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Chapter 13
Civil Liberties: Ordered Liberty in America
Focus Questions
Q1
How do civil liberties differ from civil rights?
A1
The relationship between civil liberties and civil rights is compatible but simultaneously
adversarial. Civil liberties are those areas of social life Americans believe should be free from
government intrusion. These include freedom of speech, press, and religion. Civil rights are those
areas of social life, like the right to vote and the right to be free from racial discrimination, which
Americans believe government should actively defend. At times, civil liberties are at odds with
civil rights. For example, the government may adhere to affirmative action programs that attempt to
further equality by favoring racial minorities to the disadvantage of another group; in turn, limiting
the freedom of an employer to hire who he or she wishes. On occasion, civil rights legislation
impedes civil liberties.
Q2
Do our commitments to free speech and a free press conflict with our sense that flag burning should
be prohibited or that pornography should be regulated?
A2
Free speech is vital to the success of the United States. The First Amendment protecting the
freedom of speech, press, and assembly allows Americans to express political opinions and
associate with others without the fear of government reprisal. Yet, the courts have occasionally
limited these freedoms to promote the greater good. The Supreme Court is reluctant to suppress
speech and applies strict scrutiny when doing so. Consequently, the Court has ruled there must be
an imminent, clear, and present danger resulting from the speech for it to be unprotected. However,
sometimes a speech-related activity such as flag burning, which a vast majority of the public finds
objectionable, is protected because of the larger constitutional issue involved. While many
Americans deplore the exercise, the Supreme Court has ruled it is protected political speech
because to suppress this action may lead to further infringements on speech (the slippery slope
argument). The Supreme Court has ruled that obscenity is not protected speech because it has no
literary, artistic, or political value and appeals to prurient interests. Nonetheless, what is obscene is
largely in the eye of the beholder.
Q3
Does our commitment to separation of church and state mean that no trace of religious sentiment
or symbolism should emanate from government?
A3
Our Constitution is explicit that government shall make no law respecting an establishment of
religion. In turn, Americans believe in the separation of church and state. Even so, there are sharp
disagreements as to what degree religion and government should be separated. One position is for
strict separation in which the government plays no role in religion and religion plays no role in
government. Another view asserts government may not favor one religion over another but that
government may provide general support to all religions. A third position proposes that government
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should actively promote religion to buttress traditional moral values; though, no one religion should
be favored over others. The American public generally favors the second approach to address the
relationship between church and state. The Supreme Court has also found that the concept of the
separation of church and state does not preclude any relationship between government and religion.
Specifically, the Court has established the Lemon test that any support must be secular
(nondenominational) in purpose, cannot advance or impede religion, and must not involve
“excessive entanglements” of the state with religion. For the vast majority of Americans, this has
been an acceptable standard; yet, atheists view the confluence of government and religion as
establishing religion, which violates the First Amendment “establishment clause.”
Q4
Should someone accused of a serious crime go free if police commit a procedural error during the
investigation or during the arrest and questioning?
A4
In the American legal system, there is a presumption of innocence when one is charged with
violating a law. In turn, the Bill of Rights provides Constitutional protections for individuals
charged of a crime. These include the Fourth Amendment protecting persons from unreasonable
search and seizure. The Fifth Amendment requires indictment by grand jury for the prosecution of a
person accused of a crime, prohibits the government from trying a person twice for the same
offense, protects the right of silence, prohibits the government from taking life, liberty, or property
without due process and declares that private property may not be taken without just compensation.
The Sixth Amendment mandates an individual receive a speedy and public jury trial for crimes;
protects right to have legal counsel for defense; protects the right to be informed of accusation, to
confront witnesses. The Seventh Amendment protects the right to a jury trial in civil cases involving
more than twenty dollars. The Eighth Amendment prohibits the government from setting excessive
bail or fines and inflicting cruel and unusual punishment. In turn, to guarantee these freedoms,
procedures are designed for law enforcement to follow in order to obtain evidence within the
Constitutional limits. The courts have declared that evidence obtained illegally is not admissible
under the exclusionary rule. In Gideon, the Supreme Court established the right to counsel for
individuals accused of crimes in state courts via the Fourteenth Amendment. It can be argued that
acquittal based upon technicalities resulting from procedural errors during questioning or
throughout the investigation is the exception and not the rule. Yet, there is obvious frustration when
these events occur. Once again, the Bill of Rights provides due process to all Americans, which
serves the greater good. Occasionally, mistakes will occur and this provides an opportunity to
improve upon investigation techniques.
