Civil Liberties and Civil Rights: Exploring Individual Protections and Equal Treatment

1. October 5, 2015 Ronald Reagan George Bush I William Jefferson Clinton George W. Bush II Barack Obama Donald Trump These men have been President during your lifetime. Which of the above was the best President? Why? Among all presidents who was the best? Why? Is it time for a Woman President? Is it time for someone other than a Dem or Rep?

2. Civil • Liberties • What are they? • Where are they found?

3. Civil Liberties • Are protections given to individuals against action of the government. • Usually the protections are written in a Constitution.

4. Civil Liberties • American civil liberties are set down in the Bill of Rights, as the first ten amendments are known.

5. Civil Liberties • They include freedoms of: • religion • speech & press • assembly • petition

6. Civil Liberties • They also include protections: • against arbitrary searches • unfair trials • cruel punishments

7. Civil Liberties • Interpreting what these rights mean is not easy. • The job of doing that in the U.S. falls to the Supreme Court.

8. Civil Liberties • For example, the court has decided that one’s right to free speech does not include the right to yell “fire” in a crowded theater.

9. Civil Liberties • In the end, interpreting the meaning of American civil liberties is a complicated balancing act between the needs of society and that of the individual.

10. What then are Civil Rights? • Civil Rights refers to the positive acts governments take to protect against arbitrary or discriminatory treatment by government or individuals.

11. What is the Police power of the state?

12. The Police Power The police power is the authority of each State to act to safeguard the well-being of its people To promote health: • States can limit the sale of alcohol and tobacco, make laws to combat pollution, and require vaccination of school children. To promote safety: • States can forbid concealed weapons, require the use of seatbelts, and punish drunk drivers. To promote morals: • States can outlaw gambling, the sale of obscene goods, and prostitution. To promote the general welfare: • States can enact compulsory education laws, provide to the needy, and limit profits of utilities.

13. The 5th and 14th Amendments • The 5th Amendment provides that: “no person … shall be deprived of life, liberty, or property without due process of law…” Equal protection under Federal Law. • The 14th Amendment extends that restriction to State and local governments: “No state shall … deprive any person of life, liberty, or property, without due process of law…” Equal protection under State and Local Law.

14. Due Process • Due process means that the government must act fairly and in accord with established rules at all times. • Due process is broken down into two branches: • Substantive due process—the fairness of the laws themselves • Procedural due process—the fairness of the procedures used to enforce the laws

15. 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

16. The First Constitutional Amendments: The Bill of Rights • Bill of Rights addition defeated unanimously at the constitutional 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; most did not • 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

17. 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 twelve 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. *12 proposed, 1 defeated, 1 ignored, 10 ratified

18. Bill of Rights • Amendment I • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. • Amendment II • A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. • Amendment III • No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

19. Bill of Rights • Amendment IV • 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. • Amendment V • No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

20. Bill of Rights • Amendment VI • In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. • Amendment VII • In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. • Amendment VIII • Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

21. Bill of Rights • Amendment IX • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. • Amendment X • The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

22. 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.

23. 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 • Ex post Facto – Cant make a law after the fact • Bill of Attainder – cant make law to punish without due process • Substantive due process • Judicial interpretation of the Fifth and Fourteenth Amendments’ due process clause that protects citizens from arbitrary or unjust laws • Procedural due process • Procedures used to enforce laws must always be fair

24. Due Process • 5th Amendment • nor be deprived of life, liberty, or property, without due process of law • 14th Amendment • nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

25. 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.

26. Selective Incorporation of the Bill of Rights

27. First Amendment Guarantees: Freedom of Religion • 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.

28. First Amendment Guarantees: Freedom of Religion • 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)

29. First Amendment Guarantees: Freedom of Religion • 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

30. First Amendment Guarantees: Freedom of Speech and Press • Democracy depends on a free exchange of ideas. • Volatile area of constitutional interpretation • Alien and Sedition Acts • 1790’s law against the defamation of the USA • 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

31. First Amendment Guarantees: Freedom of Speech and Press • 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.

32. First Amendment Guarantees: Freedom of Speech and Press • 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.

33. First Amendment Guarantees: Freedom of Speech and Press • 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.

34. First Amendment Guarantees: Freedom of Speech and Press • 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

35. 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.

36. The right to bear arms • Second Amendment Right • Controversy between gun control advocates and gun use advocates • Gun control advocates believe amendment supports only right to maintain collective militias • Gun rights advocates assert amendment protects right of individuals to own and use guns • District of Columbia v. Heller • McDonald v Chicago • Court refuses to hear other cases on guns since 2010

37. The Rights of Criminal Defendants • 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.

38. Fourth Amendment • “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.”

39. Fourth Amendment • 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)

40. Fifth Amendment • 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.

41. Fourth and Fifth Amendments and the Exclusionary Rule • 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.”

42. Sixth Amendment and the Right to Counsel • 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)

43. The Sixth Amendment and Jury Trials • 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)

44. The Eighth Amendment and Cruel and Unusual Punishment • 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)

45. Right to Privacy • 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.

46. The Right to Die • 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.

47. The Right to Die • 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.