Procedural liberties are restraints on how the government is supposed to act. ... The Future of Civil Liberties. The Rehnquist Court has not actually ...
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Slide 1:Chapter 4 Civil Liberties
The Bill of Rights: A Charter of Liberties Nationalizing the Bill of Rights The 1st Amendment and Freedoms of Religion, Speech, Press and Assembly The 2nd Amendment and the Right to Bear Arms Rights of the Criminally Accused The Right to Privacy The Future of Civil Liberties
Slide 2:The Bill of Rights: A Charter of Liberties
Article I Protection Writ of Habeas Corpus Bills of Attainder Ex Post facto Laws How does the Bill of Rights provide for individual liberties? What are the differences between substantive and procedural restraints?
Slide 3:Substantive vs. Procedural Liberties
Substantive liberties are restraints on what the government shall and shall not have the power to do. For example, restricting freedom of speech, religion, or press Procedural liberties are restraints on how the government is supposed to act. For example, citizens are guaranteed due process of law.
Slide 4:Nationalizing the Bill of Rights (The Incorporation Issue)
The U.S. Supreme Court began applying the Bill of Rights to state action by utilizing the Fourteenth Amendment. The Court selectively applies the liberties on a case by case basis. Table 5.3 Table 5.3Incorporating the Bill of Rights into the 14th Amendment
Slide 6:The First Amendment: Freedom of Religion
The establishment clause provides that Congress shall make no law respecting an establishment of religion. Issues include — school prayer, nativity scenes, Pledge of Allegiance — bible class, evolution, The 10 Commandments, private school vouchers. Lemon Test. (secular, religiously neutral, avoid government religious entanglement.) The free exercise clause protects the right to believe and practice whatever religion one chooses. Issues include — polygamy, religious holidays, — peyote at work.
Slide 7:The First Amendment: Freedom of Speech
Speech is not an absolute freedom. What forms of speech are protected by the First Amendment? What forms of speech are not protected?
Slide 8:The First Amendment: Freedom of Speech
“Congress shall make no law . . . Abridging the freedom of speech, or of the press. . . .” Strict scrutiny places the burden on the government to prove that a restriction on speech or press is constitutional. — Speech that presents a clear and present danger is not protected by the First Amendment. (Sedition and “fighting words”) — Libel and slander is not protected. — Obscenity is not protected. — Symbolic speech (nonverbal, e.g. flag burning) is protected speech. Figure 5.1Figure 5.1
Slide 10:Freedom of the Press
Clear and Present Danger Test a threat to public order Preferred-Position Doctrine government must prove limiting is absolutely necessary Prior Restraint censorship and national security
Slide 11:Freedom of Assembly
Parades, marches, protests, demonstrations. Court allows requiring permits. Assembling versus loitering. KKK, Nazis, Crips and Bloods.
Slide 12:The 2nd Amendment: The Right to Bear Arms
Is the right to bear arms guaranteed by the Bill of Rights? How is its exercise restricted?
Slide 13:The 2nd Amendment: The Right to Bear Arms
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep an bear Arms, shall not be infringed.”
Slide 14:The 3rd Amendment: Quartering Troops
During peacetime with owners consent During war only by previously established laws.
Slide 15:Rights of the Criminally Accused
Do criminals have rights? How do the Fourth, Fifth, Sixth, and Eighth Amendments provide for due process of the law?
Slide 16:The 4th Amendment: Rights of the Criminally Accused
“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 . . . .” Failure to comply with the Fourth Amendment restricts the use of evidence pursuant to the exclusionary rule (Mapp v. Ohio)
Slide 17: The 5th Amendment: Rights of the Criminally Accused
Individuals have the right to a grand jury to determine the merit of criminal charges. A person cannot be tried for the same crime twice (double jeopardy). Individuals have the right to remain silent and cannot be compelled to testify against themselves in a criminal case. Property cannot be taken by the government without just compensation.
Slide 18:The 6th Amendment: The Right to Counsel
“In all criminal prosecutions, the accused shall . . . Have the Assistance of Counsel.” Gideon v. Wainwright establishes the right to counsel in all felony cases. Figure 5.2 Figure 5.2
Slide 19:The 7th Amendment
Lawsuits in amount exceeding $20, the right to trial by jury shall be preserved. Evidence heard by jury shall only be reconsidered using appropriate common law appeals process.
Slide 20:The 8th Amendment: Cruel and Unusual Punishment
The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishment. The death penalty was declared unconstitutional in 1972, but was reinstated in 1976, after procedural changes were implemented.
Slide 21:The Right to Privacy
What is the right to privacy? How has it been derived from the Bill of Rights? What form does the right to privacy take today?
Slide 22:The Right to Privacy
Griswold v. Connecticut (1965) created a “zone of privacy” when it was ruled that the state of Connecticut could not prohibit the use of contraceptives. —The U.S. Supreme Court concluded that a right to privacy was created through the First, Third, Fourth, Fifth and Ninth Amendments.
Slide 23:The Right to Privacy: Abortion
In Roe v. Wade (1973), the right to privacy was extended when the U.S. Supreme Court declared restrictive abortion statutes unconstitutional. In Webster v. Reproductive Health Services (1989), the U.S. Supreme Court upheld restrictions on the use of public facilities for abortions. In Planned Parenthood v. Casey (1992), the court narrowed the scope of Roe v. Wade.
Slide 25:The Right to Privacy: Right to Die
Assisted suicide. Most states say no and court agrees. In 1997 Oregon became first state to allow assisted suicide.
Slide 26:Privacy on the Internet
Cyber-cookies Online marketing of consumer information. Drivers license data bases. Medical record information. Individual must grant permission for release of information.
Slide 27:The Future of Civil Liberties
The Rehnquist Court has not actually reversed important decisions made by the Warren or Burger Courts. The current balance of justices makes any significant reversals unlikely.Support for Rights of Criminal Defendants has Declined
Slide 29:The Citizen’s Role
The liberties that are protected by the Bill of Rights are essential to guarantee a free society. Only in a free society can we participate in the process of making decisions that shape the way we live.