Q5
If we value civil liberties so highly, why do we keep so many people in prison?
A5
The United States has the highest incarceration rate in the world and places one in every thirtyone Americans in some element of the correctional system. This is somewhat of a paradox for a
society so committed to individual liberties. However, American political culture tends to
promote law and order with an “eye-for-an-eye” mentality toward crime and punishment. This is
part of the larger dilemma of liberty versus order that stands as a persistent part of the American
character lying just below the surface of many perennial U.S. political debates.
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Chapter Outline
One of the greatest legacies of post-World War II world governance is the United Nations’ passage of the
Universal Declaration of Human Rights in 1948. This document signifies the intent of governments to
promote individual freedom and provide security that are fundamental to the survival of every human
being. Thus, human rights or the fundamental rights to freedom and security that belong to every human
being includes freedom of opportunity, religious liberties, freedom of speech, protections against
unlawful detention or violence, freedom to associate with others, and freedom of choice. Yet, exactly how
to guarantee these civil liberties is an arduous task. In America, we uphold these “truths to be self-evident,
that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that
among them are Life, Liberty and the pursuit of Happiness.” In effect, a commitment to uphold
fundamental human rights, as stated in the Declaration of Independence, provides the foundation for
American democracy. The belief in freedom, equality, and security is delineated through civil rights and
civil liberties. Civil liberties are those areas of social life Americans believe should be free from
government intrusion. These include freedom of speech, press, and religion. Civil rights are those areas of
social life, like the right to vote and the right to be free from racial discrimination, which Americans
believe government should actively defend. While civil liberties buttress civil rights at one level, at
another, they conflict. The challenge becomes how to reconcile, or at least find an acceptable balance,
between freedom (liberty) and protection (order).
I.
Civil Liberties and the Bill of Rights
As the book discussed in Chapter 2, individuals immigrated to North America to seek economic,
social, and religious freedoms. Subsequently, early colonial charters and constitutions sought to
explicitly define personal liberties. Early examples include the Massachusetts Body of Liberties
(1641), the New York Charter of Liberties (1683), and the Pennsylvania Charter of Privileges
(1701). Moreover, as England began to take a more active interest in the fortunes the colonies
offered the Crown, many colonists believed colonial rule threatened personal liberty and private
property. The Intolerable Acts of 1774 confirmed the fear of early Americans that they were
subject to arbitrary rule by a monarch. In response to the repressive policies initiated by King
George and a majority of the members in parliament, the colonists began to write new state
constitutions to protect individual liberties and limit the power of government.
A. The Origin of the Bill of Rights
1.
The inclusion of the Bill of Rights in the Constitution can be credited to the
public’s view that government should not infringe upon individual rights.
a.
There was a group of Anti-Federalists who were concerned the new
Constitution would constrain religious freedoms.
b.
While Federalists also believed government should be limited and liberties
should be protected, they were concerned that enumerating rights may lead to
some being excluded and lead to government infringing on these freedoms. This
is known as the “reserved powers theory” credited to the Federalist, James
Wilson.
2.
In 1788, James Madison began to draft amendments to the proposed Constitution based
upon the state constitutions and over 200 amendments submitted by the thirteen states.
3.
Initially, the seventeen amendments were discussed with the House and Senate
deciding to
submit twelve amendments to the states for ratification.
4.
Two of the twelve did not receive the approval of three-fourths of the state legislatures
needed
for ratification (incidentally, one of these amendments was finally ratified
in 1992 and
became the Twenty-seventh Amendment).
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5.
B.
The first ten amendments to the U.S. Constitution, the Bill of Rights, were ratified
and went into effect on December 5, 1791.
a.
The first eight amendments guarantee individual liberties like speech and
religion.
b.
The Ninth Amendment provides that rights not enumerated were not lost by the
people (this appeased Federalists such as James Wilson).
c.
The Tenth Amendment provides that powers not delegated to the national
government were retained by the people or the states.
6.
In 1833, the case Barron v. Baltimore held that the Bill of Rights applied to the federal
government and not the states. In one of his final rulings as Chief Justice of the
Supreme Court, John Marshall held that individuals whose rights were violated by state
and local governments had to appeal to state constitutions, judges and juries.
