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O’Connor & Sabato, Chapter 4: Civil Liberties. Presentation 4.1: The Role of the Bill of Rights in American Govt. Key Topics. Introduction The Bill of Rights The Incorporation Doctrine The Selective Incorporation of the Bill of Rights 1 st Amendment Guarantees: Freedom of Religion

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O’Connor & Sabato,Chapter 4: Civil Liberties

Presentation 4.1: The Role of the Bill of Rights in American Govt.


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Key Topics

  • Introduction

  • The Bill of Rights

    • The Incorporation Doctrine

    • The Selective Incorporation of the Bill of Rights

  • 1st Amendment Guarantees: Freedom of Religion

    • The Establishment Clause

    • The Free Exercise Clause


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Introduction

  • The opening story about an elementary school principal announcing a ‘random search’ of students

    • Why did the principal feel he/she had a right to search students?

    • Do students have rights against random searches?

  • Why was the teacher fired? Were her rights violated?


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1a) What does the opening story tell you about the nature of civil liberties?

  • Individual rights must be balanced against other values

  • Expectation of privacy must be weighed against the safety of the community

  • Isaiah Berlin: “Freedom for the wolf is death for the sheep!”


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1b) The Bill of Rights & the Framers civil liberties?

  • The framers of the Constitution could not foresee the evolution of society

  • They did not have abortion, gay rights, or the right to die in mind

James Madison is widely credited as the

primary architect of the Bill of Rights


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1bi) The Nonabsolute Nature of Civil Liberties civil liberties?

  • Courts and lawmakers are often required to balance competing interests

  • Do we want individual liberty or safety

  • Are we willing to allow the FBI to tap private citizen’s phone lines in order to keep us safe from terrorists?


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1bii) The Problem of Irreconcilable Claims civil liberties?

  • Two liberties are often in conflict

  • The right of people to seek & provide abortion conflicts with Prolife supporters belief that abortion is murder

Members of ‘People for Life’ picketing

Sen. Arlen Specter. Picture from the

People for Life website.


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1c) What are Civil Liberties? civil liberties?

  • Personal rights & freedoms that the federal govt. cannot take away

  • Civil liberties place constraints on the ability of the govt. to arbitrarily control the beliefs or behavior of its citizens

  • The existence of civil liberties provides the basis for limited govt.


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1c) Rights as ‘Trumps’ civil liberties?

  • American constitutional scholar Ronald Dworkin

  • Dworkin argues that rights are like trumps in a game a cards

  • Cannot be abridged w/out violating the rule of law

NYC University Prof. Ronald

Dworkin. Picture courtesy NYCU

Website.


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2) The Bill of Rights civil liberties?

  • Most state constitutions included bill of rights

  • The new Constitution was viewed by many in the states as a threat to the rights and liberties of citizens

  • Anti-federalists did not trust the new govt.


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2a) The Framers & the Bill of Rights civil liberties?

  • The framers debated whether or not to include a national bill of rights

  • The motion was rejected as a potentially dangerous expansion of national power

  • The national govt. was viewed as a mechanism for coordinating the states

  • Not intended to directly regulate citizens


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2ai) The Ratification Process & the Bill of Rights civil liberties?

  • Anti-federalists fought hard for inclusion of a bill of rights

  • Several states only ratified the Constitution on the condition that a bill of rights be included

  • James Madison’s role

    • Campaigning in an anti-federalists district

    • Promised to ‘lend his talents’ to secure a national bill of rights

    • Won the race and kept his promise (‘a most nauseous task,’ he was reported to have said)


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2aii) The Significance of the 9 civil liberties?th & 10th Amendments

  • The first ten Amendments to the Constitution contain the Bill of Rights

  • The legalistic implications of the 9th Amendment

    • The listing of rights does not mean that other rights do not exist

  • The 10th Amendment’s ‘reserved powers’ clause

    • Powers not delegated to the natl. govt. are reserved to the people and the states


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2b) The Incorporation Doctrine civil liberties?

  • Barron v. Baltimore (1833): the Supreme Court ruled that the Bill of Rights applied to the national govt. & not the states

  • The ratification of the 14th Amendment fundamentally changed the relationship between the Bill of Rights and the states

  • Implied that the states must respect some or all of the protections in the Bill of Rights


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2bi) The Supreme Court & the 14 civil liberties?th Amendment

  • The Supreme Court refused to interpret the 14th Amendment’s ‘due process’ clause as making the Bill of Rights applicable to the states

  • In 1897, however, the SC began to increase its jurisdiction over the states

    • Imposed a substantive due process standard

    • Demanded that states demonstrate a ‘valid exercise’ of its police powers to regulate citizens’ health, welfare, or public morals


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2bii) Gitlow v. New York (1925) civil liberties?

  • Several states passed sedition laws that banned speech critical or disrespectful of govt.

  • Benjamin Gitlow, a socialist, printed & distributed a manifesto calling for the overthrow of the American govt.

