990 ~ SC supported
d Oregon’s
O
’ ban
b
on the
h use off
peyote in some Native American religious
services
† Congressional response was passage of the
Religious Freedom Restoration Act which
specifically
p
y made the use of peyote
p y
in religious
g
services legal. In Gonzales v. O Centro Espiritia
Unaio Do Vegetal (2006), hoasca tea was
legalized
g
for use by
y the Brazilian based religious
g
group
† Justice Ginsburg, “if the govt must accommodate
one why not the other?”
one,
other?
p.165
The Free Exercise Clause of
the 1st Amendment
† 1990 ~ SC supported Oregon’s ban on the use of
peyote in some Native American religious
services
† Congressional response was passage of the
Religious Freedom Restoration Act which
specifically made the use of peyote in religious
services legal. In Gonzales v. O Centro
Espiritia Unaio Do Vegetal (2006), hoasca
tea was legalized for use by the Brazilian
based religious group
† Justice Ginsburg, “if the govt must accommodate
one, why
h not the
h other?”
h ?”
p.165
First Amendment Guarantees: Freedom
of Speech and Press
† The Framers believed that democracy
depends on a free exchange of ideas
† John Adams’s administration enacted the
Alien and Sedition Acts ~ Silencing their
opponents, which flew in the face of the 1st
Amdnt
„ The Acts clearly challenged the 1st Amndt’s
ban on prior restraint ~ prohibiting speech
or p
publication before the fact
„ When Jefferson was elected, he pardoned
all who had been convicted under the acts
& the new congress allowed the acts to
expire
p.167
First Amendment Guarantees: Freedom
of Speech and Press
† States ~ North prosecuted those who pub’d positive info
about slavery; South did the same w/ those who pub’d
pub d
anti-slavery sentiments. Postmasters refused to deliver
mail they didn’t like
† During the Civil War, Lincoln suspended the free press
provision of the 1st Amndt as well as the writ of habeas
corpus ~ right of court to decide if prisoners are being held
lawfully
„ Two critical NY newspaper editors arrested
„ Newspaper editor jailed by a military court wo/ having
any charges brought against him
† Appealed to SC: Ex parte (not present) McCardle (1869)
† Congress enacted legislation prohibiting the Court from
issuing a judgment in any cases involving convictions for
publishing statements critical of the US
† Article
l II gives Congress power to d
determine the
h
jurisdiction of the Court
p.167
First Amendment Guarantees: Freedom of
Speech and Press
† WWI ~ In 1917, President Woodrow Wilson
urged Congress to pass the Espionage Act
~ Nearly 2k Americans convicted of urging
resistance to the draft & passing out antiwar leaflets
„ In Schenck v. US (1919), the Clear and Present Danger
Test was approved ~ The circumstances are very
important (e.g., anti
anti-war
war leaflets okay during peace, but
not during war) ~ For yrs SC struggled w/ what
constituted a danger?
„ Finally in Brandenburg v. Ohio (1969) the Court fashioned
a new test ~ The Direct Incitement Test
† Now, the govt could punish speech & publication for the
advocacy of illegal action only if such advocacy is directed
at inciting or producing imminent lawless action
p.169
First Amendment Guarantees: Freedom of
Speech and Press
† WWI ~ In 1917, President Woodrow Wilson
urged Congress to pass the Espionage Act
~ Nearly 2k Americans convicted of urging
resistance to the draft & passing out antiwar leaflets
„ In Schenck v. US (1919), the Clear and Present
Danger Test was approved ~ The circumstances are very
important (e.g., anti
anti-war
war leaflets okay during peace, but
not during war) ~ For yrs SC struggled w/ what
constituted a danger?
„ Finally in Brandenburg v. Ohio (1969) the Court fashioned
a new test ~ The Direct Incitement Test
† Now, the govt could punish speech & publication for the
advocacy of illegal action only if such advocacy is directed
at inciting or producing imminent lawless
p.169
First Amendment Guarantees: Freedom
of Speech and Press
† Protected Speech and Publications
„ NY Times Co
Co. v.