Freedom of Expression: Speech and the Press
Freedom of expression, including a free press, speech, and the ability to petition public
officials and assemble, is vital to the idea of popular government. Consequently, certain
activities must be protected to allow a representative democracy to flourish. While the
Supreme Court applies a strict standard to determine free speech issues, not all speech
is protected.
1.
Freedom of Speech
a.
In the case Schenck v. United States (1919), the Court upheld the conviction of
a socialist who distributed publications stating his opposition to the war. Writing
the opinion of the Court, Oliver Wendell Holmes stated the right to free speech
is not absolute. Speech can be limited if the words present a “clear and present
danger” (speech inciting violent actions or public disruptions).
b.
The next case concerning the question of what constitutes protected speech was
Gitlow v. New York (1925) in which the defendant was accused of advocating the
overthrow of American democracy.
1)
The Court accepted the defendant’s incorporation argument that many of
the protections in the Bill of Rights, originally meant to apply only against
the national government, applied to the states as well once they were
“incorporated” into the Fourteenth Amendment’s guarantees of “due
process” and “equal protection of the laws.”
2)
The Court ruled against the defendant based upon an interpretation of
Holmes’ clear and present danger threshold by establishing a test of “bad
tendency” that prohibited speech if it might produce social or political
turmoil in the future.
c.
Yet, two years after Gitlow, Justice Holmes, along with Louis Brandeis,
argued that the “bad tendency” standard was illegitimate in Whitney v.
California (1927). Writing in dissent of the Court’s opinion supporting the
state, Brandeis stated that the actions of the defendant did not constitute an
“imminent” threat and therefore should be considered protected speech.
d.
In the 1969 case, Brandenburg v. Ohio, the Court overturned Whitney in favor of
the “imminent danger” threshold for limiting speech as proposed by Brandeis
forty years previously.
e.
In the 1989 case, Texas v. Johnson, the Court determined an activity such as flag
burning was protected speech. The Court reasoned that speech cannot be
suppressed just because society finds the speech or act offensive or disagreeable.
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1)
2.
3.
This constitutes a rare instance where the Court acts in a countermajoritarian manner given the public’s overwhelming opposition to flag
burning as protected speech.
2)
The Court established that symbolic speech or speech-related acts, such as
picketing or flag burning, are protected under the First Amendment
because they convey political opinions and ideas.
Unprotected Speech: The Cross Burning and Obscenity Examples
a.
In the 2003 Supreme Court case, Virginia v. Black, Justice Sandra Day
O’Connor, writing for the Court, determined that the traditionally intimidating
tactic of burning crosses instilled fear in blacks and was not considered protected
speech.
b.
Another form of unprotected speech is obscenity, or sexually explicit material,
either spoken, written, or visual, that lacks serious literary, artistic, political, or
scientific value.
1)
Originally, the test for obscene material was based upon its corrupting
power or the depraved nature of the material.
2)
The modern legal standard began in Roth v. United States (1957) but was
codified in Miller v. California (1973), in which materials were obscene if
an average person, using contemporary community standards, finds that the
object, taken as a whole, appeals to prurient interests, depicts or describes
sexual conduct in a patently offensive way, and lacks serious literary,
artistic, political, or scientific value.
3)
Consequently, it is easier to identify obscene materials than it is to provide
an acceptable and clear standard to judge what is obscene or not. Thus,
substantial disagreements arise as to what constitutes obscenity.
Freedom of the Press
The power of the press, commonly referred to as the mass media, is its ability to
disseminate information to large numbers of people. This begs the question: Does
government have a greater responsibility to regulate information based upon the size of
the audience?
a.
No Prior Restraint versus Freedom to Publish
1)
There are two views of freedom of the press:
(a) Prior restraint or prohibiting dissemination until permission is
granted.
(b) Almost complete prohibition against prior restraint.
2)
In Near v. Minnesota (1931), the Court established an almost complete
prohibition against prior restraint by any level of government.
3)
The case New York Times v. Sullivan strengthened protection for the press
when ruling public officials had to prove either “actual malice” or
“reckless disregard for the truth” in order to be awarded damages in a libel
case.
b.
Restrictions on Press Freedom: National Security and Fair Trial
1)
Freedom of the press has been limited. Two exceptions to the right of
freedom of the press involve national security and fair trial issues.