  • Convicted in NY, appealed to the Supreme Court, claiming his right to speech had been violated


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2biii) civil liberties?Gitlow cont.

  • The Supreme Court upheld the conviction

  • However, the Court also concluded that the states were not completely free to limit forms of political expression

  • Some freedoms are fundamental & therefore protected by the due process clause of the 14th Amendment


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2biv) civil liberties?Near v. Minnesota (1931)

  • Jay Near published a weekly Minneapolis newspaper that regularly printed vicious attacks on various groups

  • Arrested under a state criminal libel law that prohibited ‘malicious, scandalous or defamatory’ publications

  • Near appealed his conviction, and the Court held that, while liberty of the press may be abused, immunity of the press from previous restraint is still necessary


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2c) Selective Incorporation civil liberties?

  • The Court has chosen to incorporate only the most important freedoms

  • Therefore, some but not all of the protections in the Bill of Rights have been made applicable to the states

  • The Court applies a heightened standard of review for freedoms it views as ‘essential’ for a functioning democracy


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2ci) civil liberties?Palko v. Connecticut (1937)

  • Palko robbed a music store and killed a police officer

  • Jury convicted of 2nd-degree murder & sentenced him to life in prison

  • The state appealed, arguing confusing jury instructions had led to a bad verdict

  • Palko was retried, convicted of 1st-degree murder, and sentenced to death


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2cii) civil liberties?Palko cont.

  • Palko appealed, arguing that the 2nd conviction violated the 5th Amendment’s prohibition of double jeopardy

  • The Court upheld the 2nd conviction, arguing that protection from double jeopardy was not an essential freedom

  • Palko was executed in 1938


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3) 1 civil liberties?st Amendment Guarantees

  • 63% of Americans belong to a church or synagogue

  • Still, many public figures fear that America is becoming an ‘atheist’ nation

  • The dangers of infusing religion into politics

Is religion important to you?


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3i) Religion in the Colonies civil liberties?

  • Many of the framers were deeply religious

  • However, many were non-religious, and viewed God as similar to a ‘watch-maker,’ who created the world & took no part in its day-to-day workings

  • Many colonists fled to the New World to escape religious persecutions; however, most colonies actively persecuted religious minorities


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3ii) Colonial Intolerance civil liberties?

  • Most colonies were intolerant of religious dissent

  • Example of the Salem Witch Trials in Massachusetts colony in 1692

The hanging of Bridget Bishop, June 10

1692. Picture courtesy Famous Am. Trials

website.


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3iii) Colonial Intolerance cont. civil liberties?

  • Colonies angered when the British Parliament established Anglicanism & Roman Catholicism as the official religions in the colonies

  • The 1st Continental Congress sent a letter of protest that Catholicism be one of the official religions


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3iv) Religion and the Constitution civil liberties?

  • The reality of religious diversity

    • Puritans in MA

    • Quakers in PA

    • Catholics in Maryland

  • Article VI: ‘no religious Test shall ever be required as a Qualification to any Office or Public Trust under the United States’


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3v) The First Amendment civil liberties?

  • Begin, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

  • Establishes provisional boundaries to the state regulation of religion

  • However, those boundaries are not absolute


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3a) The Establishment Clause civil liberties?

  • Conflict over the meaning of the establishment clause

  • How high is the ‘wall of separation’ between church and state?

  • Have allowed state subsidies of private religious educational institutions

  • However, the Court has consistently ruled that state-sponsored school prayer violates the establishment clause


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3ai) The civil liberties?Lemon Test

  • Based on Lemon v. Kurtzman (1971): Practices are constitutional if:

    • Secular purpose

    • Neither advanced nor inhibited religion

    • Did not foster ‘excessive govt. entanglement’ with religion

  • Since 1980’s, the Court has shown a willingness to ‘lower’ the wall of separation & ignore the Lemon test


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3aii) Establishment cont. civil liberties?

  • Historically, the Court adopted ‘books only’ to state aid of religious institutions

  • Books go to children, not the schools

  • In 2000, the Court voted to uphold a federal aid provision extending books and computers to religious schools

  • The ‘school voucher’ issue also clearly touches on the ‘establishment’ clause


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3b) The Free Exercise Clause civil liberties?

  • Guarantees that individuals are free to worship as they see fit – within reason!

  • When state laws conflict with religious law and practices, the state can limit the practice

  • However, the state must show that a legitimate purpose is served in the prohibition


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3bi) Practices Banned civil liberties?

  • Polygamy: marrying multiple partners is banned

  • Drug Use: using drugs as part of a religious ceremony can be prohibited

  • Snake Handling: handling poisonous snakes can be prohibited


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3bii) Prohibition or Accommodation? civil liberties?

  • The Court has generally concluded that state interests outweigh free exercise interests

  • Should states seek to promote greater citizen involvement in religion?

  • What goals are served by state neutrality in the exercise of religion?


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