v Sullivan (1971) ~ aka the
Pentagon Papers case
† Supreme Court ruled that the US govt could not
bl k th
block
the publication
bli ti
off secrett D
Deptt off Def
D f
documents illegally furnished to the Times by
anti-war activists
„ Nebraska Press Association v. Stuart (1976)
† To protect the defendant’s right to a fair trail, the
judge issued a gag order barring the press from
printing the lurid details of the crime
† SC disagreed, holding the press’s right to cover
the trail as paramount
p.169
First Amendment Guarantees: Freedom
of Speech and Press
† Symbolic Speech ~ A means of expression that
includes symbols or signs generally considered to
b protected
be
d by
b the
h 1stt Amndt
d
„ Stromberg v. California (1931)
† SC overturned conviction of a communist y
youth camp
p
director’s conviction for flying a red flag (symbol of
opposition to US govt)
„ Tinker v. Des Moines Independent Community
Di i S
District
School
h l (1969)
† Upheld the right of high school students to wear black
armbands protesting the Viet Nam War
„ G
Gregory JJohnson
h
convicted
i
d ffor burning
b
i
an Am
A flag
fl
during the ’84 Rep Convention
† SC reversed the conviction 5-4
„ Cong has tried several times unsuccessfully to
pass a Constit amndt banning flag burning
p.169-170
Hate Speech, Unpopular Speech,
Speech Zones
† Activists who praised “free speech” during the ’60s
are now saying it is a moral imperative that we do
something
g about “hate speech”
p
† Two-thirds of colleges & universities have banned a
variety of forms of speech or conduct that creates or
fosters an intimidating, hostile or offensive
environment on campus.
† Some have created free speech zones.
„ These restrict the time, place or manner of speech
„ Implication that speech can be limited on other parts
of campus
„ ACLU a critic a such policies; filed number of suits,
b t none has
but
h reached
h d the
th Supreme
S
Court
C
t
hate
p.170-171
Unprotected Speech & Publications
† Per the SC,
SC libel,
libel slander,
slander fighting words,
words
obscenity, & lewdness are not protected
„ Such expressions are no essential part of any exposition
of ideals ~ no social value
† Libel ~ A written statement that defames the
character of a person
† Slander ~ Untrue spoken
p
statements that defame
a person’s character
† It is very difficult to prove libel or slander. The
truth is an absolute defense against charges.
† Fighting Words ~ Those that by their very
utterance inflict injury or tend to incite an
immediate breach of peace
„ Profanity, obscenity, & threats ~ Not protected by the 1st
Amndt
„ 1971 ~ Paul Cohen who was convicted of disturbing the
peace & obscenity for wearing shirt in a Los Angeles
county courthouse which said, “F*** the Draft ~ Stop the
War” Overturned by SC ~ censorship of certain words
p.171-172
Unprotected Speech & Publications
† Obscenity ~ Hard to define
„ Roth v. US (1957) ~ SC ruled that to be
considered obscene, the material in question
has to be “utterly wo/ redeeming social
importance” and “whether to the avg person,
applying contemporary community standards,
th dominant
the
d
i
t theme
th
off the
th material
t i l taken
t k
as a
whole appeals to the ‘prurient’ (lustful thoughts
& wishes) interests.”
„ Miller
Mill v. California
C lif
i (1973) ~ Guidance
G id
to
t states,
t t
determine “whether the work, taken as a
whole, lacks serious literary, artistic, political or
scientific value.
value ” And,
And community standards
should be applied. What is “acceptable in New
York City might not be acceptable in Maine or
pp
Mississippi.”
p.172-173
Unprotected Speech & Publications
† Obscenity ~ Hard to define
„ Roth v. US (1957) ~ SC ruled that to be
considered obscene, the material in question
has to be “utterly wo/ redeeming social
importance” and “whether to the avg
person, applying contemporary community
standards,
t d d the
th dominant
d
i
t theme
th
off the
th
material taken as a whole appeals to the
‘prurient’ (lustful thoughts & wishes)
interests ”
interests.
„ Miller v. California (1973) ~ Guidance to states,
determine “whether the work, taken as a
whole lacks serious literary,
whole,
literary artistic,
artistic political or
scientific value.” And, community standards
should be applied. What is “acceptable in New
y might
g not be acceptable
p
in Maine or
York City
Mississippi.”
p.172-173
Unprotected Speech & Publications
† Congress & Obscenity ~ Fairly effective in
restricting the sale/distribution of obscene
materials but concerned about the Internet
materials,
„ ’96 Communications Decency Act ~ Prohibited
transmission of obscene materials to anyone under 18.
SC ruled this law to be “too vague & overbroad.”
„ ’98 Child Online Protection Act (COPA) ~ Defined
pornography as any “visual depiction that is, or appears
to be, a minor engaging in sexually explicit conduct.”