(a) The 1973 (New York Times Co v. United States) Pentagon
Papers case involved the publication of illegally obtained documents
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B.
regarding the Vietnam War. The courts ruled against “prior restraint”
much to the chagrin of those in the Nixon administration.
(b) The Iraq War spawned numerous requests from the Bush
administration for the courts to impose prior restraint due to the
sensitive nature of war strategies, surveillance issues, and banking
records that must be kept confidential if they are expected to
succeed. The media countered these arguments with its
responsibility to inform the public of what their government is doing.
In general, the courts are reluctant to invoke prior restraint.
2)
The media’s coverage of spectacular court trials has posed a dilemma for
the courts:
(a) Respect the individual who may be adversely affected by the media
coverage because it may interfere with that person receiving a fair
trial.
(b) Or, allow cameras and the press in the courtroom.
(c) However, courts have sided with the First Amendment and have
allowed media coverage of court proceedings.
Freedom of Religion
Religious freedom was the impetus for many early immigrants coming to America. Thus,
freedom to practice a chosen religion is of importance to many Americans. Early
colonists, as well as a majority of Americans today, adhere to the Judeo-Christian teachings
and indicate affiliations to Christian denominations. Subsequently, Christianity has had a
tremendous influence on our values, legal system, and approach to governing. Yet, our
Constitution is explicit that government shall make no law respecting an establishment of
religion. In turn, Americans believe in the separation of church and state. Even so, there
are sharp disagreements as to what degree religion and government should be separated.
One position is for strict separation in which the government plays no role in religion and
religion plays no role in government. Another view asserts government may not favor one
religion over another but that government may provide general support to all religions. A
third position proposes that government should actively promote religion to buttress
traditional moral values; though, no one religion should be favored over others.
1.
The Establishment Clause
a.
The establishment clause of the First Amendment states that “Congress shall
make no law respecting an establishment of religion.”
b.
This clearly indicates that there will be no national religion of the United States.
But what is less clear is to what extent government may use tax dollars to
support or cooperate with religious organizations.
c.
The Supreme Court case, Lemon v. Kurtzman (1971) established a test for state
support for religion. Known as the Lemon test, any support must be secular
(nondenominational) in purpose, cannot advance or impede religion and must
not involve “excessive entanglements” of the state with religion.
d.
The debate concerning teaching Intelligent Design (ID) in public schools and the
public display of religious symbols has provided mixed rulings from federal
courts and the Supreme Court, respectively.
1)
The federal district court decided against proponents of the Dover, PA,
public school board who mandated teaching ID (the belief that nature is not
random and therefore a “creator” has intervened in some capacity) in
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2)
2.
3.
biology classes instead of evolutionary theory (proposing an incremental
development of human beings determined by natural selection). Federal
Judge, John E. Jones III, ruled that ID was religion and not science and
therefore had no place in public school science courses and constituted a
violation of the First Amendment, specifically the establishment clause.
In 2005, the Supreme Court ruled in two cases that the placement of
religious items determined their constitutionality.
(a) In a Kentucky case, the Ten Commandments were hung on two
courthouse walls. The Court ruled this unconstitutional because it
endorsed one religion.
(b) But, the Court determined a monument with the Ten Commandments
inscribed on it when placed among other statutes with no religious
endorsements was Constitutional because it did not endorse one
religion over another.
The Free Exercise Clause
a.
The free exercise clause protects a wide range of religious observances and
practices from government (state) interference.
b.
The First Amendment states Congress may not establish a religion but also may
not “prohibit” the “free exercise” of religion.
c.
While the Supreme Court has upheld the right to believe and assert specific
religious principles, it has differentiated actions from beliefs.
1)
In Reynolds v. U.S. (1879) it ruled that the Mormon practice of polygamy
(plural marriage) was not protected by the Constitution.
2)
However, Congress passed the Religious Freedom Restoration Act in
1993, which was struck down by the Supreme Court in 1997 because the
legislation was deemed overly protective of religious activity and was
outside the role of government.
3)
In 1997, President Clinton established guidelines through administrative
rules allowing federal workers the right to express and reflect religious
views at work.
4)
Nevertheless, the courts are reluctant to restrict religious practices.
Prayer in the Schools
a.
Separation of church and state has been contested over prayer in public schools.
1)
In 1962, the Supreme Court declared that mandatory school prayer was
unconstitutional.
