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Civil Liberties. The First Constitutional Amendments: The Bill of Rights. 1787 – Most state constitutions explicitly protected a variety of personal liberties Speech, religion, freedom from unreasonable search and seizure, trial by jury New Constitution shifted power to the national government

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The First Constitutional Amendments: The Bill of Rights

  • 1787 – Most state constitutions explicitly protected a variety of personal liberties

    • Speech, religion, freedom from unreasonable search and seizure, trial by jury

  • New Constitution shifted power to the national government

    • Would the national government uphold these liberties?

    • Anti-Federalists voiced this concern


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The First Constitutional Amendments: The Bill of Rights

  • Bill of Rights addition defeated unanimously at the federal convention

    • Federalists argued that a bill of right was unnecessary.

      • Already included by states

      • Foolhardy to list things that the national government had NO power to do

      • Some Federalists supported the idea; Jefferson for example

      • James Madison did not until politics intervened

        • He sought House seat in a district that was largely Anti-Federalist in nature.

        • Made good on his promise


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The First Constitutional Amendments: The Bill of Rights

  • Bill of Rights

    • 1789 Congress sent 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 by the people.”

      • Tenth Amendment

        • Reiterates that powers not delegated to the national government are reserved to the states or to the people.


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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)

    • Court ruled that the national Bill of Rights limited only the actions of the U.S. government and not those of the states.

    • But decision suggested the possibility that some or all of the protections might be interpreted to prevent state infringement of those rights.


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The Incorporation Doctrine: The Bill of Rights Made Applicable to the States

  • 14th Amendment

  • Due process clause

    • Over the years this clause has been construed to guarantee to individuals a variety of rights

      • Economic liberty to criminal procedural rights and protection from arbitrary governmental action

    • Substantive due process

      • Judicial interpretation of the Fifth and Fourteenth Amendments’ due process clause that protects citizens from arbitrary or unjust laws


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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 Fourteenth Amendment requires that state and local governments also guarantee those rights.

      • Gitlow v. New York (1925)

      • Near v. Minnesota (1931)

  • Selective Incorporation

    • A judicial doctrine whereby most but not all of the protections found in the Bill of Rights are made applicable to the states via the Fourteenth Amendment.

      • Palko v. Connecticut (1937)

  • Fundamental Freedoms

    • Those right defined by the Court to be essential to order, liberty and justice.



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First Amendment Guarantees: Freedom of Religion Applicable to the States

  • Framers did not support a national church or religion.

    • Article VI

      • Provides that “no religious Test shall ever be required as a Qualification to any Office or Public Trust under the United States.”

    • First Amendment

      • Part of the Bill of Rights that imposes a number of restrictions on the federal government with respect to the civil liberties of the people, including freedom of religion, speech, press, assembly, and petition.


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First Amendment Guarantees: Freedom of Religion Applicable to the States

  • Establishment Clause

    • The first clause in the First Amendment

    • Prohibits the national government from establishing a national religion

    • Engel v. Vitale (1962)

    • Lemon v. Kurtzman (1971_

      • The Lemon Test

    • Agnostini v. Felton (1997)

    • Zelman v Simmons-Harris (2002)


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First Amendment Guarantees: Freedom of Religion Applicable to the States

  • Free Exercise Clause

    • The second clause of the First Amendment

    • Prohibits the U.S. government from interfering with a citizen’s right to practice his or her religion


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First Amendment Guarantees: Freedom of Speech and Press Applicable to the States

  • Democracy depends on a free exchange of ideas.

  • Volatile area of constitutional interpretation

    • Alien and Sedition Acts

      • Prior restraint: Constitutional doctrine that prevents the government from prohibiting speech or publication before the fact; generally held to be in violation of the First Amendment


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First Amendment Guarantees: Freedom of Speech and Press Applicable to the States

  • Civil War

    • Lincoln suspended the free press provision of the First Amendment

      • Ordered the arrest of the editors of two New York papers who were critical of him

      • Newspaper editor jailed by a military court without having any charges brought against him.

        • Appealed to the Supreme Court.

        • Congress enacted legislation prohibiting the Court from issuing a judgment in any cases involving convictions for publishing statements critical of the U.S.

        • Article II gives Congress power to determine the jurisdiction of the Court.


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First Amendment Guarantees: Freedom of Speech and Press Applicable to the States

  • WWI

    • Anti-governmental speech

    • Clear and Present Danger Test

      • Test articulated by the Supreme Court in Schenck v. U.S. (1919) to draw the line between protected and unprotected speech.

      • The Court looks to see “whether the words used” could “create a clear and present danger that they will bring about substantive evils” that Congress seeks “to prevent.”

      • Anti-war leaflets okay during peace, but not permissible during war – too dangerous.

      • But what constituted a danger?

    • Direct Incitement Test

      • A test articulated by the Supreme Court in Brandenburg v. Ohio (1969) that holds that advocacy of illegal action is protected by the First Amendment unless imminent lawless action is intended and likely to occur.


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First Amendment Guarantees: Freedom of Speech and Press Applicable to the States

  • Protected Speech and Publications

    • Prior Restraint

      • Court has made it clear that it will not tolerate prior restraint of speech

      • New York Times Co. v. Sullivan (1971)

        • Pentagon Papers case

        • Supreme Court ruled that the U.S. government could not block the publication of secret Department of Defense documents illegally furnished to the Times by anti-war activists.