† Targeted the WWW
WWW, but not chat rooms or e
e-mail
mail
„ Ashcroft v. Free Speech Coalition (’02) ~ SC ruled that
Congress had gone too far in a laudable effort to stamp
out child pornography. “Communities w/ a narrow view of
want words & images are suitable for children might be
able to censor Internet content, putting it out of reach for
the entire country.”
„ SC continues to block enforcement of COPA & Congress
continues
ti
tto ttry tto fi
find
d ways tto bl
block
k children’s
hild
’ access to
t
Internet pornography.
p.173-174
Freedoms of Assembly and
Petition
† Delong v. Oregon (1937) ~ “Peaceful assembly for
lawful discussion cannot be made a crime.”
„ Based on 1st Amendment’s freedom of assembly clause
† The fundamental freedoms of assembly & petition
have been among the most controversial,
especially in times of war
† SC is often the arbiter between freedom of the
people to express dissent & the govt’s authority to
limit controversy in the name of national security
† Once at an assembly, the freedoms of speech also
come into play
p.174-175
Half-- Way Point
Half
Ch t 5
Chapter
Civil Liberties
American Government: Continuity and Change
9th Edition
The Second Amendment: The
Right to Keep & Bear Arms
† Colonial Times ~ Distrust of standing armies
„ Required all white men to keep & bear arms as defense
against Indians & European powers ~ “Local
Local Militia”
Militia
„ 2nd Amndt passed to guarantee state militias would not
be disarmed – appeased Anti-Federalists
† 1934 – Congress passed the National Firearms
Act restricting sawed-off shotguns & machine
guns in response to organize crime
„ U.S. v. Miller (1939) upheld the act
„ This was the last time the Supreme Court directly
addressed the Second Amendment.
† Response to ’81 attempt on Pres Reagan, Brady
Bill was signed in ‘93 ~ reqs waiting period
John Hinckley, Jr.
Jim Brady w/ Pres
Clinton
p.175
The Second Amendment: The
Right to Keep & Bear Arms
† Violent Crime Control Act of 1994
„ A ban on assault weapons ~ Automatic weapons (e.g.,
AK-47)
„ Signed by Pres Clinton, the act had a ten year time limit
„ Not renewed by Bush or the Republican-controlled
Republican controlled
congress prior to the 2004 elections when it expired
† National Rifle Association is a major contributor to the
Republican Party
† Federal Gun Dealer/Gunsmithing Licenses
„ FBI inspects records ~ can be revoked
† Concealed Carry
y Licenses are controlled by
y the
state
„ Training & finger prints required
„ Must be renewed every few years
p.175-176
The Rights of Criminal
Defendants
† Due Process Rights
„ Procedural guarantees provided by the 4th,
5th, 6th & 8th Amndts for those accused of
crimes
„ ’50s-’60s ~ CJ Earl Warren’s Court made
several provisions of the B of Rs dealing w/
criminal defendants ((those charged
g
but not
yet tried) applicable to the states thru the
14th Amndt
„ Designed to protect the wrongfully accused,
accused
they often help the guilty. CJ Wm O.
Douglas noted that “Respecting the dignity
off the
h least
l
worthy
h citizen…raises the
h statue
of all of us.”
p.176
Fourth Amendment
† The Framer’s wanted to ban the “general
warrants” that the English had often used against
religious & political dissenters
† Part of the 4th Amndt reads, “The right of the
people to be secure in their persons, houses,
papers, and effects, against unreasonable
searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and
particularly describing the place to be searched,
and the persons or things to be seized.”
† Over the yrs
yrs, the SC has allowed searches of
„ The person arrested
„ Things in plain view
„ Places the arrested person can touch or reach
† With some exceptions, police must knock
p.177
Fourth Amendment
† The Framer’s wanted to ban the “general
warrants that the English had often used against
religious & political dissenters
† Part of the 4th Amndt reads, “The right of the
people to be secure in their persons, houses,
papers, and effects, against unreasonable
searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and
particularly describing the place to be searched,
and the persons or things to be seized.”
† Over the yrs,
yrs the SC has allowed searches of
„ The person arrested
„ Things in plain view
„ Places the arrested person can touch or reach
† With some exceptions, police must knock
p.177
Fourth Amendment
† Searches can be conducted wo/ a warrant if
consent is given
„ Police can search a bedroom shared by two people if
one agrees
„ 2006 ~ SC ruled that the police can’t conduct a
warrantless search of a home if one of the occupants
objects
† Some
S
expectation
t ti
to
t privacy
i
„ No warrant to allow removal of a bullet to be used
against you as evidence
„ In some states no warrant necessary to require a
breathalyzer test ~ refusal can mean automatic loss of
license
† 2001 ~ Ruling on thermal imaging drug evidence
( / warrant)) was violation
(wo/
i l i
off 4th Amndt.