2)
In 1982, the Supreme Court ruled that a Louisiana statute authorizing daily
voluntary prayer was unconstitutional.
3)
In 1994, the Ninth Circuit ruled that high school graduation prayers were
unconstitutional even if a majority of students approved them.
b.
President Clinton established guidelines for how schools should deal with
religious issues, concluding student-initiated religious activities should be subject
to the opportunities and limitations as other non-academic social and political
activities. In effect, as long as students are not coerced to pray or observe a
moment of silence and school officials are not involved, it is permitted.
c.
The election of George W. Bush, a self-proclaimed born again Christian,
narrowed the gap between religion and government.
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1)
2)
Bush included provisions in the “No Child Left Behind Act” of 2001
requiring that schools be open to voluntary religious activity.
Furthermore, his funding for NGOs (some of which are affiliated with
religious organizations) and support for “faith based initiatives” have
increased funding for services provided in religious settings.
II.
The Rights of Criminal Defendants
In the American legal system, there is a presumption of innocence when one is charged with
violating a law. In turn, the Bill of Rights provides Constitutional protections for individuals
charged of a crime. These include the Fourth Amendment protecting persons from unreasonable
search and seizure. The Fifth Amendment requires indictment by grand jury for the prosecution of a
person accused of a crime, prohibits the government from trying a person twice for the same
offense, protects the right of silence, prohibits the government from taking life, liberty, or property
without due process. The Sixth Amendment mandates an individual receive a speedy and public
jury trial for crimes; protects right to have legal counsel for defense; protects the right to be
informed of accusation and to confront witnesses. The Seventh Amendment protects the right to a
jury trial in civil cases involving more than twenty dollars. The Eighth Amendment prohibits the
government from setting excessive bail or fines and inflicting cruel and unusual punishment.
A.
Searches, Seizures, and the Exclusionary Rule
1.
The Fourth Amendment guarantees that citizens will not be subject to unreasonable
searches and seizures. A search must be authorized by a warrant (usually from a judge)
based upon probable cause.
a.
To assure proper procedures are followed, American courts have enforced the
exclusionary rule holding that evidence illegally obtained is not immiscible in
trials.
1)
This was developed in the case Weeks v. U.S. (1914) which applied the
rule at the federal level.
2)
The exclusionary rule applied to the states through the decision in Mapp v.
Ohio (1961).
b.
In 1984, the Supreme Court created a “good faith” exception to the exclusionary
rule. The Court ruled that if evidence would have been discovered inevitably, the
materials are admissible. This is known as an “inevitable discovery” exception.
These exceptions have eroded some of the strength of the exclusionary rule.
b.
Furthermore, the 2005 case, Hudson v. Michigan, extended police powers by
loosening the “knock and announce” rule that requires law enforcement to
announce their presence and provide reasonable time for the occupants to
respond. In this case, the police did not knock and waited only a few seconds
before entering the house of the suspect. The Supreme Court ruled the police
acting properly and essentially reversed a staple of the common law tradition by
dismissing the need for the knock and announce rule.
B.
Right to Counsel
1.
The Sixth Amendment asserts a person accused of a crime must be provided a speedy
and public trial, have the right to legal counsel, and be informed of the charges and
confront witnesses.
2.
The right of criminal defendants in state courts to be provided legal counsel was
established in the 1963 case, Gideon v. Wainwright. Gideon was accused of
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C.
D.
executed
breaking and entering a pool hall in Panama City, FL, and found guilty but was not
provided legal counsel after requesting it be provided to him. He appealed the
judgment claiming his due process was violated per the Fourteenth Amendment
because a lay person could not possibly mount a viable defense given the complexities
of the American legal system. Gideon won the case and established precedent for
all states to provide public defendants.
Self-Incrimination
1.
The Fifth Amendment provides that citizens cannot be compelled to testify against
themselves.
a.
The case, Miranda v. Arizona (1966), established that once individuals are taken
into custody, they must be informed of their constitutional rights in writing and
verbally and that anything said by the accused can be used as evidence in a court
of law.
b.
Recent rulings have extended this decision to include that defendants understand
their rights by providing them in a language the defendant understands.
2.
Civil libertarians are concerned the rights of accused persons have been disregarded
given the Bush administration’s use of secret prisons, denying legal counsel to suspects
in the War on Terror, and the instances of torture in Abu Ghraib (although
technically these are enemy combatants and do not receive Constitutional protection).