      • Nebraska Press Association v. Stuart (1976)

        • Court ruled in favor of press’s right to cover trial.


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First Amendment Guarantees: Freedom of Speech and Press Applicable to the States

  • Symbolic Speech

    • Symbols, signs, and other methods of expression generally also considered to be protected by the First Amendment

    • Stromberg v. California (1931)

      • Upheld flying of red flag (symbol of opposition to U.S. government)

    • Tinker v. Des Moines Independent Community District School (1969)

      • Court upheld wearing of black armbands as protest against Viet Nam War


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First Amendment Guarantees: Hate Speech, Unpopular Speech, Speech Zones

  • Two-thirds of colleges and 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.


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The Rights of Criminal Defendants Speech Zones

  • Due process rights

    • Procedural guarantees provided by the Fourth, Fifth, Sixth and Eighth Amendments for those accused of crimes.

    • Warren Court made several provisions of the Bill of Rights dealing with the liberties of criminal defendants (those charged but not yet tried) applicable to the states through the Fourteenth Amendment.


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Fourth Amendment Speech Zones

  • “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.”


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Fourth Amendment Speech Zones

  • Over the years, the Court has interpreted the Fourth Amendment to allow the police to search:

    • The person arrested

    • Things in plain view of the accused person

    • Places or things that the arrested person could also touch or reach or are otherwise in the arrestee’s immediate control.

  • Court has ruled that police must knock and announce their presence before entering a home or apartment to execute a search.

  • 2001 ruling on thermal imaging drug evidence (without a warrant) was violation of Fourth Amendment.

  • Drug testing difficult search and seizure issue.

    • Chandler v. Miller (1997)


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Fifth Amendment Speech Zones

  • Imposes a number of restrictions on the federal government with respect to the rights of persons suspected of committing a crime.

    • Miranda v. Arizona (1966)

    • Miranda rights

  • Provides for indictment by a grand jury and protection against self-incrimination.

  • Prevents the national government from denying a person life, liberty, or property without the due process of law.

  • It also prevents the national government from taking property without fair compensation.


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Fourth and Fifth Amendments and the Exclusionary Rule Speech Zones

  • Judicially created rule that prohibits policy from using illegally seized evidence at trial.

  • Weeks v. U.S. (1914)

    • Court reasoned that allowing police and prosecutors to use a tainted search would only encourage that activity.

  • Mapp v. Ohio (1961)

    • Warren Court ruled that “all evidence obtained by searches and seizures in violation of the Constitution, is inadmissible in a state court.”


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Sixth Amendment and the Right to Counsel Speech Zones

  • Sets out the basic requirements of procedural due process for federal courts to follow in criminal trials.

    • These include speedy and public trials, impartial juries, trials in the state where the crime was committed, notice of the charges, the right to confront and obtain favorable witnesses, and the right to counsel.

    • Gideon v. Wainwright (1936)


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The Sixth Amendment and Jury Trials Speech Zones

  • Provides that a person accused of a crime shall enjoy the right to a speedy and public trial by an impartial jury.

  • It also provides defendants the right to confront witnesses against them.

  • Supreme Court has held that jury trials must be available if a prison sentence of six or more months is possible.

  • Impartiality of jury

    • Boston v. Kentucky (1986)

  • Right to confront witnesses

    • Maryland v. Craig (1990)


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The Eighth Amendment and Cruel and Unusual Punishment Speech Zones

  • Part of the Bill of Rights that states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”

  • Furman v. Georgia (1972)

    • Court ended capital punishment

      • Imposed in an arbitrary manner

  • Gregg v. Georgia (1976)

    • Reaction to rewriting of state laws on death penalty.

    • Death penalty statute found to be constitutional

  • McClesky cases (1987 and 1991)


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Right to Privacy Speech Zones

  • The right to be let alone.

  • A judicially created doctrine encompassing an individual’s decision to use birth control to secure an abortion.

  • Birth Control

    • Griswold v. Connecticut (1965

  • Abortion

    • Roe v. Wade (1973)

    • Court found a woman’s right to an abortion was protected by the right to privacy that could be implied from specific guarantees found in the Bill of Rights applied to the states through the Fourteenth Amendment.

    • Webster v. Reproductive Health Services (1989)

    • Planned Parenthood of S.E. Pennsylvania v. Casey (1992)

    • Stenberg v. Carhart (2000)

  • Homosexuality

    • Lawrence v. Texas (2003)

      • State sodomy laws found unconstitutional.


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The Right to Die Speech Zones

  • 1990 Court ruled in a 5-4 decision that parents could not withdraw a feeding tube from their comatose daughter after her doctors testified that she could live for many more years if the tube remained in place.

  • Rehnquist rejected any attempts to expand the right to privacy in to this area.


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The Right to Die Speech Zones

  • 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, their desire to have medical treatment terminated in the event they became incompetent.

  • 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.

    • Attorney General issued legal opinion that this was not acceptable.

      • State and national conflict.

      • Federal judge ruled that Ashcroft, then Attorney General, had overstepped his authority.


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