A
d
„ Binoculars & helicopters okay ~ why? In plain view of
normal eyesight – not a new technology
† Automobile searches ~ Courts are lenient
because cars can be moved
p.177
Fourth Amendment
† ’86
86 ~ Pres Reagan signed an executive order
requiring many executive branch employees to
undergo drug tests
„ ’97
97 ~ Similar law passed authorizing random drug
searches of congressional employees
† ’95 ~ SC upheld random drug testing of high school
athletes
„ Case in Tecumseh, OK, requiring tests of all extra
curricular activities upheld
† Chandler v. Miller (‘97) ~ SC refused to allow GA to
require
i d
drug ttesting
ti
for
f all
ll candidates
did t for
f state
t t
office
„ Public employees enjoy more protection in the area of drug
testing than do employees of private enterprises
† 2001 ~ South Carolina women seeking medical
care were tested for cocaine wo/ their knowledge ~
reported to police
„ SC ruled this unconstitutional ~ right to privacy
p.180
Fifth Amendment: SelfI
Incrimination
i i ti
& Double
D bl Jeopardy
J
d
† 5th Amndt ~ “No
No person shall be…compelled
be compelled in
any criminal case to be a witness against
himself.” Taking the 5th means exercising one’s
right against self
self-incrimination
incrimination. Judge/prosecutor
cannot mention this
„ Extends to confessions not made voluntarily
„ No p
physical
y
abuses,, long
g “third degree”
g
interrogations,
g
,
threats against family
† Miranda v. Arizona (‘66) ~ Ernesto Miranda, poor
mentally disturbed man w/ 9th grade education
chg’d
h ’d in
i the
th kidnap
kid
& rape off an 18 yr old
ld girl
i l
„ Signed a confession following long interrogation wo/
being told his rights. He did not have to answer
questions & had the right to an attorney
„ Arrested individuals must be read these rights
p.181
Fifth Amendment: SelfI
Incrimination
i i ti
& Double
D bl Jeopardy
J
d
† 5th Amndt ~ “No
No person shall be…compelled
be compelled in
any criminal case to be a witness against
himself.” Taking the 5th means exercising one’s
right against self
self-incrimination
incrimination. Judge/prosecutor
cannot mention this
„ Extends to confessions not made voluntarily
„ No p
physical
y
abuses,, long
g “third degree”
g
interrogations,
g
,
threats against family
† Miranda v. Arizona (‘66) ~ Ernesto Miranda,
poor mentally disturbed man w/ 9th grade
education
d
ti
chg’d
h ’d in
i th
the kidnap
kid
& rape off an 18 yr
old girl
„ Signed a confession following long interrogation wo/
being told his rights.
rights He did not have to answer
questions & had the right to an attorney
„ Arrested individuals must be read these rights
p.181
Fourth and Fifth Amendments &
the Exclusionary Rule
† Judicially created rule prohibits using illegally
seized evidence at trial ~ Exclusionary Rule
† Weeks v. U.S. (‘14)
„ The Court reasoned that allowing police and prosecutors
to use a tainted search would only encourage that activity
† Map v. Ohio (‘61)
„ Warren Court ruled that “all evidence obtained by
searches and seizures in violation of the Constitution,, is
inadmissible in a state court.”
† SC continues to uphold the exclusionary rule
† Exceptions
„ When police in good faith conduct a search on the
assumption that warrant is valid even though
q
y found to be invalid
subsequently
„ Inevitable discovery ~ Would have been found during
course of investigation
p.182
Fourth and Fifth Amendments &
the Exclusionary Rule
† Judicially created rule prohibits using illegally
seized evidence at trial ~ Exclusionary Rule
† Weeks v. U.S. (‘14)
„ The Court reasoned that allowing police and prosecutors
to use a tainted search would only encourage that activity
† Map v. Ohio (‘61)
„ Warren Court ruled that “all evidence obtained by
searches and seizures in violation of the Constitution,, is
inadmissible in a state court.”