Cruel and Unusual Punishment
1.
The Eighth Amendment prohibits cruel and unusual punishment.
a.
In the 1960s, the NAACP challenged the Constitutionality of the death penalty
using the Eighth Amendment as they claimed the death penalty constitutes cruel
and unusual punishment because it had been used disproportionately
against minorities.
b.
As a result, the Supreme Court determined the death penalty was unconstitutional
in the 1972 case, Furman v. Georgia, because procedures for implementation
were often arbitrary.
c.
In the 1978 case, Gregg v. Georgia, the Supreme Court allowed the state of
Georgia to enact the death penalty after it revised the procedures.
2.
The Court has upheld the Constitutionality of the death penalty given the federal
guidelines now adopted by the thirty-eight states who allow the procedure.
3.
The role of the Court since the 1990s has been to determine if the severely retarded
or minors may be put to death if found guilty of a capital crime.
a.
In Atkins v. Virginia (2002), the Court ruled the execution of a severely retarded
individual (who had an IQ below 70) violated the Eighth Amendment.
b.
In the 2005 case, Roper v. Simmons, the Court reversed a prior ruling and
determined that individuals who are under the age of eighteen could not be
for crimes committed subsequent to this age.
III. Civil Liberties, Prisons, and the Death Penalty
The United States has a strong commitment to civil liberties but juxtaposed against that it also has a
strong commitment to the principles of law and order. Thus, the United States has the highest
incarceration rate in the world with over 500 per 100,000 prisoners. Also, the United States is the
fifth highest exerciser of the death penalty, which alternatively has been abandoned by much of the
rest of the world with the exception of many dictatorships. The United States has 7.3 million people
in its correctional system (one in every thirty-one Americans) meaning that one in every eighteen
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men or one in every eighty-nine women, one in every eleven blacks, one in every twenty-seven
Hispanics, and one in every forty-five whites is in some aspect of the corrections system. The cost
of this system is quite high numbering $47 billion per year for prisons alone. A final interesting
note is that while crime, cost, and incarceration rates increased in the 1970s and 1980s, crime
statistics have been on the decline since the 1980s even though costs and incarceration rates have
not.
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Lecture Suggestions
Current Events Focus: The Patriot Act; Security versus Liberty
I.
The Patriot Act:
In the aftermath of the terrorist attacks on September 11, 2001, President George Bush signed
into law the USA Patriot Act (aka Patriot Act) on October 26, 2001 and the amended Patriot Act II
in 2005. The Acts provide the Executive Branch extra constitutional powers including enhanced
surveillance authority, expanding the power of the FBI to monitor personal health, financial, and
personal communications and provides intelligence agencies access to financial records in order to
track large transfers of money that may be going to terrorist organizations. Furthermore, the Patriot
Act seeks to improve communication between federal, state, and local law enforcement agencies to
prevent further terrorist attacks. However, political conservatives and liberals alike have criticized
the Patriot Act’s expansive powers that sacrifice individual freedoms, which provide the basis for
American democracy, for the sake of greater security that is needed to maintain a stable and
sovereign society.
II.
Two Views of the Patriot Act:
A. Security First!
Proponents of the Patriot Act point to its effectiveness to protect the United States from
future attacks. Even opponents cannot dispute the fact that we have not been attacked since
its inception. In that time, U.S. intelligence agencies and law enforcement have cooperated
with international agencies from a number of other countries to disrupt, capture, or kill
terrorist cells. In short, there is every indication that the aforementioned provisions in the
Patriot Act have worked to protect our country.
B.
What About Freedom?
Opponents of the Patriot Act identify the expanded authority given to the president but are
more concerned with its larger effect on the expanded secrecy provided to unelected
(appointed) officials, specifically the Attorney General and Secretary of Homeland Security.
In turn, opponents point to the Act’s intrusion on the separation of powers, given the shift
from legislative superiority to executive prerogative. Moreover, the Patriot Act establishes
military tribunals that may try “enemy combatants” without Constitutional protections
including the right to be represented by legal counsel.
III.
The Legacy of the Patriot Act (2001) and Patriot Act II (2005)
A. Changes in the Appointment of Federal Judgeships
Previously, under the federal code (Title 28, section 546), if a district U.S. attorney vacancy
occurred, it would be filled with a temporary appointee chosen by the Attorney General for
a maximum of 120 days. After 120 days if no appointment was made, the law prior to the
Patriot Act gave the power to appoint an interim U.S. attorney to the federal district court,
whose appointee would serve until the president finally got his own nominee confirmed.
