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Civil Liberties. Freedom from govt interference Limits on what govt can do No’s Bill of Rights – National Govt. Incorporation of Bill of Rights. 14 th Amendment “due process” clause Due process = Bill of Rts ? Due process = some of Bill of Rts ?

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Presentation Transcript
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Civil Liberties

Freedom from govt interference

Limits on what govt can do

No’s

Bill of Rights – National Govt


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Incorporation of Bill of Rights

  • 14th Amendment “due process” clause

    • Due process = Bill of Rts ?

    • Due process = some of Bill of Rts ?

    • Due process have no relation to Bill of Rts?

  • Selective incorporation

    • most of Bill of Rts protections binding on states

    • Incremental jud’l decisions – Table 5.1


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Privacy

  • not specifically mentioned in the Constitution

  • Question of how to define

  • Warren & Brandeis HLR (1890) “right to be let alone”

  • Illustrates the non-absolute nature of “rights”


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Privacy

  • implied in or derived from other rights

    • 1st, 3rd, 4th, 5th, and 9th amendments create a penumbra – Justice Douglas

    • 14th liberty interest

  • two strands of constitutional interpretation re. privacy

    • 4th amendment protection against “unreasonable search and seizure”

    • reproductive privacy


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Katz v. United States (1967)

  • “Fourth Amendment cannot be translated into a general right to privacy”

  • “Virtually every governmental action interferes with privacy to some degree.”


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Katz v. United States (1967)

  • “Reasonable expectation of privacy” – 2 part test:

    • person have exhibited an actual (subjective) expectation of privacy

    • the expectation be one that society is prepared to recognize as ‘reasonable’ (objective)


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Drug Testing in Public Schools

  • Veronia School District v. Acton (1995)

    • Oregon

    • drug testing of student athletes upheld

    • 6-3 opinion

    • purpose of testing:

      • prevent student athletes from using drugs

      • protect their health and safety

      • provide drug users with assistance

    • Court upheld suspicionless drug testing of athletes


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Bd of Ed of Pottawatomie County v. Earls (2002)

  • testing of all middle and high school students involved in extracurricular activities

  • Oklahoma

  • choir member

  • 5-4 decision (Breyer – key to majority)

    • school’s custodial responsibility and authority -> limited expectation of privacy

    • intrusion/invasiveness of procedure – controlled

    • reasonable


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Reproductive Privacy

  • Griswold v. Connecticut (1965)

    • struck down a CT law that prohibited the prescription or use of contraceptives as an infringement on marital privacy

    • 7-2 decision but disagreement as to constitutional basis

      • Douglas – penumbra created “zones of privacy”

      • 9th Amendment protects rights not expressly mentioned

      • “liberty” of 14th amendment


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Eisenstadt v. Baird (1972)

  • MA law made it a felony to give anyone other than a married person contraceptive medicines or devices

  • established that privacy was right of individual

  • “Equal protection” of 14th Amend


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Roe v. Wade (1973)

  • TX statute made it a felony for anyone to perform an abortion except to save the life of the woman

  • 7-2 decision ruled unconstitutional

  • right to privacy encompasses a woman’s decision to terminate a pregnancy

  • 14th Amend – lower court said 9th


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Roe v. Wade (1973)

  • not absolute right – state has interest in

    • safeguarding health – 2nd trimester

    • protecting potential life – 3rd trimester


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Webster v. Reproductive Health Services (1989)

  • Missouri statute

    • Preamble – life begins at conception

    • Viability tests

    • Prohibitions on public funds for counseling


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Webster v. Reproductive Health Services (1989)

  • 5-4 decision

  • 4 justices – Rehnquist, White, Scalia & Kennedy would have reversed Roe

  • 4 justices – Blackmun, Brennan, Marshall & Stevens would have upheld Roe

  • O’Connor – upheld providions but not overturn Roe


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Planned Parenthood of SE PA v. Casey (1992)

  • 5-4 decision

  • O’Connor – abolished trimester and established “undue burden”

  • Only part of PA law ruled unconstitutional was notification of spouse

  • Legal “gray”


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Stenberg v. Carhart (2000)

  • Nebraska “late term” or “partial birth” abortion prohibition was vague and unenforceable

  • 5-4 decision


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