† SC continues to uphold the exclusionary rule
† Exceptions
„ When police in good faith conduct a search on the
assumption that warrant is valid even though
q
y found to be invalid
subsequently
„ Inevitable discovery ~ Would have been found during
course of investigation
p.182
6th Amndt & the Right to Counsel
† 6th guarantees accused “the
the Assistance of
Counsel in his defense”
„ In past can hire an attorney ~ Poor?
† Cong & SC began to require fed govt & states to
provide attorneys in capital cases
† Gideon v. Wainwright (‘36) ~ Clarence E. Gideon,
51 yr old drifter, chg’d for breaking into pool hall
& stealing
g beer & some $ from a vending
g
machine. Lawyer was refused ~ case was weak
„ Several rulings now spt the req’t that lawyers
b provided
be
id d even in
i prosecutions
ti
for
f offenses
ff
less serious than felonies
Public Defenders
Defenders” an issue
„ Quality of “Public
† Sleeping, drunk, no defense ~ courts watch
p.182-183
6th Amndt & Jury Trials
† Accused shall enjoy the right to a speedy &
public trial by an impartial jury
† The right to confront witnesses
† SC has
h held
h ld that
th t jury
j
trials
t i l mustt be
b available
il bl if a
prison sentence of six or more months is possible
† Method of selecting jurors is the most frequently
challenged part of the process ~ no groups can
be systematically excluded ~ e.g.,…
„ All Af Ams if defendant is Af Am
„ All women in a rape trial
„ All men in a paternity suit
† John Walker Lindh ~ US citizen captured fighting
for al Qaeda ~ Confession occurred after being
left shackled, naked, denied food/water &
treatment for an injury
„ Sentenced up
p to 20 y
yrs
„ Constitutional?
p.184
6th Amndt & Jury Trials
† Accused shall enjoy the right to a speedy &
public trial by an impartial jury
† The right to confront witnesses
† SC has
h held
h ld that
th t jury
j
trials
t i l mustt be
b available
il bl if a
prison sentence of six or more months is possible
† Method of selecting jurors is the most frequently
challenged part of the process ~ no groups can
be systematically excluded ~ e.g.,…
„ All Af Ams if defendant is Af Am
„ All women in a rape trial
„ All men in a paternity suit
† John Walker Lindh ~ US citizen captured fighting
for al Qaeda ~ Confession occurred after being
left shackled, naked, denied food/water &
treatment for an injury
„ Sentenced up
p to 20 y
yrs
„ Constitutional?
p.184
The Military Commissions Act
† Passed by Cong & signed into law by
President Bush just before the 2006
midterm elections
† Authorizes potentially harsher treatment
of US citizens accused of engaging in
terrorist activities or aiding terrorists
p.184
8th Amndt & Cruel & Unusual
Punishment
† Despite the 8th Amndt’s words, “Excessive bail
shall not be required
required, nor excessive fines
imposed, nor cruel & unusual punishments
inflicted,” the US is the only western nation
continuing
g to p
put p
people
p to death.
„ 1500s ~ Religious heretics & those critical of the Eng
Crown were subjected to torture to extract confessions
† The rack & disembowelment
„ 1687 ~ Eng B of R mentioned “cruel & unusual”
„ Those words found their way into the US B of R
„ Prior to ’60s, little judicial attention paid
p.184-185
8th Amndt & Cruel & Unusual
Punishment
† ’60s ~ NAACP’s Legal Defense Fund orchestrated
an attack on the constitutionality
y of the death
penalty
„ Believed applied more frequently to African Americans
† Furman v. Georgia
g ((‘72)) SC temporarily
p
y ended
capital punishment
„ Ruled it was imposed in an arbitrary manner
† Gregg
gg v. Georgia
g ((‘76))
„ Rxn to rewriting of state laws on death penalty
„ Death penalty statute found to be constitutional
† Mentally
y retarded & <18 currently
y exempted
p
† Illinois Gov Geo Ryan
„ Pardoned 167 death-row
y before
inmates two days
leaving office
p.184-186
8th Amndt & Cruel & Unusual
Punishment
† ’60s ~ NAACP’s Legal Defense Fund orchestrated
an attack on the constitutionality
y of the death
penalty
„ Believed applied more frequently to African Americans
† Furman v. Georgia
g ((‘72)) SC temporarily
p
y ended
capital punishment
„ Ruled it was imposed in an arbitrary manner
† Gregg
gg v. Georgia
g ((‘76))
„ Rxn to rewriting of state laws on death penalty
„ Death penalty statute found to be constitutional
† Mentally
y retarded & <18 currently
y exempted
p
† Illinois Gov Geo Ryan
„ Pardoned 167 death-row
y before
inmates two days
leaving office
p.184-186
8th Amndt & Cruel & Unusual
Punishment
† Since the inception of DNA technology, over 100
persons have been released from death-row
death row
† Twenty individuals have recently been released
from death-row in NY based on evidence derived
from other than DNA
† Court also ruled in 2006 that death-row inmates
could challenge the drugs and procedures
involved in lethal injections
p.184-186
Right to Privacy
† Th
The Constitution
C
tit ti
iis silent
il t about
b t th
the right
i ht tto
privacy, but it is implied by several Amndts
† Since ’65, the SC has ruled in favor of a host of
f d
fundamental
t l lib
liberties
ti guaranteed
t d by
b the
th 9th
Amndt (i.e., rights not listed are retained by the
people)
† Griswold v.