However, the judiciary does not have the constitutional authority to appoint executive
officers. The executive who nominates and the Senate who confirms the nominee share this
role. In turn, if any entity of the federal judiciary were to appoint a federal judge there
would be no check on that appointment per the Constitution. The Patriot Act “remedied this
anomaly” by eliminating both the role of there district courts and the 120-day limit on the
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Attorney General's interim appointments. The interim appointee can now serve until the
Senate finally confirms the president's nominee.
(Source: McCarthy, “The Pot Calling the Kettle ‘Interim’,” National Review Online, January
17, 2007).
B.
However, the House and Senate (by a 94-2 majority) determined this provision in the Patriot
Act would likely produce “permanent temporary appointees” and therefore invalidated this
provision of the Patriot Act (David Sarasohn, “POWERS SURGE A Government that Gets a
New Power Will Use It,” The Oregonian, March 28, 2007).
C.
Violates the Fourth Amendment
Critics point to expansive powers given to law enforcement through "sneak and peek"
provisions that permits law enforcement agencies to “perform a search but delay notification
for a period of up to three months” which violates the Fourth Amendment protection against
unreasonable search and seizures. (Source: Gloria Stravelli, “Panel Discusses Pros and Cons
of Patriot Act: Federal Law has had Major Impact on Local Law Enforcement,”
Atlanticville, October 3, 2003).
D. The Court has ruled section 213 of the Patriot Act does not provide a blank check for law
enforcement or any other government entity to demand information and obtain
personal financial records without a court order (Source: www.Findlaw.com, June 6, 2005).
Institutional Focus: The Bill of Rights
I.
Introduction
The Bill of Right includes the first ten Amendments to the U.S. Constitution plus the Civil War
Amendments, specifically, the Thirteenth, Fourteenth, and Fifteenth Amendments. An easy way to
remember what comprises the Bill of Rights is to categorize them by purpose.
II.
The Original Bill of Rights
A. Freedom of Expression is protected by way of the First Amendment, prohibiting the
government from establishing a religion; protects freedom of religious expression, freedom
of speech and press, the right of assembly, and the right to petition the government.
B.
Amendments addressing Arms and Troops include:
1.
The Second Amendment protects the right to bear arms.
2.
The Third Amendment prohibiting the government from quartering (house, feed) troops
in citizens' homes in peacetime.
C.
Rights of Accused Persons include:
1.
The Fourth Amendment protecting persons from unreasonable search and seizure.
2.
The Fifth Amendment:
a.
Requires indictment by grand jury for the prosecution of a person accused of a
crime.
b.
Prohibits the government from trying a person twice for the same offense
(commonly termed double jeopardy).
c.
Protects the right of silence (an individual cannot be required to be a witness
against oneself).
d.
Prohibits the government from taking life, liberty, or property without due
process.
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e.
D.
E.
Prohibits the government from taking private property for public use without fair
compensation (eminent domain).
3.
The Sixth Amendment protects the right of individuals to receive a speedy and public
jury trial for crimes; ensures the right to have legal counsel for defense; protects the
right to be informed of accusation and confront witnesses.
4.
The Seventh Amendment protects the right to a jury trial in civil cases involving more
than twenty dollars.
5.
The Eighth Amendment prohibits the government from setting excessive bail or fines
and inflicting cruel and unusual punishment.
Rights of People and States include:
1.
The Ninth Amendment protects other, unspecified rights (rights not enumerated in the
Constitution).
2.
The Tenth Amendment reserves to the states those powers neither granted to the federal
government nor prohibited to the states.
Restrictions and Duties of State Governments
1.
The Thirteen Amendment prohibits slavery in every state of the Union.
2.
The Fourteenth Amendment applies due process (equal protection under the law) to the
states and obligates the state governments to protect citizens from illegal acts
perpetrated by a government entity or individual (this overturns Barron v. Baltimore).
3.
The Fifteenth Amendment prohibits states from preventing men from voting based
upon “race, color or previous condition of servitude.”
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Projects, Exercises, and Activities
1.
As an assignment, have the students volunteer their time and work for an organization that is active
in advancing and protecting civil liberties. The student could choose from any of a variety of
organizations such as the ACLU, Right to Life, Planned Parenthood, League of Women Voters,
Christian Coaliton, etc. These organizations have regional, state, and district offices throughout the
United States. If this is logistically impossible, have the students research one or two of the groups
and present their findings to the class or via a research paper.
2.
Sexual harassment is prevalent through cultures around the world. In the U.S. the problem of sexual
harassment coupled with sexual assault is somewhat abating. One reason is the changing legal
definitions of the crime. One place where this problem is being addressed is on college campuses.
Access your school’s website and compare the college’s sexual harassment policy with other
college’s sexual harassment policies (you can simply search “sexual harassment” through Google).
Many of these will be in the university policy statements. Compare three or four statements on
sexual harassment. In your opinion, what should be done to reduce sexual harassment in your
school? Be specific.
3.
By now your students have had a chance to study the structure of the federal government and have
familiarized themselves, to some degree, with their state institutions. Engage students in an
exploration of the value of privacy in the United States. Engage them in a search for language that
supports the right to privacy in our founding documents and in arguments made by rights
organizations like the ACLU. Students should access their college or university library to find
important court cases that support the right to privacy. Use this research to buttress a discussion of
privacy in 2012. Consider the following questions:
a.) How important is it that privacy does not appear explicitly in our Bill of Rights? Are
there elements of the constitution that support the idea of privacy as a right?
b.) What current challenges to privacy do Americans face?
c.) Based on your research, how what outcome would you predict for recent challenges to
privacy?
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Additional Resources
Supplemental Readings
Abraham, Henry J. and Barbara A. Perry. 1998. Freedom and the Court. Seventh Edition. New York:
Oxford University Press.
Amar, Akhil Reed. 1997. The Constitution and Criminal Procedure: First Principles. New Haven: Yale
University Press.
Berns, Walter. 1976. The First Amendment and the Future of American Democracy. New York: Basic
Books.
Carter, Stephen L. 1993. The Culture of Disbelief: How American Law and Politics Trivialized Religious
Devotion. New York: Basic Books.
Downs, Donald A. 2005. Restoring Free Speech and Liberty on Campus. Cambridge: Cambridge
University Press.
Epstein, Lee and Thomas J. Walker. 2004. Constitutional Law for a Changing America. Fifth Edition.
Washington, DC: CQ Press.
Fish, Stanley. 1994. There’s No Such Thing as Free Speech and It’s A Good Thing, Too. New York:
Oxford University Press.
Garrow, David. 1994. Liberty and Sexuality: The Right of Privacy and the Making of Roe v. Wade. New
York: Macmillan.
Jackson, Robert. 1953. “The Task of Maintaining Our Liberties: The Role of the Judiciary.” American
Bar Association Journal 39: 962.
Kersch, Ken I. 2004. Constructing Civil Liberties: Discontinuities in the Development of American
Constitutional Law. New York: Cambridge University Press.
Levy, Leonard W. 1985. Legacy of Suppression: Freedom of Speech and Press in Early American
History. New York: Oxford University Press.
Lewis, Anthony. 1964. Gideon’s Trumpet. New York: Random House.
Mansbridge, Jane. 1986. Why We Lost the ERA. Chicago: University of Chicago Press.
Prejean, Sister Helen. 1993. Dead Man Walking: An Eyewitness Account of the Death Penalty in the
United States. New York: Random House.
Schroedel, Jean Reith. 2002. Is the Fetus A Person? A Comparison of Policies across the Fifty States.
Ithaca: Cornell University Press.
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Websites
ACLU
This is the official website of the American Civil Liberties Union. This organization is dedicated to
protecting and upholding civil liberties and protecting civil rights. The site contains a blog as well as
video and audio sources covering topical areas in civil liberties debates.
Find Law
This site provides access to Supreme Court decisions, as well as dissenting and concurring opinions.
These are important for doing research on civil liberties and civil rights cases as they have been
manifested on the docket of the U.S. Supreme Court over the decades.
NAACP
This is the official website for the National Association for the Advancement of Colored People. This
organization was instrumental in advancing civil rights for African Americans.
NRA
This is the website for the National Rifle Association. This group is dedicated to the protection of the
Second Amendment to the U.S. Constitution, gun safety, and opposed to gun control legislation.
© 2013 Taylor & Francis