v Connecticut (’65) ~ SC affirms marital
privacy ~ contraceptives
† Roe v. Wade (’73) ~ Right to privacy ~ abortion
„ O
Only
l iin th
the 3rd trimester,
t i
t
th
the point
i t att which
hi h th
the fetus
f t
becomes potentially viable, does the state’s interest in
potential life outweighs the woman’s privacy intersts
y close to
„ On several occasions,, SC has come very
overturning Roe
p.187-190
Right to Privacy
† Th
The Constitution
C
tit ti
iis silent
il t about
b t th
the right
i ht tto privacy,
i
but it is implied by several Amndts
† Since ’65, the SC has ruled in favor of a host of
f d
fundamental
t l lib
liberties
ti guaranteed
t d by
b the
th 9th Amndt
A
dt
(i.e., rights not listed are retained by the people)
† Griswold v. Connecticut (’65) ~ SC affirms marital
privacy ~ contraceptives
† Roe v. Wade (’73) ~ A “limited” right to abortion
„ Only in the 3rd trimester, the point at which the fetus
becomes potentially viable,
viable does the state
state’s
s interest in
potential life outweighs the woman’s privacy interests
„ On several occasions, SC has come very close to
overturning Roe
„ Norma McCorvey, the real name of
Jane Roe (a pseudonym) had her
child & put it up for adoption. She
i now a pro-life
is
lif advocate
d
t
p.187-190
Right to Privacy
† Th
The Constitution
C
tit ti
iis silent
il t about
b t th
the right
i ht tto privacy,
i
but it is implied by several Amndts
† Since ’65, the SC has ruled in favor of a host of
f d
fundamental
t l lib
liberties
ti guaranteed
t d by
b the
th 9th Amndt
A
dt
(i.e., rights not listed are retained by the people)
† Griswold v. Connecticut (’65) ~ SC affirms marital
privacy ~ contraceptives
† Roe v. Wade (’73) ~ A “limited” right to
abortion
„ O
Only
l iin th
the 3rd trimester,
t i
t
th
the point
i t att which
hi h th
the ffetus
t
becomes potentially viable, does the state’s interest in
potential life outweighs the woman’s privacy interests
y close to
„ On several occasions,, SC has come very
overturning Roe
„ Norma McCorvey, the real name of
Jane Roe (a pseudonym) had her
child & p
putt it up
p for
fo adoption.
adoption She
is now a pro-life advocate
p.187-190
Right to Privacy
† H
Homosexuality
lit ~ It was nott until
til ’03 that
th t SC
ruled that Texas did not have the right to
criminalize private sexual behavior ~ This ruling
invalided laws in 14 states
„ Justice Scalia issued a disent charging that the Court
was “signing on to the homosexual agenda”
† Right to Die ~ ‘90
90 SC ruled that parents could not
withdraw a feeding tube from their comatose
daughter after her doctors testified that she could
live for many
y more years
y
if the tube remained in
place
„ Court did note that individuals could terminate medical
treatment if they were able to express, or had done so in
writing via a living will,
will their desire to have medical
treatment terminated in the event they became
incompetent
† 1997 Court ruled unanimously that terminally ill
persons d
do NOT have
h
a constitutional
i i
l right
i h to
physician assisted suicide
p.192
Right to Privacy
† 1997 Court ruled unanimously that terminally ill
persons do NOT have a constitutional right to
physician assisted suicide
† Oregon voters approved a right to die law in 2001
„
Gonzales v. Oregon (‘05) ~ SC upheld Oregon’s law by a 6-3
vote
p.192
Ch t 5
Chapter
Civil Liberties
American Government: Continuity and Change
9th Edition